{¶ 3} The law is that a decision of the supreme court is to apply retroactively, as though that law had always applied. See Peerless Elec.Co. v. Bowers (1955), 164 Ohio St. 209, 210. What this means to this case is that the Scott-Pontzer and Ezawa claims that both parties thought were viable at the time the complaint had been filed, were not viable at all. Had Galatis been the law, Moss's claims would have been subject to summary judgment since she could establish no facts that would entitle her to judgment.

{¶ 4} While we are loathe to consider arguments that were not presented to the trial court, see Republic Steel Corp. v. Bd. of Revisionof Cuyahoga Cty. (1963), 175 Ohio St. 179, syllabus, we ought not perpetuate bad law on the flimsy basis that the court and the parties relied on a subsequently overruled case. We therefore find that the court should have granted summary judgment to all defendants because there was no conceivable contractual liability.

{¶ 5} Even if we are wrong about the application of Galatis to the arguments presented on appeal, we find the court did not err by granting summary judgment for the reasons offered by the appellants on appeal. Our discussion of those arguments follows.

{¶ 8} "1. When an insurer's denial of underinsured motorist coverage is premised on the insured's breach of a prompt-notice provision in a policy of insurance, the insurer is relieved of the obligation to provide coverage if it is prejudiced by the insured's unreasonable delay in giving notice. An insured's unreasonable delay in giving notice is presumed prejudicial to the insurer absent evidence to the contrary."

{¶ 9} The supreme court noted that late-notice cases require a two-step approach: the court must first determine whether notice was timely and, if so, must next determine whether the lack of timely notice prejudiced the insurer. Id. at ¶ 90-91. If the insured failed to give the required notice, a presumption of prejudice arises which the insured has the burden of rebutting. Id. at ¶ 91. The court did not define what constitutes an "unreasonable delay," presumably leaving that term open as a question of fact. However, we believe that the contract terms employed by the parties remain the best guide for determining reasonableness, since the contract terms arise by mutual assent. Only in the event the contract between the parties is devoid of specific notice terms or is otherwise ambiguous would it be necessary to consider delay of notice as a question of fact.

{¶ 11} The accident in question occurred in January 1996. The estate did not file its claims against New Hampshire until April 2002. The court noted that the supreme court did not decide Scott-Pontzer until 1999, so it considered that the estate filed its claim within two and one-half years for purposes of determining any delay.

{¶ 12} We differ with the court on when the claim arose because we find that the length of the delay in giving notice must be calculated from the time the claim arose. The claim arose at the time of the accident, not the time when Scott-Pontzer had been released. As a matter of law, Scott-Pontzer applies retroactively as though the law pronounced in that case has always existed. See Peerless Elec. Co. v. Bowers (1955), 164 Ohio St. 209, 210; Heiney v. Hartford, Franklin App. No. 01AP-1100, 2002-Ohio-3718. In Gruelich v. The Hartford, Cuyahoga App. No. 80987, 2002-Ohio-7229, we addressed this precise issue and held that a delay in waiting for a favorable decision does not constitute a reasonable excuse for failing to give notice of a claim. The law announced in Scott-Pontzer is considered to always have been in force, so the claim existed at the time of the accident — the estate simply failed to take advantage of it at that time.

{¶ 13} Under no circumstances could we imagine that a six-year delay in bringing a claim constitutes "prompt" notice as required by the New Hampshire policy. As a matter of law, we find that length of time to be unreasonable. And even were we to use the two and one-half year period that the court used, we would agree with the court that notice in that time frame would likewise not be prompt, and thus unreasonable as a matter of law. It follows that New Hampshire established the first prong of the Ferrando test.

{¶ 14} The second prong of the Ferrando test requires a determination of whether the estate's unreasonable delay caused New Hampshire prejudice. Although the court decided the notice issue prior toFerrando's release, the court did hear oral argument on the respective motions for summary judgment at which it considered the issue of prejudice caused by the estate's untimely notice. New Hampshire argued (now somewhat unnecessarily in light of Ferrando's presumption of prejudice) that it had been prejudiced because it did not have the opportunity to investigate the facts and circumstances of the accident. In response, the estate argued that New Hampshire had every opportunity to conduct discovery and any other investigation it deemed vital to the case, but chose not to pursue it.

