[Cite as Hornyak v. Res. Alloys, L.L.C., 2016-Ohio-8489.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104302



                         DARRELL HORNYAK, ET AL.
                                                            PLAINTIFFS-APPELLANTS

                                                     vs.


                     RESERVE ALLOYS, L.L.C., ET AL.
                                                            DEFENDANTS-APPELLEES




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-14-829052

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

        RELEASED AND JOURNALIZED:                           December 29, 2016
ATTORNEYS FOR APPELLANTS

William Craig Bashein
Anthony N. Palombo
Bashein & Bashein Co., L.P.A.
Terminal Tower, 35th Floor
50 Public Square
Cleveland, Ohio 44113

Paul W. Flowers
Paul W. Flowers Co., L.P.A.
Terminal Tower, Suite 1910
50 Public Square
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEES

Andrew M. Wargo
Amelia J. Leonard
Marshall Dennehey Warner
Coleman & Goggin
127 Public Square, Suite 3510
Cleveland, Ohio 44114
MARY EILEEN KILBANE, P.J.:

       {¶1} Plaintiffs-appellants, Darrell Hornyak (“Darrell”) and Pam Hornyak

(“Pam”) (collectively referred to as “plaintiffs”), appeal the trial court’s decision granting

summary judgment in favor of Reserve Alloys, L.L.C. (“Reserve Alloys”), Reserve CA

Twinsburg, L.L.C. (“Reserve CA”), Chris Iaconna (“Iaconna”), Tony Zola (“Zola”),

Wayne Clemmons (“Clemmons”), Gene Farrell (“Farrell”), and Eric Pyles (“Pyles”)

(collectively referred to as “defendants”).   For the reasons set forth below, we reverse

and remand.

       {¶2} The instant appeal arises from a personal injury action plaintiffs field

against the defendants for injuries Darrell sustained while working at Reserve Alloys in

Twinsburg, Ohio.

       {¶3} In October 2011, Darrell was unemployed.         While at a Halloween party, he

learned of a potential job opportunity at Reserve Alloys, an aluminum recycling business.

 Darrell interviewed with Production Supervisor Iaconna at Reserve Alloys’ facility in

November 2011.       He hired Darrell but then referred Darrell to Alliance Staffing

Solutions (“Alliance”), a temporary employment service, regarding employment.

Alliance assigned Darrell to work solely at Reserve Alloys, even though he was

technically employed by Alliance.

       {¶4} There were two mechanized shredders at Reserve Alloys’ facility.             The

smaller machine processed aluminum scraps, which were initially dumped on a shaker
table.1 One of Darrell’s responsibilities was to pick out the bigger pieces of aluminum

that were too large for the machine.       The remaining smaller pieces of aluminum were

transported up an inclined conveyor belt to the top of the shredding machine and dumped

inside.       The operation manual warned, in several places, to turn off the machine before

attempting to clear a jam and to never feed combustible materials, including aluminum,

into the machine. Failure to comply with the warnings could result in fire or explosions

resulting in serious injury or death.

          {¶5} The smaller shredder generated aluminum dust during the shredding

operations. Maintenance Supervisor Farrell, during his deposition, acknowledged that

aluminum dust can be combustible.        Occasionally, aluminum scraps became tangled and

would not pass through the shredder.       These “hairballs” had to be cleared by reversing it

out of the shredder. If that did not work, workers would feed larger materials into the

shredder in an effort to force the “hairball” through the machine.

          {¶6} On June 27, 2012, Darrell was assigned to pick the larger aluminum scraps

out of the “turnings” onto the shaker table.     The “turnings” were shavings produced by

drill presses. At some point, Darrell observed a bluish-white smoke coming from the

machine, and the turnings stopped passing through. A coworker instructed Darrell to

alert the maintenance staff, who inspected the shredder.             Either Pyles or Farrell

instructed Darrell to start shoveling chunks of aluminum onto the conveyor belt, which


        The smaller shredder was purchased used.
          1
                                                    Before Reserve Alloys acquired the unit, the
hood had exploded and there was a fire.
were then dumped into the unit.     The shredder continued to emit smoke.      After Darrell

finished shoveling the aluminum into the shredder, Pyles gave Darrell a “thumbs up” and

Darrell proceeded to walk underneath the conveyor belt.      He heard a “loud whoosh” and

observed a wall of flames rushing toward him.       He was on fire and rushed toward the

exit while stripping off his burning clothes.       He was life-flighted to MetroHealth

Medical Center.    Darrell sustained second-degree burns over 20 percent of his body,

including his arms, face, hands, ears, chest, and neck.     Darrell remained in the hospital

until July 13, 2012.     Over a year of further treatments and therapy followed.         He

received workers’ compensation benefits for his injuries.     His benefits had ceased about

a month before his deposition in April 2015. Darrell testified that his benefits stopped

because he reached maximum medical improvement, but that he had not returned to work

at that time because of his mental state.

       {¶7} In June 2014, Darrell and Pam filed a complaint against several defendants

for the injuries Darrell sustained while at Reserve Alloys.2 The complaint alleged that

Darrell was set on fire and suffered significant burns in a machine explosion at a plant

owned and controlled by Reserve Alloys and Reserve CA.               The complaint further

alleged that Iaconna, Zola, Clemmons, Farrell, and Pyles each played a role in the

incident.   Darrell raised claims for statutory workplace intentional tort (Count 1) against

Reserve Alloys and Alliance; common law workplace intentional tort (Count 2) against


       2
         A number of other defendants had been named in the complaint, all of whom were
voluntarily dismissed by the plaintiffs.
Iaconna, Zola, Clemmons, Farrell, and Pyles; frequenters statute violations (Count 3)

against Reserve Alloys and Alliance; premises liability (Count 4) against Reserve CA,

Reserve Management Group, and Regency Technologies; and negligence (Count 5). Pam

raised a claim for loss of consortium.   Darrell also raised additional claims against other

defendants that were later dismissed and are not germaine to this appeal.

       {¶8} In November 2015, defendants filed their motion for summary judgment,

maintaining that Darrell was a “borrowed employee” of Reserve Alloys at the time of the

incident.   Defendants maintained that they are immune under Ohio’s Workers’

Compensation Act and that Darrell is limited to pursuing a workplace intentional tort

claim under R.C. 2745.01, which he cannot satisfy. Darrell opposed, and the defendants

submitted a reply brief.

       {¶9} In March 2016, the trial court granted summary judgment in favor of the

defendants, finding “that there are no genuine issues of material fact, and that defendants

are entitled to judgment as a matter of law as to all counts.”

       {¶10} It is from this order that plaintiffs appeal, raising the following single

assignment of error for review.

                                    Assignment of Error

       The trial court erred, as a matter of law, by granting summary judgment
       upon the personal injury claims that have been raised and substantiated by
       plaintiff[s]-appellants.

       {¶11} At appellate oral argument, both parties agreed that the “key issue in this

case is whether or not [plaintiffs’] claims fall within the scope of Ohio’s Workers’
Compensation Act or whether [plaintiffs] may pursue common tort liability claims against

[defendants].”

       {¶12} 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. (1995), 73 Ohio St.3d 679, 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 (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264.
       {¶13} 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.
       {¶14} In their summary judgment motion, the defendants argue that Darrell is a

“borrowed employee” for workers’ compensation purposes.         Therefore, they maintain

that they are afforded immunity against common law damage claims as set forth in R.C.

4123.74.

       {¶15} R.C. 4123.74 provides immunity to employers when a legitimate

employee/employer relationship exists and the employee was insured in the course of or

arising out of his employment. It states:

       Employers who comply with [R.C.] 4123.35 shall 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 his employment, or for any death resulting from
       such injury, occupational disease, or bodily condition occurring during the
       period covered by such premium so paid into the state insurance fund, or
       during the interval the employer is a self-insuring employer, whether or not
       such injury, occupational disease, bodily condition, or death is compensable
       under this chapter.

       {¶16} In support of their argument, defendants rely on Daniels v. MacGregor Co.,

2 Ohio St.2d 89, 206 N.E.2d 554 (1965), and Carr v. Cent. Printing Co., 2d Dist.

Montgomery No. 16091, 1997 Ohio App. LEXIS 2526 (June 13, 1997). In Daniels, a

temporary worker, who was employed by Manpower, Inc., fell off a ladder while working

for MacGregor.    MacGregor was a customer of Manpower.       Id. at 89.   MacGregor and

Manpower had a written agreement, establishing the terms of their relationship. Id. at

90.   The Ohio Supreme Court addressed whether MacGregor was entitled to immunity,

even though the temporary worker was employed by Manpower.        The court found that

       [w]here an employer employs an employee with the understanding that the
       employee is to be paid only by the employer and at a certain hourly rate to
      work for a customer of the employer and where it is understood that that
      customer is to have the right to control the manner or means of performing
      the work, such employee in doing that work is an employee of the customer
      within the meaning of the Workmen’s Compensation Act; and, where such
      customer has complied with the provisions of the Workmen’s Compensation
      Act, he will not be liable to respond in damage for any injury received by
      such employee in the course of or arising out of that work for such
      customer. (Citations omitted).

(Emphasis added.) Id. at syllabus.

      {¶17} In Carr, a temporary employee was injured while working on a press at the

customer’s place of business.   The Carr court observed that the rule in Daniels, only

applied where the customer has complied with the provisions of the Workers’

Compensation Act. Id. at 5-6.    The court reasoned:

      In this regard, R.C. 4123.74 requires compliance with R.C. 4123.35, which

      specifically requires that an employer shall make premium payments into

      the workers’ compensation fund on behalf of its employees. And without

      such payments by the customer of the employment agency, either directly or

      indirectly, such customer cannot claim status as an employer nor the

      attending immunity provided by R.C. 4123.74.     See R.C. 4123.01(B)(2).

(Emphasis added.)   Id.

      {¶18} Courts have further recognized that both the employer and temporary agency

are entitled to immunity when the workers’ compensation premiums are paid. Russell v.

Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist.1999). In

Russell, the plaintiff-appellant was employed by cross-appellant (temporary agency),

which placed him as a temporary worker in a factory operated by appellee. Id. at 303.
In the course of performing his work, appellant’s hand became entangled and was pulled

into a machine, causing serious and permanent injury. Appellant brought suit against

appellee and cross-appellant.   He alleged an employer intentional tort and negligence

against both appellee and cross-appellant. Id.    The cross-appellant was later dismissed

from the case.   Following the appeal, cross-appellant sought and was granted leave to

intervene in order to maintain a subrogation claim if appellee was held liable. Id. See

also Nielsen v. Andersons, Inc., 6th Dist. Lucas No. L-06-1073, 2006-Ohio-5118,

discretionary appeal not allowed, 112 Ohio St.3d 1472, 2007-Ohio-388, 861 N.E.2d 145.

      {¶19} Thus, in determining whether defendants are afforded immunity under the

Workers’ Compensation Act, we must determine if Reserve Alloys contracted with

Alliance and paid workers’ compensation premiums for Darrell.        Based on our de novo

review of the record, it is not apparent that Reserve Alloys had a staffing agreement with

Alliance and paid Alliance the workers’ compensation premiums for Darrell.

      {¶20} In the instant case, a review of the record reveals that Reserve Alloys

required Darrell to be employed by Alliance in order to work at Reserve Alloys.         This

unusual employment arrangement first required Darrell to be interviewed for the position

and hired by Iaconna at Reserve Alloys but then referred to a temporary agency regarding

employment. Both Darrell and Reserve Alloys confirmed this arrangement, which was

not uncommon for Reserve Alloys.

      {¶21} The defendants submitted an affidavit from Reserve Alloys’ Chief Financial

Officer John Lentz (“Lentz”).   In his affidavit, Lentz stated that he is the Chief Financial
Officer for Reserve Alloys and Regency Technologies.3 Lentz averred that Reserve

Alloys and Regency Technologies are sister companies.                Lentz further averred that

Alliance had an agreement with Regency Technologies to staff Reserve Alloys.

According to Lentz, Darrell worked under the exclusive supervision and control of

Reserve Alloys, which maintained full discretion and authority to instruct and direct

Darrell.   Lentz claimed that Reserve Alloys directly paid Alliance for the work Darrell

performed.     However, in their motion for summary judgment, defendants directly

contradicted Lentz’s affidavit by asserting that “[a]t the time of his injuries, [Darrell] was

working through [Alliance] as a leased employee for [Reserve Alloys], through its parent

company, Regency Technologies.”            Defendants did not include any documentation

supporting    the   corporate    relationship    between     Reserve     Alloys    and    Regency

Technologies.4

       {¶22} It is clear that the staffing agreement at issue and referenced by Lentz

indicates that Regency Technologies is the customer, not Reserve Alloys, who claims to

be the customer for immunity purposes.          To add more confusion as to which corporate

entity is the customer, the addendum to the staffing agreement between Regency

Technologies and Alliance lists RSR Partners, L.L.C. as “the company” and Alliance as


       According to Zola, General Manager at Reserve Alloys, Regency Technologies is another
       3

company working out of the facility where Reserve Alloys is located. There is a wall that splits the
two companies.
       4
        In their appellate brief, defendants assert that “Reserve Alloys leases its premises from
Reserve CA pursuant to an Agreement of Lease under which Reserve Alloys has full possession of
the premises as a tenant of Reserve CA.”
the “temporary agency,” and the time cards submitted to Alliance for the hours Darrell

worked at Reserve Alloys lists RSR Partners, L.L.C. as the company.

       {¶23} These contradictions, along with the unknown corporate relationship

Reserve Alloys has with Regency Technologies, RSR Partners, L.L.C., and Reserve CA,

create a genuine issue of material fact.    It is not apparent that Reserve Alloys was the

employer who in fact contracted with the temporary agency and paid the workers’

compensation premiums.

       {¶24} It follows then that the individual defendants (Iaconna, Zola, Clemmons,

Farrell, and Pyles) are not entitled to summary judgment because their position also

requires a finding that Darrell was a “borrowed employee” of Reserved Alloys.

Donnelly v. Herron, 88 Ohio St.3d 425, 2000-Ohio-372, 727 N.E. 2d 882, syllabus

(employees employed by the same employer are entitled to immunity under the Workers’

Compensation Act under R.C. 4123.741). Accordingly, the trial court erred by granting

defendants’ motion for summary judgment.

       {¶25} Therefore, the sole assignment of error is sustained.

       {¶26} Judgment is reversed, and the matter is remanded for further proceedings

consistent with this opinion.

       It is ordered that appellants recover of appellees 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

MARY J. BOYLE, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
