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McKinney v. Omni Die Casting, Inc.

Court of Appeals of Ohio, Fifth District

May 22, 2017

ZACHARY L. MCKINNEY Plaintiff-Appellee
v.
OMNI DIE CASTING, INC., ET AL Defendants-Appellants

         Civil appeal from the Stark County Court of Common Pleas, Case No. 2015CV00838

          For Plaintiff-Appellee A. JAMES TSANGEOS.

          For Omni Die Casting, Inc. DAVID BUTZ.

          For Bureau of Workers' Compensation EDWARD SAADI.

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr.

          OPINION

          GWIN, P.J.

         {¶1} 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.

         Facts & Procedural History

         {¶2} 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.

         {¶3} 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.

         {¶4} 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 statutes.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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 reconsider.

         {¶8} 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:

         {¶9} "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 "THIRD PARTY."

         {¶10} The BWC assigned the following as error:

         {¶11} "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 ...


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