ZACHARY L. MCKINNEY Plaintiff-Appellee
OMNI DIE CASTING, INC., ET AL Defendants-Appellants
appeal from the Stark County Court of Common Pleas, Case No.
Plaintiff-Appellee A. JAMES TSANGEOS.
Omni Die Casting, Inc. DAVID BUTZ.
Bureau of Workers' Compensation EDWARD SAADI.
JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J.
Hon. Earle E. Wise, Jr.
Appellants appeal the July 5, 2016 judgment entry of the
Stark County Court of Common Pleas denying the Bureau of
Workers' Compensation motion to intervene.
& Procedural History
In April of 2013, appellee Zachary McKinney
("McKinney") was injured while operating an
aluminum die casting machine at appellant Omni Die
Casting's ("Omni") plant in Massillon, Ohio.
McKinney was in the course and scope of his employment at the
time of his injuries. McKinney filed a claim with appellant
Ohio Bureau of Workers' Compensation ("BWC").
The BWC paid McKinney's medical bills and provided
compensation to McKinney. As of February 5, 2016, the BWC had
paid McKinney $224, 274.85, $196, 527.57 in medical bills and
$27, 747.28 in compensation. The estimated future costs of
McKinney's claims are $136, 637.49.
On April 25, 2015, McKinney filed an intentional tort claim
against Omni. On February 17, 2016, McKinney filed a second
amended complaint to add claims for spoliation and fraud
against Omni and appellant Derek Lidderdale
("Lidderdale"), the vice-president of Omni.
The BWC filed a motion for leave to intervene on March 11,
2016. The BWC averred that McKinney was in the course and
scope of his employment when he was injured and filed a
workers' compensation claim. Further, that the BWC paid
$224, 274.85 on McKinney's claim and estimated future
costs of the claim were $136, 637.49. The BWC argued R.C.
4123.93 and R.C. 4123.931 create an independent right of
recovery in favor of a statutory subrogee, here, the BWC,
against a third party who may be liable to McKinney for his
injuries. Thus, the BWC contended it should be permitted to
intervene to protect its subrogation rights under these
McKinney filed a memorandum in opposition to the BWC's
motion to intervene. McKinney argued R.C. 4123.93 and R.C.
4123.931 are not applicable in intentional tort cases and
that Omni was not a statutory "third party"
pursuant to the subrogation statutes.
The trial court issued a judgment entry denying the BWC's
motion to intervene on July 5, 2016. The trial court found
ambiguity in R.C. 4123.93 and determined the statute should
be construed liberally in favor of McKinney. Further, that
the definition of "employer in R.C. Chapter 4123 does
not include the term "third party." The trial court
acknowledged the purpose of R.C. 4123.931 is to prevent
double recovery, but found if the BWC was permitted to
intervene in this case, it would likely result in no recovery
for McKinney after he paid the subrogation amount to the BWC.
Thus, it would result in McKinney having little incentive to
pursue the case against Omni.
On August 2, 2016, the BWC filed an appeal with this Court.
Also on August 2, 2016, the BWC filed with the trial court a
motion to reconsider its order denying their motion to
intervene. Omni and Lidderdale filed their appeal with this
Court on August 3, 2016. The trial court issued a judgment
entry on August 9, 2016, denying the BWC's motion to
The BWC, Omni, and Lidderdale appeal the July 5, 2016
judgment entry of the Stark County Court of Common Pleas.
Omni and Lidderdale assigned the following as error:
"I. THE TRIAL COURT ERRED WHEN IT DENIED THE BUREAU OF
WORKERS' COMPENSATION'S MOTION FOR LEAVE TO INTERVENE
ON THE BASIS THAT R.C. 4123.93 AND R.C. 4123.931 ARE
AMBIGUOUS BECAUSE SUBSECTION (C) OF R.C. 4123.93 DOES NOT
INCLUDE THE TERM "EMPLOYER" IN THE DEFINITION OF
The BWC assigned the following as error:
"I. THE TRIAL COURT ERRED WHEN IT DENIED THE OHIO
BWC'S MOTION FOR LEAVE TO INTERVENE ON THE BASIS THAT
EMPLOYERS ARE NOT INCLUDED WITHIN THE DEFINITION OF