COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73319 RUTH LESLIE : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION NATIONWIDE INSURANCE COMPANY : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 22, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-306344. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Lewis Einbund, Esq. David W. Skall, Esq. Rubenstein, Novak, Einbund & Pavlik Skylight Office Tower 1660 West Second Street, Suite 270 Cleveland, OH 44113-1498 For Defendant-Appellee: Timothy D. Johnson, Esq. Gregory E. O'Brien, Esq. Daniel A. Richards, Esq. Weston, Hurd, Fallon, Paisley & Howley, L.L.P. 2500 Terminal Tower Cleveland, OH 44113 -2- TIMOTHY E. McMONAGLE, P.J.: Plaintiff-appellant, Ruth Leslie, as administratrix of the estate of her son, Thomas Ervin ( appellant ), appeals the decision of the Cuyahoga County Common Pleas Court granting summary judgment to defendant-appellee, Nationwide Insurance ( Nationwide ), on the basis that appellant was not entitled to underinsurance motorist coverage. For the reasons that follow, we affirm. The facts in this case are not disputed. Appellant's decedent, Thomas Ervin, was involved in a multi-car collision in southern Ohio on February 24, 1990 during a winter snowstorm. Mr. Ervin was a passenger in a car driven by a Mark Nordquist and both individuals died as a result of the injuries they sustained in the collision. The accident was determined to be the result of the negligence of several drivers, including Mr. Nordquist. At the time of the accident, appellant had in full force and effect a policy of automobile insurance with Nationwide providing uninsured/underinsured motorists coverage limits of $100,000 per person and $300,000 per occurrence. Later that same year, appellant settled with Mr. Nordquist's insurer for $100,000 in exchange for a complete release of all claims against Mr. Nordquist and his insurer. Also in that same year, appellant filed a complaint in the United States District Court for the Southern District of Ohio, Western Division, against additional parties whose negligence was alleged to have contributed to the death of appellant's decedent. Other litigants likewise filed complaints regarding the multi-car -3- collision in various county courts. The county cases were consolidated with the federal case for settlement purposes, and presided over by a magistrate appointed for that purpose. On September 12, 1995, after having submitted evidence to the magistrate on each of the individual claims, the magistrate determined the value of each claim, including the wrongful death claim of appellant's decedent. While the value of this claim was determined to be $300,073.86, the available pool of insurance proceeds from which the funds were to be disbursed allocated only $62.361.62 payable to appellant. In March 1995, prior to the consolidated settlement, appellant notified Nationwide that she would be making a claim for underinsured motorists benefits under the policy of insurance in force at the time of the accident. Nationwide denied coverage on the basis that appellant had failed to protect Nationwide's subrogation rights by previously settling with Mr. Nordquist's insurer without notice to Nationwide. As a consequence of this denial, appellant filed a declaratory judgment action against Nationwide seeking a declaration that appellant was entitled to underinsurance coverage. In its motion for summary judgment that followed, Nationwide maintained that appellant's five-year delay in notifying Nationwide of any claim for underinsured coverage was in contravention of the policy of insurance requiring the insured to protect Nationwide's subrogation rights by giving prompt notice of any claim. Appellant, in opposition and on cross-motion for summary judgment, argued that -4- the law at the time of appellant's settlement with Mr. Nordquist's insurer did not allow for an underinsured claim because appellant's settlement with the tortfeasor's insurer was for the same amount as the coverage limits contained within appellant's policy. She further argued that it was only after the Ohio Supreme Court's decision in Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500, that she had a claim for underinsurance benefits. Since that decision acts retroactively, appellant claimed that she was entitled to underinsurance benefits up to the $300,000 per occurrence limits afforded by her policy despite not having given notice of the earlier settlement and, therefore, entitled to summary judgment in her favor.1 The court, without opinion, granted Nationwide's motion for summary judgment. This appeal followed wherein appellant assigns the following errors for our review: I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. II. THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT. I. In her first assignment of error, appellant contends that the trial court erred in granting Nationwide summary judgment on the basis of lack of notice because the law in effect at the time of appellant's contract of insurance would not have allowed an 1On July 31, 1997, appellant's cross-motion for summary judgment was stricken as untimely and filed without leave of court. -5- underinsured motorists claim. Nationwide, therefore, was not prejudiced by the lack of notice, she argues. The Supreme Court of Ohio recently addressed this issue in Ross v. Farmers Ins. Group of Cos. (1998), 82 Ohio St.3d 281. In its syllabus, it stated: For the purpose of determining the scope of coverage of an underinsured motorist claim, the statutory law in effect a the time of entering into a contract for automobile liability insurance controls the rights and duties of the contracting parties. Here, the statutory law in effect at the time of appellant's decedent's accident, by appellant's own concession, precluded any claim for underinsured motorist benefits because appellant settled her claim for the limits of the policy's underinsurance coverage. Under Ross, then, any subsequent change in the law would have no effect on an insured's eligibility for underinsured benefits if the statutory law at the time of contracting did not afford such benefits. As syllabus law, the Ross decision is controlling. See S.Ct.R.Rep.Op. 1(B). We express no opinion as to the merits of appellant's argument absent the Supreme Court's decision in Ross. To be sure, the insured still has to protect the right of subrogation against all potential tortfeasors and, in this case, this was not done. It is clear under Ross,nonetheless, that appellant would not be entitled to underinsured motorist coverage because, even as appellant concedes, the statutory law in effect at the time of the insurance contract precluded recovery on such a claim. -6- Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from such evidence that reasonable minds can come to but one conclusion and, reviewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to the party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Here, Nationwide is entitled to judgment in its favor as a matter of law and, therefore, the trial court did not err in granting summary judgment to Nationwide. Accordingly, appellant's first assignment of error is not well taken and is overruled. II. In her second assignment of error, appellant contends that the trial court erred in denying her motion for summary judgment. Yet, appellant fails to raise any argument in support of this assigned error. We can, under App.R. 12(A)(2), disregard this assignment of error. Notwithstanding, it appears to this court that appellant's motion for summary judgment was decided on procedural, rather than substantive, grounds. Specifically, appellant's motion was stricken as untimely and filed without leave of court. Nonetheless, the court did consider appellant's arguments in opposition. Because of our disposition of appellant's first assignment of error, we do not find that appellant would have been -7- entitled to summary judgment even if the motion had been timely filed and with leave of court. Accordingly, appellant's second assignment of error is not well taken and is overruled. -8- It is ordered that appellee recover of appellant its 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. TIMOTHY E. McMONAGLE PRESIDING JUDGE PATTON, J. and SPELLACY, 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 .