Galouzis v. Americoat Painting Co., 2009 Ohio 204 (Ohio App. 1/14/2009)

CourtUnited States Court of Appeals (Ohio)
Citation2009 Ohio 204
Docket NumberNo. 08-MA-196.,08-MA-196.
PartiesThemelis A. Galouzis, et al., Plaintiffs-Appellants, v. Americoat Painting Co., et al., Defendants-Appellees.
Decision Date14 January 2009

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2009 Ohio 204
Themelis A. Galouzis, et al., Plaintiffs-Appellants,
v.
Americoat Painting Co., et al., Defendants-Appellees.
No. 08-MA-196.
Court of Appeals of Ohio, Seventh District, Mahoning County.
Dated: January 14, 2009.

Civil Appeal from Court of Common, Pleas of Mahoning County, Ohio, Case No. 06CV632.

Appeal dismissed.

Walter Kaufmann, Boyd, Rummel, Carach, Curry, Kaufmann & Bins-Castronovo, LPA, P.O. Box 6565, Youngstown, Ohio 44501-6565, For Plaintiffs-Appellants.

Barry Murner, Americoat Janik, Dorman & Winter, LLP, 9200 South Hills Blvd., Suite 300, Cleveland, Ohio 44147-3521, for Defendant-Appellee.

Edward Saadi, Ohio Bureau of Workers Compensation 970 Windham Court, Suite 7, Youngstown, Ohio 44512, for Defendant-Appellee.

Judges: Hon. Gene Donofrio, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro.

OPINION AND JUDGMENT ENTRY

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PER CURIAM.


{¶1} This cause comes on appeal from a September 4, 2008 judgment of the Common Pleas Court overruling the appellants' motion to dismiss the cross-claim of the Ohio Bureau of Workers' Compensation (hereafter Bureau) and overruling the appellants' motion for declaratory judgment or partial summary judgment against the Bureau. The trial court included Civ.R. 54(B) language in the order.

{¶2} In response to a jurisdictional order issued by this Court the respective parties have filed opposing memorandums on the appealability of the September 4, 2008 judgment entry. The question of appealability now comes on for determination.

History of the Case

{¶3} On February 16, 2006, Appellants Themelis Galouzis and Nicholas Poniris, along with their respective spouses, filed an intentional tort complaint against their employer and certain John Doe companies for serious injuries received when the scaffolding they were working on collapsed at a highway bridge construction site. An amended complaint was filed on March 24, 2006 naming Safety Control Technology Inc. as an additional party defendant along with the employer, Americoat Painting Co. A second amended complaint was filed on March 27, 2008, acknowledging the Bureau's right to subrogation of amounts received from a non-employer defendant. Subsequently, on May 8, 2008 the Bureau of Workers' Compensation filed an answer to the second amended complaint, asserting a statutory subrogation right under R.C. 4123.93 et. seq. since the injured appellants had filed claims for their employment related injuries. The Bureau was then realigned as a party plaintiff. On June 27, 2008, as a new party plaintiff, the Bureau filed a complaint detailing the compensation it had already paid to the appellants and praying for combined additional damages exceeding One Million Five Hundred Thousand Dollars for "...medical and compensation benefits paid, plus the estimated future costs of this claim, plus any additional amounts expended for medical and compensation benefits, rehabilitation costs, and any other costs or expenses ...."

{¶4} On July 16, 2008 appellants filed a Motion for Declaratory Judgment or Partial Summary Judgment Against the Ohio Bureau of Workers' Compensation,

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seeking an order that the Bureau has no right to recover any subrogated amount from the employer. By such motion appellants argued that the Bureau has a right to recover subrogated amounts from third parties, but not the employer in an intentional tort action.

{¶5} On July 30, 2008 Safety Controls Technology Inc. was granted summary judgment. The order giving rise to this appeal was entered thereafter on September 4, 2008.

Subrogation

{¶6} The right of subrogation by the Bureau of Workers' Compensation is codified in R.C. 4123.931(A) wherein it is stated:

{¶7} "The payment of compensation or benefits pursuant to this chapter or Chapter 4121.4127., or 4131., of the Revised Code creates a right of recovery in favor of a statutory subrogee against a third party, and the statutory subrogee is subrogated to the rights of a claimant against that third party. The net amount recovered is subject to a statutory subrogee's right of recovery."

{¶8} The remainder of the statute addresses a formula to determine the subrogation amounts or the procedures available to...

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