           NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                      File Name: 05a0079n.06
                      Filed: February 1, 2005

                                        No. 03-4634

                     UNITED STATES COURT OF APPEALS
                          FOR THE SIXTH CIRCUIT



SALLIE POLLARD,                                          )
                                                         )     ON APPEAL FROM THE
       Plaintiff-Appellant,                              )     UNITED STATES
                                                         )     DISTRICT COURT FOR
v.                                                       )     THE    NORTHERN
                                                         )     DISTRICT OF OHIO
STATE FARM FIRE & CASUALTY,                              )
NATIONAL UNION FIRE INS. CO., and                        )             OPINION
GENERAL MOTORS CORP.,                                    )

       Defendants-Appellees.



BEFORE: GUY and COLE, Circuit Judges, and TARNOW, District Judge*

       ARTHUR J. TARNOW, District Judge. In this insurance contract case,
plaintiff-appellant Sallie Pollard claims that a commercial general liability insurance
policy issued to her employer, General Motors, should cover her compensatory
damages arising out of an automobile accident that occurred outside the scope of her
employment. The district court granted summary judgment to the defendants based



       *
       The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 03-4634
Pollard v. State Farm, et al.

on a controlling Ohio Supreme Court case, Westfield Insurance Company v. Galatis,
797 N.E.2d 1256 100 (Ohio 2003), which was decided after this case was filed.
Pollard timely filed an appeal in this Court. For the reasons that follow, we AFFIRM
the decision of the district court.

                                         I.
       The facts of this case are undisputed. On February 16, 1997, Appellant Sallie
Pollard was involved in a car accident with Bernard J. Putnam in Warren, Ohio.
Putnam lost control of his vehicle, crossed the highway center-line, and struck
Pollard’s oncoming vehicle head-on.
       Mr. Putnam’s insurance policy with Progressive Insurance Company provided
for bodily injury liability coverage limits of $25,000/person and $50,000/occurrence.
Progressive tendered the maximum payment to Pollard in exchange for the release of
Putnam from further liability. Pollard’s insurance company, State Farm, signed off
on the settlement because Mr. Putnam was uncollectible and judgment proof beyond
his coverage limits. In other words, Mr. Putnam was underinsured.
       Sallie Pollard’s insurance policy with State Farm provided for un/underinsured
motorist (UM/UIM) coverage limits of $50,000/person and $100,000/occurrence.
State Farm paid Pollard $25,000.
       At the time of the accident Pollard was employed by Delphi Packard Electric
Systems, which is a subsidiary of General Motors Corporation. In December of 2000,
Pollard became aware that commercial liability insurance policies maintained by an
employer may provide UM/UIM coverage for an employee, even where the accident
No. 03-4634
Pollard v. State Farm, et al.

occurred outside the scope of her employment. In December of 2001, Pollard became
aware that General Motors maintained a business auto policy with National Union
Fire Insurance Company. GM’s policy with National Union states as follows:
       Throughout this policy the words “you” and “your” refer to the Named Insured
       shown in the Declarations.

The policy lists GM as the named insured and contains an Ohio Uninsured Motorist
Coverage Endorsement form. The relevant policy language states as follows:
       Throughout this policy the words “you” and “your” refer to the Named Insured
       shown in the Declarations.
                                     * * *
       Named Insured
       GENERAL MOTORS CORPORATION
                                     * * *
       B.   WHO IS INSURED

       1.      You
       2.      If you are an individual, any “family member”
       3.      Any one else “occupying” a covered “auto” or a temporary substitute for
               a covered auto.” The covered “auto” must be out of service because of
               its breakdown, repair, servicing, loss or destruction.
       4.      Anyone for damages he or she is entitled to recover because of “bodily
               injury” sustained by another insured.

       There is no dispute that the endorsement form in GM’s policy with National
Union is identical to the endorsement form that the Ohio Supreme Court considered
in Scott-Pontzer v. Liberty Mutual Fire Insurance Company, 710 N.E.2d 1116
(1999). In Scott-Pontzer, the Ohio Supreme Court held that a commercial insurance
policy which contained the foregoing language covered employees for compensatory
No. 03-4634
Pollard v. State Farm, et al.

damages arising out of accidents occurring outside the scope of their employment. Id.