{¶ 15} The estate's argument that New Hampshire suffered no prejudice falls far short of the Ferrando requirement that the party seeking to give late notice show evidence to the contrary. The estate offered no evidence whatsoever on this issue, even though the issue had been joined before the court both during briefing and oral argument on the motion for summary judgment. Admittedly, argument on a motion for summary judgment is not intended as a vehicle for the admission of new evidence. Carrabine Constr. Co. v. Chrysler Realty Corp. (1986),25 Ohio St.3d 222, syllabus. However, the estate knew that New Hampshire's motion for summary judgment argued that it had been "severely prejudiced" by the estate's failure to provide prompt notice as required by the policy. The argument that the estate made in response to the motion for summary judgment merely claimed that since the estate had not settled with the tortfeasor, New Hampshire's subrogation rights had not been compromised. The court rejected this simplistic argument, and its finding that New Hampshire had been prejudiced is supported by the estate's complete lack of evidence to the contrary. The court did not err by granting summary judgment to New Hampshire.

{¶ 18} Our holding that the court did not err by granting summary judgment to St. Paul based on the estate's failure to give notice as required by the policy moots consideration of this argument. See App.R. 12(A)(1)(c). We note in passing, however, that we agree with the court that Cuyahoga Community College, as a political subdivision under R.C.3354.03, is only authorized to purchase automobile liability insurance for acts by its officers or employees that arise out of the operation of a vehicle while engaged in the course and scope of their employment. See R.C. 9.83. Hence, Cuyahoga Community College is different in form than the school district involved in Mizen. See Landers v. LucentTechnologies, Cuyahoga App. Nos. 81506 and 81531, 2003-Ohio-3657.

{¶ 20} When a responsive pleading has been served, a party may only amend a pleading by first seeking leave of court. See Civ.R. 15(A). Although leave of court should be freely granted when justice so requires, the court's decision to grant or deny a request for leave to amend a complaint will be reviewed only for an abuse of discretion. SeeWilmington Steel Products, Inc. v. Cleveland Elec. Illum. Co. (1991),60 Ohio St.3d 120, 121-122. "While the rule allows for liberal amendment, motions to amend pleadings pursuant to Civ.R. 15(A) should be refused if there is a showing of bad faith, undue delay, or undue prejudice to the opposing party." Turner v. Cent. Local School Dist.,85 Ohio St.3d 95, 99, 1999-Ohio-207 (footnote and citation omitted).

{¶ 21} The court did not abuse its discretion by denying leave to amend the complaint because the estate filed its request so late in the proceedings that it would unduly delay the resolution of the case. By the time the estate filed its motion for leave to amend the complaint, dispositive motions had been filed by both St. Paul and New Hampshire and the court had set oral arguments on the motions. So postured, the case had been so far along that we cannot say that the court acted unreasonably in denying leave.

{¶ 22} In any event, the court's refusal to grant leave could not be considered prejudicial. The estate filed claims against a number of defendants, most of whom it voluntarily dismissed without prejudice prior to taking this appeal. Tops Markets was one of those defendants. Assuming that the estate intends to refile its case against Tops Markets, it would be in a position to name the correct insurance company upon refiling the complaint. Hence, the court's refusal to grant leave to amend the complaint did not come with any prejudice to the estate.

{¶ 23} The judgment is affirmed.

Judgment affirmed.

Anthony O. Calabrese, JR., J., Diane Karpinski, J., concurs.

{¶ 24} I concur with the majority on the estate's second assignment of error.¹ I also concur with the majority in its disposition of the estate's first assignment of error according to the recent decision inGalatis, ante. I must, however, respectfully disagree with the majority on its subsequent discussion of Ferrando v. Auto-Owners Mut. Ins. Co.,98 Ohio St.3d 186, 2002-Ohio-7217, 781 N.E.2d 927 and its disposition of the estate's first assignment of error under this case.

