Talik v. Fed. Marine Terminals, Inc.

• Decision Date: 03 August 2006
• Docket Number: No. 87073.,87073.
• Citation: 172 Ohio App.3d 704,2006 Ohio 3979,876 N.E.2d 1246
• Parties: TALIK, Appellant, v. FEDERAL MARINE TERMINALS, INC., Appellee.
• Court: Ohio Court of Appeals

876 N.E.2d 1246

172 Ohio App.3d 704

2006-Ohio-3979

TALIK, Appellant, v. FEDERAL MARINE TERMINALS, INC., Appellee.

No. 87073.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided August 3, 2006.

McDonald, Hopkins, Burke & Haber, Jerome W. Cook, and Glenn D. Southworth, Cleveland, for appellant.

Tucker, Ellis & West, L.L.P., Irene C. Keyse-Walker, Jeffrey A. Healy, Cleveland, and Richelle W. Kidder, for appellee.

CHRISTINE T. McMONAGLE, Judge.

{¶ 1} Plaintiff-appellant, Joseph Talik, appeals the trial court's judgment granting summary judgment in favor of defendant-appellee, Federal Marine Terminals, Inc. ("Federal Marine").

{¶ 2} Federal Marine employs longshoremen for its cargo-handling operations on waterways, including the Great Lakes. Talik, one of Federal Marine's longshoremen, suffered a workplace injury on September 10, 2004, while working at the port of Cleveland. Specifically, the injury occurred when a stack of pipes collapsed and fell on Talik's right leg. The injury resulted in amputation of the leg. As a result of his injury, Talik filed a lawsuit in common pleas court seeking damages from Federal Marine under a common-law employer-intentional-tort theory.

{¶ 3} Federal Marine filed a motion for summary judgment in which it contended that the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA" or "the Act"), Section 901 et seq., Title 33, U.S.Code, preempted Talik's state-law tort claim. Alternatively, Federal Marine argued that even if Talik's state-law tort claim was not preempted by the LHWCA, he failed to satisfy his burden of proof for such a claim. The trial court granted Federal Marine's motion for summary judgment.¹ Talik appeals, raising two assignments of error for our review.

{¶ 4} In his first assignment of error, Talik contends that the trial court erred in granting summary judgment in favor of Federal Marine because his intentional-tort claim was not preempted by the Act. We agree.

{¶ 5} Summary judgment is appropriate pursuant to Civ.R. 56(C) when (1) there is no genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) construing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to only one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 375 N.E.2d 46. Our standard of review on summary judgment is de novo. Jones v. Shelly Co. (1995), 106 Ohio App.3d 440, 445, 666 N.E.2d 316.

{¶ 6} Section 902(2), Title 33, U.S.Code provides that "`injury' means accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment."

{¶ 7} Further, Section 905(a), Title 33, U.S.Code reads as follows:

{¶ 8} "Employer liability; failure of employer to secure payment of compensation. The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under the chapter or to maintain an action at law or admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee. For purposes of this subsection, a contractor shall be deemed the employer of a subcontractor's employees only if the subcontractor fails to secure the payment of compensation as required by section 904 of this title."

{¶ 9} Federal Marine argues that Section 905(a) provides the exclusive remedy for covered workers and embodies Congress's intention for employers to provide no-fault compensation in return for immunity from tort liability.² Talik, on the other hand, argues that there is an intentional-tort exception to the otherwise exclusive provisions of Section 905(a), when read in tandem with Section 902(2). Specifically, Talik contends:

{¶ 10} "There is no express inclusion of the concept of an `intentional tort' in the definition of `injury' except that the concept of a `willful act' is included if the injury arises from the actions of a `third party.' Significantly, the definitional section of the LHWCA does not equate the identity of a `third party' with that of the employer. See, 33 U.S.C. § 902."

{¶ 11} In support of his argument, Talik relies upon a Louisiana case, Taylor v. Transocean Terminal Operators, Inc. (La. App.2001), 785 So.2d 860. In that case, the court held that Taylor, a longshoreman who was stabbed at work by a fellow employee, had properly filed an intentional-tort claim because the exclusive-remedy provision of the LHWCA was not applicable to an intentional tort by or attributable to the defendant/employer.

{¶ 12} In so holding, the Louisiana court noted:

{¶ 13} "The notion that a claim for an intentional tort committed by an employer is an exception to a statutory exclusive remedy compensation scheme is familiar in the context of Louisiana's worker's compensation law. Louisiana's worker's compensation statute provides that it does not affect the liability of the employer for civil liability resulting from an intentional act. La. R.S. 23:1032.B. Thus, it has been held that an intentional tort by an employer is not subject to the `exclusive remedy' provision of Louisiana's worker's compensation law and may give rise to a tort action by the employee against the employer. See, e.g., Bazley v. Tortorich, 397 So.2d 475 (La.1981). This is typical of state worker's compensation laws. Bazley, 397 So.2d at 480 (citing 2A Larson, The Law of Workmen's Compensation §§ 68-69 (1976))." Id. at 862.

{¶ 14} The United States Supreme Court has held that the LHWCA is a typical workers' compensation program. Northeast Marine Terminal Co. v. Caputo (1977), 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320.

{¶ 15} In Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, the Supreme Court of Ohio determined that the immunity bestowed upon employers under Ohio's workers' compensation laws did not reach intentional torts committed by an employer. The court reasoned that an employer's intentional tort occurs outside the employment relationship. In Jones v. VIP Dev. Co. (1984), 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046, the court clarified that an injury that is the product of an employer's intentional tort is one that also arises out of and in the course of employment and, thus, an injured worker may both recover under the workers' compensation system and pursue an action against his or her employer for intentional tort. See, also, Brady v. Safety-Kleen (1991), 61 Ohio St.3d 624, 576 N.E.2d 722, paragraph one of the syllabus.

{¶ 16} Thus, because the LHWCA is a workers' compensation program, and because in Ohio an employee may maintain a workers' compensation claim and an intentional-tort claim, we hold that the LHWCA does not preempt Talik's state-law claim.

{¶ 17} We find the cases cited by Federal Marine distinguishable from this case. For instance, in Cornell v. Parsons Coal Co. (1993), 96 Ohio App.3d 1, 643 N.E.2d 1154, the employee filed an intentional-tort complaint for on-the-job injuries. The employee dismissed the complaint, and upon refiling, asserted claims for negligence, gross negligence, and intentional tort. On the first day of trial, the employee announced that he was going to proceed on a claim of negligence under the federal law found in the LHWCA. The employer objected to the new theory of liability. The trial then proceeded on the intentional-tort claim. The jury rendered a verdict on the employer's behalf, and the employee appealed to the Seventh Appellate District. The court of appeals reversed the trial court on the claim of negligence, finding that the trial court should have permitted the employer to proceed on the negligence claim under the LHWCA.

{¶ 18} On remand, the employer filed a motion for summary judgment, in which it argued that the employee was not entitled to proceed on his negligence claim under the Act. The trial court granted the employer's motion, and the employee appealed, contending that the employer's ground for summary judgment was an affirmative defense that was not raised by way of a pleading and, thus, was waived. The Seventh District held that the negligence claim could go forward only if the employee established that the employer had failed to secure the necessary workers' compensation coverage. The court did not address the appropriateness of an intentional-tort claim in light of the exclusivity provisions of the LHWCA.

{¶ 19} Similarly, in White v. Bethlehem Steel Corp. (E.D.Tex.1995), 900 F.Supp. 51, also cited by Federal Marine, the Texas district court did not address the issue of the appropriateness of an intentional-tort claim in light of the exclusivity provisions of the LHWCA. Rather, the court considered whether a borrowed servant of Bethlehem Steel was precluded from asserting a negligence claim against it in light of the Act.

{¶ 20} In another case cited by Federal Marine, Hall v. C & P Tel. Co. (C.A.D.C. 1986), 793 F.2d 1354, ...