Stolz v. J & B Steel Erectors, Inc.

• Decision Date: 31 December 2014
• Docket Number: Case No. 1:14–cv–44.
• Parties: Daniel STOLZ, Plaintiff, v. J & B STEEL ERECTORS, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

76 F.Supp.3d 696

Daniel STOLZ, Plaintiff
v.
J & B STEEL ERECTORS, INC., et al., Defendants.

Case No. 1:14–cv–44.

United States District Court, S.D. Ohio, Western Division.

Signed Dec. 31, 2014.

76 F.Supp.3d 697

Brett Colbert Goodson, Goodson & Company Ltd., Stephanie M. Day, Santen & Hughes, Cincinnati, OH, for Plaintiff.

Kimberly A. Pramaggiore, Kohnen & Patton, Robert W. Hojnoski, Nathan Andrew Lennon, Reminger Co., LPA, Stephen James Patsfall, Stephen Michael Yeager, Patsfall Yeager & Pflum LLC, Cincinnati, OH, Jane Michele Lynch, Green & Green, Jared A. Wagner, Dayton, OH, for Defendants.

ORDER GRANTING DEFENDANT MESSER CONSTRUCTION CO.'S MOTION FOR SUMMARY JUDGMENT (Doc. 14) AND DENYING THE MOTIONS FOR SUMMARY JUDGMENT OF DEFENDANTS D.A.G. CONSTRUCTION CO., INC., TRIVERSITY CONSTRUCTION CO., LLC, AND J & B STEEL ERECTORS, INC. (Docs. 37 and 40)

TIMOTHY S. BLACK, District Judge.

This civil action is before the Court on Defendant Messer Construction Co.'s motion

76 F.Supp.3d 698

for summary judgment (Doc. 14), Defendants D.A.G. Construction Co., Inc.'s and Triversity Construction Co., LLC's motion for summary judgment (Doc. 37), Defendant J & B Steel Erectors, Inc.'s motion for summary judgment (Doc. 40), and the parties' responsive memoranda (Docs. 56, 61, 63, 65, and 66).¹

I. BACKGROUND

Plaintiff was allegedly injured while working as a concrete finisher for Jostin Construction, Inc. (“Jostin”) at the Horseshoe Casino construction project in Cincinnati. Plaintiff brings this civil action against Defendants Messer Construction Co. (“Messer”), D.A.G. Construction Co., Inc. (“D.A.G.”), Triversity Construction Co., LLC (“Triversity”), J & B Steel Erectors, Inc. (“J & B Steel”), Terracon Consultants, Inc., and Pendleton Construction Group, LLC, each of whom allegedly had responsibilities related to the construction project. Plaintiff claims that Defendants were negligent.² He also seeks punitive damages.

Defendant Messer moves for summary judgment on the grounds that (1) it is entitled to immunity under Ohio's workers' compensation laws as a self-insuring employer and (2) the election of remedies doctrine bars Plaintiff from pursuing his claim against Defendant Messer.

Defendants D.A.G., Triversity, and J & B Steel argue that they are entitled to immunity under Ohio's workers' compensation laws as enrolled subcontractors under Defendant Messer's workers' compensation program.

II. UNDISPUTED FACTS³

1. At the time of his alleged injuries, Plaintiff Daniel Stolz was working for Jostin as a concrete finisher at the construction project for the Horseshoe Casino in Cincinnati, Ohio (“Casino Project”). (Doc. 49 at ¶ 1).

2. Defendant Messer was the general contractor for the Casino Project and Jostin was one of its subcontractors. (Doc. 49 at ¶¶ 1, 4; Doc. 14–2 at ¶¶ 1–4).

3. Prior to Plaintiff's accident, Messer had obtained authority from the Ohio Bureau of Workers' Compensation (“BWC”) to self-administer the workers' compensation program for all of the enrolled subcontractors on the Casino Project. (Doc. 14–2 at ¶¶ 1–4; Doc. 14–3).

4. Plaintiff's employer, Jostin, was an enrolled subcontractor participating in Messer's workers' compensation program under the certificate of authority issued by the BWC to Messer. (Doc. 14–2 at ¶¶ 1–4; Doc. 14–3; Doc. 14–4).

5. J & B Steel was an enrolled subcontractor participating in Messer's

76 F.Supp.3d 699

workers' compensation program for the Casino Project under the certificate of authority issued by the BWC to Messer. (See Doc. 14–2 at ¶ 3; Doc. 14–4).

