             OPINIONS OF THE SUPREME COURT OF OHIO

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Zoppo et al., Appellants, v. Homestead Insurance Company,
Appellee.
[Cite as Zoppo v. Homestead Ins. Co. (1994),      Ohio St.3d
.]
Insurance -- Insurer fails to exercise good faith in the
     processing of a claim of its insured, when -- courts --
     Trial procedure -- R.C. 2315.21(C)(2) violates the right
     to trial by jury under Section 5, Article I of the Ohio
     Constitution.
1.   An insurer fails to exercise good faith in the processing
     of a claim of its insured where its refusal to pay the
     claim is not predicated upon circumstances that furnish
     reasonable justification therefor. (Hart v. Republic Mut.
     Ins. Co. [1949], 152 Ohio St. 185, 39 O.O. 465, 87 N.E.2d
     347, and Staff Builders Inc. v. Armstrong [1988], 37 Ohio
     St.3d 298, 525 N.E.2d 783, approved and followed; Slater
     v. Motorists Mut. Ins. Co. [1962], 174 Ohio St. 148, 21
     O.O.2d 420, 187 N.E.2d 45, paragraph two of the syllabus,
     overruled; Motorists Mut. Ins. Co. v. Said [1992], 63 Ohio
     St.3d 690, 590 N.E.2d 1228, overruled to the extent
     inconsistent herewith.)
2.   R.C. 2315.21(C)(2) violates the right to trial by jury
     under Section 5, Article I of the Ohio Constitution.
     (No. 93-1616 -- Submitted November 1, 1994 -- Decided
December 30, 1994.)
     Appeal from the Court of Appeals for Cuyahoga County, No.
62926.
     In the early morning hours of October 13, 1988, Windy's
Bar Restaurant, an establishment owned and insured by Donald
Zoppo, was destroyed by fire. The fire was incendiary in
nature and was started with kerosene, a liquid accelerant. At
the time of the fire, Zoppo had an insurance contract in effect
issued by Homestead Insurance Company. The coverage on the
Homestead policy was $50,000 for the building and $65,000 for
its contents.
     Following its investigation, Homestead denied coverage to
Zoppo. Homestead concluded that there was sufficient evidence
that Zoppo had participated in setting the fire. Further,
Homestead found that Zoppo had made material misrepresentations
regarding his whereabouts on the night of the fire and
regarding whether he had additional insurance.
     Zoppo then brought suit against Homestead for breach of
the insurance contract and for the tort of bad faith refusal to
settle. Zoppo sought punitive damages in connection with the
bad faith claim. The case went to trial before a jury.
     After Zoppo's case in chief, Homestead moved for a
directed verdict on the bad faith and punitive damages claims.
The court denied these motions. The court instructed the jury
on the relevant law. The court's instruction on bad faith was
based upon the reasonable justification standard as enunciated
in case law prior to Motorists Mut. Ins. Co. v. Said (1992), 63
Ohio St.3d 690, 590 N.E.2d 1228.
     The jury returned verdicts for Zoppo in the sum of $80,000
in compensatory damages on the breach of contract claim and
$187,800 on the bad faith claim ($122,800 in compensatory
damages plus $65,000 in attorney fees). The jury also found
that Zoppo was entitled to punitive damages. Pursuant to R.C.
2315.21(C)(2), the trial court set the amount of punitive
damages at $50,000.
     Homestead appealed and Zoppo cross-appealed. During the
pendency of these appeals, this court decided Said, supra,
which did away with the reasonable justification standard and
made intent an element of bad faith.
     The court of appeals affirmed the breach of contract claim
but reversed the trial court's judgment on the issue of bad
faith. The court of appeals held that there was no evidence of
wrongful intent on the part of Homestead in denying Zoppo's
claim. Hence, it found that the trial court erred in denying
Homestead's motion for a directed verdict on the bad faith
claim. The court of appeals also vacated the award of punitive
damages and attorney fees.
     The cause is now before this court pursuant to the
allowance of a motion to certify the record.

     Robert P. Rutter, for appellants.
     Gallagher, Sharp, Fulton & Norman, Alan M. Petrov, D.
Cheryl Atwell and Timothy J. Fitzgerald, for appellee.
     Clark, Perdue, Roberts & Scott Co., L.P.A., Edward L.
Clark and Dale K. Perdue; Nurenberg, Plevin, Heller & McCarthy
and Andrew P. Krembs, urging reversal for amicus curiae, Ohio
Academy of Trial Lawyers.
     Murray & Murray Co., L.P.A., Dennis E. Murray, Sr., and
Kirk J. Delli Bovi, urging reversal for amicus curiae, Board of
Erie County Commissioners.
     Vorys, Sater, Seymour & Pease, William D. Kloss, Robert N.
Webner and Julie A. Schafer, urging affirmance for amicus
curiae, Ohio Insurance Institute.
     Young & Alexander Co., L.P.A., Mark R. Chilson and Paul G.
Hallinan; Meyers, Hentemann, Schneider & Rea Co., L.P.A., and
Henry A. Hentemann, urging affirmance for amicus curiae, State
Farm Insurance Companies.
     Weston, Hurd, Fallon, Paisley & Howley, Timothy D.
Johnson, William H. Baughman, Jr., Robert D. Rosewater and
Gregory E. O'Brien, urging affirmance for amicus curiae, Ohio
Association of Civil Trial Attorneys.

     Francis E. Sweeney, Sr., J.    The issues before this court
are: (1) whether actual intent by the insurer to refuse to
fulfill its contract with the insured is a requisite element of
the tort of bad faith as held in Said; and (2) whether R.C.
2315.21(C)(2), requiring the court to set the amount of
punitive damages even in jury trials, is violative of the right
to trial by jury. For the reasons that follow, we overrule
Said, and hold that actual intent is not an element of the tort
of bad faith. We further hold that R.C. 2315.21(C)(2) violates
the right to trial by jury. Accordingly, we reverse the
judgment of the court of appeals.
                                I
                            Bad Faith
     This court must initially determine the proper standard
used to decide whether an insurer has breached its duty to its
insured to act in good faith. In deciding this issue, it is
necessary to revisit our decision in Motorists Mut. Ins. Co. v.
Said, supra, 63 Ohio St.3d 690, 590 N.E.2d 1228.
     In Said, we held that:
     "A cause of action arises for the tort of bad faith when
an insurer breaches its duty of good faith by intentionally
refusing to satisfy an insured's claim where there is either
(1) no lawful basis for the refusal coupled with actual
knowledge of that fact or (2) an intentional failure to
determine whether there was any lawful basis for such refusal.
Intent that caused the failure may be inferred and imputed to
the insurer when there is a reckless indifference to facts or
proof reasonably available to it in considering the claim."
(Emphasis added.) Id. at paragraph three of the syllabus.
     Rather than clarify the standard of proof required in the
area of bad faith litigation as the Said decision set out to
do, this court has caused greater confusion by erroneously
making intent an element of the tort of bad faith.
     Until Said, the element of intent had been notably absent
from this court's definition of when an insurer acts in bad
faith. In fact, with the exception of Said and the
four-to-three decision of Slater v. Motorists Mut. Ins. Co.
(1962), 174 Ohio St. 148, 21 O.O.2d 420, 187 N.E.2d 45, over
the past forty-five years this court has consistently applied
the "reasonable justification" standard to bad faith cases.
According to this standard, first announced in 1949 in the case
of Hart v. Republic Mut. Ins. Co. (1949), 152 Ohio St. 185, 39
O.O. 465, 87 N.E.2d 347, and reaffirmed in Hoskins v. Aetna
Life Ins. Co. (1983), 6 Ohio St.3d 272, 6 OBR 337, 452 N.E.2d
1315, and Staff Builders, Inc. v. Armstrong (1988), 37 Ohio
St.3d 298, 525 N.E.2d 783, "an insurer fails to exercise good
faith in the processing of a claim of its insured where its
refusal to pay the claim is not predicated upon circumstances
that furnish reasonable justification therefor." Id. at 303,
525 N.E.2d at 788. Intent is not and has never been an element
of the reasonable justification standard. Hence, in deciding
Said, supra, and in relying upon the erroneous Slater decision,
this court departed from forty-five years of precedent. By
expressly overruling Said and Slater, we will be following the
logical progression of case law that has developed over the
years.
     We reject appellee's contention that under the doctrine of
stare decisis, we must adhere to our decision in Said. The
Said decision was an aberration that failed to follow clearly
established precedent. As stated in Helvering v. Hallock
(1940), 309 U.S. 106, 119, 60 S.Ct. 444, 451, 84 L.Ed. 604,
612: "[S]tare decisis is a principle of policy and not a
mechanical formula of adherence to the latest decision, however
recent and questionable, when such adherence involves collision
with a prior doctrine more embracing in its scope,
intrinsically sounder, and verified by experience." In this
case, stare decisis dictates that we correct our previous
mistakes and reinstate the reasonable justification standard.
     Our review of the record indicates the trial court
correctly instructed the jury on the law of bad faith using the
reasonable justification standard. There was ample evidence to
support the jury's finding that Homestead failed to conduct an
adequate investigation and was not reasonably justified in
denying Zoppo's claim.
     From the outset, Homestead's inquiry focused primarily on
Zoppo, who claimed that he was in Pennsylvania hunting at the
time of the fire. Homestead's investigators did not seriously
explore evidence that other individuals, who were previously
ousted from the bar by Zoppo, had threatened to burn the bar
down. In fact, there was a previous attempt made to set the
bar on fire. Two of the ousted men bragged in public that they
were responsible for the attempted fire and one said he would
be back "to finish the job." Following the actual fire, which
occurred only three weeks after the attempted arson, one of the
ousted men told a group of bar patrons that he had set the fire.
     Despite these leads, and despite the fact that there
appeared to have been a robbery and break-in (machines were
broken into and one of the windows was broken), there was
evidence at trial that the Homestead investigators failed to
locate certain key suspects, verify alibis, follow up with
witnesses or go to Pennsylvania to determine Zoppo's
whereabouts on the morning of the fire. In fact, evidence was
presented that when interviewing some of the alleged
perpetrators, the investigators did little more than ask such
cursory questions such as whether they were responsible for the
fire. When they answered negatively, their questioning ceased.
     The investigators instead focused on the inconsistencies
in Zoppo's statements concerning the sequence of events the
morning of the fire and on the statement of a bar patron, Dave
Pogue. Pogue initially corroborated the theory that the ousted
men were responsible for the fire, but he later implicated
Zoppo. However, there was evidence that he was paid for this
later statement.
     Part of Homestead's denial of the claim was based upon its
belief that Zoppo had a motive for destroying his building,
namely, financial gain. Homestead argued that the bar was
overinsured and that it was losing money. However, there was
evidence to the contrary. Although Zoppo had purchased the bar
six months prior to the fire for $10,000 and had insured it for
$50,000, Homestead, in its initial underwriting report, had
stated that the building had a market value of $95,798.
Furthermore, Zoppo had no debts and had actually made
improvements to the bar prior to the fire. Moreover, before
the denial of the claim, Zoppo attempted to prevent demolition
so that he could rebuild the bar.
     Finally, Zoppo's expert, a claims consultant, testified
that the Homestead investigation was inadequate and that
Homestead was not justified in denying the claim.
     Hence, based on the foregoing, we reinstate the trial
court's finding of bad faith.
                               II
                            Damages
     The next issue to be addressed is whether R.C.
2315.21(C)(2) violates the right to trial by jury. R.C.
2315.21(C)(2) provides:
     "In a tort action, whether the trier of fact is a jury or
the court, if the trier of fact determines that any defendant
is liable for punitive or exemplary damages, the amount of
those damages shall be determined by the court."
     The right to a trial by jury is a fundamental
constitutional right which derives from the Magna Carta.
Cleveland Ry. Co. v. Halliday (1933), 127 Ohio St. 278, 284,
188 N.E. 1, 3. The right is guaranteed by Section 5, Article I
of the Ohio Constitution. Although the constitutional right to
a jury trial is not guaranteed in all cases, the right extends
to those causes of action where the right existed at common
law. Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 421, 633
N.E.2d 504, 510; Belding v. State ex rel. Heifner (1929), 121
Ohio St. 393, 169 N.E. 301, paragraph one of the syllabus.
     Thus, in analyzing the validity of R.C. 2315.21(C)(2), we
must first determine whether there existed a common-law right
for a jury to assess the amount of punitive damages.
     The English courts first recognized punitive damages in
Wilkes v. Woods (1763), 98 Eng.Rep. 489. Thereafter, as early
as 1791, American juries began awarding punitive damages and
assessing their amount. Corvell v. Colbaugh (1791), 1 N.J.L.
77. In 1859, the common-law right to have juries award
punitive damages was regarded as "settled" in Ohio. Roberts v.
Mason (1859), 10 Ohio St. 223, 225. In Roberts, this court
emphasized the importance of the jury's role in determining
punitive damages when it stated: "[T]welve intelligent and
impartial men, acting under oath, and subject, in a proper
case, to the control of the court, are not likely to do any
great wrong; and it seems to us that the power which this rule
confers upon a jury, may, in practice, operate as a salutary
restraint upon the evil passions of bad men." Id.
     Prior to the 1987 enactment of R.C. 2315.21(C)(2), 142
Ohio Laws, Part I, 1661, 1691, juries in this state had the
integral role of determining not only when punitive damages
were justified but also of assessing the amount of such
damages. Clearly, the assessment of punitive damages by the
jury stems from the common law and is encompassed within the
right to trial by jury. However, the legislature, by enacting
R.C. 2315.21(C)(2) and by permitting only the court to
determine the amount of punitive damages, has in effect
abrogated the common-law right of the jury to assess the amount
of punitive damages.
     It is well settled that the right to trial by jury
"'cannot be invaded or violated by either legislative act or
judicial order or decree.'" Sorrell v. Thevenir, supra, 69
Ohio St.3d at 421, 633 N.E.2d at 510, quoting Gibbs v. Girard
(1913), 88 Ohio St. 34, 102 N.E. 299, paragraph two of the
syllabus. Since R.C. 2315.21(C)(2) impairs the traditional
function of the jury in determining the appropriate amount of
damages, we hold that R.C. 2315.21(C)(2) violates the right to
trial by jury under Section 5, Article I of the Ohio
Constitution.
     Finally, in so ruling, we considered but were unpersuaded
by appellee's reliance on Digital & Analog Design Corp. v. N.
Supply Co. (1992), 63 Ohio St.3d 657, 590 N.E.2d 737. In
Digital, this court held that a litigant does not have a right
to trial by jury to determine the amount of attorney fees. The
discussion in Digital pertaining to the validity of R.C.
2315.21(C) is merely dicta since in Digital, the assessment of
punitive damages was not at issue. However, we do reject the
reasoning espoused in Digital which treats the right to trial
by jury in cases assessing attorney fees the same as that of
punitive damages. Id. at 662-663, 590 N.E.2d at 742-743. We
believe the right to have a jury assess punitive damages
differs from the jury's right to assess attorney fees. With
punitive damages, the right stems from common law; however, no
such right existed at common law for attorney fees.
     We must next determine whether there were sufficient facts
presented for the jury to consider an award of punitive
damages. In Staff Builders, Inc. v. Armstrong (1988), 37 Ohio
St.3d 298, 525 N.E.2d 783, paragraph two of the syllabus, we
stated that: "Punitive damages may be recovered against an
insurer that breaches its duty of good faith in refusing to pay
a claim of its insured upon proof of actual malice, fraud or
insult on the part of the insurer." In this case, since
Homestead did not act fraudulently in denying Zoppo's claim,
the question becomes whether Homestead acted with actual
malice. Actual malice is defined as "(1) that state of mind
under which a person's conduct is characterized by hatred, ill
will or a spirit of revenge, or (2) a conscious disregard for
the rights and safety of other persons that has a great
probability of causing substantial harm." (Emphasis sic.)
Preston v. Murty (1987), 32 Ohio St.3d 334, 512 N.E.2d 1174,
syllabus.
     There is no evidence here of hatred, ill will or a spirit
of revenge. Thus, the trial court had the obligation to
determine that there was sufficient evidence that Homestead
consciously disregarded Zoppo's rights. Id. The record
reveals a one-sided inquiry by Homestead investigators as to
who was at fault. They did not adequately question suspects or
follow up on leads. Homestead breached its affirmative duty to
conduct an adequate investigation. The award of punitive
damages was justified.
     Finally, regarding the issue of compensatory damages and
attorney fees, we hold that an insurer who acts in bad faith is
liable for those compensatory damages flowing from the bad
faith conduct of the insurer and caused by the insurer's breach
of contract.
     However, contrary to appellants' position, an insured is
not automatically entitled to interest or attorney fees. An
insured who seeks prejudgment interest must follow the specific
statutory procedures set forth in R.C. 1343.03. Attorney fees
may be awarded as an element of compensatory damages where the
jury finds that punitive damages are warranted. Columbus
Finance, Inc. v. Howard (1975), 42 Ohio St.2d 178, 183, 71
O.O.2d 174, 177, 327 N.E.2d 654, 658.
      For the following reasons, we reverse the judgment of the
court of appeals on the issues of bad faith and the
constitutionality of R.C. 2315.21(C)(2) and reinstate the
jury's finding of punitive damages and attorney fees. We
remand this cause to the trial court for a hearing for a jury
to determine the amount of punitive damages.
                                     Judgment reversed
                                     and cause remanded.
      Douglas and Resnick, JJ., concur.
      A.W. Sweeney, J., concurs in the syllabus and judgment
only.
      Pfeifer, J., concurs in part and dissents in part.
      Moyer, C.J., and Wright, J., dissent.
Zoppo v. Homestead Ins. Co.
      Pfeifer, J., concurring in part and dissenting in part. I
concur with the majority's syllabus paragraphs and the holding
in Part I of its opinion. Because this case does not merit the
awarding of punitive damages, however, I dissent from the
result reached in Part II of the majority's opinion.
      The majority concludes that Homestead "consciously
disregarded" Zoppo's right to collect for his loss. I
disagree. The record indicates that Homestead's investigation
was less than thorough, but does not reveal any conscious
conduct by Homestead to deprive Zoppo of his insurance
benefits. The trial court should not have submitted the issue
of punitive damages to the jury.
      Wright, J., dissenting.    I respectfully dissent to the
majority opinion. With respect to Part I, I would continue to
apply the test for bad faith as articulated in Motorists Mut.
Ins. Co. v. Said (1992), 63 Ohio St.3d 690, 590 N.E.2d 1228.
See, also, Hoskins v. Aetna Life Ins. Co. (1983), 6 Ohio St.3d
272, 6 OBR 337, 452 N.E.2d 1315.
