New Law Creates Uncertainty For Employer’s Intentional Torts
By Meredith L. Ullman
Prior to 1999, the law in Ohio mandated that an employee could only recover for an intentional tort against his employer, if the employee could prove by clear and convincing evidence that the employer deliberately committed all of the elements of an intentional tort.
That law, enacted in 1995, was soon deemed unconstitutional by the Ohio Supreme Court. In 1999, the Supreme Court held that the statute provided excessive immunity for employers from civil liability. The Supreme Court argued that in order for an employee to satisfy the requirements of the law as it was then worded, the employee would have to prove an action tantamount to criminal assault. The Supreme Court went even further, noting that an employer could conceivably be found guilty of criminal assault and not civil liability under the law. Based on this rationale, the Supreme Court declared the law to be flatly unconstitutional.
The standard for employment intentional torts had been in a relative stasis since that decision, relying purely on common law principles. The practical effect of this was that employees were able to claim rewards under both Workers’ Compensation and civil liability for certain employer acts, effectively double-dipping from the system.
On January 6, 2005, however, Governor Taft signed House Bill 498 into law. The new bill is intended to stop double recovery by removing “intentional acts” from the scope of employment, thereby precluding employees from recovering under both the Workers’ Compensation System and intentional tort theories. House Bill 498 states that an employer is not liable in an action brought against the employer by an employee (or survivors of a deceased employee) for damages resulting from an intentional tort committed by the employer during the course of the employment, unless the employee proves that the employer committed the tortuous act with either the intent to injure, or with the belief that the injury was substantially certain to occur. The new law also creates a rebuttable presumption, holding that the removal of safety guards can be presumed, if not disproved, to have been committed with the intent to injure an employee.
While facially appearing to be a victory for employees and employers alike, the new amendment may have farther-reaching ramifications than those considered by the House of Representatives. It appears the legislature did not consider the wording of the bill in conjunction with insurance policies. Many employers’ liability coverage policies use wording that may be negated by the bill’s language and remove liability coverage for certain actions. For example, the majority of commercial general liability policies contain exclusionary clauses eliminating coverage for employer’s intentional torts. The wording in House Bill 498 has left open the possibility that certain actions not recoverable under the employer intentional tort statute, may now not only be viable tort actions, but also no longer covered by the employer’s liability insurance. This in effect makes the employer vulnerable to civil liability damages that the employer will have to incur out of pocket.
Needless to say, the last word on this contentious issue has yet to be written. At least in the short term, we can be sure the Courts will be kept busy grappling with the changing law.
Meredith and our premier workers compensation group are always keeping up with the changing law! Contact them today to see how your company can save on rising premium costs.