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Boggs v. Columbus Steel Castings Co.9/13/2005
{ } Plaintiff-appellant, John B. Boggs, filed an intentional tort action against defendant-appellee, Columbus Steel Castings Co. ("CSC"), and John Does #1-10, as the result of sustaining serious personal injuries while performing work for CSC. CSC filed a motion to dismiss for lack of jurisdiction pursuant to Civ.R. 12(B)(1) or, in the alternative, motion to compel arbitration and stay proceedings. CSC contends that appellant signed a written agreement in which he expressly waived his right to file a lawsuit alleging intentional tort, but, rather, agreed to resolve his claims through mediation and/or arbitration. The trial court found CSC was an intended third-party beneficiary of the Dispute Resolution Plan ("DRP") that appellant had signed and granted CSC's motion to compel arbitration and the motion to stay the proceedings. The products liability action remained pending against the John Doe defendants. Appellant filed a notice of appeal and raises the following assignment of error:
The Trial Court Erred to the Substantial Prejudice of the Plaintiff-Appellant in Granting the Defendant-Appellee's Motion to Compel Arbitration and Stay Proceedings.
{ } By the assignment of error, appellant contends that the trial court erred in granting CSC's motion to compel arbitration and stay proceedings. At the time of the injury, appellant was employed by ELS, Inc., a professional employer organization. ELS is in the business of assigning employees to companies and providing related employment services. In February 2003, CSC and ELS entered into a Vendor Agreement, in which CSC, a steel forging plant, is referred to as "the Client" and ELS provides personnel services. (See Vendor Agreement, at 1, attached as an Exhibit to Defendant's Responses to Plaintiff's First Set of Interrogatories and Request for Production of Documents.) ELS is the sole employee-leasing agency for CSC and operates an office at CSC to assign individuals to work for CSC. (Milligan affidavit, at .) In fact, ELS supplies services of advertising, interviewing, selecting process, testing, providing drug tests, physicals and placing people at CSC. (Malenick depo., at 11.) ELS representatives make hiring decisions. Id. All of CSC's employees are hired by ELS and assigned to CSC as co-employees, including CSC's chairman and CEO, Don Malenick, and CSC's President, Ron Heineman. (Eugene Easley, Jr. affidavit, at ; Heineman depo., at 16, 22.)
{ } ELS provides an alternative DRP for the benefit of its employer clients. ELS drafted a plan for CSC and CSC's counsel adjusted some of the language. (Heineman depo. at 20.) It is this alternative DRP, which is at issue in this case. Appellant contends that the DRP only applies to claims against ELS and CSC contends that it applies to claims against either or both ELS and CSC.
{ } Appellant was hired by ELS and assigned to CSC on August 4, 2003. (Milligan affidavit, at .) During his orientation at the CSC worksite, he was provided the DRP by an ELS employee assigned as a CSC human resources representative and appellant signed an acknowledgement of receipt. (See Exhibit A to Milligan affidavit attached to Brief in Support of Defendant's Motion to Dismiss for Lack of Jurisdiction or, in the alternative, Motion to Compel Arbitration and Stay Proceedings.) Appellant does not contest that he signed the DRP, nor does he contest its validity or enforceability. He contends that CSC is not a party to the DRP, and not an intended third-party beneficiary.
{ } Appellant argues that the standard of review for this court is de novo and CSC contends that we determine whether the trial court abused its discretion. Generally, the standard of review for a decision deny
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