[Cite as Mahle Behr Dayton, L.L.C. v. Ohio Bur. of Workers' Comp., 2021-Ohio-145.]

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

MAHLE BEHR DAYTON, LLC, et al. 

Plaintiff-Appellant 

v. 

OHIO BUREAU OF WORKERS’ 

COMPENSATION 

 Defendant-Appellee 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

Appellate Case No. 28772 

Trial Court Case No. 2018-CV-2230 

(Civil Appeal from 

Common Pleas Court) 

. . . . . . . . . . . 

O P I N I O N 

Rendered on the 22nd day of January, 2021. 

. . . . . . . . . . . 

JENNIFER L. MYERS, Atty. Reg. No. 0075401, 300 East Broad Street, Suite 350, 

Columbus, Ohio 43215; and RONALD A. FRESCO, Atty. Reg. No. 0059283, D. PATRICK 

KASSON, Atty. Reg. No. 0055570, and THOMAS N. SPYKER, Atty. Reg. No. 0098075, 

200 Civic Center Drive, Suite 800, Columbus Ohio 43215 

 Attorneys for Plaintiffs-Appellants 

 

JAMES D. ABRAMS, Atty. Reg. No. 0075968, and DAVID J. BUTLER, Atty. Reg. No. 

0068455, 65 East State Street, Suite 1000, Columbus, Ohio 43215; and JENNIFER D. 

BRUMBY, Atty. Reg. No. 0076440, 40 North Main Street, Suite 1700, Dayton, Ohio 45423 

 Attorneys for Defendants-Appellees 

. . . . . . . . . . . . . 

 

HALL, J. 
-2- 

{¶ 1} Mahle Behr Dayton, LLC and CPC Parts Delivery LLC appeal from a

judgment of the Montgomery County Court of Common Pleas, which dismissed their 

claims for unjust enrichment and a violation of equal protection under the Ohio 

Constitution against the Ohio Bureau of Workers’ Compensation (BWC) for lack of 

jurisdiction. The trial court concluded that the claims sound in law and that the Court of 

Claims has exclusive jurisdiction over legal claims against the BWC. We agree and affirm.

I. Factual and Procedural Background 

{¶ 2} In City of Cleveland v. Ohio Bur. of Workers’ Comp., 159 Ohio St.3d 459, 

2020-Ohio-337, 152 N.E.3d 172, the Ohio Supreme Court explained aspects of the Ohio 

workers’ compensation system that are also applicable to this case: 

Ohio requires public employers that are not self-insured employers 

to contribute to the public insurance fund “the amount of money determined 

by the administrator of workers' compensation.” R.C. 4123.38. Employers 

can choose from a selection of plans. The BWC offers both individual- and 

group-rated plans. 

Pursuant to R.C. 4123.29(A), the administrator of the BWC, with the 

approval of the board of directors, classifies occupations or industries with 

respect to degree of hazard and risks and sets the premiums that employers 

must pay into the state insurance fund for workers' compensation coverage 

each year. The BWC deposits these premiums into a single state insurance 

fund (it does not maintain a separate account for each employer), and it 

pays compensation benefits associated with work-related accidents from 
-3- 

that fund. With the exception of a required surplus to maintain solvency, 

R.C. 4123.321 requires the BWC to establish a procedure for returning 

excess premiums to participating employers in order to maintain a revenueneutral fund. 

Cleveland at ¶ 3-4. The procedures for issuing rebates are found in the Ohio 

Administrative Code. 

{¶ 3} In 2017, the BWC announced that there was a surplus for the policy year 

ending June 30, 2016, and that it would be issuing premium rebates to employers. Mahle 

Behr and CPC Parts paid premiums during that policy year under the same group-rated 

plan, and each company received a rebate. But they claim that their rebates should have 

been larger. Mahle Behr and CPC Parts allege that the BWC’s method for determining 

the rebates for employers in their group-rated plan differed from its method for 

determining the rebates of employers in the individual-rated plans, resulting in lower 

rebate amounts for employers in the group-rated plan. 

{¶ 4} In June 2018, Mahle Behr filed suit against the BWC in the Montgomery 

County Court of Common Pleas. Shortly after, CPC Parts moved to intervene in the case, 

which the trial court allowed. The companies’ complaints asserted the same claims and 

asked for the same relief, based on the BWC’s failure to apply the same method for 

determining their rebates as it applied to determine the rebates of employers in individualrated plans. Each complaint asked for restitution based on claims of unjust enrichment 

and a violation of equal protection under the Ohio Constitution. The complaints alleged 

that the BWC had misinterpreted the Ohio Administrative Code and the Ohio Revised 

Code and also that that its interpretation was unconstitutional. 
-4- 

{¶ 5} On March 9, 2020, on the BWC’s motion, the trial court dismissed the 

complaints for lack of subject-matter jurisdiction, concluding that under the Ohio Supreme 

Court’s decision in City of Cleveland v. Ohio Bureau of Workers’ Compensation, the 

companies’ claims sound in law and therefore the Court of Claims has exclusive 

jurisdiction over them. 

{¶ 6} Mahle Behr and CPC Parts appeal. 

II. Analysis 

{¶ 7} The sole assignment of error alleges that the trial court erred by dismissing 

the case for lack of subject-matter jurisdiction. 

{¶ 8} “The jurisdiction of the Court of Claims is defined by reference to the state’s 

waiver of immunity in R.C. 2743.02.” Cirino v. Ohio Bur. of Workers’ Comp., 153 Ohio 

St.3d 333, 2018-Ohio-2665, 106 N.E.3d 41, ¶ 19. The Court of Claims has “exclusive, 

original jurisdiction of all civil actions against the state permitted by the waiver of immunity 

contained in section 2743.02 of the Revised Code.” R.C. 2743.03(A)(1). The statutory 

waiver of immunity is broad: “The state hereby waives its immunity from liability * * * and 

consents to be sued, and have its liability determined, in the court of claims created in 

this chapter in accordance with the same rules of law applicable to suits between private 

parties * * *.” R.C. 2743.02(A)(1). 

{¶ 9} As a general matter, whether the Court of Claims or a court of common pleas 

has jurisdiction over a claim depends on “whether the claim is legal or equitable.” 

Cleveland, 159 Ohio St.3d 459, 2020-Ohio-337, 152 N.E.3d 172, at ¶ 10. The Ohio 

Supreme Court explained in Cleveland that “the classification of a claim for restitution as 

either equitable or legal depends on the traceability of the funds the plaintiff seeks to 
-5- 

recover.” Pivonka v. Corcoran, Ohio Slip Opinion No. 2020-Ohio-3476, __ N.E.3d __, 

¶ 34, citing Cleveland at ¶ 11, 16. 

{¶ 10} Mahle Behr’s and CPC Parts’ complaints each assert two claims. The first 

is unjust enrichment based on the BWC’s alleged misinterpretation and unconstitutional 

application of Ohio statutes and administrative codes. The second claim asserts a 

violation of equal protection under the Ohio Constitution based on the BWC’s 

interpretation of the law. The complaints ask for restitution from the BWC for the additional 

surplus premiums. In essence, the complaints allege that the BWC misinterpreted the 

Ohio Revised Code and the Ohio Administrative Code. According to Mahle Behr and CPC 

Parts, neither law requires or allows the BWC to use a different method to determine the 

rebates of employers in their group-rated plan, and to do so violates their constitutional 

right to equal protection under the law. 

{¶ 11} The trial court dismissed Mahle Behr’s and CPC Parts’ complaints based 

on the Ohio Supreme Court’s decision in Cleveland. In that case, the Court considered 

whether an employer’s claim for unjust enrichment against the BWC for the 

reimbursement of alleged excessive premiums paid by the employer fell within the 

jurisdiction of the Court of Claims. The plaintiff-employer alleged that the BWC’s method 

for determining its premiums was flawed and that the BWC had violated the Ohio Revised 

Code, rendering the excess premiums unlawful. The employer sought reimbursement of 

the alleged excessive premiums that it had paid. The Supreme Court concluded that the 

employer’s claim “sounds in law and must proceed through the Court of Claims, which 

has exclusive jurisdiction over legal claims against the BWC.” Cleveland at ¶ 17. It 

reasoned: “Although the BWC kept track of the amount of [the employer]’s premium 
-6- 

payments, R.C. 4123.34(A), [the employer]’s premiums went into a general insurance 

fund, R.C. 4123.30, i.e., they were not kept separate from payments made by other public 

employers. Once [the employer]’s premium payment was deposited into the fund, it 

became commingled with the premium payments from other employers.” Id. at ¶ 17. The 

Court also noted that the employer had paid the last funds it sought to recover eleven 

years ago. “It is inconceivable,” the Court said, “how money belonging to Cleveland could 

‘clearly be traced to particular funds or property’ in the BWC’s possession.” Id. at ¶ 17, 

quoting Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 213, 122 S.Ct. 708, 

151 L.Ed.2d 635 (2002). 

{¶ 12} Mahle Behr’s and CPC Parts’ unjust enrichment claims are essentially the 

same as the one raised in Cleveland. The companies allege that the BWC’s method for 

determining their rebates was flawed and that the BWC incorrectly interpreted the Ohio 

Administrative Code and the Ohio Revised Code. They also seek the additional excess 

premiums to which they allege they are entitled under a proper interpretation of the law. 

Although Mahle Behr and CPC Parts seek reimbursement of excess premiums unlawfully 

withheld, rather than premiums unlawfully taken, this difference is immaterial for purposes 

of the legal-equitable claim analysis, because their claims, like the claim in Cleveland, 

seek recovery from the BWC’s general insurance fund. The rebates paid out by the BWC 

were excess premiums that employers paid into the general fund during the policy year 

ending June 30, 2016, and the money for the rebates came from the general fund. So 

under Cleveland’s rationale, any money belonging to Mahle Behr or CPC Parts is not 

traceable. Therefore, we agree with the trial court that, under Cleveland, the companies’ 

claims for restitution sound in law. 
-7- 

{¶ 13} Mahle Behr and CPC Parts argue that their equal-protection claims raise an 

issue not present in Cleveland, though. These alleged constitutional claims seek the 

same relief as the unjust-enrichment claims, making them legal claims under our earlier 

analysis. In fact in the general fact pleading of each complaint, each plaintiff states “[t]he 

Bureau of Workers’ Compensation violated the Ohio Constitution by unconstitutionally 

interpreting the Ohio Administrative Code and the Ohio Revised Code against Plaintiff 

and employers in the large deductible program.” Mahle Behr Amended Complaint ¶ 40, 

CPC Parts Intervening Complaint ¶ 37. And under the “unjust enrichment” first cause of 

action portion of each complaint, each alleges “[t]he Bureau of Workers’ Compensation 

unconstitutionally applied Ohio statutes and administrative codes.” Mahle Behr Amended 

Complaint ¶ 48, CPC Parts Intervening Complaint ¶ 45. We address whether the alleged 

separate allegation of the constitutional nature of their claims raises a separate 

jurisdictional question. 

{¶ 14} The waiver of immunity in R.C. 2743.02 allows suits against the state “in 

accordance with the same rules of law applicable to suits between private parties.” R.C. 

2743.02(A)(1). Based on this language, the Tenth District1 “has consistently held that 

constitutional and Section 1983, Title 42, U.S.Code claims are not actionable in the Court 

of Claims.” Bleicher v. Univ. of Cincinnati College of Med., 78 Ohio App.3d 302, 306, 604 

N.E.2d 783 (10th Dist.1992). In other words, “the Court of Claims lacks subject-matter 

jurisdiction over alleged violations of constitutional rights.” Hernandez v. Ohio Dept. of 

Rehab. & Corr., 10th Dist. Franklin No. 17AP-37, 2017-Ohio-8646, ¶ 8. The court has 

 

1 The Tenth District has had the most opportunity to consider these jurisdictional issues, 

“[b]y virtue of being the statutory appellate court from the Court of Claims.” Reynolds v. 

State, Div. of Parole & Community Servs., 14 Ohio St.3d 68, 72, 471 N.E.2d 776 (1984). 
-8- 

reasoned that the statutory language limits a plaintiff in the Court of Claims to causes of 

action that he could pursue if the defendant were a private party and that an alleged 

violation of constitutional rights requires an element of state action. Bleicher at 307. 

{¶ 15} The constitutional claims in the cases that apply the Tenth District’s principle 

almost invariably involve suits that assert the constitutional violation as a private right of 

action and seek relief for the violation. For example, in Henneke v. Ohio Dept. of Ins., 

10th Dist. Franklin No. 11AP-254, 2011-Ohio-5366, the plaintiff filed a complaint against 

the Ohio Department of Insurance (ODI) alleging that the ODI’s revocation of her surety 

bail bond license violated her rights of equal protection and due process under the Ohio 

and United States Constitutions. The court held that her causes of action for violation of 

her constitutional rights were not cognizable against a private party. The wrong alleged 

in that case was the violation of the constitution and the relief sought was for the violation. 

{¶ 16} But not every allegation of a constitutional violation is brought as a private 

cause of action that seeks relief for the violation itself. Indeed, the Tenth District 

recognized this in Ohio Hosp. Assn. v. Ohio Dept. of Human Servs., 10th Dist. Franklin 

No. 88AP-1034, 1990 WL 85136 (Jun. 21, 1990), affirmed, 62 Ohio St.3d 97, 579 N.E.2d 

695 (1991). In that case, the plaintiffs filed suit in the Court of Claims against the Ohio 

Department of Human Services (ODHS) alleging that an administrative rule violated Ohio 

and federal statutes and the United States Constitution. They sought injunctive, 

declaratory, and monetary relief on the grounds that ODHS had violated their rights under 

agreements between the parties, Ohio and federal law, the Ohio Constitution, and the 

United States Constitution, including the due process and equal protection clauses in the 

Fourteenth Amendment. The Court of Claims found (among other things) that the 
-9- 

enactment of the administrative rule violated the plaintiffs’ due process and equal 

protection rights. On appeal, ODHS argued that the plaintiffs could not bring the 

constitutional claims directly under the Fourteenth Amendment. It contended that the 

claims should have been dismissed, because the claims could be brought only as a 

Section 1983 claim, which is not actionable in the Court of Claims. But the appellate court 

rejected this argument. The court determined that, though a Section 1983 action could 

not be brought, the plaintiffs were entitled to raise the issues in their constitutional claims 

directly. The court stated: “ODHS cites no authority, and we are aware of none, which 

lends credence to ODHS’s contention that allegations of constitutional violations by a 

state’s enactment of legislation cannot be brought directly under the Fourteenth 

Amendment.” Id. at *9. The court of appeals ultimately held that the plaintiffs’ rights to due 

process and equal protection were not violated by the enactment of the administrative 

rule. ODHS appealed to the Ohio Supreme Court and challenged the appellate court’s 

determination that the plaintiffs were entitled to raise their constitutional claims directly. 

But because the Court found that the plaintiffs were entitled to relief under Ohio and 

federal law, it declined to address the constitutional issue, which it called the plaintiffs’ 

“alternate basis for relief.” Ohio Hosp. Assn. v. Ohio Dept. of Human Servs., 62 Ohio St.3d 

97, 105, 579 N.E.2d 695 (1991).2

{¶ 17} In the present case, we conclude that Mahle Behr and CPC Parts’ allegation 

that the BWC violated their equal-protection rights did not constitute a separate and 

distinct unactionable constitutional claim. Artful pleading cannot convert their claim into a 

 

2 The Court affirmed the appellate court’s judgment, though it vacated as moot “the 

portion of the court's decision that addresses the constitutionality” of the administrative 

rule. Ohio Hosp. Assn., 62 Ohio St.3d at 106, 579 N.E.2d 695. 
-10-

separate independent claim for relief for the alleged constitutional violation. Rather, this 

action seeks restitution for the BWC’s alleged misinterpretation of Ohio law, and the 

constitutional interpretation of the administrative code is merely an alternate basis for that 

relief. See Lingo v. State, 138 Ohio St.3d 427, 2014-Ohio-1052, 7 N.E.3d 1188, ¶ 38 

(“Regardless of how an action is labeled, the substance of the party’s arguments and the 

type of relief requested determine the nature of the action.”); Cirino, 153 Ohio St.3d 333, 

2018-Ohio-2665, 106 N.E.3d 41, at ¶ 25 (quoting the same). In this case, we hold that 

the Court of Claims has jurisdiction to address the claims of an equal protection violation, 

if it finds that the plaintiffs are not entitled to relief on other grounds, see Ohio Hosp. Assn., 

62 Ohio St.3d at 105, 579 N.E.2d 695, quoting Burt Realty Corp. v. Columbus, 21 Ohio 

St.2d 265, 269, 493, 257 N.E.2d 355 (1970) (“ ‘No court should * * * indulge the 

constitutional issue if the litigant is entitled to relief upon other grounds.’ ”). 

III. Conclusion 

{¶ 18} The sole assignment of error is overruled. The trial court correctly 

determined that the Court of Claims has exclusive jurisdiction over the plaintiffs’ claims. 

The court’s judgment is affirmed. 

. . . . . . . . . . . . . 

TUCKER, P.J. and FROELICH, J., concur. 
-11-

Copies sent to: 

Jennifer L. Myers 

Ronald A. Fresco 

D. Patrick Kasson 

Thomas N. Spyker 

James D. Abrams 

David J. Butler 

Jennifer D. Brumby 

John Smart 

Hon. Gerald Parker