COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68774 PATRICK G. FINNERAN : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION JEAN F. BESTOR, et al : : Defendant-appellees : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 2, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 258,449 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: THOMAS S. HUDSON Attorney at Law 1700 Terminal Tower Cleveland, Ohio 44113 For defendant-appellees: HENRY A. HENTEMANN Attorney at Law Superior Building - 21st Floor 815 Superior Avenue, N.E. Cleveland, Ohio 44114 TIMOTHY E. McMONAGLE, J.: Plaintiff-appellant Patrick G. Finneran appeals from the trial court's award of summary judgment to new party defendant State Farm Mutual Automobile Ins. Co. (hereafter referred to as "State Farm") in plaintiff's action for underinsurance benefits. For the reasons set forth below, we reverse and remand for further proceedings consistent with this opinion. The record reflects that plaintiff was an insured pursuant to a policy of motor vehicle insurance issued by State Farm. This policy contained a provision for underinsurance benefits in the amount of $100,000 per person and $300,000 per occurrence. The record further reflects that on March 6, 1992, plaintiff and defendant Jean Bestor were involved in a motor vehicle collision and that plaintiff suffered serious injuries. Plaintiff subse- quently brought suit against Bestor, then later settled with her for $100,000, the limits of Bestor's liability insurance. There- after, on June 14, 1994, plaintiff brought a claim against State Farm, contending that he was also entitled to underinsurance benefits. State Farm filed an answer in which it denied liability. It then moved for summary judgment and asserted that plaintiff's injuries were not caused by an underinsured vehicle, as that term - 3 - is defined in the policy, since Bestor had liability insurance in the amount of plaintiff's underinsurance limits. In addition, State Farm asserted that pursuant to R.C. 3937.18(A)(2), it is permitted to set off from the limits of the underinsurance cover- age those amounts recovered from the tortfeasor and that, follow- ing such set-off, no underinsurance coverage was available in this instance. Finally, State Farm argued that the legislature's recent amendments to R.C. 3937.18 operate retroactively to likewise authorize set-off of the amounts obtained from the tortfeasor from the underinsurance policy limits. In opposition, plaintiff maintained that pursuant to the supreme court's decision in Savoie v. Grange Mutual Ins. Co. (1993), 67 Ohio St.3d 500, 508-509, an underinsurance carrier may not avoid responsibility to its insured when the limits of its policy are identical to the limits of the tortfeasor's liability policy. Thus, plaintiff asserted that, under Savoie, he was entitled to collect up to the full limits of the underinsurance policy to the extent that his damages exceed the amounts which the tortfeasor's insurer had already paid to him. Plaintiff further argued that the legislature's response to Savoie, contained in Am.Sub.S.B. 20, which creates a statutory right of set-off, may not be applied retroactively. The trial court noted that the insured and the tortfeasor, Bestor, had identical policy limits. It then determined that pursuant to Hill v. Allstate (1990), 50 Ohio St.3d 243, the - 4 - prevailing case at the time of the collision, plaintiff was not entitled to collect underinsurance benefits. The court then granted State Farm's motion for summary judgement. Plaintiff now appeals and assigns a single error for our review. I. Plaintiff-appellant's assignment of error states: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AND HOLDING THAT THE CASE OF SAVOIE V. GRANGE MUTUAL INS. CO. DID NOT APPLY TO CAUSES OF ACTION ARISING BEFORE THE DATE OF DECISION. Within this assignment of error, plaintiff-appellant asserts that the trial court erred in applying Hill v. Allstate, supra, to this matter. Appellant argues that although Hill was the govern- ing case at the time of his collision, the court's decision in Savoie is to be applied retroactively to this matter. With regard to procedure, this court notes that in the absence of a specific provision in a decision which declares that its application is to be prospective only, the decision shall be applied retrospectively as well. State ex rel. Bosch v. Indus- trial Commn. of Ohio (1982), 1 Ohio St.3d 94, 98; North Olmsted v. Eliza Jennings, Inc. (1993), 91 Ohio App.3d 173, 179. Similarly, the decision of a court of supreme jurisdiction which overrules a former decision is retrospective in operation, and the effect is that the former law was never the law. Peerless Elec. Co. v. Bowers (1955), 164 Ohio St. 209, 210. - 5 - A general exception to the rule of retrospective operation of decisional law is recognized where contractual rights have arisen or vested rights have been acquired under the prior decision. Id.; Nationwide Ins. Co. v. Tobler (1992), 80 Ohio App.3d 560, 569. This exception has not been recognized, however, in insurance cases where the parties are relying upon R.C. 3937.18. Id. The Tobler court explained: We do not find that this exception applies since the contractual rights of the parties were always subject to the provisions of R.C. 3937.18 and the policies underlying it. Nationwide's claim that because insurance policies involve contractual rights, Supreme Court decisions could never be applied retro- actively in insurance cases is erroneous. See Blackburn v. Hamoudi (Feb. 8, 1991), Franklin App. No. 89AP-1102, unreported, 1991 WL 161137; Nationwide Mut. Ins. Co. v. Zeiter (Dec. 10, 1990), Seneca App. Nos. 13-89-27 and 13-89-28, unreported, 1990 WL 197918. Id., at 569. See, also, King v. Safeco Ins. Co. (1990), 66 Ohio App.3d 157, 161 (prohibition against impairment of contractual obligations is clearly directed against retrospective application of legislation that operates to impair obligation of contracts, and therefore application of case holding that insurance policy provision that limited recovery for all causes of action arising out of bodily injury to one person to a single limit of liability was a valid restriction on uninsured motorists coverage would not deprive insured of vested or contractual rights). With regard to the substantive law, this court further notes that in Hill, supra, the supreme court held that pursuant to R.C. - 6 - 3937.18(A)(2), underinsurance coverage is not applicable where the limits of liability contained in the insured's policy are identi- cal to the limits of liability set forth in the tortfeasor's liability insurance coverage. Thereafter, in Savoie, supra, para- graph three of the syllabus, the court overruled Hill and held that an underinsurance claim must be paid when the individual covered by an uninsured/underinsured policy suffers damages that exceed those monies available to be paid by the tortfeasor's lia-bility carriers. The court explained: An individual covered by an underinsurance policy is entitled to receive compensation in an amount no less than what he would receive if he had been injured by an uninsured motorist. James v. Michigan Mut. Ins. Co. (1985), 18 Ohio St.3d 386, 18 OBR 440, 481 N.E.2d 272. Thus, underinsured motorists who suffer from injuries caused by an automobile accident are entitled to collect up to the full limits of their underinsurance policy to the extent that their damages exceed the amounts which the tortfeasor's insurer has already paid to them. The Savoies may collect up to the limits of their policy with Motorists to the extent that their damages exceed the $225,000 which they are entitled to receive from Grange. In Hill v. Allstate Ins. Co., supra, a majority of this court held without elaboration that an underinsurance carrier avoids responsibility to its insureds when the limits of its policy are identical to the limits of the tortfeasor's liability policy. This decision incorrectly construes R.C. 3937.18, and is now expressly overruled. Id., at 508-509. Accord Kuhner v. Erie Ins. Co. (1994), 98 Ohio App.3d 692 (under Savoie, insured could collect up to limits of - 7 - underinsurance policy to extent that her damages exceeded $75,000 available under tortfeasor's policies). Following its decision in Savoie, the supreme court indicated that the decision would have retrospective effect. Compare Mezerkor v. Mezerkor (1994), 70 Ohio St.3d 304, Mezerkor v. Mezerkor (June 30, 1992), Geauga App. No. 90-G-1560, unreported (supreme court noted in footnote that Savoie decision would have effect on resolution of claim, and appellate decision demonstrates that claim involved accident which occurred on Oct. 4, 1984); Clark v. Nationwide Ins. Co. (1994), 68 Ohio St.3d 365, Clark v. Nationwide Ins. Co. (Oct. 27, 1992), Franklin App. No. 92AP-485, unreported (supreme court reversed and remanded matter for appli- cation of Savoie holding to matter, and appellate decision demon- strates that claim involved collision which occurred on September 11, 1986); Hillman v. Hastings Mutual Ins. Co. (1994), 68 Ohio St.3d 238, Hillman v. Hastings Mutual Ins. Co. (Sep. 22, 1992) Franklin App. No. 92AP-717, unreported (supreme court affirmed per its holding in Savoie, paragraph three of the syllabus, and appel- late decision demonstrates that matter involved collision which occurred on October 25, 1991); Miller v. Fling (1993), 68 Ohio St.3d 95, Miller v. Fling (Dec. 31, 1992), Marion App. No. 9-92- 50, unreported (supreme court reversed pursuant to Savoie, and appellate decision demonstrates that claim involves collision occurred on November 4, 1990); Borsick v. State Farm Mut. Auto. Ins. Co. (1993), 68 Ohio St.3d 81, Borsick v. State Farm Mut. Auto. - 8 - Ins. Co. (Mar. 31, 1993), Erie App. No. E-92-26, unreported (supreme court reversed pursuant to Savoie, and appellate decision demonstrates that claim involves collision which occurred on April 5, 1989); Nationwide Ins. Co. v. Corliss (1993), 68 Ohio St.3d 96, Nationwide Ins. Co. v. Corliss (June 1, 1993), Butler App. No. CA- 92-11-234, unreported (supreme court reversed matter pursuant to Savoie, and appellate decision demonstrates that claim involves collision which occurred on August 4, 1990). Accordingly, it is clear that the supreme court's decision in Savoie, supra, is to be applied retroactively and therefore governs this matter. Plaintiff-appellant's assignment of error is therefore well taken. Defendant-appellee urges us to affirm the lower court's deci- sion and asserts that set-off is still permitted because the Savoie decision did not overrule the court's prior decision in James v. Michigan Mutual Ins. Co. (1985), 18 Ohio St.3d 386. We note, however, that the court