MONTY THOMAS v. THE RESERVES NETWORK, et al.
C.A. No. 10CA009886
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF LORAIN
November 14, 2011
2011-Ohio-5857
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 09CV163906
WHITMORE, Judge.
{¶1} Plaintiff-Appellant, Monty Thomas, appeals from the judgment of the Lorain County Court of Common Pleas, denying his motion for leave to amend his complaint and granting summary judgment in favor of Defendant-Appellees, The Reserves Network, Inc. (“Reserves Network“) and Victor McCown. This Court affirms.
I
{¶2} Reserves Network and I-Force, LLC (“I-Force“) are two temporary staffing agencies that both provided Central Ohio Warehouse Co. (“Central Ohio“) with workers for its warehouse. Specifically, Reserves Network provided Central Ohio with Victor McCown, and I-Force provided Central Ohio with Monty Thomas. On October 4, 2007, Thomas was seriously injured after McCown operated a tow motor and caused a steel rack loaded with tires to fall upon Thomas. Thomas received workers’ compensation benefits as a result of his injuries.
{¶4} On July 9, 2010, after all the summary judgment motions were filed, Thomas requested leave to file a second amended complaint. Specifically, Thomas sought to add an additional count for negligent hiring, placement, and retention against Reserves Network and Central Ohio. Reserves Network and Central Ohio both opposed the motion for leave to amend. On August 13, 2010, the trial court denied Thomas’ motion for leave to amend his complaint and granted summary judgment in favor of all of the defendants on all counts.
{¶5} Thomas now appeals from the trial court‘s judgment and raises two assignments of error for our review.
II
Assignment of Error Number One
“THE TRIAL COURT ERRED BY PROHIBITING PLAINTIFF-APPELLANT TO AMEND THE COMPLAINT TO CONFORM TO THE EVIDENCE PURSUANT TO CIVIL RULE 15[.]”
{¶7} “The decision to grant or deny a motion to amend a complaint lies in the discretion of the trial court and will not be reversed absent an abuse of discretion.” Wallner v. Thorne, 9th Dist. No. 09CA0053-M, 2010-Ohio-2146, at ¶10. An abuse of discretion means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶8} Initially, we note that Thomas sought leave to amend his complaint pursuant to
{¶9}
“[W]here it is possible that the plaintiff, by an amended complaint, may set forth a claim upon which relief can be granted, and it is tendered timely and in good faith and no reason is apparent or disclosed for denying leave, the denial of leave to file such amended complaint is an abuse of discretion.” Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 175.
Yet, “[a]n attempt to amend a complaint following the filing of a motion for summary judgment raises the spectre of prejudice.” Brown v. FirstEnergy Corp., 9th Dist. No. 22123, 2005-Ohio-712, at ¶6. “A plaintiff must move to amend under
{¶10} The record reflects that Thomas filed an amended complaint on April 19, 2010 after conducting McCown‘s deposition at the end of March 2010. After having answered the original complaint, all of the defendants then filed answers to the amended complaint. Moreover, all of the defendants then filed motions for summary judgment on May 7, 2010; May 19, 2010; and May 28, 2010; respectively. The deadline that the trial court set for summary judgment motions was May 28, 2010. Thomas did not seek leave to amend his complaint until July 9, 2010; after the summary judgment deadline had passed and all of the summary judgment motions had been filed.
{¶11} Thomas based his request for leave to amend on evidence that he claimed he did not discover “until the deposition of Victor McCown on March 23, 2010.” Thomas further indicated in his motion for leave to amend that his counsel did not obtain a transcript of the depositions in this case until May 12, 2010. His counsel, however, was present for both of the depositions, which took place in March 2010. Thomas even filed his first amended complaint in response to McCown‘s deposition so as to properly designate McCown as a party-defendant by name. Further, Thomas did not file his motion for leave until almost two months after he claimed that his counsel obtained the transcript of the depositions. The motion for leave to amend was filed well past the deadline that the court had set for summary judgment motions, and both Reserves Network and Ohio Central actually filed summary judgment motions. The amendment would have necessitated a re-filing of those motions, if not an additional discovery period, because both Reserves Network and Ohio Central conducted their discovery and filed their respective motions on the basis of simple negligence, not negligent hiring or retention. See
{¶12} It was within the trial court‘s discretion to conclude that Thomas’ motion for leave to amend was untimely, and that Reserves Network and Ohio Central would be prejudiced by allowing the amendment. See Brown at ¶6; Cunningham at ¶16-17. Based on our review of the record, we cannot say that the court abused its discretion by refusing to grant Thomas leave to amend. Thomas’ first assignment of error lacks merit.
Assignment of Error Number Two
“THE TRIAL COURT ERRED BY GRANTING DEFENDANTS-APPELLEES’ MOTION FOR SUMMARY JUDGMENT WHERE GENUINE ISSUES OF MATERIAL FACT EXISTED[.]”
{¶13} In his second assignment of error, Thomas argues that the trial court erred by entering summary judgment in favor of Reserves Network and McCown with respect to his claim for negligence against them. We disagree.
{¶14} We first note that Thomas does not challenge the remainder of the trial court‘s summary judgment determinations. Thomas indicates in his brief that he only challenges the court‘s summary judgment award with respect to Reserves Network and McCown. As such, we limit our analysis to a review of the award in favor of those two defendants, against whom Thomas only asserted negligence.
{¶15} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. Pursuant to
“(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to that party.” Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.
The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-93. Specifically, the moving party must support the motion by pointing to some evidence in the record of the type listed in
{¶16} The Revised Code immunizes employers from common law suits initiated by their employees for injuries arising out of the course and scope of their employment, provided that the employers are in full compliance with their workers’ compensation premiums.
{¶17} The Fellow Servant Immunity Doctrine applies to employers and employees, not independent contractors. Marshall v. Aaron (1984), 15 Ohio St.3d 48, 49-50. In the context of
{¶18} Reserves Network and McCown moved for summary judgment below on the basis of fellow servant immunity. Specifically, they argued that: (1) both McCown and Thomas were employees of Central Ohio, the customer of both Reserves Network and I-Force; (2) because McCown and Thomas were fellow employees and Thomas received workers’ compensation after he was injured, McCown was immune from suit under
{¶19} Thomas testified that I-Force arranged for his employment at Central Ohio. His job there consisted of loading and unloading tires from truck trailers parked at the loading bays in the warehouse. An employee from I-Force took a small group of temporary workers, including Thomas, to Central Ohio after he accepted the job. Once there, however, an employee
{¶20} As to the performance of his job duties, Thomas testified that Central Ohio assigned him to work with a more experienced worker at first so that he could learn exactly how to properly do his job. He explained that there was a specific method for loading and unloading the tires. In unloading a truck, for instance, the tires had to be removed by row from top to bottom with the aid of steel racks and a tow motor, operated by another worker. Thomas indicated that he had a direct supervisor at Central Ohio who remained on the dock alongside the warehouse workers during his shift. On the day Thomas received his injuries, Central Ohio‘s dock supervisor directed him to load the specific truck at issue because all of the other trucks already had workers on them.
{¶21} McCown testified that he agreed to work at Central Ohio the same day that he contacted Reserves Network, seeking employment. According to McCown, he watched a safety
{¶22} We conclude, based on the foregoing, that McCown satisfied his initial Dresher burden with respect to his argument that both Thomas and McCown were employees of Central Ohio at the time Thomas was injured. The record reflects that Central Ohio trained each man to perform their jobs, controlled the manner in which they performed those jobs, and assigned each man to a particular job, area, and/or partner for their job each day. Thomas and McCown also used all of Central Ohio‘s equipment to perform their duties and reported to a supervisor at Central Ohio. Although both Thomas and McCown emanated from temporary agencies, McCown set forth evidence demonstrating that it was Central Ohio that had the right to control the manner and means of Thomas and McCown‘s work performances on a daily basis. See Cheriki at ¶18; Daniels, 2 Ohio St.2d at 90-91. Compare Marshall, 15 Ohio St.3d at 49-50 (concluding that reasonable minds could differ on the issue of control where alleged employer
{¶23} Thomas first opposed Reserves Network and McCown‘s motion for summary judgment in this matter on the basis that they failed to assert fellow servant immunity as an affirmative defense. See
{¶24} Thomas argues on appeal that McCown was not immune from suit because he and McCown came from different temporary agencies. He claims that McCown is a third-party in relation to him and that the Supreme Court‘s opinion in Daniels cannot be extended to situations where the temporary employees at issue come from two different temporary agencies. With regard to McCown, however, Thomas’ argument misses the point because so long as both he and McCown were employees of Central Ohio, the relationship between them was not that of third
{¶25} In rebutting the assertion that he was an employee of Central Ohio, Thomas argues in a single, unsupported sentence that I-Force retained a degree of control over his work at Central Ohio. He fails to articulate what, if any, evidence substantiates his assertion. See
{¶26} In rebutting the assertion that McCown was an employee of Central Ohio, Thomas argues that Reserves Network had a mutual right to control McCown. The only evidence upon which he relies is a “Safety Partnership Letter” that Central Ohio and Reserves Network signed. In the letter, the two companies agreed to have a mutual understanding on the issue of safety and to work toward a safe work environment for all employees. The letter, however, does not refer to McCown at all. Although McCown did testify that he watched a safety training video at Reserves Network when he first applied there, he explained that all his specific job training took place at Central Ohio. Nothing in the record supports the assertion that Reserves Network performed any training at Central Ohio or had any presence there. McCown testified that he did not recall ever seeing a Reserves Network representative at Central Ohio. Indeed, throughout his motion for summary judgment, Thomas specifically accused Reserves
{¶27} Because Thomas and McCown were fellow employees, McCown was immune from suit by virtue of fellow servant immunity.
{¶28} The trial court granted summary judgment in favor of Reserves Network on the basis that it was an employer entitled to immunity under
{¶29} The doctrine of respondeat superior subjects an employer or principal to liability for the torts of an employee or agent. Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, at ¶20. Yet, the “doctrine of liability depends on the existence of control by a principal (or master) over an agent (or servant)[.]” Id. “Generally, an employer or principal is not vicariously liable for the negligence of an independent contractor over whom it retained no right to control the mode and manner of doing the contracted for work.” Lovett v. Lorain Comm. Hosp., 9th Dist. No. 2004-Ohio-598, at ¶12, quoting Clark v. Risko, 5th Dist. No. 03CA14, 2003-Ohio-7272, at ¶12. Accord Clark v. Southview Hosp. & Family Health Ctr. (1994), 68 Ohio St.3d 435, 438. Here, it was Central Ohio, not Reserves Network, who retained control over the mode and manner of McCown‘s work. Any negligence on his part could not be imputed to Reserves Network by way of respondeat superior because Reserves Network was not exerting control over McCown‘s actions at the time Thomas was injured. Lovett at ¶12. Accordingly, the trial court did not err by entering summary judgment in favor of Reserves Network. In re Estate of Baker, 9th Dist. No. 07CA009113, 2007-Ohio-6549, at ¶15 (“An appellate court shall affirm a trial court‘s judgment that is legally correct on other grounds, that is, one that achieves the right result for the wrong reason, because such an error is not prejudicial.“).
{¶30} In sum, the trial court properly entered summary judgment in favor of McCown and Reserves Network with regard to Thomas’ negligence claim against them. Thomas’ second assignment of error is overruled.
III
{¶31} Thomas’ assignments of error are overruled. The judgment of the Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
DICKINSON, J. CONCURS
BELFANCE, P. J. CONCURS, IN PART, AND DISSENTS, IN PART, SAYING:
{¶32} I respectfully dissent from the majority‘s resolution of the first assignment of error and a portion of the second assignment of error.
{¶33} With respect to Mr. Thomas’ first assignment of error, the trial court appears to have concluded that Mr. Thomas could not possibly succeed on a negligent hiring claim against Reserves Network based upon its mistaken conclusion that Reserves Network was immune. As the trial court was mistaken on that point, and did not consider the merits of the request for leave to amend under the liberal standard of
{¶34} Although the exact nature of the employment relationship between Reserves Network and Mr. McCown is unclear, it is possible that Mr. Thomas could sustain a cause of
{¶35} With respect to the majority‘s resolution of the second assignment of error concerning Mr. Thomas’ claim against Reserves Network based upon the doctrine of respondeat superior, I respectfully dissent as I would conclude that Reserves Network did not meet its initial Dresher burden on this issue and did not establish its entitlement to judgment as a matter of law.
{¶36} The majority correctly concludes that the workers’ compensation statute cannot be employed to define the legal relationship of Mr. Thomas to Reserves Network. Nor can it be employed to absolve Reserves Network of liability as Reserves Network is a third-party with respect to Mr. Thomas. Notably, Reserves Network did not even argue in its motion for summary judgment that it was entitled to summary judgment based upon the application of the doctrine of respondeat superior. Instead, it incorrectly argued that it was immune from suit because Mr. McCown was immune under the worker‘s compensation statute. The trial court mistakenly agreed that Reserves Network was immune from suit because of Mr. McCown‘s immunity. Thus, the question of whether Reserves Network was entitled to summary judgment as to Mr. Thomas’ claim based upon the doctrine of respondeat superior was not actually considered and decided by the trial court.
{¶37} “To succeed utilizing the doctrine of respondeat superior, [Mr. Thomas] must show (1) that a principal-agent relationship existed between [Mr. McCown] and [Reserves Network], and (2) that [Mr. McCown‘s] tortious conduct was committed within the scope of h[is] employment.” Thomas v. Speedway Superamerica, LLC, 9th Dist. No. 06CA0004, 2006-Ohio-5068, at ¶17. Thus, for Reserves Network to succeed on its motion based upon the merits,
{¶38} In discussing Mr. Thomas‘s claim against it sounding in respondeat superior, Reserves Network did not provide or point to any evidence concerning Mr. McCown‘s employment relationship with Reserves Network. Reserves Network hired Mr. McCown, paid him and provided him with worker‘s compensation insurance. Beyond that, Reserves Network did not supply pertinent documentation or information concerning its employment relationship with Mr. McCown. We do not know whether Mr. McCown had an employment contract with Reserves Network further detailing the employment relationship. We do not know whether Reserves network retained the ultimate right of control over where and when Mr. McCown worked and whether it had the authority to pull Mr. McCown off of any job he might be working. Nor do we know whether Mr. McCown was a regular W-2 employee or whether he received a 1099 – something that would be more consistent with an independent contractor. Rather, in its motion for summary judgment, it merely stated that “[Mr.] Thomas‘s claims against [Mr.] McCown are barred by operation of
{¶39} Thus, in my view, Reserves Network did not meet its Dresher burden to demonstrate that Mr. McCown was not its employee. Notably, in assessing this question, the issue is more complicated by virtue of the nature of Reserves Network‘s business. A unique problem is presented in this employment scenario where Reserves Network is the general or primary employer that services its business clients such as Central by providing them with
“Factors to be considered in making this determination include: ‘[(1)] who controls the details and quality of the work; [(2)] who controls the hours worked; [(3)] who selects the materials, tools and personnel used; [(4)] who selects the routes [traveled]; [(5)] the length of employment; [(6)] the type of business; [(7)] the method of payment; and [(8)] any pertinent agreements or contracts.‘” Burns at ¶12, quoting Bostic v. Connor (1988), 37 Ohio St.3d 144, 146.
{¶40} Thus, in examining Mr. McCown‘s position vis a vis Reserves Network, based on the record, it would appear that he had little or no control over the type of business he was placed in or the length of employment. Further, we have no information regarding the existence of contracts, if any, between these parties. The fact that Central could direct Mr. McCown as to his work, does not warrant the conclusion that Mr. McCown is an independent contractor of Reserves Network. For this particular aspect of the analysis, the focus is on the relationship between Mr. McCown and Reserves Network. Based upon the record before us, it does not appear that Mr. McCown had much control over “the manner or means of performing the work[]” with respect to Reserves Network, and there is no evidence that Mr. McCown reserved any right of control with respect to his employment with Reserves Network. Burns at ¶12, quoting Bobik, 146 Ohio St. at paragraph one of the syllabus.
{¶41} Given Reserves Network‘s failure to meet its Dresher burden as well as its failure to develop any legal argument in the trial court, I would decline to decide the issue of respondeat superior in the first instance. Accordingly, I respectfully dissent.
JESSE M. SCHMIDT and ROBERT C. OCHS, Attorneys at Law, for Appellant.
STEVEN G. JANIK, AUDREY K. BENTZ, and JOHN J. ROSZCZYK, Attorneys at Law, for Appellee.