Sweet v. Art Pape Transfer, Inc., 43A05-9904-CV-168.

• Decision Date: 28 December 1999
• Docket Number: No. 43A05-9904-CV-168.,43A05-9904-CV-168.
• Citation: 721 N.E.2d 311
• Parties: L. Ann SWEET, Appellant-Plaintiff, v. ART PAPE TRANSFER, INC. and Michael L. Sanger, Appellees-Defendants.
• Court: Indiana Appellate Court

721 N.E.2d 311

L. Ann SWEET, Appellant-Plaintiff, v. ART PAPE TRANSFER, INC. and Michael L. Sanger, Appellees-Defendants.

No. 43A05-9904-CV-168.

Court of Appeals of Indiana.

December 28, 1999.

George T. Patton, Jr., Bernie W. Keller, Bose, McKinney & Evans, LLP, Indianapolis, Indiana, Thomas H. Singer, South Bend, Indiana, Attorneys for Appellant.

Robert J. Kopka, Jeffrey S. Wrage, Kopka, Landau & Pinkus, Crown Point, Indiana, Attorneys for Appellees.

OPINION

MATTINGLY, Judge

L. Ann Sweet (Sweet) appeals¹ a summary judgment in favor of Art Pape Transfer and Michael L. Sanger (collectively, Art Pape Transfer) and the denial of her own motion for summary judgment. Sweet raises a single issue that we restate as whether she had standing to bring an action for the wrongful death of her daughter based upon the daughter's status as an enrollee in a vocational school or program when the daughter had asked to pursue an educational program at a school of natural health where she was employed and had taken textbooks home and commenced studying, but had never completed an enrollment application and had not registered to take courses.

We reverse and remand for entry of partial summary judgment for Sweet.

FACTS AND PROCEDURAL HISTORY

Sweet brought an action for damages for the wrongful death of her daughter, Shawnee Rose Ulrey, after Shawnee died in a collision with a truck driven by Sanger as an employee of Art Pape Transfer. Shawnee was twenty-one years old and living with Sweet, who was providing her daily living expenses.

About four months before she was killed, Shawnee became employed at the Trinity School of Natural Health, a non-profit Christian institution that offers programs in the study of natural health. These self-study programs last for a period of one to two and one-half years and lead to non-traditional designations such as Master Herbalist, Doctor of Naturopathy, and Master of Holistic Health. Students in the programs answer a "module" of questions at the end of each section of their texts and send the answers to Trinity to be graded. Between 2300 and 2400 students are enrolled at the school. The school is not accredited through or financially supported by the state or federal governments. Indiana does not license herbalists or naturopaths and no diploma is required of persons who work in those fields.

As an employee of Trinity, Shawnee was entitled to pursue free of charge the courses offered there. She had sought and received permission from the registrar to pursue the Master Herbalist course and had taken some textbooks home and had begun studying. However, Shawnee never completed an enrollment application and the student records do not reflect that she was enrolled at Trinity as a student. The registrar testified that no enrollment application or financial agreement was requested or required because of Shawnee's status as an employee. Both Art Pape Transfer and Sweet moved for summary judgment. The trial court granted Art Pape Transfer's motion and denied Sweet's.

DISCUSSION AND DECISION

Standard of Review

When reviewing the grant of a summary judgment motion, we apply the same standard applicable in the trial court. Summary judgment is proper only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). We do not weigh the evidence, but will consider the facts in the light most favorable to the non-moving party. Grose v. Bow Lanes, Inc., 661 N.E.2d 1220, 1224 (Ind.Ct.App.1996). We must reverse the grant of a summary judgment motion if the record discloses an incorrect application of the law to those facts. Ayres v. Indian Heights Volunteer Fire Dep't, Inc., 493 N.E.2d 1229, 1234 (Ind.1986). The dispute before us involves the construction of the statutory terms "enrolled" and "vocational school or program." Because the interpretation of a statute is a question of law reserved for the courts, see, e.g., ModuForm, Inc. v. Verkler Contractor, 681 N.E.2d 243, 248 (Ind.Ct.App.1997),

conflicting factual testimony does not necessarily give rise to an issue of fact which would preclude summary judgment.

On appeal from a grant of summary judgment, the burden is on the appellant to prove the trial court erred in determining there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Welch v. Scripto-Tokai Corp., 651 N.E.2d 810, 813 (Ind.Ct.App.1995). The fact that the parties make cross-motions for summary judgment does not alter our standard of review. Instead, we must consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Hendricks County Bank & Trust Co. v. Guthrie Bldg. Materials, Inc., 663 N.E.2d 1180, 1183 (Ind.Ct.App.1996).

The Wrongful Death Statute

Sweet's action was brought under Ind. Code § 34-23-2-1, which allows certain plaintiffs to bring an action to recover certain types of damages against a person whose wrongful act or omission caused the injury or death of a child. The statute defines "child" to include an unmarried individual without dependents who is less than twenty-three years old and is "enrolled in ... a vocational school or program." Id. § 34-23-2-1(a)(2). In its grant of summary judgment for Art Pape Transfer, the trial court determined that Shawnee was not a "child" for purposes of the wrongful death statute because she was not at the time of her death enrolled in a vocational school or program. For that reason, it held Sweet lacked standing to bring this action for Shawnee's wrongful death. We disagree, and find that Shawnee was enrolled in a vocational school or program and that Sweet thus had standing to bring this action.

Shawnee's Enrollment

The wrongful death statute does not define "enrolled," nor have the parties offered us any Indiana decisions that address the meaning of "enrollment" in the context of a statutory limitation on standing in wrongful death actions.² Art Pape Transfer premises its argument that Shawnee was not "enrolled" as a matter of law upon those common definitions of the word "enroll" which indicate the word denotes the making of a written record. See, e.g., Webster's Third New Int'l Dictionary 755 ("enroll" means "to insert, register, or enter ... in a list, catalog, or roll"; "to write out in formal or legal form"); Black's Law Dictionary 624 (4th ed.1968) ("enroll" defined as "[t]o register; to make a record; to enter on the rolls of a court; to transcribe."). Art Pape Transfer also notes various statutes and regulations that indicate "enrollment" is defined in part by the formation of a written record, e.g., 511 IAC 6-10-5 (requiring school corporations to make and maintain certain records for each enrolled student). Because there is no written evidence of Shawnee's enrollment, Art Pape Transfer asserts, she could not have, as a matter of law, been enrolled.

However, because Shawnee was an employee of Trinity as well as a student, the written records and other paperwork normally required of "enrolled" students would not have been required. Trinity employees were not required to fill out an application form before commencing their studies, though they would need to do so at some point before their degrees could be awarded. Similarly, an employee-student would have no reason to complete the financial agreement normally a part of the application and enrollment process, as the employees paid no tuition.

We further note that the Trinity program is a self-study course with no deadlines. As a result, some students whose "enrollment" is memorialized in writing have been enrolled for some time without having obtained a degree or even submitted a lesson. Shawnee was, Sweet asserts, "doing what every one of the other 2300 students at Trinity did. She secured the materials, lessons, and test modules, and was studying those in order to get her degree as a Master Herbalist." (Br. of Appellant at 18.)

We decline to impose upon this wrongful death litigant a requirement of a written enrollment record where the statute includes no such requirement and where the victim's status as an employee-student would render a written enrollment record superfluous. The trial court erred to the extent it determined Sweet lacked standing because Shawnee was not enrolled at Trinity.

Trinity's Status as a Vocational School or Program

The wrongful death statute offers no definition of "vocational school or program" nor can a definition for those terms be found elsewhere in the Indiana Code. The Code does, in the definitions applicable to public schools and to non-public schools which have voluntarily become accredited, define "vocational...