Talik v. Fed. Marine Terminals, Inc., No. 2006-1808.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: Lanzinger
• Citation: 885 N.E.2d 204,2008 Ohio 937,117 Ohio St.3d 496
• Decision Date: 13 March 2008
• Docket Number: No. 2006-1808.
• Parties: TALIK, Appellee, v. FEDERAL MARINE TERMINALS, INC., Appellant.

885 N.E.2d 204 117 Ohio St.3d 496 2008-Ohio-937 TALIK, Appellee,
v.
FEDERAL MARINE TERMINALS, INC., Appellant. No. 2006-1808. Supreme Court of Ohio. Submitted September 18, 2007. Decided March 13, 2008.

[885 N.E.2d 205]

McDonald Hopkins, L.L.C., Jerome W. Cook, Glenn D. Southworth, Matthew M. Nee, and Elizabeth A. Wambsgans, Cleveland, for appellee.

Tucker, Ellis & West, L.L.P., Irene C. Keyse-Walker, and Jeffrey A. Healy, Cleveland, for appellant.

LANZINGER, J.

117 Ohio St.3d 496

{¶ 1} In this case, we are asked to determine whether the Longshore and Harbor Workers' Compensation Act ("LHWCA"), Section 901 et seq., Title 33, U.S.Code, preempts a claim under Ohio law alleging that the claimant's employer caused an injury through an intentional act committed with the belief that injury was "substantially certain" to occur. We hold that the federal law preempts a claim against an employer for intentional tort based upon substantial certainty.

I. Case Background

{¶ 2} Appellee Joseph Talik worked as a longshoreman for appellant Federal Marine Terminal, Inc., at the port of Cleveland. On September 10, 2004, when Talik and a coworker were assigned to load pipe from Dock 26 onto trucks, Talik was injured by a collapsing stack of pipes that fell on his right leg.

{¶ 3} As a longshoreman, a maritime worker who worked on land adjoining navigable waters, Talik was covered by the LHWCA. As a worker in the "twilight zone," he had the option of obtaining benefits under the LHWCA or the

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state workers' compensation act because his employer was required to pay into the state system, R.C. 4123.35, and to secure insurance pursuant to the LHWCA. Section 932(a), Title 33, U.S.Code. Talik received his benefits from the Ohio Bureau of Workers' Compensation.

{¶ 4} Talik also filed a common-law cause of action in the Cuyahoga County Court of Common Pleas, alleging that his employer had committed a "substantial

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certainty" intentional tort. Federal Marine filed a motion for summary judgment, arguing that Section 905(a), Title 33, U.S.Code preempted this claim. Federal Marine also relied on federal common law to argue that if its immunity was not complete, a showing of Federal Marine's deliberate, specific intent to injure Talik was required before it could be held liable. The trial court granted summary judgment to Federal Marine, and Talik appealed.

{¶ 5} On appeal, the Eighth District Court of Appeals reversed, reasoning that because the LHWCA is a typical workers' compensation program and because an injured employee in Ohio is not precluded from maintaining both a workers' compensation claim and an intentional tort claim, Talik's intentional tort claim was not preempted by the federal statute.¹ Talik v. Fed. Marine Terminals, 8th Dist. No. 87073, 172 Ohio App.3d 704, 2006-Ohio-3979, 876 N.E.2d 1246, ¶ 16. The court of appeals also determined that Ohio law governs because Talik did not sue Federal Marine under the LHWCA. Id. at ¶ 28.

{¶ 6} We accepted this discretionary appeal² to determine whether the LHWCA, by providing employer immunity from certain claims, preempts an employee's state common-law claim for an intentional tort based on substantial certainty.

{¶ 7} Our discussion will first examine the federal statute and then Ohio's intentional tort law before determining the preemption issue.

II. The Longshore and Harbor Workers' Compensation Act

{¶ 8} The Longshore and Harbor Workers' Compensation Act, Section 901 et seq., Title 33, U.S.Code, entitles certain workers such as longshoremen injured in the course of their employment to compensation from their employer, regardless of whether the employer's negligence caused the injuries. Thus, the LHWCA is a typical workers' compensation act.

117 Ohio St.3d 498

{¶ 9} The LHWCA was enacted by Congress in 1927 in response to decisions by the United States Supreme Court limiting the authority of the states to apply their workers' compensation laws to injured maritime employees. Morrison-Knudsen Constr. Co. v. Dir., Office of Workers' Comp. Programs, U.S. Dept. of Labor (1983), 461 U.S. 624, 640, 103 S.Ct. 2045, 76 L.Ed.2d 194 (Marshall, J., dissenting). The act originally provided compensation for injuries "occurring upon the navigable waters of the United States * * * if recovery * * * through workmen's compensation proceedings may not validly be provided by State law." Former Section 903, Title 33, U.S.Code, 44 Stat. 1426.

