[Cite as Houston v. Morales, 2018-Ohio-1505.]


                Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                         No. 106086



                                        ALONZO HOUSTON

                                                         PLAINTIFF-APPELLANT

                                                   vs.

                                      FERNANDO MORALES

                                                         DEFENDANT-APPELLEE




                                                JUDGMENT:
                                                 AFFIRMED



                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CV-14-833702

        BEFORE: Kilbane, P.J., Celebrezze, J., and Jones, J.

        RELEASED AND JOURNALIZED:                   April 19, 2018
ATTORNEYS FOR APPELLANT

Murray Richelson
Daniel M. Katz
David A. Katz Co., L.P.A.
50 Public Square
842 Terminal Tower
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

John V. Rasmussen
Law Offices of John V. Rasmussen
6060 Rockside Woods Boulevard - Suite 131
Independence, Ohio 44131




MARY EILEEN KILBANE, P.J.:
        {¶1}    In this accelerated appeal under App.R. 11.1 and Loc.App.R. 11.1,

plaintiff-appellant, Alonzo Houston (“Houston”), appeals the trial court’s decision granting

summary judgment in favor of defendant-appellee, Fernando Morales (“Morales”). For the

reasons set forth below, we affirm.

        {¶2}    In October 2014, Houston filed a complaint against his co-employee, Morales,

seeking damages for injuries arising out of a motor vehicle accident that occurred on the parking

lot of both Houston and Morales’s employer, Hose Master, L.L.C. (“Hose Master”). Morales

left the premises for lunch and was returning to work. He was driving in his car in search of a

parking spot. Meanwhile, Houston had exited the Hose Master building on his lunch break to

move his car into another lot on the company’s premises. As Houston was turning his car to

park, Morales’s vehicle collided with Houston’s vehicle.

        {¶3}    Following discovery, Morales moved for summary judgment, arguing that he was

immune under the “fellow servant doctrine,” as set forth in R.C. 4123.741. The statute provides

in relevant part that

        [n]o employee of any employer * * * shall be liable to respond in damages at
        common law or by statute for any injury * * *, received * * * by any other
        employee of such employer in the course of and arising out of the latter
        employee’s employment, * * * on the condition that such injury * * * is found to
        be compensable under sections [R.C.] 4123.01 to 4123.94, inclusive[.]


        {¶4} Houston opposed Morales’s motion. The trial court agreed with Morales, finding

that “the fellow employees’ immunity applies to the facts of this case under R.C. 4123.741.”

The court concluded that “[Morales] cannot be found liable for [Houston’s] injuries” and

dismissed Houston’s case.
       {¶5}    Houston now appeals, raising the following three assignments of error for review,

which shall be discussed together.

                                     Assignment of Error One

       The trial court erred in granting summary judgment when [Morales] violated

       judicial estoppel.

                                     Assignment of Error Two

       The trial court erred in failing to apply the doctrine of collateral estoppel.

                                     Assignment of Error Three

       The trial court erred in finding that [Morales] was a “fellow servant” at the time of

       the accident.

                                        Summary Judgment

       {¶6}    We review an appeal from summary judgment under a de novo standard of

review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241;

Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585, 706 N.E.2d 860 (8th

Dist.1998). In Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 1998-Ohio-389, 696

N.E.2d 201, the Ohio Supreme Court set forth the appropriate test as follows:

       Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no
       genuine issue of material fact, (2) the moving party is entitled to judgment as a
       matter of law, and (3) reasonable minds can come to but one conclusion and that
       conclusion is adverse to the nonmoving party, said party being entitled to have the
       evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp.,
       73 Ohio St.3d 679, 1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the
       syllabus. The party moving for summary judgment bears the burden of showing
       that there is no genuine issue of material fact and that it is entitled to judgment as
       a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107,
       662 N.E.2d 264.
       {¶7}    Once the moving party satisfies its burden, the nonmoving party “may not rest

upon the mere allegations or denials of the party’s pleadings, but the party’s response, by

affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a

genuine issue for trial.”    Civ.R. 56(E); Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385,

1996-Ohio-389, 667 N.E.2d 1197. Doubts must be resolved in favor of the nonmoving party.

Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359, 1992-Ohio-95, 604 N.E.2d 138.

       {¶8}    In the first and second assignments of error, Houston argues Morales violated

judicial estoppel because he successfully pursued an uninsured motorist claim with his own

insurer. He contends that if Morales was a “fellow servant” to Houston, then Morales could not

maintain an uninsured motorist claim. Houston further argues that Morales was collaterally

estopped from bringing the “fellow servant issue” because he was denied workers’ compensation

benefits for not being in the “zone of employment” at the time of the accident with Houston.

       {¶9} Under judicial estoppel, a party may not take a position in a court proceeding that is

“‘inconsistent with one successfully and unequivocally asserted by the same party in a prior

proceeding.’” Smith v. Dillard Dept. Stores, Inc., 139 Ohio App.3d 525, 533, 744 N.E.2d 1198

(8th Dist.2000), quoting Teledyne Indus., Inc. v. Natl. Labor Relations Bd., 911 F.2d 1214, 1217

(6th Cir. 1990). “The doctrine applies only when a party shows that his opponent: (1) took a

contrary position; (2) under oath in a prior proceeding; and (3) the prior position was accepted by

the court.” Id., citing Teledyne.

       {¶10} With the above rule in mind, it is clear that judicial estoppel does not apply to the

circumstances presented herein. Morales’s claim for uninsured motorist coverage with his own

insurer is not a court proceeding, but rather is the result of a contractual agreement between the
insured and his insurer. Therefore, the doctrine of judicial estoppel does not apply to the instant

case.

        {¶11} Houston further argues that Morales is estopped from claiming immunity under the

“fellow servant” rule because he did not pursue an appeal of the Industrial Commission’s denial

of his injury claim.

        {¶12} Collateral estoppel precludes the “relitigation in a second action of an issue or

issues that have been actually and necessarily litigated and determined in a prior action.”

Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d 193, 195, 443 N.E.2d 978 (1983),

citing Whitehead v. Gen. Tel. Co., 20 Ohio St.2d 108, 254 N.E.2d 10 (1969). Here, the parties

are not litigating Morales’s injuries. Rather, the issue is whether Morales is a fellow servant

employee entitled to immunity under R.C. 4123.741. Collateral estoppel precludes relitigation

when the identical issue was actually decided in the former case. As a result, collateral estoppel

is not applicable to the instant case.

        {¶13} In the third assignment of error, Houston argues the court erred in finding that

Morales was a fellow servant at the time of the accident. He contends that the fellow servant

doctrine only applies if both parties satisfy “the course of and arising out of test.”

        {¶14} We find Kobak v. Sobhani, 8th Dist. Cuyahoga No. 94764, 2011-Ohio-13,

instructive. In Kobak, a coworker (Sobhani) struck another coworker (Kobak) when he was

leaving the employer’s premises. Sobhani maintained that he was immune from liability under

R.C. 4123.741. On appeal, this court affirmed the trial court’s grant of summary judgment in

favor of Sobhani on the basis of the fellow employee immunity doctrine.                  In reviewing

R.C. 4123.741, this court stated that “there are two questions that must be considered in applying

this statute: was the injury caused by another employee, and did the injury occur in the course of
and arising out of the plaintiff’s employment?” Kobak at ¶ 13, citing Sammetinger v. Kirk Bros.

Co., Inc., 3d Dist. Logan No. 8-09-15, 2010-Ohio-1500.

       {¶15} With regard to injury caused by another employee, this court noted that Kobak was

awarded workers’ compensation benefits from the collision, and, “as explained in Kaiser v. Strall

(1983), 5 Ohio St.3d 91, 5 Ohio B. Rep. 143, 449 N.E.2d 1, ‘[a]n injury need only be found

“compensable” for fellow-employee immunity to be activated.’” Id. at ¶ 14. Accord Pursley v.

MBNA Corp., 8th Dist. Cuyahoga No. 88073, 2007-Ohio-1445, ¶ 10. (“A co-employee and

employer are statutorily immune from liability when the employee’s injury is compensable under

workers’ compensation.”) This court further explained,

       as explained in Kelleher v. Alvarado (Dec. 31, 1990), Putnam App. No. 12-89-17,
       1990 Ohio App. LEXIS 5966:

       We note that neither the statutes (R.C. 4123.741 and 4123.01) nor the case law (*
       * *; Bussell v. Mattin (1981), 3 Ohio App.3d 339, 3 Ohio B. 395, 445 N.E.2d 696;
       Kaiser * * *), require the fellow employee to be ‘in the course of his
       employment.’ Instead, and as stated in Puckett v. Miller (1980), [Hamilton App.
       Nos. C-790761, 790762, 790763], 19 O.Op.3d 349, 1980 Ohio App. LEXIS
       10041, the more appropriate standard to apply is whether the defendant was ‘in
       the service of’ the employer.

       The plaintiff’s argument construes the defendant’s activity too narrowly. The
       defendant was leaving work. * * * The defendant was on [the employer’s]
       premises and in the process of leaving work. As such, he was a fellow
       employee.

       ***

       [Moreover,] in Donnelly v. Herron, 88 Ohio St.3d 425, 2000-Ohio- 372, 727
       N.E.2d 882, the Ohio Supreme Court determined that co-employee immunity
       applied where a worker backed his automobile into a co-worker as he was exiting
       the employer’s parking lot. The court stated:

       ***

       nothing more is required of the employee seeking immunity to be “in the service
       of’ the employer than is required of the injured employee in obtaining
       compensation coverage. In addition, any employee who seeks workers’
       compensation benefits must be in the service of a qualifying employer, and if we
       held that a co-employee is not in the service of a qualifying employer while
       driving in the employer’s parking lot on his way to and from work, we would put
       in serious jeopardy the rights of an entire class of injured claimants who seek
       workers” compensation benefits under similar circumstances.

Kobak at ¶ 15, 17.

       {¶16} With regard to the injury occurring in the course of and arising out of the plaintiff’s

employment, this court noted that as a general rule, an employee with a fixed place of

employment, who is injured while traveling to or from his place of employment, is not entitled to

participate in the workers’ compensation fund because the requisite causal connection between

the injury and the employment does not exist.          Kobak, 8th Dist. Cuyahoga No. 94764,

2011-Ohio-13, at ¶ 19, citing MTD Prod., Inc. v. Robatin, 61 Ohio St.3d 66, 572 N.E.2d 661

(1991). This court noted, however, that this general rule does not operate as a complete bar to

an employee who is injured commuting to and from work if the injury occurs within the “zone of

employment.” Id. at ¶ 20, citing MTD Prod. This is “‘the place of employment and the area

thereabout, including the means of ingress thereto and egress therefrom, under control of the

employer.’” (Emphasis sic.) Marlow v. Goodyear Tire & Rubber Co., 10 Ohio St.2d 18, 225

N.E.2d 241 (1967), quoting Merz v. Indus. Comm., 134 Ohio St. 36, 15 N.E.2d 632 (1938).

       {¶17} In applying Kobak to the instant case, we answer both questions in the affirmative.

First, the injury was caused by another employee. There is no dispute that both Houston and

Morales were co-employees at Hose Master, and Houston was injured as a result of the accident.

Second, the injury occurred in the course of and arising out of Houston’s employment. There is

no dispute that Houston was awarded workers’ compensation benefits for the injuries he

sustained from the accident with Morales. Accordingly, the trial court properly determined that
the fellow employee immunity statute applied to the instant case.

       {¶18} Therefore, the first, second, and third assignments of error are overruled.

       {¶19} Judgment is affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MARY EILEEN KILBANE, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR
