Opinion

Talik v. Federal Marine Terminals, Inc.

  • 172 Ohio App. 3d 704
  • 2006 Ohio 3979
  • 876 N.E.2d 1246
Court
Ohio Court of Appeals
Filed
Aug 3, 2006
Status
Published
Author
Cooney
On the bench
McMonagle, Rocco, Cooney
Cited by
5 cases
Authority
More cited than 43.0%

The opinion

*716

Colleen Conway Cooney, Presiding Judge,

dissenting.

{¶ 57} I respectfully dissent.

{¶ 58} I would affirm the trial court’s grant of summary judgment because the LHWCA preempts Talik’s state-law tort claim.

{¶ 59} I would follow the precedent set in

Daley v. Aetna Cas. & Sur. Co.

(1988), 61 Ohio App.3d 721 , 573 N.E.2d 1128 , in which we found that an employee’s claims of bad faith and intentional infliction of emotional distress were preempted by the LHWCA. We found that Section 905(a) of the LHWCA provides immunity to the employer and the insurance provider. We chose to adopt the view of the Fifth Circuit and held that “preemptive intent is apparent both from the pervasiveness of the federal regulation and the likelihood of conflicts between state and federal law.” Id. at 724 , 573 N.E.2d 1128 .

{¶ 60} Moreover, another Ohio case found that the LHWCA places a burden on a plaintiff-employee to establish, as a prerequisite to pursuing an action at law, that the employer failed to secure payment of compensation for the employee.

Cornell v. Parsons Coal Co.

(1993), 96 Ohio App.3d 1, 4 , 643 N.E.2d 1154 .

{¶ 61} In the instant case, Talik has not sustained his burden to show that his employer failed to secure compensation for him. Therefore, I would affirm the trial court’s grant of summary judgment, because the LHWCA provides the exclusive remedy for Talik’s claim.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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