In an unusual twist, the Second District Court of Appeals of Ohio ruled that a claim for subrogation under Ohio’s workers’ compensation subrogation statute is governed by the six-year statute of limitations and not the two-year statute applicable to personal injury and negligence claims. In the case of Corn v. Whitmere, an employee sued a third party tortfeasor for injuries allegedly sustained in a motor vehicle accident arising during the course and scope of his employment. He also joined his self-insured employer as a defendant. The employer then filed a cross claim against the tortfeasor seeking reimbursement for workers’ compensation benefits paid pursuant to Ohio’s workers’ compensation subrogation statute. The trial court dismissed the employer’s cross claim as untimely since it had been filed more than two years after the date of the employee’s injury.
The Court of Appeals disagreed. The Court ruled that in the usual insurance setting, the subrogated insurer stands in the shoes of the insured-subrogor and has no greater rights than those of the insured-subrogor. Therefore, if the insured’s claim against the tortfeasor is based on negligence, the subrogated claim must also be based on negligence and is governed by the same two-year statute of limitations. The self-insured employer’s cross claim for workers' compensation subrogation, however, is not applied in the same way. Instead, the self-insured employer’s claim arises out of a statute. As a result, the cross claim is subject to the six-year statute of limitations found under Ohio Revised Code §2305.07.
Self-insured employers in Ohio should take note. Even though an injury may be more than two years old and the injured worker has never asserted a claim against the third party tortfeasor, the self-insured employer could still bring a claim under Ohio’s workers’ compensation subrogation statute for up to six years after the date of the employee’s injury.