COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73206 ROBERT P. CROWE : : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION OWENS CORNING FIBERGLAS : : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 22, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-196050. JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Michael V. Kelley, Esq. Anthony Gallucci, Esq. John A. Sivinski, Esq. Kelley & Ferraro, L.L.P. 1300 East Ninth Street 1901 Bond Court Building Cleveland, OH 44114 For Defendant-Appellee Martin J. Murphy, Esq. Owens Corning Fiberglas: Dennis R. Fogarty, Esq. Davis & Young Co., L.P.A. 101 Prospect Avenue, S.W. 1700 Midland Building Cleveland, OH 44115 For Defendant-Appellee Randolph C. Wiseman, Esq. Owens Corning Fiberglas Stephen C. Gray, Esq. (Continued): Bricker & Eckler, L.L.P. 100 South Third Street Columbus, OH 43215-4291 -2- For Amicus Curiae Sarah J. DeBruin, Esq. Ohio Alliance for Kurtis A. Tunnell, Esq. Civil Justice: Bricker & Eckler, L.L.P. 100 South Third Street Columbus, OH 43215-4291 -3- TIMOTHY E. McMONAGLE, P.J.: Plaintiff-appellant Robert P. Crowe appeals the decision of the Cuyahoga County Court of Common Pleas wherein the trial court directed the verdict in favor of defendant-appellee Owens Corning Fiberglas on appellant's claim for punitive damages after trial by jury. For the reasons stated below, we reverse the decision of the trial court and reinstate the jury verdict of $2,500,000 levied against appellee as punitive damages. On August 30, 1990, appellant initiated the instant action against appellee, among other defendants, alleging that as a result of his exposure to asbestos-containing products he developed the disease of asbestosis. On May 21, 1997, the matter proceeded to jury trial against appellee, the only remaining defendant. Appellee moved for directed verdict pursuant to the statutory directive found in R.C. 2315.21(D)(3)(a) which limits the amount of punitive damages which may be awarded against a single entity for the same occurrence asserting no liability remained against it for punitive damages. The jury returned a verdict in favor of appellant on his claims awarding him compensatory damages in the amount of $85,000 and $2,500,000 in punitive damages which was journalized by the court on August 20, 1997. Hearing was held on appellee's motion for directed verdict after briefing the issues and appellee's submission of the documentation required by the statute to demonstrate that punitive damages in excess of the statutory limitation have been paid. The trial court granted appellee's motion for directed verdict on appellant's punitive -4- damage claim by identical journal entries entered on August 20 and 21, 1997. Appellant timely appeals the trial court's grant of directed verdict on his claim for punitive damages and advances a single assignment of error for our review. I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELL EE OWENS CORNING FIBERGLAS' MOTION FOR A DIRECTED VERDICT ON PLAINTIFF'S CLAIM FOR PUNITIVE DAMAGES BASED UPON OHIO REVISED CODE SECTION ( R.C. ) 2315.21(D)(3) AND 2315.21(G) (8/20/97 ORDER AND 8/21/97 ORDER). In his sole assignment of error, appellant contends that the trial court erred in granting appellee's motion for directed verdict on his claim for punitive damages based upon R.C. 2315.21(D)(3) and (G). Specifically, appellant asserts that 2315.21(D)(3) may not be applied retroactively and, further, appellant asserts that appellee's motion for directed verdict granted pursuant to the mandate of R.C. 2315.21 (D)(3)(a) is improper where it can be shown that the statutory provision is unconstitutional. Appellant challenges the constitutionality of R.C. 2315.21(D)(3)(a) asserting that the statute violates the following provisions of the Ohio Constitution: Section 5, Article I (right to a jury trial); Section 16, Article I (Due Process, right to remedy and open courts); and Section 2, Article I (Equal Protection). In response, appellee asserts that R.C. 2315.21 (D)(3) does not affect appellant's substantive rights, it is remedial and it was intended by the legislature to be applied retroactively. In addition, amicus curiae urges affirmance for the Ohio Alliance for Civil Justice. Both appellee and amicus curiae -5- contend that the statute does not violate any of appellant's constitutional rights. For the reasons that follow, we hold R.C. 2315.21(D)(3)(a) to be unconstitutional under each of the foregoing constitutional provisions and hold that the statute affects a substantive right and may not be applied retroactively. Consequently, we find that the grant of a motion for directed verdict on appellant's punitive damage claim entered pursuant to the mandate of this statutory section is reversible error. On January 25, 1997, Am.Sub.H.B. No. 350 ( H.B. 350 ), Ohio's tort reform legislation, became effective. However, in R.C. 2315.21 (G), the General Assembly stated its intent to have the statutory sections be applied retroactively as remedial legislation and provided as follows: Except for divisions (C) and (D)(1) and (2) of this section, this section shall be considered to be purely remedial in its operation and shall be applied in a remedial manner in any civil action in which this section is relevant, whether the civil action is pending in court or commenced on or after the effective date of this section, regardless of when the cause of action accrued and notwithstanding any other provision of statute or prior rule of law of this state. The trial court found R.C. 2315.21(G) and (D)(3) to be constitutional and, as a consequence of the application of R.C. 2315.21(G), the trial court found R.C. 2315.21(D)(3) to be properly applied retroactively to the matter sub judice. R.C. 2315.21(D)(3)(a) provides in pertinent part: In any tort action *** [p]unitive or exemplary damages shall not be awarded against any defendant if that defendant files with the court a certified judgment, judgment entries, -6- or other evidence showing that punitive or exemplary damages have already been awarded and have been collected, in any state or federal court, against that defendant based on the same act or course of conduct that is alleged to have caused the injury or loss to person or property for which the plaintiff seeks compensatory damages and that the aggregate of those previous punitive or exemplary damage awards exceeds one hundred thousand dollars, or if the defendant is a large employer, two hundred fifty thousand dollars. Because we find appellant's constitutional challenge of this statute to be dispositive of the within appeal, we first review the statutory section at issue, R.C. 2315.21(D)(3)(a), to determine whether the statute violates a fundamental right as guaranteed to appellant by the Ohio Constitution without advancing a compelling state interest. We recognize that all legislative enactments enjoy a strong presumption of constitutionality. Austintown Township Board of Trustees v. Tracy (1996), 76 Ohio St.3d 353; see, also, R.C. 1.47. A statute will be declared invalid only if it appears beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible. Austintown, supra at 356. If a legislative enactment violates a fundamental right it is subject to strict judicial scrutiny and will be found to be unconstitutional unless it is shown to be necessary to promote a compelling state interest. Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 422, citing Shapiro v. Thompson (1969), 394 U.S. 618; see, also, Bd. of Edn. v. Walter (1979), 58 Ohio St.2d 368; State v. Cook (1998), Ohio St.3d . -7- A. Right to a Jury Trial First, we address appellant's challenge to the statute wherein he contends the statute violates his right to a jury trial. Appellant asserts that he has the right to have a jury determine both his entitlement to punitive damages and to assess the amount of punitive damages levied upon the tortfeasor. We agree. The right to trial by jury is a fundamental right. Section 5, Article I of the Ohio Constitution provides: [t]he right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury. Inviolate means *** free from substantial impairment. Morris v. Savoy (1991), 61 Ohio St.3d 684, 701, concurrence. The right to trial by jury extends to causes of action where the right existed at common law. Sorrell, supra at 421. The right to trial by jury includes the right to have the jury determine the factual issues and assess damages. Morris, id. Moreover, assessment of punitive damages stems from the common law and is encompassed within the right to trial by jury. Zoppo v. Homestead Ins. (1994), 71 Ohio St.3d 552, motion for rehearing, reconsideration denied (1995), 71 Ohio St.3d 1467 at 1467, certiorari denied (1995), 116 S.Ct. 56. Juries had an integral role in determining not only when punitive damages were justified but also of assessing what they determine is the proper amount. Zoppo, supra at 557. As our supreme court stated in Zoppo: [i]n 1859, the common-law right to have juries award punitive damages was regarded as -8- `settled' in Ohio. Roberts v. Mason (1859), 10 Ohio St. 223, 225. In Roberts, this court emphasized the importance of the jury's role in determining punitive damages when it stated: 'Twelve intelligent and impartial men, acting under oath, and subject, in a proper case, to the control of the court, are not likely to do any great wrong; and it seems to us that the power which this rule confers upon a jury, may, in practice, operate as a salutary restraint upon the evil passions of bad men.' . Zoppo, supra at 557. Our supreme court in Zoppo found that former R.C. 2315.21(C)(2)abrogated the common law right of the jury to assess the amount of punitive damages and as such was unconstitutional. Zoppo, supra at 557. We find the holding of Zoppo to be unambiguous and crystal clear. Our supreme court has found that a statute which impairs the traditional function of the jury in determining the appropriate amount of damages violates the