COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60415 QUEEN E. FORD, ET AL. : : Plaintiff-appellants : : JOURNAL ENTRY -vs- : AND : OPINION TALLEY MACHINERY CORPORATION, : ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : DECEMBER 17, 1992 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 156,381 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellees: Thomas Mester, Esq. Dale Markworth, Esq. Richard Demsey, Esq. 2150 Illuminating Bldg. Joel Levin, Esq. 55 Public Square 1370 Ontario, First Floor Cleveland, OH 44113 Cleveland, OH 44113-1792 Gary Goldwasser, Esq. 113 St. Clair Bldg. Cleveland, OH 44ll4 - 2 - PATTON, J. Plaintiff-appellant Queen E. Ford ("appellant") appeals from the trial court's grant of summary judgment in favor of two cor- porate out-of-state defendants, Universal Enterprises ("Univer- sal") and Talley Machinery Corporation ("Talley") (collectively 1 "defendants"). The defendants moved for summary judgment on the grounds that appellant's cause of action in negligence was barred by the applicable statute of limitations. Specifically, the defendants successfully argued that, pursuant to R.C. 2305.10, appellant had two years from the date of injury in which to file her complaint. Her injury occurred on March 11, 1985. Her complaint naming these defendants was filed on September 12, 1988. Therefore, her action is time-barred. Appellant responded and argued that R.C. 2305.15, the "tolling statute", tolled the time in which to file her complaint as the defendants are foreign corporations with no in-state statutory agent. The issue presented for our review is whether the United States Supreme Court's decision in Bendix Autolite Corp. v. Mid- wesco Enterprises, Inc. (1988), 486 U.S. 888, should retroac- tively apply to the instant case so as to bar appellant's cause of action as being untimely filed. The Bendix Court held R.C. 1 Appellant's husband, Anthony Ford, brought a loss of consortium claim against the defendants which is still pending in the trial court. His claim is not barred by the applicable four year statute of limitations. - 3 - 2305.15, the tolling statute, to be unconstitutional as violative of the Commerce Clause of the United States Constitution. The Bendix Court refused to address the issue of retroactivity as it was not raised in the district court and was raised for the first time in the Sixth Circuit Court of Appeals, which court declined to address the issue. Id. at 895. The facts relevant to this appeal are as follows: Appellant was injured on March 11, 1985 while in the course and scope of her employment at Arrow Overall Supply Company. She was injured while operating a shirt press. She filed a complaint sounding in negligence on March 11, 1986 in Case No. 106579 ("Case I") where she named Arrow and Unipress Corporation, a successor-in-interest to the designer and manufacturer of the shirt press, amid others, as defendants. Universal and Talley were not named as defendants in Case I. Over three years after the commencement of Case I, appellant sought leave to amend the complaint on June 29, 1988. At some point during discovery, appellant learned the identities of Universal and Talley and wished to add them as defendants in Case I. The trial court denied said request. No appeal of this order was taken. Instead, appellant filed a Civ. R. 41(A)(2) motion to dismiss Case I and filed another action, Case No. 156381 ("Case II"), which is the instant case, on September 12, 1988 naming Universal and Talley as defendants. Appellant's motion to voluntarily dismiss Case I was then granted. - 4 - Universal and Talley filed motions for summary judgment, which were identical. Said motion for summary judgment in Case II was granted. On or about September 26, 1989 appellant refiled the action in Case I naming Arrow, Unipress and others as defendants but excluded Universal and Talley. (Case No. 176485) ("Case III"). Appellant's assignment of error asserts that Bendix should not be retroactively applied so as to time bar her action in Case II. In particular, she avers that the retroactivity standard enunciated in Chevron Oil Co. v. Huson (1971), 404 U.S. 97 (the "Chevron test"), applies because the Bendix decision did not address retroactivity. Appellant argues the tripartite Chevron test is satisfied in the within case and, hence, her action is not time-barred. We do not agree with appellant's contentions so we affirm the decision of the trial court. In Ohio, the general rule "'is that a decision of a court of supreme jurisdiction overruling a former