The opinion
[This opinion has been published in Ohio Official Reports at 82 Ohio St.3d 470.]
CONLEY ET AL.; NATIONWIDE INSURANCE COMPANIES/NATIONWIDE
PROPERTY AND CASUALTY INSURANCE COMPANY, APPELLANT, v. BROWN
CORPORATION OF WAVERLY, INC., APPELLEE.
[Cite as Conley v. Brown Corp. of Waverly, Inc., 1998-Ohio-194.]
Employer and employee—Liability of employer for intentional tortious conduct—
Standing to file suit against employer alleging that employer committed
an intentional tort leading to employee’s injury, disease, or death.
1. An employer is not immune from civil liability for employee injuries,
disease, or death caused by the employer’s intentional tortious conduct in
the workplace, since such conduct necessarily occurs outside the
employment relationship. (Blankenship v. Cincinnati Milacron Chemicals,
Inc. [1982], 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, and its
progeny, approved and followed.)
2. A suit against an employer alleging that the employer committed an
intentional tort leading to an employee’s injury, disease, or death may be
maintained by the employee or his or her legal representative, an assignee
of the right of action against the employer, or any other person or entity with
a statutory or common-law right to recover against the employer, including
a third-party tortfeasor with a statutory or common-law claim for
contribution or for indemnification, or the subrogee of the third-party
tortfeasor’s rights or claims. (Taylor v. Academy Iron & Metal Co. [1988],
36 Ohio St.3d 149, 522 N.E.2d 464, overruled.)
(No. 97-1143—Submitted April 21, 1998—Decided August 5, 1998.)
APPEAL from the Court of Appeals for Pike County, No. 96CA583.
__________________
SUPREME COURT OF OHIO
{¶ 1} The following relevant matters can be gleaned from the record and
from the briefs and supplements of the parties.
{¶ 2} In 1992, David Conley worked as a contract laborer for Brown
Corporation of Waverly, Inc. (“Brown”), appellee, a business engaged in the
operation of machine presses for manufacturing wholesale parts and supplies. In
October 1992, Conley was severely injured while operating a machine press at his
place of employment. The injuries occurred when the press suddenly and
unexpectedly activated while Conley was placing steel sheets into the machine as
part of his assigned job duties.
{¶ 3} In July 1993, Conley and his wife, Donna Conley, filed a complaint
in the Court of Common Pleas of Pike County against Brown and two “John Doe”
defendants. This case was assigned No. 228-CIV-93 in the common pleas court.
In June 1994, the Conleys filed an amended complaint in case No. 228-CIV-93,
naming, as defendants, Brown, Hitachi Zosen Clearing, Inc., IDC Corporation, and
Rexcon, Inc. Apparently, Hitachi was the manufacturer of the machine press, and
IDC and Rexcon were manufacturers of certain control systems or devices that had
been used in connection with the operation of the press. In the amended complaint,
David Conley sought recovery against Brown for employer intentional tort.
Additionally, he sought recovery against the remaining defendants for products
liability. Donna Conley sought recovery for her loss of consortium. In the amended
complaint, the Conleys alleged that the defendants were jointly and severally liable
for compensatory damages.
{¶ 4} In August 1994, the Conleys voluntarily dismissed their action against
Brown without prejudice. In 1995, various cross-claims that had been filed by the
defendants against Brown were voluntarily dismissed without prejudice, including
a cross-claim that had been filed by Rexcon against Brown for contribution.
Apparently, at some point, the Conleys also dismissed their claims against IDC and
Hitachi, but the case proceeded on the Conleys’ claims against Rexcon.
