Indiana University Hospitals v. Carter, No. 1-683A182

• Docket Nº: No. 1-683A182
• Citation: 456 N.E.2d 1051
• Case Date: December 12, 1983
• Court: Court of Appeals of Indiana

Page 1051

456 N.E.2d 1051 INDIANA UNIVERSITY HOSPITALS, Defendant-Appellant,
v.
Elizabeth CARTER, Plaintiff-Appellee. No. 1-683A182. Court of Appeals of Indiana,
First District. Dec. 12, 1983.

Page 1052

David J. Mallon, Jr., Ice, Miller, Donadio & Ryan, Indianapolis, for defendant-appellant.

Page 1053

Richard A. Young, Young & Young, Indianapolis, Robert D. Schafstall, Cutsinger & Schafstall, Franklin, for plaintiff-appellee.

NEAL, Justice.

STATEMENT OF THE CASE

This is an appeal by defendant-appellant Indiana University Hospitals (Hospital) from a ruling by the Johnson Circuit Court granting plaintiff-appellee Elizabeth Carter's (Carter) motion to correct errors wherein the court overruled its earlier decision granting the Hospital's motion for summary judgment which was filed in response to Carter's negligence action which was brought after the full Industrial Board had approved Carter's Form 12 Workmen's Compensation Agreement.

We reverse.

STATEMENT OF THE FACTS

On July 11, 1980, Carter, a part-time employee of the Hospital, was attacked and beaten by another Hospital employee. At the time of the incident, Carter was sleeping in a Hospital lounge, as was customary, prior to the start of her work shift. Following the assault, Hospital doctors attended to her injuries.

On December 11, 1980, Carter and a representative of the Hospital signed a Form 12 Workmen's Compensation Agreement in regard to Carter's injuries. This agreement was filed with the Full Industrial Board on December 15, 1980 and, on December 16, 1980 the Full Industrial Board approved the Form 12 Agreement. Pursuant to the approved agreement, the Hospital paid Carter $798.56 for seven weeks' compensation benefits for the period July 11, 1980 to August 28, 1980, at which time Carter returned to work.

Thereafter, Carter filed a negligence action against the Hospital seeking damages for the Hospital's failing to maintain a safe place for business invitees. In response to the Hospital's summary judgment motion, Carter filed an affidavit wherein she alleged in part, "I sincerely feel I was misled on the entire affair concerning who was to pay the bills and what courses of reimbursement were open".

ISSUES

The Hospital presents the following two issues for review:

I. Whether the Industrial Board of Indiana's approval of the Form 12 Agreement as to Compensation between the parties in this case for the same injuries for which plaintiff seeks recovery in this case is a conclusive determination that plaintiff's injuries arose out of and in the course of her employment with the defendant that cannot be collaterally attacked in this proceeding.

II. Whether the Industrial Board's award in the form of the approval of the Form 12 Agreement between the parties can be modified or vacated in any proceeding other than a proceeding before the Industrial Board.

DISCUSSION AND DECISION

We shall discuss both issues together. Initially, the trial court granted the Hospital's motion for summary judgment. Subsequently, the trial court reversed its ruling by granting Carter's motion to correct errors, seeking a trial of all issues. Thus, on appeal we are faced with reviewing the denial of a motion for summary judgment.

The purpose of summary judgment is to expedite litigation which presents no genuine factual dispute and may be determined as a matter of law. Indiana Insurance Company v. Sentry Insurance Company, (1982) Ind.App. 437 N.E.2d 1381. When determining whether a motion for summary judgment should be granted, the trial court must consider the facts contained in the opponent's affidavits as true and resolve all doubts against the movant. Abex Corporation v. Vehling, (1983) Ind.App., 443 N.E.2d 1248. The Court of Appeals stands in the shoes of the trial court when reviewing the grant or denial of a summary judgment motion. Wallace v. Indiana Insurance Company,

Page 1054

(1981) Ind.App., 428 N.E.2d 1361. A summary judgment is inappropriate when information before the court reveals a good faith dispute as to inferences to be drawn from those facts. Marsym Development Corp. v. Winchester Economic Development Commission, (1983) Ind.App., 447 N.E.2d 1138. Improbability of recovery by one party does not justify summary judgment for the opposition. Ogilvie v. Steele and Steele, (1983) Ind.App., 452 N.E.2d 167.

The Hospital first points out that the Indiana Workmen's Compensation Act is the exclusive remedy of an employee injured in an accident arising out of and in the course of employment with her employer. IND.CODE 22-3-2-5 and 6; Seaton v. United States Rubber Company, (1945) 223 Ind. 404, 61 N.E.2d 177; Cunningham v. Aluminum Company of America, (1981) Ind.App., 417 N.E.2d 1186; and O'Dell v. State Farm Mutual Automobile Insurance Company, (1977) 173 Ind.App. 106, 362 N.E.2d 862. Furthermore, whether an injury arises out of and in the course of employment is a question of fact to be determined by the Full Industrial Board. Lona v. Sosa, (1981) Ind.App., 420 N.E.2d 890; and Burger Chef Systems, Inc. v. Wilson, (1970) 147 Ind.App. 556, 262 N.E.2d 660.

In her appellee's brief, Carter responds by insisting that she was not injured in the course of her employment, but between shifts while she was not on duty. Furthermore, Carter argues that she signed the workmen's compensation agreement thinking it was only a salary reimbursement form. She never intended to apply for workmen's compensation, but rather was contemplating filing a lawsuit against the Hospital. To support her position, Carter filed an affidavit in opposition to the Hospital's summary judgment motion. Before examining her affidavit, we must discuss the effect of the signed Form 12 Agreement approved by the Industrial Board.

Under Indiana law, by electing to come under the Workmen's Compensation Act, an employer and employee accept the procedure provided by that act for the adjudication of claims for compensation, and they waive the right of a trial by jury. Kottis v. U.S. Steel Corporation, (7th Cir.1976) 543 F.2d 22, Cert. den. 430 U.S. 916, 97 S.Ct. 1328, 51 L.Ed.2d 594; Grasselli Chemical Company v. Simon, (1929) 201 Ind. 41, 166 N.E. 2; Radanovich v. Studebaker Corporation, (1946) 117 Ind.App. 52, 69 N.E.2d 132; and Graver Tank and Manufacturing Corporation v. Noble, (1933) 97 Ind.App. 307, 186 N.E. 390. An agreement, when filed with and approved by the Industrial Board has the force and effect of an award, and adjudicates the facts involved therein. Noble, supra.

In Grasselli, supra, at 52-3, 166 N.E. 2, our Supreme Court said:

"On application to the circuit court for judgment on an award in accordance with the statute, the court has no jurisdiction to review the decision of the Industrial Board, construe the statute, or determine whether the decision is correct. Friedman Mfg. Co. v. Industrial Commission (1918), 284 Ill. 554, 120 N.E. 460. Section 62 of the Workmen's Compensation Act, providing that judgment may be entered on the award of the Industrial Board without summons or any other prior notice, is valid, as employees and employers failing to exempt themselves from the act are presumed to consent to it, under Sections 2 and 3. This section provides a method of enforcing the collection of the award made by the Industrial Board. No objection is found to this section.

The appellant insists that it has been denied the right of a trial by jury. The complaint shows that it had elected to come within the provisions of the Workmen's Compensation Act and that the company and said Joseph Simon were bound by the terms and conditions of said act. By electing to come under that act, the appellant waived the right of trial by jury. The right to trial by jury is a right that anyone may waive if he shall see fit. Deibeikis...