Immunity Afforded to Ohio Subcontractors Under Contractor’s Self-Insurance Plan is Constitutional

The grant of immunity afforded to subcontractors enrolled in an Ohio contractor’s self-insurance plan [see Ohio Rev. Code Ann. § 4123.35(O)] from claims by employees of another enrolled subcontractor does not violate right-to-remedy, right-to-jury, or equal-protection provisions of the Ohio Constitution, held the state’s highest court in Stolz v. J & B Steel Erectors, 2018-Ohio-5088, 2018 Ohio LEXIS 3011 (Dec. 20, 2018). This decision supplements an earlier one in which the Court found that the application of the immunity statute gave protections not only to the self-insuring general contractor, but to enrolled subcontractors.


During construction of the Horseshoe Casino in Cincinnati, Stolz was injured when a floor upon which he was working collapsed, causing him to fall some 25 feet. Stolz was employed as a concrete finisher for Jostin Construction, Inc. (“Jostin”). Jostin was a subcontractor of Messer Construction Company (“Messer”), the general contractor for the project.

Prior to the start of construction, Messer received permission from the Ohio Bureau of Workers’ Compensation to act as the self-insuring employer on the project under Ohio Rev. Code Ann. § 4123.35(O). Under the statute, Messer provided workers’ compensation coverage on the project for its own employees as well as the employees of subcontractors like Jostin that chose to enroll in Messer’s self-insurance plan (“enrolled subcontractors”).

After he was injured, Stolz sued Messer and several of the subcontractors in federal court for negligence. Messer and three of the enrolled subcontractors moved for summary judgment on the grounds that they are immune from liability under R.C. 4123.35(O)’s provisions concerning contractor self-insurance.

Stolz I

The federal district court granted summary judgment to Messer, as the general contractor, but refused to extend immunity to the subcontractors. Following summary judgment, the Supreme Court of Ohio accepted its first certified question of state law from the federal court. That question asked whether R.C. 4123.35 and 4123.74 provide immunity to enrolled subcontractors from tort claims brought by employees of other enrolled subcontractors [Stolz I, 146 Ohio St.3d 281, 2016-Ohio-1567, 55 N.E.3d 1082, at ¶ 8]. The Court answered the question in the affirmative, concluding that the statutes “create a legal fiction that a self-insuring employer for a self-insured construction project is the single employer, for workers’ compensation purposes, of all employees working for enrolled subcontractors on that project” [Id. at ¶ 27].

Stolz II

Back before the district court, in the instant case, Stolz amended his complaint to allege that R.C. 4123.35(O) violated various provisions of the United States and Ohio Constitutions. Once more, the enrolled subcontractors petitioned the district court to certify a question of state law to Ohio’s Supreme Court. Again, the Court accepted. The question was:

Whether Ohio [Rev. Code §] 4123.35(O) is unconstitutional as applied to the tort claims of an enrolled subcontractor’s employee who is injured while working on a self-insured construction project and whose injury is compensable under Ohio’s workers’ compensation laws.

In extensive discussion, the Court held answered the question in the negative: the provision does not violate the Ohio Constitution’s right-to-remedy, right-to-jury, or equal-protection provisions.

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