French v. Dwiggins, 82-1815

• Decision Date: 11 January 1984
• Docket Number: No. 82-1815,82-1815
• Parties: , 9 O.B.R. 123 FRENCH, Admrx., Appellant, v. DWIGGINS, Appellee.
• Court: Ohio Supreme Court

Page 32

9 Ohio St.3d 32

458 N.E.2d 827, 9 O.B.R. 123

FRENCH, Admrx., Appellant, v. DWIGGINS, Appellee.

No. 82-1815.

Supreme Court of Ohio.

Jan. 11, 1984.

Syllabus by the Court

R.C. 2125.02 as amended, effective February 5, 1982, is remedial in nature as written and promulgated by the General Assembly, and applies to all wrongful death actions tried in any forum on or after that date.

Sandra K. French, appellant herein, is the Administratrix of the Estate of Dickie L. Skees, deceased. Seventeen-year-old Skees was killed when the motorcycle he was operating was involved in a collision with an automobile driven by appellee, Walter E. Dwiggins. Appellant instituted this wrongful death action in the Court of Common Pleas of Licking County alleging that Skees' death was caused by appellee's negligence.

Appellee raised the affirmative defense of contributory negligence. After both sides had rested, the trial court upon appellant's motion directed a verdict in favor of appellant on the issue of liability and submitted the case to the jury solely for a determination of the amount of damages. The jury returned a verdict for appellant in the amount of $2,100, representing recovery for funeral expenses and actual pecuniary loss only.

Both parties appealed the decision of the trial court. Appellant appealed to the court of appeals and argued, inter alia, that R.C. 2125.02, as amended effective February 5, 1982, should apply to actions arising prior to, but tried after, the effective date of the amendment. The court of appeals rejected that argument and held that R.C. 2125.02, as amended, would have prospective application only. Furthermore, appellant unsuccessfully contended in the court below that she was entitled to damages in the amount of $200,000, since appellee failed to deny or respond to appellant's request to admit damages in that amount.

Appellee perfected a cross-appeal challenging the trial court's directed verdict on the issue of liability. The court of appeals agreed that the trial court erred in directing a verdict against appellee on the issue of liability since a question of fact existed as to whether Skees had been contributorily negligent. The court of appeals then remanded the instant case to the trial court for a new trial.

Upon reconsideration, the court of appeals vacated its decision. The relevant portion of that order reads:

"The appellee, having waived its assignments of error in the event none of the appellant's assignments of error are sustained, the cross-appeal is dismissed. [Sic.]

"ACCORDINGLY, IT IS ORDERED AND ADJUDGED AND DECREED that the judgment of the Court of Common Pleas of Licking County is AFFIRMED."

Appellant then sought review before this court on the issues which the court below decided adversely to appellant. Appellee filed no notice of cross-appeal from the decision of the court of appeals below.

This cause is now before the court upon the allowance of a motion to certify the record.

Pees & Behal, Arnold E. Shaheen, Jr., and Randall W. Pees, Columbus, for appellant.

Reese, Paugh, McNenny, Pyle & Drake, James H. McNenny and Russell A. Steiner, Newark, for appellee.

Keating, Ritchie & Lyon and Michael F. Lyon, Cincinnati, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers.

Porter, Wright, Morris & Arthur, Terrance M. Miller, Columbus, urging affirmance for amicus curiae, Ohio Ass'n of Civil Trial Attys.

FRANK D. CELEBREZZE, Chief Justice.

I

The critical issue raised by this appeal is whether R.C. 2125.02, as amended effective February 5, 1982, will be applied to all actions tried subsequent to the effective date of the amendment. For the reasons to follow, we hold that R.C. 2125.02, as amended, is to be applied to all wrongful death actions tried on or after February 5, 1982.

In Kilbreath v. Rudy (1968), 16 Ohio St.2d 70, 242 N.E.2d 658 , we held as follows:

"1. Section 28, Article II of the Ohio Constitution prohibiting the passage of retroactive laws, has application to laws affecting substantive rights, and has no reference to laws of a remedial nature providing rules of practice, courses of procedure or methods of review. * * * "

"2. Laws of a remedial nature providing rules of practice, courses of procedure, or methods of review are applicable to any proceedings conducted after the adoption of such laws. * * * " ¹

See, also, Denicola v. Providence Hospital (1979), 57 Ohio St.2d 115, 387 N.E.2d 231 , paragraph one of the syllabus.

Thus, should the amended version of R.C. 2125.02 be deemed remedial in nature, the proscription against retroactive laws under Section 28, Article II of the Ohio Constitution will not prevent its application to appellant's action. The remedial-procedural versus substantive dichotomy is seldom an easy distinction to make and this case is not unique as to this standard. Nevertheless, we are guided by State ex rel. Holdridge v. Indus. Comm. (1967), 11 Ohio St.2d 175, 178, 228 N.E.2d 621 , wherein it was stated:

" * * * [S]ubstantive law is that which creates duties, rights, and obligations, while procedural or remedial law prescribes methods of enforcement of rights or obtaining redress."

R.C. 2125.02, as amended, differs from the former R.C. 2125.02, in that the previous section limited recovery in wrongful death actions to the pecuniary loss sustained by the decedent's beneficiaries and reasonable funeral expenses and did not allow the beneficiaries to recover for their mental suffering or the loss of companionship, society or consortium resulting from the decedent's death. ²

Conversely, R.C. 2125.02, as amended effective February 5, 1982, allows the decedent's beneficiaries to recover, in addition to the pecuniary loss suffered as a consequence of the decedent's death, damages generally for the loss of services of the decedent, the loss of society of the decedent, as well as the mental anguish incurred by the beneficiaries. ³ The question becomes whether an expansion of the amount of recoverable damages as propounded by the General Assembly represents a substantive or remedial alteration in the statute.

We are compelled to conclude that the legislative amendments of R.C. 2125.02 are remedial. Clearly, R.C. 2125.02, as amended, neither imposes any new "duties, rights, and obligations" nor removes any existing liability. Whether the trial of the instant case is controlled by the former R.C. 2125.02 or the amended version, appellee remains liable to appellant if it is established that appellee negligently caused Skees' death. The predicate of liability in wrongful death has in no way been changed under the rewritten version of R.C. 2125.02.

Appellee could not reasonably be expected to conduct his affairs differently depending on which version of R.C. 2125.02 was in effect. See Wilfong v. Batdorf (1983), 6 Ohio St.3d 100, 104, 451 N.E.2d 1185.

R.C. 2125.02, as amended, simply provides the scope of recovery for those persons entitled to receive damages in a wrongful death action. The issue of the amount of compensatory damages recoverable is independent from the question of liability. Appellee argues that the amended version of R.C. 2125.02 creates new causes of action on behalf of the beneficiaries. To the contrary, appellant has a single cause of action in wrongful death involving multiple elements of damages.

Appellee also relies on Osai v. A & D Furniture Co. (1981), 68 Ohio St.2d 99, 428 N.E.2d 857 , where we held that the treble-damage provision of R.C. 1345.09(B) was substantive and could not be applied to actions arising before its effective date. In contrast to the case at bar, Osai, supra, dealt with the retroactive application of a penalty provision, not with compensatory damages. A statute which imposes treble damages as a penalty for misconduct is obviously intended to prevent or discourage such activity, or, in other words, to conform the public's conduct. As discussed earlier, the expansion of allowable damages in wrongful death actions does not purport to control an individual's course of affairs, but merely seeks to justly compensate those persons injured as a direct consequence of a wrongful death. Thus, reliance on Osai, supra, is misplaced.

Accordingly, for the foregoing reasons, we hold that R.C. 2125.02 as amended, effective February 5, 1982, is remedial in nature as written and promulgated by the General Assembly, and applies to all wrongful death actions tried in any forum on or after that date. ⁴

II

Appellant also contends that since appellee failed to timely respond to appellant's request for admissions pursuant to Civ.R. 36 that appellant suffered damages in the amount of $200,000. Civ.R. 36(A) states in part:

"A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(B) set forth in the request, that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. * * *

" * * * The matter is admitted unless, within a period designated in the request, not less than twenty-eight days after service thereof or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney. * * * " (Emphasis added.)

In the case at bar, appellee did not respond to appellant's requests for admissions until the date of trial. However, appellant's requests for admissions failed to designate a period within which appellee was to respond. Prior to trial, appellant requested that the trial court consider the amount of damages conclusively established in the amount listed in the request for admissions to which appellee failed to answer. At that time, appellee objected to the requests for admissions on the basis of an...