Carnahan v. Morton Buildings, Inc.

2014 Ohio 4139

SAMUEL N. CARNAHAN, PLAINTIFF-APPELLANT, v. MORTON BUILDINGS, INC., ET AL., DEFENDANTS-APPELLEES.

CASE NO. 11-14-02

COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PAULDING COUNTY

September 22, 2014

OPINION

Appeal from Paulding County Common Pleas Court

Trial Court No. CI-12-0242

Judgment Affirmed

APPEARANCES:

Shawn M. Wollam for Appellant

Tracey S. McGurk for Appellee, Morton Bldg., Inc.

Carolyn S. Bowe for Appellee, Ohio B.W.C.

PRESTON, J.

{¶1} Plaintiff-appellant, Samuel N. Carnahan ("Carnahan"), appeals the March 18, 2014 judgment entry of the Paulding County Court of Common Pleas. Carnahan argues that the trial court erred in granting summary judgment in favor of defendants-appellees, Morton Buildings, Inc. ("Morton") and the Ohio Bureau of Workers' Compensation ("BWC") (collectively "defendants"), on his workers' compensation claim. For the reasons that follow, we affirm.

{¶2} Carnahan was injured in an all-terrain vehicle ("ATV") accident on August 24, 2011. (Carnahan Depo, Doc. No. 11 at 38). Carnahan's injury occurred on a 100-acre property located in Augusta, Missouri, at which Carnahan was constructing a pole barn for his employer, Morton. (Id.).

{¶3} Carnahan began his employment with Morton in May 2008. (Id. at 8). Carnahan worked as a crew leadman until he was promoted to a crew foreman in March or April 2010. (Id. at 12). Carnahan received his assignments from Morton's Paulding, Ohio sales manager, Jeff Dawson, and reported to area crew supervisor, Doug Weinman ("Weinman"). (Id. at 12, 15). As a crew foreman, Carnahan was paid on an hourly basis and responsible for managing his and his crew's timesheets. (Id. at 16). In addition, he was responsible for reviewing blueprints with customers to ensure they reflected the customers' requests. (Id. at 14). Because Morton maintained a separate sales department that was responsiblefor soliciting new business, Carnahan was not required or authorized to entertain or solicit any current or potential clients. (Weinman Aff., Doc. No. 10, Ex. 3).

{¶4} In August 2011, Carnahan, along with two crew members, Chad Breedlove and Trent Wooden, was assigned to travel to Augusta, Missouri for three weeks to construct a 42-foot by 90-foot pole barn. (Carnahan Depo., Doc. No. 11 at 18-20, 23). The pole barn was to be constructed on the 100-acre property owned by Bill Holcamp ("Holcamp"). (Id. at 35).

{¶5} When Carnahan arrived in Missouri, he went to the jobsite and met with Chad Cox ("Cox"), a salesman with Morton's sales office in Mexico, Missouri. (Id. at 16, 20). Cox provided Carnahan the job packet and information for the hotel that Cox reserved for the crew. (Id. at 20). While reviewing the blueprints for the project, Cox asked the crew, "I just ask you guys to do a good job, do me a good job building this building, you know, so the customer stays happy because * * * I have a possibility of some return business with this guy, a couple more buildings possibly." (Id. at 21).

{¶6} Cox introduced the crew to Buck Parsons ("Parsons"), the farm manager Holcamp employed to assist in the management of the property. (Id.). Holcamp also employed a farmhand, Bob Stevens ("Stevens"), who reported to Parsons. (Id. at 27). After meeting Parsons, Carnahan discussed the plans for the pole barn with him. (Id. at 20). Carnahan spoke with Parsons or Stevens dailyregarding the progress of the pole barn. (Id. at 26). Carnahan met with Holcamp on only one occasion during the construction of the pole barn. (Id. at 27). On that occasion, Carnahan asked Holcamp if the pole barn construction was to his satisfaction, to which he responded that it was. (Id.).

{¶7} The crew reported to the jobsite at 6:30 a.m. each workday and, at the end of each workday, they immediately left the site and returned to the hotel. (Id. at 22-23); (Weinman Aff., Doc. No. 10, Ex. 3). Carnahan indicated that the crew typically finished working between 4:30 and 5:00 p.m. (Carnahan Depo., Doc. No. 11 at 23). During the project, Carnahan contacted Cox weekly to arrange times for him to collect meal money for himself and his crew. (Id. at 24). Carnahan also contacted Cox during the second week of the project to request some trim pieces that he noticed were missing. (Id.). Carnahan expected Cox to deliver the missing trim pieces between the afternoon of August 24, 2011 and the morning of August 25, 2011. (Id. at 25). The crew was to return to Ohio on August 25, 2011 irrespective of whether Cox delivered the missing trim pieces.¹ (Id. at 29-31).

{¶8} Stevens mentioned multiple times to the crew during the last week of construction about taking a tour of the property. (Id. at 32). Specifically, on August 24, 2011, Stevens inquired during their lunch break if Carnahan and hiscrew were interested in the tour, and again when the crew was finishing cleaning up the worksite at approximately 4:30 to 5:00 p.m. (Id. at 33). When Stevens inquired about the tour at the time of the crew's lunch break, the crew told him that "we'll see how things go for the day." (Id. at 33). When Stevens again inquired about the tour, Carnahan was "doing [his] final walk around looking at the building * * * [to] make sure [they] didn't miss any screws, [to] make sure all the trim on the exterior [was] secured properly and nothing [was] missing" because the construction was complete, except for the missing trim pieces. (Id. at 30-31, 34). At that time, all of their equipment was loaded on the truck, but Carnahan needed to "double-check" the trailer to make sure the equipment was properly secured. (Id. at 34). Carnahan intended to "double-check" the trailer "later on." (Id.).

{¶9} The crew agreed to the tour and followed Stevens, each on his own ATV provided by Stevens. (Id. at 34, 35). Carnahan testified that the crew was interested in the tour "because [they] had heard so much about [the property]" from Parsons and Stevens. (Id. at 32). Neither Parsons nor Holcamp were present when the crew agreed to go with Stevens on the tour; however, Stevens received permission for the tour from Parsons, who received his permission from Holcamp. (Id. at 32, 35). Likewise, neither Parsons nor Holcamp invited the crew on the tour, just Stevens. (Id. at 32). According to Cox and Weinman, Carnahan did notinform anyone at Morton about the tour, or gain permission from anyone at Morton to take the tour. (Cox Aff., Doc. No. 10, Ex. 2); (Weinman Aff., Doc. No. 10, Ex. 3).

{¶10} The crew followed Stevens down a trail to a pavilion being constructed by another company near the property's 93-acre lake. (Carnahan Depo., Doc. No. 11 at 36). After seeing the pavilion, the group proceeded around the lake, and stopped at a cove, and a concrete dam. (Id.). At the dam, Stevens explained to the crew that Holcamp was considering some locations for the construction of a residential house and boathouse, and Stevens showed the crew the locations being considered. (Id.). Carnahan assumed the boathouse was one of the buildings Cox referred to when he indicated there was a possibility of future work for Morton on the property. (Id. at 39).

{¶11} At this time, the group had been riding the ATVs for approximately 30 minutes. (Id. at 37). After pointing out the locations for the residential house and boathouse, Stevens explained that they had to follow a trail up to a certain point and turn around to return to the construction site. (Id.). Carnahan testified that he then "took off" and headed up the trail described by Stevens. (Id.). Carnahan lost control of his ATV as he was heading up the trail. (Id. at 38). As a result of the ATV accident, Carnahan spent seven weeks in the hospital aftersustaining severe head trauma and a laceration to the right side of his head. (Id. at 39).

{¶12} Carnahan filed a First Report of an Injury, Occupational Disease or Death ("FROI-1") on April 24, 2012. (See Doc. No. 1). Morton, a self-insured employer, contested Carnahan's workers' compensation claim. (Doc. No. 2). As a result, Carnahan's claim was referred to the Industrial Commission for review. Thereafter, Carnahan's FROI-1 was denied by a district hearing officer ("DHO") for the Industrial Commission on July 7, 2012. (Doc. No. 1). Carnahan appealed the DHO's decision on July 27, 2012. (Id.). On September 6, 2012, a staff hearing officer ("SHO") for the Industrial Commission denied Carnahan's FROI-1 and disallowed his claim in its entirety. (Id.). Carnahan appealed the SHO's decision to the Industrial Commission on September 11, 2012, but the Industrial Commission issued an order on September 27, 2012 refusing to hear Carnahan's appeal. (Id.).

{¶13} On November 26, 2012, Carnahan appealed the matter to the Paulding County Court of Common Pleas. (Id.). As part of the discovery process, Morton deposed Carnahan on June 27, 2013. (Carnahan Depo., Doc. No. 11).

{¶14} On September 26, 2013, Morton filed a motion for summary judgment, arguing that Carnahan's injury did not occur in the course of, and arise out of, his employment with Morton and was therefore not a valid workers'compensation claim. (Doc. No. 10). In support of its motion, Morton attached Carnahan's deposition and affidavits of Cox and Weinman. (Id.) On October 25, 2013, Carnahan filed a memorandum in opposition to Morton's motion for summary judgment. (Doc. No. 14). Carnahan argued that genuine issues of material fact remained in dispute regarding the possibility of future work for Morton on the property, Carnahan's role as Morton's crew foreman, and whether Carnahan had completed his work for the day on August 24, 2011. (Id. at 7). On November 7, 2013, Morton filed a reply to Carnahan's memorandum in opposition to summary judgment. (Doc. No. 15).

{¶15} On January 10, 2014, the trial court issued a judgment entry granting summary judgment in favor of Morton. (Jan. 10, 2014 JE, Doc. No. 16). Carnahan filed his notice of appeal on February 3, 2014. (Doc. No. 17).

{¶16} On February 12, 2014, we dismissed Carnahan's appeal after...