COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69660 : DEVONA SIMONE : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION WESTERN RESERVE MUTUAL CASUALTY CO. : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MAY 16, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-266239 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: RONALD A. MARGOLIS, ESQ. ROBERT J. FOULDS, ESQ. MISNY & ASSOCIATES DYSON, SCHMIDLIN & FOULDS 805 Terminal Tower 5483 Mayfield Road Cleveland, Ohio 44113 Mayfield Heights, Ohio 44124 - 2 - KARPINSKI, J.: Defendant-appellant, Western Reserve Mutual, appeals from the September 15, 1995, judgment of the common pleas court which denied defendant's motion for relief from judgment. After defendant filed its notice of appeal and brief, this court issued a decision, Simone v. Western Reserve Mutual Casualty Company (Apr. 18, 1996), Cuyahoga App. No. 69236, unreported, which resolved the substantive disputes between the parties. Therefore, because of the law of the case, the decision of the trial court to deny defendant's 60(B) motion is affirmed. The relevant facts follow. On December 29, 1992, plaintiff's father, Joseph Simone, was killed in a car accident involving an uninsured motorist. Plaintiff did not live with her father at the time of the accident. Plaintiff, thereafter, brought suit against defendant, her automobile insurance carrier, to collect uninsured motorist coverage for the death of her father. On May 9, 1995, the lower court granted plaintiff's motion for summary judgment and found that plaintiff could recover under her own uninsured motorist coverage for the death of her father. Defendant filed a notice of appeal on May 31, 1995. This court dismissed the appeal for lack of a final appealable order because the May 9, 1995, order did not specify damages. Simone v. Western Reserve (Jan. 9, 1996), Cuyahoga App. No. 69084, unreported. - 3 - However, after defendant filed its notice of appeal in Case No. 69804, the common pleas court, by order dated June 6, 1995, reversed itself and granted summary judgment for defendant. The court changed its position because of a decision which had been issued by this court at that time. Visocky v. Farmer's Ins. of Columbus (1994), 98 Ohio App.3d 118. On June 26, 1996, defendant filed in common pleas court, a motion for relief from judgment from the May 9, 1995, order. This motion attempted to clarify the discrepancy between the May 9, 1995, judgment for plaintiff and the June 6, 1995, order which entered judgment for defendant. Plaintiff appealed the June 6, 1995, order granting defendant's motion for summary judgment. This appeal was given Case No. 69236. While this appeal was pending, the trial court on September 15, 1995, denied defendant's motion for relief from judgment. Defendant separately appealed the denial of the 60(B) motion. This is the appeal at bar, Case No. 69660. Notwithstanding the procedural irregularities, this court issued a decision in Case No. 69236 which resolved the merits of the dispute between the parties. In Simone v. Western Reserve Mutual Casualty Company (Apr. 18, 1996), Cuyahoga App. No. 69236, unreported, this court held that plaintiff was entitled to recover uninsured motorist benefits under her own insurance policy for the death of her father. The court explained that the policy provision which excluded recovery for the death of a non- member-of-household was invalid under R.C. 3937.18(A)(1). This - 4 - opinion thus reversed the June 6, 1995, order which granted summary judgment for defendant. The present appeal, Case No. 69660, separately followed Case No. 69236. We are now presented with defendant's one assignment of error, which states as follows: THE LOWER COURT ERRED IN DENYING DEFENDANT'S CIV.R. 60(B) MOTION FOR RELIEF FROM JUDGMENT AND IN FAILING TO VACATE SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF PURSUANT TO THE PROVISIONS OF OHIO REV. CODE 3937.18, AS AMENDED EFFECTIVE OCTOBER 20, 1994, AND THE DECISION IN VISOCKY V. FARMER'S INS. OF COLUMBUS, 98 OHIO APP.3D 121 (1994). In its brief, defendant argues that it is entitled to judgment as a matter of law because of Visocky and the amendments to R.C. 1 3937.18. These identical arguments were made to and rejected by this court in Simone v. Western Reserve Mutual Casualty Company (Apr. 18, 1996), Cuyahoga App. No. 69236, unreported. Generally, the doctrine of the law of the case provides that a decision of a reviewing court remains the law for that case as to all relevant legal questions in subsequent proceedings, both at trial and appellate levels, unless the rule of practice achieves an unjust result. North Olmsted v. Eliza Jennings, Inc. (1993), 91 Ohio App.3d 173; Nolan v. Nolan (1984), 11 Ohio St.3d 1. First, explicitly relying upon Hydel v. Cincinnati Ins. Co. (Jan. 11, 1996), Cuyahoga App. No. 68552, unreported, this court (in Case No. 69236) previously resolved all the issues in this case. In Hydel we stated as follows: 1 Plaintiff has chosen not to file a brief in this appeal. - 5 - The minority view, on the other hand, has been to deny recovery because of policy exclusions for non- resident family members. The Visocky and Tavzel courts found these exclusions valid based on the Ohio Supreme Court's opinion in Hedrick v. Motorist Mut. Ins. Co. (1986), 22 Ohio St.3d 42. However, in Martin v. Midwestern Group Ins. (1994), 70 Ohio St.3d 478, the Ohio Supreme Court recently overruled Hedrick and eroded whatever support Hedrick provided for the denial of recovery in this context. Because Hedrick was overruled, the law in Tavzel and Visocky no longer applies in this district, and Dudash remains good authority, which this court now follows in the case at bar. At 6. In the prior Simone decision (Case No. 69236), this court agreed that Visocky was no longer applicable in this district and confirmed that a policy holder could recover uninsured motorist benefits for the death of a nonresident parent. Additionally, this court correctly found that the amendments to R.C. 3937.18 (enacted Oct. 20, 1994) do not apply retroactively to the case at bar (which arose from the death of plaintiff's father on December 29, 1992). This court stated, "[t]here is no indication in Am.Sub.S.B. 20 that the General Assembly intended the amendments to R.C. 3937.18 to apply retroactively." Simone v. Western Reserve Mutual Casualty (Apr. 18, 1996), Cuyahoga App. No. 69236, unreported. Because the substantive issues of this case were previously resolved by this court and because that prior decision produces no unjust result, the decision of the trial court denying defendant's 60(B) motion is therefore affirmed, pursuant to the doctrine of the law of the case. - 6 - It is ordered that appellee recover of appellant her 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 common pleas 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 D. SWEENEY, P.J., and DAVID T. MATIA, J., CONCUR. DIANE KARPINSKI 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 it will become the judgment and .