430 N.E.2d 948 | Ohio Ct. App. | 1980
This matter is before us on the appeal of plaintiffs, Ronald R. and Mary McComas, from the dismissal by the Court of Claims of plaintiff Ronald McComas' cause of action for injuries allegedly caused by a member of the Ohio National Guard.
Plaintiffs filed a complaint in the Court of Claims, alleging that while plaintiff Ronald McComas was a member of the Ohio National Guard attending inactive training for duty at Camp Grayling, Michigan, an employee of the defendant, the Ohio National Guard, negligently drove a truck and trailer into him, causing him severe injuries and a substantial loss of work, *88 and causing loss of consortium to plaintiff Mary McComas, and other damages totalling $626,000.
The Court of Claims dismissed the complaint for the reason "that the complaint does not state facts, nor can any state of facts be proved, which would entitle plaintiffs to recover. Therefore, plaintiff has failed to state a claim upon which relief can be granted and the motion to dismiss should be sustained."
Plaintiffs raise the following assignment of error in support of their appeal:
"The Court of Claims erred as a matter of law in holding that the Plaintiffs-Appellants' sole right of compensation arises out of the Worker's Compensation Act, Ohio Revised Code Section
The state of Ohio has waived its sovereign immunity and consented to be sued in the Court of Claims, where it shall have its liability determined in accordance with the same rules applicable to suits between private persons. R. C.
The Court of Claims' dismissal of plaintiffs' complaint seems to be founded upon the Court of Claims' finding that plaintiff Ronald McComas is entitled to workers' compensation benefits, or "equal or superior benefits" in lieu thereof. The court did not define what it meant by "equal or superior benefits." There are some benefits that would reduce the liability of the state under R. C.
"Recoveries against the state shall be reduced by the aggregate of insurance proceeds, disability award, or other collateral recovery received by the claimant."
Accordingly, the possible receipt of other benefits "equal or superior" to workers' compensation benefits does not, as a matter of law, release the state from all potential liability.
The remaining question is whether the allegations in plaintiffs' complaint state a cause of action in which plaintiff Ronald McComas could prove that, as an employee of the state of *89
Ohio, he was covered by workers' compensation law. Under R. C.
In Berk v. Ohio National Guard (Ohio Court of Claims No. 77-0287, March 1, 1978), unreported, the Court of Claims held that a member of the National Guard was a state and not a federal employee when engaged in training duty and not in active federal service. This holding, however, is in conflict with the workers' compensation definition of employment status for an Ohio National Guardsman. Under R. C.
"`State active duty' means that status attaching to a member of the Ohio organized militia performing duty ordered by competent state authority, for which duty status injury and occupational disease benefits are not otherwise provided by act of the congress of the United States or executive regulations of the United States."
If a national guardsman is not an employee for purposes of workers' compensation, pursuant to R. C.
Defendant raises the following assignments of error:
"1. The Court of Claims lacks jurisdiction over the subject matter of the complaint. Under section
"2. National Guard personnel when on duty pursuant to
"3. Under section
Our discussion of plaintiffs' assignment of error has considered the assignments of error raised in defendant's brief, and defendant's assignments of error are overruled.
For the foregoing reasons, the judgment of the trial court is reversed and the cause is remanded for further proceedings, consistent with this decision.
Judgment reversed andcause remanded.
WHITESIDE and REILLY, JJ., concur. *91