Kasten v. Sims Motor Transport, 3--675A115
| Decision Date | 25 September 1975 |
| Docket Number | No. 3--675A115,3--675A115 |
| Citation | 166 Ind.App. 117,333 N.E.2d 906 |
| Parties | Mary Belle KASTEN, as Administratrix of the Estate of Thomas F. Kasten, Sr., Deceased, Appellant, v. SIMS MOTOR TRANSPORT and the Continental Insurance Companies, Appellees. |
| Court | Indiana Appellate Court |
Blachly, Tabor, Bozik & Hartman, of Duane W. Hartman, Valparaiso, for appellant.
Spangler, Jennings, Spangler & Dougherty, of Sam. J. Bernardi, Jr., Valparaiso, for appellees.
ON THE APPELLEES' MOTION TO DISMISS OR AFFIRM JUDGMENT
This cause is pending before the Court on the Appellees' Motion To Dismiss Or Affirm Judgment which alleges that this is an attempted appeal from the denial of appellant's Motion For Summary Judgment which is not a final order from which an appeal can be taken.
The record reveals that plaintiff-appellant's decedent was a truck driver for the appellee Sims Motor Transport. While in the course of his employment he suffered fatal injuries in a highway collision. Plaintiff-appellant sought and recovered workmen's compensation benefits in the State of Illinois against Sims Motor Transport and its insurer, Continental Insurance Companies.
Thereafter plaintiff commenced this action. Her second amended complaint was in four pleading paragraphs. The named defendants were Kenneth R. Bateman (presumably the driver of the other vehicle involved in the fatal collision), Meridian Mutual Insurance Company (which had issued a policy of insurance to plaintiff which contained uninsured motorist coverage) Sims Motor Transport and Continental Insurance Companies. The first two pleading paragraphs of the complaint alleged the defendant Bateman negligently caused the death of plaintiff's decedent, and the defendant Bateman caused willful and malicious injuries to her decedent. The third pleading paragraph is directed to Meridian Mutual Insurance Company, alleged the defendant Bateman is uninsured, Meridian Mutual is obligated under its policy to pay the plaintiff under the uninsured motorist provision but it has failed to do so. The fourth pleading paragraph was directed to the defendants Sims Motor Transport and/or Continental Insurance Companies and alleged they have, or should have, a policy of insurance, the uninsured provisions of which policy are to be paid to the plaintiff.
All of the defendants except Bateman filed answers to the second amended complaint. The defendants Sims Transport and Continental Insurance Companies also filed a cross-complaint against the defendant Meridian Mutual, alleging they were subrogated to the rights of the plaintiff on any recovery or rights she might have against the defendant Meridian Mutual. Subsequently, Meridian Mutual paid into the clerk of the court the sum of $15,000.00 which was its maximum liability on the uninsured motorist provision of its policy with the plaintiff, and prayed it be dismissed as a party to these proceedings, which was done.
Thereafter the defendants Sims Transport and Continental Insurance Companies filed a motion for summary judgment and a counterclaim. Their motion for summary judgment and memorandum in support recited plaintiff's recovery against these defendants in the workmen's compensation proceedings, alleged plaintiff's exclusive remedy was under the workmen's compensation act, and that the plaintiff, by acceptance of the judgment thereunder, and acceptance of funds paid pursuant to that judgment, was estopped from collecting in a civil action against Sims Transport and Continental Insurance Companies.
The defendants' counter-claim again recited plaintiff's recovery in the workmen's compensation proceedings, alleged they were entitled to subrogation against any recovery made as a result of the death of the decedent, our of any fund from which the plaintiff might recover by judgment or settlement by any third party, and prayed the court to enjoin the plaintiff from removing any of the fund paid into the Court by Meridian Mutual Insurance Company because of these defendant's subrogation rights to those funds.
Subsequently plaintiff filed her motion for summary judgment, alleging Meridian Mutual had paid fifteen thousand dollars into court, had been discharged and the defendants Sims Transport and Continental Insurance Companies are wrongfully claiming said fifteen thousand dollars. Plaintiff's memorandum in support alleged that in Indiana, subrogation rights of workmen's compensation carriers have been limited to claims against third parties whose negligence caused the injury or death. In this case, the plaintiff's right to recover against Meridian Mutual is a contractual right, not a tort right, and therefore Sims Transport and Continental Insurance Companies have no subrogation rights to the fund paid in by Meridian Mutual.
The two motions for summary judgment were not as the two sides of the same coin. They were addressed to two separate and distinct issues. Sims Transport and Continental's motion was in the nature of an affirmative defense to plaintiff's action against them. Plaintiff's motion was in the nature of a defense to defendants' counter-claim, asserted her right to the fund paid into court by Meridian Mutual and alleged Sims Transport and Continental were wrongfully claiming that fund.
The trial court heard argument on these motions and entered the following order:
'This cause having heretofore been submitted to Court on plaintiff's and defendant's Sims Motor Transport and Continental Insurance Companies separate motions for summary judgment and continued for decisions and the Court having considered the motions, pleadings, briefs and arguments of counsel and being...
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