rejected this contention when it denied rehearing in Savoie. See Savoie v. Grange Mutual Ins. Co. (1994), 68 Ohio St.3d 1216. See, also, Hillman v. Hastings Mutual Ins. Co. (1994), 68 Ohio St.3d 238 (Pfeifer,J., concurring); Newman v. United Ohio Ins. Co. (1994), 69 Ohio St.3d 1204, 1205 (Douglas,J., concurring). Defendant-appellee also urges us to affirm the decision of the lower court on the basis of retroactive application of Am.Sub.S.B. - 9 - 20, which became effective on October 20, 1994. This bill modifies R.C. 3937.18 and provides in relevant part as follows: The policy limits of the underinsured motor- ists coverage shall be reduced by those amounts available for payment under all applicable bodily injury liability bonds and insurance policies covering persons liable to the insured. Cases which have considered whether this provision applies retroactively have determined that it does not. See Beckman v. Prudential Ins. Co. (1994), 69 Ohio Misc.2d 1, 5-6; Love v. Nationwide Mutual Ins. Co. (June 22, 1995), Franklin App. No. 94, APE 12-1708, unreported; United Services Auto. Assn. v. Mack (May 17, 1995), Clark App. No. 94-CA-32, unreported; Sigmon v. Hatfield (Mar. 6, 1995), Clermont App. No. CA94-07-054, unreported. The Mack court applied a detailed analysis and stated: The issue of whether a statute may constitu- tionally be applied retrospectively does not arise unless there has been a prior determi- nation that the General Assembly specified that the statute so apply. Upon its face, R.C. 1.48 establishes a threshold analysis which must be utilized prior to inquiry under Section 28, Article II of the Ohio Constitution. * * * In Van Fossen [v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100], the Supreme Court found that the following language contained in the former R.C. 4121.80(H) made it applicable to pending actions: This section applies to and governs any action based upon a claim that an employer committed an intentional tort against an employee pending in any court on August 22, 1986 and all claims or actions filed after that date, notwithstanding any - 10 - provisions of any prior statute or rule of law in this state. Consequently, the Court proceeded to the second and constitutional phase of its analysis to determine whether the statute passed constitutional muster. Van Fossen, supra, at 109. By contrast, in Nease [v. Medical Col- lege Hosp. (1992), 64 Ohio St.2d 396], at 398, the Court found that an amendment to R.C. 2743.02 was: devoid of language expressing an inten- tion that the statute be retrospective. *** Such a finding upon a threshold analysis eliminates the need for a de- termination of whether the statute is substantive or merely remedial. We therefore must review the decision of the court of appeals with the guidance of the Court of Claims Act as it existed at the time the Neases' claims arose. (Emphasis added.) See, also, Schulte v. Schulte (1994), 71 Ohio St.3d 41, 44, 641 N.E.2d 719. USAA contends that Sections 7 through 19 of Am.Sub.S.B. No. 20 indicate the intent of the General Assembly that the Savoie amendment be applied retroactively. We find, however, that unlike some statutes or amendments enacted by the General Assembly, there is no language in the amended statute or the uncodified sections of the statute that would make the Savoie amendment applicable to actions pending in court on the statute's effective date. We note that the General Assembly used the verbs "supersede" and "declare and confirm" to describe its purpose in amending R.C. 3937.18. We will not stretch the meaning of these verbs beyond their accepted and ordinary usage. Moreover, since the General Assembly has, in the past, used express language to apply new or amended statutes to pending actions, we will not infer its intent to do so without language expressing or clearly implying that intent. Without express language from the General Assembly that the Savoie amendment is to apply retroactively to pending actions, we lack the - 11 - threshold requirement to examine the constitutional question under Section 28, Article II of the Ohio Constitution. Thus, we conclude that the Savoie amendment is not retroactive. Furthermore, as the Court noted in Van Fossen, consideration [of] *** whether a statute is constitutionally permissible [emphasis in original], by analysis of whether it is substantive or remedial, answers only the question of whether the General Assembly was em- powered to so act in a particular in- stance. In no wise could such an analy- sis answer the more immediate and narrow question of whether the General Assembly intended its enactment to apply retro- spectively. (Emphasis added.) Since this analysis is thorough and the reasoning sound, we find that we cannot improve upon it and therefore adopt it herein. In accordance with all of the foregoing, we cannot and do not conclude that Am.Sub.S.B. 20 operates retroactively. We therefore reject the argument of the defendant-appellant as to this issue. Judgment reversed and cause remanded. - 12 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellees his costs herein. It is ordered that a special mandate be sent to said court 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. JAMES M. PORTER, P.J. and JOSEPH J. NAHRA, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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, .