Columbia Gas v. Columbus Asphalt Paving
| Decision Date | 14 August 2006 |
| Docket Number | No. 2004 CVF 031877.,No. 2004 CVF 052078.,No. 2005 CVE 019575.,2004 CVF 031877.,2004 CVF 052078.,2005 CVE 019575. |
| Citation | 2006 Ohio 7304,871 N.E.2d 646,142 Ohio Misc.2d 101 |
| Parties | COLUMBIA GAS OF OHIO, INC., Plaintiff, v. COLUMBUS ASPHALT PAVING, INC., Defendant and Third-Party Plaintiff; Westerville et al., Third-Party Defendants. |
| Court | Ohio Court of Common Pleas |
Daniel J. Igoe, Stephen L. Hebenstreit, and Andrew J. Sonderman, Columbus, for plaintiff.
Donald B. Leach Jr. and Priya J. Bathija, Columbus, for defendant.
Kyle J. Stroh and Michael K. Fultz, Westerville, for third-party defendant city of Westerville.
{¶ 1} For the reasons outlined below, the court denies the city of Westerville's motion for judgment on the pleadings.
{¶ 2} Columbia Gas of Ohio's original complaint and amended complaint against Columbus Asphalt Paving ("CAP") are summarized in this court's entry and decision filed October 31, 2005. CAP's original counterclaim and amended counterclaim against Columbia Gas are summarized in this court's entry and decision filed October 31, 2005. In the same entry and decision, this court dismissed CAP's counterclaim against Columbia Gas. CAP's third-party complaint against third-party defendant Reliant Services, L.L.C. ("Reliant"), is summarized in this court's entry and decision filed October 31, 2005. In the same entry and decision, this court dismissed CAP's third-party complaint against Reliant.
{¶ 3} On January 6, 2006, Columbia Gas, CAP, and third-party defendant, the city of Westerville ("the city" or "Westerville"), filed a joint motion to join case Nos. 04 CVF 031877, 04 CVF 052078, and 05 CVE 019575. The city is a third-party defendant in the latter two cases. On January 12, 2006, this court granted the joint motion.
{¶ 4} The third-party complaints that CAP filed against the city in case Nos. 04 CVF 052078 and 05 CVE 019575 allege:
In the event that CAP is held liable to Columbia Gas in this action, the city is liable in full to CAP for indemnification.
In the event that CAP is held liable to Columbia Gas in this action, the city is liable to CAP for contribution.
{¶ 5} On March 20, 2006, the city filed a motion for judgment on the pleadings, moving the court to grant judgment in favor of the city and against CAP on CAP's counterclaim against the city, arguing that:
• The city is immune from CAP's claims for money damages by operation of R.C. 2744.02(A)(1).
• The five exceptions to R.C. 2744.02(A)(1), provided in R.C. 2744.02(B), do not apply.
• As the five exceptions do not apply, it is not necessary to determine whether any defense in R.C. 2744.03 reinstitutes immunity.
In its original answers to the third-party complaints, the city did not specifically raise immunity pursuant to R.C. 2744.02 as an affirmative defense. The city's failure to specifically raise immunity as an affirmative defense was addressed by Columbia Gas and CAP in their memoranda in opposition, filed on April 7, 2006. Columbia Gas and CAP argued that the city is not entitled to immunity because it has waived any right to immunity by failing to assert the waiver in a timely manner. On April 25, 2006, the city filed a reply to the memoranda in opposition filed by Columbia and CAP and a motion for leave to amend its answers. After careful consideration, the court granted the city leave to amend its answers.
{¶ 6} Columbia Gas and CAP further claim that, even if the city is entitled to assert its immunity, it is not immune because of the exception in R.C. 2744.02(B)(5) that imposes liability when "civil liability is expressly imposed upon the political subdivision by a section of the Revised Code." More specifically, Columbia Gas and CAP argue that R.C. 153.64(D) expressly imposes civil liability on the city. CAP asserts that it is exercising its right to a remedy for failure to comply with R.C. 153.64(D) by pursuing this third-party complaint and that contract clause 11020.01 provides for that remedy.
{¶ 7} On March 20, 2006, the city also filed a motion for summary judgment moving the court to grant judgment in favor of the city and against CAP on CAP's counterclaim against the city, arguing that:
The city is not liable because CAP waived its right to obtain utility information on the city plans when it expressly agreed to perform the work without the city plans or without utility information on the city plans. CAP is permitted to waive its right to obtain utility information from the city as required by R.C. 153.64 because Ohio law permits waiver of personal rights accorded by statute.
