[Cite as Thompson v. Oberlander's Tree & Landscape Ltd., 2016-Ohio-1147.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                             MARION COUNTY



BRET E. THOMPSON,

        PLAINTIFF-APPELLANT,
        -and-                                                    CASE NO. 9-15-44

OHIO BUREAU OF WORKERS
COMPENSATION,

        PLAINTIFF-APPELLEE,

        v.                                                       OPINION

OBERLANDERS TREE &
LANDSCAPE, LTD., ET. AL.,

        DEFENDANTS-APPELLEES.



                Appeal from Marion County Common Pleas Court
                           Trial Court No. 13CV0401

                      Judgment Reversed and Cause Remanded

                           Date of Decision:       March 21, 2016




APPEARANCES:

        Jami S. Oliver for Appellant

        Bruce A. Curry for Defendants-Appellees
Case No. 9-15-44


ROGERS, J.

         {¶1} Although originally placed on our accelerated calendar, we have

elected, pursuant to Local Rule 12(5), to issue a full opinion in lieu of a judgment

entry.

         {¶2} Plaintiff-Appellant, Bret Thompson, appeals the judgment of the

Court of Common Pleas of Marion County awarding Defendants-Appellees,

Oberlander’s Tree and Landscape LTD. (“the Company”), Roger Oberlander, and

Randy Jackson (collectively “Appellees”), summary judgment.1 For the reasons

that follow, we reverse the judgment of the trial court granting summary judgment

to the Company.

         {¶3} The following facts are undisputed. On October 6, 2011, Thompson

injured his left hand while using a chainsaw to cut a tree while working for the

Company. The chainsaw Thompson was using did not have the required safety

hand guard to protect the operator from “kickbacks.” A “kickback” happens

“when the tip of a chainsaw blade hits an obstruction, causing the blade to kick

back or kick up in the air.” Appellees’ Brief, p. 5. When a chainsaw experiences

a “kickback,” the chainsaw’s brake will be triggered once anything makes contact

with the hand guard.



1
 We note that Thompson only appeals the trial court’s judgment as it pertains to the Company. Thus, this
opinion only addresses the award of summary judgment as to this entity and does not affect the trial court’s
decision to grant summary judgment to Jackson and Oberlander individually based on R.C. 4123.741.

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       {¶4} On June 26, 2013, Thompson filed a complaint in the Court of

Common Pleas of Marion County against the Appellees alleging two claims:

employer intentional tort and punitive damages.

       {¶5} The Appellees filed an answer on July 31, 2013, denying the

allegations alleged in the complaint.

       {¶6} The Appellees’ insurance company, United Ohio Insurance Company

(“United”), filed a motion to intervene as a party plaintiff, which included its

complaint against the Appellees. United’s motion was granted by the trial court

on November 13, 2013. The Appellees filed their answer to United’s complaint

on February 14, 2014.

       {¶7} On March 26, 2014, the Appellees filed a motion to join the Ohio

Bureau of Workers Compensation (“the Bureau”) as a subrogated party because it

was the real party in interest with respect to some of Thompson’s claims. The

motion was granted on July 21, 2014.

       {¶8} On October 3, 2014, United filed a motion for summary judgment

arguing that it did not owe the Appellees a duty to either defend or indemnify

them in the case.

       {¶9} The Bureau filed its intervening complaint against the Appellees on

October 10, 2014. In its complaint, the Bureau argued that it was entitled to relief




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Case No. 9-15-44


in the amount of the benefits it had paid to Thompson. The Appellees filed an

answer on October 27, 2014.

      {¶10} The trial court granted United’s motion for summary judgment on

December 19, 2014.

      {¶11} The Appellees filed a motion for summary judgment as to

Thompson’s complaint on July 15, 2015. In its motion, the Appellees argued that

Thompson had failed to present any evidence as to how the Appellees intended to

injure Thompson or how they deliberately removed a safety guard. In support of

their motion, the Appellees attached affidavits of Jackson and Oberlander.

      {¶12} Thompson filed his memorandum in opposition to the Appellees’

motion on August 7, 2015. Thompson argued that the Appellees deliberately

removed the hand guard, which constituted an equipment safety guard, by

deliberately deciding not to repair or replace the hand guard on the chainsaw

Thompson was using when he was injured. In support of his motion, Thompson

attached affidavits of two former employees of the Company, Roger Bowman and

Mark Saum, as well as the deposition transcripts of himself, Jackson, and

Oberlander.

      {¶13} On August 25, 2015, the Appellees filed their reply to Thompson’s

memorandum.




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         {¶14} The trial court granted the Appellees’ motion for summary judgment

on October 22, 2015. The court found that Thompson had failed to present any

evidence to show that the Appellees deliberately removed the hand guard. Thus, it

found that there were no genuine issues of material fact and the Appellees were

entitled to judgment as a matter of law. The court filed an entry of dismissal the

same day, dismissing Thompson’s complaint.2

         {¶15} Thompson filed this timely appeal, presenting the following

assignment of error for our review.

                                         Assignment of Error

         THE TRIAL COURT ERRED IN FINDING, AS A MATTER
         OF LAW, THAT AN EMPLOYEE MUST PROVE THAT THE
         EMPLOYER “SPECIFICALLY INTENDED TO INJURE THE
         PLAINTIFF” PURSUANT TO R.C. 2745.01(A) WHERE
         PLAINTIFF-APPELLANT SUBMITS EVIDENCE UNDER
         SUBSECTION (C) FROM WHICH REASONABLE MINDS
         COULD FIND A “DELIBERATE REMOVAL OF A SAFETY
         GUARD” IN AN INTENTIONAL TORT CASE.

         {¶16} In his sole assignment of error, Thompson argues that the trial court

erred by granting the Company’s motion for summary judgment. We agree.




2
  We note that the trial court did not dismiss the Bureau’s claims against the Appellees. Although this
claim appears to remain pending, it does not affect the finality of the court’s order. The Supreme Court of
Ohio has found “that a judgment in an action which determines a claim in that action and has the effect of
rendering moot all other claims in the action as to all other parties to the action is a final appealable order
pursuant to R.C. 2505.02, and Civ.R. 54(B) is not applicable to such a judgment.” Wise v. Gursky, 66 Ohio
St.2d 241, 243 (1981). Because the trial court dismissed Thompson’s claims, the Bureau’s claim as a
subrogated party was rendered moot by law. See Renner v. E. Mfg. Corp., 11th Dist. Portage No. 2001-P-
0135, 2002-Ohio-6691, ¶ 13, fn. 5.

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       {¶17} An appellate court reviews a summary judgment order de

novo. Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th

Dist.1999). However, a reviewing court will not reverse an otherwise correct

judgment merely because the lower court utilized different or erroneous reasons as

the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton

Heidelberg Distrib. Co., Inc., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d

Dist.), citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio

St.3d 217, 222 (1994). Summary judgment is appropriate when, looking at the

evidence as a whole: (1) there is no genuine issue as to any material fact, and (2)

the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). In

conducting this analysis the court must determine “that reasonable minds can

come to but one conclusion and that conclusion is adverse to the party against

whom the motion for summary judgment is made, [the nonmoving] party being

entitled to have the evidence or stipulation construed most strongly in the

[nonmoving] party’s favor.” Id. If any doubts exist, the issue must be resolved in

favor of the nonmoving party. Murphy v. City of Reynoldsburg, 65 Ohio St.3d

356, 358-359 (1992).

       {¶18} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). In doing so, the


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moving party is not required to produce any affirmative evidence, but must

identify those portions of the record which affirmatively support his argument. Id.

at 292. The nonmoving party must then rebut with specific facts showing the

existence of a genuine triable issue; he may not rest on the mere allegations or

denials of his pleadings. Id.; Civ.R. 56(E).

       {¶19} R.C. 2745.01 is Ohio’s employer intentional tort statute. It states, in

relevant part:

       (A) In an action brought against an employer by an employee, * * *
       for damages resulting from an intentional tort committed by the
       employer during the course of employment, the employer shall not
       be liable unless the plaintiff proves that the employer committed the
       tortious act with the intent to injure another or with the belief that the
       injury was substantially certain to occur.

       (B) As used in this section, ‘substantially certain’ means that an
       employer acts with deliberate intent to cause an employee to suffer
       an injury, a disease, a condition, or death.

       (C) Deliberate removal by an employer of an equipment safety
       guard * * * creates a rebuttable presumption that the removal or
       misrepresentation was committed with intent to injure another if an
       injury * * * occurs as a direct result.

Id.

       {¶20} Within the last few years, the Supreme Court of Ohio has defined

both “equipment safety guard” and “deliberate removal.” See Hewitt v. L.E.

Myers Co., 134 Ohio St.3d 199, 2012-Ohio-5317, ¶ 26, 30. The court first found

that an “equipment safety guard” is “ ‘a device that is designed to shield the


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operator from exposure to or injury by a dangerous aspect of the equipment.’ ” Id.

at ¶ 26, quoting Fickle v. Conversion Technologies Internatl., Inc., 6th Dist.

Williams No. WM-10-016, 2011-Ohio-2960, ¶ 43.

       {¶21} Next, the Hewitt court found that an employer deliberately removes a

safety guard “when an employer makes a deliberate decision to lift, push aside,

take off, or otherwise eliminate that guard from the machine.” Id. at ¶ 30. In

doing so, the court noted that “[a]lthough ‘removal’ may encompass more than

physically removing a guard from equipment and making it unavailable, such as

bypassing or disabling the guard, an employer’s failure to train or instruct an

employee on a safety procedure does not constitute the deliberate removal of an

equipment safety guard.” Id. at ¶ 29, citing Fickle at ¶ 45.

       {¶22} To support its finding that “removal” constitutes more than the

physical removing of a safety guard, the Hewitt court also cited the Seventh

District’s decision in Wineberry v. N. Star Painting Co., 7th Dist. Mahoning No.

11 MA 103, 2012-Ohio-4212. In Wineberry, an employee was injured when he

fell 15 feet from some scaffolding that had buckled. Id. at ¶ 4. While falling, the

employee sandblasted his arm. Id. The employee argued that he would not have

fallen had his employer installed guardrails on the scaffolding.      Id. at ¶ 17.

Further, he argued that the decision not to place guardrails on the scaffolding

constituted a deliberate removal. Id. at ¶28. To an extent, the court agreed and


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found “that deliberate removal not only encompasses removing safety equipment,

but also the failure to attach safety equipment provided by the manufacturer.”

(Emphasis added.) Id. at ¶ 38. However, the court affirmed the trial court’s

judgment awarding summary judgment to the employer because the employee

failed to present any evidence that the guardrails were either provided or required

by the manufacturer. Id. at ¶ 39.

       {¶23} Although Wineberry was decided two months prior to Hewitt, the

Hewitt court did not find it inconsistent with its decision. Further, the logic behind

Wineberry is inherent in the Hewitt court’s definition of “deliberate removal,”

namely, “when an employer makes a deliberate decision to * * * otherwise

eliminate that guard from the machine.” Hewitt, 2012-Ohio-5317 at ¶ 30. Thus,

Wineberry remains good law, although not binding on this court.

       {¶24} After the court’s decision in Hewitt, the Supreme Court of Ohio

decided Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491, 2012-

Ohio-5685. In Houdek, the court found that in the absence of a deliberate removal

of an equipment safety guard, an employee must establish that his employer acted

with the specific intent to injure him. Id. at ¶ 25. “The Houdek court rejected the

argument that the intent inquiry was an objective one satisfied by an employer’s

mere knowledge of a hazardous condition.” Broyles v. Kasper Machine Co., 517

Fed.Appx. 345, 353 (6th Cir.2013), citing Houdek.


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       {¶25} In this case, Thompson argues that an employer’s deliberate decision

not to replace or repair a safety guard, which comes installed from the

manufacturer and that is required to be installed by law or regulation, amounts to

the deliberate removal of an equipment safety guard pursuant to R.C. 2745.01(C).

In response, the Company argues that an employer’s knowledge of a hazardous

condition is insufficient to make a finding that the employer deliberately removed

an equipment safety guard.

       {¶26} In support of its argument, the Company cites Houdek for the

proposition that “[e]ven if an employer places an employee in a potentially

dangerous situation, there must also be evidence that either management or the

supervisor deliberately intended to injure the employee for R.C. 2745.01(C) to

apply.” Appellees’ Brief, p. 11. Moreover, the Fifth District Court of Appeals has

taken a similar standpoint on Houdek. See Beary v. Larry Murphy Dump Truck

Serv., Inc., 5th Dist. Stark No. 2013CA00240, 2014-Ohio-4333, ¶ 22, citing

Houdek. However, after a close reading of Houdek, we find that the Company’s

and the Fifth District’s interpretations are mistaken.

       {¶27} In Houdek, the court addressed the issue of “whether a claimant

bringing an employer intentional tort claim is required to prove that the employer

acted with a deliberate intent to injure.” 2012-Ohio-5685 at ¶ 13. Although R.C.

2745.01(A) seems to allow recovery for an employer intentional tort in two


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scenarios (when the employer acts with the intent to injure OR with the belief that

the injury was substantially certain to occur), the court found that 2745.01(B)

limits an employee’s ability to recover in only situations where the employer acts

with the specific intent to injure. Id. at ¶ 23. The court wrote “ ‘the General

Assembly’s intent in enacting R.C. 2745.01, as expressed particularly in

2745.01(B), is to permit recovery for employer intentional torts only when an

employer acts with specific intent to cause an injury, subject to subsections (C)

and (D).’ ” (Emphasis sic.) Id., quoting Kaminski v. Metal & Wire Prods. Co.,

125 Ohio St.3d 250, 2010-Ohio-1027, ¶ 56.

       {¶28} The court applied its finding to the facts in that case and found that

the employee had failed to present any evidence that the employer specifically

intended to injure him. Id. at ¶ 26.

       {¶29} The Houdek court’s only analysis of R.C. 2745.01(C) is contained in

one paragraph.     The court found that adequate lighting conditions and safety

devices such as orange cones, reflective vests, and retractable gates were not

equipment safety guards and stated that there was no evidence that the employer

deliberately removed them. Id. at ¶ 27.

       {¶30} Thus, Houdek does not support the statement that R.C. 2745.01(C)

requires that the employer possessed a deliberate intent to injure to be applicable.

“Under R.C. 2745.01(C), the predicate facts – an employer’s deliberate removal of


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Case No. 9-15-44


an equipment safety guard and directly resulting injury – give rise to a prima facie

finding of intent to injure.” Hoyle v. DTJ Ents., Inc., 143 Ohio St. 3d 197, 2015-

Ohio-843, ¶ 23. If we were to adopt the Company’s logic, then the standard to

establish the rebuttable presumption would be the same as the standard in R.C.

2745.01(A), therefore eliminating the need for any presumption. “It would be

quite anomalous to interpret R.C. 2745.01(C) as requiring proof that the employer

acted with the intent to injure in order [to] create a presumption that the employer

acted with the intent to injure. Such an interpretation would render division (C) a

nullity.” Fickle, 2011-Ohio-2960 at ¶ 32, fn. 2. Rather, as the unambiguous

language of the statute states, R.C. 2745.01(C) serves as a rebuttable presumption

that the intent to injure, required under R.C. 2745.01(A), has been proven by the

employee.

      {¶31} Next, we turn our attention to whether Thompson’s argument

withstands scrutiny.    Neither party disputes whether the hand guard is an

equipment safety guard, as the hand guard is “ ‘a device that is designed to shield

the operator from exposure to or injury by a dangerous aspect of the equipment.’ ”

Hewitt, 2012-Ohio-5317 at ¶ 26, quoting Fickle at ¶ 43. If a kickback occurs,

causing the operator to lose control of the chainsaw, the hand guard triggers the

saw’s brake when contacted. This act prevents the operator from being cut by the




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saw. Thus, the question becomes whether the deliberate decision not to replace or

repair a required safety guard constitutes the deliberate removal of said guard.

       {¶32} To answer this question, we look to the Seventh District’s opinion in

Wineberry for guidance. The Wineberry court addressed a very similar question to

the one asked here, which was whether the failure to replace safety guardrails on

scaffolding perches constituted the deliberate removal of a safety guard. The court

answered in the affirmative, finding “that deliberate removal not only

encompasses removing safety equipment, but also the failure to attach safety

equipment provided by the manufacturer.” 2012-Ohio-4212 at ¶ 38. The court

reasoned, “If a machine is shipped not fully assembled and the employer does not

install the guard that comes with the machine, under a narrow construction it

might not be considered deliberate removal since the guard was not initially

attached.” Id. Therefore, the court found that a broader interpretation of the term

“remove” was required. This definition was not without its limits though, as the

court required that to have deliberate removal the safety guard must be required to

be in place by the manufacturer or by law/regulation. See id. at ¶ 39-40. The

court found that the guardrails were not provided by the manufacturer nor were

they required by any law or regulation. Id. at ¶ 39.

       {¶33} As noted supra, Wineberry was decided before the Supreme Court of

Ohio defined “deliberate removal” in Hewitt. Whereas the court in Hewitt found


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that a broad definition of the term “equipment safety guard” was not compatible

with the General Assembly’s intent as laid out in the statute, the court did not

make a similar finding as to “deliberate removal.” See Hewitt at ¶ 25, 29. Rather,

the court wrote that “ ‘removal’ may encompass more than physically removing a

guard from equipment and making it unavailable, such as bypassing or disabling

the guard * * *.” Id. at ¶ 29. Hence, the court’s final definition that includes

“otherwise eliminate [the] guard * * *” is broad and could encompass several

different actions. Id. at ¶ 30.

       {¶34} Given the Supreme Court of Ohio’s broad definition of “deliberate

removal” and the similarities in Wineberry, we find that an employer deliberately

removes an equipment safety guard when it makes a deliberate decision not to

either repair or replace an equipment safety guard that is provided by the

manufacturer and/or required by law or regulation to be on the equipment. This

type of conduct goes beyond the realm of negligence or recklessness because the

employer’s careful and considered decision not to replace or repair a broken or

missing guard is essentially “eliminat[ing the] guard.” Id. There could be several

reasons why an employer may wish not to replace or repair a guard, be it financial

(does not want to pay to have the guard fixed or replaced), business-related (slows

down production), or several other reasons.




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Case No. 9-15-44


       {¶35} The Company cites numerous cases to support its proposition that an

omission may constitute negligence or recklessness, but is insufficient to prove

deliberate intent to injure. See generally Houdek, 2012-Ohio-5685; Meadows v.

Air Craft Wheels, L.L.C., 8th Dist. Cuyahoga No. 96782, 2012-Ohio-269; Hubble

v. Haviland Plastic Prods., Co., 3d Dist. Paulding No. 11-10-07, 2010-Ohio-6379.

The problem with the Company’s argument is that these cases state that

negligence or recklessness is not sufficient to support a finding of deliberate intent

to injure under R.C. 2745.01(A), not R.C. 2745.01(C). Again, R.C. 2745.01(C)

provides an avenue for a plaintiff to raise a rebuttable presumption of the

employer’s intent to injure. It is not held to the same standard as subsection (A).

Moreover, most of the Company’s cases do not analyze R.C. 2745.01(C). Rather

they focus on the deliberate intent to injure under R.C. 2745.01(A).

       {¶36} Next, we look to the facts as provided in the record to determine if a

genuine issue of material fact exists as to whether Thompson established the

rebuttable presumption under R.C. 2745.01(C). We answer in the affirmative.

       {¶37} First, the hand guard at issue was provided by the manufacturer and

required to be on the chainsaw by both state and federal regulations. The saw used

in this case was a Stihl 066. Portions of the saw’s owner’s manual were included

as three exhibits to Jackson’s deposition.         Specifically, the manual states

“Warning! Never operate your chainsaw without a front hand guard.” Jackson


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Case No. 9-15-44


Depo., Ex. 5. The manual is also clear that the brake will not function if there is

no hand guard. Further, the Company conceded that the hand guard is required by

the manufacturer and all the industry standards. Both Oberlander and Jackson also

stated that using a chainsaw without a hand guard is extremely dangerous and can

cause serious injury to the operator.

       {¶38} Not only is the hand guard required to be on the saw by the industry

standards and the manufacturer, but it is also required by Ohio regulations.

O.A.C. 4123:1-5-07(C) requires that “All hand tools and hand-held portable

powered tools and other hand-held equipment whether furnished by the employee

or the employer shall be maintained in a safe condition, free of worn or defective

parts.” Moreover, the regulations require that “All portable power-driven saws

with blades more than two inches in diameter shall be equipped with guards above

and below the base plate shoe.”         O.A.C. 4123:1-5-07(D)(1).      Chainsaws,

specifically, “shall have all guards and handles, provided by the manufacturer, in

place, all controls functioning properly and mufflers operative.” O.A.C. 4123:1-5-

07(D)(2)(a).

       {¶39} Finally, federal regulations require that all chainsaws have a front

hand guard in place. 29 C.F.R. 1910.266(e)(2)(i). Specifically, “Each chain saw *

* * shall be equipped with a chain brake * * *. Each chain saw * * * shall be

equipped with a protective device that minimizes chain-saw kickback. No chain-


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Case No. 9-15-44


saw kickback device shall be removed or otherwise disabled.” (Emphasis added).

Id. Thus, it is very clear from the record that Thompson established that the hand

guard was required to be fully functional and on the chainsaw.

      {¶40} Second, the Company was aware that the chainsaw that injured

Thompson was lacking a hand guard before Thompson was injured. Thompson

testified in his deposition that he told management, specifically Oberlander and

Jackson, on at least two separate occasions that the hand guard was either broken

or missing and needed repaired or replaced. Additionally, Thompson produced

the affidavits of Saum and Bowman who testified that they both had complained

to management about saws with broken or missing hand guards.             Bowman

specifically remembers Thompson telling management about the saw missing the

hand guard.

      {¶41} Third, when viewed in a light most favorable to Thompson,

Thompson provided evidence that the Company made a deliberate decision not to

repair or replace the hand guard. In their affidavits, both Bowman and Saum

stated that employees were told to either use the saws that were provided by the

Company or they would get fired. Thompson testified that the saw was missing

the hand guard from the first day he started working for the Company. More

evidence that the Company made a deliberate decision not to replace or repair the

hand guard comes from the fact that the same saw that injured Thompson was sent


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in for repairs prior to him being injured. Specifically, a new chain was put on the

saw. Thompson testified that the hand guard was missing when the saw was sent

to the shop and was not returned with a repaired or new one attached.

       {¶42} Therefore, we find that Thompson has presented sufficient evidence

to establish the presumption of intent to injure under R.C. 2745.01(C).

       {¶43} The question then becomes whether the Company presented

sufficient evidence to rebut the presumption. The only evidence that the Company

produced were the affidavits of Jackson and Oberlander. In the affidavits, both

deny any intent to injure Thompson. However, “self-congratulatory affidavits,”

where the defendants deny any intent to injure, standing alone are not sufficient to

rebut the presumption in R.C. 2745.01(C). See Downard v. Rumpke of Ohio, Inc.,

12th Dist. Butler No. CA2012-11-218, 2013-Ohio-4760, ¶ 60, citing Rudisill v.

Ford Motor Co., 709 F.3d 595, 605 (6th Cir.2013); Dudley v. Powers & Sons,

L.L.C., 6th Dist. Williams No. WM-10-015, 2011-Ohio-1975, ¶ 21 (“The

testimony of a Powers employee cannot be weighed so heavily to say that

reasonable minds could not disagree on the issue of intent.”). Thus, the Company

has failed to rebut the presumption and is not entitled to judgment as a matter of

law.

       {¶44} Accordingly, we sustain Thompson’s sole assignment of error.




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       {¶45} Having found error prejudicial to the appellant, in the particulars

 assigned and argued, we reverse the judgment of trial court as to the claim against

 the Company and remand the matter for further proceedings consistent with this

 opinion.

                                                           Judgment Reversed and
                                                                Cause Remanded

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr




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