Tippmann v. Hensler

• Decision Date: 22 September 1999
• Docket Number: No. 02S03-9603-CV-201.,02S03-9603-CV-201.
• Parties: Dennis TIPPMANN, Jr., Appellant (Defendant Below), v. Brian S. HENSLER, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

716 N.E.2d 372

Dennis TIPPMANN, Jr., Appellant (Defendant Below), v. Brian S. HENSLER, Appellee (Plaintiff Below).

No. 02S03-9603-CV-201.

Supreme Court of Indiana.

September 22, 1999.

Robert T. Keen, Jr., Karl J. Veracco, Fort Wayne, Indiana, Attorneys for Appellant.

Joseph A. Christoff, Catherine S. Christoff, Fort Wayne, Indiana, Attorneys for Appellee.

SHEPARD, Chief Justice.

This case comes to us on interlocutory appeal from the denial of Dennis Tippmann, Jr.'s, motion for summary judgment. The Court of Appeals remanded the case to the trial court for more fact finding on the trial court's subject matter jurisdiction. Tippmann v. Hensler, 654 N.E.2d 821, 826 (Ind.Ct.App.1995).

We grant transfer.

Facts

Brian S. Hensler and Dennis Tippmann, Jr., were co-employees at Tippmann Pneumatics, Inc. Hensler worked as a paintball gun assembler, and Tippmann worked in the service department repairing paintball guns shipped to the company for repairs. On or about October 19, 1990, Hensler, Tippmann, and other employees were taking a scheduled afternoon break in a large room where paintball guns were serviced. According to Hensler,¹ Tippmann began "playing around" by aiming a gun that Tippmann had just serviced at Hensler and asking him, "Where do you want me to shoot you at?" (R. at 97.) Hensler responded by leaving the room, getting another paintball gun, and returning. The employees then sat together conversing, with Tippmann no longer pointing the gun at Hensler.

At the far end of the room in one corner was a paint booth in which employees test fired paintball guns and paint grenades. At that same end of the room, but in the opposite corner, was the door through which one would enter or exit the room. "[J]ust for fun," and not as part of their actual duties, (R. at 97), one of the employees fired a few shots down the length of the service room into the paint booth, and Hensler did likewise with the gun he now had. Tippmann angrily told the employees to stop firing their guns because, according to Tippmann, "it [was] kind of messy" and he "would probably have the clean it up." (R. at 49.) Hensler, however, stated that it was not part of Tippmann's job responsibilities to clean the paint booth, that in fact no one cleaned it. Regardless, Hensler responded to Tippmann's order by "dry firing" his gun (firing without ejecting a paintball) at the ceiling. Tippmann responded to Hensler's act of defiance by beginning to load his paintball gun, stating that he was going to shoot Hensler. Tippmann admitted that at this time he "may have wanted to hit Hensler while he was in the room." (R. at 95.) Hensler responded, "Forget this. I'm going to get out of here," (R. at 60), and exited the service room. He did not state that he would be returning.

Tippmann testified that after Hensler left he decided to fire at the door through which Hensler had exited so as to make a loud sound against it and "scare" Hensler. (R. at 53-55.) Hensler, however, realizing after exiting that his break had not yet expired, re-entered the service room to continue his break "and talk to the guys." (R. at 61.) He stated that he was not in fear of being shot by Tippmann if he re-entered, believing that Tippmann had been "playing around" and was not really serious when he earlier threatened to shoot Hensler. (Id.) He therefore approached the door and proceeded to re-enter unannounced. Tippmann says that just as he fired his shot at the door, Hensler unexpectedly reentered the room through it. Tippmann's paintball struck Hensler in the left eye, causing severe and permanent damage.

Hensler filed a worker's compensation claim with Tippmann Pneumatics, and entered a settlement agreement with the company regarding the claim. He then filed a complaint in Allen Superior Court against Tippmann, alleging that Tippmann's negligence caused his injury, or alternatively that Tippmann intentionally caused his injury. Tippmann moved for summary judgment, claiming that the exclusivity provision of the Worker's Compensation Act, Ind.Code § 22-3-2-6, barred Hensler's action against him. The trial court denied Tippmann's motion, finding that material issues existed as to whether Tippmann intended to injure Hensler; whether the injuries were the result of horseplay and, if so, whether Hensler was an active participant or an innocent victim; and whether Tippmann was "in the same employ" when he injured Hensler. Tippmann then sought and received leave to file an interlocutory appeal.