       On May 10, 2002, Pollard sued National Union Fire Insurance Company in the
Court of Common Pleas of Trumbull County, Ohio. Pollard’s complaint sought a
declaratory judgment that the commercial auto insurance policy issued to her
employer, GM, provides UM/UIM coverage for her compensatory damages arising
out of the February 16, 1997 accident with Putnam. The case was removed to the U.S.
District Court for the Northern District of Ohio. The district court granted General
Motors leave to intervene as a defendant. The parties filed cross-motions for
summary judgment on August 5, 2003.
       Three months after the parties filed their cross-motions for summary judgment,
the Ohio Supreme Court issued its decision in Westfield Insurance Company v.
Galatis, 797 N.E.2d 1256 (Ohio 2003). In Galatis, the Ohio Supreme Court severely
and explicitly limited its prior decision in Scott-Pontzer v. Liberty Mutual Fire
Insurance Company, 710 N.E.2d 1116 (Ohio 1999), and held that absent express
policy language to the contrary, the Ohio Uninsured Motorist Coverage Endorsement
identical to the one contained in the General Motors/National Union policy covers a
loss sustained by an employee only if the loss occurred within the scope of her
employment:


       Because the employee qualifies as “you” while operating a motor vehicle on
       behalf of the corporation, he is entitled to uninsured motorist coverage.
       Accordingly, we follow Scott-Pontzer to the extent that it held that an employee
No. 03-4634
Pollard v. State Farm, et al.

       in the scope of employment qualifies as “you” as used in CA 2133, and thus,
       is entitled to uninsured motorist coverage.

       We cannot, however, extend this coverage to an employee outside the scope of
       employment...The Scott-Pontzer court properly focused on the term “you,” but
       in so doing confused the employee’s status as an individual with the
       employee’s status as an agent of the corporation...Scott-Pontzer dramatically
       departed from King’s sound rationale that an employee qualifies as “you” under
       a policy issued to a corporation only when within the scope of employment.
       In Scott-Pontzer, this court reasoned that “naming the corporation as the
       insured is meaningless unless the coverage extends to some person or
       persons–including to the corporation’s employees.” However, this statement
       does not support the untenable extension of insured status to employees outside
       the scope of employment.

Galatis, 797 N.E.2d at 1264-65 (citing King v. Nationwide, 519 N.E.2d 1380 (Ohio
1988)) (emphasis in original).
       Citing Galatis, the district court granted the defendants’ motion for
summary judgment on November 17, 2003. On December 16, 2003, Pollard filed
this appeal. On appeal, Pollard makes three arguments: (1) Galatis may not be
applied retroactively to bar her claim for benefits; (2) the district court deprived her
of due process by denying her an opportunity to be heard on this issue; and (3)
Galatis improperly deprives her of a right to a remedy.


                                          II.
       This Court reviews a district court’s grant of summary judgment de novo.
Middleton v. Reynolds Metals Co., 963 F.2d 881, 882 (6th Cir. 1992). We also
No. 03-4634
Pollard v. State Farm, et al.

“review de novo a district court’s determination of state law.” Salve Regina
College v. Russell, 499 U.S. 225, 231 (1991).
                          A. Retroactive Application of Galatis
       On appeal, Pollard makes three arguments concerning retroactivity: (1)
Galatis cannot be applied retroactively because her claim falls under the “vested
rights” exception to Ohio’s retroactivity doctrine; (2) the Ohio Supreme Court did
not intend that Galatis apply retroactively; and (3) U.S. Supreme Court law alters
the probable course of Ohio’s retroactivity doctrine, such that Galatis should not
apply retroactively in this case.
       In Peerless Electric Company v. Bowers, 129 N.E.2d 467 (Ohio 1955) the
Ohio Supreme Court set forth the law governing retrospective application of an
Ohio Supreme Court decision:
       The general rule is that a decision of a court of supreme jurisdiction
       overruling a former decision is retrospective in its operation, and the
       effect is not that the former was bad law, but that it never was the law.
       The one general exception to this rule is where contractual rights have
       arisen or vested rights have been acquired under the prior decision.

Peerless, 129 N.E.2d at 468.

       The Peerless doctrine is strengthened by a presumption of retroactivity. “In
the absence of a specific provision in a decision declaring its application to be
prospective only...the decision shall be applied retrospectively as well.” State ex.
rel. Bosch v. Indus. Comm. 438 N.E.2d 415, 418 (Ohio 1982).

