Carmen v. Link

• Decision Date: 23 April 1997
• Docket Number: No. 8-96-24,8-96-24
• Citation: 119 Ohio App.3d 244,695 N.E.2d 28
• Parties: CARMEN et al., Appellants, v. LINK et al., Appellees. *
• Court: Ohio Court of Appeals

Page 244

119 Ohio App.3d 244

695 N.E.2d 28

CARMEN et al., Appellants, v. LINK et al., Appellees. ^*

No. 8-96-24.

Court of Appeals of Ohio Third District, Logan County.

Decided April 23, 1997.

Lamkin, Van Eman, Trimble, Beals & Rourke, and Timothy L. Van Eman, Columbus, for appellants.

Crabbe, Brown, Jones, Potts & Schmidt, Theodore D. Sawyer and Daniel J. Hurley, Columbus, for appellees.

HADLEY, Judge.

Plaintiffs-appellants, Daniel Carmen and Cheryl Carmen (collectively, "Carmen"), appeal the judgment of the Logan County Common Pleas Court granting the motion of defendants-appellees, Chris Link, Chambers Leasing Systems, Inc., and TSL, Ltd. (collectively, "appellees"), for summary judgment and dismissing Carmen's complaint.

On June 21, 1994, Chris Link, while driving a tractor-trailer, struck the rear of a tractor-trailer operated by Carmen on State Route 117 in Logan County, Ohio. Carmen suffered severe personal injuries as a result of the incident. At the time of the incident both men were working under employment contracts with TSL, Ltd. ("TSL"), and were operating vehicles owned by Chambers Leasing Systems, Inc. ("Chambers"). The men were working independently from each other.

TSL, a West Virginia corporation, is a labor contracting business that hires and trains people for placement with trucking companies. Chambers, an Ohio corporation, is a trucking company that owns its tractors and trailers, and is licensed as a transportation business. Carmen and Link were hired and trained by TSL and were driving for Chambers at the time of the incident. Every person who had ever driven for Chambers at the time of the incident had been working under an employment contract with TSL.

TSL was responsible for the payment of wages, personal tax deductions, benefits, workers' compensation premiums, and all other compensation issues related to a particular employee. Each week TSL would submit a bill to Chambers for all employee-related expenses, including gross wages, social security, federal unemployment, state unemployment, workers' compensation and service fees. Chambers was responsible for the payment of the invoices on a monthly basis to TSL. After receiving payment from Chambers, TSL would disburse the employee's paycheck and pay the appropriate governmental agencies. Chambers had control of determining the routes and destination of each driver on a day-to-day basis.

In August 1993, TSL hired Carmen to drive a tractor-trailer in Ohio for Chambers. Carmen agreed in writing at the time he was hired to designate West Virginia as the state that would govern his workers' compensation rights and benefits. Carmen also signed an extraterritorial agreement, known as a C-112 form, as required by R.C. 4123.54(B), selecting a state other than Ohio as the binding authority for any injuries or occupational diseases he might sustain. There is no dispute by the parties that the proper forms and procedures were followed to make West Virginia the state controlling Carmen's workers' compensation benefits and privileges. ¹

Carmen has been receiving workers' compensation benefits from West Virginia as a result of the injuries he sustained in the incident on June 21, 1994. On August 9, 1995, Carmen filed his complaint against Link, TSL, and Chambers, alleging negligence by Link, respondeat superior and negligent entrustment against Chambers, negligent entrustment against TSL, and loss of consortium against all the defendants. Link filed his answer on September 27, 1995, and Chambers and TSL filed their collective answer on October 11, 1995. On February 7, 1996, Chambers, TSL, and Link collectively filed, by permission of the trial court, an amended answer. On August 15, Chambers, TSL, and Link filed a motion for summary judgment, alleging that the incident occurred between fellow employees, and as such, Chambers, TSL, and Link are immune through workers' compensation immunity. Carmen filed a memorandum in opposition to the summary judgment motion, as well as an addendum to the memo in opposition. Chambers, TSL, and Link filed a reply to Carmen's memorandum in opposition to the motion for summary judgment. Carmen subsequently filed an additional memorandum in response to the reply memorandum filed by Chambers, TSL, and Link. On October 17, 1996, the Logan County Common Pleas Court found the motion for summary judgment filed by Chambers, TSL, and Link well taken, dismissed Carmen's complaint, and found that West Virginia workers' compensation law controlled.

This appeal follows, with Carmen asserting four assignments of error. Before addressing appellants' assignments of error we must first examine our standard of review upon a motion for summary judgment.

"Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party." State ex rel. Howard v. Ferreri (1994), 70 Ohio St.3d 587, 589, 639 N.E.2d 1189, 1192; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.

Summary judgment is a procedure designed to cut short the normal litigation process and thus terminate the process when there is no issue for trial. Murray v. Murray (1993), 89 Ohio App.3d 141, 144-145, 623 N.E.2d 1236, 1238-1239. Therefore, courts must proceed cautiously and award summary judgment only when appropriate. Id. The party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801-802; Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264. Any doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138, 139-141. Thus, the standard of review of a summary judgment is the same for both a trial court and an appellate court. Lorain Natl. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127, 129, 572 N.E.2d 198, 199-200. Assignment of Error No. 1

"The court below erred by granting summary judgment in favor of defendants Chambers, TSL and Link where the defendants failed to assert the affirmative defense of immunity in their answer to plaintiffs' complaint."

Carmen alleges that appellees failed to assert the affirmative defense of immunity for injury by a fellow servant in their amended answer, and, therefore, have waived the right to assert the defense in this case. The primary assertion in appellees' motion for summary judgment was that appellees were immune from liability for injury by a fellow servant. Appellees contend that the immunity was properly raised as an affirmative defense in their amended answer. Additionally, appellees contend that even if the defense was not properly asserted in the amended answer, the defense was timely asserted in their motion for summary judgment. We must address whether appellees raised the defense of immunity for injury by a fellow servant, and if so, whether the assertion was timely made.

Civ.R. 8(C) states that "[i]n pleading to a preceding pleading, a party shall set forth affirmatively * * * injury by a fellow servant * * * and any other matter constituting an avoidance or affirmative defense."

Civ.R. 8(F) provides that "[a]ll pleadings shall be so construed as to do substantial justice." Additionally, the Ohio Supreme Court has liberally interpreted the provisions of Civ.R. 8(C) and (F) so that the party answering the complaint need only "generically" raise the affirmative defense for it to be effective. Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St.3d 427, 433, 659 N.E.2d 1232, 1237, fn. 3.

In the present case, appellees assert that the ninth defense of their amended answer establishes the defense of immunity for injury by a fellow servant. Specifically, the ninth defense states that Carmen's complaint "is barred * * * from recovery by virtue of the fact that * * * Carmen received full payment for his alleged injuries through the West Virginia Bureau of Workers' Compensation, thereby precluding [Carmen] from pursuing this action."

Although injury by a fellow servant can provide the basis for receiving payment from a workers' compensation bureau, the assertion that the payment was received by Carmen does not, without more, "generically" raise the affirmative defense of injury by a fellow servant. Workers' compensation funds exist as a means to compensate employees for losses in earning capability as a result of an injury suffered in the course of employment. Injury by a fellow servant is only one of a variety of means that an employee may be injured in the course of employment. Appellees' ninth defense in their amended answer does not raise the affirmative defense of immunity for injury by a fellow servant.

Notwithstanding, appellees allege that a Civ.R. 8(C) affirmative defense can be asserted for the first time in a motion for summary judgment. The Ohio Supreme Court has addressed the issue of the effect of failing to plead Civ.R. 8(C) affirmative defenses in a responsive pleading. In the dicta of Hoover v. Sumlin (1984), 12 Ohio St.3d 1, 12 OBR 1, 465 N.E.2d 377, the court stated:

"Civ.R. 8(C) deals with affirmative defenses and states that, in pleading to a preceding pleading, a party ' * * * shall set forth affirmatively * * * the statute of limitations * * *.' (Emphasis added.) While the word 'shall' indicates the firmness of this pleading requirement, Civ.R. 8 does not state a time period within which an affirmative defense must be pleaded or the effect of failing to plead an affirmative defense. However, it is clear that some sort of concept of 'waiver' is embodied in the...