76 F. Supp. 3d 696
S.D. Ohio2014Background
- Daniel Stolz, a concrete finisher employed by Jostin Construction, was injured while working on the Horseshoe Casino construction project in Cincinnati.
- Messer Construction was the project's general contractor and obtained a BWC certificate authorizing Messer to self-administer workers’ compensation for enrolled subcontractors on the project; Jostin and J & B Steel were listed as enrolled subcontractors.
- Stolz received medical care and benefits under Messer’s workers’ compensation program and sued Messer and several subcontractors (D.A.G., Triversity, J & B Steel, others) for negligence and punitive damages.
- Messer moved for summary judgment asserting statutory immunity as a project self-insurer under O.R.C. §§ 4123.35 and 4123.74 and alternatively invoking the election-of-remedies doctrine; subcontractor defendants moved for summary judgment claiming they too were immune as enrolled subcontractors.
- The BWC had issued Messer a Certificate of Employer’s Right to Pay Compensation Directly for the project; the court treated Messer’s enrollment and Stolz’s receipt of benefits as undisputed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Messer is immune from Stolz’s negligence claim as project self-insurer | Messer failed to comply with statutory/administrative requirements for self-insurance, so immunity should not apply | Messer had BWC certificate and complied (or BWC’s approval controls); Stolz accepted benefits so immunity applies | Messer entitled to statutory immunity under O.R.C. §§ 4123.35 and 4123.74; summary judgment for Messer granted |
| Whether the dual-capacity doctrine defeats Messer’s immunity | Messer occupied an additional, non-employer role making it liable | Messer was not Stolz’s actual employer and injuries are work-related, so dual-capacity inapplicable | Dual-capacity doctrine does not apply; Stolz failed to raise a genuine issue |
| Whether the election-of-remedies doctrine bars Stolz’s claim against Messer | Messer was not Stolz’s employer so doctrine inapplicable | Messer provided workers’ comp benefits and §4123.35 treats employees as if of self-insurer for immunity purposes | Election-of-remedies would bar suit if Messer lacked statutory immunity; court finds it applicable but did not need to reach this because statutory immunity resolved the case |
| Whether enrolled subcontractors (D.A.G., Triversity, J & B Steel) share Messer’s immunity for injuries to an employee of another subcontractor | Stolz can sue subcontractors; §4123.35 does not strip third-party claims | Subcontractors argue they are entitled to immunity as enrolled under Messer’s wrap-up plan | Court rejects blanket immunity for enrolled subcontractors under §4123.35(0); motions for summary judgment by D.A.G., Triversity, J & B Steel denied |
Key Cases Cited
- Holeton v. Crouse Cartage Co., 748 N.E.2d 1111 (Ohio 2001) (describing the workers’ compensation quid pro quo)
- Freese v. Consolidated Rail Corp., 445 N.E.2d 1110 (Ohio 1983) (workers’ compensation is exclusive remedy vs. employer)
- Washington Metro. Area Transit Auth. v. Johnson, 467 U.S. 925 (1984) (discussing quid pro quo in compensation schemes)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment burden-shifting principles)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment and genuine dispute standard)
- Schump v. Firestone Tire & Rubber Co., 541 N.E.2d 1040 (Ohio 1989) (dual-capacity doctrine limited where injury is work-related)
- George v. City of Youngstown, 41 N.E.2d 567 (Ohio 1942) (workmen’s compensation statutes relate to employer–employee relationship; third-party suits preserved)
- Trumbull Cliffs Furnace Co. v. Shackovsky, 161 N.E. 238 (Ohio App.) (early Ohio recognition that injured worker may sue third-party tortfeasor)