dissenting. The policies, in effect at the time of plaintiff Marcia Benson’s injuries, were entered into on May 6, 1980. Both policies between Farmers Insurance of Columbus, Inc. and the plaintiffs contained $100,000 per person to $300,000 per occurrence liability limits for uninsured/underinsured motorist protection. The appellate court acknowledges that in 1980 the anti-stacking clauses contained in the plaintiffs’ policies were invalid pursuant to this court’s decision in Grange Mut. Cas. Co. v. Volkmann (1978), 54 Ohio St. 2d 58 [8 O.O.3d 70]. However, *48since the decision in Volkmann, which barred anti-stacking clauses in policies, the legislature has enacted R.C. 3937.181(E) [now R.C. 3937.18(G)], which legislatively overrules Volkmann. The statute, however, did not take effect until June 25, 1980, after the Bensons had purchased their policies, and had them issued, from Farmers on May 6, 1980. Although the policies purchased contained anti-stacking clauses, such clauses were void, as if they were never inserted, because at the time of the issuance of the policies on May 6, 1980, such anti-stacking clauses were unenforcible pursuant to Volkmann.
In Nationwide Mut. Ins. Co. v. Marsh (1984), 15 Ohio St. 3d 107, this court addressed the applicability of clauses added to an insured’s policy without notice. The court explained at 109 that “[i]t is a long-standing principle of law that an insurance policy is a contract, and that the relationship between the insurer and the insured is purely contractual in nature. * * * Therefore, the terms of the policy must be mutually agreed-upon to be effective in accordance with contract principles.” The court further concluded that “[i]t is evident from the record that Endorsement 1604 was never discussed by the parties at the time the policy was purchased. Appellants [insurers] do not dispute this fact. Therefore, this court finds as a matter of law that Endorsement 1604 was not a part of the * * * policy.”
In the present case, the record contains interrogatories between the Bensons’ counsel and the insurance company. In answer to questions propounded by the plaintiffs, Farmers admitted that both of the policies were issued May 6, 1980. Farmers further admitted that when the policies were renewed “[there were not] any changes or modifications of the original policies included in the renewal.” Also, when asked by interrogatory question number 14, “Were any negotiations had with insured or any of his representatives prior to the issuance of any additional policy?” Farmers answered: “No additional policies were issued subsequent to May 6, 1980.”
It seems evident that since the anti-stacking provisions did not validly appear in the policies at the time of their purchase, and no negotiations have ever occurred between the insurer and the insureds as to their inclusion since that time, that under the principles of Marsh no valid and enforcible anti-stacking clauses were a part of the policies at the time the accident occurred and, ipso facto, could not become part of the policies thereafter without mutual action of the parties to modify the policies. This conclusion is further supported by the terms of the policies themselves which provide that no changes may be effective “except by endorsement or new policy issue.”
The next question is whether the anti-stacking provisions could have been revived by the enactment of the statute and the subsequent renewal of the policies between the insureds and insurer by the payment of premiums. In Karabin v. State Auto. Mut. Ins. Co. (1984), 10 Ohio St. 3d *49163, this court recognized that the statute authorizing anti-stacking provisions in insurance policies was valid and enforcible. Karabin, however, may be distinguished from the instant case. Karabin does not reflect when the disputed policy was issued or when it became effective. It only notes that “[b]oth policies were in effect on April 17,1981, when Karabin was injured by an uninsured vehicle * * This of course was after the enactment of the statutory amendment allowing anti-stacking clauses. In the present case the facts are much more complete. Both the Bensons and Farmers Insurance entered into the contracts before the statutory amendment and are presumed to have been aware of this court’s holding in Volkmann that anti-stacking clauses were void.
In light of the foregoing rationale it is reasonable to conclude that the insurance contracts in dispute were continuous policies from the date they were issued, May 6, 1980. The anti-stacking clauses contained in those policies when issued were void and unenforcible, and tantamount to not being a part of the contracts. For the anti-stacking clauses to become effective after the issuance of the policies such clauses had to be inserted by agreement of the insurer and the policyholders after June 25, 1980, the date of the enactment of the statutory provision permitting anti-stacking clauses in liability insurance contracts, pursuant to the terms of the policies themselves. Since no such agreement was ever negotiated or entered into between the parties, the anti-stacking provisions in the contracts were never revived. Without the revival of such anti-stacking clauses by a negotiated amendment they had no effect.
Since there are no valid anti-stacking provisions in the contract, I would reverse the court of appeals and find that the policies can be stacked to provide protection for the injured plaintiffs, subject of course to the limitation that the injured parties may not recover more than their actual loss.