COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71724 MARTIN HILLYER, ETC., ET AL. : : : JOURNAL ENTRY PLAINTIFFS-APPELLEES : : AND v. : : OPINION STATE FARM MUTUAL AUTO : INSURANCE CO. : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 18, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-290140. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellees: Jeffrey Friedman, Esq. 600 Standard Building Cleveland, OH 44113 For Defendant-Appellant: Henry A. Hentemann, Esq. Meyers, Hentemann, Schneider & Rea 2100 Superior Building 815 Superior Avenue, N.E. Cleveland, OH 44114 2 DAVID T. MATIA, P.J.: State Farm Mutual Automobile Insurance Company, defendant- appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, General Division, Case No. CV-290140, in which the trial court entered judgment in favor of Martin Hillyer, Administrator of the Estate of Christina Hillyer, et al., plaintiffs-appellees, on plaintiffs-appellees' claim for uninsured/underinsured motorist coverage. In so doing, the trial court concluded that R.C. 3937.18(A)(2), (G) and (H) as amended by Am.Sub.S.B. 20 were unconstitutional and therefore invalid. Defendant-appellant assigns three errors for this court's review. Defendant-appellant's appeal is well taken I. THE FACTS On November 6, 1994, Christina Hillyer, a sixteen-year-old high school student, was killed when an automobile operated by Karen Snyder spun out of control and collided with a utility pole. Ms. Hillyer, who was a passenger in the vehicle, was thrown from the car and fatally injured as a result of the collision. Karen Snyder was insured through her father John Snyder, the owner of the vehicle in question, by Great American Insurance Company. The automobile liability insurance policy provided coverage in the amount of $100,000 per person and $300,000 per accident. Great American Insurance Company paid plaintiffs- appellees the $100,000 per person limit for the death of Christina Hillyer. 3 At the time of the accident, Martin Hillyer had automobile liability insurance with State Farm Mutual Automobile Insurance Company, defendant-appellant, (hereinafter State Farm ) which included uninsured/underinsured motorist coverage in the amount of $100,000 per person and $300,000 per accident. The policy in question was entered into on June 23, 1994 and covered the period up to and including December 23, 1994. As of June 23, 1994, Ohio law provided that an individual who was covered by an uninsured/underinsured policy and who was presumed damaged pursuant to R.C. 2125.01, Ohio's Wrongful Death Statute, had 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 $100,000 per person, $300,000 per accident uninsured motorist coverage, provided $300,000 total coverage to the claimants in a wrongful death action. As a result, the legislature amended the uninsured/ underinsured motorist coverage statute, R.C. 2937.18, in pertinent part as follows: (A) No automobile liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless both of the following coverages are provided to persons insured under the policy for loss due to 4 bodily injury or death suffered by such persons: (2) Underinsured motorist coverage, which shall be in an amount of coverage equivalent to the automobile liability or motor vehicle liability coverage and shall provide protection for an insured against loss for bodily injury, sickness, or disease, including death, suffered by any person insured under the policy, where the limits of coverage available for payment to the insured under all bodily injury liability bonds and insurance policies covering persons liable to the insured are less than the limits for the insured's uninsured motorist coverage. Underinsured motorist coverage is not and shall not be excess insurance to other applicable liability coverages, and shall be provided only to afford the insured an amount of protection not greater than that which would be available under the insured's uninsured motorist coverage if the person or persons liable were uninsured at the time of the accident. The policy limits of the underinsured motorist coverage shall be reduced by those amounts available for payment under all applicable bodily injury liability bonds and insurance policies covering persons liable to the insured. (H) Any automobile liability or motor vehicle liability policy of insurance that includes coverages 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, vehicle or premiums shown in the declarations or policy, or vehicles involved in the accident. 