Martin v. Powell

• Citation: 477 N.E.2d 943
• Decision Date: 16 May 1985
• Docket Number: No. 1-884,1-884
• Parties: Rebecca MARTIN and Ivan W. Martin, Plaintiffs-Appellants, v. Steven POWELL, Defendant-Appellee. A 201.
• Court: Indiana Appellate Court

Page 943

477 N.E.2d 943

Rebecca MARTIN and Ivan W. Martin, Plaintiffs-Appellants, v. Steven POWELL, Defendant-Appellee.

No. 1-884 A 201.

Court of Appeals of Indiana First District.

May 16, 1985.

Robert C. Rupp, Donn H. Wray, Stewart Irwin Gilliom Fuller & Meyer, Indianapolis, for plaintiffs-appellants.

Robert L. Hartley, Jr., Martin, Wade, Hartley & Hollingsworth, Indianapolis, for defendant-appellee.

RATLIFF, Presiding Judge.

STATEMENT OF THE CASE

Rebecca and Ivan Martin brought suit against Rebecca's co-employee, Steven Powell, for injuries Rebecca suffered at her place of employment. The Fayette Circuit Court granted Powell's Motion for Summary Judgment and the Martins appeal. We reverse.

FACTS

The essential facts are not in dispute. On April 19, 1981, Rebecca Martin was working at the nurse's station in the Fayette Memorial Hospital emergency room. Steven Powell, an orderly at the hospital, sneaked up behind Rebecca while she was seated at her desk. He intended to wheel Rebecca around the emergency room in an effort to break up the monotony of their work. However, when he pulled the chair away from the desk Rebecca fell to the floor. As a result of this fall, Rebecca suffered serious and permanent injuries.

On April 15, 1983, the Martins filed suit against Powell seeking damages for Rebecca's injuries. Powell subsequently filed a motion for summary judgment asserting that the Martins' exclusive remedy lay in the Workmen's Compensation Act and that under that Act, he was immune from their civil suit. The trial court granted the motion, based on our decision in Skinner v. Martin (1983), Ind.App., 455 N.E.2d 1168, and entered judgment in favor of Powell. ¹ From that judgment, the Martins appeal.

ISSUE

Resolution of this appeal requires consideration of only one of the issues raised by the Martins. ² Restated, that issue is:

Whether the trial court erred as a matter of law when it determined that the Workmen's Compensation Act barred the Martins' suit against Steven Powell.

DISCUSSION AND DECISION

As a general rule, the Workmen's Compensation Act provides the exclusive remedy for an employee who is injured as a result of an accident arising out of and in the course of his employment. Indiana Code section 22-3-2-6 (Burns Supp.1984) states in relevant part:

"Rights and remedies of employee exclusive.--The rights and remedies granted to an employee subject to IC 22-3-2 through IC 22-3-6 [22-3-2-1--22-3-6-3] on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise, on account of such injury or death, except for remedies available under IC 16-7-3.6 [16-7-3.6-1--16-7-3.6-20]."

However, the Act does permit a claimant to pursue a common law remedy against a third party tortfeasor who is not in the same employ. Indiana Code section 22-3-2-13 (Burns Supp.1984) states in part:

"Whenever an injury or death, for which compensation is payable under chapters 2 through 6 [22-3-2-1--22-3-6-3] of this article shall have been sustained under circumstances creating in some other person than the employer and not in the same employ a legal liability to pay damages in respect thereto, the injured employee, or his dependents, in case of death, may commence legal proceedings against the other person to recover damages notwithstanding the employer's or the employer's compensation insurance carrier's payment of or liability to pay compensation under chapters 2 through 6 of this article. [Emphasis supplied.]"

It is the definition and application of "in the same employ" which controls the resolution of this appeal.

The definition of "in the same employ" is well settled in this state. A defendant is not immune from a common law tort suit merely because he has the same employer as the plaintiff. Rather, a defendant is entitled to the immunity provided by Ind.Code Sec. 22-3-2-13 only when he is acting in the course of his employment at the time the plaintiff suffers his compensable injuries. Ward v. Tillman (1979), 179 Ind.App. 626, 631, 386 N.E.2d 1003, 1005; O'Dell v. State Farm Mutual Automobile Insurance Co. (1977), 173 Ind.App. 106, 111, 362 N.E.2d 862, 866, trans. denied; Helmic v. Paine (1963), 369 Mich. 114, 119, 119 N.W.2d 574, 577; Maines v. Cronomer Valley Fire Dept. (1980), 50 N.Y.2d 535, 543, 407 N.E.2d 466, 470, 429 N.Y.S.2d 622, 626; 2A A. Larson, The Law of Workmen's Compensation Sec. 72.23 (1983).

This definition is supported by the basic policy considerations underlying the Workmen's Compensation Act. The essential purpose of the Act is to afford employees injured in the course of their employment an adequate and certain remedy against their employer. In exchange for this certain remedy, the injured employee must forgo certain common law remedies against both his employer and his fellow employees. The Act is not designed, however, to insulate co-employees from liability for acts which are not in the course of their employment.

In the case before us, it is undisputed that Rebecca Martin was acting in the course of her employment when she was injured. It is equally clear that Steven Powell was not acting in the course of his employment when he engaged in the horseplay which resulted in Rebecca's injuries. See Block v. Fruehauf Trailer Division Fruehauf Corp. (1969), 146 Ind.App. 70, 74, 252 N.E.2d 612, 615. Consequently, we must conclude that Powell is not entitled to invoke the immunity granted to those "in the same employ."

Powell argues, in his brief to this court, that our...