COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71209 KAREN STEFANOV, ADMINISTRATRIX, : ETC. : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : GRANGE MUTUAL CASUALTY COMPANY : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 21, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-293499. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Donald Cybulski, Esq. Tower City Center 610 Skylight Officer Tower 1660 W. Second Street Cleveland, OH 44113-1454 Alice Rickel, Esq. Alice Rickel & Associates 3690 Orange Place Suite 440 Beachwood, OH 44122 For Defendant-Appellant: Michael F. Farrell, Esq. One Cleveland Center Suite 1920 1375 E. 9th Street Cleveland, OH 44114-1724 -2- DAVID T. MATIA, P.J.: Grange Mutual Casualty Company, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Case No. CV-293499, in which the trial court granted summary judgment in favor of Karen Stefanov, Administratrix of the Estate of Robert Stefanov, plaintiff-appellee. Defendant-appellant assigns one error for this court's review. Defendant-appellant's appeal is well taken. I. THE FACTS The facts in this case are not in dispute. Grange Mutual Casualty Company, defendant-appellant, and Robert Stefanov, a Garfield Heights police officer, were parties to an automobile liability insurance policy which provided, among other things, uninsured motorist coverage for the period beginning July 14, 1994 and ending January 14, 1995. The policy provided uninsured motorist coverage with limits of $250,000.00 per person and $500,000.00 per accident. As of July 14, 1994, Ohio law provided that an individual who is covered by an uninsured/underinsured policy and who is presumed damaged pursuant to R.C. 2125.01, Ohio's Wrongful Death Statute, has a separate claim subject to a separate per person policy limit up to any per accident limit. Savoie v. Grange Mutual Ins. Co. (1993), 67 Ohio St.3d 500, paragraph one of the syllabus. Therefore, an insurance policy that contained $250,000.00 per person, $500,000.00 per accident uninsured motorist provision, -3- provided $500,000.00 total coverage to the claimants in a wrongful death action. As a result, the legislature amended the uninsured motorist coverage statute, R.C. 3937.18(H), specifically providing: *** Any automobile liability or motor vehicle liability policy of insurance that includes coverage offered under division (A) of this section and that provides a limit of coverage for payment for damages for bodily injury, including death, sustained by any one person in any one automobile accident, may, notwithstanding Chapter 2125. of the Revised Code, include terms and conditions to the effect that all claims resulting from or arising out of any one person's bodily injury, including death, shall collectively be subject to the limit of the policy applicable to bodily injury, including death, sustained by one person, and, for the purpose of such policy limit shall constitute a single claim. Any such policy limit shall be enforceable regardless of the number of insureds, claims made, vehicles or premiums shown in the declarations or policy, or vehicles involved in the accident. This law became effective on October 20, 1994, in the middle of the Stefanov policy period. (The legislative amendments will hereinafter be referred to as Am.Sub.S.B. 20 throughout this opinion.) R.C. 3937.18(H) was specifically amended in order to supersede the holding of the Ohio Supreme Court in Savoie. Am.Sub.S.B. 20, Section 10. On December 8, 1994, Robert Stefanov, while in the line of duty, was killed during a high speed chase with a criminal suspect. The chase began in Garfield Heights when Stefanov and his partner observed a suspect engaged in what they believed was criminal activity. The suspect was pursued into the city of -4- Cleveland. At the intersection of Harvard Avenue and Lee Road, a vehicle operated by Willie Love, an uninsured motorist, failed to yield the right of way to the police vehicle. The vehicles collided propelling the police vehicle into a nearby utility pole. As a result, both Stefanov and his partner Michael Brown were killed. Stefanov was survived by his wife Karen and their two minor children: Elizabeth 7 years, and Michael, 6 years. On August 8, 1995, Karen Stefanov, Administratrix of the Estate of Robert Stefanov, plaintiff-appellee, filed a complaint on behalf of herself and her two children for declaratory judgment and other relief against Grange Mutual Casualty Company, defendant-appellant. The complaint requested the trial court to declare that the automobile liability insurance policy issued to the Stefanovs from Grange Mutual provided a total of $500,000.00 in uninsured motorist benefits. Grange Mutual answered and counterclaimed for a declaratory judgment that the automobile liability insurance policy in question provided only $250,000.00 in total uninsured motorist benefits pursuant to R.C. 3937.18(H). Each party filed a motion for summary judgment. Plaintiff- appellee's motion for summary judgment was based upon two separate arguments. Plaintiff-appellee's first argument was that the law interpreting the insurance contract should be the law which was in existence at the beginning of the policy period and any subsequent legislative enactments occurring in the middle of the policy period would have no effect until such time as the -5- policy