City of Alexandria v. Allen

• Decision Date: 27 March 1990
• Docket Number: No. 48A02-8804-CV-153,48A02-8804-CV-153
• Citation: 552 N.E.2d 488
• Parties: CITY OF ALEXANDRIA, Appellant (Defendant Below), v. Ermal ALLEN, Jr., Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 488

552 N.E.2d 488

CITY OF ALEXANDRIA, Appellant (Defendant Below), v. Ermal ALLEN, Jr., Appellee (Plaintiff Below).

No. 48A02-8804-CV-153.

Court of Appeals of Indiana Second District.

March 27, 1990.

Rehearing Denied April 23, 1990.

Peter G. Tamulonis, Donald L. Dawson, John B. Drummy, Thomas B. Blackwell, Kightlinger & Gray, Indianapolis, for appellant.

Jeffrey A. Lockwood, John E. Eisele, Michell P. Chabraja, Schuyler, Eisele & Lockwood, Anderson, for appellee.

SULLIVAN, Judge.

The City of Alexandria ("City"), defendant below, appeals a judgment entered upon a jury verdict in favor of Ermal Allen, Jr. ("Plaintiff").

We affirm.

Plaintiff was employed by the City as an Assistant Chief for the Alexandria Fire Department. He began working for the City as a fireman in November of 1968. On April 10, 1985, Plaintiff and two other firemen, Robert Cunningham and Brian Etchison, were on duty. Plaintiff was the shift commander and, as such, was in charge of inspecting the fire equipment consisting of Engines No. 1, 2 and 3. The daily inspections included a check of fluid levels, lights, and a visual inspection of the truck and the equipment on the truck. Also, the trucks were tested to see if they would start. On that day Brian Etchison informed Plaintiff that he would drive Engine No. 2 only under protest because he felt it was unsafe. Also, it was necessary to place a battery charger on Engine No. 3 because the engine did not start when tested. Nevertheless, all three engines were checked into service.

At 2:20 P.M., a grass fire near Little Lakes Industries was reported to the Fire Department. Plaintiff and Brian Etchison responded to the call in Engine No. 2. Plaintiff was driving. He pulled the truck out of the fire station and attempted to make a left-hand turn. While attempting to negotiate the turn, Plaintiff heard a "pop" and felt the right front end of the truck give way. Plaintiff had difficulty steering the vehicle. He felt the engine accelerate and attempts at braking proved unsuccessful. The right front of the vehicle struck a house located across the street and north of the fire station. Plaintiff was injured as a result of the accident. Plaintiff brought suit against the City on the basis of negligence in maintaining Engine The City presents several issues for our review which we rephrase. The City contends that the trial court lacked subject matter jurisdiction of Plaintiff's claims as a result of Plaintiff's receipt of benefits under the Worker's Compensation Act.

No. 2. The jury found for the Plaintiff and awarded $70,000 in damages.

The City also contends that it is entitled to judgment because the verdict and judgment are contrary to law, contrary to the evidence, and not supported by sufficient evidence. Under this heading, the City questions:

(1) Whether the evidence is sufficient to support a finding of negligence;

(2) Whether the evidence shows that either Plaintiff was contributorily negligent as a matter of law or the City was not negligent.

The City alleges that the failure of the trial court to grant judgment on the evidence in its favor was contrary to law and contrary to the evidence on the basis of the same alleged errors which render the judgment itself contrary to law and contrary to the evidence.

The City alternatively argues that it is entitled to a new trial on the basis of the following alleged errors:

(1) Whether the trial court erred in allowing Plaintiff to testify as an expert and give an opinion as to the cause of the accident;

(2) Whether the trial court erred in permitting evidence of medical expenses;

(3) Whether the trial court erred in admitting evidence of unrelated problems with Engine No. 2 as well as the other vehicles.

I SUBJECT MATTER JURISDICTION

The City argues that the trial court lacked subject matter jurisdiction of the Plaintiff's claims as a result of Plaintiff's receipt of benefits under the Worker's Compensation Act. The City directs our attention to I.C. 22-3-2-6 which provides that an employee subject to I.C. 22-3-2 through I.C. 22-3-6 is limited in his rights and remedies for personal injury to those granted to him under the Worker's Compensation Act and is precluded from availing himself of common law rights and remedies. The City then cites I.C. 22-3-2-2 (Burns Code Ed.Repl.1986) which provided in relevant part:

"Employers and employees bound by act--Exceptions.--Every employer and every employee, except as herein stated, shall be required to comply with the provisions of IC 22-3-2 through IC 22-3-6 [22-3-2-1--22-3-6-3] respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment, and shall be bound thereby. This law shall not apply to railroad employees engaged in train service as engineers, firemen, conductors, brakemen, flagmen, baggagemen, or foremen in charge of yard engines and helpers assigned thereto. This law shall not apply to employees of municipal corporations in this state who are members of the fire department or police department of any such municipality and who are also members of a firemen's pension fund or of a policemen's pension fund: Provided, however, That if the common council elects to purchase and procure workmen's compensation insurance to insure said employees with respect to medical benefits under the provisions of this law, the medical provisions of this law shall apply to members of the fire department or police department of any such municipal corporation who are also members of a firemen's pension fund or a policemen's pension fund: Provided, further, That in any instance when any municipal corporation has heretofore purchased or procured, or hereafter purchases or procures workmen's compensation insurance covering members of the fire department or police department who are also members of a firemen's pension fund or a policemen's fund, and has paid or hereafter pays the premium or premiums for such insurance, the payment of such premiums is hereby declared to be a legal and allowable expenditure of funds of any municipal corporation:

Provided, further, That in any case where the common council has procured workmen's compensation insurance as herein provided, any member of such fire department or police department employed in the city carrying such workmen's compensation insurance as herein provided shall be limited to recovery of medical and surgical care, medicines, laboratory, curative and palliative agents and means, X-ray, diagnostic and therapeutic service, to the extent that such services are provided for in the workmen's compensation policy so procured by such city, and shall not also recover in addition thereto for such same benefits as are provided in IC 36-8-4." ¹

Since Plaintiff is a member of a firemen's pension fund and the City did procure worker's compensation insurance to provide medical benefits to those employed by it, the City argues that under the above statutes, the Plaintiff's claim against it is within the exclusive jurisdiction of the Industrial Board. We are not persuaded by the City's argument.

In Elwell v. City of Michigan City (1979) 3d Dist., 179 Ind.App. 434, 385 N.E.2d 1203, our Third District addressed a similar argument with respect to a policman who was injured in the course of his duties. In that case, the City had elected to purchase worker's compensation insurance and Elwell was a member of the policemen's pension fund. In construing I.C. 22-3-2-2, the court held that Elwell was not precluded from suing the city under common law. The court interpreted the final proviso of I.C. 22-3-2-2 as above quoted, and held that

"the clear import of this proviso is to limit the medical benefits payable to exempt officers to those provided by the compensation act when the city has elected to purchase such insurance." Id. 385 N.E.2d at 1204. [Emphasis supplied.]

The City urges us not to follow Elwell. The City contends that the Third District "failed to properly consider I.C. Sec. 22-3-2-6" in deciding Elwell. Appellant's Brief at 42. Indiana Code 22-3-2-6 states that the rights and remedies granted to an employee subject to I.C. 22-3-2 to I.C. 22-3-6 are exclusive. The City maintains that Plaintiff was an employee subject to I.C. 22-3-2 to I.C. 22-3-6 "[u]nder the clear language of I.C. Sec. 22-3-2-2" and therefore Plaintiff is limited to the exclusive rights and remedies granted by the Worker's Compensation Act. Appellant's Brief at 42. The City, however, ignores that I.C. 22-3-2-2 is an exemption statute, defining what class of employees are exempt from the provisions of the Worker's Compensation Act. At the risk of being repetitive, we again refer to the language of I.C. 22-3-2-2. The title of the statute is "Employers and employees bound by act-- Exceptions ", and the statute begins: "Every employer and every employee, except as herein stated, shall be required to comply with the provisions of I.C. 22-3-2 through I.C. 22-3-6...." [Emphasis supplied.]

We are not persuaded by the City's contention that Elwell was erroneously decided, and therefore agree with the Third District's construction of I.C. 22-3-2-2. Accordingly, we hold that, except for medical benefits, the Plaintiff is not limited in his remedy or ability to recover for his injuries to those provided for under the Worker's Compensation Act.

II SUFFICIENCY OF EVIDENCE AS TO DEFECTIVE CONDITION OF VEHICLE

The City argues that the evidence is insufficient to support a finding that any deficiency in the fire truck caused the accident in which Plaintiff was injured.

Where the sufficiency of the evidence is challenged on appeal, this court conducts a limited review. By our very nature as a reviewing court, the Court of Appeals may never reweigh the evidence. The parties The City here argues that there is no evidence of probative value to support a finding that any deficiency in the fire truck caused the accident. We cannot...