[Cite as McMasters v. Kilbarger Constr., Inc., 2015-Ohio-4663.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


SUE MCMASTERS                                      :              JUDGES:
                                                   :              Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                         :              Hon. William B. Hoffman, J.
                                                   :              Hon. Sheila G. Farmer, J.
-vs-                                               :
                                                   :
KILBARGER CONSTRUCTION, INC.                       :
                                                   :
        Defendant-Appellant                        :
                                                   :
and                                                :              Case No. CT2015-0010
                                                   :
ADMINISTRATOR, BUREAU OF                           :
WORKERS' COMPENSATION                              :
                                                   :
        Defendant-Appellee                         :              OPINION


CHARACTER OF PROCEEDING:                                          Appeal from the Court of Common
                                                                  Pleas, Case No. CD2009-0397

JUDGMENT:                                                         Affirmed


DATE OF JUDGMENT:                                                 November 6, 2015


APPEARANCES:

For Plaintiff-Appellee                                            For Defendant-Appellant

JAMES C. AYERS                                                    SARA L. ROSE
165 North High Street                                             P.O. Box 188
Columbus, OH 43215-2402                                           Pickerington, OH 43147

JOSEPH F. NAVIN                                                   For Administrator, BWC
165 North High Street
Columbus, OH 43215                                                NATALIE J. TACKETT
                                                                  150 East Gay Street
                                                                  22nd Floor
                                                                  Columbus, OH 43215-3130
Muskingum County, Case No. CT2015-0010                                                   2

Farmer, J.

       {¶1}   Nathan Hallowell, Derek Petry, and Robert Perry all worked for appellant,

Kilbarger Construction Company, as drilling riggers. On November 14, 2007, the three

were driving home from work together, approximately two hours/ninety miles from the

drilling site. The driver, Mr. Petry, fell asleep and drove off the road. Mr. Hallowell was

killed and Mr. Petry and Mr. Perry sustained injuries. All three filed claims for workers'

compensation. Sue McMasters, appellee herein, filed on behalf of Mr. Hallowell, as she

is the guardian of his minor dependant. Appellant contested the claims, arguing the

accident did not arise out of the employees' employment. By order dated March 10,

2009, the Industrial Commission allowed appellee's claim (Claim No. 07-890684).

       {¶2}   On May 18, 2009, appellant filed an appeal to the Court of Common

Pleas.1 All parties filed motions for summary judgment. By findings and decision filed

December 5, 2011, the trial court granted summary judgment to appellee, finding Mr.

Hallowell was in the scope of his employment at the time of the accident. The trial court

instructed appellee to prepare an entry in conformity with its decision. By judgment

entry filed January 27, 2012, the trial court granted summary judgment to appellee,

finding the accident occurred within the course and scope, and arose out of, Mr.

Hallowell's employment with appellant.      Appellant filed an appeal to this court on

February 24, 2012 (Case No. 2012-CA-11). In an opinion filed September 21, 2012,

this court dismissed the case for lack of a final appealable order, noting the trial court




1The Industrial Commission also allowed the claims of Mr. Petry and Mr. Perry.
Appellant appealed those cases as well. The trial court filed an order of consolidation
on September 21, 2010.
Muskingum County, Case No. CT2015-0010                                              3

failed to rule on the issue of attorney fees and related expenses. See McMasters v.

Kilbarger Construction, Inc., 5th Dist. Muskingum No. 2012-CA-11, 2012-Ohio-4353.

      {¶3}   In a judgment entry filed February 13, 2015, the trial court awarded

appellee's attorney the statutory maximum amount of $4,200.00 for attorney fees and

$143.91 for litigation expenses as against appellant. In an order filed same date, the

trial court also awarded appellee's attorney $1,650.00 as a sanction for appellant's

frivolous discovery requests.

      {¶4}   Appellant filed an appeal of the trial court's January 27, 2012 judgment

entry and February 13, 2015 judgment entry and order, and this matter is now before

this court for consideration. Assignments of error are as follows:

                                             I

      {¶5}   "THE TRIAL COURT ERRED IN GRANTING APPELLEE'S SUMMARY

JUDGMENT MOTION AND IN DENYING KILBARGER'S SUMMARY JUDGMENT

MOTION, BECAUSE APPELLEE'S ACCIDENT DID NOT ARISE OUT OF HIS

EMPLOYMENT."

                                            II

      {¶6}   "THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR

EXPENSES AND FEES PURSUANT TO R.C. 4123.512(F)."

                                            III

      {¶7}   "THE TRIAL COURT ERRED IN AWARDING APPELLEE SANCTIONS."

                                             I

      {¶8}   Appellant claims the trial court erred in granting summary judgment to

appellee. We disagree.
Muskingum County, Case No. CT2015-0010                                              4


      {¶9}   Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:



             Civ.R. 56(C)   provides that before summary judgment may be

      granted, it must be determined that (1) no genuine issue as to any

      material fact remains to be litigated, (2) the moving party is entitled to

      judgment as a matter of law, and (3) it appears from the evidence that

      reasonable minds can come to but one conclusion, and viewing such

      evidence most strongly in favor of the nonmoving party, that conclusion is

      adverse to the party against whom the motion for summary judgment is

      made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511,

      628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50

      Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.



      {¶10} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio

St.3d 35 (1987).

      {¶11} R.C. 4123.01(C) defines "injury" for purposes of workers' compensation

benefits as: "any injury, whether caused by external accidental means or accidental in

character and result, received in the course of, and arising out of, the injured

employee's employment."
Muskingum County, Case No. CT2015-0010                                                5


       {¶12} Appellant argues the accident did not "arise out of" Mr. Hallowell's

employment. Appellant argues in its brief at 8 that when a "fixed-situs employee is

injured while commuting from work, his claim for workers' compensation benefits is

barred by the coming-and-going rule" unless an exception applies: "based on the totality

of the circumstances, a casual connection exists between the injury and the

employment" and/or "the injury was caused by a 'special hazard' created by the

employment." In its brief at 9, 11 and 12, appellant concedes Mr. Hallowell was a fixed-

situs employee and the accident occurred while he was commuting home from his fixed

work site.

       {¶13} In Ruckman v. Cubby Drilling, Inc., 81 Ohio St.3d 117, 119, 1998-Ohio-

455, the Supreme Court of Ohio explained the "coming-and-going rule" as follows:



             The coming-and-going rule is a tool used to determine whether an

       injury suffered by an employee in a traffic accident occurs "in the course

       of" and "arise[s] out of" the employment relationship so as to constitute a

       compensable injury under R.C. 4123.01(C).        "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 injury and the employment does not exist." MTD Products, Inc.

       v. Robatin (1991), 61 Ohio St.3d 66, 68, 572 N.E.2d 661, 663, citing

       Bralley v. Daugherty (1980), 61 Ohio St.2d 302, 15 O.O.3d 359, 401

       N.E.2d 448. The rationale supporting the coming-and-going rule is that
Muskingum County, Case No. CT2015-0010                                                    6


       "[t]he constitution and the statute, providing for compensation from a fund

       created by assessments upon the industry itself, contemplate only those

       hazards to be encountered by the employe[e] in the discharge of the

       duties of his employment, and do not embrace risks and hazards, such as

       those of travel to and from his place of actual employment over streets

       and highways, which are similarly encountered by the public generally."

       Indus. Comm. v. Baker (1933), 127 Ohio St. 345, 188 N.E. 560, paragraph

       four of the syllabus.



       {¶14} As explained by the Ruckman court at 121-122: " 'The "arising out of"

element***contemplates a causal connection between the injury and the employment.' "

       {¶15} In order to analyze the facts for a causal connection, it is necessary to

examine the applicability of the "totality of the facts and circumstances" test as set forth

in Lord v. Daugherty, 66 Ohio St.2d 441 (1981), and/or the "special hazard or risk rule"

enumerated in MTD Products, Inc. v. Robatin, 61 Ohio St.3d 66 (1991).

       {¶16} The "totality of the facts and circumstances" test is set forth in Lord, supra,

at syllabus:



               Whether there is a sufficient "causal connection" between an

       employee's injury and his employment to justify the right to participate in

       the Worker's Compensation Fund depends on the totality of the facts and

       circumstances surrounding the accident, including, (1) the proximity of the

       scene of the accident to the place of employment, (2) the degree of control
Muskingum County, Case No. CT2015-0010                                                     7


       the employer had over the scene of the accident, and (3) the benefit the

       employer received from the injured employee's presence at the scene of

       the accident.



       {¶17} The "special hazard or risk rule" is explained in MTD Products, supra, at

68:



              More recently, in Littlefield v. Pillsbury Co., supra, [6 Ohio St.3d 389

       (1983)] we also recognized the "special hazard or risk" exception to the

       general rule. In Littlefield we held that when the employment creates a

       "special hazard," an employee is entitled to workers' compensation

       benefits if he sustains injuries because of that hazard. Furthermore, we

       held that the rule applies where: (1) "but for" the employment, the

       employee would not have been at the location where the injury occurred,

       and (2) the risk is distinctive in nature or quantitatively greater than the risk

       common to the public. Id. at syllabus.



       {¶18} As further analyzed by the Supreme Court of Ohio in Ruckman, supra, at

124:



              Accordingly, we now expressly limit the syllabus of Littlefield to

       state a test for determining only whether a traffic injury suffered by a fixed-

       situs employee while coming or going from work arises out of the
Muskingum County, Case No. CT2015-0010                                                 8


         employment relationship. If an employee's injury occurs in the course of

         his employment, yet fails the Lord three-part test for causation, a fixed-

         situs employee may, nevertheless, demonstrate the required causal

         connection between employment and injury under the special hazard rule

         of causation.



         {¶19} The facts are not in dispute. Mr. Hallowell was hired by appellant to work

on Rig No. 4 in Utica, Ohio. Schein aff. at ¶ 6; Sturm aff. at ¶ 3 and 4. Mr. Hallowell

was part of a three-member crew. Schein aff. at ¶ 6; Sturm aff. at ¶ 3 Each crew

member was given a "per diem" for expenses separate and apart from their hourly

wage. Perry depo. at 33; Petry depo. at 31. The crew was hired nine days prior to the

accident and worked on the rig in the same location, although it was anticipated that

Rig. No. 4 would move to other sites and the crew would follow the rig. Perry depo. at

31-32, 41; Petry depo. at 30, 36, 39; Sturm aff. at ¶ 5. The three employees, including

Mr. Hallowell, lived some two hours/ninety miles away from the rig site. Perry depo. at

62-63; Petry depo. at 54, 112.       When the accident occurred, the employees were

traveling home from the site after working sixteen hours. Perry depo. at 81-82; Petry

depo. at 48-49, 130. The accident occurred approximately one and one-half hours after

leaving the site. Perry depo. at 93. The employees were not paid for any of their time

driving to and from the site, and their job duties did not commence until they arrived at

the site. Perry depo. at 79; Petry depo. at 97.

         {¶20} From the facts sub judice, the totality of the circumstances test does not

apply.
Muskingum County, Case No. CT2015-0010                                                   9


      {¶21} As for the special hazard or risk rule, it is conceded by the facts that "but

for" the employment, Mr. Hallowell would not have been driving on the road at the time

and "but for" the commute, he would not have been involved in an accident. However,

satisfying only one prong of the Littlefield test is not sufficient.     It must also be

established that "the risk is distinctive in nature or quantitatively greater than the risk

common to the public." MTD Products, supra.

      {¶22} The analysis now is whether appellant created the "special hazard."

Under the facts of this case, we answer in the affirmative for the following reasons.

      {¶23} Appellant hired Mr. Hallowell knowing he would have to travel from his

home to Rig No. 4 in Utica, Ohio, or any other location where Rig No. 4 may be utilized.

Sturm depo. at 17, 19-20, 31. In fact, Rig No. 4 was moved the day of the accident to

another site in Utica. Perry depo. at 60-61; Petry depo. at 36. "[I]t was impossible for

them to fix their commute in relation to these remote work sites." Ruckman at 124. The

per diem given by appellant to each crew member was probably sufficient to pay for

overnight housing, but it had yet to be paid. Perry depo. at 34; Petry aff. at ¶ 6. The per

diem was insufficient to compensate them for a physical relocation to wherever Rig No.

4 would be located. "Although the riggers worked within an area of a one-day drive, that

area was not so limited as to bring the riggers' travel to the varying work sites in line

with work commutes common to the public." Ruckman at 125.

      {¶24} Given the facts that working at various sites necessitated travel and the

very nature of the employment mandated lengthy travel, the crew members were not

compensated for housing, and appellant required the crew members to work long hours

and extras hours, we find the special hazard rule has been fulfilled as in Ruckman at
Muskingum County, Case No. CT2015-0010                                                      10


125: "Here, however, the employment relationship dictates that the riggers undertake

interstate and lengthy intrastate commutes, thereby significantly increasing their

exposure to traffic risks associated with highway travel. Accordingly, because of the

combination of all these factors, the riggers have established a risk quantitatively

greater than risks common to the public." Therefore, appellee is entitled to participate in

the workers' compensation fund.

          {¶25} Upon review, we find the trial court did not err in granting summary

judgment to appellee.

          {¶26} Assignment of Error I is denied.

                                                II

          {¶27} Appellant claims the trial court erred in awarding appellee's attorney

attorney fees and litigation expenses. We disagree.

          {¶28} R.C. 4123.512 governs workers' compensation appeals. Subsection (F)

states:



                 The cost of any legal proceedings authorized by this section,

          including an attorney's fee to the claimant's attorney to be fixed by the trial

          judge, based upon the effort expended, in the event the claimant's right to

          participate or to continue to participate in the fund is established upon the

          final determination of an appeal, shall be taxed against the employer or

          the commission if the commission or the administrator rather than the

          employer contested the right of the claimant to participate in the fund. The

          attorney's fee shall not exceed forty-two hundred dollars.
Muskingum County, Case No. CT2015-0010                                                 11




       {¶29} The decision to grant or deny fees under R.C. 4123.512(F) lies within the

sound discretion of the trial court and will not be disturbed absent an abuse of

discretion. Azbell v. Newark Group, Inc., 5th Dist. Fairfield No. 07 CA 00001, 2008-

Ohio-2639. In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

       {¶30} Appellant argues it was entitled to an evidentiary hearing and challenges

the number of hours claimed.

       {¶31} In its judgment entry filed February 13, 2015, the trial court determined the

following:



             The Court finds that Plaintiff's attorney of record, James C. Ayers,

       has expended sufficient time and effort in preparing, attending hearings,

       attending depositions, filing memoranda and briefs, and generally

       representing his client to be entitled to the statutory maximum award of

       $4,200.00.

             The Court takes notice that, although the maximum award is

       justified by the effort expended on the McMaster's case alone, substantial

       additional effort was expended in the furtherance of both Case No.

       CD2009-0397 and Case No. CD2009-0398, joined with this case for

       purposes of a summary judgment motion.            Neither client could be

       represented in a vacuum as an attorney cannot represent two clients in
Muskingum County, Case No. CT2015-0010                                                 12


      one proceeding without working with each client and filing required

      duplicate papers in each name.

             The Court further finds that mileage expense of $143.91 for

      Plaintiff's attorney to meet with the mother of Braxton Bailey and the

      paternal family of Braxton Bailey to be a reasonable litigation expense by

      Plaintiff's attorney to be reimbursed pursuant to R.C. 4123.512(F).

      Braxton Bailey is the dependent in this case represented by his maternal

      grandmother Sue McMasters, guardian.



      {¶32} We note appellee's attorney filed a detailed time sheet, attached to the

June 5, 2013 motion for attorney fees, setting forth the hours expended, as well as an

affidavit from a local attorney averring to a reasonable hourly fee. The total attorney

fees amounted to well over the statutory maximum of $4,200.00.

      {¶33} We conclude, as did the trial court, that the extensive nature of the case,

including some ninety docket filings, and the complexity of the issues as discussed in

Assignment of Error I, are sufficient to support the award of attorney fees and litigation

expenses.

      {¶34} Upon review, we find the trial court did not abuse its discretion in awarding

appellee's attorney attorney fees and litigation expenses.

      {¶35} Assignment of Error II is denied.

                                            III

      {¶36} Appellant claims the trial court erred in awarding appellee's attorney

$1,650.00 as a sanction for its frivolous discovery requests. We disagree.
Muskingum County, Case No. CT2015-0010                                               13


     {¶37} R.C. 2323.51(A)(2) defines "frivolous conduct" as follows:



            (2) "Frivolous conduct" means either of the following:

            (a) Conduct of an inmate or other party to a civil action, of an

     inmate who has filed an appeal of the type described in division (A)(1)(b)

     of this section, or of the inmate's or other party's counsel of record that

     satisfies any of the following:

            (i) It obviously serves merely to harass or maliciously injure another

     party to the civil action or appeal or is for another improper purpose,

     including, but not limited to, causing unnecessary delay or a needless

     increase in the cost of litigation.

            (ii) It is not warranted under existing law, cannot be supported by a

     good faith argument for an extension, modification, or reversal of existing

     law, or cannot be supported by a good faith argument for the

     establishment of new law.

            (iii) The conduct consists of allegations or other factual contentions

     that have no evidentiary support or, if specifically so identified, are not

     likely to have evidentiary support after a reasonable opportunity for further

     investigation or discovery.

            (iv) The conduct consists of denials or factual contentions that are

     not warranted by the evidence or, if specifically so identified, are not

     reasonably based on a lack of information or belief.
Muskingum County, Case No. CT2015-0010                                                  14


       {¶38} "A motion for sanctions brought under R.C. 2323.51 requires a three-step

analysis by the trial court: (1) whether the party engaged in frivolous conduct, (2) if the

conduct was frivolous, whether any party was adversely affected by it, and (3) if an

award is to be made, the amount of the award." Ferron v. Video Professor, Inc., 5th

Dist. Delaware No. 08-CAE-09-0055, 2009-Ohio-3133, ¶ 44. The decision to award

attorney fees as a sanction for frivolous conduct rests within the trial court's sound

discretion.   Burchett v. Larkin, 192 Ohio App.3d 418, 2011-Ohio-684 (4th Dist.);

Blakemore, supra.

       {¶39} In its order filed February 13, 2015, the trial court determined certain

discovery sought by appellant was frivolous for the following reasons:



              1) Defendant Kilbarger Construction, Inc. sought and vigorously

       pursued discovery concerning the dependency of Braxton Bailey.

       "Dependency" is a matter of "extent of disability" and cannot be appealed

       nor pursued in an R.C. 4123.512 action. State ex rel. Liposchak v. Indus.

       Comm. (2000), 90 Ohio St.3d 276.

              2) Defendant Kilbarger Construction, Inc. sought and vigorously

       pursued discovery, (most notably another attorney's complete file), from

       Plaintiff, Sue McMasters, concerning Muskingum County cases Nos.

       CC2008-0608; CC2008-0982; CC2009-0771; and CD2009-0308.                 Sue

       McMasters was not and is not a party to any of these cases and has no

       access to any attorney's files.
Muskingum County, Case No. CT2015-0010                                                15


             The Court finds that Defendant's actions in pursuing the discovery

      so described was frivolous in fact and caused Plaintiff's attorney to expend

      unnecessary time and effort. Plaintiff's counsel has certified that he has

      expended well over five and one-half hours in responding to Defendant

      and filing responses with this Court. Plaintiff's counsel has further filed

      with this Court and (sic) affidavit from an established Muskingum County

      attorney stating that a reasonable attorney fee for an experienced workers'

      compensation attorney such as Mr. Ayers to be $300.00 per hour.



      {¶40} Despite appellant's assertion that its trial counsel admitted error in

attempting discovery from a non-party in other cases, that legal mistake must somehow

be compensated to an innocent party.

      {¶41} Upon review, we find the trial court did not abuse its discretion in awarding

appellee's attorney $1,650.00 as a sanction for frivolous discovery.

      {¶42} Assignment of Error III is denied.
Muskingum County, Case No. CT2015-0010                                      16


      {¶43} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Hoffman, J. concur.




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