{¶ 10} Although it was clear that maritime workers who sustained injuries "upon the navigable waters" were within the LHWCA's exclusive jurisdiction, the same could not be said for maritime workers who were injured while working on land. Questions began to arise over jurisdiction and the exact point at which state remedies gave way to federal remedies. Davis v. Dept. of Labor & Industries of Washington (1942), 317 U.S. 249, 253-254, 63 S.Ct. 225, 87 L.Ed. 246. To protect longshoremen from the consequences of filing in the wrong jurisdiction, the United States Supreme Court held that those workers in the "twilight zone," i.e., "that shadowy area within which, at some undefined

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and undefinable point, state laws can validly provide compensation," may file in either the federal court under the LHWCA or in the state court under the state workers' compensation laws. Id. at 252 and 258, 63 S.Ct. 225, 87 L.Ed. 246.

{¶ 11} Thirty years later, Congress amended the LHWCA to extend its coverage inland. The term "navigable waters of the United States" was broadened to include "any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel." Section 903(a), Title 33, U.S.Code. Employers also agreed to more than double the maximum weekly benefits for permanent total disability in exchange for the elimination of seaworthiness warranty claims. See 9A Larson's Workers' Compensation Law (2007), Section 145.02[8][c].

{¶ 12} In analyzing these 1972 amendments, the Supreme Court reaffirmed that the LHWCA remained concurrent with state workers' compensation law. Sun Ship, Inc. v. Pennsylvania (1980), 447 U.S. 715, 719-720, 100 S.Ct. 2432, 65 L.Ed.2d 458. Accordingly, a longshoreman such as Talik, injured while working on land in a location that falls within the expanded 1972 definition of "navigable waters" is inside the "twilight zone" and may apply for benefits under a state workers' compensation scheme, the LHWCA, or both. However, "any amounts paid to an employee for the same injury, disability, or death for which benefits are claimed under [the LHWCA] pursuant to any other workers' compensation

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law * * * shall be credited against any liability imposed by this chapter." Section 903(e), Title 33, U.S.Code.

{¶ 13} In this case, although Talik applied for and has already received benefits from Ohio's workers' compensation fund, he now seeks to recover common-law damages against Federal Marine for an intentional tort under Ohio law. A firm understanding of what constitutes an employer intentional tort is necessary to determine whether the LHWCA preempts such a claim.

III. Ohio Claims Against Employers for Intentional Tort

{¶ 14} In Payne v. Vance (1921), 103 Ohio St. 59, 133 N.E. 85, this court held that an intentional or willful tort involved the element of intent or purpose. Id. at paragraph one of the syllabus. In so doing, the court distinguished an intentional tort, which requires a specific mental state, from negligence, whether slight, ordinary, or gross. Id. "Wanton misconduct is such conduct as manifests a disposition to perversity, and it must be under such surrounding circumstances and existing conditions that the party doing the act or failing to act must be conscious, from his knowledge of such surrounding circumstances and existing conditions, that his conduct will in all common probability result in injury." Universal Concrete Pipe Co. v. Bassett (1936), 130 Ohio St. 567, 5 O.O. 214, 200 N.E. 843, paragraph two of the syllabus. By contrast, an intentional or willful tort involves an intent to injure. Reserve Trucking Co. v. Fairchild (1934), 128 Ohio St. 519, 191 N.E. 745, paragraph one of the syllabus.

{¶ 15} Not until almost 50 years later were claims for intentional torts against employers recognized as an exception to Ohio's workers' compensation exclusivity provision.³ Blankenship v. Cincinnati

885 N.E.2d 208

Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433

117 Ohio St.3d 500

N.E.2d 572. The Blankenship court reasoned that an employee's injury neither arises out of nor is received in the course of employment within the meaning of the Workers' Compensation Act if it is sustained as a result of an employer's intentional conduct.⁴ Id. at 613, 23 O.O.3d 504, 433 N.E.2d 572. The definition of "intentional tort" was expanded in Jones v. VIP Dev. Co. (1984), 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046, to mean "an act committed with the intent to injure another, or committed with the belief that such injury is substantially certain to occur." Id. at paragraph one of the syllabus. An employee was allowed to pursue a common-law claim for an intentional tort against an employer even though the employee had received workers' compensation benefits for the same injury. Id. at paragraph two of the syllabus.

{¶ 16} The standard of "substantial certainty" in the intentional tort arena caused confusion. See Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 109, 522 N.E.2d 489; Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 116-117, 570 N.E.2d 1108 (Jones "created a confusing status of the law" and engendered "contradicting interpretations" of the intentional-tort standard). A three-part test was established for determining an employer's "intent" in an action by an employee asserting an intentional tort. The...