was renewed. Additionally, plaintiff-appellee argued that if the legislative enactments did take effect in the middle of the policy period, the legislative action was prohibited by Article II, Section 28 of the Ohio Constitution which prohibits the general assembly from passing laws which impair the obligation of contracts. Defendant-appellant maintained that all claims made pursuant to the uninsured motorist provision of the automobile liability insurance policy were collectively subject to the per person limit of $250,000.00 regardless of the number of insureds or the number of claims. It is defendant-appellant's position that since the loss occurred and the claims arose in December 1994, after the effective date of Am.Sub.S.B. 20, then those legislative amendments apply. At the trial court's request, the parties also submitted supplemental briefs on the issue of whether defendant-appellant was obligated to provide notice to the Stefanovs of the legislative changes contained in Am.Sub.S.B. 20 which limited the amount of uninsured motorist benefits to $250,000.00. The trial court granted the motion for summary judgment of plaintiff-appellee and denied the motion for summary judgment of defendant-appellant, declaring that the wrongful death claims of plaintiff-appellee were not subject to the per person limit in the uninsured motorist policy but each person has a separate claim subject to the separate per person policy limit up to the per accident limit of $500,000.00. -6- Defendant-appellant filed a timely notice of appeal from the judgment of the trial court on August 9, 1996. On October 1, 1996, this court remanded the case to the trial court for a determination as to the rights of the parties and whether there was no just reason for delay. On October 15, 1996, the trial court issued the following amended journal entry: Both parties have moved for summary judgment on the issue of the amount of uninsured motorist coverage available under Defendant's motor vehicle liability policy with Plaintiff for the accident described in the Complaint. It is the finding of the Court that Plaintiff's Motion is well taken and $500,000 in coverage is available. Defendant's Motion is denied. It is the further finding of this Court that there is no just reason for delay. Costs to Defendant. On October 21, 1996, defendant-appellant filed an amended notice of appeal from the October 15, 1996 judgment of the trial court. The instant appeal now follows. II. ASSIGNMENT OF ERROR Grange Mutual Casualty Company's, defendant-appellant's, sole assignment of error states: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING PLAINTIFF-APPELLEE'S MOTION FOR SUMMARY JUDGMENT. A. THE ISSUE RAISED: THE APPLICATION OF AM.SUB.S.B. 20 TO THE UNINSURED MOTORIST PROVISION CONTAINED IN A PREVIOUSLY ISSUED AUTOMOBILE LIABILITY INSURANCE POLICY. Defendant-appellant argues that the trial court improperly granted the motion for summary judgment of plaintiff-appellee. -7- It is defendant-appellant's position that Am.Sub.S.B. 20, which took effect on October 20, 1994, is applicable to the insurance policy in question since any rights plaintiff-appellee possesses under the policy did not vest until the actual date of the automobile accident, December 8, 1994, after the legislative amendments became law. Defendant-appellant maintains further that an insurance company does not have a duty to notify its insured of a statutory enactment which takes effect during the policy period that subsequently affects an existing insurance policy. Plaintiff-appellee maintains that the law which is in existence at the beginning of an insurance contract is controlling throughout the duration of the policy period since Article II, Section 28 of the Ohio Constitution prohibits the state legislature from retroactively modifying the terms of an existing contract. Plaintiff-appellee argues further that the amount of uninsured motorist coverage provided by a motor vehicle liability insurance policy is clearly a matter of contract law, not tort law as defendant-appellant contends. Therefore, whether a particular tort remedy was "vested" is not an issue in this case. Lastly, plaintiff-appellee argues that an insurance company has a fiduciary duty to its insureds to disclose a legislative enactment which potentially reduces the stated uninsured motorist coverage to $250,000.00. In the absence of such notification by the insurance company, it is plaintiff- -8- appellee's position that the insurance policy in question should be renewed under the exact terms of the prior policy. -9- B. STANDARD OF REVIEW FOR SUMMARY JUDGMENT The standard for granting a motion for summary judgment is set forth under Civ.R. 56(C). In applying this rule, the Ohio Supreme Court has consistently held that, before such a motion can be granted, the moving party must show that: (1) there is no genuine issue of fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the non-moving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383; Welco Industries, Inc. v. Applied Cas. (1993), 67 Ohio St.3d 344; Osborne v. Lyles (1992), 63 Ohio St.3d 326. A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108 (syllabus). The non-movant must also present specific facts and may not rely merely upon the pleadings or upon unsupported allegations. Shaw v. Pollack & Co. (1992), 82 Ohio App.3d 656. When a party moves for summary judgment supported by evidentiary material of the type and character set forth in Civ.R. 56(E), the opposing party has a duty to submit affidavits or other material permitted by Civ.R. 56(C) to show that there is a genuine issue for trial. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. -10- In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Ohio Supreme Court recently discussed the proper standard to be applied when reviewing summary judgment motions. The court found as follows: Again, we note that there is no requirement in Civ.R. 56 that any party submit affidavits to support a motion for summary judgment. See, e.g., Civ.R. 56(A) and (B). There is a requirement, however, that a moving party, in support of a summary judgment motion, specifically point to something in the record that comports with the evidentiary materials set forth in Civ.R. 56(C). Id. at 298. This court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Howard v. Willis (1991), 77 Ohio App.3d 133. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 1920, unreported. C. THE TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF-APPELLEE. In the case sub judice, a review of the record demonstrates that the trial court improperly entered summary judgment in favor of Karen Stefanov, Administratrix of the Estate of Robert Stefanov, plaintiff-appellee, since the insureds' rights under the uninsured motorist provisions of the insurance policy did not accrue until after the enactment of Am.Sub.S.B. 20 on October 20, 1994. -11- In Kraly v. Vannewkirk (1994), 69 Ohio St.3d 627, 632, the supreme court restated the principle "that the legal basis for recovery under the uninsured motorist coverage of an insurance policy is contract and not tort." The court held further in Kraly that a cause of action for uninsured motorist coverage accrues when the events which are conditions precedent to coverage have been met. Id. at 633-34. Merely entering into a contract for uninsured or underinsured motorist coverage, without more, does not create vested rights under that contract. Cartwright v. Maryland Ins. Group. (1995), 101 Ohio App.3d 439, 443. The underlying insurance policy at issue provides in pertinent part: INSURING AGREEMENT A. We will pay damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury caused by an accident... LIMIT OF LIABILITY A. The limit of liability shown in the Declarations for "each person" for Uninsured Motorists Coverage is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of bodily injury sustained by any one person in any one auto accident. Subject to this limit for "each person", the limit of liability shown in the Declarations for "each accident" for Uninsured Motorists Coverage is our maximum limit of liability for all damages for bodily injury sustained by two or more persons resulting from an accident. This is the most we will pay regardless of the number of: -12- 1. Insureds; 2. Claims made; 3. Vehicles or premiums shown in the Declarations; or 4. Vehicles involved in the accident. The phrase "legally entitled to recover from the owner or operator of an uninsured motor vehicle" means that the insured must be able to prove the elements of her claim necessary to recover damages. Kurant v. Farmers Ins. v. Columbus Inc. (1991), 62 Ohio St.3d 242, 245; Sumwalt v. Allstate Ins. Co. (1984), 12 Ohio St.3d 294 at syllabus; see, also, Ross v. Farmers Ins. Group of Companies (January 10, 1997), Montgomery App. No. 95-1502, unreported, dealing with underinsurance motorist coverage. In the present case, a review of the factual circumstances demonstrates that plaintiff-appellee was unable to prove the elements of the wrongful death claim pursuant to R.C. 2125.01 and, therefore, not legally entitled to recover from the owner or operator of an uninsured motor vehicle, until after the enactment of Am.Sub.S.B. 20 on October 20, 1994. In fact, the earliest possible date upon which plaintiff-appellee could be said to have a vested right under the insurance contract was December 8, 1994, the date that the underlying accident occurred. Miko v. Lincoln National Corp. (March 6, 1997), Cuyahoga App. No. 70826, unreported. -13- This result is consistent with Cole v. Holland (1996), 76 Ohio St.3d 220, 225, in which the Supreme Court, in dealing with the effective date of Am.Sub.S.B. 20, stated: Since Am. Sub. S.B. No. 20 contains no retrospective language, amended R.C. 3937.18(A)(2) operates only prospectively. Consequently, pending causes of action accruing prior to October 20, 1994, the effective date of Am. Sub. S.B. No. 20, are controlled by the third syllabus paragraph of Savoie, and by the underinsurance statute applicable at the time of the decision in Savoie, former R.C. 3937.18. See Am Sub. H. B. No. 1 142 Ohio Laws, Part I, 1661. Plaintiff-appellee argues that such an interpretation and application of Am.Sub.S.B. 20 to the facts of this case amounts to an unconstitutional interference with the underlying insurance contract entered into on July 14, 1994, prior to the enactment of the amended legislation. Therefore, it is plaintiff-appellee's position that Savoie, which was in effect as of July 14, 1994 should apply. In Beagle v. Walden (1997), 78 Ohio St.3d 59, 64, the Supreme Court, in upholding the constitutionality of R.C. 