Nelson v. Denkins

Decision Date24 August 1992
Docket NumberNo. 76A03-9204-CV-121,76A03-9204-CV-121
Citation598 N.E.2d 558
CourtIndiana Appellate Court
PartiesWesley E. NELSON and Marianne Nelson, Appellants-Plaintiffs, v. Gregory DENKINS, Appellee-Defendant.

John S. Knight, Parrish & Knight, Fort Wayne, for appellants-plaintiffs.

Mark A. Garvin, Richard P. Steele, Barnes & Thornburg, Fort Wayne, for appellee-defendant.

HOFFMAN, Judge.

Appellants-plaintiffs Wesley E. and Marianne Nelson appeal the trial court's grant of summary judgment to Gregory Denkins.

Three issues are raised for review:

(1) whether Wesley Nelson was barred under the Worker's Compensation Act from suing Denkins individually;

(2) whether Marianne Nelson's loss of consortium claim against Denkins is barred if Wesley's claim against Denkins is barred; and

(3) whether the trial court erred in striking the Nelsons' verified statement in opposition to Denkins' motion for summary judgment.

In reviewing a motion for summary judgment, this Court must determine whether there is a genuine issue of material fact and whether the law has been correctly applied by the trial court. Snider v. Bob Heinlin Concrete Const. Co. (1987), Ind.App., 506 N.E.2d 77, 80. The trial court's judgment will be affirmed if sustainable on any theory found in the record. Id. A moving party is entitled to judgment as a matter of law if the pleadings, depositions, answers to interrogatories, admissions and affidavits, together with any testimony, do not reveal a genuine issue of material fact. Ind.Trial Rule 56(C).

The facts relevant to this appeal reveal that on February 23, 1989, at approximately 9:30 P.M., Wesley Nelson was finishing his shift at Consolidated Freightways in Fremont, Indiana, as a window dispatcher. Gregory Denkins, an assistant terminal manager at Consolidated, was beginning his shift.

Nelson noticed Denkins in the dock office looking at a report. He approached Denkins and told him "about the amount of trucks that were coming in in the next hour." Denkins stood up and walked over to the linehaul office. Nelson followed. Denkins walked into the office and Nelson remained in the doorway. Denkins asked Logan, another employee at Consolidated, "[w]hat are you still doing here? Get out of here, get him out of here." Denkins then left the room, walking past Nelson. However, Denkins suddenly pushed Nelson into the room saying "get back to work." Afterwards, Denkins walked into the room and pushed Nelson on the shoulder again saying "no, just get out of here." Shortly thereafter, Logan and Nelson left Consolidated.

The next morning, Nelson had pain in his right shoulder, back, neck and head. The pain was so extreme he had difficulty getting out of bed. Nelson called his supervisor, Mr. Rykard, and told him what had happened. Rykard told him to report to the company doctor.

Nelson applied for worker's compensation benefits. He has not yet received any benefits as the matter is on appeal.

The Nelsons filed a complaint against Denkins on February 22, 1991. Denkins filed a motion for summary judgment. The trial court granted Denkins' summary judgment motion.

The Worker's Compensation Act covers accidents that arise out of and in the course of employment. IND.CODE Sec. 22-3-2-2(a) (1991 Supp.). An accident means the employee has received an unexpected injury. Evans v. Yankeetown Dock Corp (1986), Ind., 491 N.E.2d 969, 975. "The phrase 'arising out of' refers to the origin and cause of the injury; 'in the course of' points to the time, place and circumstances under which the accident takes place." Skinner v. Martin (1983), Ind.App., 455 N.E.2d 1168, 1170.

In Skinner, id., a case similar to this one, Skinner, the plaintiff, had stopped work for a coffee break and was approached by Martin, a co-employee, who requested that Skinner oil machinery that would soon be operated. When Skinner replied that he would when he finished his coffee, Martin made a statement regarding Skinner's work habits. Skinner responded with an expletive directed toward Martin. Martin and Skinner engaged in an exchange of verbal insults that resulted in Martin striking Skinner with his fist.

Skinner brought an action against Martin for damages, but the trial court dismissed the action. The Court, quoting Payne v. Wall, (1921) 76 Ind.App. 634, 132 N.E. 707, stated the following regarding work related disputes:

" 'Where men are working together at the same work, disagreements may be expected to arise about the work, the manner of doing it, as to the use of tools, interference with one another, and many other details which may be trifling or important. Infirmity of temper, or worse, may be expected, and occasionally blows and fighting. When the disagreement arises out of the employer's work in which two men are engaged, and as a result of it one injures the other, it may be inferred that the injury arose out of the employment.' "

Id. at 1170. Since the assault occurred while Skinner was on his coffee break, the incident occurred "in the course of" his employment. Furthermore, the altercation arose out of Martin's request for Skinner's help on the job. Since the incident was covered by the Worker's Compensation Act, Skinner was precluded from suing Martin individually by the act's exclusivity provision. See IND.CODE Sec. 22-3-2-6.

In this case, Nelson was struck while still working, albeit just finishing his shift; therefore, the incident occurred "in the course of" his employment. Secondly, the evidence supports a finding that Nelson's injuries arose out of his employment. Nelson had told Denkins about the amount of trucks that would be arriving and thereafter, the two walked to the linehaul office where Denkins told Nelson to "go back to work" and then to "just get of here" while pushing him twice. This certainly creates an inference that the incident was work related.

Nelson speculates that there may have been a non-work purpose in Denkins' actions. However, this remains speculative as there is absolutely no evidence to support this contention. It was necessary for Nelson to produce some specific facts showing that there was a genuine issue for trial. Ind.Trial Rule 56(C). Nelson did not satisfy this criterion.

Furthermore, it was not necessary, as Nelson contends, for Nelson and Denkins to engage in a fist fight for the Skinner decision to apply. The fact situation need not be identical for the rationale to apply. It is sufficient that the assault arose out of and in the course of Nelson's employment. See Evans v. Yankeetown Dock Corp., at 976 (death of employee who arrived at work at usual time, paused for coffee at eating area provided for employees, and was shot by an insane fellow-employee, was a death by accident, arising out of and in the course of employment).

Since Nelson's claim falls within the parameters of the Worker's Compensation Act, the exclusivity provision of the act is applicable:

"The rights and remedies granted to an employee subject to IC 22-3-2 through IC 22-3-6 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."

IND.CODE Sec. 22-3-2-6 (1988 Ed.). This section bars Nelson from filing a tort claim against Denkins individually. Nelson's remedy is limited to compensation under the Worker's Compensation Act.

Nelson attempts to avoid this exclusivity provision by claiming that the exception to exclusivity contained in IND.CODE Sec. 22-3-2-13 (1988 Ed.) applies to him. This section provides that a claimant may rightfully proceed at common law against a third party tort-feasor not in the same employ.

"Whenever an injury or death, for which compensation is payable under chapters 2 through 6 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...." (Emphasis added.)

In Ward v. Tillman (1979), 179 Ind.App. 626, 386 N.E.2d 1003, the Court stated that the test to determine if the parties are "in the same employ" is whether or not the denominated defendant could obtain compensation benefits in the same or similar circumstances. Id. at 631, 386 N.E.2d at 1005. Additionally, "in the same employ" does not mean a defendant is immune from a common-law tort suit merely because he has the same employer. There must be a showing that the defendant was acting in the course of his employment, Martin v. Powell (1985), Ind.App., 477 N.E.2d 943, 945, and the incident arose out of the tort-feasor's employment, Fields v. Cummins Emp. Fed. Credit Union (1989), Ind.App., 540 N.E.2d 631, 638. If Denkins had been pushed by Nelson, he would have been entitled to worker's compensation benefits. Both were employees of Consolidated and the incident arose out of and in the course of their employment.

Nelson's cited case law does not persuade this Court otherwise. In Martin, plaintiff was working at a nurse's station at the hospital when an orderly sneaked up behind her and pulled the chair out from under her. Martin fell to the floor and was injured. The evidence revealed that the orderly, Powell, had intended to "break up the monotony of their work" by wheeling Martin around the emergency room. Id. at 944. The Court held that Powell's engagement in horseplay was not in the course of his employment. The Skinner case was distinguished since the evidence in Skinner, supra, revealed the altercation began over a work-related issue.

There is no evidence of "horseplay" in this case. Denkins' statements to Nelson to "go back to work" and "just get out of here" as he shoved Nelson support a finding that the incident was work related.

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