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January Term, 1998
{¶ 5} The Conleys eventually refiled their suit against Brown in August
1995, but did not serve Brown until December 1995. This new case was assigned
No. 280-CIV-95 in the common pleas court. Brown was the only defendant named
in the action. Additionally, in December 1995, Nationwide Insurance Companies
Nationwide Property and Casualty Insurance Company (“Nationwide”), appellant,
Rexcon’s liability insurance carrier, paid the Conleys $397,500 in settlement of the
litigation in case No. 228-CIV-93. In exchange for the payment, the Conleys signed
a document entitled “Covenant Not to Proceed,” whereby they expressly agreed “to
cease suing and not to initiate new legal action” against Rexcon, Nationwide,
Brown, and others. As part of the agreement, the Conleys assigned to Nationwide
their causes of action against Brown for employer intentional tort and loss of
consortium.1 Also, in December 1995, Nationwide, as subrogee of Rexcon’s rights
and as assignee of the Conleys’ causes of action against Brown, moved to intervene
as a plaintiff in case No. 280-CIV-95 to assert claims against Brown for
“contribution and/or indemnity.” The trial court granted Nationwide’s motion to
intervene.
{¶ 6} Thereafter, on January 24, 1996, Nationwide, as an intervening
plaintiff in case No. 280-CIV-95, filed a complaint against Brown. Subsequently,
1. The “Covenant Not to Proceed” was signed by the Conleys and by their attorney. The agreement
provides, in part:
“[W]e, DAVID CONLEY and DONNA CONLEY, individually and as husband and wife
do hereby acknowledge receipt of [$397,500] which amount has been accepted as sole consideration
for their covenant to cease suing and not to initiate new legal action against [inter alia, Rexcon,
Nationwide, Brown] or any other person, corporation, association or partnership which might be
charged with responsibilities for damages to the Undersigned, and the consequences flowing
therefrom, resulting, or to result, or which might result from the accident subject of the action filed
by David Conley and Donna Conley known as Case Number 228-CIV-93 in the Court of Common
Pleas, Pike County, Ohio and for which the Undersigned claims the said persons or parties are
legally liable in damage; but which legal liabilities and damages have been disputed and denied;
David Conley and Donna Conley hereby assign their claims for damages set forth in the complaint
in Pike County Court of Common Pleas case number 280-CIV-95 to Nationwide * * *[.]”
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the Conleys dismissed their action against Brown in case No. 280-CIV-95,2 and
also dismissed their action against Rexcon in case No. 228-CIV-93.
{¶ 7} In its complaint in case No. 280-CIV-95, Nationwide set forth the
following relevant allegations and prayer for relief:
“8. [Brown] did not formally instruct or train Mr. Conley in the safe
operation of any particular press * * * [including the LP5 press he was operating at
the time of his injury].
“9. The control system activation devices [manufactured and designed by
Rexcon] of the LP5 press which Mr. Conley was operating at the time of his injury
had been altered by [Brown], or [Brown] knew of their alteration.
“10. [Brown] violated the standards of the Occupational Safety and Health
Administration by the manner in which it installed or used the control system
activation devices.
“11. [Brown] failed to install safety devices necessary for the safe operation
of the LP5 press or used said press knowing that such safety devices had not been
installed or were not functioning.
“12. [Brown] was aware of the dangerous conditions * * *; [Brown] knew
that * * * Mr. Conley * * * was substantially certain to be harmed; and [Brown],
under such circumstances and with such knowledge, did act to require Mr. Conley
to continue to perform the dangerous task of operating the LP5 press.
“13. As a direct and proximate result of [Brown’s] actions or failure to act,
Mr. Conley sustained * * * [severe and debilitating injuries].
2. The notice of dismissal in case No. 280-CIV-95 states:
“David A. Conley and Donna K. Conley hereby give notice that they dismiss their within
actions against the Defendant, Rexcon, Inc., with prejudice, pursuant to [Civ.R. 41(A)].
“The claims of [Nationwide] against the Defendant, Rexcon, Inc., shall remain pending.”
Rexcon was not a defendant in case No. 280-CIV-95. Brown was the only named
defendant in that case. Thus, it appears that the above-quoted notice of dismissal was intended to
dismiss the Conleys’ actions against Brown — i.e., the reference to Rexcon in the notice of dismissal
was an error. In any event, the Covenant Not to Proceed appears to have required the Conleys to
dismiss their complaint against Brown.
