Northcutt v. Smith

• Decision Date: 31 October 1994
• Docket Number: No. 64A05-9402-CV-76,64A05-9402-CV-76
• Parties: Wendell E. NORTHCUTT and Joyce Ann Northcutt, Appellants-Plaintiffs, v. Gregory SMITH and Peggy Smith, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 254

642 N.E.2d 254

Wendell E. NORTHCUTT and Joyce Ann Northcutt, Appellants-Plaintiffs, v. Gregory SMITH and Peggy Smith, Appellees-Defendants.

No. 64A05-9402-CV-76.

Court of Appeals of Indiana Fifth District.

Oct. 31, 1994.

Roger A. Weitgenant, Blachly Tabor Bozik & Hartman, Valparaiso, for appellant.

Robert P. Stoner, Mark D. Geheb, Spangler Jennings & Dougherty, Valparaiso, for appellee.

OPINION

SHARPNACK, Chief Judge.

Wendell E. and Joyce Ann Northcutt (the Northcutts) appeal the summary judgment granted in favor of Gregory and Peggy Smith (the Smiths). For the reasons stated below, we reverse the trial court's entry of summary judgment and remand this cause to the trial court with instructions to dismiss for lack of subject matter jurisdiction.

The Northcutts present one issue on appeal, which we restate as whether the trial court erred in finding that the Northcutts' claims against the Smiths were barred by the exclusivity provision of the Indiana Worker's Compensation Act (the Act), Ind.Code § 22-3-2-6.

On August 24, 1990, Wendell Northcutt was injured at the home of the Smiths. Both Northcutt and Gregory Smith were employed by Roger Sculley, d/b/a Central States Carriers. Sculley personally approved Smith's request that fellow employees assist him in moving items at his residence on company time using company vehicles. Once at the Smith residence, Smith informed all the employees generally as to which items needed to be moved. Northcutt injured himself while moving a flower pot. For purposes of this appeal, the Northcutts concede that Northcutt was acting in the course and scope of his employment when injured.

On July 25, 1991, the Northcutts filed a complaint with the Jasper County Superior Court, asserting negligence, premises liability, and loss of companionship and consortium claims against the Smiths. On September 3, 1992, the Smiths moved for summary judgment, claiming that the Northcutts' claims fell within the Act. After a hearing, the trial court granted the Smiths' motion for summary judgment on October 25, 1993.

Our supreme court has held the use of a summary judgment motion inappropriate where the Act's exclusivity provision is claimed to bar a plaintiff's complaint. Perry v. Stitzer Buick GMC, Inc. (1994), Ind., 637 N.E.2d 1282, 1286; Foshee v. Shoney's, Inc. (1994), Ind., 637 N.E.2d 1277, 1280. This is because the defense that a claim is barred by the exclusivity provision of the Act is an attack on the court's subject matter jurisdiction, and cannot form the basis of a motion for summary judgment. Perry, 637 N.E.2d at 1286.

Therefore, a defense should be advanced through a motion to dismiss for lack of subject matter jurisdiction pursuant to Ind. Trial Rule 12(B)(1). Id.; Foshee, 637 N.E.2d at 1280.

Worker's compensation is governed by Article 3 of Title 22 of the Indiana Code. Under Ind.Code § 22-3-2-6,

"[t]he 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, the employee's 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 5-2-6.1 [compensation for victims of violent crime]."

I.C. § 22-3-2-6. (emphasis added). Our supreme court has determined I.C. § 22-3-2-6 to be clear and unambiguous. Evans v. Yankeetown Dock Corp. (1986), Ind., 491 N.E.2d 969, 972, reh'g denied.

Indiana Code § 22-3-2-13, in pertinent part, provides:

"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 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...."

I.C. § 22-3-2-13 (emphasis added). Indiana Code § 22-3-2-13 is an exception to the general rule limiting an employee's recovery for job-related accidental injuries to provisions of the Act, because it permits the injured employee to bring suit against individuals other than the employer or fellow employees. Weldy v. Kline (1993), Ind.App., 616 N.E.2d 398, 401, reh'g denied. The language "not in the same employ" specifically preserves a co-employee's immunity from common law liability for accidents found to have arisen out of and in the course of employment. Id.; Skinner v. Martin (1983), Ind.App., 455 N.E.2d 1168, 1171; Tarr v. Jablonski (1991), Ind.App., 569 N.E.2d 378, 379, reh'g denied, trans. denied.

Whether an injury arises out of and in the course of an employment depends upon the facts and circumstances of each case. Sanchez v. Hamara (1989), Ind.App., 534 N.E.2d 756. However, when the facts relating to the question of liability under the Act are undisputed and when such facts lead to only one inference, the issue becomes one of law for the court to decide. Id.

Although the Northcutts concede that Northcutt's injury arose in the course of his employment and the facts are not in dispute regarding how, where, and when the injury occurred, the question of whether Smith is subject to liability pursuant to the Act remains a mixed question of law and fact, which ultimately will determine whether the trial court has jurisdiction over the subject matter. See Perry, supra, 637 N.E.2d at 1287 (court has considerable latitude in devising procedures to find facts pertinent to jurisdiction; it may consider the complaint, motions, and any affidavits or other evidence submitted, and may weigh the evidence to determine existence of the requisite jurisdictional facts). Our review of such a factual determination is for an abuse of discretion.

Were Northcutt and Smith "in the same employ" at the time of the accident? This is determined by examining whether Smith could obtain compensation benefits under the same or similar circumstances. Id.; see also Ward v. Tillman (1979), 179 Ind.App. 626, 386 N.E.2d 1003; O'Dell v. State Farm Mutual Automobile Insurance Company (1977), 173 Ind.App. 106, 362 N.E.2d 862, trans denied.

The facts show that Northcutt and Smith both worked for Sculley at Central States Carriers on the date of the injury, Smith being Northcutt's shop supervisor. Northcutt performed maintenance on trailer refrigerator units, general maintenance, unloading of trucks, and "[w]hatever needed to be done." Record, p. 88, Northcutt dep., p. 39. Smith, as shop foreman, ordered truck parts, arranged job schedules, and performed maintenance on the trucks.

Sculley had authorized Smith's use of Northcutt and the other employees' services to move his personal items to his new residence while the employees were on break. Record, p. 88, Northcutt dep., p. 39. An employee is acting within the course and scope of his employment when the act that is done is not performed on the employee's own initiative. Fields v. Cummins Emp. Fed. Credit Union (1989), Ind.App., 540 N.E.2d 631, 635-636. In addition, Sculley did not relinquish his right to direct and control the conduct of Smith, Northcutt, and their co- employees at the time of the incident. See Trinity Lutheran Church, Inc. v. Miller (1983), Ind.App., 451 N.E.2d 1099, 1103 (test for determining a master-servant relationship is whether one has the right to direct and control the conduct of the alleged servant at the time of the incident).

Furthermore, the record shows that at the Smith residence, Smith informed his co-employees as to what needed to be moved and assisted his co-employees in lifting and loading boxes and other items onto the trucks.

Although we find no precedent involving similar facts--that is, employee is injured on co-employee's property performing work for co-employee on company time and with company authorization--the fact that the injury to Smith would have occurred on Smith's property while in the process of performing a task directly beneficial for himself and not for Sculley is of little moment. As stated in Weldy, supra:

"[W]e decline to follow those cases which expose a co-employee to liability based upon the non job-related nature of his actions. The Act is concerned with only the injured employee and the circumstance surrounding his or her injury. To the extent that the Act does not provide adequate...