Balyint v. Arkansas Best Freight System, Inc.

480 N.E.2d 417, 18 Ohio St. 3d 126, 18 Ohio B. 188, 1985 Ohio LEXIS 400

• Court: Ohio Supreme Court
• Decided: July 10, 1985
• Docket: No. 84-943
• Status: Published

Opinions

Celebrezze, C.J.

The issue presented by this appeal is whether a self-insured employer is answerable in damages for intentionally and wrongfully terminating workers’ compensation payments to an injured employee. For the following reasons, we hold that appellees have stated a viable cause of action and that the complaint should not have been dismissed.

In Jones v. VIP Development Co. (1984), 15 Ohio St. 3d 90, we defined an intentional tort at paragraph one of the syllabus as follows:

“An intentional tort is an act committed with the intent to injure another, or committed with the belief that such injury is substantially certain to occur.”

We explained the concept of an intentional tort further in Jones, supra, at 95:

“* * * [A] specific intent to injure is not an essential element of an intentional tort where the actor proceeds despite a perceived threat of harm to others which is substantially certain, not merely likely, to occur. It is this element of substantial certainty which distinguishes a merely negligent act from intentionally tortious conduct. * * * The actor must know or believe that harm is a substantially certain consequence of his act before intent to injure will be inferred.” (Emphasis sic.)

Under the Jones standard, there can be no serious question that appellees’ complaint sufficiently states a cause of action for an intentional tort. As this court stated in Border City S. & L. Assn. v. Moan (1984), 15 Ohio St. 3d 65, 66, quoting the syllabus of O’Brien v. University Community Tenants Union (1975), 42 Ohio St. 2d 242 [71 O.O.3d 223]:

“It is well-established that a court may not dismiss a complaint for failure to state a claim upon which relief can be granted unless it appears ‘beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery.’ ” See, also, Royce v. Smith (1981), 68 Ohio St. 2d 106, 108 [22 O.O.3d 332]; Blankenship v. Cincinnati Milacron Chemicals, supra, at 610-611; Dickerhoof v. Canton (1983), 6 Ohio St. 3d 128, 129; and Civ. R. 8(A).

In essence, appellees’ complaint accuses appellants of deliberately harming appellees by unilaterally, intentionally, and unlawfully terminating workers’ compensation payments. Such allegations fall within the scope of an intentional tort announced in Jones. Appellees have sufficiently alleged an act — termination of payments — which purportedly resulted in injuries that were either intended or substantially likely to occur.

With respect to the ability of an employee to maintain an action for an intentional tort against his employer, we held in Blankenship v. Cincinnati Milacron Chemicals, supra, in the syllabus:

“An employee is not precluded by Section 35, Article II of the Ohio Constitution, or by R.C. 4123.74 and 4123.741 from enforcing his common law remedies against his employer for an intentional tort.”

Thus, in light of our holding in Blankenship, supra, and contrary to the argument advanced by appellants, neither Section 35, Article II nor R.C. 4123.74 or 4123.741 constitutes any impediment to the maintenance of this action for intentional tort by appellees against appellants.¹

Appellants argue further that appellees’ action is barred for failure to bring the action within the one hundred eighty-day period set forth in R.C. 4123.90. That section provides in part:

“No employer shall discharge, demote, reassign, or take any punitive action against any employee because such employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer. Any such employee may file an action in the common pleas court of the county of such employment in which the relief which may be granted shall be limited to reinstatement with back pay, if the action is based upon discharge, or an award for wages lost if based upon demotion, reassignment, or punitive action taken, offset by earnings subsequent to discharge, demotion, reassignment, or punitive action taken, and payments received pursuant to section 4123.56 and Chapter 4141. of the Revised Code, plus reasonable attorney fees. Such action shall be forever barred unless filed within one hundred eighty days immediately following such discharge, demotion, reassignment, or punitive action taken, and no action may be instituted or maintained unless the employer has received written notice of a claimed violation of this paragraph within the ninety days immediately following such discharge, demotion, reassignment, or punitive action taken.”

It is true that appellees did not file their complaint within the statute of limitations prescribed by R.C. 4123.90. Nonetheless, we hold that relief under R.C. 4123.90 is not an exclusive remedy and that appellees are not confined to proceeding solely under R.C. 4123.90.

It was stated in Feuchter v. Keyl (1891), 48 Ohio St. 357, at paragraph one of the syllabus:

“A new remedy provided by statute for an existing right, where it neither denies an existing remedy nor is incompatible with its continued existence, should be regarded as cumulative, and the person seeking redress may adopt and pursue either remedy at his option.”

Later, in Lyons v. American Legion Post No. 650 Realty Co., Inc. (1961), 172 Ohio St. 331 [16 O.O.2d 113], this court held at paragraph three of the syllabus:

“Where a statute gives a new remedy and does not in terms impair or deny a remedy already recognized by law, such statutory remedy is merely cumulative, and either the new or the old remedy may be employed at the option of the party seeking redress.”

See, also, Fletcher v. Coney Island, Inc. (1956), 165 Ohio St. 150, 154-155 [59 O.O. 212]; Phillips Sheet & Tin Plate Co. v. Griffith (1918), 98 Ohio St. 73, 75; and Zanesville v. Fannan (1895), 53 Ohio St. 605, at paragraph two of the syllabus.

In our view, the remedy provided in R.C. 4123.90 is simply a statutory remedy to enforce an existing right. Appellants have not seriously argued, as they must to prevail on this issue, that prior to the enactment of R.C. 4123.90 an employer had a virtual license to take punitive action against an employee for pursuing a workers’ compensation claim. Thus, to the extent that appellees’ present common-law action overlaps a claim under R.C. 4123.90, appellees are free to select the remedy best calculated to afford the greatest recovery.² The expiration of the statute of limitations set forth in R.C. 4123.90 is, therefore, inconsequential.

By its terms, R.C. 4123.90 does not make the remedy provided therein an exclusive one. Further, R.C. 4123.90 only allows relief in the form of reinstatement with back pay and lost wages. Consequently, even though appellants’ actions against appellees, if true, may be characterized as “punitive,” it is not difficult to comprehend appellees’ choice of pursuing a common-law remedy — under which full recovery is possible — as opposed to the limited remedy provided by R.C. 4123.90 — under which full and effective compensation for the injuries alleged to have been inflicted could not be attained.

Accordingly, we hold that an employee of a self-insured employer may maintain a cause of action against the employer for the intentional and wrongful termination of workers’ compensation payments. The judgment of the court of appeals is hereby affirmed.

Judgment affirmed.

C. Brown, J., concurs and concurs separately. Sweeney and Douglas, JJ., concur separately in the syllabus and judgment only. Locher, Holmes and Wright, JJ., separately dissent.

1 Application of Blankenship to the instant case should not be read as extending that decision beyond its original scope or intention. The thrust of Blankenship was that “an employer’s intentional conduct does not arise out of employment * * *.” Id. at 613. We also stated in Blankenship, supra, at 613, fn. 8: “An intentional tort, then, is clearly not an ‘injury’ arising out of the course of employment.”

That being the case, the allegations of intentional tortious conduct contained in the instant complaint do not, in a legal sense, arise out of the course of the employment of appellee George Balyint.

2 See 1 Ohio Jurisprudence 3d (1977) 404-405, Actions, Section 42.