COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68982 MARGARET R. WILSON : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION ALLSTATE INSURANCE COMPANY : : Defendant-appellee : : DATE OF ANNOUNCEMENT : JANUARY 18, 1996 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-270951 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: WINSTON GRAYS, ESQ. MARILYN J. SINGER, ESQ. 1025 Huntington Bldg. 700 Skylight Office Tower 925 Euclid Avenue 1660 West 2nd Street Cleveland, OH 44115-1405 Cleveland, OH 44113-1454 - 2 - PATTON, J. Plaintiff-appellant, Margaret R. Wilson appeals the trial court's ruling granting her insurer, defendant-appellee, Allstate Insurance Co.'s motion for summary judgment. The facts in this case are undisputed. On August 19, 1992, Wilson was involved in an automobile accident with Dennis Gregovich. On September 24, 1992, Wilson filed a civil complaint against Gregovich seeking damages for injuries she sustained as a result of the accident. Gregovich was insured with Colonial Insurance Company of California. In April 1993, Colonial entered into settlement discussions with Wilson and offered to settle the matter for the limits of Gregovich's insurance policy, $100,000. Upon receipt of the offer, Wilson's attorney contacted Allstate and sought its approval of the settlement agreement and requested that Allstate approve the offer and further that Allstate waive its right to subrogation for medical expenses paid by them on Wilson's behalf. Allstate forwarded the following letter dated April 7, 1993: "* * * This letter will serve as verification that Allstate will be waiving its rights of subrogation for collection of medical payments with respect to the accident involving * * * [Wilson and Gregovich]. * * *" In May 1993, after receiving the above letter Wilson settled with Colonial for $100,000 and executed the following release: * * * "MARGARET WILSON hereby expressly stipulates and agrees to defend, indemnify and hold - 3 - harmless DENNIS GREGOVICH and his insurer, COLONIAL, against loss of any further claims, demands, or actions, that may hereafter or at any time be brought against them * * *." After this release was signed by Wilson she dismissed her complaint against Gregovich with prejudice on May 18, 1993. On October 22, 1993, Wilson made an underinsured motorist claim against Allstate since she was not fully compensated for her injuries from Colonial. At the time of the accident, Wilson's insurance coverage included $100,000 for uninsured motorist coverage. Specifically, the policy provided uninsured motorist coverage in the amount of $50,000 each person/$100,000 each accident and medical payments coverage of $5,000. In addition, the policy states the following: "If a person insured sues a person believed responsible for the accident without our written consent, we aren't bound by any resulting judgment." Part V, Uninsured Motorist Insurance Coverage SS, p. 13. * * * Assistance and Cooperation "We may require the person insured to take appropriate action to preserve all rights to recover damages from anyone responsible for the bodily injury." P. 16. Trust Agreement "When we pay any person under this coverage: * * * "(2) All rights of recovery against any responsible party or insurer must be maintained and preserved for our benefit." P. 16. - 4 - Allstate claimed that Wilson did not follow the contract procedures and refused to pay Wilson on her uninsured motorist claim. On May 24, 1994 Wilson filed a complaint against Allstate. Allstate filed a motion for summary judgment which the trial court granted. Wilson's sole assignment of error states: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO APPELLEE. Wilson maintains that the trial court erred when it granted Allstate's motion for summary judgment. Specifically, Wilson claims that Allstate's motion for summary judgment should not have been granted for the following reasons: (a) the trial court erred and abused its discretion in failing to rule on its objections to the documents attached to Allstate's motion for summary judgment and (b) Allstate failed to present any evidence to establish the absence of genuine issues of fact because the release Wilson signed is not a bar to her claim and R.C. 3937.18 as amended October 20, 1994 is not retroactive. Initially, we find Wilson's claim that exhibits "A through H" of Allstate's motion for summary judgment should not have been considered by the trial court because they were not properly identified, certified, nor verified without merit. Allstate attached to its reply to Wilson's brief in opposition to Allstate's motion for summary judgment an affidavit from George Kapcar stating that he was the custodian of the Allstate Insurance file on Wilson and he properly identified, certified and verified exhibits "A - 5 - through H" in Allstate's motion for summary judgment. We find Kapcar's affidavit sufficient to meet the standards set forth in Civ.R. 56(E). Next, we will address whether Allstate met its burden to show that a genuine issue of material fact does not exist and therefore summary judgment should have been granted. Again, Wilson claims that the release she signed is not a bar for her claim and that R.C. 3937.18 should not be applied retroactively. We agree with Wilson that R.C. 3937.18 should not be applied retroactively. In effect, R.C. 3937.18 supersedes the Ohio Supreme Court's holding in Savoie v. Grange Mutual Ins. Co. (1993), 67 Ohio St.3d 500, which pertained to underinsured motor vehicle insurance. We have recently held that cases which have occurred before October 20, 1994, the effective date of R.C. 3937.18, must apply Savoie, supra. Therefore, R.C. 3937.18 is not retroactive. See Finneran v. Bestor (Nov. 11, 1995), Cuyahoga App. No. 68774, unreported. In the present case the journal entry does not state that the court based its decision on R.C. 3937.18. We cannot and will not assume that the court's decision was based on R.C. 3937.18 due to the fact that Allstate put forth several reasons why its motion for summary judgment should have been granted. Finally, we address Wilson's contention that the release she executed is not a bar to her claim against Allstate because it is not a final judgment. The insurance contract is clear that Wilson - 6 - needed Allstate's permission to enter into a final judgment with Gregovich. Wilson executed a release with Gregovich and Colonial without Allstate's permission. Wilson released her rights to any and all future claims she had against Gregovich and Colonial, she agreed to defend, indemnify and hold harmless Gregovich and Colonial, against loss of any further claims, demands, or actions, that may hereafter or at any time be brought against them. Furthermore, Wilson dismissed her complaint with prejudice against Gregovich. In essence, Wilson's actions denied Allstate any rights it had against Gregovich or Colonial and were clearly not in accordance with her insurance policy. See Langford v. Victoria Fire & Casualty Co. (Dec. 1, 1994), Cuyahoga App. No. 65763, unreported. It is axiomatic that a motion for summary judgment shall only be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Summary judgment shall not be granted unless it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion is made. In reviewing a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. Moreover, upon motion for summary judgment pursuant to Civ. R. 56, the burden of establishing that material facts are not in - 7 - dispute, and that no genuine issue of fact exists, is on the party moving for summary judgment. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64, 66. However, in that Civ. R. 56(E) requires that a party set forth specific facts showing that there is a genuine issue for trial, such party must so perform if he is to avoid summary judgment. Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, at paragraph seven of the syllabus. Viewing the underlying facts in a light most favorable to Wilson we conclude a genuine issue of material fact does not exist. Wilson's actions were clearly in violation of her insurance contract with Allstate and therefore, the policy was not enforceable. Accordingly, Wilson's sole assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant its 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. TERRENCE O'DONNELL, P.J. TIMOTHY E. McMONAGLE, 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, .