Egan v. National Distillers & Chemical Corp.

• Decision Date: 30 July 1986
• Docket Number: No. 85-699,85-699
• Citation: 25 OBR 243,495 N.E.2d 904,25 Ohio St.3d 176
• Parties: , 25 O.B.R. 243 EGAN et al., Appellees, v. NATIONAL DISTILLERS & CHEMICAL CORPORATION, d.b.a. Emery Industries, Appellant.
• Court: Ohio Supreme Court

Page 176

25 Ohio St.3d 176

495 N.E.2d 904, 25 O.B.R. 243

EGAN et al., Appellees, v. NATIONAL DISTILLERS & CHEMICAL CORPORATION, d.b.a. Emery Industries, Appellant.

No. 85-699.

Supreme Court of Ohio.

July 30, 1986.

Syllabus by the Court

Where the grant of summary judgment favorable to a defendant neither considers nor awards damages, an issue pertaining to damage setoffs raised by the defendant-appellant for the first time on appeal to the Supreme Court will not be entertained because it is not a justiciable issue. Any opinion the court might express regarding such setoffs to damages not actually awarded would be purely advisory, and it is well-settled that this court will not indulge in advisory opinions.

Appellee Leroy F. Egan was employed by appellant National Distillers & Chemical Corporation, d.b.a. Emery Industries ("National Distillers"), at its chemical manufacturing and processing plant in Cincinnati, Ohio. A chemical explosion occurred on February 18, 1982 at the plant and appellee was severely injured. Four days later an application for workers' compensation benefits was filed on behalf of Egan. The application was not contested by appellant which, as a self-insured employer, had paid the maximum workers' compensation benefits together with medical expenses. In March 1983, appellee sought additional benefits for, inter alia, post-traumatic neurosis. These benefits were also awarded.

Approximately one year after the explosion, Leroy and Catherine S. Egan, appellees herein, filed a nine-count complaint against appellant. The complaint essentially claims that Leroy's injuries resulted from intentional tort(s) committed by National Distillers. ¹

Thereafter, the trial court granted appellant's motion for summary judgment. The trial court recognized that a complying employer is not entitled to the immunity of R.C. 4123.74 if an employee's injury is caused by the employer's intentional conduct. However, the motion for summary judgment was nevertheless granted in favor of National Distillers. The trial court essentially reasoned that under the doctrine of election of remedies, Leroy's receipt of workers' compensation payments estopped him from also maintaining a civil suit.

On appeal, the court of appeals, relying on the decision in Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90, 472 N.E.2d 1046, reversed the trial court and remanded the cause for further proceedings. The appellate court reasoned that the "doctrine of estoppel" was not applicable to an employee's common-law action for damages against his employer for an intentional tort. The court of appeals also observed that "[i]t is immaterial whether the workers' compensation benefits are sought before, after or concurrently with the suit for common law damages."

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Steer, Strauss, White & Tobias and R. Guy Taft, Cincinnati, for appellees.

Dinsmore & Shohl, Mark A. Vander Laan and Patrick D. Lane, Cincinnati, for appellant.

CELEBREZZE, Chief Justice.

The first proposition of law presented by appellant is that when an injured worker receives workers' compensation benefits from the employee's self-insured employer for an injury received at work, and thereafter is awarded intentional tort damages against his employer for the same injury, the amount of workers' compensation paid by the employer must be set off against the damage award.

We previously rejected such a contention in paragraph three of the syllabus in Jones, supra, which held that "[a]n employer who has been held liable for an intentional tort is not entitled to a setoff of the award in the amount of workers' compensation benefits received by the employee or his representative."

More importantly, in this case we conclude that appellant's first proposition of law is not an issue properly before the court. This is because there has been no damage award in this case. The controversy is not ripe. The trial court ruled in appellant's favor on its motion for summary judgment. Appellant's stated basis for its motion for summary judgment was that " * * * acceptance of worker's [sic ] compensation benefits paid by * * * [appellant] * * * represents a binding election between mutually exclusive legal remedies or, in the alternative, that * * * [appellee] is estopped from maintaining this action." The trial court simply did not reach or rule on the setoff issue as the question of damages was not before it.

Likewise, the court of appeals passed "only on the validity of the final appealable order, which was grounded on the now-repudiated doctrine of estoppel." This court will not ordinarily consider a claim of error which is neither raised nor considered by the court below. State v. Williams (1977), 51 Ohio St.2d 112, 364 N.E.2d 1364 , paragraph two of the syllabus. Additionally, " ' * * * it is well-settled that this court does not indulge itself in advisory opinions.' " Cascioli v. Central Mut. Ins. Co. (1983), 4 Ohio St.3d 179, 183, 448 N.E.2d 126, quoting Armco, Inc. v. Pub. Util. Comm. (1982), 69 Ohio St.2d 401, 406, 433 N.E.2d 923 . See, also, White Consolidated Industries v. Nichols (1984), 15 Ohio St.3d 7, 471 N.E.2d 1375. Cf. Muskrat v. United States (1911), 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246.

