Additionally, such a statute, at least if applied retroactively, could arguably have constitutional ramifications. See, e.g., Greyhound Food Management, Inc. v. City of Dayton, 653 F. Supp. 1207, 1211 (S.D.Ohio 1986) (district court finds unconstitutional a statute that retroactively barred subrogation claims against municipalities), aff'd on other grounds and remanded, 852 F.2d 866 (6th Cir. 1988). This Court determines that such an interpretation is improper in this setting.
But since this action commenced prior to that date, the prior version of the statute in effect at that time is applicable. While Plaintiffs Wausau does not contest the constitutionality of the statute, this Court is aware of the decisions in Greyhound Food Management, Inc. v. City of Dayton, 653 F. Supp. 1207 (S.D.Ohio 1986), aff'd, 852 F.2d 866 (6th Cir. 1988), where the trial court concluded that the retroactive application of O.R.C. § 2744.05(B) was an unconstitutional deprivation of equal protection of the laws in violation of the fourteenth amendment, and the appeals court affirmed, but failed to comment on that particular conclusion. However, the later Menefee decision by the Ohio Supreme Court clarified the constitutionality of the statute under Ohio law, which this Court is bound to follow in a diversity case under Erie.
Other courts have reached the opposite conclusion. In Greyhound Food Management, Inc. v. City of Dayton, 653 F. Supp. 1207 (S.D.Ohio 1986) the district court, interpreting Ohio law, found that upon the occurrence of an injury, a person acquires a vested right in those causes of action arising out of the injury under the state law applicable at that time. Id. at 1216, 1219.
Plaintiffs refer the Court to Menefee v. Queen City Metro, 49 Ohio St.3d 27, 550 N.E.2d 181 (1990) which held that the anti-subrogation provision in that statute was constitutional. However, a district court case, Greyhound Food Management, Inc. v. City of Dayton, 653 F. Supp. 1207 (S.D.Ohio 1986), aff'd, 852 F.2d 866 (6th Cir. 1988) declared this statute to be unconstitutional as a violation of equal protection, due process and the taking clause of the United States Constitution. Of course, this Court is not bound by state court decisions on federal constitutional questions. U.S. ex. rel. Moore v. Woods, 420 F.2d 1260 (7th Cir. 1970).
Id. at 426. We are mindful of the decision reached in Greyhound Food Mgmt., Inc. v. Dayton (S.D. Ohio 1986), 653 F. Supp. 1207. There, the court held that R.C. 2744.05(B) violates the Equal Protection Clause.
{¶65} Among other cases, Appellants' summary judgment argument also relied on Greyhound Food Mgt, Inc. v. City of Dayton, 653 F.Supp. 1207, 1218 (S.D.Ohio 1986), aff'd and remanded, 852 F.2d 866, (6th Cir.1988), arguing the retroactive application of the 2006 DMA constitutes a due process violation and an unconstitutional taking of Henderson's cause of action and corresponding remedy. Greyhound held in part that an insurer's subrogation causes of action were property under the Fifth Amendment's Taking Clause.
With respect to claims against political subdivisions, the legislature has determined to abolish the collateral source rule and to bar subrogated claims based upon such collateral payments. The United States District Court for the Southern District of Ohio in Greyhound Food Management v. Dayton (1986), 653 F. Supp. 1207, 1213-1215, affirmed and remanded for other reasons (C.A. 6, 1988), 852 F.2d 866, found that R.C. 2744.05(B) violates the Equal Protection Clause. In doing so, that court, although recognizing the applicability of the rational basis test, applied a stricter scrutiny, in effect that scrutiny which is generally applicable to cases involving gender discrimination.
"Ohio Revised Code Section 2744.05(B) creates a classification which discriminates against insurance companies and other subrogated claimholders in violation of constitutional equal protection guarantees." Motorists relies upon Greyhound Food Mgt., Inc. v. Dayton (S.D. Ohio 1986), 653 F. Supp. 1207, in support of this assignment of error. In Greyhound, the court determined that R.C. 2744.05(B) created "a classification between those holding claims under a subrogation provision in an insurance or other contract (subrogated claimholders) and other claimholders."