Viock v. Stowe-Woodward Co., STOWE-WOODWARD

• Decision Date: 19 August 1983
• Docket Number: STOWE-WOODWARD
• Citation: 13 OBR 8,13 Ohio App.3d 7,467 N.E.2d 1378
• Parties: , 13 O.B.R. 8 VIOCK et al., Appellants, v.COMPANY, etc., et al., Appellees.
• Court: Ohio Court of Appeals

Page 7

13 Ohio App.3d 7

467 N.E.2d 1378, 13 O.B.R. 8

VIOCK et al., Appellants, v. STOWE-WOODWARD COMPANY, etc., et al., Appellees.

Court of Appeals of Ohio, Sixth District, Erie County.

Aug. 19, 1983.

Syllabus by the Court

1. Summary judgment should be used cautiously so as not to usurp a litigant's right to trial where conflicting

facts and inferences are present. Inferences drawn from underlying facts must be viewed in the light most favorable to the party opposing a summary judgment motion. (Hounshell v. American States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 , followed.)

2. The applicable statute of limitations is not determined from or by the form of the pleading, but rather by the thrust of the complaint.

3. The "discovery rule" as announced by the Supreme Court in O'Stricker v. Jim Walter Corp., 4 Ohio St.3d 84, 447 N.E.2d 727, requires that two factors be discovered before the limitation period set forth in R.C. 2305.10 commences to run: first, a plaintiff must know or reasonably should have known that he has been injured; second, a plaintiff must know or reasonably should have known that his injury was proximately caused by the conduct of the defendant.

4. The four-year statute of limitations for loss of consortium (R.C. 2305.09[D] ) does not begin to run unless and until consortium is lost.

5. Although labeled "mediation," when a clause in a collective bargaining agreement unambiguously states that the union and the company shall be bound by the decision of a third party, said clause is in essence and in substance an arbitration clause, and is entitled to all the characteristics, forcefulness, effect, and efficacy of an arbitration clause.

Kirk J. Delli Bovi, Sandusky, for appellants.

Tybo A. Wilhelms, Toledo, for appellees.

WILEY, Judge.

This is an appeal from summary judgment entered April 18, 1983, by the Erie County Court of Common Pleas. Upon our review of the pleadings, accompanying memoranda, evidentiary materials, and depositions contained in the record now before us, the following facts are revealed.

I

Appellants in the instant case are Carl Viock, his wife, and his children. Appellees are appellant Carl Viock's employer, Stowe-Woodward Company ("Stowe-Woodward") and Roger Gravlin, plant manager at Stowe-Woodward. Appellant Carl Viock began his employment with appellee Stowe-Woodward in January 1968. Appellant's employment continued until it was terminated in June 1981. During this employment period of approximately thirteen years, the only position which appellant held was that of "roll-coverer." ¹ In this position of roll-coverer, appellant was exposed to rubber dust and a number of chemical substances. ²

Appellant was first hospitalized in January 1976, for approximately one month and was subsequently diagnosed as suffering from "[d]iffuse pulmonary infiltrate, bilateral, probably secondary to chemical pneumonitis." Appellant's treating physician released appellant to return to work in May 1976, but appellant was advised by his doctors to secure another position that was in an environment free of dust and chemicals.

Appellant inquired into the possibility of acquiring employment in a dust and chemical-free environment at Stowe-Woodward, but was informed that the only position available to him was his current position as roll-coverer. Appellant made several attempts to obtain employment elsewhere, but these attempts were unsuccessful. Unable to find such a position, appellant continued his employment at Stowe-Woodward as a roll-coverer.

At the request of appellee Stowe-Woodward, appellant was examined by the company's physician on May 11, 1981. The examining physician concluded that the only way to effectively manage appellant's health problem was to totally remove appellant from the "offending environment." The examining physician further reported that for the sake of appellant's health, appellant should not be employed in any capacity at Stowe-Woodward. Consequently, on June 5, 1981, appellant Carl Viock was terminated from Stowe-Woodward's employment.

Appellants filed a law suit in the Erie County Court of Common Pleas on February 5, 1982, naming as defendants Stowe-Woodward and plant manager, Roger Gravlin, appellees herein. The first cause of action set forth in appellants' complaint concerns appellant Carl Viock. In count one, said appellant alleges that beginning with the commencement of his employment in January 1968, he has inhaled and ingested toxic substances in quantities far exceeding the acceptable level prescribed as permissible by the United States Department of Labor, Occupational Safety and Health Administration. Further, appellant avers that his employer knew and/or should have known that he was being subjected to the inhalation and ingestion of toxic substances, and that appellees fraudulently, intentionally, and/or maliciously caused him to be exposed to dangerous levels of toxic substances as a condition of continued employment.

In his second count, appellant Carl Viock alleges that Stowe-Woodward fraudulently, intentionally, and/or maliciously disguised working conditions and withheld and/or concealed from appellant and his doctors material information and warnings concerning the toxic substances to which appellant was exposed, and that appellee Stowe-Woodward knew the health hazard which would result from continuous, repeated exposure to the substances.

In counts three and four of his cause of action, appellant alleges that appellees wrongfully refused to pay him the sickness and accident benefits to which appellant claims he was entitled, and that appellees fraudulently, intentionally, and/or maliciously terminated his employment. The second cause of action in appellants' complaint concerns appellant's wife and children. These appellants allege that as a direct and proximate result of appellees' fraudulent, intentional, and/or malicious conduct, appellant-wife has suffered a loss of consortium with her husband; appellants' children allege that they have incurred the loss of support, services, and prospective inheritance.

Appellees filed their separate answers on April 9, 1982, and their motion for summary judgment, along with their evidentiary materials, on April 26, 1982. Subsequently, appellants filed their memorandum in opposition to appellees' summary judgment motion, together with their evidentiary materials. The evidentiary materials were limited by the trial court to the issue of whether the statute of limitations barred recovery as to counts one and two of appellant Carl Viock's first cause of action. The trial court granted appellees' motion for summary judgment concerning counts one, two, three and four of appellants' first cause of action and dismissed appellants' entire complaint, with prejudice. In granting summary judgment in appellees' favor, the trial court held that counts one and two of appellant Carl Viock's first cause of action were barred by the applicable statute of limitations, and that as to counts three and four, appellant Carl Viock was bound by the result of the arbitration hearing as provided in the collective bargaining agreement entered into by Stowe-Woodward and U.A.W. Local 393. ³

It is this judgment from which appellants now appeal, stating as their first assignment of error:

"The lower court prejudicially erred in granting summary judgment in favor of defendants on counts one and two of plaintiffs' first cause of action for the reason that the asserted claims were barred by the applicable statute of limitations."

II

At the outset, the focus of our analysis must be upon the applicable statute of limitations in the case sub judice.

A

Appellant Carl Viock's cause of action seeks redress for the injuries which he sustained from the alleged inhalation and ingestion of toxic substances while employed at Stowe-Woodward. Appellant contends, however, that since it is alleged that the exposure was the result of appellees' fraudulent, intentional, and/or malicious conduct, the four-year limitation for fraud (R.C. 2305.09[C] ) ⁴ rather than the two-year limitation for bodily injury (R.C. 2305.10) ⁵ is applicable.

The trial court's judgment entry does not expressly address which limitation period is applicable. The lower court's judgment entry does state, however, that the alleged conduct of appellee Stowe-Woodward does not toll the applicable statute of limitations, whether that statute be R.C. 2305.09 or 2305.10. Further, the trial court stated that the alleged conduct of appellee Stowe-Woodward does not "change the nature of the employee's [appellant's] cause of action from one for fraud to personal injury or intentional tort or vice versa [sic ]."

"The period of limitation within which an action must be commenced, is determined from the nature of the demand and the ground of the action as set out in the pleadings." State, ex rel. Lien, v. House (1944), 144 Ohio St. 238, 244, 58 N.E.2d 675 . Restated, the applicable statute of limitations is not determined from or by the form of pleading, but rather by the gist of the complaint. Hibbett v. Cincinati (1982), 4 Ohio App.3d 128, 131, 446 N.E.2d 832. As the Supreme Court held in Andrianos v. Community Traction Co. (1951), 155 Ohio St. 47, 50-51, 97 N.E.2d 549 :

" * * * [W]here a statute, specific in terms, limits the time within which an action for 'injuries to the person' or 'bodily injury' may be brought, such statute governs all actions the real purpose of which is to recover for an injury to the person * * *

" * * *

" * * * [R.C. 2305.10] ⁶ is not confined to any particular type of injury, nor does it concern itself with the circumstances under which an injury was inflicted. On its face, it clearly covers all actions based on a claim respecting bodily injury.

"Surely, the General Assembly did not intend to create different periods of limitation for the recovery of damages growing out of bodily injury, depending on the form of the action brought....