Saunders v. Holzer Hosp. Found., No. 06CA3.

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: Per Curiam
• Citation: 2008 Ohio 1032,891 N.E.2d 1202,176 Ohio App.3d 275
• Decision Date: 04 March 2008
• Docket Number: No. 06CA3.
• Parties: SAUNDERS et al., Appellants, v. HOLZER HOSPITAL FOUNDATION et al., Appellees.

891 N.E.2d 1202 176 Ohio App.3d 275 2008-Ohio-1032 SAUNDERS et al., Appellants,
v.
HOLZER HOSPITAL FOUNDATION et al., Appellees. No. 06CA3. Court of Appeals of Ohio, Fourth District, Gallia County. Decided March 4, 2008.

[891 N.E.2d 1204]

Frank A. Ray and Janica A. Pierce, Columbus, for appellants.

Patrick Kasson, Columbus, for appellees.

PER CURIAM.

176 Ohio App.3d 278

{¶ 1} This is an appeal from a Gallia County Common Pleas Court summary judgment in favor of Holzer Hospital Foundation and Michael Z. Hemphil, defendants below and appellees herein. Alicia and Charles Saunders, plaintiffs below and appellants herein, raise the following assignments of error for review:¹

First Assignment of Error

Whether appellee Holzer Medical Center is immune from the medical malpractice claim of appellants Alicia Saunders

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and Charles Saunders' [sic] for Mrs. Saunders' alleged injury, which occurred on October 23, 2003, due to negligently administered medical treatment of a prior workplace injury by appellee Michael Z. Hemphil, a physical therapist employed by Holzer.

Second Assignment of Error

With regard to Mrs. Saunders' claimed injuries due to Hemphil's negligence, whether Holzer is subject to the dual capacity doctrine as not only Mrs. Saunders' employer but also Mrs. Saunders' medical provider.

Third Assignment of Error

Whether the fellow-employee immunity statute bars Mrs. Saunders from pursuing a negligence claim for personal injury against Hemphil if his services at issue were performed on behalf of Holzer where Holzer was Mrs. Saunders' medical provider under the dual capacity doctrine.

{¶ 2} On April 26, 2003, Alicia Saunders suffered a neck injury while employed as a delivery-room nurse at Holzer. She received workers' compensation benefits for her injury. Saunders alleges that on October 23, 2003, while she was

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receiving physical therapy during her working hours for her work-related injury, Hemphil, a Holzer employee, negligently caused further injury to her neck.

{¶ 3} Appellants filed a medical-negligence and loss-of-consortium complaint against Holzer and Hemphil. Subsequently, appellees requested summary judgment and asserted that (1) Holzer is immune from appellants' negligence claim pursuant to the workers' compensation act, (2) the fellow-employee immunity statute bars appellants' claim against Hemphil, (3) Holzer did not assume a dual capacity, and that doctrine does not apply to Hemphil, a fellow employee, and (4) because appellants do not have a viable claim against Hemphil, their claims against Holzer must fail on agency principles. Appellees supported their motion with (1) appellants' answer to appellees' first request for admissions and interrogatories, (2) Holzer Medical Center assessments, (3) Saunders's deposition, (4) Rosie Ward's affidavit, (5) Hemphil's affidavit, and (6) appellees' second set of interrogatories and request for admissions that appellants failed to answer.

{¶ 4} According to appellees, the evidentiary materials reveal that Saunders received physical therapy through Holzer Work Link, a work-injury-management service that Holzer offered, and workers' compensation covered the physical therapy visit during which she allegedly suffered her second injury. Also, Holzer paid all medical bills associated with Saunders's injury under its self-insured workers' compensation system and Saunders received workers' compensation benefits for her off-work time due to the injury that she suffered during physical therapy. Appellees noted that Saunders stated in her deposition that she has not worked since the October 2003 injury and that the October 2003 injury was an additional condition added on to her original claim. Saunders testified that she receives temporary total disability benefits from Holzer's workers' compensation program.

{¶ 5} Thus, appellees argued that because Saunders received workers' compensation for her October 2003 injury and has been completely compensated, she is not entitled to pursue a negligence claim and is not entitled to double recovery.

{¶ 6} Appellees also contended that they have immunity because Saunders was in the course and scope of employment at the time of Hemphil's alleged negligence. They pointed out that Saunders was on the

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clock and receiving treatment for a work-related injury at her work site when the second injury occurred. Appellees further asserted that appellants' claims against Hemphil are barred under the fellow-employee immunity statute and that the dual-capacity doctrine did not apply so as to except Holzer from workers' compensation immunity. Appellees argued that the dual-capacity doctrine does not apply to fellow employees, such as Hemphil, and because Hemphil cannot be held liable under the fellow-employee immunity statute, under agency principles Holzer cannot be held liable.

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{¶ 7} Appellants did not respond to the merits of appellees' summary judgment motion. Instead, they filed a Civ.R. 30(E) motion to suppress Saunders's deposition testimony and asserted that Saunders did not waive reading and signing her deposition. Consequently, appellants maintained, the trial court could not consider her deposition and appellees could not demonstrate the absence of a material issue of fact so as to warrant summary judgment in their favor.

{¶ 8} After reviewing the motions and evidentiary materials, the trial court awarded Holzer summary judgment, although the court did not explain its rationale. The court also stated that it did not consider Saunders's deposition.² This appeal followed.

{¶ 9} Because appellants' three assignments of error all challenge the propriety of the trial court's summary judgment decision, we consider them together.³ In their assignments of error, appellants assert that (1) Holzer did not fulfill its burden to show that no genuine issues of material fact remain regarding whether it is entitled to workers' compensation immunity, (2) genuine issues of material fact remain as to whether the dual-capacity doctrine applies, and (3) appellees failed to meet their burden to show the absence of a material fact as to whether the fellow-employee immunity statute bars their claims against Hemphil.

A SUMMARY JUDGMENT STANDARD

{¶ 10} An appellate court conducts a de novo review of a trial court's summary judgment. See, e.g., Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Accordingly, appellate courts independently review the record to determine whether summary judgment is appropriate and need not defer to the trial court's decision. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153; Morehead v. Conley (1991), 75 Ohio

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App.3d 409, 411-412, 599 N.E.2d 786. Thus, to determine whether a trial court properly granted summary judgment, an appellate court must review

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the Civ.R. 56 standard as well as the applicable law. Civ.R. 56(C) provides:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence [in the pending case,] and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor.

Thus, a trial court may not grant summary judgment unless the evidentiary materials demonstrate that (1) no genuine issue as to any material fact remains to be litigated, (2) after the evidence is construed most strongly in the nonmoving party's favor, reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, and (3) the moving party is entitled to judgment as a matter of law. Vahila v. Hall (1997), 77 Ohio St.3d 421, 429-430, 674 N.E.2d 1164.

{¶ 11} Under Civ.R. 56, the moving party bears the initial burden to inform the trial court of the motion's basis and to identify those portions of the record that demonstrate the absence of a material fact. Vahila, supra; Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. A moving party cannot, however, discharge its initial burden with a conclusory assertion that the nonmoving party has no evidence to prove its case. See Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, 147, 677 N.E.2d 308; Dresher, supra. Rather, a moving party must specifically refer to the "pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any," that affirmatively demonstrate that the nonmoving party has no evidence to support the nonmoving party's claims. Civ.R. 56(C); Dresher, supra. "[U]nless a movant meets its initial burden of establishing that the nonmovant has either a complete lack of evidence or has an insufficient showing of evidence to establish the existence of an essential element of its case upon which the nonmovant will have the burden of proof at trial, a trial court shall not grant summary judgment." Pennsylvania Lumbermens Ins. Corp. v. Landmark Elec., Inc. (1996), 110 Ohio App.3d 732, 742, 675 N.E.2d 65. A summary judgment motion's goal is to determine whether

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sufficient evidence exists to support the essential elements of the nonmoving party's claim. Bragg...