      I also disagree with the majority's unhappy determination
in Part II that R.C. 2315.21(C)(2) is unconstitutional. Though
the majority seems determined to declare an important piece of
tort reform legislation unconstitutional, I believe that
accepted and traditional jurisprudence requires that we reach
the opposite result. The analysis used in this matter and
other recent cases in which the majority has thwarted the
efforts of the General Assembly to accomplish tort reforms
bring to mind a marvelous Yiddish proverb: "az di ershte shure
iz krum toyg der gantser briv oyf kapores, 'If the first line
is crooked the whole letter is good for nothing,' or 'Ill
begun, all undone.'"1
      The right to a trial by jury under Section 5, Article I of
the Ohio Constitution applies only to those causes of action in
which an individual had a right to a jury trial at the time the
1802 Ohio Constitution was adopted. Willyard v. Hamilton
(1836), 7 Ohio 111, 115-116; Belding v. State ex re. Heifner
(1929), 121 Ohio St. 393, 169 N.E. 301. At the time the Ohio
Constitution was adopted, plaintiffs had a right to a jury
trial for causes of action involving tort. See Kneisly v.
Lattimer-Stevens Co. (1988), 40 Ohio St.3d 354, 533 N.E.2d
743. As such, under Section 5, Article 1, a party has a right
to a jury trial in a tort action.
     However, appropriate analysis in this case cannot, and
should not, end with the broad conclusion that an individual
has a jury-trial right with respect to tort actions. This case
presents a much narrower question: whether a plaintiff has a
right to have a jury decide the amount of a punitive damages
award. That is the issue and the majority simply fails to come
to grips with it.
     A right to a jury trial attaches only to those elements of
a trial that are fundamental and essential to the jury system.
Tull v. United States (1987), 481 U.S. 412, 426, 107 S.Ct.
1831, 1840, 95 L.Ed.2d 365, 378; Colgrove v. Battin (1973), 413
U.S. 149, 93 S.Ct. 2448, 37 L.Ed.2d 522.2 Therefore, we must
consider whether providing a jury with the authority to
determine the amount of punitive damages is essential to the
jury system. As the United States Supreme Court stated in
Colgrove:
     "'*** Only those incidents which are regarded as
fundamental, as inherent in and of the essence of the system of
trial by jury, are placed beyond the reach of the legislature.
***'" Id. at 156, 93 S.Ct. at 2452, 37 L.Ed.2d at 528, at fn.
11 (quoting Scott, Trial by Jury and the Reform of Civil
Procedure [1918], 31 Harv. L. Rev. 669, 671).
     It is axiomatic that the purpose of a tort action is to
fully compensate the plaintiff. See Bailey v. Allberry (1993),
88 Ohio App.3d 432, 624 N.E.2d 279 and Miller v. Irvin (1988),
49 Ohio App.3d 96, 550 N.E.2d 501. Given the purpose of a tort
action, the fundamental role of a jury is to decide questions
of liability and the extent of compensation. For this reason,
a plaintiff has a right to have a jury determine liability. I
can accept the principle that the compensatory nature of a tort
action also extends to provide the plaintiff with a right to
have the jury determine the amount of actual damages. See
Fantozzi v. Sandusky Cement Prod. Co. (1992), 64 Ohio St.3d
601, 612, 597 N.E.2d 474, 482 (actual damages compensate
plaintiff for his injury). This conclusion is supported by the
proposition that the determination of actual damages relies
solely on findings of fact, something for which the jury is
uniquely suited. See Shamblin's Ready Mix, Inc. v. Eaton Corp.
(C.A.4 1989), 873 F.2d 736, 741.
     However, the central issue in this case is whether a
plaintiff has a right to a jury determination of the amount of
punitive damages in a tort action. A review of the appropriate
case law leads to the inescapable conclusion that a plaintiff
does not have such a right.3
     The purpose of punitive damages is not to compensate the
plaintiff, but rather to punish the defendant. "The policy for
awarding punitive damages in Ohio '*** has been recognized ***
as that of punishing the offending party and setting him up as
an example to other that they might be deterred from similar
conduct.'" Preston v. Murty (1987), 32 Ohio St.3d 334, 335,
512 N.E.2d 1174, 1176 (quoting Detling v. Chockley [1982], 70
Ohio St.2d 134, 136, 24 O.O.3d 239, 240, 436 N.E.2d 208, 209).