5 This law went into effect on October 20, 1994, in the middle of the Hillyer policy period. (The legislative amendments will be referred to as Am.Sub.S.B. 20 throughout this opinion.) R.C. 3937.18 was specifically amended in order to supersede the holding of the Ohio Supreme Court in Savoie. Am.Sub.S.B. 20, Section 10. On May 26, 1995, Martin Hillyer, Administrator of the Estate of Christina Hillyer, et al., plaintiffs-appellees, filed a complaint for declaratory judgment and other relief against State Farm Mutual Automobile Insurance Company, defendant-appellant. The complaint requested the trial court to declare that the automobile liability insurance policy issued to Martin Hillyer from State Farm provided a total of $300,000 in uninsured/underinsured motorist benefits. Plaintiffs-appellees also sought a finding from the trial court that R.C. 3937.18 et seq., as amended by Am.Sub.S.B. 20, was unconstitutional. On August 16, 1995, State Farm answered plaintiffs-appellees' complaint for declaratory judgment and set forth a number of defenses including failure to state a claim upon which relief could be granted; failure to join necessary parties pursuant to Civ.R. 19 and 19.1; and that Am.Sub.S.B. 20 was, in fact, constitutional. On December 11, 1995, plaintiffs-appellees filed their brief in support of declaratory judgment in which they maintained that Am.Sub.S.B. 20 was unconstitutional. Plaintiffs-appellees based their argument on the following propositions: Am.Sub.S.B. 20 was an unconstitutional interference with the judicial process by the state general assembly which exceeded its legislative powers; 6 Am.Sub.S.B. 20 was unconstitutional since it failed to provide equal protection to uninsured/underinsured motorist claimants; Am.Sub.S.B. 20 was an unconstitutional creation of special privileges and immunities for the casualty insurance industry; Am.Sub.S.B. 20 violated the right to a remedy of insureds in vehicular casualty insurance claims; Am.Sub.S.B. 20 violated the one subject rule contained in Article II, Section 15(d) of the Ohio Constitution; and the retroactive application of Am.Sub.S.B. 20 would be unconstitutional.1 On February 9, 1996, State Farm, defendant-appellant, filed its motion for summary judgment in which it argued that plaintiffs- appellees did not have a right to recover under the underinsured motorist coverage of its insurance policy pursuant to R.C. 3937.18 in effect at the time of the accident as well as the terms of the subject policy. On March 8, 1996, plaintiffs-appellees filed a brief in opposition to State Farm's motion for summary judgment. In their brief in opposition, plaintiffs-appellees focused upon three main arguments previously raised in plaintiffs-appellees' brief in support of declaratory judgment; that Am.Sub.S.B. 20 unconstitutionally interfered with the role of the judiciary, that Am.Sub.S.B. 20 failed to provide equal protection to 1 The trial court did not consider plaintiffs-appellees' argument regarding retroactivity since the statute clearly provided that it had no retroactive effect. See Cole v. Holland (1996), 76 Ohio St.3d 220, 225. 7 uninsured/underinsured motorist claimants; and Am.Sub.S.B. 20 violated the one subject rule. On October 7, 1996, plaintiffs-appellees filed a supplemental brief in support of declaratory judgment in which plaintiffs- appellees argued for the first time that the law interpreting the insurance contract should be the law that was in effect at the beginning of the policy period and any subsequent legislative enactments occurring in the middle of the policy period should have no effect until such time as the policy was renewed. On October 31, 1996, the trial court entered the following order upon the journal: On Pleadings and Briefs, the court enters a decree for plaintiff: defendant's motion is denied. Plaintiff is entitled to damages in excess of $100,000 and costs. On November 12, 1996, the trial court entered a second entry which stated: Order of 10/31/96 is vacated. On Pleadings and Briefs, Plaintiffs' Motion for Declaratory Judgment is granted, and Defendant's Motion for Summary Judgment is denied. Since Plaintiffs' uncompensated damages exceed $300,000 as a matter of law, Plaintiffs are entitled to $300,000 under their underinsured motorist coverage with Defendant, plus costs. FINAL. Attached to the trial court's journal entry was a seven page opinion and order