Landis v. Landis, 20A03-9508-CV-283

• Citation: 664 N.E.2d 754
• Decision Date: 22 April 1996
• Docket Number: No. 20A03-9508-CV-283,20A03-9508-CV-283
• Parties: Howard Barry LANDIS, Appellant-Defendant, v. Eilene Ruth LANDIS, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

Page 754

664 N.E.2d 754

Howard Barry LANDIS, Appellant-Defendant, v. Eilene Ruth LANDIS, Appellee-Plaintiff.

No. 20A03-9508-CV-283.

Court of Appeals of Indiana.

April 22, 1996.

Appeal from the Elkhart Superior Court; The Honorable Worth N. Yoder, Judge, Cause No. 20D03-0312-CT-097.

Paul E. Becher, Jacqueline Sells Homann, Barnes & Thornburg, Elkhart, for Appellant.

Edward J. Chester, Chester, Pfaff & Brotherson, Elkhart, for Appellee.

OPINION

GARRARD, Judge.

Howard Barry Landis (Barry) and Eilene Ruth Landis (Eilene) were married for twenty-eight years. During the marriage they started a woodworking business which they incorporated in 1987 as E & L Associates Woodworking, Inc. (E & L). Each owned 50% of its capital stock, and both served as officers, directors and employees of the corporation. By August, 1992, each was earning in excess of $93,000 per year from E & L.

On August 12, 1992 their marriage was dissolved. As part of a property settlement agreement, each kept their capital stock in E & L, and they informally agreed that each would continue in their jobs there at the same rate of compensation. Just five days later at E & L, Barry erupted into rage at Eilene over the payment of company accounts. This occurred in the presence of other employees, including Barry and Eilene's daughter. Barry called her vile names, belittled her, threatened her and her secretary, and ended up kicking her in the stomach. Thereafter, Barry told people that Eilene was not allowed in the office.

Immediately after this incident Barry threatened to terminate Eilene's income from E & L. He attempted to purchase her stock, but the effort failed because he refused to personally guarantee any obligations. A second attempt also failed, and on November 9, 1993, he sent a note that her income from E & L was being terminated "due to the financial condition of E & L." While Barry testified that the financial condition of E & L was "very bad," the records disclosed that from 1992 until 1994, Barry's annual compensation increased to more than $138,000, his new wife's compensation was increased from about $15,000 to more than $31,000 and the compensation of each of their two children was increased about $15,000 per year. In July, 1993, Barry canceled the company's health insurance policy including Eilene's coverage, and when a new plan was implemented she was excluded.

So Eilene filed suit against Barry claiming damages for assault and battery, intentional interference with a business relationship and intentional infliction of emotional distress. Barry moved to dismiss the complaint upon the ground that exclusive jurisdiction lay with the Worker's Compensation Board. In response, Eilene expressly disclaimed recovery for physical injuries, medical expense, or anything constituting impairment or disability as defined by the Worker's Compensation Act.

On that basis the trial court denied the motion to dismiss and proceeded with trial to a jury. At the close of the evidence, Barry moved for judgment on the evidence again relying upon lack of jurisdiction due to the Worker's Compensation Act. The court denied the motion and subsequently entered judgment on the jury verdict awarding Eilene $2,175,000 compensatory and $50,000 punitive damages.

The principal question we are asked to decide is whether Eilene could thus maintain a civil action. ¹ The supreme court's decision in Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d 1282 (Ind.1994) persuades us that she may.

In Perry the court was confronted with an individual's attempt to bring a civil action against his former employer for assault, slander and assault and battery based upon incidents involving numerous racial slurs, a battery and, ultimately, his discharge. The company defended upon the basis that exclusive jurisdiction was under the Worker's Compensation Act.

The court, referring to its contemporaneous decision in Baker v. Westinghouse Electric Corp., 637 N.E.2d 1271 (Ind.1994), concluded that Perry could not maintain his action under the intentional tort exclusion from the Worker's Compensation Act because the evidence failed to link the conduct of the offending Stitzer managers to the corporate entity. 637 N.E.2d at 1287. That same analysis precluded Eilene from maintaining the present action under the intentional tort exclusion. For while she was attempting to sue her former co-employee, Barry, rather than the corporation, he was nevertheless within the ambit of the exclusive remedy provisions of IC 22-3-2-6 and 13 if her claim was covered by the Act.

The court then proceeded, however, to determine that because "the injuries at the heart of Perry's complaint were not physical, nor was there any impairment or disability as those terms are comprehended by the [Worker's Compensation] act" he was entitled to maintain his action. As in Perry, the heart of Eilene's claim was not physical nor did she claim either impairment or disability within the meaning of the Act as defined by the court in Perry. See 637 N.E.2d at 1288. Indeed, she expressly disclaimed any recovery whatever for any injury covered by the Act. The effect would have been necessarily the same upon the remand in Perry. Thus, upon the holding in Perry, we conclude that Eilene was entitled to maintain her civil tort action to recover for the injury done her that did not constitute personal injury within the meaning of the Worker's Compensation Act, and the trial court properly had jurisdiction of the case.

Barry additionally claims the jury's award of compensatory damages in Eilene's favor is excessive as a matter of law. ² The jury awarded Eilene compensatory damages in gross in the sum of $2,125,000. Nevertheless, Barry attacks the time period for which the jury apparently awarded Eilene damages for lost wages and benefits as being unreasonable. Moreover, he argues that the damages on account of pain, suffering and emotional distress are excessive.

In reviewing a claim that an award of damages is excessive, we will reverse a jury verdict only when it is apparent from a review of the evidence concerning the injuries that the amount of damages assessed by the jury is so great as to indicate that the jury was motivated by prejudice, passion, partiality, or corruption, or considered some improper element. Lazarus Dept. Store v. Sutherlin, 544 N.E.2d 513, 525-26 (Ind.Ct.App.1989), reh'g denied, trans. denied. Moreover, appellate courts must not substitute their idea of a proper damage award for that of the jury. Prange v. Martin, 629 N.E.2d 915, 922 (Ind.Ct.App.1994), reh'g denied, trans. denied. Instead, we look only to the evidence and inferences therefrom which support the jury's verdict. Thus, if there is any evidence in the record which supports the amount of the award, even if it is variable or conflicting, the award will not be disturbed. Id.

In denying Barry's motion to correct errors, the trial court summarized the evidence supporting the jury's compensatory damage award as follows:

[T]he ...