Huff v. Biomet, Inc.

• Decision Date: 15 August 1995
• Docket Number: No. 43A03-9503-CV-69,43A03-9503-CV-69
• Citation: 654 N.E.2d 830
• Parties: 2 Wage & Hour Cas.2d (BNA) 1554 Theresa HUFF as Executrix of the Estate of Melton R. Carrell, Appellant-Plaintiff, v. BIOMET, INC., Appellee-Defendant.
• Court: Indiana Appellate Court

Page 830

654 N.E.2d 830

2 Wage & Hour Cas.2d (BNA) 1554

Theresa HUFF as Executrix of the Estate of Melton R Carrell, Appellant-Plaintiff, v. BIOMET, INC., Appellee-Defendant.

No. 43A03-9503-CV-69.

Court of Appeals of Indiana.

Aug. 15, 1995.

John C. Hamilton, Doran, Blackmond, Ready, Hamilton & Williams, South Bend, for appellant.

Philip A. Whistler, Melissa R. Garrard, Ice Miller Donadio & Ryan, Indianapolis, for appellee.

OPINION

STATON, Judge.

Theresa Huff ("Huff") as executrix of the Estate of Melton R. Carrell appeals from the trial court's judgment to dismiss her action against Biomet, Inc. ("Biomet"). In her appeal, Huff raises three issues for our review which we separate into four and restate as follows:

I. Whether Huff presented a claim for relief under Ind.Code 22-2-5-1.

II. Whether Huff presented a claim for relief for conversion.

III. Whether Huff presented a claim for relief for money had and received.

IV. Whether Biomet was subject to a constructive trust.

We affirm.

The facts most favorable to the nonmovant, Huff, reveal that Melton R. Carrell ("Carrell") and Biomet entered into an employment agreement ("the Agreement") in June 1990. Carrell, a Texas resident, was hired by Biomet, an Indiana corporation, as a commission sales representative with the exclusive right to promote and sell Biomet products in northeastern and north central Texas. Pursuant to the Agreement, Biomet agreed to pay Carrell a commission on all Biomet products sold within the territory on a bimonthly basis in accordance with its standard commission rate. The Agreement also provided that Biomet could change these commission rates absent Carrell's consent or approval. The Agreement included a choice of forum and choice of law provision which indicated that all actions filed by either party were to be filed in Indiana and that the laws of Indiana would govern.

Several months after Carrell commenced employment, Biomet paid a $225,000 settlement to the person whom Carrell replaced. ¹ In January 1991, Biomet began deducting $2500 from Carrell's bimonthly commission paychecks. ² These deductions were shown on the face of each commission statement. Carrell continued his employment with Biomet with the reduced commissions until his death on April, 16, 1992.

Following Carrell's death, Huff brought an action against Biomet claiming that Biomet violated the Indiana Wage Payment Statute ³ when it reduced Carrell's commissions. Biomet filed a motion to dismiss or alternatively for a judgment on the pleadings pursuant to Ind.Trial Rule 12(B)(6) and 12(C). Following a hearing, the trial court granted Biomet's motion to dismiss based upon Huff's failure to state a claim upon which relief could be granted.

Huff then filed an amended four count complaint on December 28, 1993 alleging that Biomet: (1) violated the Wage Payment Statute; (2) committed conversion; (3) owed damages for money had and received; and (4) was subject to a constructive trust for wrongfully withholding a portion of Carrell's commissions. Biomet filed a motion to dismiss or alternatively for a judgment on the pleadings on January 20, 1994. A hearing was conducted on May 26, 1994 and the trial court granted Biomet's motion to dismiss on January 4, 1995. Huff now appeals.

In determining whether a complaint should be dismissed for failure to state a claim, facts alleged in the complaint must be taken as true. Dismissal is appropriate only where it appears that under no set of facts could plaintiffs be granted relief. Plummer & Co., Inc. v. National Oil & Gas, Inc. (1994), Ind.App., 642 N.E.2d 291, 292, trans. denied. We view the pleadings in the light most favorable to the nonmoving party, and we draw every reasonable inference in favor of that party. Couch v. Hamilton County Bd. of Zoning Appeals (1993), Ind.App., 609 N.E.2d 39, 41.

I. Indiana Wage Payment Statute

Huff contends that the trial court erred in determining that she had not stated a claim under the Indiana Wage Payment Statute ("Wage Payment Statute").

The Wage Payment Statute provides in pertinent part:

Every person, firm, corporation, limited liability company, or association, their trustees, lessees, or receivers appointed by any court, doing business in Indiana, shall pay each employee at least semimonthly or biweekly, if requested, the amount due the employee. The payment shall be made in lawful money of the United States, by negotiable check, draft, or money order, or by electronic transfer to the financial institution designated by the employee. Any contract in violation of this subsection is void.

I.C. 22-2-5-1(a).

Before determining whether Huff stated a claim under the statute, we must first decide whether the statute applies to an out-of-state resident employed by an Indiana business.

Huff contends that the Wage Payment Statute is applicable to Biomet, an Indiana corporation, and Carrell, its Texas employee, because the choice of law and choice of forum provisions of the Agreement reflect their intent that Indiana law was to govern any disputes regarding the employment relationship. ⁴ Biomet counters that Carrell is not subject to the protection of the Wage Payment Statute because the statute applies only to employees who are employed in Indiana.

Both parties cite American Bus Lines v. Page (1978), 176 Ind.App. 5, 373 N.E.2d 928, to support their positions. In American Bus Lines, this court analyzed whether the Wage Payment Statute applied to an employee who moved to Indiana from Ohio but continued to receive his wages in Ohio after expressly requesting that his wages be paid in accordance with Indiana's Wage Payment Statute. Id. 373 N.E.2d at 933. I.C. 22-2-5-1 then read, in pertinent part:

"Every person, firm, corporation or association, their trustees, lessees, or receivers appointed by any court, whatsoever doing business in [the State of Indiana] shall pay each employee thereof at least semi-monthly or biweekly, if requested...."

1971 Ind. Acts, P.L. 350-Sec. 1. (emphasis added). Based upon this language, the court stated:

[A]ppropriate interpretation of IC 1971, 22-2-5-1, ... assumes that the phrase 'each employee thereof' designates one who is employed in the doing of business in this state, viz, the one must be employed in Indiana before he comes within the provisions of the Indiana wage statute.

Id. at 932-933. The court then affirmed the trial court's finding that because the employee was employed in Indiana, he was protected under the statute. Id.

Biomet relies upon American Bus Lines to conclude that Huff has no claim under the statute because Carrell was not employed in Indiana. However, the legislature amended the specific language of the Wage Payment Statute which the court relied upon to reach its conclusion in American Bus Lines.

When the legislature amends its provisions, it is presumed to have responded to prior appellate decisions construing these provisions. Accredited Surety & Casualty Co. v. State (1991), Ind.App., 565 N.E.2d 1131, 1133. It is a general rule of construction that when the legislature amends a statute to delete specific provisions, the legislature intended to change the law by the deletion. Hatcher v. Barnes (1992), Ind.App., 597 N.E.2d 974, 975.

The Wage Payment Statute was amended in 1989 to exclude the term "thereof". See 1989 Ind. Acts, P.L. 216-1989, Sec. 2.

Because the specific language of the statute which the court relied upon in American Bus Lines has been amended, we decline to follow its rule. Instead, we must determine whether the Wage Payment Statute, as amended, was applicable to Carrell's employment with Biomet.

In examining a statute, we presume that words appearing in a statute were intended to have meaning, and we endeavor to give those words their plain and ordinary meaning absent a clearly manifested purpose to do otherwise. Indiana Dept. of Human Services v. Firth (1992), Ind.App., 590 N.E.2d 154, 157, trans. denied. The Wage Payment Statute does not impose any restriction on the employee but instead the plain language of the statute dictates that the applicability of the Wage Payment Statute rests solely upon whether the employer is doing business in Indiana. See I.C. 22-2-5-1(a). Because Biomet was a corporation doing business in Indiana, we determine that it was subject to the Wage Payment Statute.

Because the parties were subject to the statute, we may now determine whether Huff's complaint alleges sufficient facts to support a claim under the Wage Payment Statute.

The Wage Payment Statute is a penal statute which, being in derogation of the common law, must be strictly construed. Fardy v. Physicians Health Rehabilitation Services, Inc. (1988), Ind.App., 529 N.E.2d 879, 881, reh. denied. The statute contains three distinct regulations: (1) employee's wages must be paid in money; ⁵ (2) if requested, employers must pay employees semi-monthly or bi-weekly; and (3) employees, upon separation from employment, must be paid the amount due to them at their next and usual payday (unless their whereabouts are unknown). Id. at 882. The statute is concerned with the time of payment of wages and its thrust is to create a statutory requirement that wages be paid semi-monthly or bi-weekly if so requested by the employee. Id. at 881. The statute only addresses the frequency with which an employer must pay its employees, not the amount it must pay. Hendershot v. Carey (1993), Ind.App., 616 N.E.2d 412, 415.

It is essential to a successful assertion of a claim under the statute that the employee make a request for bi-weekly or semi-monthly payment and that such request have been made "prior to or concurrent with the period of employment" at issue and not after a wage dispute has arisen. Pope v. Wabash Valley Human Services, Inc. (1986), Ind.App., 500 N.E.2d 209, 212, trans. denied (citations omitted). Thus, if the employee does not make the requisite demand or request for payment under the statute, the employer and...