dissenting.
The principles embodied in our prior cases dictate a contrary result. I would abide by that authority. Particularly, I see no reason to overrule Smith v. Clackamas County, 252 Or 230, 448 P2d 512 (1969).
The legislature has the power to determine the effective date of legislation such as the statute in this case. Hall v. Northwest Outward Bound School, 280 Or 655, 572 P2d 1007 (1977). Where the legislature does not express its intention, this court has consistently given effect to newly enacted statutes according to a well established principle of construction which can be expressed in two parts: first, substantive statutes will not be applied to determine rights and liabilities in causes of action based upon events which occurred prior to the enactment of the statute, Perkins v. Willamette Industries, 273 Or 566, 542 P2d 473 (1975) (repeal of fellow worker rule); Kempf v. Carpenters and Joiners Union, 229 Or 337, 367 P2d 436 (1961) (in labor dispute, repeal of federal preemptive jurisdictional statute); Cole v. Zidell Explorations, Inc., 275 Or 317, 550 P2d 1194 (1976) (repeal of fellow worker rule); Joseph v. Lowery, 261 Or 545, 495 P2d 273 (1972) (repeal of contributory negligence, enactment of comparative negligence); Wiebe v. Seely, Administrator, 215 Or 331, 335 P2d 379 (1959) (increase in wrongful death recovery limitation); second, procedural or remedial statutes will be applied in actions *492commenced after the effective date of the statute even though the cause of action accrued prior to the effective date, Spicer v. Benefit Ass’n of Ry. Emp., 142 Or 574, 17 P2d 1107, 21 P2d 187 (1933) (attorney’s fees on appeal deemed procedural); Mahana v. Miller, 281 Or 77, 573 P2d 1238 (1978) (repeal of regulatory bar on capacity to sue).
We have recognized that the substantive/procedural distinction is not precise, but is nevertheless useful as a shorthand expression of principles which are consistently followed in our caselaw. We elaborated on the shorthand in Joseph v. Lowery, supra. By use of the term “substantive statute,” we explained, we refer to “a new statute [which] affected legal rights and obligations arising out of past actions.” 261 Or at 549. The reason for the rule is that
“If applied retroactively, the statute could create a duty to pay which did not exist at the time the damage was inflicted.” 261 Or at 549.
We recognized the underlying reason for the principle to be that people should be able to plan their affairs with knowledge of their responsibilities under law:
“Certainly, no one has an accident upon the faith of the then existing law. However, it would come as a shock to someone who has estimated his probable liability arising from a past accident, and who has planned his affairs accordingly, to And that his responsiblity therefor is not to be determined as of the happening of the accident but is also dependent upon what the legislature might subsequently do. Every day it is necessary in the conduct of the affairs of individuals and of businesses to make a closely calculated estimate of the responsibility or lack thereof resulting from an accident or from other unforeseen and unplanned circumstances and to act in reliance on such estimate. We believe there is merit in the prior view of this court, as demonstrated by its decisions, that, in the absence of an indication to the contrary, legislative acts should not be construed in a manner which changes legal rights and responsibilities arising out of transactions which occur prior to the passage of such acts.” 261 Or at 551-552 (Original emphasis.)1
*493We have consistently presumed that the legislature, in enacting new legislation, has acted in accord with with the policy expressed in the cases cited above, unless the legislature has expressed an intention contrary to the rule of construction. We have stated this idea in various ways. In Kempf v. Carpenters and Joiners Union, supra, we said:
“It is a general rule that statutes will be construed to operate prospectively unless an intent to the contrary clearly appears. ” (Emphasis added.) 229 Or at 341.
Similarly, in Smith v. Clackamas County, supra, we said:
“* * * A substantive statute is presumed not to be retroactive, and such a statute will not be applied retroactively unless the language of the statute absolutely requires such application.” (Emphasis added.) 252 Or at 235.
The statute in this case, in repealing the requirement of gross negligence for liability to a guest passenger, is clearly within that class of statutes which, in the words of Joseph v. Lowery, supra, “affects legal rights and obligations arising out of past actions” which, “if applied retroactively, * * * could create a duty to pay which did not exist at the time the damage was inflicted.” Insurance rates have been determined before accidents such as this and drivers have planned their affairs after such accidents in reliance upon the statute which regulated liability prior to enactment of the new statute. The statute falls into no grey area of definitional imprecision; it is clearly a substantive statute as we have always used that term. Therefore, if we are to follow our precedents, the dispositive issue in this case is whether the legislature has “clearly” or “absolutely” expressed an intention that the statute be applied in the judicial determination of legal rights and obligations arising out of past actions.
The statute in this case is not entirely silent as to the scope of its effective date. It is specific about filed claims, but silent as to accrued but non-filed claims:
*494“This Act does not apply to an action or other proceeding commenced before the effective date of this Act.” Or Laws 1979, ch 866, § 8.2
We have hitherto decided at least two other cases in which a substantive statute was not silent as to the scope of its effective date. It is instructive to compare this statutory provision with those. In Hall v. Northwest Outward Bound School, supra, the statute specified an effective date and provided that
“This Act governs all actions tried subsequent to its effective date.” Or Laws 1975, ch 599, § 6.
We upheld the retroactive effect of the statute because it was by its affirmative terms “expressly applicable” to subsequent trials of pre-existing actions. 280 Or at 661. See also Lommasson v. School Dist. No. 1., 201 Or 71, 100-101, 261 P2d 860, 267 P2d 1105 (1954).
The effective date provision considered in Smith v. Clackamas County, supra, in contrast, was phrased in the negative. It was not an affirmative statement of applicability. It specified one situation in which the statute was not to apply. By that negative statement, it did not exclude the possibility that the statute was also inapplicable in other unspecified situations. The statute provided:
“This Act shall not affect any action, suit or proceeding commenced prior to and pending on the effective date of this Act.” Or Laws 1965, ch 500, § 3.
The court inferred legislative intent to be that the statute, being substantive, was not intended to apply to causes of action which accrued prior to the effective date of the statute even though that was not a situation specifically mentioned in the statute. The court reasoned:
“In the absence of some logical reason for a distinction, there is no basis for an inference that the Assembly intended to draw a distinction between actions filed by a certain date and actions accrued but not filed by that date. Counsel have suggested no basis for a distinction and we have *495found none. Accordingly, we believe that the presumption against retroactive legislation should prevail.
“ ‘* * * Retrospective operation is not favored * * *, and a law will not be construed as retroactive unless the act clearly, by express language or necessary implication, indicates that the legislature intended a retroactive application. The rule is the converse of the general principle that statutes are to operate prospectively and is founded on judicial premonition that retroactive laws are characterized by want of notice and lack of knowledge of past conditions and that such laws disturb feelings of security in past transactions * * (Citations omitted.) 2 Sutherland, Statutory Construction § 2201, at 115 (3d ed 1943).” 252 Or at 233-234.
The effective date clause in this case is similar to that in Smith, and different from that in Hall. It, too, is a negative pregnant — it excludes filed claims, but says nothing of other accrued claims. There is no legislative expression, let alone a “clear” or “absolute” expression, of an intention which is inconsistent with the well established general rule that substantive statutes are not applicable to claims accrued prior to the effective date of the statute.
Moreover, there is no reason of policy to be found anywhere in the legislative history which suggests a legislative intention contrary to the general rule of construction consistently relied upon in our cases. The history of Senate Bill 422, recounted in the majority opinion at note 5, tells us that the effective date clause was part of a products liability bill. An act repealing the guest passenger statute which was expressly not applicable to claims “occurring” before the act’s effective date, was passed by the House, but died in Senate committee. The substantive part of the act was then revived in committee by insertion into the products liability bill. Thus an effective date exclusion clause drafted for the products liability became applicable to the guest passenger statute repeal. The history suggests that the applicability of section 8 to the guest passenger statute repeal was more an incidental product of parliamentary maneuvering than a deliberate legislative determination. Certainly, the legislative history gives no cause whatever to infer that the legislature intended to contravene the rules of interpretation this court has consistently applied.
*496As in Smith, there is no “logical reason” or “basis for an inference that the Assembly intended to draw a distinction between actions filed by a certain date and actions accrued but not filed by that date.” Indeed, if the majority is correct, a plaintiff who filed before the effective date need only refile the same claim after the effective date to circumvent the express legislative exclusion of actions commenced before the effective date of the statute. Thus, in reality, the majority opinion would actually defeat the purpose of the exclusion in the effective date clause, whereas application of our traditional rule of law would better fulfill it.
Equally important, the doctrine of stare decisis has value in this situation. The draftsmen of the legislature could reasonably have relied on the precedential effect of our decision in Smith and concluded therefrom that the language of this provision would have the same effect as that in Smith and would not affect pre-existing causes of action. If a legislator asked legislative counsel whether it was necessary to amend the effective date clause in order to exclude accrued claims for relief, counsel, properly relying upon Smith, would correctly have advised against amending the statute. Cf. Brown v. Portland School Dist. #1, 291 Or 77, 628 P2d 1183 (1981) (dissenting opinion of Peterson, J.). Similarly, it is reasonable to infer that drivers and insurers governed their affairs as if Smith were law.
Even if Smith is not law, the majority’s divination of legislative intent is is not persuasive. It states that if the legislature had meant to exclude accrued claims, it would have said so. That argument, however, is two-edged. It more arguable, particularly in light of the existence of Smith as precedent, that if the legislature had intended the new act to apply to accrued claims, it would have said so. I suspect I am guilty of having resorted to that facile argument one way or the other in the past, but it is no more than an easily available makeweight for any interpretation.
It is also interesting to note that the majority correctly eschews reliance upon maxims of statutory construction. It concludes, however, by reasoning that the express exclusion of filed claims implies the non-exclusion of accrued claims. In Latin, that reasoning is expressed as *497inclusio unius est exclusio alterius. The majority does not convert that idea to a non-maxim simply by stating it in an English paragraph instead of a Latin sentence.
There is no reason to overrule Smith except to achieve a result which this court may prefer, but which the legislature gave no evidence of intending. I would adhere to our prior caselaw and construe the statute as we have construed a similar statute in the past. For these reasons I dissent.
Peterson, J., joins in this dissent.The majority opinion incorrectly states that Joseph v. Lowery, 261 Or 545, 495 P2d 273 (1972), eliminated the substantive/procedural distinction embodied in its distinguishing of Spicer v. Benefit Ass’n of Ry. Emp., 142 Or 574, 17 P2d 1107, 21 P2d 187 (1933). That opinion merely observes that the rules for both *493substantive and procedural statutes repeated in Smith and Spicer are rules for determining legislative intent. Joseph v. Lowery clearly reaffirms the rules of construction and the substantive/procedural distinction which inheres in those rules. It certainly does not abandon the distinction.
The majority refers to this provision as a “savings clause.” I have not found the term used in our prior cases and there is no attribution specified for the quotation marks. The phrase does not, in my opinion, accurately describe the provision. The statute merely excludes certain cases from its effective date. It purports to save nothing.