right to a trial by jury as guaranteed under Section 5, Article I of the Ohio Constitution. Although appellee urges us to distinguish the holding of Zoppo from the matter sub judice, it offers no cogent reasons for us to do so nor can we find any distinguishing differences. We find the analysis required in the matter sub judice to be indistinguishable from the analysis undertaken by the Supreme Court in Zoppo. Simply stated an injured plaintiff has the right to have the jury alone decide the amount of a punitive damage award. See Zoppo, supra. We find the application of R.C. 2315.21(D)(3)(a) to be an even more egregious usurpation of the right to a trial by jury than the statutory section deemed unconstitutional by the Zoppo court. The -9- former R.C. 2315.21 (C)(2), the statute at issue in Zoppo, while denying the jury the right to determine the amount of punitive damages at least provided for the court to determine the amount of punitive damages. Here, the statutory section complained of precludes any determination of damages after the cap of $250,000 has been shown to have been reached. This statute prevents appellant, the victim of appellee's wrongdoing, from recovery of a properly proven $2,500,000 punitive damage award because this tortfeasor, at some other time, in some other state, paid some other victim a punitive damage award of more than $250,000 for its bad behavior. As a consequence, we find the application of the statutory provision here results in a total deprivation of appellant's constitutional right to a jury determination of the amount of punitive damages to be awarded. On the basis of our supreme court's holding in Zoppo, we find that where a judgment is entered in disregard of the jury's verdict, the appellant's right to have all facts, including damages, to be determined by the jury is violated. See, also, Sorrell, supra. The application of R.C. 2315.21(D)(3)(a) clearly infringes upon the jury's function to determine the amount of punitive damages to be awarded and substitutes the will of the General Assembly for that of the jury in any case where the jury imposes punitive damages against a defendant who has already paid at least the statutorily determined amount, thereby substantially impairing a plaintiff's right of trial by jury. -10- We hold that R.C. 2315.21(D)(3)(a) encroaches upon appellant's fundamental and inviolate right to trial by jury on his claim for punitive damages and is unconstitutional under Section 5, Article I of the Ohio Constitution. B. Due Process Section 16, Article I of the Ohio Constitution provides: All courts shall be open, and every person for injury done him in his land, goods, person or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay. Appellee and amicus curiae for the Ohio Alliance for Civil Justice urge us to apply the rational basis test to determine whether R.C. 2315.21(D)(3)(a) is constitutional under the Due Process Clause. It is well established that where a state action infringes upon a fundamental right, said action becomes the subject of strict judicial scrutiny and will be upheld only upon a showing that it is justified by a compelling state interest. Bd. of Edn. v. Walter (1979), 58 Ohio St.2d 368 (applying Equal Protection analysis). Further, the infringement of the action is required to be closely tailored to effectuate only those interests. Id. at 374. Pursuant to our supreme court's decision in Zoppo, we recognize that the right to have the jury determine punitive damages and assess the amount of those damages is encompassed within the right to have a trial by jury, a fundamental right. We find that the statute, because it effectively prevents a jury -11- determination of the amount of punitive damages to be awarded to appellant, impinges upon that fundamental right. Where the statute impinges on a fundamental right our analysis of whether the statute is constitutional under the Due Process Clause requires our determination of whether this action is necessary to promote a compelling state interest. Bd. Of Ed. V Walter, supra at 373-374. The state assumes the heavy burden of proving the legislation is constitutional. Id. at 374. The asserted governmental interest in enacting R.C. 2315.21 is set forth in the Tort Reform Act Section 5(B)(1)(a) which states in pertinent part that the amount of punitive or exemplary damages awarded in a tort action are similar in nature to fines and additional court costs imposed in criminal actions, because punitive and exemplary damages, fines, and additional court costs are designed to punish a tortfeasor for certain wrongful actions or omission. The Act further provides in Section 5(B)(1)(b) that [t]he past failure to establish a statutory ceiling *** has resulted in excessive and occasionally multiple awards that have no rational legal connection to the wrongful actions *** in violation of the constitutional prohibition of cruel and unusual punishment and in (c) provides that *** this distinction between large employers and other defendants is *** rationally based on size considering both the economic capacity of an employer to maintain that number of employees and to impact the community at large ***. In our view, R.C 2315.21(D)(3)(a) has not been shown to be necessary to promote the state interest as asserted nor has -12- sufficient evidence been presented to convince us that such state interest is, in fact, compelling. Although the purpose of punitive damage awards is to punish the defendant, the totally arbitrary caps on the punitive damage awards, as mandated by the statute, bear no relation to the misconduct of the defendant. Without presenting any evidence to support its argument, appellee asserts that this statute, preserves fairness in imposing punitive damages upon [it] and other defendants[,] thereby preventing [it] from being subjected to duplicative and unlimited multiple punitive damage awards for the same act, but providing punitive damage award sizable enough to deter and punish the tortfeasor. Without more, we find appellee's argument to be specious and the $250,000 cap to be at best arbitrary, capricious and unreasonable. Moreover, no evidence was presented to demonstrate that the statute is sufficiently narrowly tailored nor the least restrictive alternative necessary to effectuate the asserted goal of the legislation that it requires undermining a plaintiff's fundamental and inviolate right to a jury trial. Consequently, we find that R.C. 2315.21(D)(3)(a) does not withstand the strict judicial scrutiny analysis required and the statute fails to accord Due Process to certain tort victims who are entitled to punitive damage awards. Consequently, we hold that R.C. 2315.21(D)(3)(a) violates the due process guarantees found in the Due Process Clause, Section 16, Article I of the Ohio Constitution. C. Equal Protection -13- Section 2, Article I of the Ohio Constitution provides: All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly. As stated above, based upon our supreme court's holding in Zoppo, supra, we have determined that R.C. 2315.21(D)(3)(a) violates appellant's fundamental right to a jury trial. The standard for determining whether a statutory classification involving a fundamental right violates the Equal Protection Clause of the Ohio Constitution is the strict scrutiny test. Sorrell v. Thevenir, supra. Therefore, the statutory classifications created by R.C. 2315.21(D)(3)(a) will be found to be unconstitutional unless it can be shown that the classifications are necessary to promote a compelling governmental interest. Beatty v. Akron City Hospital (1981), 67 Ohio St.2d 483, 492. R.C. 2315.21(D)(3)(a) creates two classes of plaintiffs who are able to prove that a tortfeasor is liable to them for punitive damages, those who will be able to collect those punitive damages and those not. Application of this statute mandates that some injured victims may collect the punitive damage awards from tortfeasors as rendered by a jury verdict and some injured victims will be precluded from collecting the award. In our view, the ostensible purpose of the statute to limit excessive punishment of -14- certain tortfeasors to prevent cruel and unusual punishment cannot withstand Equal Protection scrutiny under a strict judicial scrutiny analysis. We find that the evidence presented was insufficient to demonstrate that without punitive damage caps as mandated by the statute certain tortfeasors were subject to such excessive punishment as to be cruel and unusual. We do not see that the stated interest is so compelling as to support the creation of two classes of injured tort victims. Further, a statutory classification violates the Equal Protection Clause if the classification treats similarly situated people differently based upon an illogical and arbitrary basis. We find the classes created by the statute to be both unreasonable and arbitrary. We conclude that R.C. 2315.21(D)(3)(a) is, therefore, infirm on Equal Protection grounds even under the less stringent rational basis test. Accordingly, we hold that R.C. 2315.21(D)(3)(a) violates the equal protection guarantees as set forth in Section 2, Article I of the Ohio Constitution. D. Right to Remedy/Open Courts Section 16, Article I of the Ohio Constitution provides: All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due courts of law, and shall have justice administered without denial or delay. Section 16, Article I not only protects the right of a plaintiff to file a lawsuit, but also protects the right to a -15- judgment or verdict properly rendered in a suit. Morris v. Savoy, supra; Sorrell v. Thevenir, supra at 426. Denial of a remedy and denial of a meaningful remedy lead to the same result: an injured plaintiff without legal recourse. Gaines v. Preterm-Cleveland, Inc. (1978), 33 Ohio St.3d 54, 60. In this case, application of R.C. 2315.21 (D)(3)(a) denies appellant the award of punitive damages as properly rendered by the jury after the jury's assessment