decision is retrospec- tive in its operation, and the effect is not that the former was bad law, but that it never was the law.'" Koziol v. Quality Stamping Products (Mar. 5, 1992), Cuyahoga App. No. 59941, unreported, at 3-4, citing Peerless Electric Co. v. Bowers (1955), 164 Ohio St. 209, 210; Shaffer v. Frontrunner, Inc. (1990), 57 Ohio App. 3d 18, 20; Anello v. Hufziger (1988), 48 Ohio App. 3d 28. This general rule is also applicable to situa- tions where the supreme court is not overruling one of its - 5 - decisions but is interpreting a statute. Koziol, supra; Anello, supra. A high court decision will not be given retroactive effect if the Chevron test is satisfied. Anello, supra, at 30, citing Chevron, supra, at 106-107. That test states: "(1) Is the decision one of first impression that was not clearly foreshadowed? (2) Will retrospective application retard the operation of the statute, considering its prior history, purpose and effect? (3) Will the retrospective application produce substantial inequitable results ('injustice or hardship')?" Id., at 30, citing Chevron, supra, at 106-107. We hold that the Chevron test is not satisfied and Bendix shall be applied retroactively. First, the Bendix decision was clearly foreshadowed. The district court in March of 1984, one year prior to appellant's injury, declared the tolling statute unconstitutional as applied to foreign corporations not registered to do business in Ohio. The Sixth Circuit in June of 1987 affirmed that decision in that the tolling statute placed an impermissible burden on interstate commerce by forcing foreign corporations "to choose between exposure to the general jurisdiction of Ohio courts or forfei- ture of the limitations defense, remaining subject to suit in Ohio in perpetuity." Bendix, supra, at 891, citing Bendix Autolite Corp. v. Midwesco Enterprises, Inc. (C.A.6 1987), 820 F. 2d 186. Appellant was or should have been aware of this - 6 - significant decision declaring Ohio's tolling statute unconstitutional as violative of the Commerce Clause four years prior to the filing of appellant's complaint and one year prior to her injury. Hence, the United States Supreme Court's decision in Bendix could reasonably have been foreseen under state law. Second, retrospective application will not "retard" the purpose and effect of the tolling statute. As explicated in Bendix, supra, Ohio cannot justify its tolling statute when the Ohio long arm statute would permit service on foreign corporations throughout the period of limitations. Id. at 888. Moreover, the intent of the tolling statute was not to force foreign corporations to remain liable in perpetuity for all lawsuits containing state causes of action filed against it in the state. Where a state denies ordinary legal defenses, such as statute of limitations defenses, to persons and corporations actively engaged in the commercial sphere, the state law will be reviewed under the Commerce Clause and the state may not deny such defenses on reasons repugnant to the Commerce Clause. Id. at 893. We are mindful that the effect of a supreme jurisdic- tion's act overruling a prior decision or interpreting a statute is that the former was really never the law. Peerless Electric, supra, at 210; Shaffer, supra, at 20; Anello, supra. It is illogical to assume that the Supreme Court would allow gross violations of the Commerce Clause up to a certain point and then hold only future violations as being repugnant. - 7 - Last, the retrospective application of Bendix will not produce "substantial inequitable results." The Supreme Court in Chevron found the retroactive application of the Louisiana statute of limitations would have deprived the respondent of any remedy whatsoever on the basis of new law that was unforesee- able. Chevron, supra, at 107. In this case, appellant could have availed herself of jurisdiction over Universal and Talley by way of the long-arm statute. Hence, appellant could have com- menced her lawsuit against these defendants within the applicable time period. Moreover, she had the remedy of the Workers' Compensation Act and has an additional lawsuit pending below which arose from the same facts as the instant case. As such, appellant has not been denied any remedy whatsoever on new law that was unforeseeable. The Chevron test is not satisfied. Accordingly, the assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellees recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J. ANN McMANAMON, J., CONCUR JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .