Stolz v. J & B Steel Erectors, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DANIEL STOLZ,

Plaintiff,

Case No. 1:14-cv-44

v. JUDGE DOUGLAS R. COLE

J & B STEEL ERECTORS, INC.,

et al.,

Defendants.

OPINION AND ORDER

This cause comes before the Court on the Motion to Dismiss (Doc. 111) filed by

Defendants J & B Steel Erectors, Inc.; D.A.G. Construction, Inc.; Pendleton Construc-

tion Group, LLC; and TriVersity Construction Co., LLC (collectively the “Enrolled

Subcontractor Parties”), which addresses issues that relate solely to Plaintiff Daniel

Stolz’s challenges under the United States Constitution to an Ohio Workers’ Com-

pensation statute, Ohio Rev. Code § 4123.35(O) (the “Self-Insuring Employer Stat-

ute”).

The federal constitutional issues are all that remain in this case after not one,

but two, trips to the Supreme Court of Ohio on certified questions, both of which re-

solved, in a manner contrary to Stolz’s desired position, certain other issues that Stolz

had pressed in this action. On the first trip, Stolz argued that as a matter of statutory

interpretation the Self-Insuring Employer Statute, which grants immunity from suit

to various entities for certain work-related injuries that occur at construction sites

(and instead provides that recovery for such injuries solely will be through the

Workers’ Compensation System), did not apply to the Enrolled Subcontractor Parties

in this case, as they were not his employers. The Ohio Supreme Court disagreed,

finding that the statute bars Stolz from suing the Enrolled Subcontractor Parties,

who, while not his employer, were other “enrolled subcontractors,” a term that refers

to those subcontractors included in the self-insured group under the statute (more on

that below) working on the same project as the subcontractor that employed Stolz.

Stolz v. J & B Steel Erectors, Inc., 146 Ohio St. 3d 281, 2016-Ohio-1567 (“Stolz I”).

On his second trip, Stolz argued that the Self-Insuring Employer Statute, if

interpreted to immunize non-employer enrolled subcontractors, violated the Ohio

Constitution. The Ohio Supreme Court rejected that argument as well. Stolz v. J & B

Steel Erectors, Inc., 155 Ohio St. 3d 567, 2018-Ohio-5088 (“Stolz II”).

As the Ohio Supreme Court’s interpretations of Ohio statutes and the Ohio

Constitution are binding on this Court, the sole question remaining here relates to

Stolz’s claims that the Ohio statute, as interpreted by the Ohio Supreme Court, vio-

lates the United States Constitution. The Enrolled Subcontractor Parties now seek

dismissal, claiming that Stolz’s arguments under the federal Constitution fail as a

matter of law. (There are also two non-moving subcontractor defendants in this ac-

tion, which were not “enrolled subcontractors” on the project. This Order does not

apply to them.) More specifically, Stolz advances three constitutional arguments:

(1) that the Self-Insuring Employer Statute violates the Seventh Amendment’s jury

trial guarantee; (2) that the statute violates the Due Process Clause under the Four-

teenth Amendment; and (3) that the statute violates the Fourteenth Amendment’s

Equal Protection Clause. The Court finds, however, that Stolz has not pled a viable

legal theory as to any of the three, and thus the Court DISMISSES this action

against the Enrolled Subcontractor Parties WITH PREJUDICE.

I. BACKGROUND

A. The Relevant Facts.

This Court has previously summarized the relevant facts in certifying the first

question of law to the Ohio Supreme Court in Stolz I. The plaintiff, Daniel Stolz,

worked as a concrete finisher for Jostin Construction, Inc., a subcontractor on a con-

struction project at the Horseshoe Casino in Cincinnati (the “Casino Project”). Stolz

was injured during the course of his work on that project. As a result, he brought

claims for negligence in this Court against the general contractor, Defendant Messer

Construction Company (“Messer”), and various other subcontractors, including, as

relevant here, J & B Steel Erectors (“J & B Steel”), D.A.G. Construction Co., Inc.

(“D.A.G.”), and TriVersity Construction Co., L.L.C. (“TriVersity”) (collectively the

“Enrolled Subcontractor Parties”). (Stolz also sued two other subcontractors in this

action. As noted above, his claims against those subcontractors are not at issue here.)

Before the accident that injured Stolz occurred, Messer had applied for and

obtained authority from the Ohio Bureau of Workers’ Compensation (“BWC”) to act

as the self-insuring employer under Section 4123.35(O). Stolz II, 155 Ohio St. 3d at

568. Under that statute, Messer was thus responsible for providing workers’ compen-

sation coverage for its own employees, as well as for the employees of any enrolled

subcontractors on the Casino Project, i.e., those subcontractors who are listed on the

contractor’s application to self-insure, see id., a group that in this case included the

Enrolled Subcontractor Parties who have collectively filed the present motion to dis-

miss. (The other two subcontractors were not part of the group of enrolled subcon-

tractors on the project.)

The Enrolled Subcontractor Parties sought judgment as a matter of law, claim-

ing that they were immune from suit on Stolz’s negligence claims due to the Self-

Insuring Employer Statute, and that Stolz’s sole mechanism for recovery was his

workers’ compensation claim. This Court granted summary judgment to the general

contractor, Messer, but found that claims could proceed against the Enrolled Subcon-

tractor Parties, other than the subcontractor that employed Stolz, as the workers’

compensation statutes immunized subcontractors from suits by their own employees,

but not from suits by employees of other subcontractors.

The Enrolled Subcontractor Parties then asked this Court to certify that ques-

tion of Ohio law—whether Stolz could proceed against enrolled subcontractors other

than his employer—to the Ohio Supreme Court, which this Court did. In Stolz I, the

Ohio Supreme Court rejected this Court’s analysis, holding that the Ohio’s workers’

compensation statute at issue, Section 4123.35(O), immunizes all enrolled subcon-

tractors on a self-insured project against not only claims by their own employees, but

also claims by employees of other enrolled subcontractors. Stolz I, 155 Ohio St. 3d at

287.

On return to this Court from the Ohio Supreme Court, Stolz amended his Com-

plaint to assert that, as interpreted, Section 4123.35(O) violates the Ohio

Constitution and the United States Constitution by infringing “upon the right to trial

by jury [and] . . . the constitutional right to remedy, and violat[ing] due process and

equal protection.” (Doc. 90, at ¶ 27, #918). Specifically, Stolz asserted that Section

4123.35 “unconstitutionally interferes with the judiciary’s authority over the courts

by unconstitutionally purporting to permit the legislature to dictate non-liability as

a matter of law . . . [and] unconstitutionally denies certain injured employee tort vic-

tims, including Plaintiff, equal protection of the law by arbitrarily permitting some

injured employees to receive full compensation for their injuries from third party tort-

feasors while denying the same to injured employees employed on self-insured con-

struction projects.” (Id. at ¶¶ 28, 29).

This Court then certified to the Ohio Supreme Court another question:

“Whether Ohio Rev. Code 4123.35(O) is unconstitutional [under the Ohio Constitu-

tion] as applied to the tort claims of an enrolled subcontractor’s employee who is in-

jured while working on a self-insured construction project and whose injury is com-

pensable under Ohio workers’ compensation laws.” (Cert. Order, Doc. 107, #1054).

The Ohio Supreme Court also accepted this second certification, Stolz v. J & B Steel

Erectors, Inc., 151 Ohio St. 3d 1451, 2017-Ohio-8842, and held that Section

4123.35(O) does not violate the Ohio Constitution. Stolz II, 155 Ohio St. 3d at 572.

Although Stolz originally claimed the statute, as applied, violated seven differ-

ent provisions of the Ohio Constitution, in the proceedings before the Ohio Supreme

Court on the certified question, Stolz pursued only two claims: that Section

4123.35(O) “violates the due-process and equal protection guarantees of the Ohio

Constitution.” Stolz II, 155 Ohio St. 3d at 569. The Ohio Supreme Court rejected both

of those claims.

As to the due process claim, Stolz argued that the immunity the statute offered

to non-employer subcontractors violated his substantive due process rights. In par-

ticular, he claimed that the statutory immunity infringed two fundamental rights

under the Ohio Constitution: “the right to a jury trial and the right to a remedy.” Id.

at 570. The Ohio Supreme Court rejected the jury-trial argument, finding that the

right to a jury trial extended only to those civil cases “in which the right existed at

the time of the adoption of the Ohio Constitution.” Id. at 570–71. The Court noted

that nothing prevented the Ohio General Assembly from altering or revising the com-

mon law, and that the legislature had done so by adopting workers’ compensation

statutes to replace common law liability rules in the workplace setting. Id. at 571.

Because the claim under those statutes was not a claim at common law, the jury trial

right under the Ohio Constitution did not apply. Id. at 571–72.

As for the right to a remedy, the Court noted that substituting a statutory

cause of action for a common law right would violate the Ohio Constitution only if the

statute imposed “a ‘serious infringement on a clearly existing right to bring suit.’” Id.

at 572 (quoting Fabrey v. McDonald Vill. Police Dept., 70 Ohio St. 3d 351, 355 (1994)).

Because the workers’ compensation system provides “meaningful remedies for em-

ployees who [have] been injured[,]” it does not impose any serious infringement, and

thus does not violate this fundamental right. Stolz II, 155 Ohio St. 3d at 571–72.

Absent any fundamental right, the Ohio Supreme Court applied rational basis review

and found that Section 4123.35(O) easily met this threshold. Id. at 572–73. The stat-

ute “furthers the purposes of the workers’ compensation system by putting a project

with a general contractor and multiple subcontractors on the same footing as a large

construction project undertaken by a single contractor.” Id. at 572.

On the equal protection front, Stolz claimed that the statute violated this con-

stitutional guarantee by treating him differently from “a worker on a traditional,

state-funded project that does not take advantage of [Section] 4123.35’s self-insured

provision.” Id. at 573. The Ohio Supreme Court noted that this was not a suspect

classification, and that, for the reasons already noted, Stolz had failed to identify any

fundamental right. Thus, the analysis under the Equal Protection Clause of the Ohio

Constitution likewise would receive rational basis review, which the Ohio Supreme

Court had already found the statute passed.

Having considered and rejected both arguments that Stolz presented under the

Ohio Constitution, the Ohio Supreme Court answered the certified question in the

negative, finding that Section 4123.35(O), as interpreted to immunize subcontractors

on a self-insured project against claims by employees of other subcontractors, does

not violate the Ohio Constitution. Id. at 574.

The Ohio Supreme Court’s determinations on questions of Ohio law are of

course binding on this Court. Thus, in connection with this Court’s analysis of the

instant motion, the Court takes as a given: (1) that Section 4123.35(O) immunizes all

enrolled subcontractors in self-insured projects against claims by employees of other

enrolled subcontractors; and (2) that the statute does not violate Ohio’s Constitution.

B. The Instant Motion

In light of the Ohio Supreme Court’s determinations, the Enrolled Subcontrac-

tor Parties now seek dismissal of Stolz’s claims against them. Although those defend-

ants fail to identify the basis for their motion, in his opposition, Stolz treats their

motion as a motion under Rule 12(b)(6), and the Enrolled Subcontractor Parties, in

their reply, do not take issue with that characterization. As the Enrolled Subcontrac-

tor Parties have apparently filed their motion in lieu of responding to the operative

complaint, the characterization is likely correct. For future reference, though, it is

helpful to the Court if the parties identify the procedural rule under which they file

a motion, so as to avoid any possibility of confusion on that issue.

In their motion, the Enrolled Subcontractor Parties assert that Stolz’s claims

against them fail as a matter of law as a result of the immunity that they have under

Section 4123.35(O). Given the Ohio Supreme Court’s determinations, the Enrolled

Subcontractor Parties are entitled to prevail on their motion unless Stolz can show

some viable theory under which the Ohio statute, as interpreted, may violate the

United States Constitution.

In that regard, Stolz identifies three potential candidates, arguing that the

Ohio statute: (1) violates his Seventh Amendment jury trial rights; (2) violates the

Due Process Clause of the Fourteenth Amendment; or (3) violates the Equal Protec-

tion Clause of that same amendment. As more fully described below, none of these

presents a viable legal theory. Accordingly, the Court dismisses with prejudice this

action against the Enrolled Subcontractor Parties.

II. LEGAL STANDARD

In analyzing a motion under Rule 12(b)(6), the Court accepts the factual alle-

gations in the complaint as true and asks whether the plaintiff has set forth a plau-

sible claim for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the Court is required to accept fac-

tual allegations, the Court need not credit any legal conclusions the plaintiff puts

forward in his complaint. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

In his brief, Stolz instead asserts that the standard is whether he can prove

any set of facts consistent with the allegations in his complaint under which he can

prevail. While that was once the standard, see Conley v. Gibson, 355 U.S. 41 (1957),

that is no longer so, see Iqbal/Twombly. And the Court declines to apply that stand-

ard here.

In any event, the standard of review ultimately matters little here. The argu-

ments that that Enrolled Subcontractor Parties press in their motion are purely legal.

And, as to such questions, whether before or after Iqbal/Twombly, the issue has

largely remained the same—whether Stolz has identified a potentially viable legal

theory under which the Enrolled Subcontractor Parties could be liable to him. Here,

Stolz has failed to do so.

III. ANALYSIS

As noted above, Stolz has identified three potential constitutional claims, one

predicated on the Seventh Amendment (as allegedly incorporated under the Four-

teenth Amendment), and two directly under the Fourteenth Amendment (a Due

Process claim and an Equal Protection claim). Because Stolz seeks to use the jury

trial claim as at least a partial basis for the latter two challenges, the Court will begin

with the Seventh Amendment jury trial issue before considering the Due Process and

Equal Protection claims.

A. Seventh Amendment

The Seventh Amendment to the United States Constitution provides that “[i]n

Suits at common law, where the value in controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved….” U.S. CONST. amend. VII. Stolz contends

that, to the extent that Section 4123.35(O) precludes his suit for negligence against

the Enrolled Subcontractor Parties, it necessarily interferes with his right to a jury

trial on those claims, and it is thus unconstitutional.

To start, it is not clear that the Seventh Amendment even applies in the con-

text of a state statute, such as the one here. The Supreme Court has never expressly

incorporated the Seventh Amendment. See McDonald v. City of Chicago, 561 U.S.

742, 765 n.13 (2010) (“Our governing decisions regarding the … Seventh Amend-

ment’s civil jury trial requirement long predate the era of selective incorporation.”).

Thus, as Stolz is mounting a constitutional challenge to a state law, the Seventh

Amendment may not be available to him as a basis for doing so.

Compounding the problem (or perhaps merely stating the problem differently),

the Supreme Court has also held that, in a diversity case (like this one), the question

of whether a party has a right to a jury is determined by reference to federal law, as

the availability of a jury is a “procedural” issue rather than a “substantive” issue

under the Erie Doctrine. See Simler v. Conner, 372 U.S. 221, 222 (1963) (“[T]he right

to a jury trial in the federal courts is to be determined as a matter of federal law in

diversity as well as other actions.”). Thus, even if Stolz’s right to recover, if any, arises

under Ohio law, his entitlement to a jury, or lack thereof, in asserting that claim in

this Court, would be determined by federal law, not state law.

At bottom, though, the real problem is that, even if the Seventh Amendment

is incorporated, and even if state law (including the allegedly invalid state statute)

did supply the rule of decision here, there is simply no underlying Seventh Amend-

ment violation. This is true for two related reasons. First, by its plain text, the scope

of the Amendment applies only to “Suits at common law.” Thus, the Seventh Amend-

ment jury trial right does not extend to statutory causes of action. NLRB v. Jones &

Laughlin Steel Corp., 301 U.S. 1, 48 (1937) (citation omitted). Here, the Ohio General

Assembly has elected to abolish certain common law causes of actions—in particular,

certain categories of negligence actions for work-related injuries—and replace them

with a statutory cause of action for workers’ compensation benefits. The Seventh

Amendment, by its terms, does not apply to such actions.

Stolz acknowledges that, but claims it misses the point. His complaint, he says,

is that he wants a negligence action against the Enrolled Subcontractor Parties, not

solely a workers’ compensation claim against the general contractor. And it is in de-

priving him of that negligence claim, and the corresponding jury right that would

come with it, that the Seventh Amendment problem arises.

The shortcoming in this second argument, though, is that the Seventh Amend-

ment is a form of procedural guarantee, not a substantive basis for recovery. That is,

the Seventh Amendment provides, in suits at common law, a jury trial right. The

Amendment does not provide a party the right to such a suit in the first instance, but

rather only that, when a party in fact has a right to such a suit, he or she also has a

right to a jury to decide that action.

For example, parties originally argued that the procedural rule that authorized

courts to grant summary judgment where there were no disputed facts violated the

Seventh Amendment as applied to common law causes of action, because the court’s

grant of summary judgment deprived a party of his or her right to have a jury decide

the action. See, e.g., Fidelity & Deposit Co. of Maryland v. United States, 187 U.S.

315, 319–20 (1902). That argument ultimately lost, see Parklane Hosiery Co. v. Shore,

439 U.S. 322, 336 (1979) (citing Fidelity & Deposit Co., 187 U.S. at 319–21), but that

is at least the type of issue falling within the ambit of the Seventh Amendment.

Understood that way, the problem for Stolz here is that Section 4123.35(O)

does not deprive a party of a right to a jury to decide his cause of action, but rather,

as the Enrolled Subcontractor Parties note in their motion, the statute abrogates

Stolz’s right to bring suit at all. That is simply not a Seventh Amendment concern.

To illustrate further, imagine that the statute here instead provided that “any negli-

gence suits by injured workers to recover for harms from work-related injuries shall

be tried to the bench, rather than a jury.” Such a statute would raise a potential Sev-

enth Amendment concern because the legislature would be leaving the cause of action

itself in the realm of the common law, but depriving the party of a right to a jury trial

to decide the result of that common law claim. By instead providing immunity, the

statute here does not deprive Stolz of a jury; rather, the statute abolishes any cause

of action at all, which does not implicate the Seventh Amendment.

Indeed, as the Enrolled Subcontractor Parties point out, the United States Su-

preme Court itself has acknowledged this result in the workers’ compensation setting

in companion cases decided approximately 100 years ago. In New York Cent. R. Co.

v. White, 243 U.S. 188 (1917), and Mountain State Timber Co. v. Washington, 243

U.S. 219 (1917), the Court considered a host of constitutional challenges, some by

employers and others by employees, to workers’ compensation schemes that had been

adopted in New York and Washington. One of those challenges, like the challenge

Stolz presses here, was that by abrogating any common law negligence action and

replacing it with a statutory workers’ compensation claim, the worker was losing his

Seventh Amendment right to a jury. For largely the same reasons discussed above,

the Court concluded that abrogating the common law claim did not violate the Sev-

enth Amendment. As the Court put it, given that “the act abolishes all right of recov-

ery in ordinary cases, [it] therefore leaves nothing to be tried by a jury.” Mountain

Timber, 243 U.S. at 235. Just so here.

To be sure, in abolishing an underlying common law cause of action, a state

could potentially violate a different provision of the Constitution. For example, if a

state were to adopt a statute providing complete immunity with no alternative vehicle

to provide a remedy, that could perhaps give rise to a due process claim. But that

would not be a Seventh Amendment right-to-jury problem, but instead a due-process

unlawful-deprivation-of-liberty-or-property-interest claim. The Court will discuss

such potential constitutional issues below in consideration of Stolz’s other arguments,

but the point here is merely that abolishing a cause of action in toto does not present

a Seventh Amendment concern. Thus, Stolz has failed to articulate any potentially

viable claim under the Seventh Amendment.

B. Fourteenth Amendment Equal Protection

Stolz next argues that the Ohio statute violates his Due Process rights under

the Fourteenth Amendment. While the basis for his due process challenge is not en-

tirely clear from his briefing, it appears that his concern is that the statute is so am-

biguous as to whether or not it provides immunity to non-employer subcontractors

(such as the Enrolled Subcontractor Parties here) that citizens are not on “notice of

conduct that is forbidden or required.” (See Opp. to Mot. to Dismiss, Doc. 113 at

#1113). And Stolz further claims that he is entitled to strict scrutiny review on this

challenge, as the ambiguity in the statute deprives him of a “fundamental right,”

namely “his right to trial by jury.” (Id.).

There are at least two problems with that. To start, as noted above, Stolz does

not have a Seventh Amendment right to a jury here, and thus has not been deprived

of that “fundamental right.” Second, while it is perhaps possible that a statute could

be so ambiguous as to create a fair-notice due-process concern, the statute here does

not qualify—not even close. As the Supreme Court itself has observed, the meaning

of statutes often leaves “room for dispute,” see Rivers v. Roadway Exp., Inc., 511 U.S.

298, 312 (1994). Nonetheless, “[i]t is this Court’s responsibility to say what a statute

means, and once the Court has spoken, it is the duty of other courts to respect that

understanding of the governing rule of law.” Id. Here, the court with ultimate respon-

sibility for determining the meaning of Section 4123.35(O) is the Ohio Supreme

Court, and that court has spoken, meaning it is the duty of other courts to “respect

that understanding.” Nor, in this Court’s view, was there anything so counter-textual

or surprising in the Ohio Supreme Court’s analysis of the statutory language that

would rise anywhere near the level needed to support an ambiguity-based due-pro-

cess challenge.

That is particularly true in that, given the absence of any fundamental right,

Stolz’s due process challenge—however formulated—receives only rational-basis re-

view. While the briefing does little to discuss the specifics of such review, the Court

explored the issue extensively with counsel at argument. Based on the arguments

offered there, the Court remains convinced that Stolz has not pled, and cannot plead,

a plausible rational basis argument to invalidate the statute.

In the rational basis context, the statute starts with a strong presumption of

constitutionality. See, e.g., League of United Latin Am. Citizens v. Bredesen, 500 F.3d

523, 536 (6th Cir. 2007) (quoting Heller v. Doe by Doe, 509 U.S. 312, 319 (1993)). The

Court need only identify some legitimate public purpose to which the statute is ra-

tionally related, and it is irrelevant whether the legislature itself actually had that

policy in mind. See FCC v. Beach Comm’n, Inc., 508 U.S. 307, 315 (1993) (“Moreover,

because we never require a legislature to articulate its reasons for enacting a statute,

it is entirely irrelevant for constitutional purposes whether the conceived reason for

the challenged distinction actually motivated the legislature.”); Am. Exp. Travel Re-

lated Servs. Co. v. Kentucky, 641 F.3d 685, 690 (6th Cir. 2011) (“Under rational basis

review, it is constitutionally irrelevant what reasoning in fact underlay the legislative

decision. … Thus, if a statute can be upheld under any plausible justification offered

by the state, or even hypothesized by the court, it survives rational-basis scrutiny.”)

(citations and quotations omitted). Moreover, both the United States Supreme Court

and the Sixth Circuit repeatedly have admonished that, once a legitimate public pur-

pose is identified, any rational-basis attack on the means-ends fit between the statute

and that purpose faces a high hurdle. See, e.g., Bredesen, 500 F.3d at 537 (quoting

Heller, 509 U.S. at 321) (“[U]nder rational basis review, the court is obliged ‘to accept

a legislature’s generalizations even when there is an imperfect fit between means and

ends.’”); Jackson v. Jamrog, 411 F.3d 615, 620 (6th Cir. 2005) (same). That is, if the

statute appears to promote the identified public purpose, claims that the statute is

over- or under-inclusive in pursuing that purpose are non-starters. The Sixth Circuit

has likewise instructed that in undertaking the analysis, the focus is on the applica-

tion of the statute to those covered overall; the mere fact that application of a statute

“in practice … results in some inequality” in particular cases is insufficient to support

a rational basis challenge. Id. (citing Heller, 509 U.S. at 321).

Here, as the Ohio Supreme Court observed, there are many rational bases sup-

porting the construct that Section 4123.35(O) adopts, under which all enrolled sub-

contractors and the general contractor on a large project (the statute is limited to

construction projects where the costs of construction are likely to exceed $100 million,

or as to certain public projects, $25 million), see id., are essentially treated as a single

employer. As the Ohio Supreme Court noted, that allows a general contractor to band

together with subcontractors to bid for large projects on a level playing field with

integrated contractors (i.e., contractors who directly employ workers in the various

trades) from a workers’ compensation cost perspective. See Stolz II, 155 Ohio St. 3d

at 572–73. As a result, the number of potential bidders on such projects likely will

increase, presumably resulting in more favorable bids, and thus lower construction

costs in the State, thereby presumably promoting economic development. Moreover,

many of the construction projects that the statute addresses likely will be public pro-

jects (especially given the lower dollar threshold for such projects), meaning that a

reduction in construction costs will save taxpayers dollars. One can scarcely dispute

(and to Stolz’s credit, he did not dispute) that either or both of these are legitimate

public purposes. And, with that out of the way, there is nothing much left to a poten-

tial rational basis challenge. Perhaps such goals could have been pursued equally

well, or even better, by other mechanisms, and the statute may well be over- or under-

inclusive in the projects that it covers (there is nothing magical about the specified

thresholds), but that is insufficient to create a plausible constitutional claim.

Nor can Stolz address that shortcoming, as he sought to do at argument, by

asserting that the resulting statutory structure resulted in an allegedly inequitable

result for him on the facts here. The question under rational basis is not whether a

statute provides the most equitable result in all individual cases, but rather whether

it appears to pursue a legitimate public purpose in a non-arbitrary fashion. Jackson,

411 F.3d at 620. This one does.

Similarly, Stolz does not advance his cause by noting that this case is at the

motion to dismiss stage, not the summary judgment stage. The issue here is a purely

legal issue. Additional facts will not, indeed cannot, change any aspect of the consti-

tutional analysis. For example, the purposes set forth above may not have even been

among those that the Ohio General Assembly actually considered in enacting the law,

and discovery may potentially reveal that fact, but that would not matter. As already

noted, the public purpose that satisfies the rational basis standard need not in fact

have been the real purpose. Nor would additional information on the alleged means-

end fit between this statute and the hypothesized goal change the analysis. It is at

least plausible, in fact more than plausible here, that the statute promotes the above-

identified purposes, and that fact, as a matter of law, prevents Stolz from pleading a

viable rational-basis due-process challenge.

C. Fourteenth Amendment Equal Protection.

Finally, Stolz argues that he has a potentially viable claim that the statute

violates his Equal Protection rights under the Fourteenth Amendment. This argu-

ment, too, fails as a matter of law.

To start, to receive any form of heightened scrutiny for an Equal-Protection-

based challenge to a state statute, a party must show that the statute discriminates

either on the basis of a suspect classification or based on the exercise of a fundamental

right. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 16 (1973) (listing

cases in footnotes 39 and 40). Stolz can show neither.

There is no suspect classification. The statute differentiates between those who

work for enrolled subcontractors (who are barred from suing any other enrolled sub-

contractor) and those who do not. There is no plausible argument that this is a “sus-

pect classification,” and thus a statue creating the classification is not subject to

heightened review. Then, for the same reasons that the statute survives rational ba-

sis review on the due process claim, it also survives such review under the Equal

Protection Clause.

Nor does Stolz fare any better with his argument that the statute should re-

ceive strict scrutiny review as it “encroaches on a fundamental right.” (Pl.’s Opp. to

Mot. to Dismiss, Doc. 113, at #1113) (quoting Obergefell v. Wymyslo, 962 F. Supp. 2d

968, 978 (S.D. Ohio 2013)). The “fundamental right” that he raises is once again the

“right to a trial by jury.” But for all the reasons discussed above, there is no such right

at issue here. Accordingly, the alleged “right to trial by jury” is no more effective as

support for a putative Equal Protection claim than it was as an independent Seventh

Amendment challenge. Thus, once again the statute receives rational basis review,

which it survives as a matter of law.

Tellingly, Stolz’s own opposition to the motion to dismiss acknowledges that

the Ohio legislature is free to substitute a workers’ compensation scheme for what-

ever pre-existing common law right an employee otherwise may have had against his

employer.1 (Pl.’s Opp. to Mot. to Dismiss at #1115). Essentially, the State of Ohio has

chosen to substitute a non-fault-based compensation scheme in this setting for a

fault-based one, and to limit the parties who an injured person can sue. As the Ohio

Supreme Court observed, the framework reflects a compromise in which injured par-

ties “give up their common-law remedy and accept possibly lower monetary recovery,

but with greater assurance that they will receive reasonable compensation for their

injury.” Stolz II, 155 Ohio St. 3d at 572.

But, having conceded that Ohio is free to make that substitution in general,

Stolz has no meaningful constitutional argument left. If the Ohio General Assembly

is free to provide non-fault-based recovery for employees in exchange for extinguish-

ing claims against employers, why would it not be free to likewise extinguish claims

against other enrolled subcontractors, so long as the employee receives that same

form of recovery? Some states, for example, have adopted non-fault-based regimes for

auto insurance, in which a car accident victim has a contractual cause of action solely

against his or her own insurer for damages caused by an accident, even if the accident

was another driver’s fault. The substitution of a non-fault-based liability scheme, and

an accompanying limitation on whom one may sue, cannot be said, as a general mat-

ter, to violate the U.S. Constitution, and Stolz has identified nothing unique about

the context here (workplace injury caused by a non-employer) that precludes the Ohio

1 For a discussion of the history of workplace liability rules, see generally, Richard A. Epstein, The Historical Origins

and Economic Structure of Workers’ Compensation Law, 16 GA. L. REV. 775 (1982) (hereinafter “Historical Ori-

gins”).

General Assembly from adopting a non-fault-based regime as to the Enrolled Subcon-

tractor Parties.

Indeed, in Mountain Timber and White, the United States Supreme Court ad-

dressed very similar constitutional issues. Employers argued that abolishing fault-

based (and often quite limited, see generally Historical Origins, supra n.2) common

law actions, and instead imposing broad non-fault-based liability against the em-

ployer, was an unconstitutional taking; employees separately complained that the

new non-fault-based recovery mechanisms were insufficiently compensatory and thus

unconstitutional. In response, the Court observed the following:

The close relation of the rules governing responsibility as

between employer and employee to the fundamental rights

of liberty and property is, of course, recognized. But those

rules, as guides of conduct, are not beyond alteration by

legislation in the public interest. No person has a vested

interest in any rule of law, entitling him to insist that it

shall remain unchanged for his benefit.

White, 243 U.S. at 197–98 (emphasis added). That observation remains equally apro-

pos today. And the fact that the Ohio General Assembly has expanded that “altera-

tion” of common law rules to extend past employers to include enrolled subcontractors

on large construction projects does not change that underlying point.

In sum, Stolz has failed to identify any plausible legal theory supporting his

constitutional challenge to Section 4123.35(O). And under that statute, as interpreted

by the Ohio Supreme Court, Stolz has no cause of action against the Enrolled Sub-

contractor Parties. Accordingly, the Court dismisses Stolz’s action against those par-

ties with prejudice.

IV. CONCLUSION

For the reasons stated more fully above, the Court GRANTS the Enrolled Sub-

contractor Parties’ Motion to Dismiss (Doc. 111) and hereby DISMISSES WITH

PREJUDICE Stolz’s claims against the Enrolled Subcontractor Parties.

SO ORDERED.

February 13, 2020 \

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

22,