HOLETON ET AL., PETITIONERS, v. CROUSE CARTAGE COMPANY ET AL.; CONRAD, ADMR., RESPONDENT.
No. 00-428
SUPREME COURT OF OHIO
June 27, 2001
92 Ohio St.3d 115 | 2001-Ohio-109
Submittеd October 10, 2000. ON ORDER from the United States District Court for the Northern District of Ohio, Western Division, Certifying a Question of State Law, No. 98CV-7578.
ALICE ROBIE RESNICK, J.
{¶ 1} This case comes to us as certified questions of state law from the United States District Court for the Northern District of Ohio, Western Division. The federal district court certified the following facts to us:
“Plaintiff, Rick Holeton, was injured on June 18, 1998. He and his plaintiff spouse, Shari, have two minor children, also plaintiffs herein. At the time of his accident, Rick was part of a construction crew employed by Harper Structures, Inc., building an overpass across the Ohio Turnpike. The telescoping ‘manlift’ bucket in which Rick was standing was struck by an eastbound truck owned and/or operated by defendants, James Parr and Crouse Cartage Company. The force of the impact propelled Rick out of the bucket, slamming him into the underside of the overpass and then dropping him on to the highway below.
“Because his injuries occurred in the course and scope of his employment with Harper Structures, Rick Holeton has received, and may indefinitely continue to receive, workers’ compensation benefits from defendant, Bureau of Workers’ Compensation (BWC), pursuant to Chapter 4123 of the Revised Code. Rick Holeton‘s wage and medical benefits to date exceed $190,000.
“BWC is a ‘statutory subrogee’ within the meaning of
R.C. § 4123.931 , referred to herein as Ohio‘s subrogation statute. As a statutory subrogee with respect to workers’ compensation benefits previously or hereafter paid to Rick Holeton, BWC has asserted a subrogation claim against any settlement made or judgment paid to Rick Holeton by or on behalf of the other defendants.1 Plaintiffs dispute the validity of BWC‘s subrogation claim and argue that the statute violates relevant sections of Ohio‘s Constitution. BWC denies that the statute is unconstitutional and seeks to enforce its right of subrogation.“Plaintiffs filed a motion for summary judgment asking the court to declare the subrogation statute unconstitutional. In the alternative, plaintiffs requested an order certifying the issue to the Ohio Supreme Court. The court has stayed plaintiffs’ motion for summary judgment and granted plaintiffs’ motion to certify the issue to the Ohio Supreme Court.”
{¶ 2} On May 3, 2000, this court reviewed the preliminary memoranda pursuant to S.Ct.Prac.R. XVIII and determined that it will answer the following certified questions:
“1. Does
R.C. § 4123.931 violate Article II, Section 35 of the Ohio Constitution?“2. Does
R.C. § 4123.931 violate Article I, Section 19 of the Ohio Constitution?“3. Does
R.C. § 4123.931 violate Article I, Section 16 of the Ohio Constitution?“4. Does
R.C. § 4123.931 violate Article II, Section 28 of the Ohio Constitution?“5. Does
R.C. § 4123.931 violate Article I, Section 2 of the Ohio Constitution?“6. Does
R.C. § 4123.931 violate Article II, Section 15 of the Ohio Constitution?“7. Is
R.C. § 4123.931 contrary to Ohio Civil Rule 49(C) and, therefore, invalid and unenforceable?“8. Does
R.C. § 4123.931 constitute an invalid waiver of an injured employee‘s right to receive and retain workers’ compensation benefits in violation ofR.C. § 4123.80 .” (2000), 88 Ohio St.3d 1500, 727 N.E.2d 923.
“(A) The payment of compensation or benefits pursuant to this chapter or Chapter 4121., 4127., or 4131., of the Revised Code creates a right of subrogation in favor of a statutory subrogee against a third party. A statutory subrogee‘s subrogation interest includes past payments of compensation and medical benefits and estimated future values of compensation and medical benefits arising out of an injury to or disability or disease of a claimant.
“(B) A claimant shall notify a statutory subrogee of the identity of all third parties against whom the claimant has or may have a right of recovery. No settlement, compromise, judgment, award, or other recovery in any action or claim by a claimant shall be final unless the claimant provides the statutory subrogee with prior notice and a reasonable opportunity to assert its subrogation rights. If a statutory subrogee is not given that notice, the third party and the claimant shall be jointly and severally liable to pay the statutory subrogee the full amount of the subrogation interest.
“(C) The right of subrogation under this chapter is automatic, regardless of whether a statutory subrogee is joined as a party in an action by a claimant against a third party. A statutory subrogee may assert its subrogation rights through correspondence with the claimant and the third party or their legal representatives. A statutory subrogee may institute and pursue legal proceedings against a third party either by itself or in conjunction with a claimant. If a claimant disputes the validity or amount of an asserted subrogation interest, the claimant shall join the statutory subrogee as a necessary party to the action against the third party.
“(D) The entire amount of any settlement or compromise of an action or claim is subject to the subrogation right of a statutory subrogee, regardless of the manner in which the settlement or compromise is characterized. Any settlement or compromise that excludes the amount of compensation or medical benefits shall not preclude a statutory subrogee from enforcing its rights under this section. The entire amount of any award or judgment is presumed to represent compensation and medical benefits and future estimated values of compensation and medical benefits that are subject to a statutory subrogee‘s subrogation rights unless the claimant obtains a special verdict or jury interrogatories indicating that the award or judgment represents different types of damages.
“(E) Subrogation does not apply to the portion of any judgment, award, settlement, or compromise of a claim to the extent of a claimant‘s attorney‘s fees, costs, or other expenses incurred by a claimant in securing the judgment, award, settlement, or compromise, or the extent of medical, surgical, and hospital expenses paid by a claimant from the claimant‘s own resources for which reimbursement is not sought. No additional attorney‘s fees, costs, or other expenses in securing any recovery may be assessed against any subrogated claims of a statutory subrogee.”
{¶ 4}
I
Section 35, Article II—The Great Compromise
{¶ 5} The first certified question is whether
“For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen‘s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom. Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease.”
{¶ 6} Resolution of this issue requires some historical knowledge of the legal climate that invoked the unanimous adoption of Proposal Number 24, or Section 35, Article II, at the Constitutional Convention of 1912 and the enactment of Ohio‘s first compulsory workers’ compensation law, 103 Ohio Laws 72, on February 26, 1913.
{¶ 7} Prior to 1913, the employee‘s ability to receive compensation for work-related injuries was governed by the common law of torts. Although the principle of vicarious liability had long been recognized at common law, it was far more difficult for the injured worker to recover damages from his or her employer than it was for the stranger to the employment relationship. The injured employee was required to prove that the employer violated a duty of care owed specifically to employees. Even upon overcoming this hurdle, until 1911 the employee was faced with what became known as the “unholy trinity of common-law defenses“—contributory negligence, the fellow servant rule, and assumption of risk. 102 Ohio Laws 529, Section 21-1. These defenses were truly draconian in their application.
{¶ 8} The common-law system proved incapable of dealing with the often devastating social and economic consequences of industrial accidents. It became undeniable that the tort system had failed as a regulatory device for distributing economic losses borne by injured Ohio workers and their families and that it should be replaced by a workers’ compensation system in which those losses would be charged, without regard to fault or wrongdoing, to the industry rather than to the individual or society as a whole. See, e.g., Goodman v. Beall (1936), 130 Ohio St. 427, 5 O.O. 52, 200 N.E. 470; Indus. Comm. v. Weigandt (1921), 102 Ohio St. 1, 4, 130 N.E. 38, 38-39; State ex rel. Munding v. Indus. Comm. (1915), 92 Ohio St. 434, 111 N.E. 299; State ex rel. Yaple v. Creamer (1912), 85 Ohio St. 349, 97 N.E. 602.
{¶ 9} Accordingly,
{¶ 10} Petitioners contend that
{¶ 11} We find these arguments unpersuasive. First, at a core level petitioners are suggesting that the very concept of a workers’ compensation subrogation statute is repugnant to
{¶ 12} Moreover, as revealed by the compilation of statutes in the appendix to petitioners’ merit brief, virtually every jurisdiction provides some statutory mechanism enabling the employer or fund to recover its workers’ compensation outlay from a third-party tortfeasor. Any decision that would hold the mere concept of a subrogation or reimbursement statute per se invalid in the workers’ compensation context would constitute a legal anomaly.
{¶ 13} Second, petitioners confuse the effect that
{¶ 14} Thus,
{¶ 15} Accordingly, we answer the first certified issue in the negative and hold that
II
Sections 16 and 19, Article I—The Take-Away
{¶ 16} The second certified issue is whether
{¶ 17} As well stated by the court in Direct Plumbing Supply Co. v. Dayton (1941), 138 Ohio St. 540, 546, 21 O.O. 422, 424-425, 38 N.E.2d 70, 73:
“No government could long continue to function if all property rights were unqualifiedly inviolate. But, on the other hand, the cоnstitutional guaranty of the right of private property would be hollow if all legislation enacted in the name of the public welfare were per se valid. To be truly in the public welfare within the meaning of
Section 19 , and thus superior to private property rights, any legislation must be reasonable, not arbitrary, and must confer upon the public a benefit commensurate with its burdens upon private property. This general doctrine was comprehensively stated by this court in Froelich v. City of Cleveland [1919], 99 Ohio St. 376, at 391, 124 N.E. 212 [216]: ‘It must be remembered that neither the state in the passage of general laws, nor the municipality in the passage of local laws, may make any regulations which are unreasonable. The means adopted must be suitable to the ends in view, they must be impartial in operation, and not unduly oppressive upon individuals, must have a real and substantial relation to their purpose, and must not interfere with private rights beyond the necessities of the situation.’ ”
{¶ 18} The third certified question is whether
{¶ 19} In dealing with the constitutionality of various collateral-benefits-offset statutes under
{¶ 20} There is no valid justification for dispensing with these principles in determining the constitutionality of
{¶ 21} We are now confronted with similar determinative issues under
{¶ 22} The following two provisions of the statute are called into question under
A
Estimated Future Values
{¶ 23} By giving the subrogee a current collectible interest in estimated future expenditures,
{¶ 24} Contrary to the assertions of respondent, there are too many situations that can eventuate in this kind of taking, and they occur far too often, for the problem to be considered merely hypothetical. One such situation is described by amicus curiae Ohio Academy of Trial Lawyers as follows:
“A prime example of this [kind of taking] occurs in a wrongful death situation where the decedent leaves a surviving spouse—say, a woman in her thirties or forties. In such circumstances, the BWC or self-insured employer will calculate estimated future benefits based upon the amounts it expects to pay over the woman‘s life expectancy. However, if the woman remarries, she will cease to be entitled to workers’ compensation benefits upon remarriage, with the exception that she will receive a lump sum payment at that time representing two additional years of benefits.
R.C. 4123.59(B)(1) . Thus, in those circumstances, if the subrogee has recovered estimated future benefits based upоn the woman‘s life expectancy, and she remarries shortly thereafter, the statute endows the subrogee with an enormous windfall at the expense of the injured party.”
{¶ 25} In fact, even the court in Yoh v. Schlachter (Mar. 17, 2000), Williams App. No. WM-99-008, unreported, 2000 WL 281748, upon which respondent relies heavily, was compelled to note as follows:
“With respect to appellant‘s taking issue, we note that there may exist a potential problem with respect to the ‘estimated future values of compensation and medical benefits’ aspect of
R.C. 4123.931 . For instance, OTC will receive in a lump sum the entire estimated future amount it is supposed to pay to appellant and her minor child. The statute, however, fails to specify what is to be done with any remainder of this sum once OTC is no longer required to pay workers’ compensation, such as, if appellant remarries or dies. The entire amount could be paid in the form of workers’ compensation benefits, in which case there arguably would be no taking issue because the beneficiaries would have received the full amount of compensation and medical benefits to which they were entitled. However, if OTC‘s obligation to pay workers’ compensation benefits expired with money still remaining in the pool of funds obtained throughR.C. 4123.931 , then OTC arguably would have a windfall if it was not required to release the remainder to appellant or her estate.” Id. at 14.
{¶ 26} Because a clаimant may die before his or her life expectancy, the amount collected by the subrogee for estimated future permanent total disability payments may far exceed the amount of such compensation actually received by the claimant. The same would hold true where any other type of ongoing statutory compensation, for whatever reason, is terminated earlier than was estimated for purposes of reimbursement. Indeed, any statutory benefit, anticipated for purposes of reimbursement, may be denied or unrealized.
{¶ 27} In defending the estimated-future-values provision of
{¶ 28} Upon closer examination, however, it becomes apparent that Wilken and Kempa do not support
{¶ 29} Second, the Minnesota cases have nothing to do with the subrogation rights of employer and employee inter se. Instead, they involve issues of contribution and subrogation between the tortfeasor and the employer that have no effect on claimant‘s tort recovery. In fact, the employee in Kempa actually settled his claims against the tortfeasor exclusive and not duplicative of workers’ compensation benefits paid or to be paid by his employer, which is a third-party procedural mechanism expressly forbidden under
{¶ 30} Third, the issue of estimating future workers’ compensation obligations never arises between the Minnesota claimant and his or her employer, or the fund. This is because
{¶ 31} The Minnesota cases aside, we cannot accept the hypothesis that the constitutional infirmities inherent in
B
Settlements
{¶ 32}
{¶ 33} The problem with this procedure is that it assumes that settlements are always reached with third-party defendants who possess sufficient wealth or insurance to satisfy the claimant‘s actual total damages and thus that the retention of the settlement proceeds and workers’ compensation would result in a double recovery. However, this assumption proves false in those situations where the claimant is forced to settle his or her tort claim for the limits of an insurance policy and the combined amount of the insurance proceeds and workers’ compensation benefits is insufficient to cover all of the claimant‘s actual loss. It can hardly be said that a double recovery results where a tort victim is allowed to retain two recoveries that, when combined, still do not make him or her whole. Indeed, in some situations the available insurance may not even be sufficient to cover the subrogee‘s interest, in which case the entire amount of the settlement will be taken by the subrogee.
{¶ 34} Again, contrary to respondent‘s assertions, this situation cannot be considered merely hypothetical. Indeed, we need look no further than In re Estate of Ross (1997), 116 Ohio App.3d 402, 688 N.E.2d 303, for an illustration. James Ross was killed in a motor vehicle accident during the course of, and arising out of, his employment with appellee Wendy‘s. His surviving spouse, appellant RaShell Ross, and two minor children, Joshua and James Ross, filed an application for death benefits pursuant to
{¶ 35} Appellant then filed a wrongful death claim against the tortfeasor, James Horn, who was insured by Trinity Universal Insurance Company. Appellant settled with Horn and Trinity for Horn‘s liability limits of $100,000. Wendy‘s and appellee Kemper Risk Management Services asserted Wendy‘s subrogation rights pursuant to
{¶ 36} The Third District Court of Appeals upheld the constitutionality of the statute under
{¶ 37} The theory that the subrogating employer takes only the tortfeasor‘s money is offensive in the situation where the third-party recovery is no greater than the employer‘s compensation outlay. Reimbursement must be preceded by a double recovery for the statute to operate constitutionally. It is spurious to say that these tort victims were not deprived of adequate compensation because they still get to keep workers’ compensation benefits. Workers’ compensation laws are not intended to provide a full recovery, and they are not designed to restore injured workers or their families to what they lost. See Blankenship, supra, 69 Ohio St.2d at 614, 23 O.O.3d at 508, 433 N.E.2d at 577; Indus. Comm. v. Drake (1921), 103 Ohio St. 628, 635, 134 N.E. 465, 467. And it is pure sophistry to argue that claimants who are staring at an empty coffer get to keep the unreimbursed portion of their settlement.
{¶ 38} Moreover, if the decedent in Ross had been survived not only by his wife and two minor children, but also by his parents, an adult child, and siblings, the statute would operate to extinguish their recovery as well. However, these persons, who are beneficiaries for purposes of a wrongful death action, are not workers’ compensation claimants and do not qualify for workers’ compensation benefits. Compare
{¶ 39} While it may be accurate to say that
{¶ 40} Yet these are the very arguments raised by respondent and its supporting amici in defense of
{¶ 41} However, respondent adds nothing to the analysis by invoking the platitude that there is no “absolute” right to settle. If a right had to be absolute before it could be vindicated, virtually all rights would be worthless. Absolute or not, this court has never tolerated an “illegal restriction upon the right to compromise.” Davy v. Fid. & Cas. Ins. Co. (1908), 78 Ohio St. 256, 270, 85 N.E. 504, 507. ” ‘[T]he law of Ohio will tolerate no lien in or out of the profession, as a general rule, which will prevent litigants from compromising, or settling their controversies, or which, in its tendencies, encourages, promotes or extends litigation.’ ” Id., 78 Ohio St. at 268-269, 85 N.E. at 507, quoting Weakly v. Hall (1844), 13 Ohio 167, 175, 1844 WL 22. Indeed, settlement is part of the essential сore of our judicial process. It finds expression in
{¶ 42} Nor is it very meaningful to argue that plaintiffs who are faced with the prospect of settling for policy limits in these situations can opt for a trial of the third-party action and obtain jury interrogatories to designate the types of damages awarded. Trying the tort case in order to have damages designated does not obviate the problem in these situations. Despite any allocation of damages, the claimant‘s tort recovery is still fixed by the insurance policy limits, the combined amount of those limits and workers’ compensation is still insufficient to cover the claimant‘s actual total loss, and there is still no double recovery to justify a right of subrogation to any of the insurance proceeds. The only result of trying the tort claim in these situations would be to clutter the trial court‘s docket with unnecessary litigation that serves only to eat away at the finite amount of available recovery.
{¶ 43} Thus, none of the theories advanced by respondent or supporting amici changes the fact that under certain familiar conditions,
C
Propriety of Considering Additional Situations
{¶ 44} Respondent has urged us not to address the arguments raised by petitioners and supporting amicus regarding
{¶ 45} First, respondent argued in its preliminary memorandum that this court should address all eight certified questions in this case because “many cases will be resolved and judicial economy will be promoted.” In so doing, the bureau represented as follows:
“[T]he present case is only one of numerous recent cases challenging the constitutionality of the subrogation provisions found in
R.C. 4123.931 . The [bureau] is aware of approximately fifty such cases in twenty-two counties and two federal district courts. Approximately seven of these cases were appеaled to courts of appeals in the second, third, sixth, eighth, and ninth Ohio appellate districts. Several of the cases (in both common pleas courts and in the courts of appeals) have now been settled, but most remain pending, including three cases before the eighth and ninth district courts of appeals.”
{¶ 46} It would be more than a bit anomalous to now limit our consideration of
{¶ 47} Second, after respondent‘s merit brief was filed in this cause, this court allowed discretionary appeals in Yoh, supra, and in In re Estate of Stewart (June 28, 2000), Lorain App. No. 99CA007422, unreported, 2000 WL 840512.
{¶ 48} It may be argued that the court can nevertheless decline to consider additional factual situations in this case, then lift the stay on briefing in Yoh and Stewart and hear those cases on the merits. But this approach would produce an absurd result. Assuming that a refusal to consider additional factual situations in this case would result in a decision in favor of constitutionality, that decision would stand only so long as it took us to reverse it in Yoh and Stewart.
{¶ 49} Finally, the consideration of additional situations is particularly warranted in judging the constitutionality of
{¶ 51} Accordingly, for all of the foregoing reasons, we answer certified questions two and three in the affirmative and hold that
III
Section 28, Article II—The Compromise Revisited
{¶ 52} The fourth certified question is whether
{¶ 53} This is essentially the same challenge that was made under
{¶ 54} Accordingly, we answer the fourth certified issue in the negative and hold that
Section 2, Article I—Reclassifying the Arguments
{¶ 55} The fifth certified question is whether
{¶ 56} Petitioners argue that
{¶ 57} Contrary to petitioners’ assertion, however, the employer has provided consideration for its immunity from suit by paying workers’ compensation benefits; and the theory that subrogation is intrinsically antithetical to the workers’ compensation system lacks merit here as well.
{¶ 58} Petitioners also argue that
{¶ 59} First, petitioners maintain that the statute creates “arbitrary classifications of tort victims—employees injured on the job and employees injured off the job. The subrogation statute creates a presumption against the former by mandating that the ‘entire amount of any award or judgment is presumed to represent compensation * * * subject to a statutory subrogee‘s subrogation rights.’
{¶ 60} The problem with this argument is that it assumes too much. Since
{¶ 61} In this context, it can hardly be said that tort victims who are injured “on the job” or, more appropriately, in the course of and arising out of their employment, are similarly situated to tort victims who are injured “off the job” or, more precisely, who do not receive an injury in the course of and arising out of their employment. The former tort victim recovers compensation and medical benefits under the Workers’ Compensation Act; the latter does not. Contrary to the assertions of Ohio Academy of Trial Lawyers, equal protection does not require the General Assembly to pass a valid collateral-benefits-offset statute covering tort claims in general before it can enact a workers’ compensation subrogation statute. Accordingly, we reject petitioners’ first equal protection argument.
{¶ 62} Petitioners’ second equal protection argument is that
{¶ 63}
{¶ 64} Contrary to respondent‘s assertions, these claimants are not free to make the decision to proceed to trial or to settle. Their only freedom is to choose the mechanism by which to forfeit their rights to property and remedy. And in those situations where claimants are forced to settle for amounts that are insufficient to satisfy more than the subrogee‘s claim, as happened in Ross, supra, their only freedom is to have their tort recovery obliterated.
{¶ 65} Respondent further argues that ”
{¶ 66} Finally, several amici in support of respondent argue that distinguishing between settlements and trial “is also rational because settling parties will rarely, if ever, allocate a settlement to lost wages, medical expenses and pain and suffering.” The corollary to this argument is that the distinction may be a rational method to preclude collusive settlements. However, there is no purpose to allocating damages in the absence of a double reсovery and, in these situations, it is difficult to conceive how collusion could occur, unless the tortfeasor‘s financial and insurance coverage decisions were somehow made in collaboration with the claimant.
{¶ 67} Accordingly, we answer the fifth certified question in the affirmative and hold that
V
Section 15, Article II—One Subject
{¶ 68} The sixth certified question is whether
{¶ 69} 1995 Am.Sub.H.B. No. 278, which enacted
{¶ 70} Accordingly, we answer the sixth certified question in the negative and hold that
VI
Civ.R. 49(C)—Special Verdict
{¶ 71} The seventh certified question is whether
{¶ 72} In an effort to provide the claimant with the means to rebut the presumption that the entire amount of any third-party award or judgment represents workers’ compensation,
{¶ 73} However, this certainly does not render the entire statute invalid and unenforceable, nor does it cause the provision of
{¶ 74} Accordingly, we answer the seventh certified issue in the negative and hold that while
VII
R.C. 4123.80—Waiver of Compensation
{¶ 76}
{¶ 77} This is the same argument that was used in an attempt to invalidate the very concept of a workers’ compensation subrogation statute under
{¶ 78} Accordingly, we answer the eighth certified question in the negative and hold that
Conclusion
{¶ 79} We hold that
{¶ 80} Accordingly, we advise the federal court that
Judgment accordingly.
DOUGLAS, F.E. SWEENEY and PFEIFER, JJ., concur.
MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.
MOYER, C.J., dissenting.
{¶ 81} “The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.” The Federalist No. 78 (Alexander Hamilton) (Clinton Rossiter Ed. 1961) 468-469.
{¶ 82} The principle that courts are not the creators of public policy and should not decide cases based on disagreement with a legislature has guided courts since the creation of the American judicial system.
{¶ 83} This court has adhered to the view. See State ex rel. Bowman v. Allen Cty. Bd. of Commrs. (1931), 124 Ohio St. 174, 196, 177 N.E. 271, 278; State ex rel. Bishop v. Mt. Orab Village School Dist. Bd. of Edn. (1942), 139 Ohio St. 427, 438, 22 O.O. 494, 498, 40 N.E.2d 913, 919; State v. Warner (1990), 55 Ohio St.3d 31, 43, 564 N.E.2d 18, 30-31; Cent. Motors Corp. v. Pepper Pike (1995), 73 Ohio St.3d 581, 584, 653 N.E.2d 639, 642-643; Desenco, Inc. v. Akron (1999), 84 Ohio St.3d 535, 538, 706 N.E.2d 323, 328.
{¶ 84} The majority‘s determination that
{¶ 85} As I wrote in DeRolph II, “constitutional history, precedent, and logic warrant the conclusion that [these types of] qualitative judgments should be committed to the will of the people as expressed in the election of representatives to the General Assembly.” DeRolph v. State (2000), 89 Ohio St.3d 1, 48, 728 N.E.2d 993, 1029 (Moyer, C.J., dissenting).
{¶ 86} Our role here is to determine whether
I. Sections 16 and 19, Article I, Ohio Constitution
{¶ 87} The majority holds that because
{¶ 88} The majority argues that the employee is unconstitutionally required to reimburse the Bureau of Workers’ Compensation or the self-insured employer for future benefits that the employee may never receive. For instance, an injured employee may die before benefits equaling the subrogation amount have been received. It is also suggested that the surviving spouse may remarry, at which point he or she is entitled to a lump-sum payment representing two additional years of benefits, but, under workers’ compensation law, is not entitled to further benefits.
{¶ 89} It is true that an employee may die before benefits equaling the subrogation amount have been received. However, it is also true that an employee may live far beyond his or her life expectancy as determined by the court in estimating those future benefits. The estimated future values are the amount of compensation and medical benefits reasonably projected to be paid in the claim by the subrogee as a result of the actions of the tortfeasor. The court in determining these values hears evidence from both the claimant and the subrogee, and may reject the subrogee‘s projections if it finds them not well supported.
{¶ 90} This method of calculation of estimated future values is similar to the concept of future damages in a typical pеrsonal injury claim. Courts routinely estimate the value of future payments in these cases, aided by expert testimony, mortality tables, and formulas for reducing future payments to present value. Ohio Jury Instructions currently provides for estimating future values regarding earnings, 1 Ohio Jury Instructions (1996), Section 23.20, present value of future damage, 1
{¶ 91} The future values of workers’ compensation benefits can be calculated with more certainty than the typical personal injury claim, since an injured employee‘s rate of compensation is computed according to a statutorily set scheme.
{¶ 92} The majority contends that this final resolution is neither final nor enough to justify the constitutional infirmities of
II. Section 2, Article I, Ohio Constitution
{¶ 94} Injured employees are not a suspect class. State v. Williams (2000), 88 Ohio St.3d 513, 530, 728 N.E.2d 342, 359. Nor does
{¶ 95} As stated previously, the workers’ compensation scheme relies on compulsory contributions by employers tо a statewide fund. Injured employees and their beneficiaries are paid workers’ compensation benefits from this fund. Prior to adoption of
{¶ 96}
{¶ 97} Without the restriction regarding settlement awards in
{¶ 98} Even more important, legislation aimed at preventing collusive settlements that would prevent a statutory subrogee from being reimbursed is a reasonable use of legislative power, especially when the legislation is aimed at preserving the integrity of the State Fund for the benefit of all workers’ compensation claimants. Accordingly, I would hold that
III. Conclusion
{¶ 99} For the forgoing reasons, I would answer the certified questions by advising the United States District Court for the Northern District of Ohio that
COOK and LUNDBERG STRATTON, JJ., concur in the foregoing dissenting opinion.
{¶ 100} Like the Chief Justice, I would answer “no” to each certified question. And I agree with much of what the Chief Justice expresses in his dissenting opinion. I write separately to address the majority‘s unfortunate decision to declare
{¶ 101} A party may challenge a statute as unconstitutional either on its face or as applied to a particular state of facts. Belden v. Union Cent. Life Ins. Co. (1944), 143 Ohio St. 329, 28 O.O. 295, 55 N.E.2d 629, paragraph four of the syllabus. The effect of a successful challenge will differ depending on whether the court strikes the statute on its face or as applied. “If a statute is unconstitutional as applied, the State may continue to enforce the statute in different circumstances where it is not unconstitutional, but if a statute is unconstitutional on its face, the State may not enforce the statute under any circumstances.” Women‘s Med. Professional Corp. v. Voinovich (C.A.6, 1997), 130 F.3d 187, 193. This case necessarily presents a facial challenge to
{¶ 102} The majority fails to appreciate the distinction between facial and as-applied constitutional challenges. Because the majority deems
{¶ 103} The majority goes to great lengths in defending its mode of analyzing the constitutionality of
{¶ 104} The majority‘s error is not the consideration of additional situations; indeed, when entertaining a facial challenge, the court necessarily considers how the statute may apply to a variety of circumstances. Rather, the
{¶ 105} The majority also justifies its departure from the proper mode of constitutional аnalysis by painting a misleading picture about how this court manages its docket. The majority notes that this court has allowed discretionary appeals in Yoh v. Schlachter (Mar. 17, 2000), Williams App. No. WM-99-008, unreported, 2000 WL 281748, and In re Estate of Stewart (June 28, 2000), Lorain App. No. 99CA007422, unreported, 2000 WL 840512. See (2000), 89 Ohio St.3d 1490, 734 N.E.2d 377, and (2000), 90 Ohio St.3d 1471, 738 N.E.2d 383. In both of these cases, this court sua sponte ordered the briefing schedules stayed and the causes “held” for the decision in this case. According to the majority, this means that these cases “are poised to be decided” summarily “upon the authority” of this case. Thus, the majority concludes that a decision upholding the facial constitutionality of
{¶ 106} This court does not summarily decide all held causes when we have decided the case for which those causes are held. The disposition of a given case may not warrant summary disposition of causes held for it, particularly if the held causes present unique issues that are not addressed in the lead case. For example, this court ordered briefing in at least two recent cases that were originally held for dispositions in other cases. Compare State v. Eppinger (2000), 89 Ohio St.3d 1447, 731 N.E.2d 1136, and Paton v. Paton (2000), 89 Ohio St.3d 1436, 730 N.E.2d 990 (lifting stays on briefing), with State v. Eppinger (1999), 86 Ohio St.3d 1465, 715 N.E.2d 568, and Paton v. Paton (1999), 86 Ohio St.3d 1465, 715 N.E.2d 568 (holding causes for decisions in cases already pending before this court). In Eppinger and Paton, this cоurt examined each case and found it inappropriate to decide them summarily, despite the fact that we had originally held them for other cases pending here. Similarly, if Yoh and Stewart present issues not adequately addressed by the decision in this case, this court would lift the stay on briefing and hear the cases on the merits. Thus, if the majority had (correctly) upheld the facial constitutionality of
{¶ 107} The majority discounts this orderly (and correct) procedure by claiming that a supposedly “absurd result” would flow from it. The majority states, “Assuming that a refusal to consider additional factual situations in this case would result in a decision in favor of constitutionality, that decision would stand only so long as it took us to reverse it in Yoh and Stewart.” But this assertion is woefully
{¶ 108} Finally, the majority contends that the district court, by certifying the constitutional questions, “is actually asking us to evaluate the constitutionality of
LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.
Shumaker, Loop & Kendrick, L.L.P., Jack G. Fynes and Stefanie E. Berk, for petitioners.
Betty D. Montgomery, Attorney General, James A. Barnes, G. James Van Heyde and James M. Evans, Assistant Attorneys General, for respondent C. James Conrad, Administrator of Workers’ Compensation.
Nurenberg, Plevin, Heller & McCarthy Co., L.P.A., Kathleen J. St. John and David M. Paris, in support of petitioners, for amicus curiae Ohio Academy of Trial Lawyers.
Manley, Burke & Lipton, Andrew S. Lipton and Steven M. Ingram, in support of petitioners, for amicus curiae Armco Employees Independent Federation, Inc.
Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, in support of petitioners, for amicus curiae Ohio AFL-CIO.
Scott, Scriven & Wahoff, L.L.P., Timothy E. Cowans, William J. Wahoff and Richard Goldberg, in support of respondent, for amicus curiae Ohio Council of Retail Merchants.
Brickler & Eckler, L.L.P., and Kurtis A. Tunnell, in support of respondent, for amicus curiae Ohio Manufacturers’ Association.
Brickler & Eckler, L.L.P., Thomas R. Sant and Nan M. Still, in support of respondent, for amici curiae Ohio Chapter of the National Federation of Independent Business and Ohio Farm Bureau Federation, Inc.
Garvin & Hickey and Preston J. Garvin, in support of respondent, for amicus curiae Ohio Chamber of Commerce.
Vozar, Roberts & Matejczyk Co., L.P.A., Thomas J. Vozar, Glenna M. Roberts and David M. Matejczyk, in support of respondent, for amicus curiae National Association of Subrogation Professionals.