court ofappeals appeuuee's brief fifed august 15, 201716:02...

NAILAH K. BYRD

CUYAHOGA COUNTY CUERK OF COURTS

1200 Ontario Street

Cleveland, Ohio 44113

Court of Appeals

APPEUUEE'S BRIEF FIFED

August 15, 201716:02

By: GARRY E. HUNTER 0005018

Confirmation Nbr. 1146816

CITY OF CLEVELAND, OHIO

vs.

OHIO BUREAU OF WORKERS' COMPENSATION

CA 17 105604

Judge:

Pages Filed: 25

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IN THE OHIO COURT OF APPEALS

EIGHTH JUDICIAL DISTRICT

CUYAHOGA COUNTY

CASE NO. CA-17-105604

CITY OF CLEVELAND, OHIO,

Plaintiff-Appellee,

-vs-

OHIO BUREAU OF WORKERS’ COMPENSATION

Defendant-Appellant.

ON APPEAL FROM THE CUYAHOGA COUNTY

COURT OF COMMON PLEAS CASE NO. CV-13-809883

BRIEF OF AMICUS CURIAE, THE OHIO MUNICIPAL LEAGUE

IN SUPPORT OF PLAINTIFF-APPELLEE, CITY OF CLEVELAND

Garry E. Hunter, Esq. (#0005018)

175 S. Third Street, Suite 510

Columbus, Ohio 43215

(614) 221-4349

[email protected]

General Counsel for Amicus Curiae,

Ohio Municipal League

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mailto:[email protected]

TABLE OF CONTENTS

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INTRODUCTION OF AMICUS CURIAE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ASSIGNMENT OF ERRORS. . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATE OF CASE AND FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

i. the balancing of the EQUITIES. . . . . . . . . . . . . . . . . . . . . . . . . 5

ii. common pleas court JURISDICTION. . . . . . . . . . . . . . . . . . . . . . 8

iii. exhaustion of administration REMEDIES. . . . . . . . . . . . . . . . . 9

iv. the applicable statue of LIMITATIONS. . . . . . . . . . . . . . . . . . 11

A. The Six Year Statute of Limitations. . . . . . . . . . . . . . . . . . . . . . . . . 11

B. The Auditing Adjustment Payroll Report Regulation. . . . . . . . . . . . . . . 12

C. The Distribution and Payments Limitation Period. . . . . . . . . . . . . . . . . 15

V. THE VOLUNTARY PAYMENT DEFENSE. . . . . . . . . . . . . . . . . . . . . . 15

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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TABLE OF AUTHORITIES

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Federal Cases

Glover v. St. Louis-San Francisco Ry. Co.,

393 U.S. 324, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969). . . . . . . . . . . . . . . . . . . . . . . 10

Salling v. Budget Rent-A-Car Systems, Inc. ,

672 F.3d 442 (6th Cir.2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Union Pac. R. Co. v. Pub. Serv. Commission of Missouri,

248 U.S. 67, 39 S.Ct. 24, 63 L.Ed. 131 (1918). . . . . . . . . . . . . . . . . . . . . . . . . . 17

Vaca v. Sipes,

386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). . . . . . . . . . . . . . . . . . . . . . . 10

Ward v. Bd. of Cty. Commrs. of Love Cty., Okl.,

253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751 (1920). . . . . . . . . . . . . . . . . . . . . . . . . 17

State Cases

AMMPeric Property Invest., Inc. v. Cleveland,

2014-Ohio-821 (8th Dist. Cuyahoga). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Bank of Am., N.A. v. Darkadakis,

2016-Ohio-7694, 76 N.E.3d 577, (7th Dist.). . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Basic Const. Materials Div. of Davon, Inc. v. Seiter,

10th Dist. Franklin No. 88AP-796, 1989 WL 61758 (June 6, 1989). . . . . . . . . . . . . . . 8

Benoline Co. v. State,

122 Ohio St. 175, 171 N.E. 33, 8 Ohio Law Abs. 209 (1930). . . . . . . . . . . . . . . . . . 17

Cleveland Constr., Inc. v. Kent State Univ.,

2010-Ohio-2906 (10th Dist. Franklin). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Consol. Mgt., Inc. v. Handee Marts, Inc.,

109 Ohio App.3d 185, 671 N.E.2d 1304 (8th Dist.1996). . . . . . . . . . . . . . . . . . . . 17

Cristino v. Ohio Bur. of Workers’ Comp.,

118 Ohio St. 3d 151, 2008-Ohio-2013, 886 N.E. 2d 857. . . . . . . . . . . . . . . . . . . . . 8

Erwin v. Bryan,

125 Ohio St.3d 519, 525, 2010-Ohio-2202, 929 N.E.2d 1019, 1025-26. . . . . . . . . . . . 13

Great Northern Shopping Ctr. v. Kitchen Maid of Akron, Inc.,

8th Dist., Cuyahoga No. 45131, 1983 WL 4614 (Aug. 18, 1983). . . . . . . . . . . . . . . . 6

Hambleton v. R.G. Barry Corp.,

12 Ohio St.3d 179, 465 N.E.2d 1298 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Joseph J. Freed & Assoc., Inc. v. Cassinelli Apparel Corp.,

23 Ohio St.3d 94, 491 N.E.2d 1109 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Judy v. Ohio Bur. of Motor,

Vehs., 100 Ohio St.3d 122, 2003-Ohio-5277, 797 N.E.2d 45. . . . . . . . . . . . . . . . . . 18

Karches v. City of Cincinnati,

Filed confrrffiationNbr:-ii468T6/-CLEJK.... 10

iii

Kaufman v. Village of Newburgh Hts.,

26 Ohio St.2d 217, 271 N.E.2d 280 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Lycan v. Cleveland,

2010-Ohio-6021 (8th Dist. Cuyahoga). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 18

Mikels v. Cowie Cut Stone Co.,

34 Ohio App. 442, 171 N.E. 251 (8th Dist.1929). . . . . . . . . . . . . . . . . . . . . . . . . 7

Miller v. Univ. of Cincinnati,

1st Dist. Hamilton, No. C-75410, 1976 WL 189826 (Apr. 26, 1976). . . . . . . . . . . . . 10

Oakar v. Ohio Dept. of Mental Retardation,

88 Ohio App.3d 332, 623 N.E.2d 1296 (8th Dist.1993). . . . . . . . . . . . . . . . . . . . . 18

Ohio Hosp. Assn. v. Ohio Dept. of Human Services,

62 Ohio St.3d 97, 579 N.E.2d 695 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Palm Beach Co. v. Dun & Bradstreet, Inc.,

106 Ohio App.3d 167, 665 N.E.2d 718 (1st Dist.1995). . . . . . . . . . . . . . . . . . . . . 11

Pomeroy v. Schwartz,

2013- Ohio-4920 (8th Dist. Cuyahoga). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Racing Guild of Ohio, Local 304, Serv. Employees Intern. Union, AFL-CIO, CLC v. Ohio State

Racing Com'n,

28 Ohio St.3d 317, 503 N.E.2d 1025 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Ratajczak v. Carney,

102 Ohio App. 183, 74 Ohio Law Abs. 515, 135 N.E.2d 64 (8th Dist.1956). . . . . . . . . . 6

San Allen, Inc. v. Buehrer,

2014- Ohio-2071, 11 N.E.3d 739 (8th Dist.). . . . . . . . . . . . . . . . . . . . . . . . . passim

Santos v. Ohio Bur. of Workers' Comp.,

101 Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441. . . . . . . . . . . . . . . . . . . . . 6, 18,

Sheet Metal Workers Local 98, Pension Fund v. Whitehurst,

2004-Ohio-191 (5th Dist. Knox). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Shury v. Greenaway,

2014-Ohio-1629 (8th Dist. Cuyahoga). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

State ex rel. Able Temps., Inc. v. Indus. Comm.,

66 Ohio St.3d 22, 1993-Ohio-199, 607 N.E.2d 450. . . . . . . . . . . . . . . . . . . 13, 14, 15

State ex rel. Bettman v. Canfield Oil Co. ,

34 Ohio App. 267, 171 N.E. 111, 7 Ohio Law Abs. 568 (8th Dist.1929). . . . . . . . . . . 17

State ex rel. Cotterman v. St. Marys Foundry,

46 Ohio St.3d 42, 544 N.E.2d 887 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

State ex rel. Cty. of Cuyahoga v. Jones Lang LaSalle Great Lakes Corp. Real Estate Ptnrs.,

2017-Ohio-4066 (8th Dist. Cuyahoga). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

State ex rel. Harry Wolsky Stair Builder, Inc. v. Indus. Com'n of Ohio,

58 Ohio St.3d 222, 569 N.E.2d 900 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . 14


iv

State of Ohio ex rel. Aaron’s, Inc. v. Ohio Bur. of Workers’ Comp.,

148 Ohio St. 3d 34, 2016-Ohio-5011, 68 N.E. 3d 757. . . . . . . . . . . . . . . . . . . . . . 14

State, ex rel. Minutemen, Inc. v. Indus. Comm.,

62 Ohio St.3d 158, 580 N.E.2d 777 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Zion Nursing Home, Inc. v. Creasy,

6 Ohio St.3d 221, 452 N.E.2d 1272 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

State Statutes

R.C. 126.301. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

R.C. 2305.07. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 11

R.C. 2743.03(A)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

R.C. 2913.48(A)(7) & (B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

R.C. 4123.03(A)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

R.C. 4123.291(B)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

R.C. 4123.35(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

R.C. 4123.38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16

R.C. 4123.48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

R.C. 4123.50. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,

R.C. 4123.99(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

State Regulations

Ohio Adm. Code 4121-7-17(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Ohio Adm. Code 4123-14-06(E). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Ohio Adm. Code 4123-17-17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Ohio Adm. Code 4123-17-17(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Ohio Adm. Code 4123-17-17(C)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Other Authorities

Restatement of the Law 3d, Restitution and Unjust Enrichment, Section 19(1) (2011). . . . 18


V

INTRODUCTION OF AMICUS CURIAE

As permitted by App. R. 17, this Amicus Curiae Brief is being conditionally submitted

together with a Motion for Leave of Court. The Ohio Municipal League (“OML”) is not a party

to any active litigation involving the same claims, but nevertheless urges this Court to affirm the

final order of the Cuyahoga County Court of Common Pleas in all respects.

The OML was incorporated as an Ohio non-profit corporation in 1952 by city and village

officials who saw the need for a statewide association to serve the interests of Ohio municipal

government. Currently, the OML represents 730 of Ohio’s 931 cities and villages. The OML has

six affiliated organizations: the Ohio Municipal Attorneys Association, the Municipal Finance

Officers Association, the Ohio Mayors Association, the Ohio Association of Public Safety

Directors, the Ohio City/County Management Association, and the Ohio Municipal Clerks

Association. On a national basis, the OML is affiliated with the National League of Cities, the

International Municipal Lawyers Association, the U.S. Conference of Mayors, and the

International City/County Managers Association. The OML represents the collective interest of

Ohio cities and villages before the Ohio General Assembly and the state elected and administrative

offices.

In 1984 the OML established a Legal Advocacy Program funded by voluntary

contributions of the members. This program allows the League to serve as the voice of cities and

villages before the Ohio Supreme Court and the US Appeals and Supreme Court by filing briefs

amicus curiae on cases of special concern to municipal governments. The Ohio Municipal League

has been accredited by the Ohio Supreme Court as a sponsor of both Continuing Legal Education

Programs for attorneys and the required Mayors Court training for Mayors hearing all types of

cases.

OML possesses a vested interest in ensuring that local governments receive fair and just

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of their workers’ compensation premiums. Workers’ compensation is not optional for

governmental employers, which are obligated to pay the premiums assessed by the state agency

by R.C. 4123.38. Because they lack the political clout of many large private employers, particular

care must be taken to prevent unfair and inequitable premium discrimination. As will be developed

in the remainder of this Brief, it has become evident that such disparate mistreatment is now being

suffered as a result of the state’s decision to issue refunds correcting the serious imbalances that

were created by the group rating program only to privately owned employers.


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STATEMENT OF ASSIGNMENTS OF ERROR

ASSIGNMENT OF ERROR NO. 1: THE TRIAL COURT

ERRED IN DENYING THE MOTION TO DISMISS


ERRED IN DENYING THE BUREAU’S MOTION FOR

SUMMARY JUDGMENT AND GRANTING IN PART THE

MOTION OF CLEVELAND FOR SUMMARY JUDGMENT


ERRED IN GRANTING CLEVELAND’S MOTION IN

LIMINE REGARDING THE BUREAU’S AFFIRMATIVE

DEFENSES


ERRED IN DENYING THE BUREAU’S MOTIONS TO

DISMISS DURING THE TRIAL


ERRED IN AWARDING CLEVELAND MORE THAN $4.5

MILLION


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STATEMENT OF THE ISSUES

1. Does a common pleas court possess jurisdiction under R.C.

4123.03(A)(2) to impose equitable remedies in favor of a

political subdivision and against a state agency?

2. Before seeking an equitable remedy against a state agency,

are political subdivisions required to exhaust an

administrative procedure that is restricted by official policy

and incapable of awarding the relief sought?

3. When a political subdivision pursues equitable

reimbursement for overcharged premiums, is the common

pleas court bound by the timing requirements adopted by the

Ohio Bureau of Workers’ Compensation for the auditing and

adjustment of payroll reports?

4. Does the six year statute of limitation set forth in R.C.

2305.07 govern claims for equitable relief that have been

brought by a political subdivision?

5. Is the workers’ compensation system “voluntary” so that

excessive premiums that have been charged and collected by

the state can never be recovered?

6. Was the common pleas court’s final judgment in favor of

Plaintiff-Appellee, City of Cleveland, contrary to the

manifest weight of the evidence?


4

STATEMENT OF THE CASE AND FACTS

Amicus OML adopts by reference the statement of the case and facts that have been

submitted by Plaintiff-Appellee, City of Cleveland.

ARGUMENT

I. THE BALANCING OF THE EQUITIES

In the view of the OML, the ultimate issue presented in this appeal is one of both

fundamental fairness and governmental integrity. For reasons that have never been disclosed,

Defendant-Appellant Ohio Bureau of Workers’ Compensation (“Bureau”) has refused to provide

this state’s governmental employers with the same premium refunds that were furnished to private

employers once the equitable imbalances in its group rating program were judicially recognized.

A settlement agreement that was limited to private employers was entered and approved on March

20, 2013 in the class action lawsuit styled San Allen, Inc. v. Bureau of Workers’ Compensation,

Cuyahoga C.P. Case No. CV-07-644950 (McMonagle, Richard, J.). Those private employers that

had not participated in the Bureau’s group rating program (i.e. “non-group employers”) then

received refunds of overcharged premiums totaling approximately $420,000,000.00. Id.

The Bureau’s arrangement was negotiated with the non-group private employers in the

wake of this Court’s comprehensive decision confirming that the state agency had been had

systematically overcharging premiums as part of the actuarially unsound group rating program.

San Allen, Inc. v. Buehrer, 2014-Ohio-2071, 11 N.E.3d 739 (8th Dist.). The unanimous opinion

drew no distinctions between governmental and private employers, and concluded instead that:

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In this case, the BWC violated one of the most basic principles of

workers' compensation insurance, i.e., that every employer

participating in Ohio's workers' compensation system be charged a

reasonable, accurate, and equitable premium rate that corresponds

to the risk the employer presents to the workers' compensation

system. The record reflects that for more than fifteen years, the

BWC ignored the criticisms and recommendations of its actuarial

consultants and maintained an unlawful and inequitable rating

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employers workers' compensation insurance premiums in order to

subsidize massive, undeserved premium discounts for group-rated

employers. There were both clear winners and clear losers under the

BWC's rating system. The clear winners were group-rated

employers and their group sponsors; the clear losers—the nongroup

rated employers. [emphasis added]

Id., at |173.

Those governmental employers that naively assumed that the Bureau would proceed to

voluntarily issue the same refunds to them notwithstanding their exclusion from the San Allen

class were soon disappointed. As the underlying proceedings attest, the Bureau has waged an

unrelenting - and undoubtedly expensive - legal campaign to ensure that these remaining “clear

losers” continue to bear the financial consequences of the ill-conceived group rating program. Id.,

at \173.

It is significant to the OML that none of the Bureau’s officials have testified that the non

group governmental employers suffered no ill-effects from the group rating program that was the

subject of the San Allen proceedings. While the Bureau’s actuarial department is staffed by a

number of specialists who are well qualified to address this pivotal issue in these proceedings, an

expert has been hired instead by the defense to furnish the opinions that cannot be obtained from

the agency itself. Evidently, Judge Carolyn B. Friedland did not find him to be credible during the

bench trial.

According to Defendant Bureau, the competing equitable considerations must be weighed

and evaluated in order to determine the remedy (if any) that is owed. Brief of Appellant, p. 23.

The OML certainly agrees with the maxim that: “Equity for purposes of justice looks upon that as

done which ought to have been done.” Ratajczak v. Carney, 102 Ohio App. 183, 189, 74 Ohio

Law Abs. 515, 135 N.E.2d 64, 68 (8th Dist.1956) As a general rule, the trial court’s balancing of

the equities is afforded substantial discretion. Joseph J. Freed & Assoc., Inc. v. Cassinelli Apparel

Corp., 23 Ohio St.3d 94, 96-97, 491 N.E.2d 1109, 1112 (1986); Great Northern Shopping Ctr. v.

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Kitchen Maid of Akron, Inc., 8th Dist. Cuyahoga No. 45131, 1983 WL 4614, *5 (Aug. 18, 1983).

In this instance, no sensible person could possibly fault Judge Friedland for concluding

from the undisputed facts that the equities weighed heavily in favor of Plaintiff-Appellee, City of

Cleveland. Local governments are legally and morally obligated to guard their resources and

scrutinize their expenditures precisely so that they can afforded to furnish vital programs and

services to their citizens. Plaintiff Cleveland’s refund of $4,524,392.00 in overpaid premiums will

supply a well-deserved benefit to the residents in a variety of forms, perhaps most significantly

through improvements to police and fire protection as well as potentially life-saving child welfare

assistance. And the long overdue recovery will further ensure that the public employer has been

charged the same workers’ compensation premiums as those comparable to private employers that

participated in the San Allen settlement. It is a familiar “maxim that ‘equality is equity.’” Mikels

v. Cowie Cut Stone Co., 34 Ohio App. 442, 446, 171 N.E. 251, 252 (8th Dist.1929).

Judge Friedland was under no obligation to find that these compelling equities are

subservient to some other legitimate objective. In stark contrast to cash-strapped local

governments, Ohio’s workers’ compensation fund presently holds more than Nine Billion Dollars

in assets, thanks primarily to unexpectedly strong investment returns.1 The surplus has been so

substantial that for the third time in four years the Bureau will be returning more than One Billion

Dollars to Ohio employers as premium rebates.2 Denying restitution to Plaintiff Cleveland and

all other non-group public employers will thus accomplish nothing legitimately worthwhile, except

for perhaps providing a small contribution toward a fourth round of widely-publicized Bureau

rebates. “Despite some high-profile misadventures investing in rare coins and other unusual assets,

the bureau’s balance sheet is sufficiently strong” to allow the state agency to comply with its legal,

1 http://www.cleveland.com/metro/index.ssf/2017/03/ohio_businesses_could_get_1_bi.html

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2 https://www.bwc.ohio.gov/downloads/blankpdf/billionback3rd.pdf


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http://www.cleveland.com/metro/index.ssf/2017/03/ohio_businesses_could_get_1_bi.html

https://www.bwc.ohio.gov/downloads/blankpdf/billionback3rd.pdf

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ethical, and equitable obligations. Cristino v. Ohio Bur. of Workers’ Comp., 118 Ohio St. 3d 151,

155, 2008-Ohio-2013, 886 N.E. 2d 857, 862 (Pfeifer, J., concurring).

II. COMMON PLEAS COURT JURISDICTION

Turning to the merits of Defendant Bureau’s appeal, the state agency’s primary argument

is that the common pleas court lacked subject matter to grant equitable restitution to Plaintiff

Cleveland. Brief of Appellant, pp. 11-15. The OML submits that political subdivisions, just like

any other non-governmental litigant, should be entitled to seek equitable, declaratory, and

injunctive relief in appropriate instances against state agencies and officials as specifically

authorized by the General Assembly in R.C. 2743.03(A)(2). Ohio Courts have routinely

recognized as a general rule that such limited actions need not be relegated to the Court of Claims

in Columbus. Racing Guild of Ohio, Local 304, Serv. Employees Intern. Union, AFL-CIO, CLC

v. Ohio State Racing Com'n, 28 Ohio St.3d 317, 319-320, 503 N.E.2d 1025, 1028 (1986); Ohio

Hosp. Assn. v. Ohio Dept. of Human Services, 62 Ohio St.3d 97, 103-104, 579 N.E.2d 695, 700

(1991); Basic Const. Materials Div. of Davon, Inc. v. Seiter, 10th Dist. Franklin No. 88AP-796,

1989 WL 61758, *2 (June 6, 1989).

Because money damages are not being sought against the Bureau in any form, the seminal

decision that was rendered in Santos v. Ohio Bur. of Workers' Comp., 101 Ohio St.3d 74, 2004-

Ohio-28, 801 N.E.2d 441, is controlling. The unanimous Supreme Court flatly declared, in no

uncertain terms, that:

A suit that seeks the return of specific funds wrongfully collected or

held by the state is brought in equity. Thus, a court of common pleas

may properly exercise jurisdiction over the matter as provided in

R.C. 2743.03(A)(2).[emphasis added]

Id., 101 Ohio St.3d 74, syllabus. This ruling was founded squarely upon the terms of R.C.

2743.03(A)(2), which specifically authorize common pleas courts to hear suits against the state for

“declaratory judgment, injunctive relief, or other equitable relief.” Notably, no attempt has been


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made by the General Assembly to either alter this language or otherwise legislatively override

Santos.

Defendant Bureau seems to be arguing that Judge Friedland lacked the authority to issue

her final order because “Cleveland’s Amended Complaint cryptically described the monetary

award it sought[.]” Brief of Appellant, p. 11. According to this odd reasoning, jurisdiction was

lacking because no “specific funds” were identified several years ago at that early stage of the

proceedings. Id. But none of the Bureau’s authorities actually hold that the precise dollar figure

must be set forth in the pleadings, which is often impossible since no discovery has been

conducted. Based upon the compelling evidence that was presented during the bench trial, the

common pleas judge justifiably identified the “specific funds” that had been wrongfully collected

and withheld as totaling $4,524,392.00. See Journal Entry dated February 27, 2017. Given that

these premium overcharges have been sitting in the workers’ compensation fund for the last several

years, it is difficult to fathom how a wrongful taking could be identified any more specifically than

that.

III. EXHAUSTION OF ADMINISTRATION REMEDIES

The OML takes further issue with Defendant Bureau’s continued insistence that none of

the wrongfully withheld premium overcharges need to be refunded because the governmental

employers were supposedly obligated to initiate and exhaust internal administrative remedies.

Brief of Appellant, pp. 13-15. This is an affirmative defense that must be established by the party

asserting it. AMM Peric Property Invest., Inc. v. Cleveland, 2014-Ohio-821, ^12 (8th Dist.

Cuyahoga); Cleveland Constr., Inc. v. Kent State Univ., 2010-Ohio-2906, ^ 48 (10th Dist.

Franklin). Defendant therefore was required to show more than just the “availability of an

administrative appeal[,]” as a demonstration was necessary that the same relief could have been

awarded outside the judicial system. AMM Peric Property Invest., Inc., 2014 -Ohio- 821, ^12.

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the relief sought.” Kaufman v. Village of Newburgh Hts., 26 Ohio St.2d 217, 219, 271 N.E.2d 280,

282 (1971); see also, State ex rel. Cotterman v. St. Marys Foundry, 46 Ohio St.3d 42, 44, 544

N.E.2d 887, 889 (1989); Karches v. City of Cincinnati, 38 Ohio St.3d 12, 17, 526 N.E.2d 1350

(1988). Put differently, “where the [plaintiff] has no clear remedy and efforts would be futile he

has exhausted his remedies and may obtain judicial review.” Miller v. Univ. of Cincinnati, 1st

Dist. Hamilton No. C-75410, 1976 WL 189826, *2 (Apr. 26, 1976), citing Vaca v. Sipes, 386 U.S.

171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), and Glover v. St. Louis-SanFranciscoRy. Co., 393 U.S.

324, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969).

None of the non-group private employers were required to even commence, let alone

complete, any administrative remedies before they were allowed to participate in the San Allen

distribution. That is because this court had held that any such efforts would have been futile since

the hearing officers had no authority to adjust the group rating program or find any inequitable

miscalculations. San Allen, 2014-Ohio-2071, ^64-71. The opinion observed that:

Tracy Valentino, the BWC's chief fiscal and planning officer,

testified that in deciding matters brought before it, the adjudicating

committee follows the administrative rules that have been adopted

by the BWC and determines whether the BWC followed those rules,

not whether those rules are lawful. She further testified that the

adjudicating committee had no authority to invalidate an

administrative regulation adopted by the BWC or to determine that

an administrative regulation violated the Ohio Constitution or the

Ohio Revised Code. [emphasis added]

Id., at ^71. The Eighth District thus concluded that exhaustion was not required since there was

no reason to believe that the Bureau’s Adjudicating Committee possessed the authority to override

established policy, revamp the politically popular group rating program, and remedy the agency’s

unlawful premium assessment practices. Id., at ^71-75.


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IV. THE APPLICABLE STATUTE OF LIMITATIONS

A. The Six Year Statute of Limitations

The OML is troubled by Defendant Bureau’s refusal to recognize that claims for equitable

unjust enrichment and equitable restitution are governed by the six year statute of limitations set

forth in R.C. 2305.07.3 As part of the relentless effort to deny premium refunds to non-group

governmental employers, the state agency evidently intends to upend decades of settled law.

Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183, 465, 465 N.E.2d 1298 (1984); State ex

rel. Cty. of Cuyahoga v. Jones Lang LaSalle Great Lakes Corp. Real Estate Partners LLC, 2017-

Ohio-4066, | 110 (8th Dist. Cuyahoga); Shury v. Greenaway, 2014-Ohio-1629, | 14 (8th Dist.

Cuyahoga).

With respect to ongoing claims of unjust enrichment, the method for determining the

accrual date was established by this Court in Pomeroy v. Schwartz, 2013-Ohio-4920 (8th Dist.

Cuyahoga). In that instance, an insurance agency was seeking reimbursement from an employer

for health insurance claims that had been paid on its behalf. Id., at ^16. Claims were raised in

2011 for “breach of oral contract, unjust enrichment, and conversion.” Id., at ^16. Because the

final payment had been made over eight years earlier in 2003, summary judgment was granted in

favor of the employer. Id., at 116-17.

On appeal, this Court agreed that the six year statute of limitations set forth in R.C. 2305.07

applied to the claim of unjust enrichment. Pomeroy, 2013-Ohio-4920, ^41. The unanimous

appellate court further upheld the trial judge’s determination that “the unjust enrichment claim

accrued on September 11, 2003, when the last payment” was made by the plaintiff. Id., at ^42.

Based upon the First District’s decision in Palm Beach Co. v. Dun & Bradstreet, Inc., 106 Ohio

App.3d 167, 665 N.E.2d 718 (1st Dist.1995), the panel unanimously recognized that the final

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3 This Court has recognized that equitable restitution can be recovered only by establishing the

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payment “triggered the statute of limitations[.]” Pomeroy, 2013-Ohio-4920, ^45. The plaintiffs

attempts to extend that date beyond its final payment were rejected. Id., ^45-47; see also Bank of

Am., N.A. v. Darkadakis, 2016-Ohio-7694, 76 N.E.3d 577, ^ 42-53 (7th Dist.) (recognizing that

the six year statute of limitations for claims of unjust enrichment accrues at the last point in time

that the plaintiff has conferred an inequitable benefit upon the defendant).

Defendant Bureau has cited Zion Nursing Home, Inc. v. Creasy, 6 Ohio St.3d 221, 452

N.E.2d 1272 (1983), for the proposition that the statute of limitation actually commences the

moment that a state agency commits a statutory violation. Brief of Appellant, p. 18. But that was

a mandamus action seeking to require the Ohio Department of Public Welfare to apply new rates

that had been adopted for the calendar year 1972. Id., 6 Ohio St. 3d at 221. And even if the case

had involved a claim of unjust enrichment extending over a period of years, the decision fully

supports Judge Friedland’s award in the instant action. The mandamus complaint had been based

specifically upon alleged miscalculations that occurred “for the first six months of 1972.” Id., at

224. After that, the violations were at an end. Id. But the complaint was not filed until July 17,

1979. Id., at 221. Even starting at the end of the violations, the relators still failed to comply with

the six year statute of limitations. Id., at 225. The decision that was rendered three decades later

by this Court in Pomeroy, 2013-Ohio-4920, is thus completely consistent with Zion Nursing Home,

even if one assumes that the accrual analysis is the same for both mandamus actions and claims of

unjust enrichment.

B. The Auditing Adjustment Payroll Report Regulation

Seemingly unconcerned with these precedents, Defendant Bureau contends that one of its

own regulations prohibits Ohio courts from ordering equitable restitution for premium overcharges

collected more than two years before a demand for repayment. Brief ofAppellant, pp. 16-17. The

notion that any state agency can impose such timing restrictions upon the judicial system is

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Bureau could simply adopt a regulation requiring every legal action to be filed against it in a matter

of weeks, if not days. But largely because of the public policy considerations that must be

evaluated and resolved, only the legislature can establish the limitations period for a cause of

action. Erwin v. Bryan, 125 Ohio St.3d 519, 525, 2010-Ohio-2202, 929 N.E.2d 1019, 1025-26,

129.

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Fortunately, this Court need not determine whether Defendant Bureau is legally entitled to

override legislatively adopted and judicially recognized statutes of limitations, as Ohio Adm. Code

4123-17-17 (Auditing and Adjustment of Payroll Reports) has no conceivable relevance in this

case. Brief of Appellant, p. 16. The regulation applies only to “adjustments in an employer’s

account which result in changes to the amount of premium due from an employer[.]” Ohio

Adm.Code 4123-17-17(C)(2). The provision is plainly limited to the Bureau’s own internal

auditing and payroll adjustments, and not to refunds ordered by a court under equitable principles.

Furthermore, the Bureau has exaggerated the requirements of its regulation with the

assertion that there must be a “demand” for a repayment before the two year limitation commences.

Brief of Appellant, p. 16. That term does not actually appear in the regulation. Ohio Adm. Code

4123-17-17. A flexible discovery rule was recognized instead in State ex rel. Able Temps., Inc. v.

Indus. Comm., 66 Ohio St.3d 22, 1993-Ohio-199, 607 N.E.2d 450, which the Bureau has described

as “indistinguishable” from the instant action. Brief of Appellant, p. 16. In that case, a class of

temporary agencies had sought mandamus relief to compel the Industrial Commission and Bureau

to refund premiums as a result of the decision in State, ex rel. Minutemen, Inc. v. Indus. Comm.,

62 Ohio St.3d 158, 580 N.E.2d 777 (1991), invalidating certain reporting classifications. No

claims for unjust enrichment or other equitable relief had been raised, and thus Able Temps is

easily distinguished from the instant case. In all of the mandamus actions that the Bureau is

touting, the employer was attempting to compel the agency to comply with its own payroll

HieK08iffi5/2md ipremiramNGitadERcTHMMOTiOw>j6A7l7i98a§4/Con!frmadon Rbr.9ita©8iftjecLWJKe not

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allowed to pick-and-choose the regulations to be followed, those employers were also bound by

the agency’s timing requirements. In the case sub judice, however, equitable remedies are being

sought as a result of the Bureau’s failure to comply with the statutory mandates requiring “a

reasonable, accurate, and equitable premium rate that corresponds to the risk the employer presents

to the workers’ compensation system.” San Allen, 2014-Ohio-2071, ^173.

The Bureau appears to have overlooked that the two other opinions applying this regulation

were also mandamus actions seeking payroll reporting corrections that fell within either Ohio

Adm. Code 4121-7-17(C) or 4123-17-17(C). State ex rel. Harry Wolsky Stair Builder, Inc. v.

Indus. Com'n of Ohio, 58 Ohio St.3d 222, 569 N.E.2d 900 (1991) (error claimed in Bureau’s

classifications of wood construction workers in payroll report); State of Ohio ex rel. Aaron’s, Inc.

v. Ohio Bur. of Workers’ Comp., 148 Ohio St. 3d 34, 2016-Ohio-5011, 68 N.E. 3d 757 (challenge

to Bureau’s retrospective application of a reclassification of clerical employees following an audit)

Even though these regulations have existed for decades, not one judicial decision has been

identified applying the two year restriction to a claim for equitable relief that has been brought in

a court of law.

It is noteworthy that even under the case-specific analysis of State ex rel. Able Temps.,

Inc., 66 Ohio St.3d at 24, Plaintiff Cleveland’s lawsuit is still timely. The regulation’s two year

timing requirement was found to have been triggered in that instance by nothing more than the

release of a judicial opinion involving a different employer raising its own request for a payroll

classification adjustment. Id. The Able Temps Court concluded that the class of temporary

agencies possessed “a clear legal right to reimbursement of premiums unlawfully assessed by [the

Commission and Bureau,] with the two-year restriction of Ohio Adm. Code 4121-7-17(C)

controlling.” Id. at 25.

Here, the Bureau was alerted to the premium inequities caused by the group rating program

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Since 1990, BWC’s actuarial consultant, Mercer Oliver Wyman

(“Mercer”), has been conducting analyses that have reached the

same conclusion: The premiums paid by employers in group-rated

programs are not high enough when compared with the losses they

generate, and premiums paid by non-group employers are too high

when set against their losses. [emphasis added]

Ohio Inspector General, Report of Investigation dated August 21, 2007, p. 8. Incredibly, the same

Bureau consultant continuously “reached that conclusion in 1990, 1991, 1993, 1994, 1995, 2001

and again in August 2004, [yet the Bureau] continued to offer premium discounts of up to 95

percent to group-rated employers, thereby allowing non-group-rated employers to subsidize the

losses created by these discounts.” Id. Since the Bureau thus “knew of” the excessive premiums

over a quarter-century ago, current Ohio Adm. Code 4123-17-17(C) is hardly a bar to relief

regardless of the theory of recovery that is being pursued. State ex rel. Able Temps., Inc., 66 Ohio

St.3d at 24.

C. The Distribution and Payments Limitation Period

In a single sentence, the Bureau has referenced R.C. 126.301, which establishes a general

five year statute of limitations for actions “against the state or an agency thereof for failure to make

any distribution of other payment[.]” Brief of Appellant, p. 18. No explanation has been offered

for how this provision could apply in this instance. Id. The excessive premiums that Judge

Friedland ordered refunded had been paid by Plaintiff Cleveland, not the Bureau. As far as the

Bureau’s Brief reveals, this statue has never been applied to a claim seeking equitable restitution

from a state agency.

V. THE VOLUNTARY PAYMENT DEFENSE

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Perhaps Defendant Bureau’s most disturbing argument is that no employer, public or

private, is ever entitled to an equitable refund of a workers’ compensation premium that is

“voluntarily” paid. Brief of Appellant, pp. 19-22. One would have thought the agency would be

aware that governmental employers are required by law to pay the premiums assessed by the


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Bureau. R.C. 4123.38 (“Every employer mentioned in division (B)(1) of Section 4123.01 of the

Revised Code *** shall contribute to the public insurance fund the amount of money determined

by the administrator of workers’ compensation, and the manner of determining contributions and

the classifications of employers is as provided in Section 4123.39 to 4123.41 and 4123.48 of the

Revised Code.”); R.C. 4123.35(A) (“*** Every public employer *** shall comply with sections

4123.38 to 4123.41, and 4123.48 of the Revised Code in regard to the contribution of moneys to

the public insurance fund.”); R.C. 4123.50 (“*** No person mentioned in section 4123.01 of the

Revised Code *** shall fail to comply with section 4123.35 of the Revised Code ***.”) A

purposeful violation of the latter statute is punishable as a second degree misdemeanor. R.C.

4123.99(B).

The Bureau’s own website stresses that workers’ compensation coverage is mandatory for

all Ohio businesses with at least one employee.4 A warning has been issued that employers that

have disregarded their premium obligations have “subjected themselves to criminal and civil

proceedings, such as felony workers’ compensation fraud charges, liens, and injunctions.” Id.

This is far from an idle threat, as the failure to maintain coverage with intent to defraud the system

can be punishable as a third degree felony. R.C. 2913.48(A)(7) & (B).

Defendant Bureau has posited that Plaintiff Cleveland and all the other public employers

could have elected to break the law, subjected their officials to the legal proceedings authorized

under R.C. 4123.48, and then “raised the defense of illegality in a collection suit[.]” Brief of

Appellant, p. 21. The most obvious flaw in this twisted logic is that a disagreement with the

Bureau’s established premium policies is not a defense recognized under R.C. 4123.35(A), R.C.

4123.38, or R.C. 4123.50. The disobedient governmental officials would have been subject to

fines and incarceration, while coverage would have been forfeited, with nothing else

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accomplished.

Employers are entitled to challenge certain “risk or premium matters” before the Bureau’s

Adjudicating Committee under R.C. 4123.291(B)(6). See also, Ohio Adm. Code 4123-14-06(E).

But this Court has already determined that these officials had no authority to overturn the

established policy for calculating non-group premium rates. San Allen, 2014-Ohio-2071, ^74-75.

Consequently, the only suitable remedy available when the Bureau refuses to voluntarily rectify

unlawful premium policies is through equitable disgorgement in a court of law. Id., ^113-132.

Since there is no reason to believe that defying the compulsory payment statutes would

have accomplished anything, the Bureau’s reliance upon the decisions that were rendered over

eighty years ago in Benoline Co. v. State, 122 Ohio St. 175, 171 N.E. 33, 8 Ohio Law Abs. 209

(1930), and State ex rel. Bettman v. Canfield Oil Co., 34 Ohio App. 267, 171 N.E. 111, 7 Ohio

Law Abs. 568 (8th Dist.1929), is seriously misplaced. Even in those times the U.S. Supreme Court

recognized that the voluntary payment defense is lost once there is any element of governmental

coercion or compulsion. Wardv. Bd. of Cty. Commrs. of Love Cty, Okl., 253 U.S. 17, 24, 40 S.Ct.

419, 422, 64 L.Ed. 751 (1920); Union Pac. R. Co. v. Pub. Serv. Commission of Missouri, 248 U.S.

67, 69-70, 39 S.Ct. 24, 25, 63 L.Ed. 131 (1918).

The only authorities cited in the Bureau’s discussion of this defense that were issued within

the last fifty years all involved private parties and claims sounding in contract. Consol. Mgt., Inc.

v. Handee Marts, Inc., 109 Ohio App.3d 185, 671 N.E.2d 1304 (8th Dist.1996); Sheet Metal

Workers Local 98, Pension Fundv. Whitehurst, 2004-Ohio-191 (5th Dist. Knox); Salling v. Budget

Rent-A-Car Systems, Inc., 672 F.3d 442 (6th Cir.2012). No one was being threatened with

governmental fines, the loss of coverage, and the specter of criminal proceedings. The Bureau’s

reliance upon these irrelevant decisions is thus mystifying.

As repeatedly reaffirmed in more recent on-point authorities, Ohio adheres to the view that

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whether the payments were “voluntary.” In both Santos, 101 Ohio St.3d 74, and Judy v. Ohio

Bur. of Motor Vehs., 100 Ohio St.3d 122, 2003-Ohio-5277, 797 N.E.2d 45, the state was forced to

refUnd millions of dollars of “voluntarily paid” assessments. Subrogation claims had been paid by

injured workers in Santos while double-billed license reinstatement had been collected in Judy.

After examining these two Supreme Court opinions, this Court declared that “where the state

collects and retains funds to which the state is not lawfully entitled, those funds must be returned

as the equities require.” San Allen, Inc., 2014-Ohio-2071, ^126, citing Restatement of the Law

3d, Restitution and Unjust Enrichment, Section 19(1) (2011). None of these opinions requires

proof of involuntary payments.

Likewise, this Court acknowledged an estate’s entitlement to seek the recovery of funds

that had been voluntarily paid in error to the state in Oakar v. Ohio Dept. of Mental Retardation,

88 Ohio App.3d 332, 337-338, 623 N.E.2d 1296, 1299-1300 (8th Dist.1993). More recently,

another Eighth District panel held that civil traffic fines that had been voluntarily paid could be

recovered once unjust enrichment was established. Lycan, 2010-Ohio-6021, ^ 7-9 (8th Dist.

Cuyahoga). Defendant Bureau’s last-ditch defense requires each of these binding precedents to

be overturned.

Perhaps most significantly, the voluntary payment defense cannot be reconciled with this

Court’s affirmance of the disgorgement order in San Allen. The non-group private employers had

voluntarily paid the excessive premiums under the Bureau’s reasoning, but still received refunds

through the settlement. Id., 2014-Ohio-2071, at ^113-132. The unanimous decision observed that:

“Ohio courts have long recognized that persons from whom funds have been unlawfully collected

and retained by the state may be entitled to equitable restitution.” Id., at ^123. In this jurisdiction,

as elsewhere, a so-called “voluntary” payment to a governmental agency can still be recovered

when the law has been violated.

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voluntary payment “doctrine was neither raised nor considered.” Brief of Appellant, pp. 21-22.

Evidently, this Court is expected to believe that throughout years of litigation, the San Allen

defense team overlooked a long established legal doctrine that was a complete bar to any recovery,

and as a result of this purported neglect, the Bureau needlessly returned $420,000,000.00 in

“voluntary” premium payments to private employers. The OML submit that the far more plausible

scenario is that these extremely capable attorneys quickly recognized that the voluntary payment

defense has no conceivable application in Ohio’s mandatory workers’ compensation system, and

opted against wasting the court’s time on the senseless argument.

CONCLUSION

For the foregoing reasons, Amicus Ohio Municipal League urges this Court to afford a

full equitable remedy to all of Ohio’s non-group employers, and not just those that are privately

owned, by affirming the common pleas court’s final judgment in favor of Plaintiff-Appellee, City

of Cleveland, in all respects.

Respectfully Submitted,

s/ Garry E. Hunter_ _ _ _ _ _ _



Ohio Municipal League


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CERTIFICATE OF SERVICE

I hereby certify that this Brief has been filed electronically through the Cuyahoga County

docket management system with notice being issued to all counsel of record. Loc. App. R. 13.1(C).

s/ Garry E. Hunter_ _ _ _ _ _ _



Ohio Municipal League and Ohio Municipal

Attorneys Association

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court ofappeals appeuuee's brief fifed august 15, 201716:02...

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