{¶ 25} Since December 2002, when the Ohio Supreme Court decidedFerrando, this court has repeatedly held that questions related to an insured's breach of notice/subrogation provisions of an insurance policy cannot be resolved on a motion for summary judgment. See Alaimo v.Horsburgh Scott Co., Cuyahoga App. No 82370, 2003-Ohio-3808; Prattv. Safe Auto Ins. Co., Cuyahoga App. No. 81741, 2003-Ohio-3350; Ungur v.Buckeye Union Ins. Co., Cuyahoga App. No. 81208, 2003-Ohio-2044; Karafav. Toni, Cuyahoga App. No. 80664, 2003-Ohio-155.

{¶ 26} In Ferrando, the Ohio Supreme Court held "if the trial court determines that notice was not reasonably given, then a breach of the policy did occur, and the next step is for the trial court to determine whether the insurer was prejudiced by that breach." The Court further held, the insured party bears the burden of presenting evidence to rebut a presumption of prejudice." Id., at ¶ 101.

{¶ 27} Under Ferrando,² there are two different evidentiary questions that must be resolved before an insured can be denied coverage for breach of an insurance policy's prompt notice provision.

{¶ 28} [I]f the trial court determines that notice was not reasonably given, then a breach of the policy did occur, and the next step is for the trial court to determine whether the insurer was prejudiced by that breach. In its initial determination, it is not clear which party the trial court assigned the burden of demonstrating prejudice. Pursuant to our decision today, the insured party bears the burden of presenting evidence to rebut a presumption of prejudice.

{¶ 29} In the case at bar, contrary to the two-step inquiry required by Ferrando, the majority, in a single step, decided that the six-years the estate waited to notify defendants is, as a matter of law, an unreasonable delay and that it caused defendant to suffer prejudice. By looking exclusively at the six-year time lapse, the majority, like the trial court, prematurely determined that defendants have been prejudiced. Under Ferrando, this conclusion can be reached only after the first stage of the required analysis has been completed. CitingFerrando, this court in Pratt stated as follows:

* * * [Q]uestions relating to breach, prejudice and whether plaintiffs met their burden of proof require the presentation and review of evidence not considered by the trial court before it granted defendant's summary judgment motion. * * * Genuine issues of material fact remain on the question of notice and whether plaintiffs could have notified defendant sooner than they did.

{¶ 30} Id., at ¶ 18 citing Ferrando. Jumping to the second stage, the majority in the case at bar states "[t]he estate offered no evidence whatsoever on this issue, even though the issue had been joined before the court both during briefing and oral argument on the motion for summary judgment." This conclusion, however, completely disregards the procedure outlined in Ferrando.

{¶ 31} Ferrando changed the burden of proof on the issue of an insurer's prejudice. Before Ferrando, the insured did not have to present evidence of prejudice; it was simply presumed if the date of notice was deemed unreasonable. After Ferrando, once the date of notice is deemed unreasonable, the insured must be given an opportunity to present evidence demonstrating that the insurer did not suffer prejudice by the delay.

{¶ 32} In responding to a motion for summary judgment, a non-moving party need not address matters raised that are not key to the issue of law as defined at the time. Ferrando changed the law affecting the case at bar. The majority ignores the briefs filed below, which show that the estate was not advised it had the burden of proving defendants were not prejudiced. Nor was the estate afforded an opportunity to present such evidence once Ferrando was issued. Thus it is premature to decide either the issue of prejudice or the question of whether the estate should have discovered the possible UIM coverage sooner than it did. See Ferrando, 2002-Ohio-7217 at ¶ 98. Were it not for Galatis, I would sustain the estate's first assignment of error. Galatis, however, reduces the majority's discussion of Ferrando to dicta.

{¶ 33} I therefore concur in judgment only regarding the first assignment of error.

¹ Assignment of error No. II: The trial court erred in denying appellant's motion for leave to amend complaint.

² In the case at bar, when the trial court granted defendant's motions for summary judgment in November 2002, the court did not have the benefit of Ferrando, which was decided in December 2002.