Kowal v. Ohio Poly Corp.

• Decision Date: 13 April 1987
• Docket Number: No. 17387-85-360,17387-85-360
• Citation: 34 Ohio Misc.2d 22,518 N.E.2d 61
• Parties: KOWAL et al. v. OHIO POLY CORPORATION. *
• Court: Ohio Court of Common Pleas

Page 22

34 Ohio Misc.2d 22

518 N.E.2d 61

KOWAL et al. v.OHIO POLY CORPORATION. ^*

No. 17387-85-360.

Court of Common Pleas of Ohio Carroll County.

April 13, 1987.

Syllabus by the Court

1. R.C. 4121.80(A), as applied byR.C. 4121.80(H), is unconstitutional where it operates to totally obliterate an existing substantive right in violation of Section 28, Article II of the Ohio Constitution.

2.The unconstitutional statute of limitations provisions of R.C. 4121.80(A) are totally separable from the remainder of that statute, and therefore the remaining provisions of the statute are constitutional.

3.In a proceeding under R.C. 4121.80, as to the issue of liability, a plaintiff-claimant has no right to a jury, and the ultimate decision on liability rests with the trial court alone as trier of fact, whether the facts are disputed (R.C. 4121.80[C] ) or not (R.C. 4121.80[C] ).

4."Intent to injure" within the meaning of R.C. 4121.80(G)(1) connotes having an express goal or purpose of causing injury, signifying a "purpose" to injure arrived at after careful planning or calculation in light and consideration of the potential consequences.

Patrick S. Cassidy and Cathy M. Armstrong, St. Clairsville, for plaintiffs.

John N. Childs, Akron, for defendant.

MARTIN, Judge.

I.Case Review

On December 6, 1985, plaintiffs filed their complaint seeking compensatory and punitive damages against defendant, Fred Kowal's former employer, based upon alleged intentional tort.(Blankenship v. Cincinnati Milacron Chemicals, Inc.[1982], 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572.)Defendant was properly served with summons and process on December 10, 1985.

Defendant, Ohio Poly Corporation, filed its answer on January 7, 1986, containing a general denial asserting affirmative defenses of the statute of limitations and failure to state a claim.

Pretrial conferences were convened on August 14, 1986 and January 12, 1987.Discovery being completed, leave was extended to defendant to move for partial summary judgment as to liability.Accordingly, defendant filed a Civ.R. 56summary judgment motion on February 11, 1987 with legal memorandum supported by the pleadings and Kowal's deposition.

Plaintiffs opposed said motion on March 16, 1987 with a memorandum of law supported by the depositions of Kowal and Virgadamo.On March 23, 1987, defendant filed a reply memorandum.

Oral hearing on the instant motion was held on March 25, 1987 with counsel present.At the conclusion of argument, the motion was taken "under advisement."

II.Legal Issues

Subsequent to the filing of this action on December 6, 1985, the Ohio General Assembly enacted R.C. 4121.80, effective August 22, 1986, pertaining to alleged employer intentional torts as part of Ohio's workers' compensation law.The legislature made the provisions of R.C. 4121.80 applicable to all claims pending in any court upon the above effective date (R.C. 4121.80[H] ), and therefore the summary judgment motion sub judice was argued, and must be adjudicated, in light of R.C. 4121.80.

The parties' arguments and positions raise essentially two issues, to wit:

(A) The constitutionality of R.C. 4121.80 as applied to the facts of this individual case, and

(B) Whether or not the remedy of summary judgment is available.

III.Relevant Facts

It is to be noted that defendant, in its own memorandum in support of its motion for summary judgment filed February 11, 1987, assumes, arguendo, "that Mr. Kowal's recitation of the facts is accurate."(Emphasis added.)Therefore, based upon the pleadings and evidentiary materials submitted, the court makes the following findings of undisputed "material" fact (construing same in a light most favorable to the plaintiff):

(A)Plaintiff Kowal became employed by defendant in September 1981 as an "extruder operator," and remained in that position until discharged on or about February 8, 1985.

(B) On or about December 7, 1983, plaintiff was operating ExtruderNo. 6, and in the course of said employment sustained a back injury and subsequently received Ohio workers' compensation benefits for this claim.

(C)ExtruderNo. 6 may have been, on and before December 7, 1983, improperly installed and/or maintained by defendant, rendering the machine a hazard, which improper installation and/or maintenance was known to both plaintiff and defendant.

(D)Plaintiff, contrary to past practice and accepted policy, declined to seek the assistance of other equipment and/or personnel in his attempt to lift a six-hundred-ten-pound roll of product on/off ExtruderNo. 6, which attempt was the proximate cause of his claimed injuries.

IV.Applicable Law and Opinion

(A) Constitutional Issues

Plaintiff has prosecuted this action on the authority of Blankenship, supra, and its progeny(e.g., Jones v. VIP Development Co.[1984], 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046), in which the Ohio Supreme Court first recognized the right at common law of an injured employee to seek damages in intentional tort against his employer, despite receiving workers' compensation benefits as well.Such right was held to be an exception to employer "immunity."While not directly addressed in Blankenship, such common-law right of action is apparently controlled by the two-year statute of limitations prescribed by R.C. 2305.10.

Plaintiff was injured in his employment on December 7, 1983, and timely filed the instant action for intentional employer tort on December 6, 1985 in accordance with R.C. 2305.10.

As noted, supra, the Ohio General Assembly thereafter enacted R.C. 4121.80 (Am.Sub.S.B. No. 307)effective August 22, 1986, which in pertinent part provides:

"(A) * * * Any action pursuant to this section shall be brought within one year of the employee's death or the date on which the employee knew or through the exercise of reasonable diligence should have known of the injury, disease, or condition, whichever date occurs first. * * *

"(H)This section applies to and governs any action based upon a claim that an employer committed an intentional tort against an employee pending in any court on the effective date of this section and all claims or actions filed on or after the effective date, notwithstanding any provisions of any prior statute or rule of law of this state."(Emphasis added.)

R.C. 4121.80 is new legislation, not an amendment, modification, or reenactment of a prior statute.The clear and unambiguous legislative intent in subsection (H) is that R.C. 4121.80 provisions are to be retroactively applied to all employer intentional tort claims pending in or out of any court as of August 22, 1986, or filed thereafter.This case is then clearly to be governed by R.C. 4121.80.

Defendant, in its motion for summary judgment sub judice and in its answer, contends first that plaintiff's cause of action is now barred by the one-year limitation provision of R.C. 4121.80(A), in that plaintiff should have filed suit on or before December 7, 1984, and did in fact not file until December 6, 1985.The parties concede that the application of R.C. 4121.80(A) to this case would, on its face, totally deprive plaintiff of any cause of action in intentional employer tort.

However, plaintiffs argue that R.C. 4121.80(A) as retroactively applied by subsection (H) thereof is unconstitutional and violative of Section 28, Article 2 of the Ohio Constitution.

Thus, we must address two questions: (1) is R.C. 4121.80(A)as applied byR.C. 4121.80(H) to the facts of this particular case unconstitutional, and (2) if so, does this render all provisions of R.C. 4121.80 constitutionally infirm and inapplicable to this case?

(A)(1) Constitutionality of R.C. 4121.80(A)

As general rules of statutory construction, enactments of the Ohio Legislature are "presumed" to be constitutional (Bartol v. Eckert[1893], 50 Ohio St. 31, 41, 33 N.E. 294, 295;State v. Sinito[1975], 43 Ohio St.2d 98, 101, 72 O.O.2d 54, 56, 330 N.E.2d 896, 898), and whenever a constitutional question arises, courts must "liberally" construe statutes in order to save them from constitutional "infirmities"(George v. Mann[1932], 29 Ohio N.P. [N.S.] 371).

"There is no question as to the right of the legislature to enact a limitation of actions statute," as same rests within the "sound discretion" of that body even if meritorious claims may be cut off (66 Ohio Jurisprudence 3d [1986] 135, Section 6).

In enacting a statute, it is "presumed" that compliance with the United States and Ohio Constitutions is intended; the entire statute is intended to be effective; a just and reasonable result is intended; and a result feasible of execution is intended (R.C. 1.47).

R.C. 1.48 provides that "a statute is presumed to be prospective in its operation unless expressly made retrospective."(Emphasis added.)However, if the statute declares itself applicable to existing causes of action, then that declaration governs (66 Ohio Jurisprudence 3d [1986] 143, Limitations and Laches, Section 12).

Section 28, Article II of the Ohio Constitution further provides:

"The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; but may, by general laws, authorize courts to carry into effect, upon such terms as shall be just and equitable, the manifest intention of parties, and officers, by curing omissions, defects, and errors, in instruments and proceedings arising out of their want of conformity with the laws of this state."

In applying the above provisions and in cases too numerous to cite here, it has been held that a statute"which relates exclusively to remedial rights is not within the purview of the constitutional inhibition against the legislative enactment of retroactive laws, and there is no constitutional inhibition in the state of Ohio against the enactment of laws relating to the remedy, and against making them applicable to pending actions and existing causes of action."(Emphasis added.)(66...