United States District Court, S.D. Ohio, Western Division
TIMOTHY S. BLACK UNITED STATES DISTRICT JUDGE
to Supreme Court of Ohio Rules of Practice 9.01 through 9.04,
the Court hereby issues this Certification Order, to be
served upon all parties or their counsel of record and filed
with the Clerk of the Supreme Court of Ohio, under seal of
the United States District Court for the Southern District of
Stolz v. J & B Steel Erectors, Inc.,, United States
District Court, Southern District of Ohio, Case No.
Statement of Facts
Nature of the Case
alleges he was injured while working as a concrete finisher
for Jostin Construction, Inc. (“Jostin”) at the
Horseshoe Casino construction project in Cincinnati
(“Casino Project”). Plaintiff brings this civil
action against Defendants J & B Steel Erectors, Inc.
(“J & B Steel”), Messer Construction Co.
(“Messer”), Terracon Consultants, Inc.
(“Terracon”), Pendleton Construction Group, LLC
(“Pendleton”), D.A.G. Construction Co., Inc.
(“D.A.G.”), and Triversity Construction Co., LLC
(“Triversity”), each of whom Plaintiff alleges
had responsibilities related to the Casino Project, for
Circumstances Giving Rise To the Question of Law
time of his alleged injuries, Plaintiff was working for
Jostin as a concrete finisher at the Casino Project. (Doc. 49
at ¶ 1). Defendant Messer was the general contractor for
the Casino Project, and Jostin was one of its subcontractors.
(Doc. 49 at ¶¶ 1, 4; Doc. 14-2 at ¶¶
to Plaintiff's accident, Defendant Messer had obtained
authority from the Ohio Bureau of Workers' Compensation
(“BWC”) to self-administer the workers'
compensation program for all of the enrolled subcontractors
on the Casino Project. (Doc. 14-2 at ¶¶ 1-4; Doc.
14-3). Jostin and Defendants and J & B Steel, D.A.G., and
Triversity were enrolled subcontractors participating in
Defendant Messer's workers' compensation program for
the Casino Project under the certificate of authority issued
by the BWC to Defendant Messer. (Doc. 14-2 at ¶¶
1-4; Doc. 14-3; Doc. 14-4).
Messer, J & B Steel, D.A.G., and Triversity moved for
summary judgment on the grounds that they are entitled to
immunity from Plaintiff's negligence claim pursuant to
Ohio's workers' compensation laws, including Ohio
Revised Code §§ 4123.35 and 4123.74. (Docs. 14, 37,
and 40). The Court found that Defendant Messer was
entitled to immunity as the self-insuring employer on the
Casino Project. (Doc. 68 at 6). The Court found that
Defendants J & B Steel, D.A.G., and Triversity
(“Subcontractor Defendants”) were not entitled to
immunity because an enrolled subcontractor is only entitled
to immunity vis-à-vis its own employees under the
above-cited statutes. (Id. at 13-14). Accordingly,
the Court granted Defendant Messer's motion for summary
judgment and denied the Subcontractor Defendants' motions
for summary judgment. (Id. at 19).
Subcontractor Defendants then moved for certification of the
following question to the Ohio Supreme Court:
Whether Ohio Rev. Code §§ 4123.35 and 4123.74
provide immunity to subcontractors enrolled in a Workers'
Compensation self-insurance plan from tort claims made by
employees of [other] enrolled subcontractors injured while
working on the self-insured project.
Court granted the request for certification, recognizing a
split on the issue between its own ruling in the case and a
lower Ohio state court's ruling on a similar issue. The
Ohio Supreme Court returned its answer to the certified