III. STANDARD OF REVIEW

A motion for summary judgment should be granted if the evidence submitted to the Court demonstrates that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party has the burden of showing the absence of genuine disputes over facts which, under the substantive law governing the issue, might affect the outcome of the action. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. All facts and inferences must be construed in a light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

A party opposing a motion for summary judgment “may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (1986).

IV. ANALYSIS

A. Defendant Messer

1. Workers' Compensation Immunity

Workers' compensation “represents a social bargain in which employers and employees exchange their respective common-law rights and duties for a more certain and uniform set of statutory benefits and obligations.” Holeton v. Crouse Cartage Co., 92 Ohio St.3d 115, 119, 2001–Ohio–109, 748 N.E.2d 1111. In the event an employee is injured in a work-related incident, he is entitled to workers' compensation benefits, even if the employer is not to blame for the employee's injury. In exchange, the employer receives tort immunity for work-related injuries. See Ohio Rev.Code (“O.R.C.”) §§ 4123.35, 4123.74.⁴ This exchange of rights is referred to as the quid pro quo. See Washington Metro. Area Transit Auth. v. Johnson, 467 U.S. 925, 931, 104 S.Ct. 2827, 81 L.Ed.2d 768 (1984).

The “exclusivity rule” dictates that an employee who is injured in the course of his employment must accept workers' compensation benefits as his exclusive remedy vis-à-vis his employer. See Freese v. Consolidated Rail Corp., 4 Ohio St.3d 5, 7, 445 N.E.2d 1110 (1983) (citing O.R.C. § 4123.74 ); Saunders v. Holzer Hosp. Found., 2009–Ohio–2112, at ¶ 21, 2009 WL 1228756 (4th Dist. April 30, 2009) (quoting Kaiser v. Strall (1983), 5 Ohio St.3d 91, 94, 449 N.E.2d 1 ) (“ ‘[c]laimants enjoy no prerogative, constitutional or otherwise, to choose between workers' compensation and common-law remedies where the former has been legislatively deemed to provide the exclusive means of recovery.’ ”).

On most projects, contractors and subcontractors provide their own liability and workers' compensation coverage. However, under certain circumstances, contractors

76 F.Supp.3d 700

on large-scale construction projects may self-insure the project, whereby the employees of subcontractors enrolled in the self-insurer's plan for that project are treated as employees of the self-insuring contractor for purposes of workers' compensation. O.R.C. § 4123.35(O).⁵ Section 4123.35(O) expressly confers on a construction project self-insurer the protections of Chapters 4123 and 4121:

A self-insuring employer who complies with this division is entitled to the protections provided under this chapter and Chapter 4121. of the Revised Code with respect to the employees of the contractors and subcontractors covered under a certificate issued under this division for death or injuries that arise out of, or death, injuries, or occupational diseases that arise in the course of, those employees' employment on that construction project, as if the employees were employees of the self-insuring employer, provided that the self-insuring employer also complies with this section.

Section 4123.74 provides:



Employers who comply with section 4123.35 of the Revised Code shall not be liable to respond in damages at common law or by statute for any injury, or occupational disease, or bodily condition, received or contracted by any employee in the course of or arising out of his employment, or for any death resulting from such injury, occupational disease, or bodily condition occurring during the period covered by such premium so paid into the state insurance fund, or during the interval the employer is a self-insuring employer, whether or not such injury, occupational disease, bodily condition, or death is compensable under this chapter.

The Ohio Bureau of Workers' Compensation (“BWC”) issued a “Certificate of Employer's Right to Pay Compensation Directly” for “Subs 2000 4170–2 Horseshoe Casino–Cincinnati Wrap Up” (“certificate of authority”) to Defendant Messer, effective March 1, 2011 to March 1, 2012. (Doc. 14–2 at ¶¶ 1–2; Doc. 14–3). The list of “subs” identified under this “Wrap Up” included Plaintiff's employer, Jostin. (Doc. 14–2 at ¶¶ 34; Doc. 14–4). It is undisputed that Plaintiff was Jostin's employee and that Jostin was an enrolled subcontractor under Defendant Messer's workers' compensation plan. (Doc. 49 at ¶ 1; Doc. 14–2 at ¶¶ 1–4; Doc. 14–3; Doc. 14–4). Accordingly, sections 4123.35(O) and 4123.74 impart workers' compensation immunity upon Defendant Messer for any injuries sustained by Plaintiff while working on...