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January Term, 1998
“14. In Case No. 228-CIV-93, in Pike County, Ohio, [the Conleys] sued,
among others, Rexcon, for the injuries and damages caused the Conleys as a result
of [the personal injuries sustained by Mr. Conley].
“***
“16. During the litigation and prior to judgment, Nationwide, on behalf of
Rexcon, entered into a settlement agreement with [the Conleys] * * *.
“17. Pursuant to the terms of the agreement, in consideration of
$397,500.00, [the Conleys] released all claims arising out of the accident, subject
of Case No. 228-CIV-93 against Defendant, [Brown] and Rexcon.
“18. The consideration of $397,500.00 which Nationwide paid * * * is in
excess of Rexcon’s proportionate share of the common liability of Rexcon and
[Brown].
“19. Pursuant to [former R.C. 2307.31(C)], Nationwide is subrogated to
Rexcon’s right of contribution from [Brown] to the extent of the amount it paid in
excess of Rexcon’s proportionate share of the common liability.
“WHEREFORE, [Nationwide] demands judgment against [Brown] for
$397,500.00 or, in the alternative, that the Court cause the common liability of
Rexcon and [Brown] to be apportioned and order judgment to Nationwide in the
amount equal to [Brown’s] proportionate share of the common liability * * *.”
{¶ 8} Brown filed an answer to Nationwide’s complaint and asserted, as one
of its defenses, that Nationwide’s claims were “barred by the Ohio Workers’
Compensation laws.” Following a period of discovery, Brown moved for summary
judgment on the merits of Nationwide’s claims. However, during a May 1996
pretrial conference, a question arose as to whether Nationwide could maintain the
action, since Brown’s liability to Nationwide (if any) was predicated on Brown’s
alleged activities in having committed an employer intentional tort. Specifically,
at the pretrial conference, counsel for Nationwide raised the issue whether Taylor
v. Academy Iron & Metal Co. (1988), 36 Ohio St.3d 149, 522 N.E.2d 464, was, as
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an initial matter, dispositive of Nationwide’s claims. Following the pretrial
conference, Brown filed a “supplemental memorandum” in support of its motion
for summary judgment, claiming that Nationwide’s suit was barred by Taylor.
Nationwide responded to the supplemental memorandum.
{¶ 9} On July 8, 1996, the trial court, relying on Taylor, dismissed
Nationwide’s entire complaint, finding that Nationwide had no standing to pursue
an employer intentional tort claim against Brown. The trial court never reached the
issues that had been raised by Brown in its original motion for summary judgment
on the merits of Nationwide’s claims.
{¶ 10} On appeal, the court of appeals, by a divided vote, affirmed the
judgment of the trial court. The court of appeals’ majority held that Taylor barred
Nationwide’s suit, stating:
“Nationwide sought to recover on three theories: (1) contribution; (2)
indemnification; (3) assignment of the Conleys’ intentional tort claim to
Nationwide. Nationwide stands in the place of the third-party tortfeasor Rexcon.
We find that each of Nationwide’s theories attempts to assert the Conleys’
intentional tort claim against Brown. Taylor holds at paragraph one of the syllabus
that a third-party tortfeasor has no standing to assert an employee’s intentional tort
claim against an employer. We therefore reluctantly conclude that the Supreme
Court’s decision in Taylor bars all of Nationwide’s claims because Nationwide has
no standing to raise an employee’s intentional tort claim against an employer. * *
*
“Our reluctance to follow Taylor is based on * * * [the] well-reasoned
dissent [in Taylor] as well as policy concerns. The [Taylor] majority’s rationale for
finding that no standing exists for a third-party tortfeasor is less than convincing.
We believe that the immunity provided to employers by workers’ compensation
law has no place in an intentional tort analysis. * * *
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January Term, 1998
“If this were an issue of first impression, our balance would weigh in favor
of [allowing] contribution and indemnity and encouraging settlements for injured
victims. * * * We would also find that the immunity provided to complying
employers by workers’ compensation is irrelevant when an intentional tort is
asserted. However, the Ohio Supreme Court has spoken on this issue and we, as
an inferior court, must adhere to the Supreme Court’s position. We therefore affirm
the judgment of the trial court. The Supreme Court’s decision in Taylor bars
Nationwide’s action.”
{¶ 11} Conversely, Judge Harsha of the court of appeals, in a separate
dissenting opinion, concluded that Taylor did not mandate affirmance of the trial
court’s judgment in this case. Specifically, Judge Harsha argued that this court’s
holding in Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 576 N.E.2d 722,
paragraph one of the syllabus (an intentional tort committed by an employer against
an employee necessarily occurs outside the scope of the employment relationship),
represented a repudiation of Taylor’s rationale that the workers’ compensation
statutes insulate an employer from all common-law claims of liability. Thus, Judge
Harsha determined that Taylor had been overruled sub silentio in Brady.
Additionally, Judge Harsha concluded that Nationwide should have been allowed
to proceed “on the assignment theory,” i.e., as assignee of the Conleys’ claims
against Brown.
{¶ 12} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
__________________
Arter & Hadden and Irene C. Keyse-Walker; Mollica, Gall, Sloan & Sillery
Co., L.P.A., Steven T. Sloan and James D. Sillery, for appellant.
Lindhorst & Dreidame and James M. Moore, for appellee.
__________________
DOUGLAS, J.
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SUPREME COURT OF OHIO
{¶ 13} The case at bar presents us with an excellent opportunity to revisit
the holdings in Taylor, 36 Ohio St.3d 149, 522 N.E.2d 464, and to expressly
overrule Taylor as an anomaly of Ohio law. For the reasons that follow, we reverse
the judgment of the court of appeals, vacate the judgment of the trial court, and
remand this cause to the trial court for further proceedings.
{¶ 14} In Taylor, Luke Scargill and Bobby Lee Taylor were employees of
a metal manufacturing concern known as Alumax, Inc. Scargill was injured and
Taylor was killed as a result of an explosion that occurred while aluminum scrap
was being fed into a crusher machine at Alumax. Scargill and the administrator of
Taylor’s estate filed suit against Academy Iron & Metal Company (“Academy
Iron”), the supplier of the aluminum scrap. The plaintiffs sought recovery against
Academy Iron for products liability. Academy Iron then filed a third-party
complaint against Alumax, alleging that Scargill’s personal injuries and Taylor’s
death had been caused by the intentional tortious acts of the employer. The third-
party complaint sought indemnification from Alumax to Academy Iron for any
damages for which Academy Iron was found to be liable in the underlying actions
of Scargill and Taylor.
{¶ 15} Alumax moved to dismiss the third-party complaint for failure to
state a claim. Academy Iron later sought leave to file an amended third-party
complaint to add a claim for contribution. The amended third-party complaint was
filed along with the motion for leave to amend. Thereafter, the trial court dismissed
Academy Iron’s third-party complaint, apparently holding that Academy Iron had
no standing to bring an action against Alumax due to the immunity provided to
complying employers under R.C. Chapter 4123, Ohio’s Workers’ Compensation
Act. The dismissal of the third-party complaint (in which Academy Iron had
asserted only a right to indemnification) implicitly disposed of the claim for
contribution that Academy Iron had attempted to assert in its amended third-party
complaint.
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January Term, 1998
{¶ 16} Academy Iron settled the claims in the underlying actions by Scargill
and the administrator of Taylor’s estate, but appealed the dismissal of the third-
party complaint. On appeal, the court of appeals in Taylor affirmed the judgment
of the trial court, finding that the third-party complaint was precluded by former
R.C. 4121.80. Upon further appeal, this court, by a divided (five-to-two) vote,
affirmed the judgment of the court of appeals.
{¶ 17} At the outset of this court’s decision in Taylor, the Taylor majority
noted that, pursuant to Section 35, Article II of the Ohio Constitution and R.C.
4123.74, employers who comply with Ohio’s workers’ compensation laws are
immune from damages for employee injuries that arise in the course of the
employment. Id. at 150-152, 522 N.E.2d at 466-467. The majority observed that
“[a]s these provisions [i.e., Section 35, Article II and former R.C. 4123.74]
explicate, the General Assembly, in carrying out its constitutional mandate and
adopting a workers’ compensation law, provided complying employers with
immunity from damages for employee injuries that arise in the course of
employment.” Id. at 152, 522 N.E.2d at 467. The Taylor majority also noted that
an employer is not immune from damages for employee injuries caused by the
intentional tortious conduct of the employer, since such conduct falls outside the
scope of employment and workers’ compensation law. Id., citing Blankenship v.
Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504,
433 N.E.2d 572. However, following a brief discussion of the holding in
Blankenship, the court in Taylor found that Academy Iron, which the court labeled
a “third-party tortfeasor,” lacked standing to pursue the third-party complaint for
indemnification. Id. at 152-153, 522 N.E.2d at 467-468.
{¶ 18} The Taylor court reached its conclusion on the issue of standing
based on a single statement in Blankenship that “ ‘an employee may resort to a civil
suit for damages.’ ” (Emphasis added.) Taylor at 152, 522 N.E.2d at 467, quoting
Blankenship at 613, 23 O.O.3d at 508, 433 N.E.2d at 576. Specifically, the Taylor
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majority interpreted that statement as barring suit by anyone other than the
employee or the employee’s legal representative. Id. at 152, 522 N.E.2d at 468.
Thus, the court in Taylor concluded that third-party tortfeasors have no standing to
bring a civil suit against an employer “alleging that the employer committed
intentional torts leading to an employee’s work-related death, disease, or injury.”
Id. at 153, 522 N.E.2d at 468. The Taylor court also attempted to bolster its
conclusion in this regard based on the immunity granted to complying employers
under Ohio’s workers’ compensation law. Id. at 150-153, 522 N.E.2d at 466-468.
Additionally, the court went on to hold that Academy Iron could not recover from
Alumax on any theory of implied or equitable indemnification, since Alumax had
never expressly waived immunity from suit stemming from Section 35, Article II
of the Ohio Constitution and R.C. 4123.74. Id. at 153-154, 522 N.E.2d at 468-470.
Therefore, the court in Taylor held, at paragraphs one through three of the syllabus:
“1. Only an employee or his legal representative, not a third-party
tortfeasor, may bring a civil suit against an employer alleging that the employer
committed an intentional tort leading to an employee’s work-related death, disease,
or injury. (Blankenship v. Cincinnati Milacron Chemicals, Inc. [1982], 69 Ohio
St.2d 608, 614, 23 O.O.3d 504, 508, 433 N.E.2d 572, 577, certiorari denied [1982],
459 U.S. 857, 103 S.Ct. 127, 74 L.Ed.2d 110, followed.)
“2. A third-party tortfeasor has no standing to bring an indemnification
claim against an employer, who is acting in compliance with the Ohio workers’
compensation law, for damages suffered by an employee in the course of or arising
out of his employment.
“3. Relief from common-law liability under the Workers’ Compensation
Act extends to cases in which a third-party tortfeasor, having paid damages to an
employee or his estate, seeks indemnity from the employer on the ground that the
liability of the employer is primary or active and the liability of the third-party
tortfeasor is secondary or passive.”
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January Term, 1998
{¶ 19} The dissent in Taylor pointed out an array of problems and
inconsistencies with the rationale and holdings of the majority opinion in that case.
Taylor, 36 Ohio St.3d at 155-163, 522 N.E.2d at 470-477 (Douglas, J., dissenting).
The dissent noted, among other things, that the majority in Taylor had misused a
statement from Blankenship to reach a conclusion that was absolutely inconsistent
with the underpinnings of Blankenship and its progeny. Taylor at 157-158, 522
N.E.2d at 472-473. The Taylor dissent took issue with the majority’s reliance on
the immunity provided to complying employers under Ohio’s Workers’
Compensation Act, and suggested that it should now be clear “that intentional
misconduct by an employer which results in an injury to his employee is outside
the scope of the Workers’ Compensation Act and that the employer in such cases
is not entitled to the protections afforded by the Act.” Id. at 157-158, 522 N.E.2d
at 472. Likewise, the dissent in Taylor noted that “[i]f the conduct of [Alumax]
was indeed intentional, an assumption that the majority acknowledges must be
made, then the protections of the workers’ compensation system have no relevance
whatsoever.” Id. at 158, 522 N.E.2d at 472. The dissent concluded that Academy
Iron’s amended third-party complaint had stated a claim for contribution under
former R.C. 2307.31, as well as a claim for indemnity. Id. at 157-159, 522 N.E.2d
at 471-473. Additionally, the dissent in Taylor went on to address the
constitutionality of former R.C. 4121.80 (an issue not decided by the Taylor
majority), and concluded that the statute represented an invalid exercise of
legislative authority. Id. at 161-162, 522 N.E.2d at 475-476.
{¶ 20} The following passage from the Taylor dissent dealt with issues
concerning former R.C. 4121.80, but the passage adequately summarizes the
rationale of the entire dissent that employers have no immunity or special protection
from civil liability for employee injuries that are caused, in whole or in part, by the
intentional tortious conduct of the employer:
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“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 [Article II of the Ohio Constitution] and by the
[Workers’ Compensation 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.” (Emphasis sic.) Id., 36 Ohio
St.3d at 162, 522 N.E.2d at 476 (Douglas, J., dissenting).
{¶ 21} In Brady, 61 Ohio St.3d 624, 576 N.E.2d 722, this court adopted the
rationale of the above-quoted passage from the Taylor dissent in holding that
former R.C. 4121.80 was, in fact, unconstitutional. Brady at 634, 576 N.E.2d at
729, quoting Taylor at 162, 522 N.E.2d at 476 (Douglas, J., dissenting). Brady
recognized that employer intentional torts “will always take place outside” the
employment relationship. Brady at 634, 576 N.E.2d at 729. Brady does not,
however, expressly or impliedly overrule Taylor. The constitutionality of former
R.C. 4121.80 was not addressed by the Taylor majority, and Brady did not address
the issue whether a third-party tortfeasor has standing to bring an action against an
employer for intentionally tortious conduct that injures an employee. Nevertheless,
Brady does effectively repudiate the rationale of Taylor, insofar as Taylor was
predicated on the theory that workers’ compensation statutes can insulate an
employer from common-law liability for damages caused by the employer’s
intentional tortious conduct in the workplace. Specifically, Brady, like the dissent
in Taylor, recognizes that an intentional tort committed by an employer against an
employee necessarily occurs outside the scope of the employment relationship and,
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thus, outside the realm of any protections afforded to complying employers by
Ohio’s workers’ compensation law. Brady at paragraph one of the syllabus.
{¶ 22} To apply Taylor in the case at bar would preclude Nationwide, as
subrogee of the rights of a “third-party tortfeasor,” or as assignee of the Conleys’
claims, from maintaining suit against Brown for Brown’s alleged activity in having
committed an intentional tort in the workplace and having caused or contributed to
the injuries sustained by David Conley. This is so, of course, because Taylor holds,
among other things, that “[o]nly an employee or his legal representative, not a third-
party tortfeasor, may bring a civil suit against an employer alleging that the
employer committed an intentional tort leading to an employee’s work-related
death, disease, or injury.” Id., 36 Ohio St.3d 149, 522 N.E.2d 464, at paragraph
one of the syllabus. Nationwide is neither the “employee” nor the employee’s
“legal representative” within the meaning of Taylor. Rather, Nationwide is a
“third-party tortfeasor,” insofar as Nationwide stands in the place of Rexcon as
subrogee of Rexcon’s rights against Brown. Furthermore, according to the holdings
and rationale of Taylor, Nationwide would have no standing to maintain claims
against Brown because of the immunity conferred upon complying employers
under Ohio’s Workers’ Compensation Act.
{¶ 23} However, upon a careful review of Taylor, the dissent in Taylor, and
our decision in Brady, it is now absolutely clear to us that Brady and the dissent in
Taylor are consistent with Ohio law and the case of Blankenship and its progeny,
whereas the majority opinion in Taylor is not. We find that Taylor was bad law
when it was first decided, and that it remains bad law today. The rationale in Taylor
for finding a lack of standing for “third-party tortfeasors” is, as the court of appeals’
majority recognized, “less than convincing.” Employer immunity under Ohio’s
Workers’ Compensation Act has no relevance whatsoever where, as here, the
employer has allegedly committed an intentional tort against an employee. Because
employer intentional torts “will always take place outside” the employment
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relationship (Brady, 61 Ohio St.3d at 634, 576 N.E.2d at 729), workers’
compensation law has no connection with suits alleging an employer intentional
tort. We can perceive of no legitimate reason why Brown, simply because it is an
employer, should be absolved from civil liability to Nationwide if, in fact, an
intentional tort was committed. An employer who commits an intentional tort
against an employee in the workplace is to be treated the same as other persons or
entities that may be called upon to answer for the injurious consequences of their
own tortious conduct.
{¶ 24} Accordingly, in keeping with the rationale of Blankenship, 69 Ohio
St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, and its progeny, we now hold that an
employer is not immune from civil liability for employee injuries, disease, or death
caused by the employer’s intentional tortious conduct in the workplace, since such
conduct necessarily occurs outside the employment relationship. Additionally, we
hold that a suit against an employer alleging that the employer committed an
intentional tort leading to an employee’s injury, disease, or death may be
maintained by the employee or his or her legal representative, an assignee of the
right of action against the employer, or any other person or entity with a statutory
or common-law right to recover against the employer, including a third-party
tortfeasor with a statutory or common-law claim for contribution or for
indemnification, or the subrogee of the third-party tortfeasor’s rights or claims.
Taylor is therefore overruled.
{¶ 25} In the case at bar, Nationwide’s status as subrogee of Rexcon’s
rights, and as assignee of the Conleys’ claims, clearly provides the basis for
Nationwide’s interest and standing to maintain suit against Brown for all or part of
the proceeds that have been paid by Nationwide to the Conleys on behalf of Rexcon.
Nationwide, as assignee of the Conleys’ causes of action for intentional tort, is
entitled to assert claims for full recovery against Brown and, also, as subrogee of
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Rexcon’s right, if any, to indemnification, including implied or equitable
indemnification of the type at issue in Taylor, 36 Ohio St.3d 149, 522 N.E.2d 464.
{¶ 26} Moreover, insofar as Nationwide’s complaint was based on an
asserted right to contribution, we find that former R.C. 2307.31 and 2307.32(C)
(now R.C. 2307.32 and 2307.33[C]) provided a clear basis for Nationwide’s interest
and standing to maintain its claims against Brown. Former R.C. 2307.31(A)
provided, in part:
“[W]here two or more persons are jointly and severally liable in tort for the
same injury to person or property or for the same wrongful death, there is a right of
contribution among them even though judgment has not been recovered against all
or any of them. The right of contribution exists only in favor of a tortfeasor who
has paid more than his proportionate share of the common liability, and his total
recovery is limited to the amount paid by him in excess of his proportionate share.
No tortfeasor is compelled to make contribution beyond his own proportionate
share of the common liability. There is no right of contribution in favor of any
tortfeasor who intentionally has caused or intentionally has contributed to the injury
or loss to person or property or the wrongful death.”
{¶ 27} Former R.C. 2307.31(B) provided that a tortfeasor who entered into
a settlement with a claimant was not entitled to recover contribution from another
tortfeasor whose liability was not extinguished by the settlement. Former R.C.
2307.31(C) permitted a liability insurer that discharged the obligation of a
tortfeasor to be subrogated to the tortfeasor’s right of contribution “to the extent of
the amount it has paid in excess of the tortfeasor’s proportionate share of the
common liability.” Former R.C. 2307.31(G) and 2307.32(C) permitted
enforcement of the right to contribution by separate action.
{¶ 28} Here, Nationwide settled with the Conleys on behalf of Rexcon. The
Conleys assigned claims to Nationwide as part of the settlement. The covenant
obtained by Nationwide in connection with the settlement may be viewed as having
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SUPREME COURT OF OHIO
extinguished Brown’s liability, if any, to the Conleys. Nationwide may therefore
be entitled to contribution from Brown to the extent of the amount Nationwide has
allegedly paid in excess of Rexcon’s proportionate share of the common liability of
Brown and Rexcon.
{¶ 29} Nevertheless, Brown protests that Taylor has the effect of advancing
important public policy interests and that Taylor should be preserved to bar claims
such as those advanced by Nationwide. Specifically, Brown argues that “[i]n its
decision in Taylor, supra, this Court determined that employer intentional tort
claims are personal to the employee. If the employee chooses not to pursue such a
claim, no one else can do so. That decision provides an important check on
frivolous lawsuits mounted by opportunists and, thus, satisfies policy concerns
raised by the availability of an employer intentional tort theory.” However, the
solution to such “frivolous” lawsuits is in the use of a Civ.R. 56 summary judgment
motion challenging the merits of the claims or, perhaps, through the use of Civ.R.
11. The appropriate solution is not (and cannot be) to bar the courthouse door to
possibly meritorious claims of intentional tort.
{¶ 30} Brown also argues that Taylor is consistent with the wishes of the
General Assembly “to rein in, not expand, employer intentional tort as a theory of
recovery by injured workers beyond the workers’ compensation system.” Brown’s
argument concerning the desires of the General Assembly is apparently based on
R.C. 2745.01 and former R.C. 4121.80. However, former R.C. 4121.80 was struck
down in Brady, 61 Ohio St.3d 624, 576 N.E.2d 722, paragraph two of the syllabus,
as an invalid exercise of legislative authority.3 Additionally, as Brown readily
concedes, R.C. 2745.01, which became effective November 1, 1995, is not
3. We note, in passing, that the Court of Appeals for the Third Appellate District recently
determined that R.C. 2745.01 is unconstitutional. Johnson v. BP Chemicals, Inc. (Nov. 18, 1997),
Allen App. No. 1-97-32, unreported, 1997 WL 729098, discretionary appeal and cross-appeal
allowed (1998), 81 Ohio St.3d 1500, 691 N.E.2d 1061.
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January Term, 1998
applicable in this case and, thus, we refrain from any further comment concerning
that statute or the expression of legislative intent accompanying the enactment.
{¶ 31} Accordingly, for the foregoing reasons, we reverse the judgment of
the court of appeals, vacate the judgment of the trial court, and we remand this
cause to the trial court for further proceedings.
Judgment reversed
and cause remanded.
RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
MOYER, C.J., and LUNDBERG STRATTON, J., concur in the judgment and
syllabus only.
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LUNDBERG STRATTON, J., concurring in judgment and syllabus only.
{¶ 32} By this decision, we have not determined the underlying issue of
whether an intentional tort in fact occurred. Brown alleges that this is only a
products liability case and that the intentional tort action was filed to obtain
discovery in the products liability case. These are issues that remain for the trial
court to resolve before the issue of contribution or indemnity can be reached.
MOYER, C.J., concurs in the foregoing opinion.
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