Lewis v. Lockard

• Decision Date: 27 October 1986
• Docket Number: No. 30A01-8605-CV-133,30A01-8605-CV-133
• Citation: 498 N.E.2d 1024
• Parties: Richard LEWIS and RAL Engineering and Construction Corporation, Appellants, v. Paul LOCKARD and Dana Joyce Lockard, Appellees, Richard Allen Corporation, Fox Chase Homeowners Association, Inc., Terry Arnett and Jerry Arnett, d/b/a Northside Landscaping and Excavating, Inc., Non- Participating Parties.
• Court: Indiana Appellate Court

Page 1024

498 N.E.2d 1024

Richard LEWIS and RAL Engineering and Construction

Corporation, Appellants, v. Paul LOCKARD and Dana Joyce Lockard, Appellees, Richard Allen Corporation, Fox Chase Homeowners Association,

Inc., Terry Arnett and Jerry Arnett, d/b/a

Northside Landscaping and Excavating,

Inc., Non- Participating Parties.

No. 30A01-8605-CV-133.

Court of Appeals of Indiana,

First District.

Oct. 27, 1986.

Rehearing Denied Dec. 4, 5, 1986.

Bernard L. Pylitt, Dann, Pecar, Newman, Talesnick & Kleimann, P.C., Indianapolis, for Richard Lewis.

William M. Osborn, Osborn & Hiner, Indianapolis, George B. Davis, Davis & Davis, Greenfield, for RAL Engineering and Const. Corp.

William D. Hall, Indianapolis, for appellees.

NEAL, Judge.

STATEMENT OF THE CASE

Defendant-appellants, Richard Lewis (Lewis) and RAL Engineering and Construction Corporation (RAL), appeal the decision of the Hancock Superior Court, which ruled in favor of plaintiff-appellees, Paul and Dana Lockard, holding that the Lockard's exclusive remedy was not limited to Indiana's Workmen's Compensation Act. The Lockards, as cross-appellants, appeal the trial court's ruling in favor of Lewis and RAL, cross-appellees, regarding Lewis' and RAL's alleged liability as a matter of law for injuries sustained by Paul Lockard. Both rulings were in response to motions for partial summary judgment filed by both parties.

STATEMENT OF THE FACTS

Lewis is the president of RAL, and he owned 100% of RAL and Richard Allen Corporation (RAC). Lewis, RAL, and RAC were involved in a construction operation known as the Fox Chase Housing Project. Lewis was acting as owner and the duly licensed engineer, surveyor, and inspector of the housing project; and through RAL, he was acting as the prime contractor.

Lewis and RAL, as owners of the property, applied for and obtained several permits which enabled the construction of homes and gave permission to construct and connect sewer lines from the housing project to the public sewer system. Northside Landscaping and Excavating, Inc. (Northside) was the subcontractor hired by Lewis and RAL to install a sewer main in the housing project. Paul Lockard was an employee of Northside. On April 28, 1984, Northside was digging a trench for sewer pipe when the trench caved in on Mr. Lockard and injured him.

Northside had no insurance at the time of the accident, and Lewis and RAL had never extracted from Northside a certificate from the industrial board showing compliance with the insurance provisions of Indiana's Workmen's Compensation Act. The Lockards filed this suit against Lewis and RAL as negligent third parties.

ISSUES

Lewis and RAL present the following issue dispositive of their appeal:

Did the trial court err in sustaining Paragraph I of the Lockards' Motion for Partial Summary Judgment which claimed that their cause of action was not barred by the statutory employer section, IND.CODE 22-3-2-14, and the exclusive remedy section, IND.CODE 22-3-2-6, of the Indiana Workmen's Compensation Act because there was evidence invoking those sections?

In their cross-appeal, the Lockards present the following issue:

Did the trial court err in overruling Paragraph II of the Lockards' Motion for Partial Summary Judgment which claimed they were entitled to judgment of liability as a matter of law with the amount of damages to be determined at a later trial?

DISCUSSION AND DECISION

ISSUE I: Statutory Employer/Exclusive Remedy

In answer to the Lockards' complaint alleging negligence, both Lewis and RAL alleged that the Lockards' exclusive remedy was under the Indiana Workmen's Compensation Act. In their memorandum in support, Lewis and RAL argued that under IND.CODE 22-3-2-14, they are the "statutory employer" of Mr. Lockard, and as such, IND.CODE 22-3-2-6, the exclusive remedy section of the Act, bars the Lockards' tort cause of action. The Lockards argue that IND.CODE 22-3-2-14 creates only secondary liability in Lewis and RAL for payment, and Lewis and RAL, as third parties, are still subject to a tort cause of action under IND.CODE 22-3-2-13.

On this first issue, Lewis and RAL appeal from the trial court's ruling granting partial summary judgment in favor of the Lockards. A motion for summary judgment will be properly granted where there are no genuine issues of material fact and the law was correctly applied. Law v. Yukon Delta, Inc. (1984), Ind.App., 458 N.E.2d 677, trans. denied. All doubts and reasonable inferences should be resolved in favor of the opponent. Bassett v. Glock (1977), 174 Ind.App. 439, 368 N.E.2d 18. However, where the facts are undisputed and only one inference can reasonably be drawn, judgment can be entered as a matter of law. Hundt v. La Crosse Grain Co. (1983), Ind., 446 N.E.2d 327. Even when review is based on the grant of a motion for summary judgment, the trial court's judgment will be upheld if it can be sustained on any theory or basis found in the record. Id.

In a series of cases, our court has addressed the dispute here regarding an injured employee's alternative remedies. See Artificial Ice & Cold Storage Co. v. Ryan (1935), 99 Ind.App. 606, 193 N.E. 710; Artificial Ice & Cold Storage Co. v. Waltz (1925), 86 Ind.App. 534, 146 N.E. 826, trans. denied; In re Waltz (1923), 79 Ind.App. 298, 138 N.E. 94. The underlying facts in these cases disclose that Artificial Ice and Cold Storage Company (Artificial Ice) contracted with Hugo Wuelfing (Wuelfing) to make certain elevator repairs, and Charles A. Waltz, an employee of Wuelfing, was injured when trying to make the repairs. Artificial Ice did not extract from Wuelfing a certificate of insurance. The predecessor of IND.CODE 22-3-2-13 was held to expressly preserve the right of an injured employee to maintain an action for damages against a person other than his employer, and the statute did not make an employee of a subcontractor an employee of any other person. Waltz, supra. These cases illustrate that under Indiana's prior workmen's compensation statutory scheme, an injured employee was able to proceed under both sections 13 and 14 at the same time. However, the court in Ryan, supra, noted that an injured employee, after pursuing each remedy to a final conclusion, was prevented by statute from collecting under both.

Our legislature has amended IND.CODE 22-3-2-13 and 14 several times over the years since the Artificial Ice trilogy, but nothing in the current versions of these two provisions prevents an injured employee from proceeding under both, nor do they abrogate the rules enunciated in those cases. When a statute has been judicially construed and is later reenacted in substantially the same terms, the legislature is deemed to have intended the same construction. City of Portage v. Rogness (1983), Ind.App., 450 N.E.2d 533, trans. denied; State v. Dively (1982), Ind.App., 431 N.E.2d 540, trans. denied. The legislature is presumed to be aware of prevailing judicial construction of a statute and when it declines to curtail or deny such construction in subsequent revisions, especially over a long period of time, legislative acquiescence is presumed. See Ross v. Schubert (1979), 180 Ind.App. 402, 388 N.E.2d 623, trans. denied. Cf. Indiana Department of Revneue, Indiana Gross Income Tax Division v. Glendale-Glenbrook Associates (1981), Ind., 429 N.E.2d 217 (regarding legislative acquiescence in long adhered to administrative interpretation). Further, the specific provision in the prior version of IND.CODE 22-3-2-13 denying collection for both compensation and damages has been replaced by the current statutory scheme which also prevents double recovery through elaborate subrogation provisions. See IND.CODE 22-3-2-13 and 14. These subrogation provisions are consistent with the strong policy within the Act against double recovery by an injured employee for the same injury. See Indiana State Highway Department v. Robertson (1985), Ind.App., 482 N.E.2d 495; Freel v. Foster Forbes Glass Co. (1983), Ind.App., 449 N.E.2d 1148; Bebout v. F.L. Mendez & Co. (1941), 110 Ind.App. 28, 37 N.E.2d 690. In the interests of stability and continuity in the law, we continue to abide by the prevailing judicial and legislative interpretation of IND.CODE 22-3-2-13 and 14 which permits an injured employee to proceed under both workmen's compensation and third party liability in tort.

Lewis and RAL's argument here is essentially premised on the appropriate interpretation and construction of the law. There being no factual disputes presented here and the law is consistent with the trial court's ruling, partial summary judgment was appropriate.

ISSUE II: Liability As A Matter of Law

The Lockards' basic argument here is that Lewis and RAL failed to comply with their contracts with the City of Indianapolis and with various federal and state statutes, rules and regulations, all of which impose a nondelegable duty to furnish Mr. Lockard with a safe place to work; and as a result of their noncompliance, Lewis and RAL are negligent as a matter of law. Lewis and RAL counter by arguing there are factual disputes underlying the elements of their alleged negligence, and they also argue several affirmative defenses which they allege preclude summary judgment as a matter of law.

In their motion for partial summary judgment, it was the Lockards' burden to establish the absence of genuine issues as to material facts, and all reasonable inferences to be drawn from the facts presented must be construed in favor of the party opposing the motion. Ashlock v. Norris (1985), Ind.App., 475 N.E.2d 1167, trans. denied; Jones v. City of Logansport (1982), Ind.App., 436 N.E.2d 1138, trans. denied. Even where facts are undisputed, summary judgment is inappropriate where there is a good faith dispute as to the inferences to be drawn from the evidence before the court. Four Winns, Inc. v. Cincinnati Insurance Co. (1984), Ind.App., 471 N.E.2d 1187, trans. denied. In order to present the absence or...