Segally v. Ancerys

• Decision Date: 17 December 1985
• Docket Number: No. 3-385A49,3-385A49
• Citation: 486 N.E.2d 578
• Parties: Ronald F. SEGALLY, Appellant (Defendant Below), v. Luidas ANCERYS and Irena Ancerys, Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 578

486 N.E.2d 578

Ronald F. SEGALLY, Appellant (Defendant Below), v. Luidas ANCERYS and Irena Ancerys, Appellees (Plaintiffs Below).

No. 3-385A49.

Court of Appeals of Indiana,

Third District.

Dec. 17, 1985.

David J. Hanson, Theresa L. Springmann, Spangler, Jennings, Spangler & Dougherty, P.C., Merrillville, for appellant.

Milan D. Tesanovich, Enslen, Enslen & Matthews, Hammond, for appellees.

STATON, Presiding Judge.

This cause is before us on interlocutory appeal of a trial court's decision to deny a motion for summary judgment. The facts underlying this case are that in the early hours of April 7, 1981, an automobile being operated by Luidas Ancerys (Ancerys) was struck from behind by a car driven by Ronald Segally (Segally). The accident occurred at the Virginia Street Traffic Post and Gatehouse at the entrance to United States Steel Corporation--Gary Works (U.S. Steel). Both drivers admitted to being employed by U.S. Steel. Ancerys was a Motor Inspector at the 210 Plate Mill, ¹ and Segally was a Security Officer. No timely claim pursuant to Indiana's Workmen's Compensation Act, IC 1974, 22-3-2-1 (Burns Code Ed.) was filed. ²

Mr. Ancerys and his wife, Irena, filed a tort action against Segally alleging damages in excess of $425,000.00. ³ After discovery was conducted, Segally filed a Motion for Summary Judgment arguing that the Industrial Board of Indiana under Indiana's Workmen's Compensation Act (Act) had exclusive subject matter jurisdiction of Ancerys' claim. In opposition to that motion, Ancerys claimed that three issues of material fact existed which precluded a grant of summary judgment. Those "facts" were as follows: 1) whether Segally was an employee of U.S. Steel at the time of the accident; 2) whether the accident took place on property owned, controlled or maintained by U.S. Steel; and 3) whether an hour and fifteen minute interval between the time the accident occurred and the time Ancerys was scheduled to work qualified the incident as occurring outside of Ancerys' scope of employment.

On January 31, 1985, the trial court held an off-the-record conference on the motion for summary judgment, which counsel for both parties attended. Following this conference, the trial court took the matter under advisement, and consequently, unaccompanied by any findings of fact or conclusions of law, denied Segally's motion.

Pursuant to Ind.Rules of Procedure, Appellate Rule 4(B)(6), ⁴ the denial of the motion for summary judgment was certified for appeal as an interlocutory order, and a single issue is presented for our review. That issue is as follows:

Whether the facts of record show that Ancerys' claims are barred by the exclusive remedy provisions of Indiana's Workmen's Compensation Act, and if so, was it an abuse of discretion to deny the motion for summary judgment? Affirmed.

I.

Summary Judgment

At the onset, we note several relevant points of law pertaining to summary judgment. In Jones v. City of Logansport (1982), Ind.App., 436 N.E.2d 1138, reh. denied, 439 N.E.2d 666, this Court discussed summary judgment procedure ⁵ at length. There we wrote

"In reviewing a grant of summary judgment, this Court uses the same standard applicable to the trial court. Richards v. Goerg Boat & Motors, Inc. (1979), Ind.App. , 384 N.E.2d 1084, 1090 (trans. denied ). We must reverse the grant of a summary judgment motion if the record discloses an unresolved issue of material fact or an incorrect application of the laws to those facts. Id."

Id., at 1143.

More recently, this Court has observed that the moving party bears the burden of establishing that there exists no issue of material fact. Therefore, it is the party seeking summary judgment who must set forth specific facts negating plaintiff's claims--even though it is the opposing party who would bear the burden of producing those facts should the case proceed to trial. For that reason, evidentiary matters are to be construed in the light most favorable to the non-moving party, and, even if not in dispute, summary judgment is inappropriate if conflicting inferences arise from the facts. Board of Aviation Com'rs of St. Joseph County, Ind. v. Hestor (1985), Ind.App., 473 N.E.2d 151, 153.

Summary judgment may be appropriate, however, where there is no dispute regarding facts which are dispositive, and the moving party is entitled to judgment as a matter of law. Penwell v. Western & Southern Life Ins. Co. (1985), Ind.App., 474 N.E.2d 1042, 1044; Morgan v. Southern Indiana Bank & Trust Co. (1985), Ind.App., 473 N.E.2d 158, 160.

