Alan Cornell v. Parsons Coal Co., 93-LW-2908

• Decision Date: 09 August 1993
• Docket Number: 93-LW-2908,92-C-45
• Parties: ALAN CORNELL, et al, PLAINTIFFS-APPELLANTS v. PARSONS COAL COMPANY, et al, DEFENDANTS-APPELLEES CASE
• Court: Ohio Court of Appeals

ALAN CORNELL, et al, PLAINTIFFS-APPELLANTS v. PARSONS COAL COMPANY, et al DEFENDANTS-APPELLEES

No. 92-C-45.

93-LW-2908 (7th)

Court of Appeals of Ohio, Seventh District Columbiana

August 9, 1993

Civil Appeal from Columbiana County Common Pleas Court Case No 88-CIV-96.

For Plaintiffs-Appellants: Allen Schulman, Jr., 740 United Bank Bldg., 220 Market Avenue South, Canton, Ohio 44702.

For Defendants-Appellees: Jeffrey Embleton, 55 Public Square 2150 Illuminating Bldg., Cleveland, Ohio 44113.

Hon Edward A. Cox, Hon. Joseph E. O'Neill, Hon. Gene Donofrio.

OPINION

O'NElLL J.

The plaintiff-appellant was injured while employed by the defendant and working on a barge located in the Ohio River at East Liverpool, Ohio. The issue, relative to the plaintiff-appellant's injuries, was first brought to court by filing a complaint in 1985 seeking damages for personal injuries as the result of an intentional tort allegedly committed by Parsons. Just prior to trial, the case was dismissed and refiled in February of 1988. The complaint was amended alleging claims of negligence, gross negligence and intentional tort against Parsons. On December 5, 1988, the first day of trial, the appellants made known that they were to proceed on a claim of negligence under the federal law found in the Longshoremen's and Harbor Workers' Compensation Act. The defendants-appellees objected to this new theory of liability advancing the reason therefor that they had not before that day been advised of the intent of the plaintiff-appellant. The trial court agreed and refused to permit the appellant to proceed on that theory and the trial then proceeded on the claim of intentional tort. A jury verdict was rendered on behalf of the defendants-appellees and appellants subsequently appealed the judgment of the trial court to this court of appeals. This court reversed the trial court on the claim of negligence, finding that the trial court should have permitted the plaintiff-appellant to proceed on the negligence claim under the Longshoremen's and Harbor Workers' Compensation Act. This court remanded the case to the trial court for a trial relative to the plaintiff-appellant's cause of action under the Longshoremen s and Harbor Workers' Compensation Act.

Upon remand, the defendants-appellees filed a motion ii for summary judgment alleging in that motion that the plaintiff-appellant was not entitled to proceed on negligence under the Longshoremen's and Harbor Workers' Compensation Act for the reasonthat the defendants-appellees had protected and furnished insurance covering any injuries which the plaintiff-appellant might suffer during his work and that, pursuant to the act, the appellant to proceed administratively to collect remuneration for his injuries. A timely notice of appeal was directed to this judgment of the trial court.

The first assignment of error complains that the appellees should not have been permitted to raise, by motion for summary judgment, their immunity from the claim being pursued by the plaintiff-appellant.

The plaintiff-appellant describes the stance of the defendants-appellees as being an affirmative defense and go on to contend that, since it had not been raised by way of pleading, there was a waiver of this alleged affirmative defense.

The keystone to this appeal is found in 33 USC, Sec. 905 of the Longshoremen's and Harbor Workers' Compensation Act, which reads as follows:

"(a) Employer liability; failure of employer to secure payment of compensation. The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under the chapter or to maintain an action at law or admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee. For purposes of this subsection, a contractor shall be deemed the employer of a subcontractor's employees only if the subcontractor fails to secure the payment of compensation as required by section 904 of this title."

It should be noted that, by provisions of the foregoing law, an employee may claim or maintain an action at law if an employer fails to secure payment of compensation as required by that chapter. It would appear to us that this places a burden on a plaintiff to establish, as a prerequisite to his pursuit of an action at law, that the employer failed to secure payment of compensation. It does not stand as a defense by a defendant but rather as an item of proof incumbent upon a plaintiff.

Accordingly, we find no merit to the first assignment of error raised by the plaintiff-appellant.

The second assignment of error contends that the trial court erred in granting summary judgment when there were material issues of fact in dispute.

As a part of the motion for summary judgment, the appellees attached to their motion various exhibits. Exhibit A was copy of an insurance policy issued by Rockwood Insurance Company to North Star Coal Company, et al, effective January 1, 1983 through January 1, 1984. The declaration page of this policy provided that the policy applied to workmens compensation' law and any occupational disease law of the State of Pennsylvania. It then, by way of a schedule, listed East Liverpool, Ohio as being one of the locations of operations by the insured. A further attachment to the motion was an affidavit of William P. Larkin, Controller of the North Star Coal Company, which is the owner and parent company of the Parsons Coal Company. Mr. Larkin, under oath, certified that the attached policy was a true and accurate copy of an insurance policy in effect from January 1, 1983 through January 1, 1984. Mr. Larkin went on to further state, under oath, that during the effective date of the policy, insurance coverage was provided for claims under the United States Longshoremen's and Harbor Workers' Compensation Act.

There was a further attachment, an affidavit by Sandy R. Yancey. Sandy R. Yancey, under...