LONGBOTTOM ET AL., APPELLEES, v. MERCY HOSPITAL CLERMONT; HUBER ET AL., APPELLANTS.
No. 2012-1260
Supreme Court of Ohio
Submitted May 8, 2013—Decided September 24, 2013.
137 Ohio St.3d 103, 2013-Ohio-4068
O‘DONNELL, J.
{¶ 1} Thе appellate court certified that its decision in this case conflicts with Barnes v. Univ. Hosps. of Cleveland, 8th Dist. Cuyahoga Nos. 87247, 87285, 87710, 87903, and 87946, 2006-Ohio-6266, 2006 WL 3446244, on the following question: “Whether the version of the prejudgment interest statute,
{¶ 2} The General Assembly amended
Facts and Procedural History
{¶ 3} On March 22, 2002, nine-year-old Kyle Smith struck his head on a coffee table at the home of a family friend in Hamersville, Ohio. His father, Jesse Smith, heard a thud from the next room, and Kyle came to him crying and bleeding from his ear. Smith decided to take his son to the emergency room and en route stopped home so Kyle‘s mother, Kristi Longbottom, could go with them. While there, Kyle began to vomit and continued to complain that his head hurt.
{¶ 4} At Mercy Hospital Clermont, Dr. Gary Huber initially examined Kyle but left the examination room. At that point, Kyle again vomited and began to complain of pain in his jaw. Huber returned to the room, stitched Kyle‘s ear, and explained that he did not believe that Kyle had suffered a serious head injury
{¶ 5} Early the next morning, Kyle began gasping for breath, and Longbottom saw that he had again vomited while sleeping. Smith called 9-1-1, and an air ambulance transported Kyle to Cincinnati Children‘s Hospital, where doctors diagnosed an epidural hematoma. His fall had torn his middle meningeal artery, causing pressure on his brain, a midline shift, and herniation. Dr. Kerry R. Crone performed emergency surgery; Kyle survived, but he sustained serious and permanent injuries.
{¶ 6} On March 14, 2003, Longbottom and Smith, individually and on behalf of Kyle, sued Huber and Qualified Emergency Specialists, Inc., for malpractice. Prior to trial, however, they voluntarily filed a notice of dismissal pursuant to
{¶ 7} They refiled the action on March 3, 2008, and eventually added Kyle as a party when he turned 18, and this case proceeded to trial. A jury found that Huber had negligently failed to “instruct the parents about the possibility of significant head injury or how to observe and monitor Kyle for such injuries,” and it awarded $2,412,899 in damages, $1,616,899 of which represented future damages for Kyle‘s anticipated medical expenses, pain and suffering, loss of ability to perform usual functions, and loss of future earning capacity. The court ordered a $500,000 set-off as a result of a prior settlement with Mercy Hospital Clermont and also denied Huber‘s motions for judgment notwithstanding the verdict and for a new trial.
{¶ 8} The trial court also awarded prejudgment interest in the amount of $830,774.66, which included prejudgment interest on the portion of the award representing future damages, after finding that Huber had failed to make a good-faith settlement attempt prior to trial. In calсulating prejudgment interest, the court applied the version of
{¶ 9} Both parties appealed. The Twelfth District Court of Appeals affirmed the judgment and the award of prejudgment interest, and in accord with decisions of the First, Third, and Seventh Appellate Districts, held that the amendments to
{¶ 10} The court of appeals further certified the conflict question to this court, and after determining that a conflict existed, we agreed to hear the matter.
{¶ 11} On appeal to this court, Huber urges that
{¶ 12} Longbottom and Smith contend that because Huber never argued that the voluntary dismissal of the initial complaint affected accrual of prejudgment interest, he has forfeited that argument. And they argue that
{¶ 13} Accordingly, we are asked to decide whether the amended version of
Law and Analysis
{¶ 14} Ohio courts allowed prejudgment interest on damage awards at common law, Hogg v. Zanesville Canal & Mfg. Co., 5 Ohio 410, 424 (1832), but in 1982 the
{¶ 15} When originally enacted,
Interest on a judgment, decree, or order for the payment of money rendered in a civil action based on tortious conduct and not settled by agreement of the parties, shall be computed from the date the cause of action accrued to the date on which the money is paid, if, upon motion of any party to the action, the court determines at a hearing held subsequent to the verdict or decision in the action that the party required to pay the money failed to make a good faith effort to settle the case and that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case.
Am.Sub.H.B. No. 189, 139 Ohio Laws, Part I, 2034, 2035.
{¶ 16} In Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248 (1985), we considered whether the original version of
R.C. 1343.03(C)
{¶ 17} Effective June 2, 2004, the legislature amended
(i) From the date on which the party to whom the money is to be paid gave the first notice described in division (C)(1)(c)(i) of this section to the date on which the judgment, order, or decree was rendered. The period described in division (C)(1)(c)(i) of this section shall apply only if the party to whom the money is to be paid made a reasonable attempt to determine if the party required to pay had insurance coverage for liability for the tortious conduct and gave to the party required to pay and to any identified insurer, as nearly simultaneously as practicable, written noticе in person or by certified mail that the cause of action had accrued.
(ii) From the date on which the party to whom the money is to be paid filed the pleading on which the judgment, decree, or order was based to the date on which the judgment, decree, or order was rendered.
And
{¶ 18} H.B. 212 further amended
In the calculation of interest due under section 1343.03 of the Revised Code, in actions pending on the effective date of this act, the interest rate
provided for in section 1343.03 of the Revised Code prior to the amendment of that section by this act shall apply up to the effective date of this act, and the interest rate provided for in section 1343.03 of the Revised Code as amended by this act shall apply on and after that effective date.
(Emphasis added.) Section 3, H.B. 212, 150 Ohio Laws, Part III, 3421.
{¶ 19} Writing for a unanimous court in Maynard, Justice Cupp explained that the General Assembly intended the new statutory interest rate to apply in all pending actions and that a case remains pending while on appeal. Accordingly, we held that “the amendment to
{¶ 20} Significantly, and in contrast to the imposition of a statutory interest rate established in
The Retroactivity Clause
{¶ 21} As we explained in Smith v. Smith, 109 Ohio St.3d 285, 2006-Ohio-2419, 847 N.E.2d 414, the Retroactivity Clause contained in
{¶ 22} Determining whether a law violates the Retroactivity Clause involves a two-step test:
[W]e must first “determine whether the General Assembly expressly intended the statute to apply retroactively.” [Bielat, 87 Ohio St.3d] at 353, 721 N.E.2d 28. If so, we must determine whether the statute is substantive, rendering it unconstitutionally retroactive, as opposed to merely
remedial.” (Emphasis sic.) Id. A substantive statute is one that “impairs vested rights, affects an accrued substantive right, or imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction.” Id. at 354, 721 N.E.2d 28; Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 106-107, 522 N.E.2d 489.
Id. Thus, a statute that applies retroactively and that is substantive violates
{¶ 23} Pursuant to
{¶ 24} Generally, our determination that the statute applies prospectively would end the inquiry required by Van Fossen. However, a statute that applies prospectively may nonetheless implicate the Retroactivity Clause. As we noted in Tobacco Use Prevention & Control Found. Bd. of Trustees v. Boyce, 127 Ohio St.3d 511, 2010-Ohio-6207, 941 N.E.2d 745,
the constitutional limitation against retroactive laws “include[s] a prohibition against laws which commenced on the date of enactment and which operated in futuro, but which, in doing so, divested rights, particularly property rights, which had been vested anterior to the time of enactment of the laws.” [Van Fossen,] 36 Ohio St.3d at 105, 522 N.E.2d 489, quoting Smead, The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence (1936), 20 Minn. L. Rev. 775, 781-782.
(Emphasis added.) Id. at ¶ 14.
{¶ 25} Although the Retroactivity Clause bars statutes that extinguish preexisting legal rights, id., it does not prohibit legislation that “merely affect[s] ‘the methods and procedure by which rights are recognized, protected аnd enforced, [and] not *** the rights themselves.’ (Emphasis added.)” Bielat, 87 Ohio
“The legislature has complete control over the remedies afforded to parties in the courts of Ohio, and it is a fundamental principle of law that an individual may not acquire a vested right in a remedy or any part of it, that is, there is no right in a particular remedy. * * * A party has no vested right in the forms of administering justice that precludes the Legislature from altering or modifying them and better adapting them to effect their end and objects.”
Id. at 281, fn. 5, quoting State ex rel. Michaels v. Morse, 165 Ohio St. 599, 605-606, 138 N.E.2d 660 (1956), quoting State ex rel. Michaels v. Morse, 10th Dist. Franklin No. 5372, 1956 WL 10344, 8 (Feb. 7, 1956).
{¶ 26} The 2004 amendment to
{¶ 27} We recognize that here the cause of action accrued before the legislature amended
Conclusion
{¶ 28}
Judgment reversed
and cause remanded.
O‘CONNOR, C.J., and LANZINGER, KENNEDY, and FRENCH, JJ., concur.
PFEIFER and O‘NEILL, JJ., dissent.
PFEIFER, J., dissenting.
{¶ 29} The majority opinion requires the parents of Kyle Smith to have known in 2002 what the General Assembly would enact in 2004. Only if Kyle‘s parents were gifted with such prescience could they have known that they should have sent notice—pursuant to a version of
{¶ 30} Instead, they relied on the statute that existed at the time Kyle was injured. They relied on a statute that stated that prejudgment interest would be calculatеd from the date that the cause of action accrued, a statute that did not require notice to insurers and tortfeasors that a cause of action had accrued. That additional burden required by
{¶ 31} Moreover, the version of
{¶ 32} Finally, the majority admits that the 2004 amendment to
O‘NEILL, J., concurs in the foregoing opinion.
The Lawrence Firm, P.S.C., Jennifer L. Lawrence, and Richard D. Lawrence; Ginger S. Bock Law Office, Inc., and Ginger S. Bock, for appellees.
Reminger Co., L.P.A., Martin T. Galvin, Stephen E. Walters, and Clifford C. Masch; Lindhorst & Dreidame Co., L.P.A., Michael F. Lyon, and Bradley D. McPeek, for appellants.