Brady v. Safety-Kleen Corp.

576 N.E.2d 722, 61 Ohio St. 3d 624, 1991 Ohio LEXIS 2118

Opinions

Sweeney, J.

The precise issue before us on certification from the federal district court is whether R.C. 4121.80¹ is unconstitutional in whole or in part under the Ohio Constitution. For the reasons that follow, we hold that R.C. 4121.80 exceeds the scope of legislative authority granted to the General Assembly under the Ohio Constitution, and is therefore unconstitutional in to to.

I

For some thirteen years following the 1911 enactment of the workers’ compensation system, Ohio specifically excepted injuries arising from an employer’s “willful act” from the general grant of employer common-law immunity. See 102 Ohio Laws 524, 529; 103 Ohio Laws 72, 84.² While not formally stricken until 1931 (114 Ohio Laws 26, 39), the exception was “repealed by implication” when Section 35, Article II of the Ohio Constitution was amended in 1924. Mabley & Carew Co. v. Lee (1934), 129 Ohio St. 69, 1 O.O. 366, 193 N.E. 745, overruled on other grounds in Triffv. Natl. Bronze & Aluminum Foundry Co. (1939), 135 Ohio St. 191, 14 O.O. 48, 20 N.E.2d 232.

Section 35, Article II of the Ohio Constitution added the following emphasized language, and provides in relevant part:

“For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen’s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom. Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays premiums or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease.”3 (Emphasis added.) 110 Ohio Laws 631.

In Triff, supra, this court detected a gap in the concept of workers’ compensation exclusivity and permitted the common-law action of an employee whose employer negligently inflicted his occupational disease. Almost immediately thereafter, the legislature responded to the Triff holding by amending G.C. 1465-70 to read:

“Employers who comply * * * shall not be liable to respond in damages at common law or by statute, for any injury, disease, or bodily condition, whether such injury, disease or bodily condition is compensable under this act or not * * (Emphasis added.) 118 Ohio Laws 422, 426.

Harsh results from the statutory amendment soon followed. Prior to the enactment of the foregoing statute, a common-law action was available wherever an injury did not fall within the purview of the Workers’ Compensation Act. After the amendment, however, a common-law action was totally foreclosed even if the work-related injury was not compensable. Thus, some claimants were left without any redress whatsoever even in cases of clearly egregious employer behavior. See, e.g., Bevis v. Armco Steel Corp. (1951), 156 Ohio St. 295, 46 O.O. 172, 102 N.E.2d 444 (no remedy permitted where the employer knowingly concealed from the employee his progressive occupational disease).

In apparent response to such decisions, the Workers’ Compensation Act was amended in 1959, and R.C. 4123.74 (128 Ohio Laws 1334) was enacted which provided in relevant part:

“Employers who comply with section 4123.35 of the Revised Code shall not be liable to respond in damages at common law or by statute for any injury, or occupational disease, or bodily condition, received or contracted by any employee in the course of or arising out of his employment, or for any death resulting from such injury, occupational disease, or bodily condition * * * whether or not * * * compensable under sections 4123.01 to 4123.94, inclusive, of the Revised Code.” (Emphasis added.) The addition of the above emphasized language effectively reinstated common-law redress where an injury was sustained neither in the course of nor arising out of the employment.

Then, in 1982, this court announced its opinion in Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, and held that a claimant could maintain a common-law action to redress an employer’s intentionally inflicted harm. Therein, we held that neither R.C. 4123.74, 4123.741,⁴ nor Section 35, Article II of the Ohio Constitu tion “expressly extended] the grant of immunity to actions alleging intentional tortious conduct by employers against employees.” Id. at 612, 23 O.O.3d at 507, 433 N.E.2d at 575-576.

In Blankenship, we reasoned that an employer’s deliberately injurious act did not arise out of the employment relationship, was not a natural hazard of employment, and therefore, ipso facto, fell outside the Workers’ Compensation Act.

Then, in Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046, this court established the parameters of a Blankenship intentional tort, and held in the syllabus as follows:

“1. 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.

“2. The receipt of workers’ compensation benefits does not preclude an employee or his representative from pursuing a common-law action for damages against his employer for an intentional tort.

“3. An employer who has been held liable for an intentional tort is not entitled to a setoff of the award in the amount of workers’ compensation benefits received by the employee or his representative.”

Subsequent to our decision in Jones, supra, R.C. 4121.80 was enacted by the General Assembly to govern actions alleging intentional torts committed by employers against their employees in response to our holdings in Blankenship and Jones. Kunkler v. Goodyear Tire & Rubber Co. (1988), 36 Ohio St.3d 135, 136-137, 522 N.E.2d 477, 479.

II

In determining the constitutionality of legislative enactments such as R.C. 4121.80, we begin with the principle that all legislative enactments enjoy a strong presumption of constitutionality. State, ex rel. Dickman, v. Defenbacher (1955), 164 Ohio St.142, 57 O.O. 134, 128 N.E.2d 59, paragraph one of the syllabus.

Research indicates that since its enactment, R.C. 4121.80 has been the subject of much scholarly debate, both positive⁵ and negative.⁶ Nevertheless, the cause before us does not require that we explore the wisdom of the General Assembly in its enactment of R.C. 4121.80. As this court duly noted in State, ex rel. Bishop, v. Bd. of Edn. (1942), 139 Ohio St. 427, 438, 22 O.O. 494, 498, 40 N.E.2d 913, 919:

“ * * * [Attention is directed to the universally recognized principle that a court has nothing to do with the policy or wisdom of a statute. That is the exclusive concern of the legislative branch of the government. When the validity of a statute is challenged on constitutional grounds, the sole function of the court is to determine whether it transcends the limits of legislative power.”

In the cause sub judice, various portions of R.C. 4121.80 are assailed as constitutionally infirm on several grounds. For example, it is argued that Section (D) of R.C. 4121.80 denies the constitutional right to trial by jury, and that it unconstitutionally confers judicial power on the Industrial Commission. Section (F) of the statute is claimed to violate the separation of powers doctrine by giving the Industrial Commission the authority to regulate the practice of law.⁷ Notwithstanding the propriety of any of the foregoing arguments, our inquiry is directed to the threshold question of whether R.C. 4121.80, as a whole, transcends the limits of legislative power under the Ohio Constitution.

Petitioners and their supporting amici curiae contend that R.C. 4121.80 exceeds the limits of legislative power under both Sections 34 ⁸ and 35, Article II of the Ohio Constitution. Respondents and their supporting amici curiae assert that the statute comports with the goals and purposes of both constitutional provisions.

After careful consideration, we find that R.C. 4121.80 is totally repugnant to Section 34, Article II. Petitioners and their supporting amici set forth the persuasive argument that the statute in issue is not a law that furthers the “ * * * comfort, health, safety and general welfare of all employes * * *,” and we conclude that this argument is well taken. A legislative enactment that attempts to remove a right to a remedy under common law that would otherwise benefit the employee cannot be held to be a law that furthers the “ * * * comfort, health, safety and general welfare of all employes * * *.” However, R.C. 4121.80 encounters even more constitutional problems when reviewed under the other constitutional provision governing nuances of the workplace, Section 35, Article II. The opening sentence of this constitutional provision states in pertinent part:

“For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen’s employment * * *.” (Emphasis added.)

The plain import of this constitutional language indicates that the purpose of workers’ compensation is to create a source of compensation for workers injured or killed in the course of employment. Section 35, Article II then defines, inter alia, the scope and limits of the General Assembly’s power in the creation and development of the workers’ compensation system. As this court explained in Blankenship, supra: “The [Workers’ Compensation] Act operates as a balance of mutual compromise between the interests of the employer and the employee whereby employees relinquish their common law remedy and accept lower benefit levels coupled with the greater assurance of recovery and employers give up their common law defenses and are protected from unlimited liability. But the protection afforded by the Act has always been for negligent acts and not for intentional conduct.” (Footnotes omitted.) Id., 69 Ohio St.2d at 614, 23 O.O.3d at 508, 433 N.E.2d at 577. See, also, State, ex rel. Crawford, v. Indus. Comm. (1924), 110 Ohio St. 271, 274-276, 143 N.E. 574, 575.

However, it is readily apparent that R.C. 4121.80 does not further the purposes of Section 35, Article II, but instead attempts to circumvent them completely. As cogently reasoned by one distinguished member of this court:

“ * * * Injuries resulting from an employer’s intentional torts, even though committed at the workplace, are utterly outside the scope of the purposes intended to be achieved by Section 35 and by the Act. Such injuries are totally unrelated to the fact of employment. When an employer intentionally harms his employee, that act effects a complete breach of the employment relationship, and for purposes of the legal remedy for such an injury, the two parties are not employer and employee, but intentional tortfeasor and victim. If the victim brings an intentional tort suit against the tortfeasor, it is a tort action like any other. The employer has forfeited his status as such and all the attendant protections fall away. The Industrial Commission can have no jurisdiction over such an action. The lawsuit has no bearing upon any question relating to employment. The jurisdiction of the commission is limited to the matters delineated in Section 35, Article II. The General Assembly has no power to confer jurisdiction on the commission except as authorized by that constitutional provision. See Crawford, supra [110 Ohio St.], at 276, 143 N.E. at 575-576. Section 35 concerns itself solely with compensation for injuries arising from employment. R.C. 4121.80 concerns itself solely with injuries which by their nature have no connection whatsoever with the fact of employment. In enacting R.C. 4121.80, the General Assembly has exceeded the scope of the authority granted to it by the constitutional amendment, and the statute is, therefore, void as an improper exercise of legislative power.” (Emphasis sic.) Taylor v. Academy Iron & Metal Co. (1988), 36 Ohio St.3d 149, at 162, 522 N.E.2d 464, at 476 (Douglas, J., dissenting).

We hereby adopt the foregoing analysis and reiterate our firm belief that the legislature cannot, consistent with Section 35, Article II, enact legislation governing intentional torts that occur within the employment relationship, because such intentional tortious conduct will always take place outside that relationship. Blankenship, supra. Since we find that Section 35, Article II authorizes only enactment of laws encompassing death, injuries or occupational disease occasioned within the employment relationship, R.C. 4121.80 cannot logically withstand constitutional scrutiny, inasmuch as it attempts to regulate an area that is beyond the reach of its constitutional empowerment.

As brought out from the bench during oral argument of this case, it appears that the General Assembly was amply cognizant of the fact that R.C. 4121.80 exceeded the scope of its legislative power under Section 35, Article II, given the language of section (A) of the statute which states in relevant part that: “ * * * the employee * * * [has] the right to receive workers’ compensation benefits * * * and [has] a cause of action against the employer for an excess of damages over the amount received or receivable under * * * Section 35 of Article II, Ohio Constitution * * (Emphasis added.) In our view, such language cannot be lightly dismissed as merely a product of inartful draftsmanship; rather, we find that it exemplifies the intent of the General Assembly to enact something beyond that which is permitted by Section 35, Article II.

Ill

Based on all the foregoing, we reaffirm our prior holding in Blankenship, supra, and hold that a cause of action brought by an employee alleging intentional tort by the employer in the workplace is not preempted by Section 35, Article II of the Ohio Constitution, or by R.C. 4123.74 and 4123.741. While such a cause of action contemplates redress of tortious conduct that occurs during the course of employment, an intentional tort alleged in this context necessarily occurs outside the employment relationship.

We further hold that R.C. 4121.80 exceeds and conflicts with the legislative authority granted to the General Assembly pursuant to Sections 34 and 35, Article II of the Ohio Constitution, and is therefore unconstitutional in to to.

Judgment accordingly.

Douglas and Resnick, JJ., concur. H. Brown, J., concurs in the syllabus and in the judgment. Moyer, C.J., Holmes and Wright, JJ., dissent.

Footnotes

1

. R.C. 4121.80 provides as follows:

“(A) If injury, occupational disease, or death results to any employee from the intentional tort of his employer, the employee or the dependents of a deceased employee have the right to receive workers’ compensation benefits under Chapter 4123. of the Revised Code and have a cause of action against the employer for an excess of damages over the amount received or receivable under Chapter 4123. of the Revised Code and Section 35 of Article II, Ohio Constitution, or any benefit or amount, the cost of which has been provided or wholly paid for by the employer. The cause of action shall be brought in the county where the injury was sustained or the exposure primarily causing the disease alleged to be contracted occurred. The claim on behalf of the dependents of a deceased employee shall be asserted by the employee’s estate. All defenses are preserved for and shall be available to the employer in defending against an action brought under this section. Any action pursuant to the section shall be brought within one year of the employee’s death or the date on which the employee knew or through the exercise of reasonable diligence should have known of the injury, disease, or condition, whichever date occurs first. In no event shall any action be brought pursuant to this section more than two years after the occurrence of the act constituting the alleged intentional tort.

“(B) It is declared that enactment of Chapter 4123. of the Revised Code and the establishment of the workers’ compensation system is [sic] intended to remove from the common law tort system all disputes between or among employers and employees regarding the compensation to be received for injury or death to an employee except as herein expressly provided, and to establish a system which compensates even though the injury or death of an employee may be caused by his own fault or the fault of a co-employee; that the immunity established in Section 35 of Article II, Ohio Constitution, and sections 4123.74 and 4123.741 of the Revised Code is an essential aspect of Ohio’s workers’ compensation system; that the intent of the legislature in providing immunity from common law suit is to protect those so immunized from litigation outside the workers’ compensation system except as herein expressly provided; and that it is the legislative intent to promote prompt judicial resolution of the question of whether a suit based upon a claim of an intentional tort prosecuted under the asserted authority of this section is or is not an intentional tort and therefore is or is not prohibited by the immunity granted under Section 35 of Article II, Ohio Constitution, and Chapter 4123. of the Revised Code.

“(C) Notwithstanding any other provision of law or rule to the contrary, and consistent with the legislative findings of intent to promote prompt judicial resolution of issues of immunity from litigation under Chapter 4123. of the Revised Code, the court shall dismiss the action:

“(1) Upon motion for summary judgment, if it finds, pursuant to Rule 56 of the Rules of Civil Procedure the facts required to be proved by division (B) of this section do not exist;

“(2) Upon a timely motion for a directed verdict against the plaintiff if after considering all the evidence and every inference legitimately and reasonably raised thereby most favorably to the plaintiff, the court determines that there is not sufficient evidence to find the facts required to be proven.

“(D) In any action brought pursuant to this section, the court is limited to a determination as to whether or not the employer is liable for damages on the basis that the employer committed an intentional tort. If the court determines that the employee or his estate is entitled to an award under this section and that determination has become final, the industrial commission shall, after hearing, determine what amount of damages should be awarded. For that purpose, the commission has original jurisdiction. In making that determination, the commission shall consider the compensation and benefits payable under Chapter 4123. of the Revised Code and the net financial loss to the employee caused by the employer’s intentional tort. In no event shall the total amount to be received by the employee or his estate from the intentional tort award be less than fifty per cent of nor more than three times the total compensation receivable pursuant to Chapter 4123. of the Revised Code, but in no event may an award under this section exceed one million dollars. Payments of an award made pursuant to this section shall be from the intentional tort fund. All legal fees, including attorney fees as fixed by the industrial commission, incurred by an employer in defending an action brought pursuant to this section shall be paid by the intentional tort fund.

“(E) There is hereby established an intentional tort fund, which shall be in the custody of the treasurer of state. Every public and private employer, including self-insuring employers, shall pay into the fund annually an amount fixed by the administrator of workers’ compensation with approval of the workers’ compensation board. The assessment for public and private employers, except for self-insuring employers, shall be based upon the manner of rate computation established by section 4123.29 of the Revised Code. The administrator shall separately calculate each self-insuring employer’s assessment in accordance with section 4123.35 of the Revised Code.

“The fund shall be under the control of the administrator and the administrator shall adopt by rule procedures to govern the reception of claims against the fund pursuant to this section and disbursement from the fund.

“(F) The commission shall make rules concerning the payment of attorney fees by claimants and employers in actions brought pursuant to this section and shall protect parties against unfair fees. The commission shall fix the amount of fees in the event of a controversy in respect thereto. The commission and the bureau of workers’ compensation shall prominently display in all areas of an office which claimants frequent a notice to the effect that the commission has statutory authority to resolve fee disputes. The commission shall make rules designed to prevent the solicitation of employment in the prosecution or defense of actions brought under this section and may inquire into the amounts of fees charged employers or claimants by attorneys for services in matters relative to actions brought under this section.

“(G) As used in this section:

“(1) ‘Intentional tort’ is an act committed with the intent to injure another or committed with the belief that the injury is substantially certain to occur.

“Deliberate removal by the employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance is evidence, the presumption of which may be rebutted, of an action committed with the intent to injure another if injury or an occupational disease or condition occurs as a direct result.

“ ‘Substantially certain’ means that an employer acts with deliberate intent to cause an employee to suffer injury, disease, condition, or death.

“(2) ‘Employer,’ ‘employee,’ and ‘injury’ have the same meanings given those terms in section 4123.01 of the Revised Code.

“(H) This section applies to and governs any action based upon a claim that an employer committed an intentional tort against an employee pending in any court on August 22, 1986 and all claims or actions filed on or after that date, notwithstanding any provisions of any prior statute or rule of law of this state.”

2

. For a concise overview of the history of Ohio law in this area, see Note, Blankenship v. Cincinnati Milacron Chemical Co.: Workers’ Compensation and the Intentional Tort, a New Direction for Ohio (1987), 12 Cap.U.L.Rev. 286.

3

. The rest of Section 35, Article II provides as follows:

“ * * * Laws may be passed establishing a board which may be empowered to classify all occupations, according to their degree of hazard, to fix rates of contribution to such fund according to such classification, and to collect, administer and distribute such fund, and to determine all rights of claimants thereto. Such board shall set aside as a separate fund such proportion of the contributions paid by employers as in its judgment may be necessary, not to exceed one per centum thereof in any year, and so as to equalize, insofar as possible, the burden thereof, to be expended by such board in such manner as may be provided by law for the investigation and prevention of industrial accidents and diseases. Such board shall have full power and authority to hear and determine whether or not an injury, disease or death resulted because of the failure of the employer to comply with any specific requirement for the protection of the lives, health or safety of employes, enacted by the General Assembly or in the form of an order adopted by such board, and its decision shall be final; and for the purpose of such investigations and inquiries it may appoint referees. When it is found, upon hearing, that an injury, disease or death resulted because of such failure by the employer, such amount as shall be found to be just, not greater than fifty nor less than fifteen per centum of the maximum award established by law, shall be added by the board, to the amount of the compensation that may be awarded on account of such injury, disease, or death, and paid in like manner as other awards; and, if such compensation is paid from the state fund, the premium of such employer shall be increased in such amount, covering such period of time as may be fixed, as will recoup the state fund in the amount of such additional award, notwithstanding any and all other provisions in this constitution.”

4

. R.C. 4123.741 provides as follows:

“No employee of any employer, as defined in division (B) of section 4123.01 of the Revised Code, shall be liable to respond in damages at common law or by statute for any injury or occupational disease, received or contracted by any other employee of such employer in the course of and arising out of the latter employee’s employment, or for any death resulting from such injury or occupational disease, on the condition that such injury, occupational disease, or death is found to be compensable under sections 4123.01 to 4123.94, inclusive, of the Revised Code.”

5

. See 2A Larson, The Law of Workmen’s Compensation (1990) 13-47 through 13-68, Section 68.15.

6

. See Note, S.307: Ohio’s New Workers’ Compensation Law — at Least for Now (1986), 12 U. Dayton L.Rev. 489, at 507:

“In its zeal to remedy what it apparently believed to be a potentially disastrous situation, the Ohio Legislature has enacted a bill that will generate litigation for years to come. Whether acting in haste or in response to the pressure exerted by business interests, the result is an act fraught with constitutionally suspect provisions.”

See Comment, The New Workers’ Compensation Law in Ohio: Senate Bill 307 Was No Accident (1987), 20 Akron U.L.Rev. 491, at 518:

“ * * * [I]n enacting the new law the legislature has trammeled the legal and constitutional rights of employees across this state. Moreover, Senate Bill 307 does not clarify the law in Ohio relative to workers’ compensation, rather it creates an interpretational quagmire.” See Comment, Intentional Torts by Employers in Ohio, the General Assembly’s Solution: Ohio Revised Code Section 4121.80 (1987), 56 U.Cin.L.Rev. 247, at 267:

“The General Assembly has created a confusing and unsettling piece of legislation in section 4121.80. A better solution to the problem would have been to follow the example of a majority of the other states. Most states allow the common law action for an intentional tort by an employer, but severely limit the definition of an intentional tort to a showing of subjective intention to injure.”

7

. The author of this opinion finds merit in these arguments and agrees with the concurring opinion in the cause sub judice that various portions of R.C. 4121.80 are unconstitutional under several provisions of the Ohio Constitution. For example, the “cap on damages” portion of R.C. 4121.80(D) clearly violates the right to equal protection found in Section 2, Article I. R.C. 4121.80(D) also violates the right to a trial by jury guaranteed in Section 5, Article I.

8

. Section 34, Article II of the Ohio Constitution provides:

“Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employes; and no other provision of the constitution shall impair or limit this power.”