Prior to the accident, Messer had applied for and had obtained authority from the Ohio Bureau of Workers' Compensation (“BWC”) to act as the self-insuring employer on the project under Ohio Rev. Code § 4123.35(O). In that role, Messer was responsible for providing workers' compensation coverage for its own employees as well as the employees of enrolled subcontractors working on the project, including Jostin, J & B Steel, D.A.G., and TriVersity.

Messer, J & B Steel, D.A.G., and TriVersity moved for summary judgment on the basis that they were immune from Mr. Stolz's negligence claims under Ohio's workers' compensation laws.

The district court granted summary judgment to the general contractor, Messer, as the self-insuring employer on the project. But the district court denied summary judgment to subcontractors J & B Steel, D.A.G., and TriVersity, finding that an enrolled subcontractor on a self-insured construction project was immune only from claims made by its own employees and not from those made by employees of fellow enrolled subcontractors.

Following the summary judgment decision, J & B Steel, D.A.G., and TriVersity moved the district court to certify a question of state law to the Ohio Supreme Court. The district court granted the motion and asked the Ohio Supreme Court to determine whether Ohio's workers' compensation laws:

provide immunity to subcontractors enrolled in a Workers' Compensation self-insurance plan from tort claims made by employees of [other] enrolled subcontractors injured while working on the self-insured project.

Ohio Law

Ohio Rev. Code 4123.35(O) provides:

A self-insuring employer who complies with this division is entitled to the protections provided under this chapter and Chapter 4121. of the Revised Code with respect to the employees of the contractors and subcontractors covered under a certificate issued under this division for death or injuries that arise out of, or death, injuries, or occupational diseases that arise in the course of, those employees' employment on that construction project, as if the employees were employees of the self-insuring employer * * *.

(Emphasis added.)

The Ohio Supreme Court's Decision

The court answered the certified question in the affirmative.

In its decision, it explained that a general contractor that was a self-insuring employer on a project received immunity from suits by its own employees as well as the employees of enrolled subcontractors arising from injuries or death occurring in the course of work on the project. It also noted that the subcontractor that actually employed a worker who was injured or killed on the job was protected from that worker's claims.

The court then found that an enrolled subcontractor also was not subject to claims by an employee of a different enrolled subcontractor working on the same self-insured construction project.

It reasoned that Rev. Code 4123.35(O) established a legal fiction that the self-insuring employer was the employer of all covered employees, including employees of enrolled subcontractors, for purposes of workers' compensation.

Thus, the court continued, the self-insuring employer, who through the legal fiction was the only employer on the project, would “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” work on the self-insured construction project.

According to the court, for purposes of workers' compensation, enrolled subcontractors did “not have employees working on the construction project” and those subcontractors, therefore, could “not be liable for the workplace injuries of their own employees on the construction project under the workers' compensation scheme.” The general contractor was “the responsible party,” it said.

In summary, the court concluded that Ohio's workers' compensation law created “a legal fiction that a self-insuring employer for a self-insured construction project [was] the single employer, for workers' compensation purposes, of all employees working for enrolled subcontractors on that project.” Accordingly, Ohio's workers' compensation scheme provided immunity to subcontractors enrolled in a self-insured construction project from the claims of employees of other enrolled subcontractors who were injured or killed while working on the project, provided that the injury, illness, or death was compensable under Ohio's workers' compensation laws.

The case is Stolz v. J & B Steel Erectors, Inc., No. 2015–0628 (Ohio April 19, 2016). Attorneys involved include: Goodson & Co. and Brett C. Goodson, for respondent; Kohnen & Patton, L.L.P., and Colleen M. Blandford, for petitioner J & B Steel Erectors, Inc.; Patsfall, Yeager & Pflum, L.L.C., Susan M. Falyer, Stephen M. Yeager, and Stephen J. Patsfall, for petitioners D.A.G. Construction Co., Inc., and TriVersity Construction Co., L.L.C.; Green & Green, Jane M. Lynch, and Jared A. Wagner, for petitioner Messer Construction Co.