                                           1.
No. 03-4634
Pollard v. State Farm, et al.

       In this case, Pollard argues that her claim falls within the vested rights
exception to the Peerless rule because her right to benefits under GM’s insurance
policy vested under the Ohio Supreme Court’s decision in Scott-Pontzer.
       Pollard’s claim for benefits vested, if at all, in February of 1997, more than 2
years prior to the Ohio Supreme Court’s decision in Scott-Pontzer. Thus, Pollard
argues that the Scott-Pontzer decision should apply retroactively but that the
Galatis decision should not. Pollard does not explain this contradiction.
       Additionally, in order to demonstrate that she possessed vested rights under
Scott-Pontzer, Pollard must prove that she detrimentally relied on that decision. In
Galatis, the Court concluded the application of Galatis would not unfairly interfere
with the rights of persons with pending claims to UM/UIM coverage:
       No reliance interest will be jeopardized by limiting Scott-Pontzer...the
       overwhelming majority of Scott-Pontzer cases are resurrected claims
       from the years prior to the Scott-Pontzer decision. Because no one was
       aware of this form of uninsured motorist coverage before it was created
       by that decision, no one could have relied upon it. Finally, the potential
       that anyone would have reduced his personal uninsured motorist
       coverage based upon the belief that his employer’s insurer, or his family
       member’s employer’s insurer, would provide this coverage is practically
       nonexistent. Thus, there is no individual or societal reliance upon Scott-
       Pontzer outside of the courtroom.
Galatis, 797 N.E.2d at 1270-71. In this case, Pollard’s complaint and affidavit state
that she was not aware of any UM/UIM benefits available through her employer’s
insurance policy until December of 2001. Therefore, she did not rely on the UM/UIM
provision in the commercial policy held by GM.
No. 03-4634
Pollard v. State Farm, et al.

       Additionally, Ohio cases applying Galatis recognize that an employee cannot
rely upon an insurance contract entered into by her employer and the insurer where
she was not aware that she may have been a third-party beneficiary to the insurance
contract. For example, in Parks v. Rice, 809 N.E.2d 1192 (Ohio App. 2004), the Ohio
Court of Appeals held that Galatis applied retroactively to bar recovery under an
employer’s UM/UIM coverage because the injured employee was driving home at the
time of his accident and was therefore not acting within the scope of his employment.
The employee argued that his rights had arisen or vested under Scott-Pontzer. The
court rejected that argument:
               The reason why we do not retrospectively apply decisions in a
               case where contractual rights have arisen or vested rights have
               been acquired under the prior decision is because courts generally
               will not disturb the operation of contracts formed in contemplation
               of and reliance upon law that is later overturned by judicial
               decision. This is related to the rule that the statutory law in effect
               at the time of entering into a contract for automobile liability
               insurance controls the rights and duties of the contracting parties.
               The contract in question here was not between the [employee] and
               this insurer, but between the employer and insurer. It could not
               have been the basis for any reliance on the part of the [employee].

       More importantly as to the [employee’s] argument, we are bound to reject it.
       Immediately after the Ohio Supreme Court decided Galatis, it resolved
       numerous other Scott-Pontzer-related appeals that were pending before it. In
       one of those cases, German v. Therm-O-Disc, Inc., the plaintiff made this same
       argument in a motion for reconsideration. The Ohio Supreme Court rejected
       this argument and continued to apply Galatis retroactively to German and the
       other cases it resolved.
No. 03-4634
Pollard v. State Farm, et al.

Parks, 809 N.E.2d at 1271. Under the interpretation of Galatis set forth in Parks, the
appellant is not shielded from the application of Galatis by any vested rights in her
claim for UM/UIM benefits through her employer.

                                          2.
       In support of her claim that the Ohio Supreme Court did not intend that Galatis
apply retroactively, Pollard cites one case, Fish v. Ohio Casualty Insurance Company,
802 N.E.2d 149 (Ohio 2004), in which Justice Stratton issued a concurring opinion
expressing her view that Galatis applies to all pending cases where a “Scott-Pontzer”
claim has been raised. One other justice (O’Donnell) concurred in Justice Stratton’s
opinion. Pollard argues that because the remaining five justices of the Ohio Supreme
Court did not concur in Justice Stratton’s opinion, it may be presumed that they all are
of the view that the Peerless doctrine applies to determine the retroactive effect of
Galatis. We reject Pollard’s argument.
       First, the fact that the five justices other than Justices Stratton and O’Donnell
did not join the concurrence in Fish does not indicate the court’s intent to bar
retrospective application in Galatis. The inference that a majority of the Ohio
Supreme Court would disagree with the concurrence is inconsistent with the Ohio
Supreme Court’s denial of a motion for reconsideration in the Galatis case which
raised the retroactivity issue. Further, the Ohio Supreme Court has applied Galatis
retroactively to at least 90 pending cases, and we have recently recognized that
Galatis properly applies to cases pending at the time the Galatis decision issued. See
In re Uninsured & Underinsured Motorist Cases, 798 N.E.2d 1077 (Ohio 2003)
No. 03-4634
Pollard v. State Farm, et al.

(consolidating approximately 90 pre-Galatis cases and applying Galatis to all of
them); Posante v. Cambridge Mut. Fire Ins. Co., 383 F.3d 407, 408 (6th Cir. 2004).


       Finally, under the rule set forth in Ex Rel Bosch, supra, decisions of the Ohio
Supreme Court are presumptively retrospective in their effect unless the Supreme
Court explicitly states otherwise. The Galatis opinion does not state that it is to have
prospective effect only. Therefore, there is no basis upon which to dispute its
retroactivity.
                                          3.
       Pollard argues that “U.S. Supreme Court opinions must be taken into account
in an effort to ascertain the probable course of future developments in the Ohio
doctrine of retroactivity.” Thus, Pollard argues that pursuant to Chevron Oil Company
v. Huson, 404 U.S. 97 (1971), Galatis cannot be given retrospective effect because it
“announced a new rule of law...[o]verruling the clear past precedent of Scott-Pontzer
upon which many litigants relied.”
       Pollard’s argument is unpersuasive to the extent that it depends upon Pollard’s
reliance interest in Scott-Pontzer. Pollard’s claim to UM/UIM benefits vested, if at
all, at least 2 years prior to Scott-Pontzer. Therefore, Pollard’s claim would not be
entitled to Chevron protection.
       More importantly, the U.S. Supreme Court has unambiguously overruled
Chevron. In Harper v. Virginia Department of Tax, 509 U.S. 86, 97-98 (1993), the
Court held:
No. 03-4634
Pollard v. State Farm, et al.


       Although James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991)
       did not produce a uniform opinion for the Court, a majority of Justices
       agreed that a rule of federal law, once announced and applied to the
       parties to the controversy, must be given full retroactive effect by all
       courts adjudicating federal law. In announcing the judgment of the
       Court, Justice SOUTER laid down a rule for determining the retroactive
       effect of a civil decision: After the case announcing any rule of federal
       law has “appl[ied] that rule with respect to the litigants” before the court,
       no court may “refuse to apply [that] rule...retroactively.” Justice
       SOUTER’s view of retroactivity superseded “any claim based on a
       Chevron Oil analysis.

Harper, 509 U.S. at 96-98. Pollard relies on the Court’s division in the Jim Beam case
for the premise that Chevron is still good law. Under Harper, Pollard’s argument
fails. Galatis has been given retroactive effect under Ohio and federal law.

                                B. Pollard’s Due Process Claim
       Pollard claims that she was denied due process because the district court did not
provide her with an opportunity to be heard on the application of Galatis in this case.
Whether or not the district court should have allowed further argument is moot as we
have concluded Pollard does not possess a property interest in her claim for benefits
through her employer.
       A district court may grant summary judgment on grounds not presented in a
motion for summary judgment without due process implications. In Hines v. Jay
Manufacturing Company, 850 F.2d 1146 (6th Cir. 1988), this Court stated:
       Where it is clear that there is no genuine issue of material fact, a court
       may properly grant summary judgment on a ground other than that
       assigned in the motion. Additionally, “[a]n appellate court can find an
No. 03-4634
Pollard v. State Farm, et al.

       alternative basis for concluding that a party is entitled to summary
       judgment and ignore any erroneous basis relied upon by the district
       court, provided it proceeds carefully so the opposing party is not denied
       an opportunity to respond to the new theory.

Hines, 850 F.2d at 1150 (internal citations omitted).
       At this point in the litigation, Pollard has had an opportunity to respond to all
of the theories at issue. Pollard argued in the district court and in her briefs to this
Court that her claim accrued under Scott-Pontzer. The retroactivity question has now
been fully briefed in this Court.** Therefore, Pollard has not been denied an adequate
opportunity to be heard.

                            C. Pollard’s “Right to a Remedy”
       Pollard argues that at the time she filed her complaint, she enjoyed a civil right
under the Ohio Constitution to the UM/UIM coverage under her employer’s
automobile policy. Section 16, Article I of the Ohio Constitution states:
       All courts shall be open, and every person, for an injury done him in his
       land, goods, person, or reputation, shall have remedy by due course of
       law, and shall have justice administered without denial or delay.

OHIO CONST. art. I, § 16. As discussed above, Pollard did not have a vested property
right in her claim for UM/UIM benefits at the time she filed her lawsuit.
Furthermore, the district court afforded Pollard a full opportunity to be heard.
Pollard essentially argues that she has the right to have the court ignore Galatis and
apply Scott-Pontzer. We reject her argument.

       **
         Pollard’s counsel notified the Court the morning of oral argument that Pollard waived
oral argument.
No. 03-4634
Pollard v. State Farm, et al.

                                        III.

       For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment to defendants.
