COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71103 JAMES MURPHY : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION CLARKLIFT OF CLEVELAND : : Defendant-Appellee : : LTV STEEL COMPANY : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MAY 22, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-288910 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: MARK E. BARBOUR Jeffries, Kube, Forrest & Montelione 1650 Midland Building 101 Prospect Avenue Cleveland, Ohio 44115-1027 For Defendant-Appellee: THOMAS D. ROBENALT Skylight Office Tower 1660 West 2nd Street #270 Cleveland, Ohio 44113-1498 For Defendant-Appellant: R. PATRICK BAUGHMAN TERRENCE J. JONES Baughman & Associates Co., L.P.A. 55 Public Square, Suite 2215 Cleveland, Ohio 44113-1996 - 3 - O'DONNELL, J.: LTV Steel Company appeals from a judgment of the Cuyahoga County Common Pleas Court denying its motion to intervene in a suit filed by its employee, James Murphy, against Clarklift of Cleveland for injuries he sustained on January 28, 1994, in connection with an allegedly defective door on a Bobcat loader which Clarklift had leased to LTV. The record reveals that following his accident, Murphy filed for and received workers' compensation benefits from LTV, a self- insured employer, and then on May 4, 1995, sued Clarklift alleging it negligently designed, manufactured, or maintained the loader, proximately causing his injuries. On May 31, 1996, LTV moved to intervene in that suit asserting its subrogated statutory right to recover from Clarklift the workers' compensation benefits it had paid to Murphy, which exceeded $31,000. Murphy opposed the motion, urging that the right of subrogation did not exist as of the date of the accident. The trial court denied the motion and LTV now appeals that decision to our court assigning one error for our review, urging the trial court abused its discretion in denying its intervention in the pending suit. LTV acknowledges that the enactment of Am.Sub.H.B. No.107 included the amendment of R.C. 4123.93 and correctly states that - 4 - this legislation provided subrogation rights against a third party tortfeasor to a self-insuring employer for the amount workers' compensation benefits it paid to or on behalf of that employee. It urges us to find that this legislation became effective on October 20, 1993, and to hold that these subrogated rights therefore became effective on that date. Murphy, however, contends that the trial court did not abuse its discretion in denying LTV the right to intervene in this case because the Supreme Court of Ohio delayed the effective date of this amendment to R.C. 4123.93 until July 8, 1994, five months after the date of his injury and, therefore, he urges the trial court properly denied the motion to intervene. In State ex rel. Ohio AFL-CIO v. Voinovich (1994), 69 Ohio St.3d 225, the court stated at 236: We are mindful that in the case before us today the General Assembly did provide for a ninety-day delay before the nonappropriation provisions of Am.Sub. H.B. No. 107 would take effect. Our decision in Riffe, however, appears to have foreclosed any meaningful opportunity for the citizens of this state to circulate a petition for a referendum on Am.Sub.H.B. No. 107. We therefore stay the nonappropriation provisions of Am.Sub.H.B. 107 for a period of ninety days from the date of this decision.*** It therefore is our conclusion that since the amendment to R.C. 4123.93 is a nonappropriation provision of Am.Sub.H.B. 107, which the Supreme Court stayed for a period of ninety days from April 8, 1994, the effective date of amended R.C. 4123.93 is July 7, 1994. Accordingly, the right of subrogation afforded LTV in - 5 - that legislation did not exist on January 28, 1994, the date Murphy sustained injuries giving rise to his suit against Clarklift. To permit LTV to intervene in this suit would require retroactive application of this amended statute to the date of the injury. Our court has previously determined that R.C. 4123.93 may not be applied retroactively. See Bates v. Sherwin Williams Co. (1995), 105 Ohio App.3d 529. Thus, since LTV did not have the right of subrogation on the date Murphy sustained injuries, and since retroactive application of R.C. 4123.93 is precluded, LTV has failed to demonstrate its interest in the pending litigation existed as of the date of occurrence, and therefore the trial court correctly declined to grant its motion to intervene. Judgment affirmed. - 6 - It is ordered that appellee(s) recover of appellant(s) 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. NAHRA, P.J., and SPELLACY, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .