Tacket v. General Motors Corp., Delco Remy Div., 95-3333

• Decision Date: 15 August 1996
• Docket Number: No. 95-3333,95-3333
• Parties: , 132 Lab.Cas. P 58,136, 11 IER Cases 1729 Thomas J. TACKET, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, DELCO REMY DIVISION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 332

93 F.3d 332

65 USLW 2192, 132 Lab.Cas. P 58,136,

11 IER Cases 1729

Thomas J. TACKET, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, DELCO REMY DIVISION, Defendant-Appellee.

No. 95-3333.

United States Court of Appeals Seventh Circuit.

Argued April 3, 1996.

Decided Aug. 15, 1996.

Frank B. Harshey (argued), Indianapolis, IN, for Plaintiff-Appellant.

Herbert C. Snyder, Jr. (argued), Barnes & Thornburg, Fort Wayne, IN, for Defendant-Appellee.

Before BAUER, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.

BAUER, Circuit Judge.

In 1985, someone painted "Tacket Tacket What A Racket" on the wall of General Motors' Anderson, Indiana assembly plant. It was a reference to Thomas J. Tacket, at the time an employee at the plant. The stenciled letters may seem harmless to many, but Tacket claimed that General Motors' failure to remove the message defamed him and irreparably damaged his reputation. To say litigation ensued would be an understatement. Tacket filed his defamation action in Indiana state court, and General Motors removed it to the federal district court. After a jury trial on February 17, 1987, the court directed a verdict in favor of the defendant. Tacket v. Delco Remy Div. of General Motors Corp., 678 F.Supp. 1387 (S.D.Ind.1987). We reversed this decision in part, 836 F.2d 1042 (7th Cir.1987), and on remand a jury awarded Tacket $100,000. General Motors appealed, and we reversed again, on the ground that Tacket had produced insufficient evidence of his psychological injury to uphold the jury's award. Tacket v. Delco Remy Div. of General Motors Corp., 937 F.2d 1201 (7th Cir.1991). The district court vacated the verdict and entered judgment for General Motors.

End of story, or so one might have thought. On March 6, 1987, two weeks after receiving the initial directed verdict, General Motors fired Tacket. Claiming that the defamation suit led to his termination, Tacket promptly filed a wrongful discharge and breach of contract action. The district court granted summary judgment for General Motors, Tacket appealed, and we reversed. Tacket v. Delco Remy, A Division of General Motors Corp., 959 F.2d 650 (7th Cir.1992). On remand, General Motors moved for partial summary judgment on Tacket's claims on the grounds that no public interest would be served by punitive damages, and that the Indiana Worker's Compensation Act, Ind.Code § 22-3-2-6, preempted his claim for emotional damages. ¹ The district court denied the motion, 818 F.Supp. 1243 (S.D.Ind.1993), and gave Tacket twenty days to amend his complaint to plead an independent tort which allowed for punitive damages.

Tacket did so, and his amended complaint asserted three counts against General Motors: 1) that General Motors is liable for breaching his employment contract; 2) that General Motors breached the employment contract "without just cause, [ ] wrongful[ly], and ... to cause emotional distress;" and 3) that General Motors' conduct was intentional, outrageous, and done with the intent to cause emotional distress. Count II sought compensatory emotional distress damages, and Count III sought punitive damages. The district court dismissed Count II, 830 F.Supp. 468 (S.D.Ind.1993), and on September 9, 1993 stayed the remaining counts pending the outcome of a question certified to the Indiana Supreme Court in Baker v. Westinghouse Electric Corp., 637 N.E.2d 1271 (Ind.1994), concerning the intentional tort exception to the exclusivity provision of the Indiana Worker's Compensation Act. After the Indiana Supreme Court issued its decision, the district court granted the defendant's motion to dismiss finding that Tacket had not met the limited intentional tort exception to the Worker's Compensation Act. By considering matters outside the pleadings, the district court converted General Motors' motion to a motion for summary judgment. See Fed.R.Civ.P. 12(b). Tacket now appeals the dismissal. We reverse, and instruct the district court that Tacket's civil action may proceed with respect to his non-physical injuries and his breach of contract claim.

General Motors' motion to dismiss is a challenge to whether an Indiana state court (and therefore a federal district court sitting in diversity) would have had subject matter jurisdiction over Tacket's claim. See Fed. R. Civ. P. 12(b)(1). If it would not, then Tacket has failed to state a claim upon which relief can be granted. The defendant's motion, therefore, is more properly characterized as a motion to dismiss under Fed.R.Civ.P. 12(b)(6). ² See Beach v. Owens-Corning Fiberglas Corp., 728 F.2d 407, 408 (7th Cir.1984) (where the district court ruled that it was without jurisdiction to hear a case because of the exclusive jurisdiction of an administrative board, the proper analysis is that the plaintiffs failed to state a claim upon which relief could be granted). If in ruling on a motion under Rule 12(b)(6), a court considers matters outside the pleading, it shall treat the motion as one for summary judgment under Rule 56. See Fed.R.Civ.P. 12(b); Bohac v. West, 85 F.3d 306, 311 (7th Cir.1996). The district court did so, and we review the grant or denial of a motion for summary judgment de novo.

Determining whether an Indiana state court would have subject matter jurisdiction over Tacket's claim requires an analysis of the exclusivity provisions of the Indiana Worker's Compensation Act, Ind.Code § 22-3-2-6. Under Indiana law, the Indiana Worker's Compensation Board has exclusive jurisdiction over claims that arise under the Act. Section 22-3-2-6 provides:

The rights and remedies granted to an employee subject to Indiana Code §§ 22-3-2 through 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.

The Indiana Supreme Court interpreted this provision in three cases decided in 1994: Baker v. Westinghouse Electric Corp., 637 N.E.2d 1271 (Ind.1994); Foshee v. Shoney's Inc., 637 N.E.2d 1277 (Ind.1994); and Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d 1282 (Ind.1994). In Baker, the court acknowledged that intentional torts were beyond the reach of the act. Baker, 637 N.E.2d at 1273. However, the court also noted that with regard to intent, "nothing short of deliberate intent to inflict an injury, or actual knowledge that an injury is certain to occur, will suffice." Id. at 1275. Moreover, it must be the employer who harbors the intent and not merely a supervisor, manager or foreman. Id.; see also National Can Corp. v. Jovanovich, 503 N.E.2d 1224, 1233 (Ind.1987).

In Foshee, the plaintiff alleged that her employer engaged in culpable misconduct by "allowing" events which posed "an imminent likelihood of injury or death to the Plaintiff and where this injury or death was substantially certain to occur." Foshee, 637 N.E.2d at 1279. The court held that after Baker, this was not sufficient to demonstrate that the employer intended the injury. To meet this intent requirement, a plaintiff must show either that the corporation is the tortfeasor's alter ego or that the...