State ex rel. Crosset Co. v. Conrad

Douglas, J. At the time that New Crosset purchased the foreclosed assets of Old Crosset, R.C. 4123.32 provided: “The administrator of workers’ compensation shall * * * adopt rules with respect to the collection, maintenance, and disbursements of the state insurance fund among which rules shall be the following: a * X * “(D) Such special rules as the administrator considers necessary to safeguard the fund and as are just in the circumstances, covering the rates to be applied where one employer takes over the occupation or industry of another or where an employer first makes application for state insurance, and the commission may require that if any employer transfers his business in whole or in part or otherwise reorganizes the business, the successor in interest shall assume, in — 471 — proportion to the extent of the transfer, * * * the employer’s account and shall continue the payment of all contributions due under this chapter [.]” (Emphasis added.) 143 Ohio Laws, Part II, 3317-3318. The issue presented for our review is whether a corporation that purchases the foreclosed assets of another corporation through an intermediary bank may be held liable for the outstanding workers’ compensation claims costs incurred during the predecessor’s participation in a retrospective-rating plan. The court of appeals found R.C. 4123.32(D)3 applicable to this matter, and neither New Crosset nor the Bureau argues with that conclusion. However, given the unique factual circumstances surrounding Old Crosset’s “transfer of business,” we find that R.C. 4123.32(D), and more precisely the language emphasized above, is inapplicable. Therefore, under the specific facts of this case, we hold that New Crosset is not liable for the retrospective-rating claims costs of Old Crosset. I We begin with the premise that “ ‘[w]here the language of a statute is plain and unambiguous and conveys a clear and definite meaning there is no occasion for * * * [resort] to rules of statutory interpretation. An unambiguous statute is to be applied, not interpreted.’ ” Meeks v. Papadopulos (1980), 62 Ohio St.2d 187, 190, 16 O.O.3d 212, 213, 404 N.E.2d 159, 161, quoting Sears v. Weimer (1944), 143 Ohio St. 312, 28 O.O. 270, 55 N.E.2d 413, paragraph five of the syllabus. Statutory interpretation is necessary only in those instances when a statute is found to be subject to various interpretations. Id., 62 Ohio St.2d at 190, 16 O.O.3d at 214, 404 N.E.2d at 162. We conclude that the specific language of R.C. 4123.32(D) under consideration herein, ie., “employer transfers his business in whole or in part or otherwise reorganizes the business,” is plain and unambiguous. The language of the statute clearly refers to a voluntary act of the employer and not the involuntary transfer of the employer’s business through an intermediary bank. In this matter, there was no transfer of the business by the employer. Old Crosset did not have any assets to transfer, as its assets had been seized by Society and Fifth Third. The transaction between New Crosset and the banks did not occur until after Old Crosset had ceased operation of its entire wholesale produce business. Thus, Old Crosset was not, nor could it have been, the transferor of its own assets. — 472 — Additionally, New Crosset purchased the assets through an “Asset Sale Agreement.” The signatories to that agreement were TCC (New Crosset),. Castellini Company, Society, and Fifth Third. Old Crosset was not a party to the agreement. Here, the transferors of the assets are banks that have neither experience ratings nor workers’ compensation coverage to which New Crosset could succeed. The transfer of the assets was not achieved through a corporate transaction conducted between Old Crosset and New Crosset, but, instead, was accomplished by a sale between New Crosset and the banks. While it is true that R.C. 1309.47(D)4 contemplates the discharge of security interests and other liens where, after default, collateral is disposed of by a secured party (here the banks), nevertheless the intent seems to be 'that a purchaser for value “takes free of all * * * rights and interests.” A contrary holding by this court would subject all purchasers of assets from secured parties, where the purchasers intended to continue in the same business, to liabilities of debtors, even though such purchasers might not have any way of determining what, if any, such liabilities might exist. Chances are that before, during, and after forfeiture of assets of a debtor to a secured creditor, even the secured creditor may not know or have any way to find out about any outstanding obligations junior to the secured creditor’s interest. II In reaching their decisions, both the court of appeals and the Bureau relied on this court’s decision in State ex rel. Lake Erie Constr. Co. v. Indus. Comm. (1991), 62 Ohio St.3d 81, 578 N.E.2d 458. As a result, significant portions of both parties’ arguments center on the applicability of Lake Erie and its interpretation of the R.C. 4123.32(D) phrase “successor in interest.” In Lake Erie, Lake Erie Construction Company (“Lake Erie”) challenged a decision by the Bureau of Workers’ Compensation to combine the experience rating of its predecessor, the Paul E. Bleile Company, with that of its own. The court upheld the decision of the Bureau and, in so doing, rejected Lake Erie’s assertion that the common-law definition of “successor in interest” applied. Id. at 83, 578 N.E.2d at 460. In resolving the issue in Lake Erie, the court construed the term “successor in interest,” as contemplated by R.C. 4123.32(D) and former — 473 — Ohio Adm.Code 4127-7-02(B),5 for purposes of workers’ compensation, as meaning a “transferee of a business in whole or in part.” Id. at 84, 578 N.E.2d at 460. New Crosset urges that Lake Erie is inapplicable to the instant matter, since the issue under consideration therein involved risk experience ratings and not a retrospective-rating premium plan, two concepts that New Crosset contends are irreconcilable. In contrast, the Bureau argues that the court’s decision in Lake Erie did not hinge on the type of rating involved and urges that we apply the definition of “successor in interest” set forth therein. The Bureau contends that New Crosset fits the definition of “successor in interest” espoused in Lake Erie because New Crosset is merely a transferee of Old Crosset’s business. Lake Erie involved experience rating, a concept used to determine whether a particular employer should be assigned premium rates higher than or less than the “basic rate” that is assigned to employers within the same classification. In experience rating, the employer’s past claims history, or experience, is consulted to compute a rate that produces premiums sufficient to pay future claims. Ohio Adm.Code 4123-17-03. An employer who establishes a “good” claims history is able to reduce its premium rate below the basic rate for employers in the same classification, whereas an employer with a bad loss experience is penalized and must pay a rate in excess of the basic rate. Fulton, supra, at 386-387, Section 14.7. In contrast, a retrospective-rating plan is an alternative premium plan that is designed to give employers a financial advantage by lowering their annual workers’ compensation premium. Rather than pay substantial premiums each year (and consequently no claims costs), under a retrospective-rating plan the employer is permitted by the Bureau to pay a lower premium for one year. In exchange, the employer agrees to pay the actual medical costs and compensation of each claim arising during that year. The Bureau monitors these claims for ten years, known as the “evaluation period,” and the employer is then able to spread out its medical costs and compensation payments over this period. R.C. — 474 — 4123.29(A)(3), Ohio Adm.Code 4123-17-41, 4123-17-44, 4123-17-46, 4123-17-52. See, also, Fulton, supra, at 387-388, Section 14.8. Additionally, it is clear that the obligations assumed by an employer operating under a retrospective-rating plan are markedly different from those of an experience-rated employer. As R.C. 4123.29(A)(3) indicates, a retrospective-rating plan is an alternative premium payment plan. There is no obligation, statutory or otherwise, that would mandate an employer to participate in such a plan. A qualifying employer has complete discretion, subject of course to the Bureau’s approval, whether to participate in a retrospective-rating plan. Ohio Adm.Code 4123-17-43(A) and 4123-17-42(C)(1). Essentially, a retrospective-rating plan is a method of financing the payment of premiums that is contractual in nature. The employer and the Bureau agree on a reduced premium according to such factors as the amount of risk the employer is willing to accept and the maximum amount the employer is willing to pay. Again, these terms are subject to the ultimate approval of the Bureau. Thus, the amount of an employer’s premium payment under a retrospective-rating plan is based on the terms of the agreement reached between the employer and the Bureau. Ohio Adm.Code 4123-17-42 through 4123-17-47. See, also, Fulton, supra, at 387, Section 14.8. There is clearly a distinct and fundamental difference between the transfer of ratings based upon a predecessor’s claims experience and holding a successor company liable for claims due that the predecessor itself promised to pay under a retrospective-rating plan. Furthermore, R.C. 4123.32(D) confers two distinct types of rulemaking power on the Bureau. The first type is to adopt rules establishing which workers’ compensation premium rates apply when “one employer takes over the occupation or industry of another.” The second type is to adopt rules establishing who should assume payments due on an employer’s account after he “transfers his business in whole or in part, or otherwise reorganizes the business.” Lake Erie concerned the Bureau’s power to regulate rates, and not the power to regulate payments, the issue in the instant matter. In defining the term “successor in interest,” Lake Erie may have confused the two rulemaking powers set forth in R.C. 4123.32(D). In any event, we continue to adhere to our position that the definition of “successor in interest” in Lake Erie is properly applied for purposes of transferring or combining the experience ratings of employers. As the Bureau’s Law Director astutely points out, the rule in Lake Erie “is designed to place workers’ compensation [rate] experience with the proper employer * * * embracing] the general philosophy that the best predictor of future performance is past experience.” (Emphasis added.) However, this case has nothing to do with experience ratings, and the rationale espoused above is irrelevant in a retrospective-rating plan. — 475 — Moreover, R.C. 4123.32(D) requires that those rules adopted by the Administrator, in addition to being necessary to safeguard the fund, must also be “just in the circumstances.” In this matter there was no transfer between Old Crosset and New Crosset, no agreement or negotiations between the two, and no opportunity for New Crosset, through the intermediary banks, to determine the claims obligations of Old Crosset. To label New Crosset a “successor in interest,” as defined in Lake Erie, and thus hold New Crosset liable for Old Crosset’s prior obligations, would, in our determination, be unjust. Given the facts of this particular case, we are unwilling to hold New Crosset liable. Therefore, based on the foregoing, we conclude that New Crosset is not a “successor in interest,” as that term was contemplated by Lake Erie and R.C. 4123.32(D), and we find that the court of appeals and the Bureau erred when they determined otherwise. Ill Having deemed that R.C. 4123.32(D) is inapplicable and that New Crosset is not a “successor in interest,” we turn to common-law principles of successor liability to determine what obligations, if any, New Crosset may have acquired regarding Old Crosset’s retrospective-rating agreement. In Welco Industries, Inc. v. Applied Cos. (1993), 67 Ohio St.3d 344, 617 N.E.2d 1129, syllabus, the court held that “[a] corporation that purchases the assets of another is not liable for the contractual liabilities-of its predecessor corporation unless (1) the buyer expressly or impliedly agrees to assume such liability; (2) the transaction amounts to a de facto consolidation or merger; (3) the buyer corporation is merely a continuation of the seller corporation; or (4) the transaction is entered into fraudulently for the purpose of escaping liability. (Flaugher v. Cone Automatic Machine Co. [1987], 30 Ohio St.3d 60, 30 OBR 165, 507 N.E.2d 331, followed.)” We find that the general rule of Welco, i.e., that a purchaser of a corporation’s assets, barring any of the exceptions, is not liable for the debts and obligations of a predecessor corporation, is applicable to the case at bar. In addition to all the foregoing and because we find that New Crosset does not fit into any of the four exceptions to the general rule, we hold that New Crosset is not liable for the retrospective-rating claims costs of Old Crosset. Accordingly, for the reasons set forth above, the judgment of the court of appeals is reversed, and the writ of mandamus is granted in full. Judgment reversed and writ granted. — 476 — Resnick, F.E. Sweeney, Pfeifer and Lundberg Stratton, JJ., concur. Moyer, C.J., and Cook, J., dissent. Footnotes [3] The court of appeals incorrectly referred to this section as former section (E) of the statute. The correct cited version is R.C. 4123.32(D), as effective in 1993, the year of New Crosset’s purchase and its transfer application. 143 Ohio Laws, Part II, 3197, 3317-3318. [4] R.C. 1309.47 provides: “(D) When collateral is disposed of by a secured party after default, the disposition transfers to a purchaser for value all of the debtor’s rights therein, discharges the security interest under which it is made and any security interest or lien subordinate thereto. The purchaser takes free of all such rights and interests even though the secured party fails to comply with the requirements of sections 1309.44 to 1309.50 of the Revised Code or of any judicial proceedings!.]” [5] Former Ohio Adm.Code 4121-7-02(B) provided: “(B)(3) Where a legal entity having established coverage or having had experience in the most recent experience period wholly succeeds one or more legal entities having established coverage or having had experience in the most recent experience period and at least one of the entities involved has a merit rating experience, the experience of all the involved entities shall be combined to establish the rate of the successor. “(4) Where a legal entity succeeds in the operation of a portion of a business of one or more legal entities having an established coverage or having had experience in the most recent experience period, the successor’s rate shall be based on the predecessor's experience within the most recent experience period, pertaining to the portion of the business acquired by the successor.” See 1979-1980 OMR 4-359, effective November 26,1979.