in which the trial court made the following findings on page six: *** The Court finds that following sections of the Ohio Revised Code as amended by SB-20 to be unconstitutional and therefore invalid: R.C. 3937.18(A); R.C. 3937.18(G); and R.C. 8 3937.18(H). All other sections amended by SB- 20 are to remain in full force and effect. The trial court based its conclusion upon the premise that Am.Sub.S.B. 20, as enacted, violated the one-subject rule contained within Article II, Section 15(D), of the Ohio Constitution as well as the right to a remedy of insureds in vehicular casualty insurance claims. The trial court declined to address the remaining constitutional issues raised by plaintiffs-appellees. On November 18, 1996, the trial court entered a third and final order upon the record: The Court's entry of 11/12/96 is modified to indicate that Plaintiffs have available to them for damages a fund of up to $300,000 through the State Farm uninsured/underinsured motorist policy. The remainder of the entry is in full force and effect including the written Opinion and Order. On December 10, 1996, State Farm, defendant-appellant, filed a timely notice of appeal from the judgment of the trial court. II. FIRST AND SECOND ASSIGNMENTS OF ERROR State Farm's, defendant-appellant's, first assignment of error states: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE PLAINTIFFS BY DECLARING THE AMENDMENTS TO R.C. 3937.18 EFFECTIVE OCTOBER 20, 1994 THROUGH THE ENACTMENT OF AMENDED SUBSTITUTE SENATE BILL- 20 UNCONSTITUTIONAL BECAUSE THE BILL VIOLATES THE ONE SUBJECT RULE CONTAINED IN SECTION 15(D), ARTICLE II OF THE OHIO CONSTITUTION. State Farm's, defendant-appellant's, second assignment of error states: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE PLAINTIFFS BY 9 DECLARING THE AMENDMENTS TO R.C. 3937.18 EFFECTIVE OCTOBER 20, 1994 THROUGH THE ENACTMENT OF AMENDED SUBSTITUTE SENATE BILL- 20, UNCONSTITUTIONAL BECAUSE IT VIOLATES THE RIGHT TO REMEDY PROVISION CONTAINED IN SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION IN TAKING AWAY REMEDIES GRANTED BY THE OHIO SUPREME COURT IN THE SAVOIE DECISION. Having a common basis in both law and fact, this court shall consider defendant-appellant's first and second assignments of error simultaneously. . THE ISSUE RAISED: WHETHER THE AMENDMENTS TO R.C. 3937.18, EFFECTIVE OCTOBER 20, 1994, THROUGH THE ENACTMENT OF AM.SUB. S.B. 20 UNCONSTITUTIONALLY VIOLATED THE ONE-SUBJECT RULE AND THE RIGHT TO REMEDY PROVISION CONTAINED WITHIN THE OHIO CONSTITUTION. Defendant-appellant argues, through its first and second assignments of error, that the trial court improperly entered declaratory judgment in favor of plaintiffs-appellees. Specifically, defendant-appellant argues that the amendments to R.C. 3937.18 which became effective on October 20, 1994 through the enactment of Am.Sub.S.B. 20 are not unconstitutional in any way, but valid and enforceable legislative provisions. Defendant-appellant's first and second assignments of error are well taken. . STANDARD OF REVIEW. On March 26, 1997, the Ohio Supreme Court decided Beagle v. Walden(1997), 78 Ohio St.3d 59, in which the court determined that the amendments to R.C. 3937.18(A)(2) accomplished through the enactment of Am.Sub. 20 were constitutional. In reaching its decision, the court addressed a number of constitutional challenges 10 that had been raised by the petitioner including the one-subject rule, separation of powers pertaining to the legislative and judicial functions; equal protection; right to a remedy; and the privileges and immunities clause. After separately analyzing each constitutional argument, the court held that the amendments to R.C. 3937.18 survived the petitioner's constitutional attacks and were, in fact, a valid exercise of legislative authority. . THE TRIAL COURT ERRED IN FINDING THE AMENDMENTS TO R.C. 3937.18, EFFECTIVE THROUGH THE ENACTMENT OF AM.SUB.S.B. 20, UNCONSTITUTIONAL. In the case sub judice, a review of the record from the trial court and the application of the Ohio Supreme Court's holding in Beagle to the facts of this case, clearly demonstrates that the trial court improperly invalidated the amendments to R.C. 3937.18. Accordingly, defendant-appellant's first and second assignments of error are well taken. 