Dirksing v. Blue Chip Architectural Products11/7/1994
.O.2d at 314315, 310 N.E.2d at 231-232.
In Taylor, supra, at 149, 522 N.E.2d at 464, the Supreme Court held that a third-party tortfeasor could not sue a complying employer, even for an intentional tort, related to an employee's work-related injury . It stated that it agreed with other courts that held that exclusivity provisions "demonstrate the legislature's intention to `provide against liability of the employer to anyone for damages arising from any injury, disease or bodily condition of an employee arising out of his employment[.]'" (Emphasis sic.) Id. at 152, 522 N.E.2d at 467, quoting Williams v. Ashland Chem. Co. (1976), 52 Ohio App.2d 81., 86-87, 6 O.O.3d 56, 5859, 368 N.E.2d 304, 308-309.
Courts have also held that the immunity provisions in R.C. 4123.74 and Section 35, Article II preclude suits for loss of consortium by the spouse of an injured employee. Bevis v. Armco Steel Corp. (1951), 156 Ohio St. 295, 46 O.O. 172, 102 N.E.2d 444; Rowe v. Riess (1986), 30 Ohio Misc.2d 28, 30 OBR 292, 506 N.E.2d 1237; Huston v. Morris (Mar. 12, 1991), Franklin App. No. 90AP-1009, unreported, 1991 WL 35001; Roof v. Velsicol Chemical Corp. (N.D.Ohio 1974), 380 F.Supp. 1373. Similarly, at least one court has held that the immunity extends to a claim for loss of services by parents whose child was killed during the course of the child's employment. Bankers Indemnity Ins. Co. v. Cleveland Hardware & Forging Co. (1945), 77 Ohio App. 121, 132, 32 O.O. 395, 399, 62 N.E.2d 180, 184185.
Courts from other jurisdictions have held that the exclusivity provisions of their workers' compensation laws preclude a wrongful death suit by beneficiariesof the deceased employee who are not dependents. These cases state that the beneficiaries may recover only if the employee could have recovered had the employee survived. Stonecipher v. Winn-Rau Corp. (1976), 218 Kan. 617, 545 P.2d 317; Evans v. Avery (1961), 272 Ala. 230, 130 So.2d 373; Schnall v. 1918 Harmon St Corp. (1960), 26 Misc.2d 287, 207 N.Y.S.2d 375; Salin v. Pacific Gas & Elec. Co. (1982), 136 Cal.App.3d 185, 185 Cal.Rptr. 899; Murray Chevrolet Co., Inc. v. Godufin (1973), 129 Ga.App. 153, 199 S.E.2d 117.
In West v. Zeibell (1976), 87 Wash.2d 198, 550 P.2d 522, the Washington Supreme Court rejected a constitutional argument made by parents seeking to recover for the wrongful death of their son. The court stated:
"Plaintiffs' final claim is that if the workmen's compensation act were held to bar recovery * * *, a deprivation of due process and equal protection would result. There can be no vested right, however, in a tort action that can be brought only by virtue of a statute. * * * The Fourteenth Amendment does not prevent a state from amending or entirely abolishing statutory remedies. (Citations omitted.) 87 Wash.2d at 202, 550 P.2d at 524.
We conclude after this lengthy survey of the available law that the exclusivity provision in R.C. 4123.74 is constitutional. Further, the trend in most states, including Ohio, is to apply exclusivity provisions expansively to bar any negligence claim, even those of third parties, against a complying employer. This conclusion eliminates the anomalous result that a brother, sister, or parent could recover for wrongful death against an employer but a dependent, such as a spouse or a child, could not. Accordingly, appellant's fifth assignment of error is overruled.
In conclusion, we sustain appellant's first, second, fourth, and seventh assignments of error and overrule his third, fifth, and sixth assignments of error. We affirm that part of the trial court's decision granting summary judgment in favor of Messer and reve
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