Clem v. Steveco, Inc.

• Decision Date: 29 June 1983
• Docket Number: No. 4-782A192,4-782A192
• Citation: 450 N.E.2d 550
• Parties: Richard A. CLEM, As Administrator of the Estate of Janet L. Portman, Deceased, and Thomas M. Portman, Appellants (Plaintiffs below), v. STEVECO, INC., and the Southland Corporation, Appellees (Defendants below).
• Court: Indiana Appellate Court

Page 550

450 N.E.2d 550

Richard A. CLEM, As Administrator of the Estate of Janet L.

Portman, Deceased, and Thomas M. Portman, Appellants (Plaintiffs below), v. STEVECO, INC., and the Southland Corporation, Appellees

(Defendants below).

No. 4-782A192.

Court of Appeals of Indiana,

Second District.

June 29, 1983.

Tony H. Abbott, Foley, Cutter & Abbott, Indianapolis, for appellants.

Frank I. Magers, Kightlinger Young Gray & DeTrude, Indianapolis, Samuel A. Fuller, Stewart Irwin Gilliom Fuller & Meyer, Indianapolis, for appellees.

SHIELDS, Judge.

Richard A. Clem (Clem), as Administrator of the Estate of Janet L. Portman (Deceased) and Thomas M. Portman (Portman) (herein after collectively referred to as "Appellants") appeal the trial court's dismissal of their action for wrongful death and loss of consortium against Steveco, Inc. (Steveco) for lack of subject matter jurisdiction and against The Southland Corporation (Southland) for failure to state a claim upon which relief could be granted. Appellants raise the issues:

1) whether the Workmen's Compensation Act (Act) is the exclusive remedy for the injuries suffered by the Deceased, and,

2) whether Southland owed any duty to Deceased.

We affirm in part and reverse in part.

FACTS

Clem is the administrator of the estate of Janet L. Portman, Deceased. Thomas M. Portman is the husband of the Deceased. Steveco was the employer of the Deceased. Southland is the franchisor of the convenience store in which the Deceased was employed by Steveco.

Steveco employed the Deceased at a Seven-Eleven convenience store located on the east side of Indianapolis on the 11:00 p.m. to 7:00 a.m. shift. On the night of the injury she was working alone. At approximately 3:15 a.m. on March 19, 1980 the Seven-Eleven was robbed, and the Deceased was abducted and murdered. The Deceased was survived only by her husband. Appellants' suit is based on the theory Steveco and Southland "failed in their duty to take reasonable steps to provide Janet L. Portman with a safe place to work, and that said failure was the proximate cause of [her] death on March 19, 1980." Appellants' Brief at 2-3. Specifically Appellants claim:

"The store was not equipped with camera surveillance or monitoring. No security guards were employed by Steveco or Southland to patrol the store premises. The store was not equipped with an alarm system. There were no other ostensible means of security to protect the store premises or the people."

Appellants' Brief at 6.

Her husband, Portman, was unable to show he was Deceased's dependent under the Act. Though unemployed at the time of Deceased's death, Portman was not physically and financially incapable of supporting himself. ¹ Therefore, Workmen's Compensation paid death benefits of One Thousand Five Hundred Dollars; no other benefits were paid.

The trial court dismissed the claim against Steveco under Ind.Rules of Procedure, Trial Rule 12(B)(1) because it found exclusive jurisdiction rested with the Industrial Board of Indiana under the Act. The trial court dismissed the claim against Southland under Ind.Rules of Procedure, Trial Rule 12(B)(6) for failure to state a claim upon which relief could be granted.

I.

I.C. 22-3-2-6 (Burns Code Ed., 1974) states:

"The rights and remedies herein granted to an employee subject to this act ... on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise, on account of such injury or death."

This provision has been held constitutional. Seaton v. United States Rubber Co., (1945) 223 Ind. 404, 61 N.E.2d 177; Warren v. Indiana Telephone Co., (1940) 217 Ind. 93, 26 N.E.2d 399. See Northern Indiana Power Co. v. West, (1941) 218 Ind. 321, 32 N.E.2d 713. The exclusivity provision abrogates all other rights and remedies of an employee against an employer where the injury comes within the Act's coverage. Ward v. Tillman, (1979) Ind.App., 179 Ind.App. 626, 386 N.E.2d 1003; Needham v. Fred's Frozen Foods, Inc., (1977) 171 Ind.App. 671, 359 N.E.2d 544.

Appellants make alternative arguments in an attempt to circumvent the exclusivity provision. First, they attack I.C. 22-3-3-19 (Burns Code Ed., Supp.1982), the presumptive dependency provision of the Act, as unconstitutional claiming it impermissibly discriminates on a gender basis. Second, they argue that although Deceased's injury and death occurred within the course of her employment it did not arise out of her employment. They argue the kidnapping and murder were not the result of her employment, but rather, the result of the "fact that she was alone and vulnerable in the store, and there was no real or immediate danger of the perpetrator being revealed." Appellants' Brief at 23.

A.

Husbands and wives who are conclusively presumed dependent are defined as follows:

"(a) A wife upon a husband with whom she is living at the time of his death, or upon whom the laws of the state impose the obligation of her support at such time. The term "wife" as used in this subsection shall exclude a common-law wife unless such common law relationship was entered into before January 1, 1958, and in addition thereto, shall have existed openly and notoriously for a period of not less than five years immediately preceding the death.

"(b) A husband who is both physically and financially incapable of self-support, upon his wife with whom he is living at the time of her death. The term 'husband' as used in this subsection shall exclude a common-law husband unless such common law relationship was entered into before January 1, 1958, and in addition thereto, shall have existed openly and notoriously for a period of not less than five years immediately preceding the death."

I.C. 22-3-3-19(a), (b) (Burns Code Ed., Supp.1982).

Appellants maintain this provision impermissibly discriminates on a gender basis between similarly situated persons. Therefore, because Appellants are unconstitutionally denied a remedy by the Act they should be allowed to proceed without the Act, ignoring the exclusivity provision of the Act. We disagree.

The constitutionality of the presumptive dependency provision is not before us; nor is the resolution of the question necessary to the disposition of this case. Professional Adjusters, Inc. v. Tandon, (1982) Ind., 433 N.E.2d 779, 787 (Hunter, J., dissenting). ² The constitutional question must be raised in Portman's Compensation Act claim because the remedy, assuming the provision is unconstitutional, is to strike the offensive provision and not to declare the entire act unconstitutional. Indiana Waste Systems, Inc. v. Bd. of Com'rs. of Howard County, (1979) Ind.App., 389 N.E.2d 52; I.C. 1-1-1-8 (Burns Code Ed., 1982 Repl.). Thus, assuming the provision is unconstitutional, its unconstitutionality does not change the fact Appellants' remedy lies under the Act. A finding of unconstitutionality would alter Portman's burden of proof regarding dependency; it would not alter the fact the Act remains the exclusive remedy.

B.

Appellants also make the argument the Deceased's death did not arise out of her employment although they admit it occurred in the course of her employment. Were that the case the Act would not apply and the trial court would have erred in dismissing this action against Steveco for lack of subject matter jurisdiction. The trial court in its entry of dismissal found that the death of Deceased arose out of her employment.

The record reveals the facts are undisputed and lead to but one conclusion. When the facts lead to one inference, the issue is one of law for the court to decide. Ward, 386 N.E.2d at 1005. The only reasonable inference from the undisputed facts is the abduction and murder arose out of Deceased's employment as a cashier performing her duties. This court's treatment of a similar argument in Wayne Adams Buick, Inc. v. Ference, (1981) Ind.App., 421 N.E.2d 733, is informative.

In Ference this court held an attack by muggers upon an employee depositing company mail in a street mailbox on her way home arose out of her employment. In so doing, we said, 421 N.E.2d at 736 (citations omitted):

"Employer is correct in its assertion that ordinarily an assault by a third person not connected to the employment cannot be considered incidental to the employment. A personal squabble with a third person culminating in an assault is not compensable. However, where the assault is one which might be reasonably anticipated because of the general character of the work, or the particular duties imposed upon the workman, such as a baking route salesman who carried money and was shot and robbed, or a night watchman killed by intruders, such injuries and death may be found to arise out of the employment. Under this doctrine it can be logically asserted that a bookkeeper on the street with company mail could be a target for hoodlums who may believe the mail might contain valuables."

The attack in this case, which commenced on the premises, is at least as anticipatable as the Ference off premises attack. Therefore, we adopt and follow the Ference analysis.

The trial court did not err in dismissing Appellants' complaint against Steveco for lack of subject matter jurisdiction. The Act is the Appellants' exclusive remedy for recovery against Steveco for Deceased's injuries.

II.

Appellants second issue is whether the trial court properly dismissed Appellants' claim against Southland because Appellants failed to state a claim.

Appellants, to avoid dismissal under T.R. 12(B)(6), need only plead the operative facts involved in the litigation; they need not state their legal theory nor plead all the elements of a cause of action. F.W. Means & Co. v. Carstens, (1982) Ind.App., 428 N.E.2d 251, 262. We view the complaint in a light favorable to Appellants and draw every inference in their favor. Iglesias v. Wells, (1982) Ind.App., 441 N.E.2d 1017....