Under the circumstances herein we hold that where the grant of summary judgment favorable to a defendant neither considers nor awards damages, an issue pertaining to damage setoffs raised by the defendant-appellant for the first time on appeal to the Supreme Court will not be entertained because it is not a justiciable issue. Any opinion the court might express regarding such setoffs to damages not actually awarded would be purely advisory, and it is well-settled that this court will not indulge in advisory opinions.

In its second proposition of law, appellant contends that an employee who elects to receive workers' compensation benefits should be equitably and judicially estopped from subsequently suing his employer on an intentional tort theory. Appellant draws our attention to early decisions from this court which ruled that a workers' compensation recipient " * * * is estopped thereby from afterward maintaining an action for damages in court against his employer who has complied with the Workmen's Compensation Act." Lopez v. King Bridge Co. (1923), 108 Ohio St. 1, 140 N.E. 322, syllabus. See, also, Conrad v. Youghiogheny & Ohio Coal Co. (1923), 107 Ohio St. 387, 140 N.E. 482, paragraph three of the syllabus.

In the instant case the trial court granted appellant's motion for summary judgment based on this reasoning. The appellate court, relying on our decision in Jones, reversed the lower court's judgment, which the court of appeals noted " * * * was grounded on the now-repudiated doctrine of estoppel."

For the reasons that follow, we agree with the appellate court that summary judgment was improperly granted in favor of appellant on its doctrine of estoppel theory.

First, we find the holdings in Lopez and Conrad to be unpersuasive in this case for several reasons. A first reading of the law of these cases, as set forth in the syllabus quoted above, would appear to be persuasive. However, any syllabus holding announced by the Supreme Court must be considered in connection with the underlying opinion and in light of the questions, facts and statutes at issue in the case. United States Steel Corp. v. Bowers (1960), 170 Ohio St. 558, 565, 167 N.E.2d 87 ; State, ex rel. Reed, v. DeMaioribus (1936), 131 Ohio St. 201, 205, 2 N.E.2d 506 ; Columbus Ry., Power & Light Co. v. Harrison (1924), 109 Ohio St. 526, 143 N.E. 32; Merrick v. Ditzler (1915), 91 Ohio St. 256, 264, 110 N.E. 413; Booco v. Mansfield (1902), 66 Ohio St. 121, 64 N.E. 115; Rule 1(B), Supreme Court Rules for the Reporting of Opinions. In this regard we note that in both Lopez and Conrad the workers were attempting to file civil negligence actions following receipt of benefits. Additionally, the decisions in those cases hinged on early and now former provisions of Ohio's General Code which provided workers the option in certain cases to either accept benefits or file a civil action. G.C. 1465-76 provided in pertinent part that " '[e]very employe, or his legal representative in case death results, who makes application for an award, or accepts compensation from an employer * * * waives his right to exercise his option to institute proceedings in any court.' " Conrad, 107 Ohio St. at 391, 140 N.E. 482. ² It was this statute which the court relied on in Lopez to reach its conclusion that " * * * [h]aving elected to pursue his remedies under the Workmen's Compensation Act, and having accepted the benefits thereof, he is estopped from now maintaining an action in court against his employer." Id., 108 Ohio St. at 6, 167 N.E.2d 87. In light of these distinctions, among others, we do not believe this past precedent is at odds with the instant appellate court judgment or our recent decision in Jones, supra.

These cases, however, do serve as a reminder that no single formulation of the doctrine of estoppel is applicable to every situation. In applying the doctrine, each case must be considered on its own merits. First Federal S. & L. Assn. v. Perry's Landing, Inc. (1983), 11 Ohio App.3d 135, 144, 463 N.E.2d 636. See, also, Hampshire City Trust Co. v. Stevenson (1926), 114 Ohio St. 1, 11, 150 N.E.2d 726.

A consideration of the doctrine of estoppel is found in our decision in Jones, supra, which rejected the argument that receipt of workers' compensation benefits bars a worker's subsequent intentional tort action against the employer. Id. at 99, 150 N.E.2d 726. Our holding in Jones, in light of the facts presented herein, is clearly dispositive of appellant's contentions. It reads as follows:

"The receipt of workers' compensation benefits does not preclude an employee or his representative from pursuing a common-law action for...