Roberts v. Treasurer
| Decision Date | 27 December 2001 |
| Docket Number | 01AP-557 and 01AP-558.,No. 01AP-535,01AP-535 |
| Citation | 147 Ohio App.3d 403,770 NE 2d 1085 |
| Parties | ROBERTS, Appellant, v. TREASURER, State of Ohio, et al., Appellees. Butcher, d.b.a. Butcher & Son Excavating, Appellant, v. Industrial Commission of Ohio, et al., Appellees. Stump, Appellant, v. Treasurer, State of Ohio, et al., Appellees. |
| Court | Ohio Court of Appeals |
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Jeffries, Kube, Forrest & Monteleone Co., L.P.A., and Mark E. Barbour, for John Roberts.
Mary Ann Ferguson-Rich, for Fred Butcher, d.b.a. Butcher & Son Excavating.
McIntyre, Kahn, Kruse & Gillombardo Co., L.P.A., Robert W. McIntyre and Mark F. Kruse, for Frank Stump.
Betty D. Montgomery, Attorney General, and Peggy W. Corn, Assistant Attorney General, for appellees.
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{¶ 1} This matter concerns three separate cases consolidated for the purposes of appeal. John Roberts, plaintiff-appellant, appeals from a judgment of the Ohio Court of Claims denying his motion for summary judgment and granting a motion for summary judgment in favor of Treasurer, State of Ohio ("Treasurer"), Industrial Commission of Ohio ("commission"), and Bureau of Workers' Compensation ("bureau"), defendants-appellees. Fred Butcher ("Butcher"), plaintiffappellant, appeals a judgment of the Ohio Court of Claims denying his motion for summary judgment and granting a motion for summary judgment in favor of the state of Ohio ("state"), commission, and the bureau. Frank Stump, plaintiff-appellant, appeals from a judgment of the Ohio Court of Claims denying his motion for summary judgment and granting a motion for summary judgment in favor of the Treasurer, commission, and the bureau. (The Treasurer, commission, bureau, and state may be referred to either collectively or in various combinations as "appellees" for the remainder of this opinion.)
{¶ 2} In 1986, the Ohio General Assembly enacted former R.C. 4121.80, which directed the state of Ohio to provide liability insurance to Ohio employers for claims of intentional tort filed by employees of Ohio employers. All Ohio employers were required to make premium payments into the Ohio Intentional Tort Fund ("ITF") via the commission and bureau. Self-insurance or insurance by commercial insurers was not permitted. The claims of intentional tort were to be heard in county common pleas courts to determine liability. If the court found an intentional tort had occurred, the matter was submitted to the commission for a damages determination. Any damages awarded and attorney fees incurred by the employer were to be paid from the ITF. On August 27, 1991, the Supreme Court of Ohio found R.C. 4121.80 unconstitutional in Brady v. Safety-Kleen (1991), 61 Ohio St.3d 624, 576 N.E.2d 722. Pursuant to Brady, the state ceased making damages determinations and ceased paying funds out of the ITF, although the fund continued to accrue interest.
{¶ 3} On June 30, 1992, the Ohio General Assembly enacted Section 5, S.B. No. 192, effective September 29, 1992. Section 5 provided that the monies held in the custody of the Treasurer in the ITF under former R.C. 4121.80 would be transferred to the Workers' Compensation Intentional Tort Disbursement Fund. Section 5 also provided that the bureau could distribute (1) attorney fees not to exceed $1,000,000 for services provided to employers under former R.C. 4121.80; (2) administrative fees not to exceed $50,000; and (3) the remaining monies on a pro-rata basis to the employers that had previously made premium payments, reduced by "the amount paid or to be paid by the Industrial Commission or Bureau either in employer attorney's fees or as an award on behalf of such an employer brought under former section 4121.80 of the Revised Code." On September 24, 1992, the operation of S.B. No. 192 was stayed by order of the federal district court in Rossborough Mfg. Co. v. J. Wesley Trimble (Sept. 24, 1992), N.D.Ohio No. 1:92 CV 1916, in which Rossborough Manufacturing Company challenged the constitutionality of S.B. No. 192. Roberts and Stump, as well as others, intervened as plaintiffs in Rossborough. On October 3, 1995, the claims of all plaintiffs were dismissed for failure to state a claim for which relief can be granted and lack of subject matter jurisdiction. An appeal was filed, and the appeal remains pending in the Sixth Circuit Court of Appeals.
{¶ 4} With regard to the specific appellants in the present case, Roberts was injured on September 3, 1986, when a portion of his left hand was amputated by a saw while at his place of employment, Rhodes Industries, Inc. ("Rhodes"), in Avon Lake, Ohio. The safety guard for the saw had allegedly been removed by Rhodes. In 1987, Roberts filed a complaint in the Lorain County Common Pleas Court against Rhodes for an intentional tort pursuant to former R.C. 4121.80, and the trial court found that Rhodes was liable for an intentional tort. On October 6, 1989, Roberts filed an application for a damage award with the commission. While the matter was still pending, on August 27, 1991, the Ohio Supreme Court decided Brady. The commission thus determined that it no longer had the authority to pay claims from the ITF pursuant to R.C. 4121.80.
{¶ 5} On September 27, 1991, Roberts filed an action in the Lorain County Common Pleas Court against Rhodes seeking a determination of damages as a result of the earlier determination of liability. This action was placed on the inactive docket, and the liability determination was never reduced to damages. On August 28, 1992, Roberts filed a complaint in the Court of Claims against the Treasurer, commission, and the bureau seeking a judgment declaring that he had a valid, vested right to a portion of the ITF and requesting a determination and payment of damages as a result of the intentional tort of Rhodes. In November 1992, the parties filed cross-motions for summary judgment. The court ordered a stay due to the proceedings in Rossborough, in which Roberts had intervened. On August 31, 2000, the trial court lifted the stay and denied the motions for summary judgment. In March 2001, both parties again filed motions for summary judgment, and on April 13, 2001, the trial court granted summary judgment in favor of the Treasurer, commission, and the bureau. Roberts appeals from this judgment.
{¶ 6} Larry Moyer was an employee of Butcher & Son, which is owned by appellant Butcher. On March 29, 1989, Moyer was killed by an explosion while working on the premises of Butcher & Son. In March 1990, Moyer's estate filed a complaint against Butcher & Son claiming that Moyer's death was the result of an intentional tort. After Brady was determined on August 27, 1991, the state refused to process intentional tort claims, leaving Butcher exposed to a judgment against his company. Butcher then entered into a settlement with Moyer's family in August 1992. On August 9, 1993, Butcher filed a complaint against the state, commission, and the bureau in the Court of Claims, seeking reimbursement of funds expended in the settlement and attorney fees incurred in defending the intentional tort claim filed by Moyer's estate. On September 13, 1993, the action was stayed pending the outcome of Rossborough. The Court of Claims lifted the stay on December 29, 2000, and in March 2001, the parties filed cross-motions for summary judgment. On April 13, 2001, the Court of Claims granted summary judgment in favor of the state, commission, and the bureau. Butcher appeals from this judgment.
{¶ 7} On April 29, 1988, Stump was injured while performing work pursuant to his employment with Industrial Steeplejack Co. ("ISJ"). On April 12, 1989, Stump filed an intentional tort lawsuit in Cuyahoga County Common Pleas Court against ISJ. On May 21, 1991, he received a liability judgment against ISJ. The case was appealed, but while pending on appeal, Brady was decided. The Cuyahoga County Court of Appeals remanded the matter to the trial court, finding that because R.C. 4121.80 had been found unconstitutional in Brady, judgment on the issue of liability only without determining damages was not a final order. Upon remand, a damages hearing was held by the common pleas court, and Stump was awarded damages in the principal amount of $1,026,967.60 against ISJ. The judgment was affirmed in Stump v. Indus. Steeplejack Co. (1995), 104 Ohio App.3d 86, 661 N.E.2d 212.
{¶ 8} On December 16, 1991, during the pendency of the first appeal in the Cuyahoga County case, Stump filed an action in the Court of Claims against the Treasurer, commission, and the bureau, alleging that he had an interest in the ITF. On January 2, 1992, a stay was ordered during the pendency of Rossborough, in which Stump had intervened. The stay was vacated on September 26, 2000, and the parties filed cross-motions for summary judgment in March 2001. On April 13, 2001, the court granted summary judgment in favor of the Treasurer, commission, and the bureau. Stump appeals this judgment.
{¶ 9} Roberts asserts the following assignments of error:
{¶ 10} "Assignment of Error # 1: The trial court erred in granting the Defendant's Motion for Summary Judgment.
{¶ 11} "Assignment of Error # 2: The trial court erred in denying the Plaintiffs Motion for Summary Judgment."
{¶ 12} Stump asserts the following assignment of error:
{¶ 13} "Assignment of Error: The trial court erred in granting the Defendants' Cross-Motion for Summary Judgment and in denying the Plaintiffs Cross-Motion for Summary Judgment."
{¶ 14} Butcher asserts the following assignments of error:
{¶ 15} "Assignment of Error Number One
{¶ 16} "The lower court erred in granting defendants-appellees' motion for summary judgment as genuine issues of material fact were in existence as to the state of Ohio's breach of its agreement with appellant and its inequitable denial of plaintiff-appellants' claim for...
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