3937.18(A)(2), discussed the implications of the amended legislation and its prior holding in Savoie: Petitioner claims that R.C. 3937.18(A)(2) destroyed a remedy created by Savoie. Savoie, however, did not create a remedy. The Savoie court interpreted what coverage R.C. 3937.18(A)(2) then mandated. The Savoie controversy involved the amount which the insureds were entitled to receive in accordance with insurance contracts which were subject to the requirements of R.C. 3937.18., Savoie was not based on constitutional or common-law principles of full recovery in tort. -14- R.C. 3937.18 results from legislative policymaking. Coverage in accordance with R.C. 3937.18 is not a common-law right. Any contractual right to coverage prescribed under R.C. 3937.18 does not, therefore, come within the protection of Section 16, Article I of the Ohio Constitution. Fabrey v. McDonald Police Dept., 70 Ohio St.3d at 355, 639 N.E.2d at 35. Mominec v. Scherbarth (1986), 28 Ohio St.3d 270, 291-292, 28 OBR 346, 364-365, 503 N.E.2d 717, 733-734 (Douglas, J., concurring). To the extent that the legislature may exercise its policymaking authority to alter the contractual relationship between insurer and insured to provide greater protection to the insured, it may also limit or remove those protections once given. See Byers v. Meridian Printing Co. (1911), 84 Ohio St. 408, 422, 95 N.E. 917, 919; see, also, Mominee v. Scherbarth, 28 Ohio St.3d at 292, 28 OBR at 365, 503 N.E.2d at 734 (Douglas, J., concurring). Applying the foregoing to the present case, it is apparent that Am.Sub.S.B. 20 did not unconstitutionally interfere with the insurance contract in question. This is particularly true in light of the fact that plaintiff-appellee's cause of action did not accrue until after the legislation became law and no rights under the contract had vested. Plaintiff-appellee argues further that the Supreme Court's 1985 decision in Benson v. Rosler (1985), 19 Ohio St.3d 41, is controlling in the present case. In Benson, the court determined that an amendment to R.C. 3937.181, the anti-stacking provision in Ohio's uninsured motorist statute, was incorporated into an existing policy of insurance when the policy was renewed and not on the effective date of the statute. The holding in Benson, however, is distinguishable from the facts of the present case. -15- In Benson, the court was considering an anti-stacking provision contained in the original policy of insurance which was invalid at the time the policy was issued due to the Supreme Court's prior holding in Grange Mut. Cas. Co. v. Volkman (1978), 54 Ohio St.2d 58. The anti-stacking provision in question was then revitalized through the enactment of R.C. 3937.181 on June 25, 1980. In the present case, the legislative enactment of R.C. 3937.18 on October 20, 1994 did not invalidate or revitalize any part of the underlying insurance policy but rather provided a legislative interpretation of a pre-existing contractual clause. In addition, the Supreme Court's subsequent decision in Cole, supra, which was issued in 1996, provides this court with a clear understanding of the Supreme Court's current view regarding the application of Am.Sub. S.B. 20 as does the court's holding in Beagle, supra. Lastly, plaintiff-appellee maintains that Grange Mutual, defendant-appellant, breached a fiduciary duty to its insured by failing to disclose a change in the law that effectively limited plaintiff-appellee's uninsured motorist coverage to $250,000.00. While it is true that Ohio courts have found the relationship of an insurance company to its insureds to be analogous to that of a fiduciary, see Motorists Mut. Ins. Co. v. Said (1992), 63 Ohio St.3d 690, 699, this court is unable to find case law in support of plaintiff-appellee's position that the analogous duty requires the insurance company to advise the insured regarding the status of the law on uninsured motorist coverage. In fact, the only -16- case this court has been able to find on point directly rejects plaintiff-appellee's contention. See, Walter v. Allstate Company (April 10, 1997), Richland App. No. 96-CA-84, unreported. Without any such precedent, this court must refrain from placing such an additional fiduciary requirement on an insurance company in the State of Ohio. Particularly when the enactment of Am.Sub.S.B. 20 did not alter the terms of the existing contract as much as provide a different interpretation for the pre- existing terms. Accordingly, based upon the foregoing analysis, this court finds that the trial court improperly entered summary judgment in favor of plaintiff-appellee since the insureds' rights were subject to Am.Sub.S.B. 20,< which went into effect prior to the accrual of plaintiff-appellee's rights under the insurance contract. Defendant-appellant's sole assignment of error is well taken. Judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion. -17- This cause is reversed and remanded for further proceedings consistent with this opinion herein. It is, therefore, considered that said appellant recover of said appellee its 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. KARPINSKI, J. and PRYATEL, J., CONCUR. (Judge August Pryatel, Retired Judge of the Eighth Appellate District, sitting by assignment.) DAVID T. MATIA PRESIDING JUDGE 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 .