COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69236 DEVONA SIMONE, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION WESTERN RESERVE MUTUAL CASUALTY : COMPANY, : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : APRIL 18, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 266239 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Ronald A. Margolis MISNY & ASSOCIATES CO., LPA 805 Terminal Tower Cleveland, Ohio 44113 For defendant-appellee: Robert J. Foulds James J. Dyson DYSON, SCHMIDLIN & FOULDS CO., LPA 5843 Mayfield Road Mayfield Heights, Ohio 44124 -2- NAHRA, J.: Appellant, Devona Simone, is appealing the trial court's order granting summary judgment in favor of appellee, Western Reserve Casualty Company, and denying summary judgment in favor of appellant. For the following reasons, we reverse and remand. On December 29, 1992, appellant's father, Joseph V. Simone, died in a car accident caused by the negligence of an underinsured motorist. The limits of the tortfeasor's insurance policy, $15,000, were tendered to the estate of Joseph V. Simone. Appellant and her father did not reside in the same household. On February 25, 1994, Appellant sued appellee, her automobile insurance carrier, to collect on the uninsured motorist coverage of her policy for the death of her father. Appellant's insurance policy stated that uninsured motorist coverage was available only for bodily injury sustained by an "insured". Appellant's father was not an "insured" as defined by the policy, because he did not reside in the same household as appellant. The trial court found that appellant was not entitled to coverage under the policy, and granted summary judgment in favor of appellee. Appellant's brief does not contain an assignment of error, but states the following under "Statement of Issues Presented": WHETHER THE TRIAL COURT ERRED IN HOLDING THAT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IS GRANTED. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IS OVERRULED. . . . We will accept the above statement as appellant's assignment of error. -3- Appellant contends the policy's limitation on uninsured motorist coverage, excluding recovery for the death of a non- member-of-household, violates R.C. 3937.18(A)(1) and is void. A complete discussion of the law concerning this precise issue is merited, because the law has undergone considerable change and there is a conflict among the appellate courts of this state. Sexton v. State Farm Mut. Auto. Ins. Co. (1982), 69 Ohio St.2d 431 held that excluding recovery for the death of a non-member of household violated R.C. 3937.18. R.C. 3937.18 only required that an insured be entitled to recover from an uninsured motorist, and did not specifically state that the insured had to sustain bodily injury. Id. Subsequent to Sexton, the Ohio Supreme Court issued numerous opinions upholding restrictions or limitations on uninsured/underinsured motorist coverage. Hedrick v. Motorists Mut. Ins. Co. (1986), 22 Ohio St.3d 42 (upholding exclusion for vehicle not specifically insured under the policy); Dairyland Ins. v. Finch (1987), 32 Ohio St.3d 360 (upholding exclusion for intrafamilial claims); Karabin v. State Automobile Mutl. Ins. Co. (1984), 10 Ohio St.3d 163 (upholding anti-stacking limitations); Dues v. Hodge (1988), 36 Ohio St.3d 46 (upholding restrictions regarding derivative claims). This court observed that the trend of the Supreme Court cases was to allow for freedom of contract in uninsured motorist coverage and to uphold various restrictions on coverage. Tavzel v. Aetna Life and Casualty Co. (June 16, 1989), Cuyahoga App. No. 53931, unreported. Based on this trend, and on -4- the Hedrick case in particular, Tavzel held that Sexton was no longer good law, and a policy limitation excluding recovery for the death of a non-member of household was a valid exclusion under R.C. 3937.18. Id.. Tavzel was followed in Visocky v. Farmers Ins. of 1 Columbus (1994), 98 Ohio App.3d 118. A split in the appellate jurisdictions occurred. Some jurisdictions adopted the holding of Tavzel and Visocky, that the policy exclusion was valid. Brown v. Allstate Ins. Co. (1991), 81 Ohio App.3d 87 (Summit County), Everage v. Illinois National Ins., (Mar. 2, 1993), Clark App. No. CA-2968, unreported, Schroeder v. Economy Preferred Ins. (Nov. 6, 1992), Allen App. No. CA92 08 0079, unreported, Smith v. Erie Ins. Group (1990), 61 Ohio App.3d 794. Other jurisdictions held the policy exclusion was invalid under R.C. 3937.18, and that Sexton applied. Cincinnati Ins. Co. v. Jarvis (1994), 98 Ohio App.3d 155 (Huron County); Fay v. Motorists Ins. Co. (1992), 80 Ohio App.3d 63 (Geauga County). Barr v. Ins. Co. of N. Am. (1991), 72 Ohio App.3d 595 (Franklin County). From 1992 to 1994, the Supreme Court began moving away from the principle of freedom of contract and reversed many of its own decisions with regard to uninsured/underinsured motorist 1 Another case from this court appears to deal with the issue at hand, but is actually distinguishable on its facts. In Dudash v. State Farm Mut. Auto. Ins. Co. (1994), 96 Ohio App.3d 348, the policy language did not restrict recovery to bodily injury sustained by the insured. The exclusion for recovery for death of a non-household member did not exist in the Dudash policy. -5- exclusions. See Martin v. Midwestern Group Ins. (1994), 68 Ohio St.3d 478, which overruled Hedrick, supra; State Farm Mut. Automobile Ins. v. Alexander (1992), 62 Ohio St.3d 397, overruled Dairyland, supra; Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500, limited the holding of Dues and Karabin, supra. Recently, this court decided that because Hedrick had been overruled, the law in Tavzel and Visocky which allowed the exclusion no longer applied in this jurisdiction. Hydel v. Cincinnati Ins. Co. (Jan. 11, 1996), Cuyahoga App. No. 68552, unreported. We believe that our opinion in Hydel was correct in this regard, and accurately reflected the current Supreme Court trend of finding policy exclusions in violation of R.C. 3937.18. Most recently, Am. Sub. S.B. 20 amended R.C. 3937.18(A)(1) to specifically overrule Sexton and permit a policy exclusion limiting coverage only to bodily injury or death suffered by an insured. The Bill states: A. No automobile liability or motor vehicle liability policy of insurance *** shall be delivered or issued *** unless both of the following COVERAGES ARE PROVIDED TO PERSONS INSURED UNDER THE POLICY FOR LOSS DUE TO BODILY INJURY OR DEATH SUFFERED BY SUCH PERSONS: (1) Uninsured motorist coverage, which *** shall provide *** for the protection of persons thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, disease, including death, SUFFERED BY ANY PERSON INSURED UNDER THE POLICY. Appellee asserts that Senate Bill 20, effective October 20, 1994, should apply to this action, even though the father's death -6- occurred in 1992 and the complaint was filed in this action in February, 1994. Appellee contends that R.C. 3937.18 as amended by Senate Bill 20, is remedial and can be applied retroactively to causes of action accruing before the effective date, without violating Section 28, Article II of the Ohio Constitution. See Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 106. However, the issue of whether a statute may constitutionally be applied retroactively does not arise unless it is determined that the General Assembly has clearly indicated that the statute apply retroactively, as required by R.C. 1.48. Van Fossen, supra, Nease v. Medical College Hosp. (1992), 64 Ohio St.3d 396, 398. There is no indication in Am.Sub.S.B. 20 that the General Assembly intended the amendments to R.C. 3937.18 to apply retroactively. See Zemptor v. Ohio State Grange Mutual Insurance Co. (Sept. 6, 1995), Scioto App. No. 95CA2326, unreported, Fisher v. Western Reserve Mut. Cas. Co. (Sept. 5, 1995), Stark App. No. 1995CA00119, unreported. Am.Sub.S.B. 20 can not apply retroactively to this case. We note that even if the threshold requirement of R.C. 1.48 was met, the amendments to R.C. 3937.18 were not "remedial" for purposes of determining whether retroactive application was unconstitutional. Several cases do state that R.C. 3937.18 is "remedial" because it provides a remedy to those injured by uninsured motorists. Stanton v. Nationwide Mut. Ins. Co. (1993), 68 Ohio St.3d 111, 113, Martin v. Midwestern Group Ins. Co. (1994), 70 Ohio St.3d 478. These cases do not discuss whether R.C. 3937.18 may be applied retroactively. "Remedial" for purposes of -7- retroactive application means the legislation affects only the remedy provided and does not take away or impair vested rights acquired under existing laws. Van Fossen, supra. S.B. 20 clearly affects the insured's existing right to recover for the death of her father. S.B. 20 is not merely remedial or procedural. Nor do we accept the argument that Am.Sub.S.B. 20 can be used to interpret the legislative intent of R.C. 3937.18(A) as it existed before the amendments. The unamended R.C. 3937.18(A) was ambiguous concerning the issue of coverage for the death of a non- member of household, as evidenced by the split in appellate jurisdictions over this issue. Using S.B. 20 to interpret the previous statute would be, in effect, a retroactive application of S.B. 20. Bartlett v. Nationwide Mutl. Ins. Co. (1973), 33 Ohio St.2d 50 does not stand for the proposition that an amendment may be used to interpret the ambiguous language of a statute as written before the amendment. Bartlett only provides that an amendment does not necessarily mean that the statute originally stated the opposite of the amendment, as such an amendment can be a clarification of legislative intent. S.B. 20 has no effect in this case. We hold that our decision in Hydel, supra, applies. The limitation on uninsured/underinsured motorist coverage excluding recovery for the death of a parent who is not a member of the insured's household is an invalid exclusion under R.C. 3937.18, prior to its amendment by S.B. 20 effective October 20, 1994. The -8- trial court erred in granting summary judgment in favor of appellee. Accordingly, this assignment of error is sustained. The decision of the trial court is reversed and remanded for further proceedings in accordance with this opinion. -9- This cause is reversed and remanded for proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee her 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. SWEENEY, JAMES D., P.J., and PORTER, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .