The opinion
[This opinion has been published in Ohio Official Reports at 88 Ohio St.3d 425.]
DONNELLY ET AL., APPELLANTS, v. HERRON, APPELLEE.
[Cite as Donnelly v. Herron, 2000-Ohio-372.]
Workers’ compensation—R.C. 4123.741 extends immunity to a coemployee,
when.
R.C. 4123.741 extends immunity to a coemployee only when the actionable
conduct occurs “in the course of, and arising out of,” the coemployee’s
employment, within the meaning of that phrase in the Workers’
Compensation Act.
(No. 99-496—Submitted December 15, 1999—Decided May 17, 2000.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 74324.
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{¶ 1} The relevant facts in this case are not in dispute. Plaintiff-appellant,
George F. Donnelly, and defendant-appellee, David C. Herron, were both
employed by Saggio Protective Services, Inc. (“Saggio”), to work as security
guards at the Avis Rental Car parking lot at Cleveland Hopkins Airport. On
October 3, 1994, Herron, who had just completed his 12:00 p.m. to 6:00 p.m. shift
and was leaving the parking lot, backed his automobile into Donnelly, who had just
commenced his 6:00 p.m. to midnight shift and was verifying a customer’s auto
rental paperwork.
{¶ 2} Donnelly received workers’ compensation benefits for his injuries
and then brought suit in negligence against Herron. A derivative claim was brought
by Joan Donnelly for loss of consortium as a result of her husband’s injuries.
Herron moved for summary judgment on the basis of the coemployee immunity
provided in R.C. 4123.741. The trial court denied the motion and then approved a
consent judgment in favor of George and Joan Donnelly, which preserved Herron’s
right to appeal the denial of summary judgment.
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{¶ 3} The court of appeals reversed and remanded, finding that the trial
court should have entered summary judgment in Herron’s favor based on R.C.
4123.741.
{¶ 4} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
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Krembs & Alkire, L.L.P., and Richard C. Alkire, for appellants.
Richard K. Kuepper & Associates and Brian A. Meeker, for appellee.
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ALICE ROBIE RESNICK, J.
{¶ 5} We are asked to determine whether Herron is immune from common-
law tort liability under R.C. 4123.741, which provides:
“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.”
{¶ 6} The pivotal question is which test applies to determine whether the
tortfeasor’s actions are employment-related. Herron claims it is the workers’
compensation test set forth in R.C. 4123.01(C), so that immunity attaches when the
coemployee could have obtained workers’ compensation benefits if he had been
injured. Donnelly claims that the appropriate test is whether, apart from the
workers’ compensation statute, the coemployee’s acts would have rendered the
employer vicariously liable under the doctrine of respondeat superior.
{¶ 7} Professor Larson summarizes the law in this area as follows:
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January Term, 2000
“It must be observed that the immunity attaches to the coemployee only
when the coemployee is acting in the course of employment. This is consistent
with the justification for the immunity just described, since the coemployee’s
employment status does not increase the risk of his causing nonindustrial injuries
to his or her fellow-workers.
“The commonest question that arises in these cases is: which test of ‘course
of employment’ applies? Is it the workers’ compensation test, or the vicarious
liability test? The answer may be dictated by the wording of the immunity clause
itself. In California, for example, under the statutory phrase ‘acting within the
scope of his employment,’ suit is barred against the coemployee only if at the time
of the injury he or she was actively engaged in some service for the employer.
Accordingly, it can readily happen in California—indeed has happened—that in a
marginal course of employment situation an employee will be held to have been
sufficiently within the course of employment to receive workers’ compensation,
but not sufficiently actively engaged in service for his or her employer to enjoy the
immunity from suit conferred by the California Labor Code. Parking lot accidents
are a familiar example of this marginal category, and in one such case, an employee
who was struck by a coemployee’s automobile after work on the employer’s
parking lot was held not barred from suing the coemployee, although the
coemployee had actually been awarded workers’ compensation benefits as for an
injury in the course of employment.
“South Carolina, Nevada and Texas also have adopted the common-law test
of scope of employment, as when in parking lot cases they have ruled that a tort
action against the tortfeasor employee was not barred because under the
circumstances the employer could not have been held liable in tort for the same
injury.
“The more satisfactory test, unless expressly ruled out by statute, is that
adopted by Illinois, New Jersey, Kentucky, Indiana, Oklahoma, and Florida, which
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simply use the regular workers’ compensation course of employment standard for
this purpose. After all, there are troubles and complications enough administering
one course of employment test under the act, without adding a second. By adopting
the compensation test, a court has at hand a ready-made body of cases with which
to dispose of most borderline situations. There is something mildly pathetic about
the statement of a lower New York court, confronted with a run-of-the-mill going-
and-coming-on-the-premises case, when it felt it could not say ‘that merely being
on company premises but still in their automobiles, they had resumed their
employment. At what precise point . . . short of “punching in” may be difficult of
definition or determination.’ The determination would not be in the least difficult
if the court merely followed the well-established going-and-coming rule.”
(Footnotes omitted and ellipsis sic.) 6 Larson’s Workers’ Compensation Law
(1999) 111-12 to 111.14, Section 111.03[3]. See, also, Annotation, Right to
Maintain Direct Action Against Fellow Employee for Injury or Death Covered by
Workmen’s Compensation (1968), 21 A.L.R.3d 845, 1968 WL 15836.
{¶ 8} In Caygill v. Jablonski (1992), 78 Ohio App.3d 807, 818, 605 N.E.2d
1352, 1359, the authority upon which Donnelly primarily relies, the court of appeals
held that a coemployee is not immune from tort liability under R.C. 4123.741,
where, at the time of injury, the coemployee was engaged in horseplay disconnected
from his employment. However, in determining whether the tortfeasor-
coemployee’s actions were employment-related, the court relied on “cases dealing
with * * * the rule and rationale pertaining to whether the injured employee is
entitled to [workers’] compensation when engaged in horseplay.” (Emphasis sic.)
Id., 78 Ohio App.3d at 816, 605 N.E.2d at 1357.
{¶ 9} In fact, the Caygill court relied on Puckett v. Miller (App.1980), 19
O.O.3d 349, 350-351, for the proposition that “ ‘[i]f the employee who commits
the tort is in a position and engaged in an activity which, were he the injured party,
would be “in the course of his employment” then he is an “employee” as defined in
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R.C. 4123.01 and is absolved of liability by R.C. 4123.741.’ ” Id., 78 Ohio App.3d
at 817, 605 N.E.2d at 1358. In Puckett, the court held that a coemployee is immune
from tort liability under R.C. 4123.741, where, at the time of injury, the coemployee
was parking his car in the employer’s parking lot before his own work shift began.
Thus, although well reasoned, Caygill is not supportive of Donnelly’s position.
{¶ 10} Moreover, R.C. 4123.741 does not allow for the scope of
employment test suggested by Donnelly. The definition of “employee” set forth in
R.C. 4123.01(A)(1)(a), as “[e]very person in the service of” a qualifying employer,
is equally applicable to both employees who form the subject of R.C. 4123.741.
Thus, nothing more is required of the employee seeking immunity to be “in the
service of” the employer than is required of the injured employee in obtaining
compensation coverage. In addition, any employee who seeks workers’
compensation benefits must be in the service of a qualifying employer, and if we
held that a coemployee is not in the service of a qualifying employer while driving
in the employer’s parking lot on his way to and from work, we would put in serious
jeopardy the rights of an entire class of injured claimants who seek workers’
compensation benefits under similar circumstances.
{¶ 11} In Marlow v. Goodyear Tire & Rubber Co. (1967), 10 Ohio St.2d
18, 39 O.O.2d 11, 225 N.E.2d 241, syllabus, we held:
“An employee who, on his way from the fixed situs of his duties after the
close of his work day, is injured in a collision of his automobile and that of a fellow
employee occurring in a parking lot located adjacent to such situs of duty and
owned, maintained and controlled by his employer for the exclusive use of its
employees, receives such injury ‘in the course of, and arising out of’ his
employment, within the meaning of that phrase in the Workers’ Compensation Act,
Section 4123.01(C), Revised Code.”
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{¶ 12} The application of this principle has even more force in the present
case because the Avis parking lot was the situs of Herron’s employment. Thus,
Herron was acting in the course of, and arising out of, his employment with Saggio
when he negligently injured Donnelly, and is entitled to immunity under R.C.
4123.741.1
{¶ 13} Accordingly, we hold that R.C. 4123.741 extends immunity to a
coemployee only when the actionable conduct occurs “in the course of, and arising
out of,” the coemployee’s employment, within the meaning of that phrase in the
Workers’ Compensation Act.
{¶ 14} The judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., F.E. SWEENEY, COOK and LUNDBERG STRATTON, JJ., concur.
DOUGLAS and PFEIFER, JJ., concur separately.
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DOUGLAS, J., concurring.
{¶ 15} I concur in the well-reasoned opinion and in the judgment of the
majority. I write separately only to make the point that in this case, or as soon as
is practicable hereafter, we should revisit our decision in State Farm Mut. Auto. Ins.
Co. v. Webb (1990), 54 Ohio St.3d 61, 562 N.E.2d 132. While not directly pertinent
to the facts and decision in the case now before us, the facts and outcome do,
ultimately, raise the Webb issue.
{¶ 16} In the case at bar, Herron, as so well explained by Justice Resnick,
is immune from suit by Donnelly because, and only because, of R.C. 4123.741. On
this basis (R.C. 4123.741) and on the authority of Webb, Herron’s liability carrier
can deny coverage for Donnelly’s injury, notwithstanding Herron’s negligence in
1. The court of appeals also found that “[s]ince Herron has committed no legally cognizable tort
against [Donnelly’s] spouse, Mrs. Donnelly has no derivative claim to loss of consortium.” This
finding has not been challenged and, therefore, stands. Cf. Maynard v. Henderson (1982), 3 Ohio
App.3d 403, 3 OBR 469, 445 N.E.2d 727.
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operating his vehicle and injuring Donnelly. To me then, that makes Herron an
uninsured motorist and Donnelly, if he has uninsured motorist coverage in his own
automobile liability policy, should be able to access his own uninsured motorist
coverage to compensate for his injuries caused by the uninsured driver, Herron. I
rely, in support of this proposition, on former R.C. 3937.18(D), which provides that
“[f]or the purpose of this section, [R.C. 3937.18(A)(1) and (2)] a motor vehicle is
uninsured if the liability insurer denies coverage * * *.” (Emphasis added.)
Further, R.C. 3937.18(F) provides that “[t]he coverages required by this section
[R.C. 3937.18(A)(1) and (2)] shall not be made subject to an exclusion of reduction
in amount because of any workers’ compensation benefits payable as a result of the
same injury or death.” See, also, Webb at 73, 562 N.E.2d at 142-143 (Douglas, J.,
dissenting).
{¶ 17} Thus, in the case now before us, I would go further and make it clear
that our holding should not be, considering Webb, construed to be a bar to
Donnelly’s recovering under his own uninsured motorist policy (if he has such
coverage) for the injuries he received due to the negligence of the tortfeasor,
Herron.
{¶ 18} Accordingly, I respectfully concur.
PFEIFER, J., concurs in the foregoing concurring opinion.
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