484 N.E.2d 271 | Ohio Ct. App. | 1985
Plaintiff Phyllis A. Hopkins has appealed from a judgment of the Franklin County Court of Common Pleas, and raises two assignments of error as follows:
"I. The trial court incorrectly found that there was anelection of remedies by plaintiff when she sought and received workers' compensation benefits prior to March 3, 1982.
"II. The trial court erred by finding an employee's cause of action against his employer for an intentional tort is barred by the employee's acceptance of workers' compensation benefits."
Defendant city of Columbus has *292 cross-appealed from that judgment, and has raised two assignments of error as follows:
"I. The trial court incorrectly found the indemnity agreement between the appellant city of Columbus and the appellee Babcock and Wilcox Company void as against public policy since the prohibition contained in O.R.C. §
"II. The trial court erred in finding that appellee company is not liable to appellant city under the terms of the indemnity agreement on the basis of the immunity provided a complying employer under workers' compensation law."
By her complaint, plaintiff, widow and executor of the estate of Donald Hopkins, alleges that defendants Babcock Wilcox Company and the city of Columbus wrongfully caused the death of Donald Hopkins by flagrant, intentional, willful, and grossly negligent conduct. The complaint also alleges that defendant Leschen Wire, Paper and Cable Company, as to whom no issue is raised upon this appeal, supplied defective cable used by defendant Babcock Wilcox Company in connection with the construction of a trash-burning facility pursuant to a contract between Babcock Wilcox and the city of Columbus.
Donald Hopkins was an employee of Babcock Wilcox and sustained the injuries resulting in his death during the course of and arising out of such employment. Defendant city of Columbus filed a cross-claim against defendant Babcock Wilcox for indemnification from Babcock Wilcox for any judgment obtained by plaintiff against the city of Columbus predicated upon a save-harmless provision of the contract between the city and Babcock Wilcox for construction of the trash-burning facility.
Babcock Wilcox filed a motion for summary judgment, both with respect to plaintiff's claim and the cross-claim of the city, upon the grounds that the claim against it is barred by Section
Since the complaint alleges that the death of Donald Hopkins was caused by an intentional tort committed by Babcock Wilcox, plaintiff's claim is not barred by either Section
This issue has been resolved by the second paragraph of the syllabus of Jones v. VIP Development Co. (1984),
The city's assignments of error in its cross-appeal raise the issue of whether the city's cross-claim for indemnification is barred by R.C.
R.C.
"A covenant, promise, agreement, or understanding in, or in connection with or collateral to, a contract or agreement relative to the design, planning, construction, alteration, repair, or maintenance of a building, structure, highway, road, appurtenance, and appliance, including moving, demolition, and excavating connected therewith, pursuant to which contract or agreement the promisee, or its independent contractors, agents or employees has hired the promisor to perform work, purporting to indemnify the promisee, its independent contractors, agents, employees, or indemnities against liability for damages arising out of bodily injury to persons or damage to property initiated or proximately caused by or resulting from the negligence of the promisee, its independent contractors, agents, employees, or indemnities is against public policy and is void. Nothing in this section shall prohibit any person from purchasing insurance from an insurance company authorized to do business in the state of Ohio for his own protection or from purchasing a construction bond."
The public policy established by R.C.
At common law, a person who is chargeable for another's wrongful act and pays damages to an injured party as a result thereof has a right of indemnity from the person committing the wrongful act, the party paying the damages being only secondarily liable, and the person committing the wrongful act, primarily liable. Travelers Indemnity Co. v. Trowbridge (1975),
Globe Indemnity involved the negligence of an independent contractor for which the principal was required to *294
respond in damages, and the Supreme Court held, at paragraph three of the syllabus, that where the principal "is free from actual fault but responds to the damage claim of the person hurt, he may have indemnity from the contractor whose active negligence caused the injuries." There is nothing in R.C.
Durgin, supra, was complicated by the fact that the promisor, in that case, was an employer entitled to the immunity from liability arising from an employee's work-related injury afforded by Section
The rule of Durgin properly applies only to claims against an employer who has been afforded immunity pursuant to Section
In the present case, however, plaintiff's claim is founded upon an alleged intentional tort by the promisor, Babcock Wilcox, as to which neither Section
Subsequent to the enactment of R.C.
In any event, under the pleadings, there is a possibility that the city would be required to respond in damages for an intentional tort committed by Babcock Wilcox even though the city committed no active negligence and no intentional wrongful act. In such an event, the indemnification clause of the contract between the city and Babcock Wilcox is enforceable in accordance with common-law principles of indemnification. To this extent, and for this reason, both cross-assignments of error of the city of Columbus are well-taken.
For the foregoing reasons, both assignments of error of plaintiff Phyllis Hopkins and both cross-assignments of error of defendant city of Columbus are sustained. The judgment of the Franklin County Court of Common Pleas is reversed, and this cause is remanded to that court for further proceedings in accordance with law, consistent with this decision.
Judgment reversed and cause remanded.
MCCORMAC, P.J., and STRAUSBAUGH, J., concur.