Burke v. Wilfong

• Decision Date: 16 August 1994
• Docket Number: No. 64A04-9304-CV-118,64A04-9304-CV-118
• Citation: 638 N.E.2d 865
• Parties: Joe Glenn BURKE, Jr. and Mary Burke, Appellants (Plaintiffs Below), v. Mark D. WILFONG, Joseph Hulse and Northern Indiana Public Service Company, Inc., Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 865

638 N.E.2d 865

Joe Glenn BURKE, Jr. and Mary Burke, Appellants (Plaintiffs Below), v. Mark D. WILFONG, Joseph Hulse and Northern Indiana Public Service Company, Inc., Appellees (Defendants Below).

No. 64A04-9304-CV-118.

Court of Appeals of Indiana Fourth District.

Aug. 16, 1994.

Gary D. Davis, LaPorte, for appellant.

Michael P. Blaize, Heidi B. Jark, Hoeppner Wagner & Evans, Valparaiso, for Joseph Hulse.

Samuel Furlin, Spangler Jennings & Dougherty, Merrillville, for Mark Wilfong.

John McCrum, Eichhorn Eichhorn & Link, Merrillville, for Northern Indiana Public Service Co., Inc.

RATLIFF, Senior Judge.

STATEMENT OF THE CASE

Joe Glenn Burke, Jr., appeals from a judgment in favor of Mark Wilfong and Joseph

Hulse claiming that worker's compensation is not his exclusive remedy, and that he is entitled to bring a third party claim. We affirm.

ISSUES

I. Did Burke's injury arise out of and in the course of his employment?

II. Was Burke in the same employ as Wilfong and Hulse?

FACTS

In early 1991, Joe Glenn Burke, Jr., Joseph Hulse, Michael Antecki and Mark Wilfong were all employed by Hunter Corporation as millwrights. Hunter, a Lake County contractor, had a contract with Northern Indiana Public Service Company, Inc. to repair a turbine at NIPSCO's Schahfer Generating Plant.

At the Schahfer Plant, Hunter employees were required to park their cars in a parking lot set aside for contracted employees. This parking lot was only accessible by Schahfer Road, a dual lane road on NIPSCO's property which ran between a guard shack at the main entrance and the contractor's parking lot. Schahfer Road, which is privately owned and maintained by NIPSCO, is only accessible to NIPSCO employees, contracted employees and persons conducting business with NIPSCO. To gain access to Schahfer Road, Hunter employees were required to sign in with NIPSCO guards located at the guard shack.

At approximately 7:20 a.m. on January 14, 1991, Burke and Antecki were passengers in a car owned and driven by Hulse. All three were scheduled to work the 7:30 a.m. to 4:00 p.m. shift. They had checked in at the guard's shack, and they were driving south on Schahfer Road toward the Hunter employee's parking lot. Wilfong had just completed the midnight to 8:00 a.m. shift. He had been allowed to clock out at 7:15 a.m. with other employees working that shift, and he was driving his car north on Schahfer Road toward the guard's shack. Wilfong's vehicle slid due to snow, ice and a dip in the road, crossed the center line and struck Hulse's vehicle. Burke was injured in the accident.

Burke and his wife, Mary, filed a personal injury action against Hulse and Wilfong alleging that both drivers were negligent in the operation of their vehicles. The Burkes later amended their complaint to include NIPSCO as a defendant. Hulse and Wilfong filed summary judgment motions arguing that Burke could not bring a civil suit against them because the sole jurisdiction of the cause was with the Indiana Worker's Compensation Board. The trial court granted Hulse and Wilfong's motions for summary judgment after finding that the Burke's exclusive remedy is under the Indiana Worker's Compensation Act.

Burke now contends that the trial court's grant of summary judgment was erroneous because his injuries did not arise out of and in the course of his employment. ¹ Therefore, according to Burke, worker's compensation is not his exclusive remedy, and he is entitled to bring this third party claim.

Burke raises two issues for our review: 1) whether his injury arose out of and in the course of his employment, and 2) whether he was in the same employ as Wilfong and Hulse.

DECISION

As a preliminary matter we note that although the trial court granted Hulse and Wilfong's motions for summary judgment, NIPSCO was still a party to the action. Ind.Trial Rule 56(C) states in pertinent part:

A summary judgment with respect to less than all the.... parties shall be interlocutory unless the court in writing expressly determines that there is not just reason for delay and in writing expressly directs entry of judgment as to less than all the ... parties.

The trial court's order does not in writing expressly determine that there is no just reason for delay and it does not in writing expressly direct entry of judgment as to less than all the parties. Thus, according to T.R. 56(C), this is an interlocutory order and not a final judgment. As a result, the order would not normally be appealable until a final judgment is rendered. However, according to Appellate Rule 4(E):

No appeal will be dismissed as of right because the case was not finally disposed of in the court below as to all issues and parties, but upon suggestion or discovery of such a situation the appellate tribunal may, in its discretion, ... pass upon such adjudicated issues as are severable without prejudice to parties who may be aggrieved by subsequent proceedings in the court below.

Thus, we will exercise our discretion to pass upon the severable adjudicated issues which pertain to Hulse and Wilfong and we will consider the merits of this case in order to facilitate a speedy disposition of it. See Pekin Insurance Co. v. Charlie Rowe Chevrolet, Inc. (1990), Ind.App., 556 N.E.2d 1367; Krueger v. Bailey (1980), Ind.App., 406 N.E.2d 665. We now proceed to address the specific issues.

On appeal from a summary judgment, we apply the same standard applicable in the trial court. Malachowski v. Bank One, Indianapolis (1992), Ind., 590 N.E.2d 559, 562. We must determine whether the designated record reveals a genuine issue of material fact and whether the trial court correctly applied the law. Shuamber v. Henderson (1991), Ind., 579 N.E.2d 452, 454. Rational assertions of fact and reasonable inferences therefrom are deemed to be true, and any doubt as to a fact, or an inference to be drawn is resolved in favor of the non-moving party. Malachowski, supra.

ISSUE I. DID BURKE'S INJURY ARISE OUT OF AND IN THE COURSE OF HIS EMPLOYMENT?

The Indiana Worker's Compensation Act provides compensation to employees for injuries which arise out of and in the course of their employment. ² The rights and remedies under the Act are exclusive and exclude all other rights and remedies of such employees. ³ Whether an injury arises out of and in the course of employment depends upon the facts and circumstances of each case. Sanchez v. Hamara (1989), Ind.App., 534 N.E.2d 756, 758, trans. denied; L.W. Edison, Inc. v. Teagarden (1981), Ind.App., 423 N.E.2d 709, 711. However, when the facts relating to the question of liability under the Act are undisputed and when such facts lead to only one inference, the issue becomes one of law for the courts to decide. Sanchez, supra; O'Dell v. State Farm Mut. Auto Ins. Co. (1977), 173 Ind.App. 106, 362 N.E.2d 862, 866. The facts of this case relating to the question of liability under the Act are not in dispute. Since Burke's injury arose out of and in the course of his employment, worker's compensation is his exclusive remedy. We find ample support for our conclusion by reference to our case law on this subject.

The phrase "in the course of employment" refers to the time, place and circumstances surrounding the accident. Blaw-Knox Foundry and Mill Machinery, Inc. v Dacus (1987), Ind.App., 505 N.E.2d 101, 102, reh'g. denied, trans. denied. Specifically, "(a)n accident occurs in the course of employment when it takes place within the period of employment, at a place where an employee may reasonably be, and while he is fulfilling the duties of his employment or is engaged in doing something incidental thereto." Wayne Adams Buick, Inc. v. Ference (1981), Ind.App., 421 N.E.2d 733, 735.

Indiana courts previously have held that the period of employment encompasses a reasonable time before and after the employee engages in work. Goldstone v. Kozma (1971), 149 Ind.App. 626, 274 N.E.2d 304. They have also held that parking lots and private drives within the employer's supervision are clearly extensions of the employer's operating premises, Ward v. Tillman (1979), 179 Ind.App. 626, 386 N.E.2d 1003, 1005; O'Dell, supra, and thus a place where an employee reasonably may be. Lastly, the courts have held that employees are doing something incidental to their employment while they are on their employer's premises. Ward, supra.

Burke's injury occurred ten minutes before his shift at the plant was scheduled to begin. Thus, under the above-discussed authority, he was injured within the period of his employment. In addition, the accident occurred on a private employee access road which NIPSCO owned and maintained. This road was an extension of NIPSCO's operating premises and a place where Burke might reasonably be. Burke's injury clearly occurred in the course of his employment.

An injury "arises out of" employment when a causal nexus exists between the injury sustained and the duties or service performed by the injured employee. Thiellen v. Graves (1988), Ind.App., 530 N.E.2d 765, 767. This causal relationship is established when a reasonably prudent person considers a risk to be incidental to the employment at the time of entering into it. Id. Indiana courts have held that accidents resulting from employees arriving at and leaving from an employer's premises are employment related risks. Thiellen, supra; Ward, supra. Because the accident which caused Burke's injury occurred on NIPSCO's premises while Burke was arriving for work, Burke's injury arose out of his employment.

Burke argues that because his employer, Hunter, did not own the road, this rule does not apply. However, he cites no authority for this proposition. In fact, according to our case law, the fact that the employer does not own the premises on which the employee is injured does not preclude the exclusive remedy of the worker's compensation act. Goldstone, supra. (employee who slipped and fell in a parking lot adjacent to the building in which she...