Cooper v. Dayton

• Decision Date: 06 June 1997
• Docket Number: No. 16227,16227
• Citation: 120 Ohio App.3d 34,696 N.E.2d 640
• Parties: COOPER, Appellee, v. CITY OF DAYTON, Appellant, et al. *
• Court: Ohio Court of Appeals

Page 34

120 Ohio App.3d 34

696 N.E.2d 640

COOPER, Appellee, v. CITY OF DAYTON, Appellant, et al. ^*

No. 16227.

Court of Appeals of Ohio Second District, Montgomery County.

Decided June 6, 1997.

James A. Hensley, Jr., Huber Heights, for appellee.

J. Anthony Sawyer, Director of Law, and Susan S. Silbertstein, Chief Administrative Counsel, Dayton, for appellant.

BROGAN, Judge.

The city of Dayton appeals from the Montgomery County Common Pleas Court's October 8, 1996 decision and order granting summary judgment in favor of appellee Kevin B. Cooper.

The city advances three assignments of error. First, the city contends that the trial court erred by granting Cooper's summary judgment motion and declaring the city his employer for workers' compensation purposes for an off-duty injury Cooper sustained. Next, the city claims that the trial court erred by denying its summary judgment motion and failing to find that it was not Cooper's employer for workers' compensation purposes. Finally, the city asserts that the trial court erred by awarding Cooper the statutory maximum attorney fees without providing the city an opportunity to be heard and without sufficient evidence to justify the award.

The present appeal stems from an injury Cooper sustained on December 2, 1994, while attempting to stop a shoplifter outside a Groceryland store. Cooper, a Dayton police officer, was out of uniform and off-duty, working as a loss-prevention specialist at the grocery store. ¹ He had obtained the part-time security work from a fellow police officer, John D. Pawelski, who acted as an independent contractor supplying the grocery store with off-duty officers to prevent shoplifting. Pawelski's work for Groceryland was conducted on his own time and was unrelated to his work as a city police officer. The work consisted primarily of scheduling off-duty officers for morning or afternoon shifts at the store, recording the officers' hours worked, and billing Groceryland for the security work. Groceryland paid Pawelski $15 per hour for the officers' work, and Pawelski, in turn, paid the officers approximately $11 per hour.

While working as a security specialist on December 2, 1994, Cooper observed a shopper stealing meat. Cooper followed the shopper outside into the parking lot, and the shopper entered a vehicle driven by a second person. The two suspects then attempted to leave. In response, Cooper drew his service revolver, identified himself as a police officer, displayed his badge, and ordered the suspects to place their hands in the air. Rather than complying, the two suspects sped toward Cooper, who jumped onto the car's hood. The driver then braked hard in front of the store at Troy and Stanley streets, causing Cooper to be thrown to the pavement. As a result of the incident, Cooper suffered lacerations, abrasions, a contusion to the knee, and a tibial fracture. He remained hospitalized until December 4, 1994.

Following his release, Cooper filed an application for compensation and medical benefits with the Bureau of Workers' Compensation, identifying the city of Dayton as his employer and listing his occupation as "police officer." ² The Bureau of Workers' Compensation administrator subsequently issued a January 9, 1995 order allowing Cooper's claim against the city. A district hearing officer then denied the city's appeal from the administrator's order, finding the appeal not timely filed. A staff hearing officer affirmed the district hearing officer's ruling. Thereafter, the Ohio Industrial Commission refused to hear the city's appeal from the staff hearing officer's order.

The city subsequently filed an appeal in the Montgomery County Common Pleas Court. The trial court first recited the foregoing procedural history and then proceeded to address the merits of the city's appeal, ultimately finding the city's arguments unpersuasive and granting summary judgment in Cooper's favor. In response, the city filed a timely appeal to this court, advancing three assignments of error. On March 25, 1997, we sua sponte ordered the city to show cause why its failure to timely appeal from the Bureau of Workers' Compensation's initial order allowing Cooper's claim did not compel us to affirm the trial court's judgment or dismiss the appeal. The city responded to the show cause order on April 2, 1997.

After reviewing the city's response, we continue to question this court's and the trial court's jurisdiction to hear the city's appeal. In short, we are not entirely convinced that the city's failure to timely appeal the BWC administrator's award did not deprive us of jurisdiction to hear the present appeal. Although we find much of the city's argument on the issue unpersuasive, ³ this court's own research has revealed no clear answer.

In any event, we have decided to view the present situation as simply raising a failure-to-exhaust-administrative-remedies question. Although the city did file an appeal at each administrative level, the appeals were rejected as untimely and included no substantive review. In our view, a party cannot be deemed to have exhausted its administrative remedies by filing an untimely administrative appeal and having subsequent administrative appeals rejected expressly on that basis.

In Arbar Corp. v. Wellmeier (Sept. 20, 1995), Greene App. No. 94-CA-99, unreported, 1995 WL 558781, this court noted that "a failure to exhaust administrative remedies has been viewed as a jurisdictional defect which will deprive a common pleas court of jurisdiction to hear an appeal in a workers' compensation case." At least one other appellate court has concluded, however, that a failure to exhaust administrative remedies is not a jurisdictional defect, but an affirmative defense that must be raised. See Jackson v. Ohio Bur. of Workers' Comp. (1994), 98 Ohio App.3d 579, 585, 649 N.E.2d 30, 34. Most recently, the Ohio Supreme Court in Jones v. Chagrin Falls (1997), 77 Ohio St.3d 456, 674 N.E.2d 1388, also held that the doctrine of failure to exhaust administrative remedies is not a jurisdictional defect, but an affirmative defense that may be waived if not timely asserted. Although Jones considered the doctrine in the context of declaratory judgments, the opinion contains broad language that seemingly would apply in other contexts as well. ⁴ In the present case, Cooper did not raise the failure-to-exhaust-administrative-remedies issue at any time before the trial court or in his brief to this court. Consequently, we will treat the issue as a waived affirmative defense and proceed to the merits of the city's appeal.

In its first two assignments of error, the city contends that the trial court erred by granting summary judgment in Cooper's favor and denying summary judgment for the city. Both assignments of error involve the same legal issue: whether the city was Cooper's "employer" for workers' compensation purposes at the time of his injury. If so, the trial court properly granted Cooper's motion and properly denied the city's motion.

In its brief to this court, the city essentially raises two legal arguments against granting Cooper summary judgment. First, the city contends that R.C. 4123.01(A)(1)(b) provided the exclusive means of recovery for Cooper's injury. That provision states:

"Every person in the service of an independent contractor or subcontractor who has failed to pay into the state insurance fund the amount of premium determined and fixed by the administrator of workers' compensation for his employment or occupation * * * shall be considered as the employee of the person who has entered into a contract, whether written or verbal, with such independent contractor unless such employees or their legal representatives or beneficiaries elect, after injury or death, to regard such independent contractor as the employer."

In the present case, the record reveals that Pawelski acted as an independent contractor for Groceryland. Furthermore, the parties do not dispute Pawelski's failure to pay into the state workers' compensation fund. Under these circumstances, the city contends that Cooper was "in the service of" Pawelski, a non-complying employer. ⁵ Therefore, pursuant to R.C. 4123.01(A)(1)(b), the city insists that Groceryland, by virtue of its relationship with Pawelski, could be deemed Cooper's "employer" for purposes of his injury. Specifically, the city reasons:

"Faced with a non-complying employer (Pawelski) and one who entered into a contract with Pawelski (Groceryland), who could have and should have seen to Pawelski's compliance with the Act, as part of its contract with him, there is simply no statutory or other legal basis for imposing employer status, for purposes of the Ohio Workers' Compensation Act, on yet a third entity, the City of Dayton, merely because of its employment of Cooper at other times. The trial court's decision to do so, merely because Cooper elected to file his claim against the city and not against Pawelski or Groceryland, as permitted by the statute, constitutes an unprecedented and unwarranted judicial extension of statutory liability for workers' injuries."

This court would find the city's argument persuasive if Cooper had injured himself while stocking shelves or performing other work at Groceryland unrelated to his work as a Dayton police officer. As we will explain more fully below, however, Cooper was acting as a police officer at the time of his injury. Consequently, we conclude that the city of Dayton, not Groceryland or Pawelski, was Cooper's "employer" for workers' compensation purposes. As a result, we find R.C. 4123.01(A)(1)(b) inapplicable.

The city's reliance upon the statute ignores the role Cooper's status as a Dayton police officer played in his conduct. Contrary to the city's argument, the trial court did not impose "employer" status upon the city merely because of its employment of Cooper "at other times" or because he elected to file his claim against the city....