Personal Service Insurance v. Mamone

Clifford F. Brown, J.,

dissenting. I must respectfully dissent from the majority’s reversal of the judgment of the court of appeals in this case. It is undisputed that prior to September 1981, appellee-surety exercised its contractual option to complete reclamation work on behalf of its defaulting principal. Thereafter, effective September 1, 1981, the legislature amended R.C. 1513.02 to add civil penalties where none had previously existed. Thus, the possible civil penalty was not a risk the surety contracted to suffer when it entered into its contract, nor when it exercised its option to perform the work.

The state cannot retrospectively apply the penalty provisions of this statute to sureties who undertook work before the effective date of such provisions without increasing the surety’s burdens under its contract. Section 28, Article II of the Ohio Constitution acts as a “bar against the state’s imposing new duties and obligations upon a person’s past conduct and transactions, and it is a protection for the individual who is assured that he may rely on the law as it is written and not later be subject to new obligations thereby.” Lakengren v. Kosydar (1975), 44 Ohio St. 2d 199, 201 [73 O.O.2d 502], Thus, the civil penalty statute is unconstitutional as applied to the facts of this case, because it imposes new obligations on the surety’s exercise of its contractual option to undertake work on behalf of its principal.

Based on the foregoing, I would hold that the civil penalties could not be applied to the surety because the surety exercised its contractual option to complete reclamation work prior to the effective date of the statute which provided for civil penalties. To hold otherwise is to unconstitutionally impair the surety’s rights and obligations under its contract.

Accordingly, I would affirm the judgment of the court of appeals.

Wright, J., concurs in the foregoing dissenting opinion.