Toni Cogar v. Shupe Middle School, 91-LW-2964

• Decision Date: 19 June 1991
• Docket Number: 90CA004910,91-LW-2964
• Parties: TONI COGAR, Plaintiff-Appellant v. SHUPE MIDDLE SCHOOL, et al., Defendants-Appellees CASE
• Court: Ohio Court of Appeals

TONI COGAR, Plaintiff-Appellant v. SHUPE MIDDLE SCHOOL, et al Defendants-Appellees

No. 90CA004910

91-LW-2964 (9th)

Court of Appeals of Ohio, Ninth District Lorain

June 19, 1991

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

QUILLIN P. J.

In this case we must decide whether the trial court correctly determined, on summary judgment, that a volunteer intramural basketball coach is not an employee for purposes of the Ohio Workers' Compensation Act. We agree with the trial court's decision, and, therefore, we affirm.

Each year, Shupe Middle School conducts an intramural basketball program for fifth and sixth grade boys. Defendant-appellee Amherst Exempted Village School District Board of Education ("Board") approved the intramural program and paid a director to coordinate it. Letters explaining the intramural program were sent home with the students. Included in these letters was a request for parents and other adults to act as coaches. Intramural coaches did not receive any compensation.

In response to such a letter, Cogar volunteered to coach a team. On Janaury 11, 1988, during a practice, Cogar was injured.

On May 7, 1988, Cogar applied for workers' compensation benefits. The district hearing officer denied Cogar's claim for benefits, finding that Cogar was a volunteer for a Public employer which had not obtained workers' compensation coverage for her. Cogar appealed the district officer's decision to the regional board of review, which allowed Cogar's claim. The Board then appealed to the Industrial Commission. The Industrial Commission vacated the regional board of review's order and reinstated the district officer's order. Cogar filed a notice of appeal and complaint in the court of common pleas pursuant to R.C 4123.519. Both the Board and Cogar filed motions for summary judgment. Defendant-appellee, the Industrial Commission filed a brief in support of the Board's motion for summary judgment. The trial court granted summary judgment in favor of the Board. Cogar appeals.

Assignment of Error

The trial court erred as a matter of law in granting defendant, board of education's, motion for summary judgment inasmuch as plaintiff was an employee by statutory definition and entitled to participate under the workers' compensation act."

Civ. R. 56(C) provides that before summary judgment may be granted, it must be determined that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327.

R.C. 4123.01 (A)(1) defines employee as:

"(a) Every person in the service of the state, or of any county, municipal corporation, township, or school district therein, including regular members of lawfully constituted police and fire departments of municipal corporations and townships, whether paid or volunteer, and wherever serving within the state or on temporary assignment outside thereof, and executive officers of boards" of "education, under any appointment 'or contract of hire, express or implied, oral or written, including any elected official of the state, or of any county, municipal corporation, or township, or members of boards of education; ***." (emphasis added.)

The underlined portion of R.C. 4123.01(A)(1) was added in 1961. The appellees argue, and the trial court apparently found, that the phrase "whether paid or volunteer" modifies only the phrase "regular members of lawfully constituted police and fire departments of municipal corporations and townships." Appellants contend that "whether paid or volunteer" modifies the entire preceding phrase beginning with "Every person in the service of the state..."

There have been no reported cases which have passed on this issue. The Attorney General of Ohio in 1978 noted that "[u]nder the provisions of Am. Sub B.B. No. 1066, 129 Laws of Ohio 1801, 1961, the definition of employee set forth in R.C. 4123.01(A)(1) was expanded to include regular members of lawfully constituted township police and fire departments, whether paid or volunteer." 1978 Ohio Atty. Gen. Ops. No. 78-031.

The preamble to the amending act states as its purpose "To amend section 4123.01 of the revised code, relative to workmen's compensation for volunteer firemen." Although the preamble is not part of a statute, it may furnish the means by which a statute may be construed. Hogg v. Zanesville Canal & Mfg. Co. (18...