While I concur with the greater part of the majority's decision and in the judgment generally, I write separately in order to more fully explain my view of this case, which I feel presents a number of significant issues.
Initially I would note that the trial courts decision in this matter mischaracterizes the action as one by the employer againstthe proceeds of the settlement agreed to by the decedent's widow in her claims against United Airlines. The action is in fact one brought by Xerox, as subrogee, against United Airlines, with the decedent's widow defending only in her capacity as assignee of United Airlines' defenses, pursuant to the terms of the settlement reached between the decedent's widow and the airline. This mischaracterization caused the trial court to digress into an inapposite examination of the public policy rationale underlying Ohio's wrongful death statute, rather than an examination of the statute truly at issue in this case, that granting an employer the right of subrogation for workers' compensation benefits paid. This of itself does not vitiate the trial court's decision because there are other grounds for affirmance in this matter.
I fully agree with the majority's conclusion that former R.C. 4123.93 simply does not provide a right of subrogation for an employer in a wrongful death action brought by an employee's statutory beneficiaries against a third-party tortfeasor. A wrongful death action does not meet the prerequisites for subrogation under former R.C. 4123.93, that is, that subrogation is coextensive to the rights of the employee against the tortfeasor, and that the employee must be a party to the action involving the tortfeasor.
A wrongful death action brought pursuant to R.C. 2125.01 etseq. is a civil remedy, in derogation of common law, to compensate statutory beneficiaries for the wrongful death of the decedent. Ohio's statutory wrongful death action is not intended to compensate the decedent's estate for his own personal injury, pain, and suffering, and damages awarded in the action therefore do not flow to the estate, but are to be distributed directly to the beneficiaries. Tennant v. State Farm Mut. Ins. Co. (1991),81 Ohio App.3d 20, 610 N.E.2d 437. The statutory wrongful death action is for the exclusive benefit of the surviving spouse, children, and other statutorily designated beneficiaries of the decedent, rather than a right of the decedent; under the workers' compensation subrogation law as it read at the time applicable to this case, the employer's right to subrogation did not extend to a wrongful death action against the tortfeasor, because that wrongful death action was not a right possessed by the employee. *Page 94
I do not agree, however, with the majority's holding that former R.C. 4123.93 is not applicable in wrongful death andsurvivorship claims because the deceased employee is not a party to any action. The survivorship action presents a different legal posture from the wrongful death action. I do not believe that the same rationale can be applied to exclude a right of subrogation in survivorship actions, nor that the same result would necessarily obtain. I concur in the majority's affirmance of the trial court decision, however, even with this caveat, because I believe that appellant has effectively waived the question of whether a subrogation right exists in a survivorship action through a failure to argue this distinction in connection with this appeal. The complaint filed by the decedent's widow included both a wrongful death and survivorship claim. The trial court decision in this matter, while finding no right of subrogation on the part of the employer, discusses only the wrongful death claim without reference to the survivorship action. Appellant has made no argument regarding this aspect of the trial court's decision and does not assign specific error relating to this issue. The matter being entirely unbriefed by either party in this respect, I agree with the majority that a holding on the issue of the existence of subrogation to a survivorship action would be inappropriate either in the affirmative or negative and thus a reversal of the trial court on this basis even less appropriate.
Accordingly, I would affirm the trial court's decision, but avoid any pronouncement as to whether a right of subrogation under former R.C. 4123.93 exists for an employer on the basis of the deceased employee's survivorship action against the tortfeasor. Furthermore, I am unable to agree with the majority's application of State ex rel. Nicholson v. Copperweld Steel Co. (1996), 77 Ohio St.3d 193, 672 N.E.2d 657, to this matter. The majority appears to find that a right of subrogation does not exist because the workers' compensation benefits paid in this case were paid to the workers' widow, and thus the amounts paid by the employer were not paid "to or on behalf of the employee" under former R.C. 4123.93 (B). I believe that amounts paid to the employee's family as survivorship benefits should in fact qualify as "benefits paid to or on behalf of the employee." *Page 95