State v. Mileff

• Decision Date: 22 March 1988
• Docket Number: No. 50A04-8707-CV-211,50A04-8707-CV-211
• Citation: 520 N.E.2d 123
• Parties: STATE of Indiana, Appellant (Third-Party Plaintiff Below), v. Steven P. MILEFF and Cincinnati Insurance Company, Appellees (Third-Party Defendants Below).
• Court: Indiana Appellate Court

Page 123

520 N.E.2d 123

STATE of Indiana, Appellant (Third-Party Plaintiff Below), v. Steven P. MILEFF and Cincinnati Insurance Company, Appellees

(Third-Party Defendants Below).

No. 50A04-8707-CV-211.

Court of Appeals of Indiana,

Fourth District.

March 22, 1988.

Linley E. Pearson, Atty. Gen., William Eric Brodt, Deputy Atty. Gen., Indianapolis, for appellant.

Michael J. Anderson, Edward N. Kalamaros & Associates, Professional Corp., South Bend, for appellees.

CONOVER, Judge.

The State of Indiana (State) appeals the entry of summary judgment in favor of Steven P. Mileff and Cincinnati Insurance Company (collectively, Mileff) in an action where the State seeks to enforce a Workmen's Compensation employer's lien on the proceeds of a settlement reached in the employee's action against Mileff, a negligent third party.

Affirmed in part, reversed in part, and remanded.

Restated, the State's issues are

1. whether the trial court erred by determining the State had no valid lien upon the third party settlement,

2. whether the trial court erred by determining the State waived any claim or lien against the settlement proceeds by failing to give notice it intended to assert an employer's statutory lien,

3. whether the lien should be asserted against the settlement funds now in the hands of Robertson, and

4. whether the trial court erred by assessing costs against the State.

Lorie Robertson (Robertson), a State employee acting within the course and scope of her employment, was injured in an automobile accident in Fulton County in July, 1983. Her attorney filed two separate law suits, one against the State for negligent design of the highway at the accident site, the other against Mileff the other driver. Judgment against the State was entered in the negligence action, but the cause was reversed on appeal.

Robertson did not file a Workmen's Compensation claim against her employer, the State, because her attorney believed the State was liable for negligence. She did, however, claim and receive disability benefits totaling $20,152.32 under the Indiana Administrative Code, Sec. 31 I.A.C. 2-11-5 as a merit employee of the State. After the accident, the State filed a Form 24 report of the injury with the Industrial Board as required by statute. Prior to the appeal of the State's case, it filed a set of interrogatories, one requiring disclosure of any actions against third parties. Robertson's answer informed the State of her action against Mileff. The State, however, never notified any of these parties it intended to assert an employer's lien to recover its expenditures due to Robertson's injuries.

In 1984, Robertson and Mileff began negotiations for settlement of that lawsuit. As a preliminary to those discussions, Robertson's attorney asked her immediate supervisor at the Northern Indiana Children's Hospital to determine whether the State intended to press its claim for reimbursement for money it had expended because of Robertson's injuries in the automobile accident. The supervisor responded in the negative.

Thereafter, Robertson and Mileff settled the case. Robertson was paid $4,107.65 for lost time from work and $40,000 for injuries she received in the accident. The State now seeks to enforce a statutory employer's lien against Mileff for $20,152.32 covering medical and wage payments made to or for Robertson because of this accident.

From an adverse summary judgment, the State appeals.

When reviewing the grant of a motion for summary judgment we stand in the shoes of the trial court. Lafary v. Lafary (1985), Ind.App., 476 N.E.2d 155, 158. We must determine whether any genuine issue of material fact exists and whether the law was correctly applied. Mead, Johnson and Co. v. Oppenheimer (1984), Ind.App., 458 N.E.2d 668. We must liberally construe all evidence in favor of the nonmovant and resolve any doubt as to the existence of a genuine issue against the proponent of the motion. Kahf v. Charleston South Apartments (1984), Ind.App., 461 N.E.2d 723; Grimm v. F.D. Borkholder Co., Inc. (1983), Ind.App., 454 N.E.2d 84, 86; Moll v. South Central Solar Systems, Inc. (1981), Ind.App., 419 N.E.2d 154, 159. Summary judgment may not be used as a substitute for trial to resolve factual disputes. Even if the trial court believes the nonmoving party will not be successful at trial, where material facts conflict or conflicting inferences are possible from undisputed facts, summary judgment should not be entered. Grimm, 454 N.E.2d at 86; Clipp v. Weaver (1983), Ind., 451 N.E.2d 1092; English Coal, Inc. v. Durcholz (1981), Ind.App., 422 N.E.2d 302, 307.

We have a duty to sustain the action of the trial court if it can be done on any legal ground on the record. This is true even though the reasons given by the trial court for its action may be erroneous, if the ruling can be sustained on any other ground. Hurst v. Board of Comm'rs. of County of Pulaski (1985), Ind., 476 N.E.2d 832, 834; Elmore v. City of Sullivan (1978), 177 Ind.App. 495, 380 N.E.2d 108, 110. This rule applies to summary judgments. Aetna Insurance Co. of Midwest v. Rodriguez (1987), Ind.App., 504 N.E.2d 1030, 1032.

The State first argues the evidence before the trial court demonstrated Robertson received Workmen's Compensation payments from her employer, the State. We agree.

The Third District of this Court in a 1985 decision involving Robertson's claim the State of Indiana was liable for negligent design of the intersection at which she was injured, said:

Robertson seeks to circumvent the exclusivity clause of the Workmens Compensation Act by arguing that the wage compensation she received was not granted under that act but rather was granted under 31 I.A.C. 2-11-5 with its separate and distinct statutory base. However, the prohibition against an employee raising a [negligent design] claim is not waived simply because an employer seeks to provide compensation greater than would be required under the Act. ...

Indeed, IC 22-3-3-23(a) provides:

"Any payments made by the employer to the injured employee during the period of his disability, ..., may, subject to the approval of the industrial board, be deducted from the amount to be paid as compensation."

In terms of wages, the State would have been required to provide at most 66 2/3% as temporary total disability wage benefits under the act. Instead, the State pursuant to 31 I.A.C. 2-11-5 provided Robertson with full pay for time lost due to her injury until she returned to work. Such a payment "not due and payable when made" cannot operate to remove the matter from the Act or its exclusivity provision since to do so would in effect render IC 22-3-3-23(a) a nullity. Furthermore, ..., 31 I.A.C. 2-11-5 itself provides for a setoff of funds paid under it when an employee also seeks temporary total disability compensation during the single year of 31 I.A.C. 2-11-5's applicability. ... In light of the foregoing we find Robertson's argument that her receipt of wage benefits under 31 I.A.C. 2-11-5 places her claim outside the Workmens Compensation Act to be without merit.

Indiana State Highway Dept. v. Robertson (1985), Ind.App., 482 N.E.2d 495, 498.

The State of Indiana asserts Robertson, supra, contains the law of this case on the question of whether the State's payments to Robertson were made under the provisions of the Workmens Compensation Act. Mileff argues to the contrary the law announced in Robertson does not bind him as the law of the case because the settlement they effected with Robertson was consummated prior to Robertson's hand down date of September 19, 1985.

The "law of the case" doctrine does not apply here because Robertson is not the same case involving the same parties and issues as the one before us. Further, the operative facts of this appeal center upon Mileff's settlement of Robertson's cause against him and the State's assertion of its statutory lien upon the proceeds. The law of the case doctrine does not apply unless the same case and substantially the same facts are involved in the subsequent appeal. Cha v. Warnick (1985), Ind., 476 N.E.2d 109, 114; Fair Share Organization, Inc. v. Mitnick (1964), 245 Ind. 324, 198 N.E.2d 765, cert. denied 379 U.S. 843, 85 S.Ct. 82, 13 L.Ed.2d 48.

However, Robertson constitutes binding precedent upon us under the doctrine of stare decisis. This doctrine states that, when a court has once laid down a principle of law as applicable to a certain set of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same. Black's Law Dictionary, 1577 (4th Rev.Ed., 1968). The facts in Robertson regarding payments under the Workmen's Compensation Act are not substantially the same as those before us, they are in fact the same. Thus, Robertson is binding precedent upon us.

Appellees next argue because the Third District's discussion on that subject was non-binding dicta, Robertson is not binding precedent here. We disagree.

Dictum, or obitur dictum, is an expression or a statement by the court on a matter not necessarily involved in the case nor necessary to a decision thereof. 7 I.L.E. (Courts) Sec. 66. The test to determine whether a statement in an opinion is dicta appears in Hahn v. Moore (1956), 127 Ind.App. 149, 134 N.E.2d 705. There, Judge Kelley said

To determine whether a case is a precedent for a stated proposition and therefore to be adhered to under the rule of stare decisis, it is proper to ascertain the exact point or points before the court for adjudication and seek, in the opinion, the doctrine announced or followed by the court, without which the point could not be correctly decided. All else in the opinion is merely the reasoning or explanation of the court and attains the dignity of neither doctrine nor precedent.

Hahn, 134 N.E.2d at 706. Clearly in Robertson, one of Robertson's contentions was she did not receive payment under the Workmen's Compensation Act because she was...