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^^^^^J^14 in the Supreme Court of Ohio ^^^^^j^14 No. 2011-2013 In the Supreme Court of Ohio APPEAL FROM THE COURT OF APPEALS EIGHTH APPELLATE DISTRICT CUYAHOGA COUNTY, OHIO CASE No. 10-96138 LARRY HEWITT, Plaintiff-Appellee, V. THE L.E. MYERS COMPANY., Defendant-Appellant. MERIT BRIEF OF APPELLANT THE L.E. MYERS COMPANY Paul W. Flowers (0046625) Benjamin C. Sasse (0072856) (COUNSEL OF RECORD) (COUNSEL OF RECORD) Mark F. McCarthy (0013139) PAUL W. FLOWERS CO., L.P.A. TUCKER ELLIS & WEST LLP 50 Public Square, Suite 3500 1150 Huntington Building Cleveland, Ohio 44113 925 Euclid Avenue Tel: 216.344.9393 Cleveland, OH 44115-1414 Fax: 216.344.9395 Tel: 216.592.5000 E-mail: pwf^a,pwfco.com Fax: 216.592.5009 E-mail: inark mccarthy^a tuckerellis.com benj amin.sassegtuckerellis. com Attorney for Plaintiff-Appellee Larry Hewitt Attorneysfor DefendantAppellant The L.E. Myers Co. tT l11^-; l-E-i D MAY .p 1 2012 MAY 112012 CLERK OF COURT SUPREME COURT OF OH1C1 CLERK OF COURT SUPREME COURT OF OHIO Frank L. Gallucci, III (0072680) Elizabeth A. Crosby (0041433) Michael D. Shroge (0072667) (COUNSEL OF RECORD) LICATA & TOEREK David E. Gray, II (0071114) 6480 Rockside Woods Blvd., South PLEVIN & GALLUCCI CO., L.P.A. Suite 180 55 Public Square, Suite 2222 Independence, OH 44131 Cleveland, OH 44113 Tel: 216.573.6000 Tel: 216.861.0804 Fax: 216.573.6333 Fax: 216.861.5322 E-mail: eac Acompletecounsel.com E-mail: fgallucci(a^a^ aw er.com Attorney for Amicus Curiae Cleveland mshrogegpglawyer.com Partnership, Council ofSmaller dgrayna,pglaw^r_com e Enterprises (COSE) Additional Counselfor Plaintiff-Appellee Larry Hewitt Preston J. Garvin (0018641) RobertA. Minor (0018371) (COUNSEL OF RECORD) (COUNSEL OF RECORD) Michael Hickey (0021410) VORYS, SATER, SEYMOUR GARVIN & HICKEY, LLC AND PEASE LLP 181 E. Livingston Ave. 42 E. Gay St. Columbus, OH 43215 P.O. Box 1008 Tel: 614.225.9000 Columbus, OH 43216-1008 Fax: 614.225.9080 Tel: 614.464.6410 E-mail: wclawggarvin-hicke .^ Fax: 614.719.4874 E-mail: raminor(a)vorys.com Attorneys for Amicus Curiae Ohio Chamber of Commerce Attorneyfor Amicus Curiae Ohio Self- Insurers Association Denise M. Hasbrook (0004798) Thomas R. Sant (0023057) (COUNSEL OF RECORD) (COUNSEL OF RECORD) BRICKER & ECKLER, LLP Emily Ciecka Wilcheck (0077895) 100 S. Third St. One SeaGate, Suite 1700 Columbus, OH 43215-4291 Toledo, OH 43604 Tel: 614.227.2331 Tel: 419.242.7985 Fax: 614,227.2790 Fax 419.242.0316 E-mail: tsantkbricker.com E-mail: dhasbrook(&ralaw.com ewilcheck a ralaw.com AttorneyforAmicus Curiae Ohio Chapter of the National Federation of Independent Business Attorneys for Amicus Curiae FirstEnergy Corp. Brian D. Sullivan (0063536) (COUNSEL-OF RECORD) REMINGER CO., L.P.A. 101 West Prospect Ave., Suite 1400 Cleveland, OH 44115-1093 Tel: 216.687.1311 Fax: 216.687.1841 E-mail: bsullivaiigreminger:com Attorneyfor Amicus Curiae Ohio Association of Civil Trial Attorneys (OACTA) TABLE OF CONTENTS Page TABLE OF AUTHORITIES ..........................................,.................................................. iv 1. INTRODUCTI ON ...............................................................................................:.... 1 II. STATEMENT OF THE FACTS ......:....................................................................... 3 A. Hewitt's Accident . ...............:........................................................................ 3 1. Local Union 71 sends Hewitt to L.E. Myers to work on a project for Firelands Electrical Cooperative .:.................................... 3 2. The June 14, 2006 Daily Job Briefing . .................:............................ 4 3. Hewitt starts to tie in a deenergized line ............................................ 6 4. Hewitt Accidentally Injures Himself When He Reacts to a Safety Warning . ...... ............................................:.............................. 8 B. Hewitt Receives Workers' Compensation Benefits and a VSSR S ettlement . ..................................................................................................... 9 C. The Proceedings Below . .......................................................................:....... 9 1. Hewitt claims L.E. Myers "deliberately removed" an "equipment safety guard." .... .......................................:..................... 9 2. The Trial Court sends that liability theory to the jury based on an error in Hewitt's Trial Brief . ....................................................... 10 3. The Eighth District panel affirms based on a policy determination that the presumed intent theory must be available in every profession . .......................................................... 11 III. ARGUMENT ............:............................................................................................ 12 Proposition of Law No. 1 ....................................................................................... 12 An "equipment safety guard" under R.C. 2745.01(C) includes only those devices on a machine that shield an employee from injury by guarding the point of operation of that machine ......................................... 12 Page A. The Plain Text of R.C. 2745.01(C) Establishes that "an Equipment Safety Guard" Is a Safety Device Attached to a Machine .......................... 13 Legislative History and the Structure of Ohio's Workers' Compensation System Confirm this Interpretation Is Correct ..............:..:.. 17 C. Limiting "An Equipment Safety Guard" to Safety Devices Attached to Machines Furthers Important Compensation Law Policies .................... 22 D. Limiting "Equipment Safety Guards" to Devices Attached to Machines Results in a Clear and Administrable Rule, While the Panel's Approach Does Not .................................................:...................... 24 Proposition of Law No. 2 ............................................................................:.......... 27 The "deliberate removal" of such an "equipment safety guard" occurs when an employer makes a deliberate decision to lift, push aside, take off or otherwise eliminate that guard from a machine .............. 27 A. The Text, Structure and History of R.C. 2745.01 Confirm that "Deliberate Removal" Means a Deliberate Decision to Eliminate An Equipment Safety Guard . ............................................................................ 27 L.E. Myers Did Not "Deliberately Remove" an "Equipment Safety Guard........................................................................................................... 28 IV. CONCLUSION ...............:....................................................:................................. 31 CERTIFICATE OF SERVICE .......................................................................................... 32 ii Page APPENDIX Notice of Appeal to Ohio Supreme Court (Dec. 2, 2011) ................................................... 1 Journal Entry and Opinion, Eighth District Court of Appeals (Oct. 20, 2011) ........................................................:...:............................................. 5 Journal Entry, Cuyahoga County Common Pleas Court (Nov. 10, 210) ........................... 31 Journal Entry, Cuyahoga County Common Pleas Court (Oct. 1, 2010) ........................... 32 Section 35, Article 11, Ohio Constitution .......................................................................... 33 R. C. 2745.01 ..........................................................................................................:........... 35 1986 Am.Sub.S.B. No. 307 .........:......................:.............................................................. 36 29 C.F.R. 1910.212 ................................:..........................................................:................ 67 ui TABLE OF AUTHORITIES Page Cases Barton v. G.E. Baker Construction, 9th Dist. No. 10CA009929, 2011-Ohio-5704, appeal not accepted, 131 Ohio St.3d 1511 (2012) .............................................................:..................... 15 Beary v. Larry Murphy Dump Truck Serv., Inc., 5th Dist. No. 2011-CA-00048, 2011-Ohio-4977; appeal allowed, 131 Ohio St.3d 1456 (2012) .....................:......................................................:...... 15 Bickers v. W&S Life Ins. Co., 116 Ohio St.3d 351, 2007-Ohio-6751 ..................................................................:. 20 Blankenship v. Cincinnati Milacron Chems., Inc., 69 Ohio St.2d 608 (1982) ....................:........................................:......... 1, 13, 18, 19 Fickle v. Conversion Technologies Internatl., Inc., 6th Dist. No. WM-10-016, 2011-Ohio-2960 ......... ......................................... passim Fyffe v. Jeno's, Inc., 59 Ohio St.3d 115 (1991) .....................................:..........................................passim Harris v. Gill, 585 So.2d 831 (Ala. 1991) ...............................................................................29, 30 In re Estate of Centorbi, 129 Ohio St.3d 78, 2011-Ohio-2267 ................................................................:..... 15 Johnson v. BP Chems., Inc., 85 Ohio St.3d 298 (1999) ..............:........................................................:............... 19 Jones v. VIP Development Co., 15 Ohio St.3d 90 (1984) .....................:...................................................1, 18, 19, 28 Kaminski v. Metal & Wire Products Co., 125 Ohio St.3d 250, 2010-Ohio-1027 .....................:.................................. 19, 20, 23 McKinney v. CSP of Ohio LLC, 6th Dist. No. WD-10-070, 2011-Ohio-3116 .............................................
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