Tapia v. Heavner

• Decision Date: 31 March 1995
• Docket Number: No. 49A05-9403-CV-105,49A05-9403-CV-105
• Citation: 648 N.E.2d 1202
• Parties: Shabnam TAPIA and Ramiro Tapia, Appellants-Plaintiffs, v. Shawn HEAVNER and Raymond J. Ohlson & Assoc., Appellees-Defendants.
• Court: Indiana Appellate Court

Page 1202

648 N.E.2d 1202

Shabnam TAPIA and Ramiro Tapia, Appellants-Plaintiffs, v. Shawn HEAVNER and Raymond J. Ohlson & Assoc., Appellees-Defendants.

No. 49A05-9403-CV-105.

Court of Appeals of Indiana,

Fifth District.

March 31, 1995.

Frederick R. Hovde, Townsend Hovde & Montross, Indianapolis, for appellants.

Robert B. Clemens, Scott A. Weathers, Bose McKinney & Evans, Indianapolis, for appellees.

OPINION

RUCKER, Judge.

In this employment related personal injury action Plaintiffs-Appellants Shabnam Tapia and Ramiro Tapia ("the Tapias") appeal the grant of summary judgment in favor of Defendants-Appellees Shawn Heavner and Raymond J. Ohlson & Associates. The Tapias raise three issues for our review. However, because one issue is dispositive we rephrase and address it only: whether the Tapias' claims are barred by the provisions of the Worker's Compensation Act. For reasons explained below, we reverse the entry of summary judgment and remand this cause to the trial court with instructions to dismiss for lack of subject matter jurisdiction.

Raymond J. Ohlson & Associates (Ohlson & Associates) is a general insurance agency owned by Raymond J. Ohlson. Standard Life Insurance Company of Indiana (Standard Life) is primarily engaged in the business of selling annuity contracts and life insurance policies. Raymond J. Ohlson, through the company that bears his name, provides Standard Life Insurance Company with a variety of services including marketing advice.

At all times relevant to this appeal Shabnam Tapia was employed by Standard Life. Although the record does not reveal her actual job title, Tapia handled new business, and processed applications for annuity and life insurance products. Tapia was paid by Standard Life and worked out of its offices located at 9100 Keystone Crossing in Indianapolis. Sometime in the Summer of 1991, Raymond Ohlson approached officials at Standard Life seeking assistance in a marketing campaign that his company was then undertaking. As a result of Ohlson's request Tapia was assigned to work part of her day at Ohlson & Associates and part of her day at Standard Life. She remained on the Standard Life payroll. According to Raymond Ohlson, Tapia's responsibilities were to include engaging in more direct contact with various agents around the country who were selling Standard Life products. According to Tapia, she spent the majority of her time entering data into a computer and answering the telephones. In any event, after her second or third day on the job, Tapia was injured when Shawn Heavner, an employee of Ohlson & Associates, pulled the lever on a chair in which Tapia was seated causing the chair to drop to the floor.

Shabnam Tapia filed a claim against Standard Life for worker's compensation which was paid by the company's insurance carrier. Tapia also filed a complaint for negligence against Ohlson & Associates and its employee Shawn Heavner (referred to collectively as "Ohlson"). Ramiro Tapia, Shabnam Tapia's husband, was joined as a plaintiff asserting a claim for loss of consortium. In response to the Tapias' complaint Ohlson filed an answer which included an affirmative defense challenging the trial court's subject matter jurisdiction. Thereafter, Ohlson moved for summary judgment contending that the Tapias' claims fell within the provisions of the Indiana Worker's Compensation Act (the Act), Ind.Code § 22-3-2-6. The motion was granted and this appeal ensued. Additional facts are discussed below where relevant.

The defense that a claim is barred by the exclusivity provision of the Act is an attack upon the court's subject matter jurisdiction which cannot form the basis of a motion for summary judgment. Perry v. Stitzer Buick GMC, Inc. (1994), Ind., 637 N.E.2d 1282, reh'g denied. Rather, such a challenge should be raised either in the pleadings as an affirmative defense or by a motion to dismiss under Ind.Trial Rule 12(B)(1). This is so because summary judgment terminates litigation predicated upon a finding that there are no material issues of fact that necessitate trial. Id. By contrast a motion to dismiss for lack of subject matter jurisdiction presents a threshold question concerning the court's power to act. Id. When a court lacks subject matter jurisdiction, any action it takes is void. Thus, as a decision on the merits, summary judgment may not be rendered by a court which itself lacks subject matter jurisdiction. Id.

In the case before us Ohlson first raised the issue of the trial court's jurisdiction in its answer. This was entirely appropriate. However, it then pursued the issue by way of a motion for summary judgment. In so doing Ohlson presented T.R. 56(C) materials including an affidavit and portions of depositions. The Tapias responded in kind. Were we to resolve this matter under our standard of review for summary judgment motions, we would be compelled simply to reverse. This is so because certain material facts in this case are in dispute and there are conflicting inferences from those facts on which the parties agree. The law is well settled that summary judgment should be granted only if the Rule 56 materials show that there is no genuine issue of material fact and that the moving party deserves judgment as a matter of law. Houin v. Burger by Burger (1992), Ind.App., 590 N.E.2d 593, trans. denied. However, because the question of jurisdiction was squarely before the trial court, we analyze this case in that light. See e.g., Burke v. Wilfong (1994), Ind.App., 638 N.E.2d 865; Northcutt v. Smith (1994), Ind.App., 642 N.E.2d 254. Unlike ruling on a motion for summary judgment, the trial court may weigh evidence and resolve factual disputes when ruling on a motion to dismiss for lack of subject matter jurisdiction. Perry, 637 N.E.2d at 1286. In so doing the trial court may consider not only the complaint and motion but also any affidavits or other evidence. Id. at 1287. Although the opponent of jurisdiction typically carries the burden of proof, when an employer makes such a challenge, the burden shifts to the employee to establish that the cause is properly before the court. Id. We will affirm the trial court's judgment on any theory supported by the evidence of record.

Indiana's Worker's Compensation Act provides the exclusive remedy for recovery of personal injuries arising out of and in the course of employment. I.C. § 22-3-2-6; Evans v. Yankeetown Dock Corp. (1986), Ind., 491 N.E.2d 969, reh'g denied. The phrase "in the course of employment" refers to the time, place and circumstances surrounding the accident. Blaw-Knox Foundry and Mill Machinery, Inc. v. Dacus (1987), Ind.App., 505 N.E.2d 101, 102, trans. denied. An injury "arises out of" employment when a causal nexus exists between the injury sustained and the duties or services performed by the injured employee. Thiellen v. Graves (1988), Ind.App., 530 N.E.2d 765, 767. Whether an injury arises out of and in the course of employment depends upon the facts and circumstances of each case. Sanchez v. Hamara (1989), Ind.App., 534 N.E.2d 756, trans. denied.

Tapia contends her injuries did not arise out of and in the course of employment because she was not in the employ of Ohlson & Associates at the time she was injured. Rather, according to Tapia, she was in the sole employ of Standard Life. We disagree.

A person may be in the employ of more than one employer at any given time. Fox v. Contract Beverage Packers, Inc. (1980), Ind.App., 398 N.E.2d 709. The determination of the existence of an employee-employer relationship is a complex matter involving a number of facts. For example, the Fox court enumerated the following factors: (1) the right to discharge; (2) the mode of payment; (3) supplying tools or equipment; (4) belief of the parties in the existence of an employer-employee relationship; (5) control over the means used in the results reached; (6) length of employment; and (7) establishment of the work boundaries. Id. at 711-12. Although no individual factor is decisive, our supreme court has determined that "[t]he primary consideration is that there was an intent that a contract of employment, either express or implied, did exist. In other words, there must be a mutual belief that an employer-employee relationship did exist." Hale v. Kemp (1991), Ind., 579 N.E.2d 63, 67 citing Rensing v. Indiana State Univ. Bd. of Trustees (1983), Ind., 444 N.E.2d 1170, 1173.

The Tapias acknowledge the foregoing authority but point to evidence of record demonstrating a dispute of material fact as to whether the enumerated factors exist in this case. The Tapias are correct; there are a number of disputed facts here. As indicated earlier, were we to examine the evidence under our standard of review for summary judgments, then we would be compelled simply to reverse and this matter would likely proceed to trial on the merits. However, because we treat Ohlson's motion as one to dismiss for lack of subject matter jurisdiction our role as well as that of the trial court is different. The trial court may weigh evidence and resolve factual disputes, and we will affirm the trial court's judgment on any theory supported by the evidence of record.

Regarding whether there was a mutual belief that an employer-employee relationship existed, Tapia contends that neither she nor Raymond Ohlson ever considered Ohlson & Associates as her employer. In support Tapia directs us to her affidavit asserting as much and to Raymond Ohlson's deposition wherein he declared that he never actually offered Tapia "the job." Rather, he was "test[ing] her out" for possible future employment. Record at 107. Tapia's argument is not persuasive. The record is clear that there was an implied contract between Tapia and Ohlson & Associates. It was understood by both parties that Tapia would be expected to work, at least for part of her work day, at the offices of Ohlson & Associates....