Cox v. American Aggregates Corp.

Decision Date26 August 1997
Docket NumberNo. 93S02-9701-EX-20,93S02-9701-EX-20
Citation684 N.E.2d 193
PartiesEarl Ronald COX, Appellant, v. AMERICAN AGGREGATES CORP., Appellee.
CourtIndiana Supreme Court

BOEHM, Justice.

We granted transfer to consider the applicability of the Journey's Account Statute (the "Statute") to claims presented to the Worker's Compensation Board (the "Board") under the Worker's Compensation Act. We hold that such claims are not subject to the Statute.

Factual and Procedural History

In the summer of 1986, appellant Earl Ronald Cox suffered injuries while working as a welder for appellee American Aggregates Corp. ("AAC"). On March 27, 1987, Cox sued for damages for pain and suffering and for loss of future earnings. To avoid the bar against civil lawsuits for work related injuries, Indiana Code § 22-3-2-6, Cox alleged intentional injury by AAC. Baker v. Westinghouse Elec. Corp., 637 N.E.2d 1271, 1272 (Ind.1994) ("the [Worker's Compensation Act] by its terms does not bar certain intentional tort actions"). His wife joined him as a plaintiff in the lawsuit seeking loss of consortium. On January 29, 1991, the trial court entered summary judgment in favor of AAC for lack of any evidence suggesting an intentional tort. Cox appealed and on October 28, 1991, the Court of Appeals affirmed the trial court on the same ground. Cox v. American Aggregates Corp., 580 N.E.2d 679 (Ind.Ct.App.1991). Subsequently, on October 26, 1993, Cox turned to the Board for compensation under the Worker's Compensation Act for the 1986 injury.

Under the Worker's Compensation Act, claims must be filed within two years from the time of an accident or be "forever barred." IND.CODE § 22-3-3-3 (1993). Because Cox did not file a claim with the Board until seven years after his injury occurred, the Board determined that the claim was barred. Cox appealed the Board's decision and the Court of Appeals held that the Journey's Account Statute, Indiana Code § 34-1-2-8, preserved Cox's claim under the Worker's Compensation Act. Cox v. American Aggregates Corp., 667 N.E.2d 215 (Ind.Ct.App.1996). We granted AAC's petition to transfer and now affirm the Board's dismissal of Cox's claims.

I. The Journey's Account Statute Does Not Apply

It is clear that unless the Journey's Account Statute preserves Cox's worker's compensation claim, the claim is barred by Indiana Code § 22-3-3-3. The version of the Journey's Account Statute applicable to this case provided:

If, after the commencement of an action, the plaintiff fails therein, from any cause except negligence in the prosecution, or the action abate, or be defeated by the death of a party, or judgment be arrested or reversed on appeal, a new action may be brought within five years after such determination, and be deemed a continuation of the first, for the purposes herein contemplated.

IND.CODE § 34-1-2-8 (1988). 1 The "purposes herein contemplated" are determinations of when an action has commenced. Vesolowski v. Repay, 520 N.E.2d 433, 434 (Ind.1988). Generally, when it applies, the Statute serves to resuscitate actions that have otherwise expired under a statute of limitations. Because the Statute gives a plaintiff an additional five (now three) years to refile an action, if the Statute applies, Cox's claim before the Board would be timely.

The Journey's Account Statute applies by its terms to preserve only a "new action" that may be "a continuation of the first." Its typical use is to save an action filed in the wrong court by allowing the plaintiff enough time to refile the same claim in the correct forum. For example, the statute enables an action dismissed for lack of personal jurisdiction in one state to be refiled in another state despite the intervening running of the statute of limitations. See, e.g., Ullom v. Midland Industries, Inc., 663 F.Supp. 491 (S.D.Ind.1987).

The Journey's Account Statute is not limited to causes of action that existed at common law. As Cox points out, the Journey's Account Statute has been applied to revive actions that have lapsed under the provisions of several statutory schemes. These include the Medical Malpractice Act, Vesolowski, 520 N.E.2d at 433; the Wrongful Death Act, City of Evansville v. Moore, 563 N.E.2d 113 (Ind.1990); the Will Contest Statute, Willman v. Railing, 571 N.E.2d 590 (Ind.Ct.App.1991); and the Products Liability Act, Ullom, 663 F.Supp. at 491. In Vesolowski, for example, the parents of an injured child brought a timely medical malpractice action on the child's behalf in Illinois. The court dismissed the suit for lack of personal jurisdiction over the defendant. After the statute of limitations on medical malpractice actions had expired, the parents refiled their daughter's action in Indiana, also with new claims on their own behalf. This Court held that because the original action was timely filed and not dismissed on the merits, the Journey's Account Statute applied and saved the daughter's action. Vesolowski, 520 N.E.2d at 435-36. The daughter's "new action" was a "continuation of the first." However, the new claims asserted by the parents were not preserved because they were not a part of the original action.

