RICHARDSON v. INSITE SYSTEMS INC (2001)

Memorandum of Opinion and Order

 Introduction

This matter is before the Court upon plaintiff's Motion to Substitute (Doc. 10) and defendant's Motion to Dismiss (Doc. 13). The issue before this Court is whether a state race discrimination in employment claim survives a plaintiff's death. For the following reasons, plaintiff's Motion to Substitute is DENIED ONLY AS TO THE RACE CLAIM and defendant's Motion to Dismiss is GRANTED.

 Facts

This case was originally filed by plaintiff, Oliver D. Richardson, against defendants, Insite Systems, Inc., Insite Technology Group, Inc. and Craig R. Benjamin, in the Cuyahoga County Common Pleas Court. The Complaint alleges race discrimination in employment under the Ohio Revised Code and breach of implied contract, both arising out of plaintiff's termination from employment. Defendants thereafter removed the Complaint to this Court on the ground that the Complaint implicates an ERISA plan.

Plaintiff thereafter notified this Court of the death of plaintiff. Plaintiff also filed a Motion to Substitute seeking to substitute plaintiff's mother, Alice C. Richardson, as the plaintiff herein. Alice C. Richardson then filed an Amended Complaint. The Amended Complaint maintains the original claims and adds a new count alleging violations of ERISA and COBRA.

Defendants responded by filing a Motion to Dismiss the race discrimination claim and an Opposition to the Notice to Substitute on the race claim. Defendants also filed an Opposition to Plaintiff's Filing of Amended Complaint to the extent plaintiff's estate attempts to set forth a race discrimination claim.

 Discussion

The sole issue before this Court is whether a state race discrimination in employment claim survives a plaintiff's death. Defendants assert that the race discrimination claim arising under the Ohio Revised Code does not survive plaintiff's death and, therefore, the Motion to Substitute as to this claim should be denied, the claim should be dismissed and plaintiff should not be able to amend the Complaint asserting this claim. Plaintiff asserts that the race discrimination claim does survive death.

Initially, the parties dispute whether Ohio law solely applies or whether both Ohio and federal law should be examined. Defendants assert this Court looks only to Ohio law to determine this substantive state law issue. Plaintiff contends that state case law is pertinent because the survival of a state statutory claim is involved and that federal law may also be utilized because in analyzing state discrimination claims the courts look to federal case law construing Title VII. This Court agrees with defendants that only state law should be consulted.

“Whether the death of a party extinguishes a claim for or against him is not a question of procedure. It is a question of substance on which the state law ordinarily governs.” Wright, Miller and Kane, Federal Practice and Procedure, Civil 2d § 1952. And, “Whether an action survives the death of a party must be determined by looking to the law, state or federal, under which the cause of action arose.” Wright, Miller and Cooper, Federal Practice and Procedure, Jurisdiction 2d § 4518. Here, the cause of action arises under the Ohio Revised Code. Accordingly, the issue herein is governed by state law.

There are two applicable code sections. Ohio Revised Code § 2305.21 provides:

SURVIVAL OF ACTIONS

In addition to the causes of action which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto.

Ohio Revised Code § 2311.21 provides:

ABATEMENT BY DEATH OF PARTY

Unless otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except actions for libel, slander, malicious prosecution, for a nuisance, or against a judge of a county court for misconduct in office, which shall abate by the death of either party.

In determining whether the cause of action may proceed, this Court's analysis must include both of these code sections. Witcher v. City of Fairlawn, 113 Ohio App.3d 214, 217, 680 N.E.2d 713 (1996).

Defendants argue that actions in tort survive the death of a party only if they involve physical injury, citing Village of Oakwood v. Makar, 11 Ohio App.3d 46, 463 N.E.2d 61 (8th Dist. 1983) (“In order for an action to survive under R.C. 2305.21, the action must be one for ‘injuries to the person,’ and that term means physical injuries.” citing Joyce v. Columbus, 21 Ohio Law Abs. 649 (App. 1936)).

Plaintiff argues that Village of Oakwood and State ex rel. Crow v. Weygandt, 170 Ohio St. 81, 162 N.E.2d 845 (1959), also cited by defendants, involve slander and malicious prosecution claims which are expressly abated by the death of either party under the terms of the abatement statute and, therefore, are not helpful in determining whether a statutory race claim survives.

However, plaintiff cites only to the abatement statute, ignoring the survival statute. Rather, these cases address whether an abated claim can survive. In Village of Oakwood, the court recognized that while the claim for slander was clearly abated, a claim could be reinstated against the decedent's personal representative only if the cause of action survives death. Thus, the court proceeded to determine whether a slander claim survives. Finding that an action for slander is not an action for “injuries to the person,” it did not survive the death. Likewise, in Weygandt, a malicious prosecution claim was found not to survive the death of the owner thereof as it does not involve “injuries to the person or property” as required by the survival statute.

Moreover, plaintiff asserts that Witcher, also relied upon by defendants and involving a false imprisonment claim, is similarly addressed in the abatement statute. However, the abatement statute does not include false imprisonment claims. The Witcher court determined that although the abatement statute does not specifically state whether false imprisonment abates upon death, the court must look to the survival statute as well. The court reasoned:

This court's analysis, however, is not limited to R.C. 2311.21, but also must include R.C. 2305.21. There, the language pertinent to this case is ‘causes of action for ․ injuries to the person ․ may be brought notwithstanding the death of the person entitled or liable thereto.’ The central issue, therefore, is whether false imprisonment constitutes a cause of action for an ‘injury to the person.’

The court concluded that it did not, citing Village of Oakwood’s admonition that an action may survive only if it involves physical injuries. Upon analysis, the court determined that the tort of false imprisonment does not involve physical injuries.

In his argument, plaintiff relies on cases which are inapposite. Plaintiff asserts that Miami University v. OCRC, 133 Ohio App.3d 28, 726 N.E.2d 1032 (12th Dist. 1999) found an employment discrimination charge to have survived the death of the discrimination victim. However, the court specifically noted there that the decedent was not the plaintiff and “was not technically a party to [the] action.” Rather, the Ohio Civil Rights Commission brought the charge. The court therefore determined that the victim's death did not affect the validity of the charge or the relief ordered. Plaintiff also relies on Bowman v. Parma Board of Education, 44 Ohio App.3d 169, 542 N.E.2d 663 (8th Dist. 1988), wherein it was determined that tort claims for psychic injury of a severe nature are claims for injury to the person which survive the death of the plaintiff under the survival statute. Plaintiff contends that this conclusion belies defendants’ contention that only actions in tort which involve physical injury survive death. However, a claim for psychic injury is far more analogous to a claim for physical injury than is an employment discrimination claim. Indeed, in Bowman, the plaintiff alleged that the severe emotional distress drove the decedent to suicide. Furthermore, the Bowman court explained, “Ohio has recognized the viability of actions for psychic injury in part because the danger for illusory claims for mental distress is no greater than in cases of physical injury.” Id. at 177, 542 N.E.2d 663. Finally, plaintiff relies on federal case law which expressly states that the question of the survival of an action based upon federal law is governed by federal common law. Pokorney v. Miami Valley Career Technology Center, 1997 WL 1764769 (S.D. Ohio 1997) (question of survival of an Americans with Disabilities Act claim). Here, the action is based on state statutory law and, therefore, Pokorney is of no assistance.

For these reasons the cause of action for race discrimination in employment based on the Ohio Revised Code does not survive plaintiff's death as the claim is not one for physical injuries.

 Conclusion

For the foregoing reasons, the Motion to Dismiss is granted and the Motion to Substitute is denied only as to the race claim.

IT IS SO ORDERED.

PATRICIA A. GAUGHAN, United States District Judge