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Dirksing v. Blue Chip Architectural Products11/7/1994
regarded and the shareholder and the corporation are treated as one and the same. Federated Dept. Stores, Inc. v. J.V.B. Industries, Inc. (C.A.6, 1990), 894 F.2d 862, 870-871; Wildlife Internationale, Inc. v. Clements (S.D.Ohio 1984), 591 F.Supp. 1542, 1550. Therefore, if the jury were to decide that the corporations were alter egos, they would all be treated as Dirksing's employer. They would all have the protection of thsWorkers' Compensation Act and could not be found liable for negligence, but could be found liable for committing an intentional tort.
However, if the jury were to conclude that the corporations are not alter egos, Welling could be found liable for negligence on the same basis as a general contractor under Cafferkey and Hirschbach, an issue which the trial court did not address. BCE could only be found liable for negligence based upon Monk's conduct, and we have already concluded that the trial court properly granted summary judgment in favor of BCE on a negligence theory since Monk was a loaned servant controlled by BCAP. With those caveats, we sustain appellant's second assignment of error.
In his fifth assignment of error, appellant states that the trial court erred in ruling that R.C. 4123.74 is constitutional and does not violate the Ohio or federal Constitutions. Appellant argues that the statute denies beneficiaries under the wrongful death statutes who are not dependents as defined in the Workers' Compensation Act a meaningful remedy and violates fundamental lights to equal protection and due process. We find this assignment of error is not well taken.
R.C. 4123.74, as it read at the time of Dirksing's death, provided:
" mployers who comply with section 4123.35 of the Revised Code shall not be liable to respond in damages at common law or by statute for any injury , or occupational disease, or bodily condition, received or contracted by any employee in the course of or arising out of his employment, or for any death resulting from such injury, occupational disease, or bodily condition occurring during the period covered by such premium so paid into the state insurance fund, or during the interval of time in which such employer is permitted to pay such compensation directly to his injured employees or the dependents of his lolled employees, whether or not such injury, occupational disease, bodily condition, or death is compensable under sections 4123.01 to 4123.94 of the Revised Code."
This statute implements the constitutional mandate in Section 35, Article II of the Ohio Constitution, Blankenship v. Cincinnati Milacron Chemicals (1982), 69 Ohio St.2d 608, 611, 23 O.O.3d 504, 506, 433 N.E.2d 572, 575, certiorari denied (1982), 459 U.S. 857, 103 S.Ct. 127, 74 L.Ed.2d 110, and contains identical language. Consequently, appellant's claim that the exclusivity provision in R.C. 4123.74 violates the Ohio Constitution is erroneous since it is specifically provided for in the Ohio Constitution. See Taylor v. Academy Iron & Metal Co. (1988), 36 Ohio St.3d 149, 151, 522 N.E.2d 464, 466, fn. 1.
Further, appellant specifically argues that the statute violates Section 19a, Article I of the Ohio Constitution which provides that " he amount of damages recoverable by civil action in the courts for death caused by the wrongful act, neglect, or default of another, shall not be limited by law." We disagree. While Section 19a provides that damages may not be limited, there is no prohibition against changing the standard of liability to be proved in a wrongful death case. In Gibbon v. Young Women's Christian Assn. of Hamilton (1960), 170 Ohio St. 280, 10 O.O.2d 334, 164 N.E.2d 563, the Ohio Supreme Cour
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