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Hehman v. Maxim Crane Works

Court of Appeals of Ohio, Twelfth District

August 2, 2010

JAMES HEHMAN, et al., Plaintiffs,
v.
MAXIM CRANE WORKS, et al., Third-Party Plaintiff/Appellant, v EVERS WELDING CO., Third-Party Defendant/Appellee

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2008-12-5227

Kohnen & Patton, LLP, Peggy Murphy Barker and Rebecca L. Cull, for third-party plaintiff/appellant

Rendigs, Fry, Kiely & Dennis, LLP, Michael P. Foley, for third-party defendant/appellee

OPINION

YOUNG, P.J.

{¶1} Third-party plaintiff/appellant, Maxim Crane Works, appeals from an order of the Butler County Court of Common Pleas granting summary judgment in favor of third-party defendant/appellee, Evers Welding Company, as to Maxim's indemnification claim against Evers for the attorney fees and costs Maxim incurs in defending a personal injury action brought against it by one of Evers' employees.[1]

{¶2} In 2006, Evers entered into an agreement with Maxim whereby Maxim leased a crane and crane operator to Evers to allow Evers to perform construction work at one of its jobsites. One of Evers' employees, James Hehman, was subsequently injured while working at the jobsite. In 2008, Hehman and his wife brought a complaint against Maxim, alleging that Hehman was injured as a result of Maxim's crane operator's negligence in lifting and moving a heavy panel at the jobsite. In response, Maxim filed an amended third-party complaint against Evers, alleging that under the indemnity provision in their agreement, Evers was liable for any damages awarded against Maxim, as well as for the attorney fees and costs Maxim incurs in defending Hehman's action. Evers subsequently moved for summary judgment on Maxim's amended third-party complaint and the trial court granted it, finding that Evers was entitled to immunity from Maxim's indemnification claim under R.C. 4123.74 of Ohio's workers' compensation law.[2]

{¶3} Maxim now appeals, and in its sole assignment of error, argues:

{¶4} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT."

{¶5} Maxim argues the trial court erred in granting summary judgment to

Evers on Maxim's indemnification claim for its attorney fees and costs in defending Hehman's action because the term "damages" as used in R.C. 4123.74 does not encompass attorney fees and costs, and therefore Maxim is entitled to indemnification for those expenses pursuant to the indemnity provision in the parties' contract. We disagree.

{¶6} "Summary judgment is a procedural device used to terminate litigation and avoid a formal trial when there are no issues in a case to try." Clifton v. Blanchester, Clinton App. No. CA2009-07-009, 2010-Ohio-2309, ¶36. "A trial court may grant summary judgment only when: (1) there is no genuine issue of any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) the evidence submitted can only lead reasonable minds to a conclusion which is adverse to the nonmoving party." Id . at ¶37. An appellate court must review the trial court's decision to grant summary judgment "de novo" meaning the appellate court must review the trial court's decision independently, using the same standard the trial court should have used, and without giving any deference to the trial court's decision. Id.

{¶7} R.C. 4123.74 provides, in pertinent part, that an employer who complies with its duties under Ohio's workers' compensation law "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[.]" See, also, Section 35, Article II of the Ohio Constitution (allowing laws to be passed that compensate workers "for death, injuries or occupational disease occasioned in the course of [their] employment[, ]" and providing that "[s]uch compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease").

{¶8} The indemnity provision in the parties' contract states:

{¶9} "Customer [Evers] shall defend, indemnify, and hold harmless Maxim and its officers, directors, shareholders, partners, members, managers, employees, affiliates, representatives and agents (the 'indemnitees [sic]') from any and all actions, causes of action, claims, suits, demands, investigations, obligations, judgments, losses, costs, liabilities, damages, fines, penalties and expenses, including attorney's fees, which are incurred by, accrued, asserted, or made against, or recoverable from any of the indemnitees [sic] arising from or relating to, directly or indirectly, customer's acceptance, possession, transport, use, operation, or control of the equipment, whether or not the same arises from damage to property (real or personal), injury or death to persons (including but not limited to customer's employees, agents and representatives), failure to comply with applicable laws, regulations and ordinances, equipment condition, loss of use or ...


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