Sammetinger v. Kirk Bros. Co., Inc. , 2010 Ohio 1500 ( 2010 )

[Cite as Sammetinger v. Kirk Bros. Co., Inc., 2010-Ohio-1500.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
WILLIAM H. SAMMETINGER,
PLAINTIFF-APPELLEE,
v. CASE NO. 8-09-15
BUREAU OF WORKERS’ COMPENSATION,
DEFENDANT-APPELLEE,
-and- OPINION
KIRK BROS. CO., INC.,
DEFENDANT-APPELLANT.
WILLIAM H. SAMMETINGER, ET AL.,
PLAINTIFFS-APPELLEES,
v. CASE NO. 8-09-16
CHRISTOPHER P. SAMMETINGER, ET AL.,
DEFENDANTS-APPELLEES,
-and- OPINION
KIRK BROS. CO., INC.,
DEFENDANT-APPELLANT.
Appeals from Logan County Common Pleas Court
Trial Court Nos. CV 08 05 0288 and CV08 07 0376
Judgments Affirmed
Date of Decision: April 5, 2010
Case Nos. 8-09-15 and 8-09-16
APPEARANCES:
Christine L. Robek and Scott R. Brown for Appellant,
Kirk Bros. Co., Inc.
Richard E. Siferd and Walter M. Lawson, III for Appellees,
William H. and Sharon Sammetinger
J. Stephen Teetor and Paul A. MacKenzie for Appellee,
Westfield Insurance Company
James D. Utrecht for Appellee, Christopher Sammetinger
Charissa D. Payer, Attorney for Bureau of Worker’s Compensation
SHAW, J.
{¶1} In Case Number 8-09-15, the defendant-appellant, Kirk Brothers,
Co., Inc. (“Kirk Bros.”), appeals the July 1, 2009 judgment of the Common Pleas
Court of Logan County, Ohio, granting summary judgment in favor of the
plaintiff-appellee, William Sammetinger (“William”), and denying Kirk Bros.’
motion for summary judgment, having found that William’s injuries occurred in
the course of and arose out of his employment with Kirk Bros. In that same case,
Kirk Bros. also appeals the September 3, 2009 judgment, awarding attorneys fees
and court costs in favor of William and against Kirk Bros.
{¶2} In Case Number 8-09-16, the defendant-appellant, Kirk Bros., also
appeals the July 1, 2009 judgment of the Common Pleas Court of Logan County,
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Case Nos. 8-09-15 and 8-09-16
Ohio, granting summary judgment in favor of the defendant-appellee, Christopher
Sammetinger (“Chris”), and partial summary judgment of the defendant-appellee,
Westfield Insurance Company (“Westfield”). Additionally, Kirk Bros. appeals the
August 7, 2009 judgment in this same case number, finding in favor of Westfield
on its cross-claim for declaratory judgment against Kirk Bros., overruling Kirk
Bros.’ motion to strike Westfield’s defense that William was injured in the course
of and arising out of his employment with Kirk Bros., and dismissing Kirk Bros.’
cross-claim against Westfield, having determined that Westfield had no duty to
defend or indemnify Kirk Bros. under its policy of insurance with Westfield
because William was injured in the course of and arising out of his employment
with Kirk Bros.
{¶3} The undisputed facts relevant to these consolidated appeals are as
follows. In June of 2007, William worked for Kirk Bros., a construction company,
as a masonry superintendent. At that time, William was assigned to a job site in
Powell, Ohio, where the company was building a new high school. William lived
in Wapakoneta, Ohio, approximately seventy-eight miles west of the job site, and
drove a company-owned truck to and from his home to the job site, where he
supervised over fifty employees. During that summer, the employees assigned to
the masonry work on the high school worked from 7:00 a.m. until 3:30 p.m.
William, as supervisor, was also at the site during these times and was always the
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last to leave, sometime between 3:30-4:00 p.m., because he was responsible for
ensuring that the gang boxes and trailers at the site were locked for the night and
that the material laid in the wall that day was counted.
{¶4} As masonry superintendent, William had numerous responsibilities
both on and off the job site. These responsibilities included supervising the
masons and other laborers assisting on the masonry work, performing the layout
for the masonry work, ensuring the accuracy of the work, coordinating the
masonry work with other trades working on the construction of the high school,
ensuring compliance with the project’s schedule, ensuring compliance with safety
standards, ordering materials and equipment, and the hiring and firing of
employees under his supervision. In addition, William often transported
equipment to the job site from other Kirk Bros.’ construction sites, made trips to
the local Home Depot and/or Lowe’s to buy supplies as needed, and provided
transportation for other workers who needed a ride to work.
{¶5} He also had administrative aspects to his position as masonry
supervisor, including completing paperwork such as the time sheets of the workers
and payroll, keeping a log of materials, keeping the minutes of job meetings he
had, and completing requests for information to and from architects, engineers,
etc. Once a week, William would deliver this paperwork to the home of his
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supervisor, Denny Lange, in Lima, Ohio, approximately twenty miles north of his
home in Wapakoneta.
{¶6} As part of his job, William would also load a number of water
containers and gasoline cans into the back of his work truck at the end of each day
in order to fill them for the following day. He usually stopped at a gas station in
Russells Point, Ohio, or at a station in Wapakoneta to fill the gas cans and to
purchase ice for the next day. Every other day, he would also fill the gas tank in
the truck when he stopped to fill the gas cans. William paid for the ice and the
gasoline with a Kirk Bros. credit card. At home, William would clean the water
containers and fill them for the next day. He also transported an assortment of
small tools and equipment back and forth with him in the truck, which he would
then park in his garage for safe-keeping due to criminal activity involving the theft
of small tools at the job site. On occasion, William would also make minor repairs
to this equipment, change filters in the cut-off saws, and other things of that nature
while at home.
{¶7} To facilitate his work, Kirk Bros. not only provided William with a
company-owned truck but also with a cellular phone. William would often field
calls on this cellular phone throughout the day, both before and after his shift at
the job site. These calls were for a variety of work-related issues, such as calls
from salesmen, suppliers, laborers seeking work, employees calling in sick, his
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supervisors discussing the job, and the equipment manager calling to arrange a
time to service a piece of equipment. He received these calls anywhere from 5:00
a.m. until 10:00 p.m.; they lasted anywhere from thirty seconds to ten minutes;
and they occurred while he was driving to and from the job site in the company
truck, while he was at the site, and while he was home.
{¶8} On June 14, 2007, William worked his normal shift at the job site.
At the end of the day, William asked his son and fellow Kirk Bros. employee,
Christopher Sammetinger (“Chris”), to drive the company truck to their home in
Wapakoneta because he had a long day and was tired. Chris then drove their
normal route home, taking U.S. Highway 33 westbound. Somewhere between
Bellefontaine, Ohio, and Russells Point, Chris fell asleep. He awakened as the
vehicle veered from its intended course and attempted to correct the vehicle’s path
of travel. However, Chris lost control of the vehicle, causing it to leave the
roadway and flip over. Both William and Chris were able to crawl out of the truck
from the driver’s side window. They were each transported via ambulance to a
local hospital, but William sustained life-threatening injuries and was transported
to OSU Hospital in Columbus, Ohio.
{¶9} As a result of the accident, William received multiple injuries and
was comatose for approximately two months. Among his injuries were a broken
shoulder, broken collarbone, lumbar fracture, a number of broken ribs, a punctured
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lung, and a torn diaphragm. William was unable to walk for four months and had
to undergo physical therapy. Eventually William was able to return to work at
Kirk Bros. on a part-time basis. As of December 2008, William was working
thirty hours per week and only able to lift a maximum of twenty-five pounds.
{¶10} William filed a claim with the Bureau of Workers’ Compensation
(“BWC”) in 2007, which was allowed. Kirk Bros. appealed this decision through
the administrative process. After exhausting its administrative remedies, Kirk
Bros. appealed the allowance of William’s claim by the BWC in the Common
Pleas Court of Logan County, Ohio. Accordingly, William filed a complaint in
that court on June 9, 2008, claiming he was entitled to workers’ compensation
because his injuries occurred in the course of and arose out of his employment.
This complaint was assigned Case Number CV 08 05 0288 (on appeal, it is Case
Number 8-09-15) and listed Kirk Bros. and the BWC as defendants.1
{¶11} A month later, William and his wife, Sharon, filed a complaint in the
Logan County Common Pleas Court. This case was assigned Case Number CV 08
07 0376 (on appeal, it is Case Number 8-09-16). This suit named Chris and
Progressive Insurance Company as defendants and alleged causes of action for
negligence and loss of consortium against Chris and requested coverage under the
uninsured/underinsured motorist (“UM/UIM”) provision of their policy of
1
The BWC filed an answer to William’s complaint, admitting all the allegations of the complaint and
requesting that William be allowed to participate in the Workers’ Compensation Fund.
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insurance with Progressive.2 This complaint was later amended on August 12,
2008, to include Westfield as a defendant, alleging that Kirk Bros.’ policy of
insurance with Westfield provided William with coverage for his accident in a
company-owned vehicle.
{¶12} Shortly thereafter, William and Sharon filed a motion in both cases
to request that the two cases be “joined together.”3 Westfield filed a similar
motion, asking that the cases be consolidated and that Kirk Bros. and the BWC be
joined as parties in Case No. CV 08 07 0376. The trial court consolidated these
cases and ordered that the BWC be joined as a party-plaintiff and Kirk Bros. be
joined as a party-defendant in CV 08 07 0376.
{¶13} In October of 2008, Westfield filed a counter-claim for declaratory
judgment against William and cross-claims for declaratory judgment against Chris
and Kirk Bros., requesting that the trial court find that its policy of insurance for
Kirk Bros. did not provide UM/UIM or liability coverage for William’s accident,
that it had no obligations to Kirk Bros. from this accident, and that it had no duty
to defend or indemnify Chris or Kirk Bros. for any liability for this accident.
2
Progressive later filed a motion for summary judgment, asserting that the Sammetingers’ policy of
insurance did not include UM/UIM coverage. The Sammetingers admitted that their Progressive policy in
effect at the time of the accident did not provide UM/UIM coverage, and summary judgment was granted
to Progressive. Thus, the complaint as to Progressive was dismissed with prejudice and is not part of the
instant appeals.
3
Although this motion requested joinder and referred to Civ.R. 19, the substance of the motion requested a
consolidation of the cases.
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{¶14} Kirk Bros. also filed a cross-claim against Westfield. In this claim,
Kirk Bros. denied that William was entitled to participate in the Workers’
Compensation Fund because he was not injured in the course of and arising out of
his employment with Kirk Bros. Kirk Bros. requested a declaration of its rights
and Westfield’s obligations as to William’s accident under the policy of insurance,
specifically requesting that the court declare that Westfield is required to provide
coverage for William’s accident.
{¶15} In the workers’ compensation suit, both Kirk Bros. and William filed
motions for summary judgment. In the personal injury suit, Chris filed a motion
for summary judgment, stating that he was immune from liability under the
Workers’ Compensation Act, specifically R.C. 4123.741, as a “fellow employee”
of the injured employee. Westfield also filed a partial motion for summary
judgment as to liability coverage because of certain exclusions in its policy
regarding workers’ compensation claims and bodily injuries to an employee
arising out of and in the course of employment with the insured or while
performing duties related to the conduct of the insured’s business.4
{¶16} On July 1, 2009, the trial court granted summary judgment in favor
of William on his workers’ compensation claim and denied the summary judgment
motion of Kirk Bros. as to this suit, finding that William’s injuries occurred in the
4
Westfield also argued that it was entitled to summary judgment regarding liability coverage under its
“Fellow Employee” exclusion. However, Westfield later withdrew this argument, having discovered that
Kirk Bros. paid an additional premium to remove the “Fellow Employee” exclusion from the policy.
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course of and arising out of his employment with Kirk Bros. Having found that
William was entitled to participate in the Workers’ Compensation Fund, the trial
court also granted Chris’ motion for summary judgment under the fellow
employee immunity statute and ordered that the complaint against him be
dismissed with prejudice. Likewise, the court granted Westfield’s motion for
summary judgment and ordered that the complaint against it be dismissed with
prejudice. Subsequently, the court awarded William attorney’s fees and costs
against Kirk Bros. pursuant to the Workers’ Compensation Act.
{¶17} After the court determined that William was entitled to participate in
the Workers’ Compensation Fund and issued its various grants of summary
judgment, the only remaining issues involved were the cross-claims between Kirk
Bros. and Westfield regarding whether Westfield was required to defend and
indemnify Kirk Bros. and Kirk Bros.’ motion to strike Westfield’s defense that
William’s injuries occurred in the course of and arising out of his employment
with Kirk Bros. Thereafter, the trial court granted Westfield’s request for
declaratory judgment and declared that Westfield had no duty to defend or
indemnify Kirk Bros. In accordance with this determination, the court overruled
Kirk Bros.’ motion to strike and dismissed its cross-claim for declaratory
judgment. These appeals followed, and Kirk Bros. now asserts four assignments
of error.
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ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN DENYING DEFENDANT-
APPELLANT KIRK BROS. CO., INC.’S MOTION FOR
SUMMARY JUDGMENT AND FINDING THAT PLAINTIFF-
APPELLANT WILLIAM SAMMETINGER’S INJURIES
WERE RECEIVED IN THE COURSE OF, AND ARISING
OUT OF, HIS EMPLOYMENT.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN GRANTING PLAINTIFF-
APPELLEE WILLIAM SAMMETINGER’S AND
DEFENDANT-APPELLEES CHRISTOPHER
SAMMETINGER AND WESTFIELD INSURANCE
COMPANY’S MOTIONS FOR SUMMARY JUDGMENT AND
FINDING THAT SAMMETINGER’S INJURIES WERE
RECEIVED IN THE COURSE OF, AND ARISING OUT OF,
HIS EMPLOYMENT.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN AWARDING PLAINTIFF-
APPELLEE WILLIAM SAMMETINGER STATUTORY
ATTORNEY’S FEES AND COSTS BASED ON AN
UNDERLYING ERRONEOUS FINDING THAT
SAMMETINGER IS ENTITLED TO PARTICIPATE IN THE
WORKERS’ COMPENSATION FUND.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED IN GRANTING
DECLARATORY JUDGMENT IN FAVOR OF DEFENDANT-
APPELLEE WESTFIELD INSURANCE COMPANY IN ITS
CROSS-CLAIM AGAINST DEFENDANT-APPELLANT
KIRK BROS.; IN DECLARING THAT WESTFIELD
INSURANCE COMPANY HAS NO DUTY TO DEFEND OR
INDEMNIFY KIRK BROS. OR ITS EMPLOYEES; AND IN
DISMISSING KIRK BROS. CROSS-CLAIM AGAINST
WESTFIELD INSURANCE COMPANY.
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First, Second, and Third Assignments of Error
{¶18} The first, second, and third assignments of error center upon the
issue of whether William’s injuries were received in the course of and arising out
of his employment with Kirk Bros. Thus, we elect to address these assignments of
error together.
{¶19} In its first two assignments of error, Kirk Bros. maintains that the
trial court should have granted summary judgment in its favor and overruled
William’s motion for summary judgment as to the workers’ compensation claim.
Likewise, Kirk Bros. asserts that the motions for summary judgment of Chris and
Westfield, which were premised upon a finding that William’s injuries were
received in the course of and arising out of his employment with Kirk Bros.,
should also have been overruled. Alternatively, Kirk Bros. contends that a
genuine issue of material fact exists regarding whether William’s injuries were
received in the course of and arising out of his employment with Kirk Bros.
{¶20} When reviewing a summary judgment ruling made by a court of
common pleas from an appeal of a decision by the Industrial Commission, an
appellate court applies the same standard used to review any other summary
judgment ruling. Conley-Slowinski v. Superior Spinning & Stamping Co. (1998),
128 Ohio App.3d 360, 363, 714 N.E.2d 991. The appellate court review of
summary judgment is made independently, and without any deference to the trial
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court. The standard of review for a grant of summary judgment is de novo.
Hasenfratz v. Warnement, 3rd Dist. No. 1-06-03, 2006-Ohio-2797, citing Lorain
Nat’l. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127, 572 N.E.2d 198.
{¶21} A grant of summary judgment will be affirmed only when the
requirements of Civ.R.56(C) are met. This requires the moving party to establish:
(1) that there are no genuine issues of material fact; (2) that the moving party is
entitled to judgment as a matter of law; and (3) that reasonable minds can come to
but one conclusion and that conclusion is adverse to the non-moving party, said
party being entitled to have the evidence construed most strongly in his favor.
Civ.R.56(C); see Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 653 N.E.2d
1196, 1995-Ohio-286, paragraph three of the syllabus.
{¶22} Once the moving party demonstrates that he is entitled to summary
judgment, the burden shifts to the non-moving party to produce evidence on any
issue which that party bears the burden of production at trial. See Civ.R. 56(E).
In ruling on a summary judgment motion, a court is not permitted to weigh
evidence or choose among reasonable inferences, rather, the court must evaluate
evidence, taking all permissible inferences and resolving questions of credibility in
favor of the non-moving party. Jacobs v. Racevskis (1995), 105 Ohio App.3d 1, 7,
663 N.E.2d 653. Additionally, Civ.R.56(C) mandates that summary judgment
shall be rendered if the pleadings, depositions, answers to interrogatories, written
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admissions, affidavits, transcripts of evidence, and written stipulations of fact
show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.
A. Summary Judgment for William-
Workers’ Compensation Case (No. 8-09-15)
{¶23} Kirk Bros. maintains that the trial court incorrectly applied the law
to the facts of this case when it granted William’s, Chris’, and Westfield’s motions
for summary judgment and overruled its motion. Specifically, Kirk Bros. asserts
that William’s injuries did not occur “in the course of” and “arising out of” his
employment with Kirk Bros.
{¶24} Revised Code section 4123.01(C) defines a compensable injury
under the Workers’ Compensation Act as the following: “‘Injury’ includes any
injury, whether caused by external accidental means or accidental in character and
result, received in the course of, and arising out of, the injured employee’s
employment.” In order to participate in the fund, the employee must prove that
the injury occurred while “in the course of” and “arising out of” the injured
employee’s employment. Bralley v. Daugherty (1980), 61 Ohio St.2d 302, 303,
401 N.E.2d 448. These two prongs are conjunctive, requiring both to be satisfied
before compensation is allowed. Fisher v. Mayfield (1990), 49 Ohio St.3d 275,
277, 551 N.E.2d 1271. In applying this test, the primary inquiry is “whether a
‘causal connection’ existed between an employee’s injury and his employment
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either through the activities, the conditions or the environment of the
employment.” Bralley, 61 Ohio St.2d at 303, 401 N.E.2d 448.
{¶25} To facilitate an analysis of the first prong, the Supreme Court of
Ohio summarized “in the course of” employment in the following manner:
The phrase “in the course of employment” limits compensable
injuries to those sustained by an employee while performing a
required duty in the employer’s service. “To be entitled to
workmen’s compensation, a workman need not necessarily be
injured in the actual performance of work for his employer.”
An injury is compensable if it is sustained by an employee while
that employee engages in activity that is consistent with the
contract for hire and logically related to the employer’s business.
Ruckman v. Cubby Drilling, Inc., 81 Ohio St.3d 117, 120, 689 N.E.2d 917, 1998-
Ohio-455 (internal citations omitted). An assessment of this prong requires a
consideration of factors such as “time, place, and circumstances” of the injury to
determine the existence of a nexus between the employment and the activity
causing the injury. Fisher, 49 Ohio St.3d at 277. “‘[I]f the injuries are sustained
[off premises], the employee, acting within the scope of his employment, must, at
the time of his injury, have been engaged in the promotion of his employer’s
business and in the furtherance of his affairs.’” Ruckman, 81 Ohio St.3d at 121,
689 N.E.2d 917, quoting Indus. Comm. v. Bateman (1933), 126 Ohio St. 279,
paragraph two of the syllabus, 185 N.E. 50.
{¶26} The second prong, “arising out of,” contemplates a determination as
to whether a sufficient causal connection between the injury and the employment
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exists to warrant compensation. Ruckman, supra. The analysis under this prong
requires a totality of the circumstances review of the incident. The Supreme Court
of Ohio put forth a framework of three basic factors to assist a court in
determining whether an injury arose out of the employee’s employment: “1) the
proximity of the scene of the accident to the place of employment; 2) the degree of
control the employer had over the scene of the accident; and 3) the benefit the
employer received from the injured employee’s presence at the scene of the
accident.” Lord v. Daugherty (1981), 66 Ohio St.2d 441, 444, 423 N.E.2d 96.
{¶27} In Fisher, the Ohio Supreme Court noted that the list of factors in
Lord was not intended to be exhaustive, but rather illustrative, and that the proper
approach to resolving the issue was based upon an evaluation of the totality of the
circumstances, which would continue to evolve. Fisher, 40 Ohio St.3d at 279, 551
N.E.2d 1271, n. 2. Thus, in making this determination, we must be mindful that
workers’ compensation cases are intensely fact specific and a flexible and
analytically sound approach is preferable to rigid rules that can lead to unsound
and unfair results. Id. at 280. Further, the workers’ compensation statutes must be
liberally construed in favor of the employee. R.C. 4123.95; Fisher, 49 Ohio St.3d
at 278.
{¶28} Generally, “an employee with a fixed place of employment, who is
injured while traveling to and from the place of employment, is not entitled to
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compensation under the Workers’ Compensation Fund because the requisite
causal connection between injury and the employment does not exist.” MTD
Products, Inc. v. Robatin (1991), 61 Ohio St.3d 66, 68, 572 N.E.2d 661, citing
Bralley, supra. However, there are exceptions to the general rule barring
compensation when the injury occurs while the employee is “coming and going”
to and from his place of employment: if the injury occurs in the “zone of
employment;” if it was a result of a “special hazard” of the employment; or if,
based upon the totality of the circumstances, there is a sufficient causal connection
between the injury and the employment to warrant compensation. Moreover, the
Ohio Supreme Court has long recognized that exceptions exist to the requirement
that the injury must be suffered at or near the place of employment or within the
zone of employment:
(1) where the employer, as an incident of the employment,
provides the means of transportation to and from the place of
employment; * * * and (3) where the employee is charged while
on his way to or from his place of employment or at his home
with some duty in connection with his employment.
Stevens v. Indus. Comm’n. (1945), 145 Ohio St. 198, 200-201, 61 N.E.2d 198; see
also, De Camp v. Youngstown Muni. Ry. Co. (1924), 110 Ohio St. 376, 379-380,
144 N.E. 128; Fink v. Indus. Comm’n. (8th Dist. 1937), 25 Ohio Law Abs. 21;
Keller v. Beacon Journal Publishing Co. (Feb. 21, 1996), 9th Dist. No. 17428,
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1996 WL 73395, discretionary appeal not allowed by 76 Ohio St.3d 1438, 667
N.E.2d 987{¶29} Here, the parties do not dispute that William was a fixed-situs
employee. Rather, the issue is whether he was simply coming home from work, as
the majority of Ohioans do every day, and thus not entitled to participate in the
fund, or whether he was acting for the benefit of his employer when he was
injured and thus entitled to workers’ compensation given the totality of the
circumstances surrounding his injuries. We find the latter more accurately
describes the facts of this case.
{¶30} Notably, none of William’s off-site duties was disputed by any of
the parties, including Kirk Bros. Every work day, William closed down the
masonry work on the high school and loaded up the pick-up truck that was
assigned to him by Kirk Bros. with tools and equipment belonging to Kirk Bros.
for transport to and safe-keeping in William’s garage at home. Every day on his
way home, he stopped for gas, which was needed to operate a number of tools for
the construction of the high school the following day. He also stopped to purchase
ice for the following day because fresh ice was required by contract to be provided
by Kirk Bros. to the workers at the site every day. William also refueled his work
truck every other day because the truck was needed to provide him with
transportation to and from the site, to provide transportation for other workers who
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may have needed a ride, and to deliver William’s paperwork to Dennis Lange in
Lima once a week. The truck was also assigned to William for use on errands
such as picking up equipment from other Kirk Bros.’ job sites to be used at the
high school or to make a run to a local hardware store during the day, and to
transport the water containers and ice to and from the job site every day. The ice
and gas purchases, which always occurred either in Russells Point or Wapakoneta,
were made with a credit card provided by Kirk Bros.
{¶31} Once he was home, William parked the truck in his garage in order
to protect the tools and equipment in the truck from theft because a fair amount of
tools had been stolen from the job site. In addition, William occasionally
performed small repairs and maintenance on some of these tools and pieces of
equipment at his home. He also cleaned the water containers and re-filled them at
his home because the contract required Kirk Bros. to supply fresh water to the
workers every day. Often times, he had a significant amount of paperwork with
him to complete because he was unable to finish it during the day because his
attention was needed in some other function of his job. Therefore, he would
complete this paperwork at home.
{¶32} Throughout the day, beginning at approximately 5:00 a.m. and
continuing until approximately 10:00 p.m., William received phone calls on his
employer-provided cellular phone. As previously noted, these calls were for a
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variety of work-related issues. Often times these calls occurred in the morning
while William was going to the job site or during the afternoon while he was
coming home from the job site. He also received work-related calls at his home.
{¶33} Indisputably, with the exception of an occasional call from his wife,
all of these actions by William were directly for the benefit of his employer, Kirk
Bros. While the location where William bought the ice and gas was of his own
choosing, stopping to purchase these items, bringing home the containers to clean
them and fill them with fresh water, transporting the tools and equipment for safe-
keeping, completing his paperwork for timely delivery to Dennis Lange every
week, and receiving and making phone calls whenever and wherever, were all
performed solely for Kirk Bros.’ benefit and in an effort to further its best
interests. In fact, William summarized it best in his deposition: “My scope of
employment doesn’t end at 3:30 and doesn’t start at 7 o’clock. There are
responsibilities that go with my position that I can’t control that need to be done,
and I’m good at what I do, therefore I do it.” Once again, Kirk Bros. presented no
evidence to contradict this statement by William or any of the foregoing evidence
regarding the work-related use of the company truck by William.
{¶34} Kirk Bros. also presented no evidence to demonstrate that William’s
off-site activities were prohibited by it or that William was ever instructed to
complete his tasks in a different manner. Although the credit card receipts would
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have shown that the gasoline and ice were being purchased at a location over fifty
miles away from the job site, as well as the undoubtedly high amount of gasoline
that was being purchased to drive the truck from Wapakoneta to the high school
and back every day, the record is devoid of any evidence that Kirk Bros. told
William to purchase these items closer to the job site and not to use its truck and
gasoline for daily transportation to and from his home. To the contrary, Kirk
Bros., at a minimum, acquiesced to William making these purchases far from the
job site and to using the truck for his daily commute.
{¶35} Further, there is no evidence that William was ever instructed not to
deliver his paperwork to Dennis Lange’s home, not to complete it at his home, not
to work on, transport, or house any of the equipment at his home, or not to make
and receive work-related calls after he left the job site. Rather, the evidence
indicates that William’s position as a supervisor required him to shoulder a
number of responsibilities, to act in the best interest of Kirk Bros.’ business, and to
do what was necessary to effectively fulfill his role as supervisor, whether he was
at the job site, off the job site, or en route to accomplish one of his many required
tasks. Moreover, Kirk Bros. provided him with a vehicle, which he never used for
personal business, and a phone to aid him in his duties. In sum, the evidence
demonstrates that in many ways, the truck, which was under Kirk Bros.’ control,
was William’s mobile work place.
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Case Nos. 8-09-15 and 8-09-16
{¶36} Furthermore, at the time of the accident, William had not completed
his work for the day. The accident occurred at a point located between the high
school and Russells Point. Russells Point was one of two locations where William
always stopped for gas and ice, the other being in Wapakoneta, which William had
yet to reach. Thus, William was still en route to purchase the gasoline and ice for
the following day when the accident occurred. He also had yet to clean and fill the
water containers for the following day. As was customary for him, he was also
transporting a number of tools from the high school to his home for safe-keeping
at the time he was injured. In addition, shortly before the accident, William
received a work-related call on his cellular phone.
{¶37} In short, Kirk Bros. provided the vehicle in which William was
injured as an incident to his employment; at a minimum, Kirk Bros. acquiesced to
the performance of some of his job duties being conducted on his way to and from
work and at his home; it benefitted from the use of his garage to safely keep the
vehicle and a number of its tools and equipment overnight; and Kirk Bros.
required William to handle phone calls related to its business whenever they might
occur, including on his drive to and from the job site and at his home. While Kirk
Bros. may not have directly paid William for each minute he spent doing its
business while en route to and from work and at home, as William admitted he
never charged his employer for the time he spent after the job site closed for the
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Case Nos. 8-09-15 and 8-09-16
day on any phone calls, getting gas and ice, cleaning and filling the water
containers, or maintaining and repairing the equipment he transported, this fact is
of little consequence in light of the benefit Kirk Bros. undoubtedly received from
him.
{¶38} Thus, given the broad spectrum of responsibilities that William had
as a masonry supervisor for Kirk Bros., as well as the undisputed fact that these
responsibilities necessitated him performing some of them away from the high
school, including while en route to and at his home, the only reasonable
conclusion in examining the totality of the facts and circumstances surrounding
William’s injuries is that they occurred in the course of and arising out of his
employment for Kirk Bros. Therefore, the trial court did not err in denying Kirk
Bros.’ motion for summary judgment and granting William’s motion for summary
judgment in the workers’ compensation suit, Case No. 8-09-15. Accordingly, the
first assignment of error is overruled, as is that portion of the second assignment of
error regarding William’s motion for summary judgment.
B. Summary Judgments for Chris and Westfield-
Personal Injury Case (No. 8-09-16)
{¶39} Having found that the trial court did not err in determining that
William was entitled to participate in the Workers’ Compensation Fund, the next
issue is whether the trial court erred in the personal injury suit, Case No. 8-09-16,
by granting Chris’ motion for summary judgment and Westfield’s partial motion
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Case Nos. 8-09-15 and 8-09-16
for summary judgment as to liability coverage under the policy it issued to Kirk
Bros. Both determinations by the trial court were based upon its conclusion that
William’s injuries arose out of and in the course of his employment.
1. Chris’ Summary Judgment
{¶40} As to Chris’ motion for summary judgment, the trial court found that
William’s personal injury suit against Chris was barred by the fellow-employee
immunity statute, R.C. 4123.741. This sections states:
No employee of any employer, as defined in division (B) of
section 4123.01 of the Revised Code, shall be liable to respond in
damages at common law or by statute for any injury or
occupational disease, received or contracted by any other
employee of such employer in the course of and arising out of the
latter employee’s employment, or for any death resulting from
such injury or occupational disease, on the condition that such
injury, occupational disease, or death is found to be
compensable under sections 4123.01 to 4123.94, inclusive, of the
Revised Code.
Because Chris was an employee of Kirk Bros. and William’s injuries occurred in
the course of and arising out of his employment with Kirk Bros., the trial court
granted Chris’ summary judgment and dismissed the complaint against him.
{¶41} Kirk Bros. does not dispute that Chris was a fellow-employee or that
R.C. 4123.741 applies if William’s injuries are compensable under the workers’
compensation statutes. Again, it maintains that William’s injuries fall outside of
the scope of workers’ compensation. Given our discussion regarding William’s
injuries being compensable under the Workers’ Compensation Act and the
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Case Nos. 8-09-15 and 8-09-16
undisputed fact that Chris was an employee of Kirk Bros. at the time of the
accident, R.C. 4123.741 applies to bar recovery from Chris, and this portion of the
second assignment of error is overruled.5
2. Westfield’s Summary Judgment
{¶42} As for Westfield, its policy with Kirk Bros. states:
A. Coverage:
We will pay all sums an “insured” legally must pay as damages
because of “bodily injury” or “property damage” to which this
insurance applies, caused by an “accident” and resulting from
the ownership, maintenance or use of a covered “auto.”
We have the right and duty to defend any “insured” against a
“suit” asking for such damages or a “covered pollution cost or
expense.” However, we have no duty to defend any “insured”
against a “suit” seeking damages for “bodily injury” or
“property damage” or a “covered pollution cost or expense” to
which this insurance does not apply. We may investigate and
settle any claim or “suit” as we consider appropriate. Our duty
to defend or settle ends when the Liability Coverage Limit of
Insurance has been exhausted by payment of judgments or
settlements.
{¶43} In this case, the trial court determined that Chris was not liable for
any damages to William and Sharon because of the immunity afforded to him by
5
We also note that after the grant of summary judgment to Chris and Westfield but prior to the time period
to appeal expired, William and Sharon settled their claims against Chris and Westfield, releasing all claims
against them, and never filed an appeal of the court’s decision as to summary judgment in favor of Chris
and Westfield. After Kirk Bros. filed its appeals in these cases, Chris and Westfield filed motions to
dismiss the appeals against them with this Court as being moot because the complaint against them was
fully settled. Although we overruled these motions, we now note that even if we were to determine that
William was not entitled to participate in the fund, William’s and Sharon’s claims against Chris cannot be
revived due to the language of the settlement. Thus, whatever our decision in this case, the claims against
Chris by his parents are settled. Nevertheless, we elected to discuss this portion of the assignment of error
to demonstrate that William’s entitlement to participate in the fund affected the remainder of Case No. 8-
09-16.
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Case Nos. 8-09-15 and 8-09-16
R.C. 4123.741. Kirk Bros. was not sued for damages. The insurance policy
specifically states that Westfield would pay for all sums an insured must pay as
damages because of bodily injury caused by an accident and resulting from the use
of a covered auto. While the term “damages” is not defined in the policy, the rules
of contract construction require that this word be given its plain and ordinary
meaning. See Alexander v. Buckeye Pipeline Co. (1978), 53 Ohio St.2d 241,
paragraph two of the syllabus, 374 N.E.2d 146, superceded by statute on other
grounds.
{¶44} “‘Damages’ has been defined as the pecuniary compensation paid by
a wrongdoer for the losses suffered by an injured person.” Meek v. Gem Boat
Service, Inc. (1990), 69 Ohio App.3d 404, 409, 590 N.E.2d 1296, citing Cincinnati
v. Hafer (1892), 49 Ohio St. 60, 67, 30 N.E. 197; Greer v. Knox Cty. Bd. of
Commrs. (1927), 33 Ohio App. 539, 169 N.E. 709; Drayton v. Jiffee Chem. Corp.
(N.D.Ohio 1975), 395 F.Supp. 1081. Therefore, in light of this definition, the trial
court correctly granted partial summary judgment in favor of Westfield as to the
issue of liability coverage on the claims between it, William and Sharon, and Chris
because Chris did not have to pay any damages due to bodily injury in the
personal injury suit. Accordingly, this portion of the second assignment of error is
also overruled.
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Case Nos. 8-09-15 and 8-09-16
C. Attorney’s Fees and Court Costs-
Workers’ Compensation Case (No. 8-09-15)
{¶45} The third assignment of error also relates to the determination of
whether William’s injuries are compensable under the Workers’ Compensation
Act. Here, Kirk Bros. asserts that the trial court’s award of attorney’s fees and
costs to William was in error because the trial court improperly found his injuries
to have occurred in the course of and arising out of his employment with Kirk
Bros. Kirk Bros. does not contend that an award of attorney’s fees and costs to
William is improper if his injuries were, in fact, occasioned in the course of and
arising out of his employment pursuant to R.C. 4123.512(F). This section
mandates that the cost of any legal proceedings authorized by that section,
including attorney’s fees up to $4,200.00, be taxed to the employer if it is
determined that the employee is entitled to participate in the fund by a final
determination of an appeal.6 Based upon our determination as to William’s right
to participate in the fund, the third assignment of error is also overruled.
Fourth Assignment of Error
{¶46} In the fourth assignment of error, Kirk Bros. maintains that the trial
court erred in granting declaratory judgment in favor of Westfield on its cross-
claim against Kirk Bros., in declaring that Westfield had no duty to defend or
6
The section taxes these amounts to the industrial commission if the commission, rather than the employer,
contests the employee’s claim.
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Case Nos. 8-09-15 and 8-09-16
indemnify Kirk Bros. or its employees, and in dismissing Kirk Bros.’ cross-claim
for declaratory judgment against Westfield.
{¶47} The Ohio Supreme Court has held that “‘[t]he granting or denying of
declaratory relief is a matter for judicial discretion[.]’” Mid-American Fire &
Casualty Co. v. Heasley, 113 Ohio St.3d 133, 863 N.E.2d 142, 2007-Ohio-1248,
at ¶ 12, quoting Bilyeu v. Motorists Mut. Ins. Co. (1973), 36 Ohio St.2d 35, 37,
303 N.E.2d 871. Thus, declaratory judgment actions are to be reviewed under “an
abuse-of-discretion standard.” Heasley, supra. Abuse of discretion “connotes
more than an error of law or judgment; it implies that the court’s attitude is
unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5
Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶48} In the case sub judice, both Westfield and Kirk Bros. filed cross-
claims against one another for declaratory judgment, requesting that the trial court
determine the rights and responsibilities of the parties based upon the insurance
policy. In addition to the previously quoted language from the policy at issue, this
policy contained the following exclusions:
B. Exclusions
This insurance does not apply to any of the following:
***
3. Workers’ Compensation
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Case Nos. 8-09-15 and 8-09-16
Any obligation for which the “insured” or the “insured’s”
insurer may be held liable under any workers’ compensation,
disability benefits or unemployment compensation law or any
similar law.
4. Employee Indemnification And Employer’s Liability
“Bodily injury” to:
(a) An “employee” of the “insured” arising out of and in the
course of:
(1) Employment by the “insured”; or
(2) Performing the duties related to the conduct of the
“insured’s” business; * * *
This exclusion applies:
(1) Whether the “insured” may be liable as an employer or in
any other capacity; * * *
{¶49} The policy also contained an exclusion for a “Fellow Employee”,
which stated: “Bodily injury” to any fellow “employee” of the “insured” arising
out of and in the course of the fellow “employee’s” employment or while
performing duties related to the conduct of your business.” Initially, Westfield
also relied upon this exclusion to assert that it had no duty to defend or indemnify.
However, at some point in the litigation, Westfield discovered that Kirk Bros. had
paid an additional premium for an endorsement that removed the fellow employee
exclusion from the relevant portions of the policy. Kirk Bros. contends that this
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Case Nos. 8-09-15 and 8-09-16
endorsement modified the policy in such a way so as to include the precise
scenario at issue in this case in its coverage.
{¶50} As previously noted, Kirk Bros. was not sued for damages either in
the personal injury suit against Chris and Westfield or in the workers’
compensation case. Chris was sued for damages, but this claim was dismissed
with prejudice and later completely settled. Westfield was sued for damages by
William and Sharon under the coverages provided by its policy. However, Kirk
Bros. was only made a party to the personal injury suit because it was the holder
of the policy under which Westfield was sued for coverage. The only claim made
against Kirk Bros. in that case was the declaratory judgment cross-claim filed by
Westfield. Although named as the defendant in the workers’ compensation case,
William’s request for relief was not for damages from Kirk Bros. but that he be
allowed to participate in the fund. Thus, there were no monetary damages for
which to indemnify Kirk Bros., and the trial court did not abuse its discretion in
declaring that Westfield had no duty to indemnify Kirk Bros. in Case No. 8-09-16,
the personal injury suit.
{¶51} However, the question remains as to whether Westfield had a duty to
defend Kirk Bros. in the personal injury suit by William and Sharon against Chris
and Westfield. The insurer’s promise to indemnify is separate and distinct from its
obligation to defend an insured in an action, and the duties are triggered by
-30-
Case Nos. 8-09-15 and 8-09-16
different events. Cincinnati Ins. Co. v. Anders, 99 Ohio St.3d 156, 789 N.E.2d
1094, 2003-Ohio-3048. “Where the complaint brings the action within the
coverage of the policy the insurer is required to make defense, regardless of the
ultimate outcome of the action or its liability to the insured.” Motorists Mut. Ins.
Co. v. Trainor (1973), 33 Ohio St.2d 41, paragraph two of the syllabus, 294
N.E.2d 874. The Ohio Supreme Court has since expanded this concept, holding
“[w]here the allegations state a claim that falls either potentially or arguably
within the liability insurance coverage, the insurer must defend the insured in the
action.” Willoughby Hills v. Cincinnati Ins. Co. (1984), 9 Ohio St.3d 177, 180,
459 N.E.2d 555.
A liability insurer’s obligation to its insured arises only if the
claim falls within the scope of coverage. Cincinnati Indemn. Co.
v. Martin (1999), 85 Ohio St.3d 604, 605, 710 N.E.2d 677. An
insurer has a duty to defend the insured “[w]here the allegations
state a claim that falls either potentially or arguably within the
liability insurance coverage.” Cincinnati Ins. Co. v. Anders, 99
Ohio St.3d 156, 789 N.E.2d 1094, 2003-Ohio-3048, at ¶ 18.
Conversely, “[t]he insurer need not provide a defense if there is
no set of facts alleged in the complaint which, if proven true,
would invoke coverage.” Martin, 85 Ohio St.3d at 605, 710
N.E.2d 677. Where the action alleged claims that fell within the
insurance coverage yet the conduct that prompted the action “is
so indisputably outside coverage,” the insurer has no duty to
defend, so long as the insurance policy only required the insurer
to defend against claims to which the coverage applied.
Preferred Risk Ins. Co. v. Gill (1987), 30 Ohio St.3d 108, 30 OBR
424, 507 N.E.2d 1118. The duty to defend need not arise solely
from the allegations in the complaint but may arise at a point
subsequent to the filing of the complaint. Willoughby Hills v.
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Case Nos. 8-09-15 and 8-09-16
Cincinnati Ins. Co. (1984), 9 Ohio St.3d 177, 9 OBR 463, 459
N.E.2d 555.
Twin Maples Veterinary Hosp. v. Cincinnati Ins. Co., 159 Ohio App.3d 590, 2005-
Ohio-430, 824 N.E.2d 1027, ¶¶ 11-12.
{¶52} In this case, the policy clearly states that Westfield has a right and
duty to defend its insured (Kirk Bros.) against a suit asking for damages. As
noted, no such suit existed. Therefore, there was no suit against Kirk Bros. that
invoked the obligation of Westfield to defend it. As such, the trial court did not
abuse its discretion in determining that Westfield had no duty to defend Kirk Bros.
in the personal injury action.
{¶53} Nevertheless, Kirk Bros. asserts that its “damages” are the increase
in premiums that it must pay to the fund because of William’s claim. However,
the Revised Code expressly prohibits contracts and agreements for
indemnification or insurance for an employer’s loss or liability for the payment of
compensation to workers for injury occasioned in the course of the workers’
employment. R.C. 4123.82(A). This section states:
A) All contracts and agreements are void which undertake to
indemnify or insure an employer against loss or liability for the
payment of compensation to workers or their dependents for
death, injury, or occupational disease occasioned in the course of
the workers' employment, or which provide that the insurer
shall pay the compensation, or which indemnify the employer
against damages when the injury, disease, or death arises from
the failure to comply with any lawful requirement for the
protection of the lives, health, and safety of employees, or when
-32-
Case Nos. 8-09-15 and 8-09-16
the same is occasioned by the willful act of the employer or any
of the employer's officers or agents, or by which it is agreed that
the insurer shall pay any such damages.
R.C. 4123.82(A). Thus, any such contract whereby Westfield would have to
indemnify Kirk Bros. for its loss, including increased premiums, based upon a
workers’ compensation claim is void. See id.{¶54} Accordingly, Westfield had no duty to indemnify Kirk Bros. for its
increased premiums, and the trial court did not abuse its discretion in declaring
that Westfield had no duty to indemnify Kirk Bros. in Case No. 8-09-15.
Moreover, Westfield also had no duty to defend Kirk Bros., and the trial court,
likewise, did not abuse its discretion in declaring that Westfield had no duty to
defend Westfield on this claim. Therefore, the fourth assignment of error is
overruled in its entirety.
{¶55} For all these reasons, the assignments of error are overruled and the
judgments of the Common Pleas Court of Logan County, Ohio, in both cases are
affirmed.
Judgments Affirmed
ROGERS, J., and *DONOVAN, J., concur.
* (MARY E. DONOVAN, J., from the Second District Court of Appeals
Sitting by Assignment)
/jlr
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