Stolz v. J & B Steel Erectors, Inc. et al

Filing 106

CERTIFICATION ORDER. Signed by Judge Timothy S. Black on 8/22/17. (gs)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION DANIEL STOLZ, Plaintiff, vs. J & B STEEL ERECTORS, INC., et al., Defendants. : : : : : : : : : Case No. 1:14-cv-44 Judge Timothy S. Black CERTIFICATION ORDER Pursuant to Supreme Court of Ohio Rules of Practice 9.01 through 9.04, the Court hereby issues this Certification Order, to be served upon all parties or their counsel of record and filed with the Clerk of the Supreme Court of Ohio, under seal of the United States District Court for the Southern District of Ohio. A. Case Name Daniel Stolz v. J & B Steel Erectors, Inc., et al., United States District Court, Southern District of Ohio, Case No. 1:14-cv-44 B. Statement of Facts 1. Nature of the Case Plaintiff alleges he was injured while working as a concrete finisher for Jostin Construction, Inc. (“Jostin”) at the Horseshoe Casino construction project in Cincinnati (“Casino Project”). Plaintiff brings this civil action against Defendants J & B Steel Erectors, Inc. (“J & B Steel”), Messer Construction Co. (“Messer”), Terracon 1 Consultants, Inc. (“Terracon”), Pendleton Construction Group, LLC (“Pendleton”), D.A.G. Construction Co., Inc. (“D.A.G.”), and Triversity Construction Co., LLC (“Triversity”), each of whom Plaintiff alleges had responsibilities related to the Casino Project, for negligence.1 2. Circumstances Giving Rise To the Question of Law At the time of his alleged injuries, Plaintiff was working for Jostin as a concrete finisher at the Casino Project. (Doc. 49 at ¶ 1). Defendant Messer was the general contractor for the Casino Project, and Jostin was one of its subcontractors. (Doc. 49 at ¶¶ 1, 4; Doc. 14-2 at ¶¶ 1-4). Prior to Plaintiff’s accident, Defendant Messer had obtained authority from the Ohio Bureau of Workers’ Compensation (“BWC”) to self-administer the workers’ compensation program for all of the enrolled subcontractors on the Casino Project. (Doc. 14-2 at ¶¶ 1-4; Doc. 14-3). Jostin and Defendants and J & B Steel, D.A.G., and Triversity were enrolled subcontractors participating in Defendant Messer’s workers’ compensation program for the Casino Project under the certificate of authority issued by the BWC to Defendant Messer. (Doc. 14-2 at ¶¶ 1-4; Doc. 14-3; Doc. 14-4). Defendants Messer, J & B Steel, D.A.G., and Triversity moved for summary judgment on the grounds that they are entitled to immunity from Plaintiff’s negligence claim pursuant to Ohio’s workers’ compensation laws, including Ohio Revised Code 1 Plaintiff also seeks punitive damages. Plaintiff asserted an employer intentional tort claim against Defendant Messer (only), which was dismissed. (See Doc. 33). 2 §§ 4123.35 and 4123.74. (Docs. 14, 37, and 40).2 The Court found that Defendant Messer was entitled to immunity as the self-insuring employer on the Casino Project. (Doc. 68 at 6). The Court found that Defendants J & B Steel, D.A.G., and Triversity (“Subcontractor Defendants”) were not entitled to immunity because an enrolled subcontractor is only entitled to immunity vis-à-vis its own employees under the abovecited statutes. (Id. at 13-14). Accordingly, the Court granted Defendant Messer’s motion for summary judgment and denied the Subcontractor Defendants’ motions for summary judgment. (Id. at 19). The Subcontractor Defendants then moved for certification of the following question to the Ohio Supreme Court: Whether Ohio Rev. Code §§ 4123.35 and 4123.74 provide immunity to subcontractors enrolled in a Workers’ Compensation self-insurance plan from 2 Section 4123.35(O) provides, in relevant part: A self-insuring employer who complies with this division is entitled to the protections provided under this chapter and Chapter 4121. of the Revised Code with respect to the employees of the contractors and subcontractors covered under a certificate issued under this division for death or injuries that arise out of, or death, injuries, or occupational diseases that arise in the course of, those employees’ employment on that construction project, as if the employees were employees of the self-insuring employer, provided that the self-insuring employer also complies with this section. . . . The contractors and subcontractors included under a certificate issued under this division are entitled to the protections provided under this chapter and Chapter 4121. of the Revised Code with respect to the contractor’s or subcontractor’s employees who are employed on the construction project which is the subject of the certificate, for death or injuries that arise out of, or death, injuries, or occupational diseases that arise in the course of, those employees' employment on that construction project. Section 4123.74 provides: Employers who comply with section 4123.35 of the Revised Code shall not be liable to respond in damages at common law or by statute for any injury, or occupational disease, or bodily condition, received or contracted by any employee in the course of or arising out of his employment, or for any death resulting from such injury, occupational disease, or bodily condition occurring during the period covered by such premium so paid into the state insurance fund, or during the interval the employer is a self-insuring employer, whether or not such injury, occupational disease, bodily condition, or death is compensable under this chapter. 3 tort claims made by employees of [other] enrolled subcontractors injured while working on the self-insured project. This Court granted the request for certification, recognizing a split on the issue between its own ruling in the case and a lower Ohio state court’s ruling on a similar issue. The Ohio Supreme Court returned its answer to the certified question on April 19, 2016, answering in the affirmative. (Doc. 79). Following the Ohio Supreme Court’s judgment, Plaintiff amended his complaint to add one additional claim—that Ohio Revised Code § 4123.35(O), as interpreted by the Ohio Supreme Court’s answer to the previously certified question, was unconstitutional. (Doc. 90). The second amended complaint cited portions of the U.S. Constitution as well as several unique portions of the Ohio Constitution that Plaintiff alleged were violated by the statute. 3. Question of Law To Be Answered The question of law to be answered by the Supreme Court of Ohio is as follows: Whether Ohio Rev. Code § 4123.35(O) is unconstitutional as applied to the tort claims of an enrolled subcontractor’s employee who is injured while working on a self-insured construction project and whose injury is compensable under Ohio workers’ compensation laws. As set forth in its Order granting the Subcontractor Defendants’ motion to certify a question of state law to the Supreme Court of Ohio (Doc. 105), the Court finds that this is a question of Ohio law that may be determinative of the proceeding and for which there is no controlling precedent in the decisions of this Supreme Court. 4 C. Names of the Parties Plaintiff Daniel Stolz Defendants J & B Steel Erectors, Inc. Messer Construction Co.3 Terracon Consultants, Inc. Pendleton Construction Group, LLC D.A.G. Construction Co., Inc. Triversity Construction Co., LLC D. Counsel for Each Party Plaintiff’s Counsel Brett Colbert Goodson Goodson & Company Ltd 110 E 8th Street Suite 200 Cincinnati, OH 45202-2132 513-621-5631 Email: brettgoodson@goodsonandcompany.com Attorney Registration Number: 0023163 Stephanie M Day Santen & Hughes 600 Vine Street Suite 2700 Cincinnati, OH 45202 513-721-4450 Fax: 513-721-0109 Email: smd@santen-hughes.com 3 Defendant Messer Construction Co. was terminated from the case on December 31, 2014, when the Court granted its motion for summary judgment. However, Messer filed an amicus brief in support of certifying the question of Ohio Revised Code § 4123.35(O)’s constitutionality to the Ohio Supreme Court. (Doc. 99). Plaintiff’s negligence claim remains pending against all other Defendants. Defendants Terracon Consultants, Inc. and Pendleton Construction Group, LLC have not asserted an immunity defense. 5 Attorney Registration Number: 0073006 Defendants’ Counsel For Defendant J & B Steel Erectors, Inc.: Colleen Marie Blandford Kohnen & Patton PNC Center 201 East Fifth Street Suite 800 Cincinnati, OH 45202 513-381-0656 Email: cblandford@kplaw.com Attorney Registration Number: 0061877 Kimberly A Pramaggiore Kohnen & Patton PNC Center 201 East Fifth Street Suite 800 Cincinnati, OH 45202 513-381-0656 Email: kpramaggiore@kplaw.com Attorney Registration Number: 0066618 For Defendant Messer Construction Co.: Jane Michele Lynch Green & Green - 3 800 Performance Place 109 North Main Street Dayton, OH 45402 937-224-3333 Fax: 937-224-4311 Email: jmlynch@green-law.com Attorney Registration Number: 0012180 Jared A Wagner 800 Performance Place 109 North Main Street Dayton, OH 45402 6 937-224-3333 Fax: 937-224-4311 Email: jawagner@green-law.com Attorney Registration Number: 0076674 For Defendant Terracon Consultants, Inc.: Robert W Hojnoski Reminger Co LPA 525 Vine Street Suite 1700 Cincinnati, OH 45202 513-721-1311 Fax: 513-721-2553 Email: rhojnoski@reminger.com Attorney Registration Number: 0070062 Nathan Andrew Lennon Reminger Co, LPA 525 Vine Street Suite 1700 Cincinnati, OH 45202 513-544-4012 Fax: 513-721-2553 Email: nlennon@reminger.com Attorney Registration Number: 0091743 For Defendants Pendleton Construction Group, LLC, D.A.G. Construction Co., Inc., and Triversity Construction Co., LLC: Stephen James Patsfall Patsfall Yeager & Pflum LLC - 1 One W Fourth Street Suite 1800 Cincinnati, OH 45202 513-721-4500 Email: spatsfall@pyplaw.com Attorney Registration Number: 0012271 Stephen Michael Yeager Patsfall Yeager & Pflum LLC - 1 205 W Fourth Street Suite 1280 7 Cincinnati, OH 45202 513-721-4500 Email: syeager@pyplaw.com Attorney Registration Number: 0011841 Susan Salyer Patsfall Yeager & Pflum LLC 205 W Fourth Street Suite 1280 Cincinnati, OH 45202 513-721-4500 Email: ssalyer@pyplaw.com Attorney Registration Number: 0076623 E. Designation of the Moving Party Defendants J & B Steel Erectors, Inc., D.A.G. Construction Co., Inc., and Triversity Construction Co., LLC are the moving parties. IT IS SO ORDERED. Date: 8/22/17 s/Timothy S. Black Timothy S. Black United States District Judge 8

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