Amended House Bill 179 (effective October 24, 2024) addresses the issue of vicarious liability in tort actions. Specifically, it outlines the conditions under which an injured party can sue either the primarily liable party (such as an agent, servant, or employee) or the secondarily liable party (such as a principal, master, or employer), or both. Bill 179 stipulates that for a plaintiff to prevail in a vicarious liability claim against a secondarily liable party, (such as an employer) the primarily liable party (employee) must have committed the act or omission within the scope of their relationship with the secondarily liable party.
However, the primarily liable party is not a necessary party to the lawsuit unless the claim involves specific professional malpractice, such as medical, dental, optometric, chiropractic, or legal malpractice. Bill 179 clarifies that in most vicarious liability cases, the action can proceed against the principal even if the agent is not a party to the lawsuit.
Additionally, Ohio courts have consistently held that a vicarious liability claim cannot survive if the direct claim against the agent is time-barred by the statute of repose. For instance, in Clawson v. Heights Chiropractic Physicians, L.L.C., the Ohio Supreme Court found that a vicarious liability claim for medical malpractice against a physician’s employer was precluded when a direct claim against the physician is time-barred.
Prior to Bill 179, the Clawson decision arguably required filing suit against the employees of a business who were participating in the negligence of the business in order to hold the business vicariously liable. Id. Bill 179 will affect lawsuits by potentially simplifying the process for plaintiffs to pursue claims against employers or principals without needing to include the primarily liable party (employee) in the lawsuit, except in cases involving the specified professional malpractice claims.
Also, R.C. §2305.15(A) provides for tolling the statute of limitations when a defendant is out of state, absconds, or conceals themselves. This provision applies to claims against the individual who absconds or conceals themselves but does not extend to vicarious liability claims against other parties, such as employers or principals, unless the specific conditions of the physician-patient relationship are met. Stafford v. Columbus Bonding Ctr. However, any tolling of the limitations period during the defendant’s absence or concealment does not apply to the statutes of repose.
Only in the context of medical malpractice and related vicarious liability claims, the tolling of the statute of limitations is influenced by the “termination rule.” This rule tolls the statute of limitations for vicarious liability claims against a hospital while the physician-patient relationship continues. Elkins v. Durrani.
Ohio law generally presumes that statutes operate prospectively unless they are expressly made retrospective. R.C. §1.48. The Ohio Constitution prohibits the General Assembly from passing retroactive laws that affect substantive rights. Therefore, unless Bill 179 explicitly states that it is to be applied retroactively, it would only apply to cases arising after its enactment. Bill 179 does not explicitly state that it is to be applied retroactively. Therefore, the first step in the two-part test for retroactivity is not satisfied, as there is no clear proclamation of retroactive application in Bill 179. Even if Bill 179 were to include language suggesting retroactivity, it would still need to pass the second part of the test, which examines whether the statute is substantive or remedial. The Ohio Constitution prohibits retroactive laws that affect substantive rights. State v. Palmer. Laws affecting procedure are typically considered remedial, while those affecting rights are substantive. Given that Bill 179 pertains to vicarious liability in tort actions, it most likely affects substantive rights, making its retroactive application unconstitutional.
In summary, Bill 179 simplifies the process for plaintiffs to pursue claims against secondarily liable parties by not requiring the inclusion of the primarily liable party in the lawsuit, except in cases involving specific professional malpractice. The existing provisions under R.C. §2305.15 tolling of limitation during a defendant’s absence, concealment or imprisonment and the “termination rule” in Frysinger continue to apply as described above. Bill 179 further clarifies that any tolling of the limitations period during the defendant’s absence or concealment does not apply to statutes of repose. Finally, the enactment of Bill 179 will not affect any claims that occurred prior to its enactment, as it does not explicitly state that it is to be applied retroactively and it effects a substantive right.
Please contact your Weston Hurd attorney or the authors of this update if you have any questions about this topic.