The Court of Appeals remanded for a factual determination only on the issue of whether Hensler actively participated in horseplay, stating that if so, the trial court could hear the case, but if not, the trial court should dismiss for lack of subject matter jurisdiction. Tippmann, 654 N.E.2d at 826. The court based its holding on prior Indiana cases that denied worker's compensation benefits to victims of horseplay injuries who themselves were actively engaged in the horseplay when the injury occurred. Id. at 826 (citing Weldy v. Kline, 616 N.E.2d 398 (Ind.Ct.App. 1993)). It rejected the trial court's rulings concerning the other two material issues. First, the Court of Appeals held that the litigants had been "in the same employ," because "had Tippmann been injured under the same or similar circumstances, he would have been able to obtain worker's compensation benefits to the same extent as Hensler." Id. at 825. Second, it declared that the trial court must consider the question of Tippmann's intent to harm Hensler when he fired the injurious volley. Id. at 826.

I. Standard of Review

As the Court of Appeals correctly noted, "[T]he use of a summary judgment motion is an inappropriate manner in which to claim that the exclusivity provision of the [Worker's Compensation] Act bars a plaintiff's complaint." Id. at 824 (citing Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d 1282, 1286 (Ind.1994)). This is because such a claim "is an attack on the court's subject matter jurisdiction, which cannot form the basis of a motion for summary judgment." Perry, 637 N.E.2d at 1286 (footnote omitted). "Accordingly, we proceed to analyze this case as a question of jurisdiction on which the plaintiff carries the burden of proof and would, typically, have been required to present evidence." Foshee v. Shoney's Inc., 637 N.E.2d 1277, 1280-81 (Ind.1994).

II. Suits Against Co-Employee Tortfeasors

The Worker's Compensation Act provides an exclusive remedy against an employer for accidental injuries that arise out of and in the course of the injured victim's employment. Ind.Code Ann. §§ 22-3-2-6, 22-3-6-1(e) (West Supp.1997); Evans v. Yankeetown Dock Corp., 491 N.E.2d 969 (Ind.1986). The Act extends the immunity provided by the exclusivity provision to those "in the same employ" as the injured employee when the injury occurred.

Thus, a suit against a co-employee can proceed at trial under one of two circumstances. First, if the plaintiff can show that the Act does not apply to that particular litigation, then the trial court, and not the Worker's Compensation Board, has jurisdiction. The plaintiff accomplishes this by showing that the injury was not "by accident," that it did not "arise out of his employment," or that it did not "occur in the course of his employment." Ind. Code Ann. §§ 22-3-2-6, 22-3-6-1(e) (West Supp.1997); Evans, 491 N.E.2d at 973. Second, even if the Act applies, its exclusive remedy provision will not bar a common law suit against an employee who was not "in the same employ" as the plaintiff when the injury occurred. Ind.Code Ann. § 22-3-2-13 (West 1991); Thiellen v. Graves, 530 N.E.2d 765, 768 (Ind.Ct.App. 1988).

III. Intentional Torts

The first jurisdictional question a trial court must answer is whether the injury at issue occurred "by accident." See Evans, 491 N.E.2d at 973

. If the injury did not occur "by accident," then the Act does not apply and the trial court has jurisdiction. In Evans, we examined whether the phrase "by accident" focused on the unexpectedness and unusualness of the event causing the injury, or merely on the unexpectedness of the injury itself. We decided on the latter, concluding that injury "by accident" meant "accidental injury," not "injury caused by an accident." Id. at 974. Given this interpretation, we adopted the following test for determining when an accidental injury had occurred: whether the sufferer intended or expected that injury would, on that particular occasion, result from what he was doing. Id.

In Baker v. Westinghouse Elec. Corp., 637 N.E.2d 1271 (Ind.1994), we reaffirmed the Evans interpretation of "by accident" as meaning an unexpected injury, rather than an unexpected or unusual event. We noted, however, that Evans' victim-focused "by accident" test left out another important consideration for determining when an employee's injury, if caused by his employer, was accidental: the employer's intentions and expectations. Id. at 1273. Thus, we stated, "Because we believe an injury occurs `by accident' only when it is intended by neither the employee nor the employer, the intentional torts of an employer are necessarily beyond the pale of the act." Id.; see also Perry, 637 N.E.2d at 1287

; Foshee, 637 N.E.2d at 1281.

Viewing this language in Baker narrowly, Tippmann argues that his alleged intent to harm Hensler is of no moment, since only the employer's and injured employee's intentions matter when determining whether the injury was "by accident." (Appellant's Br. at 14-15, Appellant's Transfer Br. at 9-10.) The Court of Appeals agreed with Tippmann's interpretation of Baker. Tippmann, 654 N.E.2d at 825

; see also Landis v. Landis, 664 N.E.2d 754, 756 (Ind.Ct.App.1996). Such an application of the test enunciated in our recent cases, while adhering to its letter, ignores its reasoning and misapprehends its purpose.

Baker, Perry, and Foshee were cases in which an employer was being sued by its employee—the "by accident" requirement in...