11 III. THIRD ASSIGNMENT OF ERROR State Farm's, defendant-appellant's, third and final assignment of error states: THE TRIAL COURT ERRED IN GRANTING MONEY DAMAGES TO THE PLAINTIFF AS A MATTER OF LAW IN ITS JOURNAL ENTRY OF NOVEMBER 12, 1996 AND IN FAILING TO VACATE SUCH MONEY JUDGMENT IN ITS MODIFICATION OF THAT ENTRY IN ITS JOURNAL ENTRY OF NOVEMBER 18, 1996. . THE ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN GRANTING MONEY DAMAGES TO PLAINTIFFS-APPELLEES. Defendant-appellant argues, through its third and final assignment of error, that the trial court erred in granting a money judgment in favor of plaintiffs-appellees on November 12, 1996. Specifically, defendant-appellant maintains that no evidence of any kind was submitted to the trial court on the issue of damages nor did the trial court conduct a hearing on the amount of appropriate damages actually incurred. Accordingly, it is defendant- appellant's position that the money judgment in question should be vacated in its entirety. It is plaintiffs-appellees' position that the underlying money judgment should remain in full force and effect. Plaintiffs- appellees argue that, since the insurance contract in question was executed on June 23, 1994, the law that was in effect on that date, i.e., Savoie, should be controlling and not the legislative amendments which became effective an October 20, 1994. Plaintiffs- appellees contend that the amendments which became effective through the enactment of an Am.Sub.S.B. 20, should not take effect 12 until such time as the insurance policy was renewed and not during the middle of the policy period. Defendant-appellant's third and final assignment of error is well taken. . STANDARD OF REVIEW. This court recently addressed the identical issue raised by plaintiffs-appellees in response to defendant-appellant's third assignment of error. In Stefanov, Administratrix, etc., v. Grange Mutual Casualty Company (Aug. 21, 1997), Cuyahoga App. No. 71209, unreported, this court determined that all claims arising after October 20, 1994 were subject to Am.Sub.S.B. 20. This conclusion was based upon the premise that a claim for uninsured/underinsured motorist coverage does not arise until the date of the underlying accident, at the earliest. See, Balatgek v. State Farm Insurance Co. (June 12, 1997), Franklin App. No. 96APE12-1619, unreported; Fenicle v. Central Insurance Co. (June 27, 1997), Fulton App. No. F-96-036, unreported. A cause of action for uninsured/underinsured motorist coverage accrues when the events which are conditions precedent to coverage have been met. Kraly v. Vannewkirk (1994), 69 Ohio St.3d 627, 633-34. Merely entering into a contract for uninsured or underinsured motorist coverage, without more, does not create a vested right under that contract. Cartwright v. Maryland Ins. Group (1995), 101 Ohio App.3d 439, 443. Accordingly, an insured is not legally entitled to recover damages from the owner or operator of an uninsured/underinsured motor vehicle until such time as the insured can prove the elements of the underlying claim. 13 Kurant v. Farmers Ins. Of Columbus, Inc. (1991), 62 Ohio St.3d 242, 245; Ros s v. Farmers Ins. Group of Companies (Jan. 10, 1997), Montgomery App. No. 95-1502, unreported. Therefore, any claim which accrues after October 20, 1994 is subject to the amended version of R.C. 3937.18 et seq. and is not controlled by Savoie. . TRIAL COURT ERRED IN GRANTING AN AWARD OF MONEY DAMAGES TO PLAINTIFFS-APPELLEES. In the case sub judice, a review of the record from the trial court fails to support the trial court's award of damages to plaintiffs-appellees. Not only did the trial court fail to conduct the necessary hearing on damages as indicated by defendant- appellant, but, since the accident in question occurred on November 6, 1994, the insurance policy in question was subject to the parameters of Am.Sub.S.B. 20 which become effective on October 20, 1994, prior to the date of the accident. Accordingly, contrary to plaintiffs-appellees' position, the trial court's award of damages could not have been properly based upon the application of the Supreme Court's prior holding in Savoie to the facts of the underlying case. For the foregoing reasons, the award of $300,000 in damages by the trial court was improper. Defendant-appellant's third assignment of error is well taken. Judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion. 14 This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellees 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. NAHRA, J., CONCURS; O'DONNELL, J., CONCURS IN JUDGMENT ONLY. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .