dissenting. The issue in this case is whether the decision in Bendix Autolite Corp. v. Midwesco Enterprises, Inc. (1988), 486 U.S. 888, 108 S.Ct. 2218, 100 L.Ed.2d 896, applies retroactively to bar appellant’s personal injury claim. The majority answers this question with a confusing opinion containing an assortment of retroactivity doctrine. Present in the opinion are two rules of federal law, only one of which is actually described, and one brand new and unsupportable rule of state law.
I
The majority states in Part I of its opinion that the Bendix decision cannot be given retroactive effect under the three-pronged test set forth in Chevron Oil Co. v. Huson (1971), 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296.2 But the majority also recognizes that the test from Chevron may have been replaced by a new rule of retroactivity in Harper v. Virginia Dept. of Taxation (1993), 509 U.S.-, 113 S.Ct. 2510, 125 L.Ed.2d 74. Then without even so much as describing the new rule from Harper (i.e., the holding), the majority goes on to state the correct but wholly irrelevant fact that the plaintiffs in Harper were not necessarily entitled to a refund of the taxes and that the state of Virginia retained some flexibility in fashioning appropriate relief. Based on this discussion of the appropriate remedy for the plaintiffs in Harper, the majority makes the extraordinary statement that “Harper allows state courts to tailor their own remedies as they determine the manner in which a Supreme Court opinion is to be retroactively applied.” The *247majority then proceeds to use this statement as the foundation for its new state law rule of retroactivity.
Such a statement would not merit much attention were it not for the fact that the remainder of the majority’s opinion rests in its entirety on this “new rule.” It is indeed curious that a discussion of “tailoring a remedy” has even surfaced in this case. After all, this case has not yet proceeded beyond the pleading stage. No trial has been held to determine whether liability exists at all, and a finding of liability must always precede any attempt to tailor a remedy. The court’s discussion of a remedy in Harper arose only because the court had already decided the liability issue. Of course, that decision has not been made in this case.
Moreover, the question of an appropriate remedy for the plaintiffs in Harper arose only because the plaintiffs sought a refund of taxes, and, as the court noted, federal law does not necessarily entitle them to a refund. Id., 509 U.S. at-, 113 S.Ct. at 2519, 125 L.Ed.2d at 88. Instead, the court held that the state of Virginia could choose any relief it wished so long as that relief was “ ‘consistent with federal due process principles.’ ” Id., quoting Am. Trucking Assns., Inc. v. Smith (1990), 496 U.S. 167, 181, 110 S.Ct. 2323, 2332, 110 L.Ed.2d 148, 161. One commentator has suggested that Virginia could impose retroactive taxes on state retirees, along with retroactive pension increases to offset the resulting tax liability. See Rakowski, Harper and Retroactive Remedies: Why States’ Fears are Exaggerated (1993), 59 Tax Notes 555, 558-559. No one has suggested, however, that states use the remedy issue as a way to avoid application of the retroactivity rule from Harper, which is precisely what the majority accomplishes with its ruling.
What is absent from the majority’s opinion is any discussion of the United States Supreme Court opinions which unequivocally state that the retroactivity of constitutional decisions by the United States Supreme Court is purely a'matter of federal law. At least three recent opinions make this point clear. Justice O’Connor stated in the court’s plurality opinion in Am. Trucking Assns., Inc. v. Smith, supra, 496 U.S. at 177, 110 S.Ct. at 2330, 110 L.Ed.2d at 159, that “[t]he determination whether a constitutional decision of this Court is retroactive — that is, whether the decision applies to conduct or events that occurred before the date of the decision — is a matter of federal law.” (Emphasis added.) Quoting this language, the court in Ashland Oil, Inc. v. Caryl (1990), 497 U.S. 916, 918, 110 S.Ct. 3202, 3204, 111 L.Ed.2d 734, 737, refused to apply the West Virginia Supreme Court’s state-law criteria for retroactivity, stating instead that the court must examine whether to give retroactive effect to a constitutionally based decision “in light of our nonretroaetivity doctrine.” (Emphasis added.)
*248Finally, the Virginia Supreme Court in Harper had attempted to deny retrospective effect to the United States Supreme Court’s decision in Davis v. Michigan Dept. of Treasury (1989), 489 U.S. 803, 109 S.Ct. 1500, 103 L.Ed.2d 891, by resting its judgment on “independent and adequate” state grounds. The United States Supreme Court rebuffed the Virginia court’s effort at avoiding the application of federal rules of retroactivity by stating:
“The Supremacy Clause, U.S. Const., Art. VI, cl. 2, does not allow federal retroactivity doctrine to be supplanted by the invocation of a contrary approach to retroactivity under state law. Whatever freedom state courts may enjoy to limit the retroactive operation of their own interpretations of state law * * * cannot extend to their interpretations of federal law.” Id., 509 U.S. at-, 113 S.Ct. at 2519, 125 L.Ed.2d at 88.
However stated, it is clear that federal law controls the issue before us. The majority cites no authority for its assertion in Part II of its opinion that a conflict between a state constitutional civil right and a federal rule of decision that is not rooted in the United States Constitution must be resolved in favor of the state civil right. Commentators who have examined the issue would disagree. The federal rule of retroactivity — called a federal rule of decision by the majority — is not, as the majority correctly points out, rooted in the Constitution. See Solem v. Stumes (1984), 465 U.S. 638, 642, 104 S.Ct. 1338, 1341, 79 L.Ed.2d 579, 586 (“retroactive application [of judicial decisions] is not compelled, constitutionally or otherwise”). Instead it may be described as a federal common-law rule. See Field, Sources of Law: The Scope of Federal Common Law (1986), 99 Harv. L.Rev. 883, 890 (defining “federal common law” as “any rule of federal law created by a court * * * when the substance of that rule is not clearly suggested by federal enactments — constitutional or congressional” [emphasis deleted]). Regardless of its origin, however, federal common law is still “law” within the meaning of the Supremacy Clause and is binding on state court judges. Id. at 897 and fn. 64. For this reason, and because the statements by the Supreme Court in the above-mentioned cases directly contradict the majority’s assertion, I believe that in this case we cannot apply a state rule of retroactivity. We are bound by the Supremacy Clause of the United States Constitution to apply federal law, even if we believe the application of state law would produce a more ■palatable result.
The strict rule of retroactivity in the civil context announced by the court in Harper is as follows: “[T]his Court’s application of a rule of federal law to the parties before the Court requires every court to give retroactive effect to that decision.” (Emphasis added.) Id., 509 U.S. at-, 113 S.Ct. at 2513, 125 L.Ed.2d at 81. I do agree with the majority that there is a serious question as to whether Chevron remains good law after the decision in Harper. The court in *249Harper did not analyze the retroactivity question under Chevron but instead created a rule of strict retroactivity similar to the rule of retroactivity in the criminal context as set forth by the court in Griffith v. Kentucky (1987), 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649. The Harper court did state, however, that the normal rule of retroactive application of its decisions must be followed “[w]hen this Court does not ‘reserve the question whether its holding should be applied to the parties before it[.]’ ” Id., 509 U.S. at-, 113 S.Ct. at 2518, 125 L.Ed.2d at 86-87, quoting James B. Beam Distilling Co. v. Georgia (1991), 501 U.S.-, -, 111 S.Ct. 2439, 2445, 115 L.Ed.2d 481, 490. Thus, at best it seems that Chevron remains good law only when the court reserves the question of retroactivity.
The court in Bendix did not reserve the question of retroactivity. Instead the court applied the decision to the parties before it by affirming the dismissal of the plaintiffs cause of action. Bendix, 486 U.S. at 895, 108 S.Ct. at 2222-2223, 100 L.Ed.2d at 905. Therefore, under the rule announced in Harper, we must give retroactive effect to the Bendix decision. Appellant is thus prohibited from using the unconstitutional tolling provision, former R.C. 2305.15, and her claim, filed more than three and one-half years after her accident, is barred by the two-year statute of limitations for personal injury actions. See R.C. 2305.10.
II
I quite agree with the majority that the Ohio Constitution is a “document of independent force” and that we therefore need not always proceed in lock-step fashion with the United States Supreme Court on constitutional matters. And if this case involved individual rights or civil liberties, areas in which the United States Constitution merely sets a floor for our decisions, I might feel inclined to hold that the Ohio Constitution can form the basis for our opinion. But this case deals with the question of whether to give retroactive effect to a case decided by the United States Supreme Court on Commerce Clause grounds. The Commerce Clause does not implicate individual rights and civil liberties; it simply allocates power between the federal government and the states. The court in Bendix ruled that Ohio has no power, under the Commerce Clause, to toll its statute of limitations against out-of-state entities. The Ohio Constitution cannot be used, as the majority does today, to revive this unconstitutional statute; that is, our state Constitution cannot be used to accomplish what the Commerce Clause forbids. In a word, should the Supreme Court grant réview we invite peremptory reversal.
Ill
The United States Supreme Court has held that the retroactivity of federal constitutional decisions is a matter of federal law, and its holding in this regard is *250binding on the states under the Supremacy Clause. We are therefore obligated to apply the federal rules of retroactivity to the case before us, and the rule from Harper requires us to give retroactive effect to the Bendix decision. The majority disregards federal law and holds that Bendix may not be retroactively applied. Because I believe that we are not constitutionally permitted to do so, I respectfully dissent.
Moyer, C.J., concurs in the foregoing dissenting opinion.. The majority actually makes no serious effort to apply this test. The majority’s effort is limited to a three-sentence analysis of prong one and a one-sentence dismissal of the remaining two prongs, concluding that this case and the Chevron case are so factually similar that any discussion of the remainder of the test is unnecessary. It appears from this casual treatment of the test from Chevron that the majority intends for its decision to rest entirely upon the state grounds announced in Part II of its opinion.