The principles underlying Vesolowski control disposition of the current case. Both the medical malpractice and worker's compensation statutes contain substantive and procedural limitations. But unlike the Worker's Compensation Act, medical malpractice creates or modifies a right that, once initiated, takes the form of a lawsuit brought in a court of law. The same is true of each of the other statutory causes of action cited by Cox. A worker's compensation claim, however, cannot be brought in any forum other than the Board, and conversely the Board has no jurisdiction over general legal claims. More importantly, the Journey's Account Statute preserves only those claims that are "a continuation of the first" action. In each of the cases cited by Cox the elements of the cause of action asserted in the second "action" were the same as those in the first. In contrast, the elements of a worker's compensation claim are different from those of any remedy available in a court. Unlike the tort lawsuit that Cox initiated, there is no requirement of intentional wrongdoing or even fault in a compensation claim. IND.CODE § 22-3-2-2 (1991) (employer shall pay for "personal injury or death by accident arising out of and in the course of employment"). Indeed, if the elements of a worker's compensation claim are met, it is usually fatal to a court case. Mannon v. Howmet Transp. Serv., 645 N.E.2d 1135 (Ind.Ct.App.1995) (Worker's Compensation Act provides exclusive remedy for recovery of personal injuries arising out of employment and in the course of employment.). In sum, Cox's worker's compensation claim is not a "new action" because it is not an action presented before a court. Nor can it be a "continuation of the first" action because the two claims are substantively different. Accordingly, the Board correctly determined that the Journey's Account Statute does not apply.

II. Existing Case Law

Our conclusion that the Journey's Account Statute does not apply to Worker's Compensation claims is consistent with existing case law. Both parties discuss Wawrinchak v. United States Steel Corp., 148 Ind.App. 444, 267 N.E.2d 395 (1971), and Gayheart v. Newnam Foundry Co. Inc., 271 Ind. 422, 393 N.E.2d 163 (1979). In Wawrinchak, the court distinguished between a general statute of limitations, which may be waived, and a "nonclaim" statute. 2 Wawrinchak concluded that the Worker's Compensation Act was a nonclaim statute and that the period for filing a claim under that act may not be extended by "the disability, fraud or misconduct of the parties" nor may the "time to act ... be waived by the parties or lengthened by the court." Id. at 400. Cox argues, and the Court of Appeals agreed, that this Court's decision in Gayheart undermined Wawrinchak 's hard line against flexibility in the two year filing requirement for worker's compensation claims. As the Court of Appeals noted, Gayheart held that "when a party was fraudulently induced to forgo the timely filing of an application for modification of his worker's compensation award, the applicable limitation period was tolled at the time the fraud was perpetrated." Cox, 667 N.E.2d at 217. From this, Cox argues there is precedent for court intervention to extend time limits required under the Worker's Compensation Act.

However, our decision today is not grounded on the structure of the Worker's Compensation Act as a nonclaim statute. Nor is the delay in this case attributable to any action of the defendant. Rather our decision turns on the construction of the Journey's Account Statute. Gayheart did not involve the Journey's Account Statute and so tells us nothing about whether the Statute applies to worker's compensation claims. Because a worker's compensation claim...

To continue reading

Request your trial
20 cases
  • Jennings v. Ac Hydraulic a/S
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • September 2, 2004
    ...of jurisdiction, before an adjudication of the suit's merits (with certain exceptions not relevant here). See Cox v. Amer. Aggregates Corp., 684 N.E.2d 193, 195 (Ind.1997) ("[T]he statute enables an action dismissed for lack of personal jurisdiction in one state to be refiled in another sta......
  • Parks v. Madison County
    • United States
    • Indiana Appellate Court
    • December 31, 2002
    ...serves to resuscitate actions that otherwise would have expired under the applicable statute of limitations. Cox v. American Aggregates Corp., 684 N.E.2d 193 (Ind.1997). Parks is no stranger to the Journeys Account Statute in general, and this line of argument in particular. In Parks v. Cit......
  • Eads v. Community Hosp.
    • United States
    • Indiana Appellate Court
    • June 23, 2009
    ...in one state to be refiled in another state despite the intervening running of the statute of limitations. Cox v. Am. Aggregates Corp., 684 N.E.2d 193, 195 (Ind.1997). Therefore, if Eads's malpractice claim is to be rescued by the Journey's Account Statute, she must establish, among other t......
  • Hosler ex rel. Hosler v. Caterpillar, Inc.
    • United States
    • Indiana Appellate Court
    • April 13, 1999
    ...Account Statute, a plaintiff must have filed his original cause of action timely." Id. at 435; see also, Cox v. American Aggregates Corp. (1997) Ind., 684 N.E.2d 193, 195 (observing that Journey's Account Statute by its terms only applies to a "new action" that may be "a continuation of the......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT