Binger v. Alpont Transportation LLC et al

Filing 104

ORDER denying 34 Motion to Dismiss without prejudice; granting 59 Motion to Strike; granting 60 Motion for Leave to File; granting 61 Motion for Leave to File. Signed by Judge Algenon L. Marbley on 3/13/2019. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT BINGER
Plaintiff,
v.
ALPONT TRANSPORTATION, et al,
Defendants – Third-Party Plaintiffs,
v.
SELECT SIRES, INC.,
Third-Party Defendant.

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Case No. 2:17-cv-570

JUDGE ALGENON L. MARBLEY

Magistrate Judge Kimberly A. Jolson

OPINION & ORDER
This matter is before the Court on Motion of Third-Party Defendant Select Sires, Inc.
(“Select Sires”). Defendant has filed a Motion to Dismiss or in the Alternative for Summary
Judgment. (ECF No. 34). Defendant – Third-Party Plaintiff Alpont Transportation (“Alpont”)
has filed a Response (ECF No. 41) to which Third-Party Defendant Select Sires has filed a Reply
(ECF No. 44). Defendant – Third-Party Plaintiff Alpont has also filed a document styled a Reply
to Defendants’ Response (ECF No. 56) which Select Sires has moved to strike (ECF No. 59).
Finally, Defendant – Third-Party Plaintiff Alpont has filed a Motion for Leave to File
Supplemental Statement of Facts (ECF No. 60) and a Motion for Leave to File an Amended
Third-Party Complaint (ECF No. 61).
For the reasons below, Third-Party Defendant Select Sires’s Motion to Dismiss or in the
Alternative for Summary Judgment is DENIED without prejudice. Defendant – Third-Party
Plaintiff Alpont’s Motion for Leave to File Supplemental Statement of Facts is GRANTED, to

supplement ECF No. 41. Alpont’s Motion for Leave to File Amended Complaint is GRANTED.
In addition, Alpont’s Reply (ECF No. 56) is STRICKEN.
I. BACKGROUND
In June 2016, Plaintiff Robert Binger was a pedestrian on U.S. Route 42 when Defendant
Randall E. Miller, driving a tractor trailer, hit him. (ECF No. 19 at ¶8). At the time, Miller was
employed by Alpont, and Binger was employed by Select Sires. (ECF No. 19 at ¶3). Binger sued
Alpont, alleging negligence. In response, Alpont sued Select Sires (ECF No. 20), alleging
indemnity/contribution and respondeat superior.
At issue is whether Ohio’s workers’ compensation scheme immunizes Select Sires from
Alpont’s request for contribution. Select Sires argues that, as a complying employer, they are
immune. Ohio R. C. § 4123.74. Alpont argues that workers’ compensation is a scheme that
governs the relationship of employees and their employers and does not speak to the employers’
liability to third-parties. In the alternative, Alpont argues that Sires’ interpretation of the
workers’ compensation scheme is unconstitutional as applied to third parties like Alpont.1
II. STANDARD OF REVIEW
Because evaluating Select Sires’s Motion requires consideration of facts that are not
present on the face of Alpont’s well-pleaded complaint, this Motion is more properly
characterized as a Motion for Summary Judgment than a Motion to Dismiss. Rule 12(b)(6) of the
Federal Rules of Civil procedure provides that if “matters outside the pleadings are presented to
and not excluded by the court, the motion shall be treated as one for summary judgment and
disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to

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Because Sires’s Motion is denied, it is not necessary at this time to reach the question of the constitutionality of the
workers’ compensation scheme, and by this Order, this Court expresses no judgment on the merits of this question.
See generally Davet v. City of Cleveland, 456 F.3d 549, 554 (6th Cir. 2006) (reciting the familiar principle that,
where possible, federal courts construe challenged state statutes “to avoid constitutional difficulty.”)

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present all material made pertinent to such a motion by Rule 56.” Because the question of
workers’ compensation and employer immunity is not presented on the face of Alpont’s
complaint, Select Sires’s Motion is addressed as a Rule 56 Motion for Summary Judgment.
Federal Rule of Civil Procedure 56(a) provides, in relevant part, that summary judgment
is appropriate “if the movant shows that there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law.” A fact is deemed material only if it “might
affect the outcome of the lawsuit under the governing substantive law.” Wiley v. United States,
20 F.3d 222, 224 (6th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). The nonmoving party must then present “significant probative evidence” to show that
“there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris
Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993). The mere possibility of a factual dispute is
insufficient to defeat a motion for summary judgment. See Mitchell v. Toledo Hospital, 964 F.2d
577, 582 (6th Cir. 1992). Summary judgment is inappropriate, however, “if the dispute about a
material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
The necessary inquiry for this Court is “whether ‘the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.’” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting
Anderson, 477 U.S. at 251-52). The mere existence of a scintilla of evidence in support of the
opposing party’s position will be insufficient to survive the motion; there must be evidence on
which the jury could reasonably find for the opposing party. See Anderson, 477 U.S. at 251;
Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995). It is proper to enter summary judgment
against a party “who fails to make a showing sufficient to establish the existence of an element

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essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the nonmoving party has “failed to
make a sufficient showing on an essential element of her case with respect to which she has the
burden of proof,” the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S.
at 322 (quoting Anderson, 477 U.S. at 250).
In evaluating a motion for summary judgment, the evidence must be viewed in the light
most favorable to the nonmoving party. S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321,
327 (6th Cir. 2013).
III. ANALYSIS
1. Select Sires’s Motion for Summary Judgment
The question is whether, under Ohio law, a third-party may demand contribution from an
employer who is a complying employer under Ohio’s workers’ compensation laws. Generally,
such a third-party may not so demand and such an employer would be immune. See e.g.,
Williams v. Ashland Chemical Co., 52 Ohio App. 2d 81, 89 (1976). However, this immunity is
conditioned on the employees’ actions being in the scope of their employment as that phrase is
used in the workers’ compensation context. See e.g. Williams, 52 Ohio App. at 86. In this case,
there remains a genuine dispute about this material fact. As a result, summary judgment would
be inappropriate at this time. Select Sires’ Motion is denied without prejudice and may be refiled at an appropriate time.
The Ohio Revised Code provides that employers who comply with the workers’
compensation scheme
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
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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.
Ohio R.C. § 4123.74. Ohio courts have generally interpreted this provision to immunize
complying employers from liability even to third parties for damage sustained. In Perry, the
Court of Appeals allowed the trial court’s order to stand after the trial court granted a judgment
notwithstanding the verdict to the defendant who argued that their compliance with the workers’
compensation scheme should overcome an adverse jury verdict. The Perry court explained the
principle in broad terms, writing, “[this] section of the Ohio workers’ compensation law provides
that an employer who complies with the law is relieved from liability to anyone for damages
arising from an injury to an employee sustained in the course of the employee’s employment.”
Perry v. S.S. Steel Processing Corp., 40 Ohio. App. 3d 198, 202 (1987). A complying employer
is liable to a third-party for claims arising out of injuries to employees only where there has been
express agreement between the two parties as to that liability. Williams, 52 Ohio App. 2d at 89
(1976).
But as Perry and Williams indicate, merely being a complying employer is not sufficient
for blanket immunity. Rather, the actions in question by the employee must have been in the
scope of her employment. Generally, “[u]nder Ohio law, a third-party tortfeasor…has no
standing to bring an indemnification claim against an employer for damages suffered by an
employee in the course of or arising out of his employment where the employer is acting in
compliance with the Ohio workers’ compensation law.” Id. See also Williams, 52 Ohio App. at
86 (noting that the legislature enacted the workers’ compensation scheme to “provide against
liability of the employer to anyone for damages arising from any injury…of an employee arising
out of his employment.”). Thus any determination of contribution or indemnification, as

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demanded here, requires a two-step inquiry: first, whether the employer is a complying employer
within the meaning of O.R.C. § 4321.74; and second, whether the damage in question “arose out
of” the employment.
Alpont’s Complaint alleges Binger was in the scope of his employment that day, and
Select Sires argues Alpont has therefore conceded the point. But Alpont’s Complaint brings a
claim for respondeat superior which, rather inconveniently, also uses the terminology “scope of
employment.” As a result, it is not at all clear that Alpont has conceded that Binger was in the
scope of his employment for the workers’ compensation determination. Both determinations –
the scope of employment for immunity under O.R.C. § 4321.74 and the scope of employment for
respondeat superior – require development of the factual record because although they share a
name, they do not share a legal standard.
In the workers’ compensation context, the phrase
has never been accurately defined, although many attempts have been made. It
cannot be accurately defined, because it is a question of fact and each case is sui
generis. The act of an agent is the act of the principle within the course of the
employment when the act can fairly and reasonably be deemed to be an ordinary
and natural incident or attribute of the service rendered, or a natural, direct, and
logical result of it.
Rogers v. Allis-Chalmers Mfg. Co., 153 Ohio St. 513, 526-27 (1950) (internal quotation omitted).
By contrast, respondeat superior requires the element of the master’s control of the manner and
means of the servant’s work. It is thus focused on
the relation of superior and subordinate [and] is applicable to that relation
wherever it exists, as between principal and agent, or master and servant, is
coextensive with it, and ceases when that relation ceases to exist; and the reason
of it is to be traced to the power of control and direction, which the superior has a
right to exercise, and which, for the safety of others, he is bound to exercise over
the acts of his subordinates.
Id. at 527.

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Select Sires presents evidence that they are a complying employer within the meaning of
O.R.C. § 4231.74. But there remains a genuine dispute of material fact, namely whether Plaintiff
Binger’s actions on June 10, 2016 were in the scope of his employment. Select Sires’s immunity
cannot be determined conclusively until there is more information in the record properly before
the Court about Binger’s responsibilities and training. As a result, although Select Sires may
renew their motion at the appropriate time, at this moment it is denied.
2. Select Sires’s Motion to Strike
Alpont filed a document entitled “Reply to Response to Defendants’ Motion to Dismiss
or in the Alternative for Summary Judgment.” (ECF No. 56). This document is, in sum and
substance, a responsive pleading to Defendants’ Reply (ECF No. 44). Because this reply
constitutes an “additional memorand[um] beyond those enumerated,” it is prohibited by Local
Rule 7.2(a)(2), except upon leave of court. Select Sires’ Motion to Strike is therefore granted.
3. Alpont’s Motions for Leave to File
Alpont has submitted Motion requesting Leave to File an Amended Complaint. Federal
Rule of Civil Procedure 15(a) provides that “leave shall be freely given when justice so
requires.” Fed. R. Civ. P. 15(a); Foreman v. Davis, 371 U.S. 178, 182 (1962). While the Sixth
Circuit is “very liberal” in permitting amendments, certain factors may warrant the denial of a
motion to amend: undue delay, bad faith, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by the amendment, and the futility of
the amendment. United States v. The Limited, Inc., 176 F.R.D. 541, 550 (S.D. Ohio 1998).
A substantially similar version of the amended complaint Alpont proposes to file has
already been filed, at ECF No. 47 (“Third-Party Plaintiff Interstate Chemical Company’s ThirdParty Complaint Against Select Sires”). As a result, the concerns about bad faith and prejudice to

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the opposing party are de minimis. In addition, the factors weighing in favor of amendment –
namely increased clarity and a good faith effort to cure a deficiency – are present here. As a
result, Alpont’s Motion for Leave to Amend is granted.
Alpont has also submitted a Motion for Leave to File Supplemental Statement of Facts.
Alpont has indicated this Motion relates back to their earlier filings: ECF No. 41 (Response in
Opposition to Sires’s Motion for Summary Judgment) and ECF No. 56 (Reply to Response). As
above, the latter is stricken from the record. However, Alpont may submit this Statement of Facts
to supplement their filing at ECF No. 41. See generally, Fed. R. Civ. P. 56(e). This motion is
granted.
IV. CONCLUSION
Although certain contributing employers are immune as against requests for contribution
per Ohio’s workers’ compensation scheme, this immunity is contingent on the employee’s
actions being in the scope of her employment. On this question, there remains a genuine dispute
of material fact. As a result, Third-Party Defendants Select Sires’s Motion for Summary
Judgment is DENIED without prejudice and may be refiled at the appropriate time. In the
interest of clarity and judicial economy, Plaintiff – Third-Party Defendant Alpont’s Motion to
Amend is GRANTED, and Alpont’s Motion to Supplement Doc. 41 is GRANTED. Third-Party
Defendants Select Sires’s Motion to Strike is GRANTED.

IT IS SO ORDERED.

s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Judge
Dated: March 13, 2019

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