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State ex rel United Auto Aerospace & Agricultural Implement Workers of America2/3/2005
st any subrogated claims of a statutory subrogee (I) The statutory subrogation right of recovery applies to, but is not limited to, all of the following:
(1) Amounts recoverable from a claimant's insurer in connection with underinsured or uninsured motorist coverage, notwithstanding any limitation contained in Chapter 3937. of the Revised Code;
(2) Amounts that a claimant would be entitled to recover from a political subdivision, notwithstanding any limitations contained in Chapter 2744. of the Revised Code;
(3) Amounts recoverable from an intentional tort action. (J) If a claimant's claim against a third party is for wrongful death or the claim involves any minor beneficiaries, amounts allocated under this section are subject to the approval of probate court.
(K) The administrator shall deposit any money collected under this section into the public fund or the private fund of the state insurance fund, as appropriate. If a self-insuring employer collects money under this section of the Revised Code, the self-insuring employer shall deduct the amount collected, in the year collected, from the amount of paid compensation the self-insured employer is required to report under section 4123.35 of the Revised Code.
In S.B. 227, the General Assembly repealed existing R.C. 4123.35, 4123.66, 4123.93, and 4123.931. The statute became effective April 9, 2003, and, under its express terms, applies to workers injured on or after that date.
{ } 13. On April 15, 2003, the UAW filed a mandamus action in the Franklin County Court of Appeals seeking a writ compelling the BWC to comply with Holeton. The complaint also seeks a writ compelling the BWC to follow the law in Glaspell v. Ohio Edison Co. (1987), 29 Ohio St.3d 44, in which the court held as follows, at paragraphs one and two of the syllabus:
While clauses limiting the liability of the drafter are ordinarily to be strictly construed, such strict construction need not be applied in the interpretation of an indemnification agreement entered into between business entities in a context of free and understanding negotiation.
When the subject of liability is anticipated in an enforceable indemnity agreement, such indemnification must be provided.
The Court in Glaspell also commented on the construction of certain types of indemnity agreements that are contracts of adhesion:
* * * he law of Ohio generally allows enforcement of indemnity agreements.
Where it is alleged that the agreement protects an indemnitee from the financial consequences of his own negligence, the greater weight of authority, particularly in Ohio, would construe the words of such an agreement most narrowly.
The requirement that this court strictly construe this particular category of indemnity agreement would be unreasonable, in that the rule was developed to guard against a specific practice. Often one party to a contract, being in a position to impose terms upon the other with no realistic opportunity to bargain afforded, would include those standardized clauses in the contract as would unreasonably impose upon the non-bargaining party burdens which were wholly inequitable. With such contracts of adhesion in hand, the drafting party invariably asserted, "the indemnity or the exculpation, so that the policies supporting the rule of 'contra proferentem' [against the proffering party], * * * caused the courts to apply the rule." Thus, while clauses limiting the liability of the drafter are ordinarily to be strictly construed, we need not do so when such burden of indemnification was assented to in a context of free and understanding negotiation. * * * I
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