of the evidence presented in his case against appellee. We find that where a jury verdict is arbitrarily capped, the constitutional benefit of a jury trial, as we understand that right to be, is infringed and as such the statute violates appellant's right to an open court. Accordingly, we hold that R.C. 2315.21 violates Section 16, Article I of the Ohio Constitution. E. Retroactive Application of the Statute Finally, we consider whether R.C. 2315.21 (D)(3)(a), if it were found to withstand constitutional scrutiny, may be applied retroactively. Section 28, Article II of the Ohio Constitution provides in pertinent part: The General Assembly shall have no power to pass retroactive laws, or laws impairing the obligations of contracts ***. Although our determination that R.C. 2315.21(D)(3)(a) is unconstitutional effectively disposes of appellant's questions posed regarding the retroactive application of the statute, we also would find that despite the contentions of appellee and amicus -16- curiae, R.C. 2315.21(D)(3)(a) cannot be construed to be remedial as it affects a substantive right. The General Assembly recognized that the right to a trial by jury was abrogated by the former statutory provision R.C. 2315.21, wherein the trial court was required to determine the amount of awardable damages. House Bill 350, Section 5 (B)(2) states in pertinent part: *** it is the intent of the General Assembly to reflect the portion of the holding of the supreme court in Zoppo v. Homestead Ins. Co., supra, the statutory provisions requiring a trial court to determine the amount of awardable punitive or exemplary damages are unconstitutional and being violative of the right to a trial by jury established by Section 5 of Article I of the Ohio Constitution. Thus we see that the General Assembly recognized that the determination of the amount of punitive damages to be awarded is a jury function and the abridgement of that right violates the right to a jury trial. A plain reading of R.C. 2315.21(G) indicates that the General Assembly intended R.C. 2315.21(D)(3)(a) to be applied retroactively. Therefore, the analysis of whether this statute is unconstitutionally retroactive in violation of Section 28, Article II of the Ohio Constitution requires an initial determination of whether that statute is substantive or merely remedial. Van Fossen v. Babock & Wilcox Co. (1988), 36 Ohio St.3d 100, paragraph 3 of the syllabus. The right to a jury trial is a substantive right and not procedural. Kneisley v. Lattimer-Stevens Co. (1988), 40 Ohio St.3d -17- 354, 356. Pursuant to our supreme court's pronouncement in Van Fossen v. Babcock & Wilcox Co., supra at 109, it is clear that retroactive application of a statutory section which affects appellant's substantive right by limiting his right to a jury trial would violate Section 28, Article II of the Ohio Constitution. Consequently, we find that even if this statute were to pass constitutional muster, because it affects the substantive right of trial by jury, it may not be applied retroactively. F. Conclusion The legislature by enacting R.C. 2315.21(D)(3)(a) has in effect abrogated the common law right to have a jury assess the amount of punitive damages to be awarded to an injured plaintiff. Therefore, we hold that R.C. 2315.21(D)(3)(a) is unconstitutional because the statute impinges upon appellant's right to a trial by jury and violates his rights to Due Process, to Equal Protection, and to Remedy and Open Courts as guaranteed by the Ohio Constitution without a showing of sufficient evidence to demonstrate a compelling state interest justifying such impingement. Further, even if R.C. 2315.21(D)(3)(a) could be construed as constitutional, as it is a statute which affects a substantive right, it may not be applied retroactively. We agree with the sentiment as expressed by Justice Sweeney in his concurring and dissenting opinion in Morris, supra at 717, [u]nless and until we draw the line, this erosion of the right to trial by jury will continue, and as we have seen in the loss of -18- other constitutional rights, once the rights are lost, the recovery of those rights is difficult at best and often impossible. Based upon the foregoing analysis, we conclude that it was prejudicial error for the trial court to grant appellee's motion for directed verdict on appellant's punitive damage claims pursuant to the mandate because we find R.C. 2315.21(D)(3)(a) to be unconstitutional. The judgment of the trial court wherein it granted the motion for directed verdict in favor of appellee on the award of punitive damages is reversed. The jury verdict of $2,500,000 as punitive damages in favor of appellant is reinstated. -19- This cause is reversed for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellee his 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. TIMOTHY E. McMONAGLE PRESIDING JUDGE KENNETH A. ROCCO, J. and MICHAEL J. CORRIGAN, J., CONCUR. 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 .