In accordance with the abovementioned cases, to properly review the trial court's denial of the motion for summary judgment, we must look to the pleadings, depositions, answers to interrogatories and affidavits contained in the record. See Conard v. Waugh (1985), 474 N.E.2d 130, 133-34 (supporting materials other than those in the form intended by TR. 56 are not to be relied on, e.g., briefs). Our task then, is to comb the record to determine if there exists an unresolved issue of material fact.

II. Scope of Employment

In the Memorandum in Support of Motion to Deny Motion for Summary Judgment, Ancerys argued that because he and Segally were in the process of arriving for work, as opposed to being in the midst of their mutual employment, that the exclusive remedy of the Act is not invoked. In addition, Ancerys urges us to conclude that it is an unresolved issue of material fact whether or not Ancerys was acting within the scope of his employment when he was involved in the traffic accident with Segally one hour and fifteen minutes before he was scheduled to begin work.

In a recent case, our state Supreme Court addressed the scope of employment issue and the Act. In Donahue v. Youngstown Sheet & Tube Co. (1985), Ind., 474 N.E.2d 1013 (DeBruler dissenting), an accident took place on a public road after a worker had "punched out" and was walking to her automobile. Concluding that compensation coverage under the Act did not exist under those circumstances, the Donahue court explained

"... worker's compensation benefits are awarded to employees only for injuries which arise out of and in the course of employment and a claimant must show a causal connection between his or her employment and injury for the injury to have been received in the course of the employment."

Id., at 1014.

The accident in Donahue was found to be outside the course of employment because the situs of the accident was not under the exclusive possession and control of the employer. Because the accident occurred along a public thoroughfare, the general public was exposed to the same risks as the employee, and the conclusion was that the risk was beyond the employment relationship. Id., at 1015. In cases where accidents occur away from the employer's premises, the Act applies only to employees who have been engaged in activities which are found to be, in some material respects, incidental to employment or beneficial to the employer. Id., at 1017. Whether or not injuries occur in the course of employment ordinarily is a question of fact. Id., at 1014.

Such factual findings are often answers to close questions, as illustrated by the dissent in Donahue. There Justice DeBruler opined that the time and place elements in Donahue were within the Act. In his dissent, reference is made to United States Steel Corporation v. Brown (1968), 142 Ind.App. 18, 231 N.E.2d 839, trans. denied.

In Brown, the Act was found to apply to an employee who had clocked out and walked to the intersection of a company road and a public road. There she stepped into the company road to accept a ride from another employee and was struck by a car entering the plant. The Brown court explained that whether the accident occurred on or off the employer's premises is but one factor of many to consider in determining whether an injury is compensable under the Act.

To be covered by the Act, Donahue and the Act itself make it clear that injury or death by accident must arise out of and in the course of employment. ⁶ To make that determination, the actual situs of the injury, although a consideration, is not controlling. Other considerations are the type of activity in which the employee was engaged when injured and their relationship to: his duties; the reasonableness of employee's acts in relation to the sum total of conditions and circumstances constituting the work setting at the time of the injury; and finally, the knowledge and acquiescence of the employer in situations where acts incidental to employment are being done in violation of company rules. Prater v. Indiana Briquetting Corp. (1969), 253 Ind. 83, 251 N.E.2d 810, 813. The pivotal question in cases arising under the Act is whether or not the employee's exposure to the hazard which caused injury was increased by reason of employment. Dubbert v. Beucus (1933), 96 Ind.App. 390, 185 N.E. 311, 313.

Generally, merely traveling to work or coming home therefrom is not within the scope of employment; so without more, accidents which occur during these periods are not recoverable under the Act. ⁷ A public policy exception to that general rule has been created by this Court and extends coverage of the Act to those accidents resulting from the ingress-egress of employees to the employer's operating premises or extensions thereof. Ward v. Tillman (1979), 179 Ind.App. 626, 386 N.E.2d 1003; O'Dell v. State Farm Mut. Auto. Ins. Co. (1977), 173 Ind.App. 106, 362 N.E.2d 862, trans. denied.

Those cases hold that accidents occurring under conditions of employment related risk usually fall within the ambit of the Act. The announced test to determine if the parties were in the same employ is whether the denominated defendant could obtain compensation under the same or similar circumstances. Id., 362 N.E.2d at 866; Ward, supra, 386 N.E.2d at 1005. Clearly, these cases would control the disposition of the case at bar were there no questions of fact...