
    BAGIN, Appellant, v. IRC FIBERS COMPANY, Appellee, et al.
    [Cite as Bagin v. IRC Fibers Co. (1991), 72 Ohio App.3d 1.]
    Court of Appeals of Ohio, Lake County.
    No. 90-L-14-012.
    Decided Jan. 2, 1991.
    
      
      Scott I. Levey, for appellant.
    
      
      William Michael Hanna and Susan C. Hastings, for appellee.
   Christley, Presiding Judge.

From 1949 to 1967, appellant’s deceased husband, John J. Bagin, was employed by IRC Fibers Division. During the time the appellant’s husband was employed, IRC Fibers Division was an unincorporated business owned and operated by Midland-Ross Corporation. Approximately two years after the appellant’s husband ceased employment with IRC Fibers Division, Midland-Ross sold the assets of IRC Fibers Division to American Cyanamid Company. Those assets were transferred to a newly incorporated subsidiary called IRC Fibers Company.

In 1985, appellant Norma Bagin alleged that her husband’s death on May 3, 1983 was due to a degenerative disease of the brain and central nervous system caused by exposure to an inhalation of carbon disulfide while in the course and scope of his employment. Being totally dependent on her husband for support, appellant filed an application for payment of compensation, which was assigned claim No. OD-23446-22. Appellee appealed the award granted by the Bureau of Workers’ Compensation and the Industrial Commission of Ohio to the Lake County Court of Common Pleas. In that court’s opinion, granting appellee’s motion for summary judgment, it stated that appellee was not the employer of appellant’s husband since the company had been transferred, and, pursuant to the sales contract American Cyanamid was indemnified from all legal obligations incurred before the transfer from Midland-Ross Corporation. It is from this judgment that appellant is now appealing alleging the following assignments of error.

“1. The trial court erred in finding no genuine issue of material fact when all evidence is construed in a light most favorable to plaintiff with regard to the issue of the identity of Mr. Bagin’s employer.

“2. The trial court erred in granting IRC Fibers Company’s motion for summary judgment where its argument of the lack of an employment relationship should be barred by the principal [sic] of equitable estoppel.

“3. The trial court erred in not holding that there was an issue of material fact relating] to the application of the doctrine of ‘apparent authority’ against appellee who held itself out to be one and the same entity as the IRC Fibers Company owned by the Midland-Ross Corporation.

“4. The trial court erred in failing to rule that Ohio Revised Code Section 4123.82 acted to bar appellee’s purchase agreement as a contractural [sic] attempt to indemnify an employer against liability for the payment of workers’ compensation premiums.”

In appellant’s first assignment of error, she raised the question as to whether the trial court erred in finding no genuine issue of material fact when all evidence was construed in a light most favorable to appellant with regard to the issue of the identity of the deceased’s employer.

“ * * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, 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, such party being entitled to have the evidence or stipulation construed most strongly in his favor.” Civ.R. 56(C).

“Summary judgment should be used cautiously so as not to usurp a litigant’s right to trial where conflicting facts and inferences are present. Inferences drawn from underlying facts must be viewed in the light most favorable to the party opposing a summary judgment motion. (Hounshell v. American States Ins. Co., 67 Ohio St.2d 427 [21 O.O.3d 267, 424 N.E.2d 311], followed.)” Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7, 13 OBR 8, 467 N.E.2d 1378 paragraph one of the syllabus.

The crucial question in this case boils down to whether an employee-employer relationship existed between appellee and appellant’s husband. “Employer” is defined by R.C. 4123.01(B) as:

“(2) Every person, firm, and private corporation, including any public service corporation, that (a) has in service one or more workmen or operatives regularly in the same business or in or about the same establishment under any contract of hire, express or implied, oral or written, or (b) is bound by any such contract of hire or by any other written contract, to pay into the insurance fund the premiums provided by Chapter 4123. of the Revised Code.”

In appellant’s response to appellee’s motion for summary judgment, she swore in her affidavit that “to the best of [her] recollection, the name of the payor on the checks was I.R.C. Fibers Company of Painesville.” Additionally, in the joint answer of the Administrator of the Industrial Commission and the Industrial Commission, they admit appellant’s husband was employed with IRC Fibers Company from 1949 to 1967.

Although appellant correctly cites Coviello v. Indus. Comm. (1935), 129 Ohio St. 589, 3 O.O. 9, 196 N.E. 661, for the proposition that, in order for an employer-employee relation to exist, there must be an implied or expressed contract of hire, appellee’s signing of appellant’s husband’s paychecks is sufficient at least to imply such a relationship.

Furthermore, the sales contract before the court of common pleas leaves a question on which reasonable minds could differ as to whether appellee was appellant’s decedent’s employer. Although appellee argues that Section 2.4 of the purchase agreement stating appellee “shall not assume * * * any liability” relieved it of liability, this same agreement supports the finding appellee is or could be liable.

Appellee is correct that, as a general proposition, a successor corporation does not assume the predecessor’s obligations. Flaugher v. Cone Automatic Machine Co. (1987), 30 Ohio St.3d 60, 30 OBR 165, 507 N.E.2d 331. However, there are four well-recognized exceptions to this rule:

“(1) the buyer expressly or impliedly agrees to assume such liability;

“(2) the transaction amounts to a de facto consolidation or merger;

“(3) the buyer corporation is merely a continuation of the seller corporation; or

“(4) the transaction is entered into fraudulently for the purpose of escaping liability.” (Emphasis added and citations omitted.) Flaugher, supra, at 62, 30 OBR at 167, 507 N.E.2d at 334. See, also, Ohio Adm. Code 4121-7-03.

The gravamen of the “mere continuation” exception is whether there is a continuation of the corporate entity. Indicia of the continuation of the corporate entity would include the same employees, a common name, the same product, the same plant. Id., 30 Ohio St.3d at 64-65, 30 OBR at 169, 507 N.E.2d at 336.

The facts in this case fall within this third exception. A perusal of the purchase agreement attached to appellee’s motion for summary judgment supports this finding. Appellee purchased IRC Fibers Division “ * * * as an on going concern * * * ” and continued to do business under substantially the same name. Furthermore, the business continued to operate at the same location, and kept the same employees. This evidence could support a finding that the purchasing corporation was merely a continuation of the selling corporation.

Appellee argues that the provision in the purchase agreement stating appellee would “not assume or otherwise be obligated to pay, perform or discharge any liabilities whether fixed, contingent or otherwise or obligations of Midland-Ross or the Division incurred or accrued prior to the date of Closing,” protects it from liability. However, appellee cannot contract out of, and thus defeat, the rights of third persons not party to the contract. R.C. 4123.82 does not stand for this proposition as claimed by appellee. There are also strong arguments which can be made that such contract provisions are not enforceable against third persons as a matter of public policy.

Moreover, the question as to which employer is to be charged is not a question appropriate for an appeal. Youngstown v. DeSalle (June 23, 1987), Mahoning App. No. 86 C.A. 177, unreported, at 1, 1987 WL 13259. R.C. 4123.519(C) prescribes the determination to be made in the common pleas court:

“ * * * The court, or the jury under the instructions of the court, if a jury is demanded, shall determine the right of the claimant to participate or to continue to participate in the fund upon the evidence adduced at the hearing of the action.” (Emphasis added.)

As stated in DeSalle, supra, at 2, the courts have no liberality to go beyond what has been specifically prescribed by the legislature.

Furthermore, the Ohio Supreme Court has held:

“Appellant’s concern that the failure to name the appropriate employer will defeat her appeal is unfounded. The right at issue in the appeal is the right to participate in the state fund and not a claim directed against a particular employer." (Emphasis added.) State, ex rel. Burnett, v. Indus. Comm. (1983), 6 Ohio St.3d 266, 268, 6 OBR 332, 333-334, 452 N.E.2d 1341, 1343.

If it is determined that a necessary party has not been joined, “a claimant may add additional employers for the first time at the trial court level, even if the limitations period has expired.” Gradwell v. A.S. Helbig Constr. Co. (1989), 62 Ohio App.3d 197, 199, 574 N.E.2d 1173, 1174, citing State, ex rel. Burnett, v. Indus. Comm. (1983), 6 Ohio St.3d 266, 268, 6 OBR 332, 334, 452 N.E.2d 1341, 1343.

Although the record is void in the present case of any attempt to join another party, the above case law is still helpful in that it expresses the intent of R.C. 4123.519. The purpose is to determine whether a claimant has a right to participate in the fund rather than to determine a claim against a particular employer.

Therefore, between the purchase agreement and appellant’s affidavit, reasonable minds could come to the conclusion that appellee was the decedent’s employer. As such, the trial court should not have granted summary judgment.

Appellant’s first assignment has merit.

The second assignment raised by the appellant is that the trial court erred in granting IRC Fibers Company’s motion for summary judgment when its argument of the lack of an employment relationship should be barred by the principle of equitable estoppel. As appellant correctly notes, a reviewing court will not ordinarily consider a claim of error which is neither raised in nor considered by the court below. Egan v. National Distillers & Chemical Corp. (1986), 25 Ohio St.3d 176, 25 OBR 243, 495 N.E.2d 904; Hoffecker v. Great Lakes Mall, Inc. (Oct. 13, 1989), Lake App. No. 88-L-13-132, unreported, at 3-4, 1989 WL 120813 (“Under Ohio law, however, a party may not assert a new legal theory for the first time before the appellate court.”).

Since the record before this court is void of any reference to appellant’s equitable estoppel theory, this court will not consider it at this level. Accordingly, appellant’s second assignment is without merit.

Similarly, in appellant’s third assignment, she contends that the trial court erred in not holding that the doctrine of apparent authority applied. In making this argument, appellant maintains that, since the company operated under the same name and at the same location as when appellant’s husband worked for IRC Fibers Division, coupled with appellee’s failure to raise the purchase agreement with Midland-Ross until late in the claim process, the doctrine of apparent authority should bar appellee from asserting that it was not the deceased’s employer.

As in appellant’s second assignment, this is the first time appellant has advanced this theory. “ * * * [A] party may not assert a new legal theory for the first time before the appellate court.” Hoffecker, supra; Egan, supra. Therefore, the third assignment is without merit.

Appellant’s final assignment argues the trial court erred in failing to rule that R.C. 4123.82 acted as a bar to appellee’s purchase agreement as a contractual attempt to indemnify an employer against liability for the payment of workers’ compensation premiums.

Appellee correctly asserts that R.C. 4123.82, voiding contracts indemnifying employers, does not apply to it because that provision applies only to an employer’s right to seek reimbursement from third-party tortfeasors or insurers. It has no application to a buy/sell agreement. As was previously stated, public policy prevents the enforcement of a contract provision which attempts to defeat the rights of a third person not a party to the contract against either maker of the contract.

Thus, this fourth assignment is without merit.

The judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion.

Judgment accordingly.

Joseph E. Mahoney, J., concurs.

Ford, J., concurs separately.

Ford, Judge,

concurring separately.

While I concur with the majority, I would embellish its treatment of the first assignment of error. It is fundamentally entrenched in workers’ compensation law that pursuant to R.C. 4123.519(C), a trial court’s jurisdiction in a trial de novo is limited to a determination of the right to participate in the fund, DeSalle, supra, and that this applies to state-fund employers as well as self-insurers.

Although not the subject of case-law analysis, it has been customary in the practice of workers’ compensation law to repose the determination of who is the proper employer, or successor employer, to the province of the administrative exercises previously before the Bureau of Workers’ Compensation.

As a result of the enactment of Ohio Adm. Code 4123-14-06 in February 1990, it appears that this subject is one to be concluded before the adjudicatory committee of the Bureau of Workers’ Compensation. Consequently, this writer concludes that like the extent of disability, the question of who is the proper employer is jurisdictionally not a subject matter that falls within the parameters of the right to participate. Thus, the common pleas court is without authority to address the issue.

Therefore, I would reverse and remand the judgment of the trial court on this subject with the specific instruction for that court to remand that issue to the adjudicatory committee of the Bureau of Workers’ Compensation so that it may expeditiously determine that issue expressly, since it appears in the record before us that that question has only been passively and tangentially addressed. It further appears that remedial redress of administrative employer status rulings may well repose in the “Rome” of Ohio in Franklin County.  