See Western Union Tel. Co. v. Smith (1901), 64 Ohio St. 106,
116, 59 N.E. 890, 892. As such, punitive damages are outside
the underlying purpose of a tort action and the essential roles
of the jury. See Smith v. Printup (1993), 254 Kan. 315,
325-326, 866 P.2d 985, 994. The United States Court of Appeals
for the Fourth Circuit reached the same result in Shamblin's
Ready Mix, Inc. v. Eaton Corp., supra, at 742: "It is clear
that the amount of exemplary damages is not a fundamental
element of the trial. It is a remedy in the nature of a
penalty designed to punish and deter reprehensible conduct."
     The nature of the determination of a punitive-damages
award also requires the conclusion that a plaintiff does not
have a right to have a jury determine the amount of punitive
damages. Unlike actual damages, which are entirely fact
sensitive, the determination as to the amount of punitive
damages contemplates more than the facts at hand in the
immediate trial. In order to reach a fair punishment, the
decision-maker must be able to compare the wrongful conduct in
this case against similar conduct in other cases.
Additionally, such a broad perspective is essential in order to
set a level of damages which, while fair, will adequately deter
such wrongful conduct in the future. This broad perspective,
which is necessary to give effect to the purposes of punitive
damages, makes the judge and not the jury the appropriate
decision-maker. The knowledge and experience necessary to set
punitive damages effectively are unique to the judge alone. In
fact, the process of determining the amount of a punitive-
damages award is directly analogous to the sentencing role of a
judge in a criminal trial. As such, the discretionary decision
as to the amount of punitive damages to award in a particular
case is not a "fundamental" element of the jury system.
Consequently, a plaintiff does not have a constitutional right
to have a jury determine the amount of punitive damages and the
General Assembly has the perfect right to place that
responsibility on the judiciary.
     In addition, plaintiffs have no general "right" to
punitive damages. The language of our cases show that punitive
damages are permissive and not mandatory. As we stated in
Preston, supra: "Ohio courts, since as early as 1859, have
allowed punitive damages to be awarded in tort actions which
involve fraud, malice, or insult." (Emphasis added.) 32 Ohio
St.3d at 334, 512 N.E.2d at 1175. See Smith v. Printup, supra,
at 325, 866 P.2d at 994 ("No separate right of action existed
at common law for punitive damages."). This conclusion is
supported by Justice Scalia, who recently noted: "State
legislatures and courts have the power to restrict or abolish
the common-law practice of punitive damages." Pacific Mut.
Life Ins. Co. v. Haslip (1991), 499 U.S. 1, 39, 111 S.Ct. 1032,
1054, 113 L.Ed.2d 1, 33 (Scalia, J., concurring). Because the
legislature has the authority to abolish punitive damages, it
may also regulate them. See Smith v. Printup, supra, at
331-332, 866 P.2d at 997-998. As such, the enactment of R.C.
2315.21(C)(2), which gives the trial court the power to
determine the amount of punitive damages, was properly within
the legislature's authority and is not unconstitutional.
     Moyer, C.J., concurs in the foregoing dissenting opinion.
FOOTNOTE:
     1 Samuel, In Praise of Yiddish (1971) 162.
     2 Although these cases are intepreting the Seventh
Amendment to the United States Constitution, the similarity
between that provision and Section 5, Article I of the Ohio
Constitution makes their analyses particularly persuasive. See
Digital & Analog Design Corp. v. N. Supply Co. (1992), 63 Ohio
St.3d 657, 662, 590 N.E.2d 737, 742, fn.1.
     3 Because the statute at issue leaves the determination
as to whether a plaintiff is entitled to punitive damages with
the jury, we do not need to consider whether a plaintiff has a
right to have a jury make that determination. The only issue
is whether a plainiff has right to have a jury determine the
amount of punitive damages, a responsibility placed by R.C.
2315.21(C)(2) upon the trial court.
