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Shaffer v. A.W. Chesterton Co.

Court of Appeals of Ohio, Ninth District, Lorain

December 9, 2019

DIANE SHAFFER, Individually, and as Executrix of the Estate of Edward Shaffer, Deceased Appellant


          CHARLES P. STERN and GIBBS C. HENDERSON, Attorneys at Law, for Appellant.

          JOSH P. GRUNDA, Attorney at Law, for Appellant.

          THOMAS I. MICHALS, MATTHEW M. MENDOZA, JENNIFER WHITT, and LINDSEY E. SACHER, Attorneys at Law, for Appellee.



         {¶1} Appellant, Diane Shaffer, individually and as the executrix of the estate of Edward Shaffer, appeals from the judgment of the Lorain County Common Pleas Court granting summary judgment in favor of Appellee, United States Steel Corporation, as to the federal claims. For the reasons set forth below, this Court reverses.


         {¶2} Between 1960 and 1961, Mr. Shaffer served as a merchant marine employed by the Pittsburgh Steamship Division of United States Steel Corporation. Mr. Shaffer worked on various vessels owned and operated by United States Steel Corporation ("U.S. Steel") that sailed on the Great Lakes. Mr. Shaffer mainly worked in the engine room and the boiler room of the vessels. His job duties included, but were not limited to, repairing, removing, replacing, and cleaning up thermal insulation materials on pipes; removing and replacing packing and gasket materials on steam wenches and valves; and removing and cleaning cement off old bricks and sealing the cleaned bricks in the boiler. Mr. Shaffer alleged that he was exposed to asbestos while working on U.S. Steel's ships. In 2016, Mr. Shaffer was diagnosed with mesothelioma.

         {¶3} The Shaffers filed a complaint against twenty-three entities alleging state claims of asbestos-related personal injury, products liability, intentional tort, and loss of consortium. The complaint also set forth federal claims under the Jones Act and unseaworthiness under general maritime law against only some of the parties. The complaint was amended three times to add and remove parties and to modify the claims.

         {¶4} U.S. Steel filed a motion for summary judgment based upon the third amended complaint addressing the federal claims. The Shaffers filed a brief in opposition to U.S. Steel's summary judgment motion, and U.S. Steel filed a reply brief. After conducting an oral hearing, the trial court granted summary judgment in favor of U.S. Steel on the federal claims, but did not include Civ.R. 54(B) certification on the order. Other parties and claims remained pending in the case.

         {¶5} The Shaffers filed a motion for reconsideration arguing that the trial court improperly granted summary judgment on grounds not argued by U.S. Steel and the trial court incorrectly applied state law to federal claims. U.S. Steel opposed the motion for reconsideration arguing that the Shaffers had a meaningful opportunity to respond. The trial court denied the motion for reconsideration.

         {¶6} Mr. Shaffer died on June 29, 2018, while the case was still pending. Mrs. Shaffer was appointed as the executrix of Mr. Shaffer's estate, and the complaint was amended a fourth time to reflect the appropriate plaintiff, to remove defendants, and to add a wrongful death claim.

         {¶7} Thereafter, Mrs. Shaffer requested, and the trial court issued, an order adding Civ.R. 54(B) certification to the judgment in favor of U.S. Steel as to the Shaffers' federal claims. Mrs. Shaffer, on behalf of herself and Mr. Shaffer's estate, has timely appealed, [1]asserting three assignments of error.




         {¶8} In the first assignment of error, Mrs. Shaffer argues that the trial court incorrectly concluded "that Ohio substantive law * * * appl[ied] and that [the Ohio Supreme Court's holding in] Schwartz [v. Honeywell Internal, Inc., 153 Ohio St.3d 175, 2018-Ohio-474] is controlling[]" as to the federal maritime claims of unseaworthiness and the Jones Act. This Court agrees.

         {¶9} This Court reviews an order granting summary judgment de novo. See Bonacorsi v. Wheeling & Lake Erie Ry Co., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 24, citing Doe v. Shaffer, 90 Ohio St.3d 388, 390 (2000). When a trial court elects to reconsider its interlocutory summary judgment ruling, this Court applies the same standard of review that is applicable to review a summary judgment decision. Carter v. Gerbec, 9th Dist. Summit No. 27712, 2016-Ohio-4666, ¶ 39, quoting Hull v. Astro Shapes, Inc., 7th Dist. Mahoning No. 10 MA 26, 2011-Ohio-1656, ¶ 28, quoting Klocinski v. Am. States Ins. Co., 6th Dist. Lucas No. L-03-1353, 2004-Ohio-6657, ¶ 12. Accordingly, we apply a de novo review to the trial court's reconsideration decision of its grant of summary judgment. Carter at ¶ 39.

         {¶10} Summary judgment is proper under Civ.R. 56(C) when: (1) no genuine issue as to any material fact exists; (2) the party moving for summary judgment is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can only reach one conclusion, and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

         {¶11} Summary judgment consists of a burden-shifting framework. The movant bears the initial burden of demonstrating the absence of genuine issues of material fact concerning the essential elements of the nonmoving party's case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). Specifically, the moving party must support the motion by pointing to some evidence in the record of the type listed in Civ.R. 56(C). Id. at 292-293. Once the moving party satisfies this burden, the nonmoving party has a "reciprocal burden" to "'set forth specific facts showing that there is a genuine issue for trial.'" Id. at 293, quoting Civ.R. 56(E).

         {¶12} Federal law permits a plaintiff to file a Jones Act claim and an unseaworthiness claim in either state or federal court. See 28 U.S.C. 1333(1); Garrett v. Moore-McCormack Co., Inc., 317 U.S. 239, 245 (1942) ("[S]tate courts have concurrent jurisdiction with the federal courts to try actions either under the Merchant Marine Act or in personam[.]"); Powell v. Offshore Navigation, Inc., 644 F.2d 1063, 1066 (5th Cir.1981) (unseaworthiness is an in personam claim that may be filed in state or federal court).

         {¶13} The Jones Act, which incorporates the Federal Employers' Liability Act, supersedes all state laws as to the liability for vessel owners for injuries to seamen and requires uniform application of federal law. Lindgren v. United States, 281 U.S. 38, 46-47 (1930). Thus, the United States Supreme Court has "held that the Jones Act is to have uniform application throughout the country unaffected by 'local views of common law rules.'" Garrett at 244, quoting Panama RR. Co. v. Johnson, 264 U.S. 375, 392 (1924).

         {¶14} Similarly, an unseaworthiness claim is governed by federal maritime law as to all substantive matters, but applies state law as to procedural matters. Lloyd v. Victory Carriers, Inc., 402 Pa. 484, 486, 167 A.2d 689 (1960); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409-410 (1953). See Jones v. Erie RR. Co., 106 Ohio St. 408, 412 (1922) ("The substantive law relates to rights and duties which give rise to a cause of action. 'Procedure' is the machinery for carrying on the suit."). However, the state procedural law will not be applied if it interferes with the parties' substantive rights. Lloyd at 486.

         {¶15} It has been recognized that state law may be applied to federal maritime cases when there is no admiralty law on point. Byrd v. Byrd, 657 F.2d 615, 617 (4th Cir.1981). Also, state law may be used to supplement federal maritime law, but only when there are no conflicts between the two systems of law and the need for uniformity does not bar the state action. See Pope & Talbot at 409-410; Powell, 644 F.2d at 1066, fn. 5; Am. Dredging Co. v. Miller, 510 U.S. 443, 447 (1994).

         {¶16} Accordingly, "[w]hen a state court hears an admiralty case, that court occupies essentially the same position occupied by a federal court sitting in diversity: the state court must apply substantive federal maritime law but follow state procedure." Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex.1998) (Texas Supreme Court applied federal law to Jones Act claim filed in state court). See Brown v. L.A. Wells Constr. Co., 143 Ohio St. 580, 586 (1944) (Ohio Supreme Court held that it was "bound to follow the decisions of the Supreme Court of the United States with reference to [the] application and construction[]" of a Jones Act claim filed in state court.); Garrett, 317 U.S. at 240, 245 (Jones Act claim filed in Pennsylvania state court required application of federal substantive law). See also Kermarec v. Compagnie Generale Transatlantie , 358 U.S. 625, 627-628 (1959) (recognizing admiralty law applies to unseaworthiness and negligence claims filed in state court); Am. Dredging Co. at 456 (state court must apply uniform federal laws to Jones Act claims); Lloyd at 486 (recognizing an unseaworthiness claim filed in Pennsylvania state court is governed by federal maritime law as to substantive matters). Thus, in this matter, the state trial court was bound to apply substantive federal maritime law as to both the Jones Act claim and the unseaworthiness claim.

         {¶17} U.S. Steel argues that the trial court's application of the Schwartz substantial factor test" was irrelevant because "the substantial factor test for causation is appropriately applied in maritime cases." U.S. Steel is essentially arguing that the Ohio law supplemented and did not contradict the federal maritime law. Based upon our analysis in assignments of error two and three below, the Ohio law relied upon by the trial court did not supplement, but instead contradicted the federal maritime law. Accordingly, the trial court erred in granting summary judgment by applying Ohio law to the Jones Act and unseaworthiness claims.

         {¶18} In the alternative, U.S. Steel asserts that Mrs. Shaffer is precluded from asserting as error the trial court's reliance upon Ohio law because the Shaffers invited the error when they cited Ohio law in their brief opposing summary judgment. "The invited-error doctrine is a well-settled principle of law under which' [a] party will not be permitted to take advantage of an error which he himself invited or induced.'" (Alteration sic.) Wojcik v. Pratt, 9th Dist. Summit No. 25609, 2011-Ohio-5012, ¶ 10, quoting Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div., 28 Ohio St.3d 20 (1986), paragraph one of the syllabus.

         {¶19} In response to U.S. Steel's request to exclude the expert testimony of Dr. Maddox, the Shaffers cited a number of federal court cases and one case from Ohio, Schwartz v. Honeywell Internal, Inc., 8th Dist. Cuyahoga No. 103377, 2016-Ohio-3175. While the Shaffers cited an Ohio case, at no point did the Shaffers argue to the trial court that Ohio law governed as to this issue to the exclusion of federal law. Rather, the Shaffers cited to this one Ohio case as supplemental support to the federal law. As the Shaffers' citation to one Ohio case did not advocate for the application of Ohio law over federal law, they were not "'"actively responsible" for the trial court's error'" in applying state law.[2]See State v. Copeland, 9th Dist. Summit No. 27009, 2014-Ohio-5780, ...

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