The city is not liable because it met all of its obligations under R.C. 153.64(B). It is not the city's responsibility for "stak[ing], mark[ing] or otherwise designat[ing] the location of the underground utility facilities in the construction area in such a manner as to indicate their course together with the approximate depth at which they were installed" pursuant to R.C. 153.64(C), nor is it the city's responsibility for overseeing CAP's employees once they have "actual notice of the existence of the utilit[ies]" pursuant to R.C. 153.64(D). These responsibilities fall to Columbia Gas and CAP respectively, and therefore the city is not liable.
On April 7, 2006, Columbia Gas filed its combined memorandum in opposition to Westerville's motion for summary judgment and judgment on the pleadings, and CAP filed its combined memorandum in opposition to Westerville's motions for summary judgment and judgment on the pleadings. Columbia Gas argues that the city's obligations under R.C. 153.64 are mandatory and cannot be waived. Columbia Gas further argues that R.C. 153.64 is related to public safety and that as a matter of public policy, duties relating to public safety can not be waived. CAP argues that regardless of whether CAP could waive the rights under R.C. 153.64(B), it did not take affirmative steps to waive its rights to obtain utility information from the city. Both Columbia Gas and CAP argue that the city did not meet its obligations under R.C. 153.64(B).
{¶ 8} The court now will consider the city's motion for judgment on the pleadings, as a decision regarding that motion will determine the issues that remain pending before this court on the motion for summary judgment.
{¶ 9} Schweizer v. Riverside Methodist Hosps. (1996), 108 Ohio App.3d 539, 671 N.E.2d 312, citing Bennett v. Ohio Dept. of Rehab. & Corr. (1991), 60 Ohio St.3d 107, 573 N.E.2d 633. See also Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 63 O.O.2d 262, 297 N.E.2d 113, and Whaley v. Franklin Cty. Bd. of Commrs. (2001), 92 Ohio St.3d 574, 752 N.E.2d 267. Civ.R. 12(C) permits consideration of the complaint and answer. State ex rel. Midwest Pride IV, Inc. v. Pontious (1996), 75 Ohio St.3d 565, 664 N.E.2d 931, citing Burnside v. Leimbach (1991), 71 Ohio App.3d 399, 594 N.E.2d 60, and Lin v. Gatehouse Constr. Co. (1992), 84 Ohio App.3d 96, 616 N.E.2d 519.
{¶ 10} The Tenth District Court of Appeals has said that a court is not required to rule on a summary judgment motion attached to a motion for judgment on the pleadings; rather, it can grant a judgment on the pleadings without considering the summary judgment motion. Fontbank, Inc. v. CompuServe, Inc. (2000), 138 Ohio App.3d 801, 742 N.E.2d 674.
{¶ 11} Epperly v. Medina City Bd. of Edn. (1989), 64 Ohio App.3d 74, 580 N.E.2d 807, citing Conant v. Johnson (1964), 1 Ohio App.2d 133, 30 O.O.2d 157, 204 N.E.2d 100. "Therefore, the motion for judgment on the pleadings cannot be used to obtain an adjudication of the validity of the affirmative defense unless that validity can be determined solely from the allegations in the pleadings." Id., citing Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 63 O.O.2d 262, 297 N.E.2d 113.
{¶ 12} However, the availability of immunity is a question of law that is properly determined by the court before trial. Duff v. Coshocton Cty. Bd. of Commrs., 5th Dist. No. 03-CA-019, 2004-Ohio-3713, 2004 WL 1563404.
{¶ 13} The city claims that it is immune from third-party plaintiff CAP's claims for money damages pursuant to R.C. 2744.02(A)(1). R.C. 2744.02(A)(1) is part of the Political Subdivision Tort Liability Act, R.C. Chapter 2744. Further, the immunity granted therein is commonly referred to as sovereign immunity.
{¶ 14} The doctrine of sovereign immunity has its origin in the English common law concept that "`the king can do no wrong.'" Butler v. Jordan (2001), 92 Ohio St.3d 354, 750 N.E.2d 554, citing Haas v. Hayslip (1977), 51 Ohio St.2d 135, 5 O.O.3d 110, 364 N.E.2d 1376. The theory was that the king was considered the fount of justice and equity in the English common law, and it was his personal royal prerogative not to be subjected to suit in his own courts. Id., citing Borchard, Government Liability in Tort (19...
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