Everhart v. Merrick Mfg. II LLC

Docket Number29520
Decision Date22 December 2022
Citation204 N.E.3d 620
Parties Darryl EVERHART, Plaintiff-Appellant v. MERRICK MANUFACTURING II LLC, et al., Defendants-Appellees
CourtOhio Court of Appeals

DAVID R. GRANT, Atty. Reg. No. 0065436 and FRANK L. GALLUCCI, III, Atty. Reg. No. 0072680, 55 Public Square, Suite 2222, Cleveland, Ohio 44113, PAUL W. FLOWERS, Atty. Reg. No. 0046625, LOUIS E. GRUBE, Atty. Reg. No. 0091337 and MELISSA A. GHRIST, Atty. Reg. No. 0096882, Terminal Tower, 40th Floor, 50 Public Square, Cleveland, Ohio 44113, JOHN A. SMALLEY, Atty. Reg. No. 0029540, 131 North Ludlow Street, Suite 1400, Dayton, Ohio 45402, Attorneys for Plaintiff-Appellant, Darryl Everhart

DANIEL F. GOURASH, Atty. Reg. No. 0032413 and JEFFREY S. MOELLER, Atty. Reg. No. 0074512, 26600 Detroit Road, Suite 300, Westlake, Ohio 44145, Attorneys for Defendant-Appellee, StampTech, Inc.

PATRICIA J. TROMBETTA, Atty. Reg. No. 0005451 and THOMAS F. GLASSMAN, Atty. Reg. No. 0061466, 312 Walnut Street, Suite 2530, Cincinnati, Ohio 45202, Attorney for Defendant-Appellee, Bill's Machine Service, Inc.

CHRISTOPHER C. KOEHLER, Atty. Reg. No. 0059384 and LINDSEY CARR SIEGLER, Atty. Reg. No. 0074182, 200 Public Square, Suite 3000, Cleveland, Ohio 44114, Attorneys for Defendants-Appellees, Nidec Minster Corp. and The Minster Machine Co.

DOUGLAS S. JENKS, Atty. Reg. No. 0079647 and DAVID M. RICKERT, Atty. Reg. No. 0010483, 110 North Main Street, Suite 1000, Dayton, Ohio 45402, Attorneys for Defendants-Appellees, Merrick Manufacturing II LLC and Stephen Smith



{¶ 1} Plaintiff-Appellant, Darryl Everhart, appeals from trial court judgments dismissing his personal injury action against the following Defendants-Appellees: StampTech, Inc. ("StampTech"); Nidec Minster Corporation and Minster Machine Company (collectively, "Minster"), and Bill's Machine Service, Inc. ("Bill's Machine").1 According to Everhart, the trial court erred in dismissing his claims under Civ.R. 12(B)(1) based on lack of subject matter jurisdiction. Everhart further contends that the court abused its discretion by failing to let him conduct discovery into fact-intensive issues raised by the Appelleesmotions to dismiss.

{¶ 2} For the reasons discussed below, we conclude that the trial court erred in dismissing the case under Civ.R. 12(B)(1) for lack of subject matter jurisdiction. The court's decision was based on the statute of repose in R.C. 2305.10(C), which bars product liability claims that are not filed within the time specified in the statute. However, this statute does not involve subject matter jurisdiction, which pertains to the court's power to entertain and adjudicate a particular class of cases. Instead, application of the repose statute involves the rights of the parties in a particular case. Furthermore, R.C. 2305.10(C) does not explicitly remove the common pleas court's jurisdiction to hear cases.

{¶ 3} Instead of focusing on subject matter jurisdiction, the trial court should have considered whether the complaint failed to state a claim. Alternatively, if the court were going to consider evidence outside the complaint (as it did here), it should have allowed Everhart to conduct discovery. Failure to do so was an abuse of discretion. Accordingly, the judgment of the trial court will be reversed, and this cause will be remanded for further proceedings.

I. Facts and Course of Proceedings

{¶ 4} On April 17, 2019, Everhart filed a personal injury complaint against the following parties: Merrick Manufacturing II, LLC ("Merrick II"); Stephen Smith (an owner, officer, manager, and/or owner of Merrick II); StampTech; Minster; Merrick Manufacturing LLC ("Merrick I") and (Bill's Machine). According to the complaint, Everhart was injured on April 20, 2017, while operating a press identified as a Minster 60 ton OBI press ("Press"). Everhart was an employee of Merrick II and was operating the Press in "single" mode rather than "continuous" mode. When Everhart reached into the Press with his right hand to retrieve a finished piece, the Press suddenly started operating automatically or continuously and caused severe damage to Everhart's right hand.

{¶ 5} The complaint alleged that the Press was not properly equipped with point of operation guarding, in violation of 29 C.F.R. 1910.212(a)(3)(ii) and Ohio Adm.Code 4123-1-5-10(D), and also failed to comply with safety requirements in 29 C.F.R. 1910.217, which included: "(a) having a control system with control reliability; (b) having a brake system monitor; (c) conducting periodic and regular inspections, testing, maintenance and repair of all parts, auxiliary equipment and safeguards including the clutch/brake mechanism, antirepeat feature, and single-stroke mechanism; and (d) maintaining a certified record of each inspection, each maintenance and each repair task performed." Complaint, ¶ 16.

{¶ 6} The complaint alleged several bases of liability, including: (1) a statutory workplace intentional tort claim against Merrick II; (2) a negligence claim against StampTech, Minster, Merrick I, and Bill's Machine; (3) a product liability claim against StampTech, Minster, and Bill's Machine as "manufacturers" under R.C. 2307.71(A)(9) ; (4) an alternate product liability claim against StampTech, Minster, and Bill's Machine as "suppliers" as defined in R.C. 2307.71(A)(15)(a) ; and (5) a "Common Law Blankenship; Fyfe Co-employee Intentional Tort" claim against Smith. Complaint, ¶ 18-81.

{¶ 7} On May 7, 2019, StampTech filed an answer and raised various defenses, including that the complaint failed to state a claim and was barred by the statute of repose in R.C. 2305.10(C)(1). StampTech Answer at ¶ 22 and 24. Bill's Mechanic then filed an answer on May 9, 2019, and included various affirmative defenses. However, Bill's Mechanic, while raising failure to state a claim, did not raise either the statute of limitations or the statute of repose as defenses.

{¶ 8} On May 16, 2019, Minster filed a motion to dismiss based on lack of jurisdiction under Civ.R. 12(B)(1). Minster's motion was based on the ten-year statute of repose in R.C. 2305.10(C)(1) and the fact that it had manufactured and sold the Press more than 40 years earlier. Minster attached an affidavit indicating that Borg & Beck, a division of Borg-Warner Corporation in Sterling Heights, Michigan, ordered three presses, including the Press, and that an order was generated on June 11, 1974. Affidavit of Russell Bensman, attached as Ex. 1 ("Bensman Aff."), ¶ 2-3. Nidec Minster then manufactured and shipped the Press to the original purchaser, Borg & Beck, on January 8, 1975. Id. at ¶ 4-5. The original order and packing list were attached to the affidavit as Exs. 1-A and 1-B.

{¶ 9} Subsequently, on May 17, 2019, Merrick II and Smith filed an answer, denying liability and raising affirmative defenses of failure to state a claim and the bar of the statute of limitations or repose. Merrick II and Smith Answer, ¶ 83 and 95.

{¶ 10} Everhart then asked for and received an extension of time until June 13, 2019, to respond to Minster's motion to dismiss. On June 10, 2019, StampTech also filed a motion to dismiss based on lack of subject matter jurisdiction under Civ.R. 12(B)(1). StampTech's motion was based on the statute of repose in R.C. 2305.10(C) and the fact that Everhart's purported negligence claim was actually a product liability claim that had been abrogated by the Ohio Products Liability Act ("OPLA").

{¶ 11} The affidavit and exhibits attached to StampTech's motion indicated that StampTech had purchased the Press at auction on April 10, 2012, for $10,350. After purchasing the Press, StampTech inspected it and "performed certain minor repairs, including inspection of the bearing clearance, lubrication, and electric system, repair/replacement of the clutch and brake with new OEM parts from Defendant Nidec Minster Corporation, [and] installation of Ross dual ergonomic palm buttons and of a new Cisco time based brake monitor." Tony Amato Affidavit ("Amato Aff."), ¶ 5. In addition, the Press was "cleaned, painted and inspected under power." Id. According to Amato, "[a]ll functions of the Press were found to be performing properly. The Press was not substantially rebuilt, remanufactured, or reconditioned." Id.

{¶ 12} Following these repairs, StampTech sold the Press to Merrick "as is," with a 30-day "Used Equipment Warranty" on April 3, 2013. Id. at ¶ 7-8. Subsequently, StampTech credited Merrick for repairs that Bill's Machine and others made around June 2013. Id. at ¶ 8 and Ex. A-4 attached to the Amato Aff.

{¶ 13} On June 13, 2019, Everhart filed a consolidated response to the motions to dismiss as well as a motion for a 120-day extension of time to conduct discovery. In addition to arguing that Civ. R. 12(B)(1) was not the appropriate vehicle, Everhart argued that even if a potential subject matter jurisdiction argument had been raised, he should be able to depose the witnesses who executed the affidavits and to review all relevant records. PlaintiffsConsolidated Memorandum in Opposition to Motion to Dismiss (June 13, 2019), p. 8. Minster filed its reply memorandum in support of its motion to dismiss on June 26, 2019, and StampTech filed its reply memorandum the following day. Everhart then submitted two notices of supplemental authority, to which Minster and StampTech responded.

{¶ 14} On August 29, 2019, the trial court filed a decision sustaining the motions to dismiss filed by Minster and StampTech. The court concluded that it lacked subject matter jurisdiction because the statute of repose in R.C. 2305.10(C)(1) expired in January 1985, and the products liability claim against these parties never existed. Decision, Order and Entry (Aug. 29, 2019), p. 4. The court further found that because the cause of action did not exist, allowing discovery would not remedy the issue. Id. Finally, the court held that because Minster and StampTech were being sued as "manufacturers...

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