Opinion
No. 43602
Decided March 25, 1982.
Wrongful death — Amended R.C. 2125.02 — Award of compensatory damages — Retrospective in application.
O.Jur 3d Death §§ 25, 36.
R.C. 2125.02, as amended effective February 5, 1982 in Am. Sub. H.B. No. 332, and dealing with the procedures in a wrongful death action, is remedial and procedural in nature and may be applied retrospectively.
Murray Murray Co., L.P.A., and Mr. W. Patrick Murray, for plaintiff.
Flynn, Py Kruse Co., L.P.A., and Mr. John A. Coppeler, for defendant.
An action was commenced on the 27th day of August 1980, by Martha Wright, Administratrix of the estate of Rebecca Wright, who was killed in an automobile accident on the 29th day of July 1980. The defendant in this cause was also killed in the accident and was represented in this action by Cynthia Conney, Administratrix of the defendant's estate. The action was brought under R.C. 2125.01, which authorizes an action for the wrongful death of an individual. Prior to the time of the hearing of this cause, the legislature amended R.C. 2125.01 and 2125.02, which became effective February 5, 1982. This cause was set for trial on March 10, 1982. Counsel for the defendant filed a motion with the court in advance of said trial requesting the court's ruling on the application of the amended R.C. 2125.02 to the case at hand. This opinion is issued in response to said motion.
The court finds that R.C. 2125.02 is retrospective for two reasons.
First of all, it is quite clear that the legislature, in amending R.C. 2125.01 and 2125.02 considered them together and amended them under the same Act. It is further quite clear in reviewing former provisions of R.C. 2125.01 and the amended provisions effective February 5, 1982, that the legislature clearly reviewed and included a paragraph making the application of said legislation retroactive. The last paragraph of R.C. 2125.01 clearly states, "[t]he same remedy shall apply to any such cause of action now existing and to any such action commenced before January 1, 1932, or attempted to be commenced in proper time and now appearing on the files of any court within the state, and no prior law of this state shall prevent the maintenance of such cause of action."
It is quite clear from a reading of the above paragraph that the legislature intended to make the application of this statute retrospective as no other meaning could be given to these specific words contained in the statute. It is further clear that this was not merely an unconsidered carry-over from the previous statute because there is a slight modification in the wording of that particular paragraph as it appears in the amended statutory provision.
The second reason the court finds that said statutes are retrospective is based upon the findings of the court that the amended provisions of R.C. 2125.02 are remedial and procedural in nature and not substantive. The Supreme Court of Ohio in Denicola v. Providence Hosp. (1979), 57 Ohio St.2d 115 [11 O.O.3d 290], clearly decided prior to the amendment of this section of the Revised Code, that if a statute is procedural or remedial and not substantive in nature, application of that law in trials conducted after its enactment is prospective application even though the cause of action arose prior to its adoption. It is further clear that the Supreme Court acknowledged in State, ex rel. Slaughter, v. Indus. Comm. (1937), 132 Ohio St. 537, 542 [8 O.O. 531], that "[a] fundamental distinction exists between a law changing accrued rights and a law which changes the remedy for the enforcement of those rights."
While it is not conclusive, the fact that the heading on R.C. 2125.02 is "proceedings" and a reading of the provisions thereafter clearly indicates that this section is remedial and procedural in nature and not substantive. No new liability is created in the defendant by this section but merely a modification of the remedies and evidence of damages that can be presented in a cause.
The court finds that this interpretation of the statutes does not conflict with R.C. 1.48 and in fact supports R.C. 1.11, which holds that remedial laws and all proceedings under them shall be liberally construed in order to promote their objective and assist the parties in obtaining justice.
Wherefore, it is the finding of this court that amended R.C. 2125.02 is retrospective in nature and shall be applied in the case at bar.
Judgment accordingly.