 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Bridges v. Natl. Engineering & Contracting Co.2/28/1990
HOLMES, J.
This case presents two issues for our determination. First, we are asked to determine whether Kentucky law, which would bar the claim, or Ohio law applies to appellees' intentional tort claims against National. We need not reach the merits of this choice-of-law query, however, because even if Ohio law applies, appellees' complaint fails to set forth an intentional tort claim sufficient to survive National's Civ. R. 12(B)(6) pleading, pursuant to the standards set forth in Van Fossen, supra, and Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 532 N.E. 2d 753.
Second, we must determine whether National is a "non-complying employer" for purposes of Ohio's workers, compensation law, and is thus not entitled to immunity from appellees, wrongful death and personal injury claims provided in R.C. Chapter 4123. For the reasons set forth in Part II of this opinion, we hold that National was a complying employer for purposes of Ohio's workers' compensation law for the period at issue here, and was thus entitled to all the benefits of R.C. Chapter 4123.
Appellees, causes of action arose on June 27, 1986, over one month prior to the effective date of R.C. 4121.80(G)(1). Thus, the sufficiency of appellees' claims of an intentional tort committed by their employer, pursuant to Civ. R. 12(B)(6), must be measured against the common-law standard of "intent" as set forth in Van Fossen, supra, at paragraph five of the syllabus.
Appellees argue, however, that appellant did not raise its Civ. R. 12(B)(6) claim in the courts below, and is thus precluded from challenging the sufficiency of the complaint for the first time in this court. We do not agree. Civ. R. 12(B) requires the defense of failure to state a claim for which relief can be granted to be asserted either in the responsive pleading or, at the option of the pleader, by motion. Here, National raised its Civ. R. 12(B)(6) defense in the first paragraph of its answer, which preserved on the record its continuing objection to the sufficiency of the complaint.
The fact that the lower courts ruled on an alternate defense on summary judgment does not divest this reviewing court of jurisdiction. This is so by virtue of Civ. R. 12(H)(2) and our long-standing rule of appellate practice with respect to the sufficiency of a complaint: "To warrant a recovery on the petition, it must show a cause of action in the plaintiff If the petition fails to show such a cause of action, the objection is not waived by a failure to demur, or to make the objection by answer." (Emphasis sic.) Buckingham v. Buckingham (1880), 36 Ohio St. 68, 78, quoted with approval in Bd. of Edn. of Hopewell Twp. v. Guy (1901), 64 Ohio St. 434, 445, 60 N.E. 573, 575; and Bozzelli v. Indus. Comm. (1930), 122 Ohio St. 201, 208-209, 171 N.E. 108, 110. See, also, 5 American Jurisprudence 2d (1962) 59-60, Appeal and Error, Section 592. Appellant preserved its Civ. R. 12(B)(6) defense in its answer, and in its second proposition of law to this court, which defense is within our cognizance to resolve.
"A claim of intentional tort against an employer will be dismissed as failing to establish that the pleader is entitled to relief unless the complaint alleges facts showing that the employer: (1) specifically desired to injure the employee; or (2) knew that injury to an employee was certain or substantially certain to result from the employer's act and, despite this knowledge, still proceeded." Mitchell, supra, at syllabus.
Appellees' claims against National for an intentional tort are set forth in claims nine through thirteen of their amended complaint, comprising paragraphs
Page 1 2 3 4 5 6 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|