Weldy v. Kline

• Decision Date: 28 June 1993
• Docket Number: No. 50A03-9211-CV-368,50A03-9211-CV-368
• Citation: 616 N.E.2d 398
• Parties: James WELDY, Appellant-Defendant, v. Mary Elizabeth KLINE, Personal Representative of the Estate of George E. Kline, Deceased, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 398

616 N.E.2d 398

James WELDY, Appellant-Defendant, v. Mary Elizabeth KLINE, Personal Representative of the Estate of George E. Kline, Deceased, Appellee-Plaintiff.

No. 50A03-9211-CV-368.

Court of Appeals of Indiana,

Third District.

June 28, 1993.

Rehearing Denied Sept. 30, 1993.

Robert D. Lee, William T. Webb, Hardig, Lee & Groves, South Bend, for appellant-defendant.

Charles Gregory Read, Ronald L. Davis, Vissing, Read, Davis, Byrne, Mosley & Miller, Jeffersonville, for appellee-plaintiff.

GARRARD, Judge.

This is an interlocutory appeal from the denial of a Trial Rule 12(B)(1) motion to dismiss for lack of subject matter jurisdiction, or in the alternative, a motion for summary judgment.

The facts in this case reveal that on August 27, 1989, M.P.I., Inc. (MPI) held a party for employees who worked at its Goshen, Indiana, Holiday Inn. Defendant James E. Weldy (Weldy) and decedent George E. Kline (Kline) were both employed by MPI at the time of the party and worked together in the kitchen at the Holiday Inn. MPI sponsored the party for those who worked at the Inn in order to improve employee morale, generate good will among the employees, and otherwise benefit Holiday Inn. The party included a cook-out and some planned activities, including a tug-of-war game which took place over the swimming pool. MPI also supplied food, drink, and a keg of beer.

During the course of the party many of the party-goers were caught and thrown into the pool. At one point in the evening Weldy and a non-employee guest, Charles Myers, pursued Kline with the intent of throwing him into the pool. Their first attempt was unsuccessful. Soon after, however, Weldy and Myers apprehended Kline who, after removing his shoes and watch, allowed himself to be thrown into the pool. After Kline was thrown in, Weldy and Myers were also helped into the pool by two other party-goers. Weldy and Myers immediately got out of the pool in pursuit of those who had pushed them in. Kline, however, did not get out. His body was found a little less than an hour later on the bottom of the pool. He had drowned.

Kline's estate subsequently filed suit against several parties, including Weldy, for wrongful death. On April 13, 1991, Weldy filed a motion to dismiss for lack of subject matter jurisdiction or, in the alternative, a motion for summary judgment. The trial court treated this motion as a summary judgment and denied it on June 24, 1992. On October 8, 1992 a similar motion was also denied. This interlocutory appeal was certified on October 27, 1992.

Weldy presents several issues for appeal. Only one issue, however, need be addressed:

Whether the trial court lacked subject matter jurisdiction to hear Kline's claim for wrongful death against Weldy.

Subject matter jurisdiction is the power of a court to hear and determine the case before it. Harp v. Indiana Dept. of Highways (1992), Ind.App., 585 N.E.2d 652, 656. At its essence it is a question of whether a trial court has constitutional or statutory authority to hear and decide a claim. Id.

Weldy filed a TR 12(B)(1) motion to dismiss for lack of subject matter jurisdiction, or in the alternative, a motion for summary judgment on two separate occasions before the trial court. The court below treated each of these as motions for summary judgment and denied both. We do not agree, however, that TR 12(B)(1) motions to dismiss and TR 56 motions for In light of the jurisdictional nature of the claim before us we find that it was error for the trial court to treat this motion as one for summary judgment. The issue of subject matter jurisdiction was clearly presented to the trial court and is the sole issue argued on appeal. Pursuant to TR 61 we therefore proceed to its determination.

                summary judgment are interchangeable. 1  Generally, those motions listed under TR 12(B)(1)-(5) and (7) do not address the merits of the case and, therefore, do not result in judgments or orders on the merits and will not bar the subsequent presentation of the claim.  Mid-States Aircraft Engines v. Mize Co.  (1984), Ind.App., 467 N.E.2d 1242, 1246-47;  Harvey 1 Indiana Practice 598 (1987).  These are viewed as matters in abatement rather than matters in bar of a claim.  See Mid-States Aircraft, supra at 1246-47.   TR 56 motions for summary judgment, on the other hand, can address only matters on the merits and a judgment rendered thereunder is one in bar.  Id.  Thus, while it may be reasonable to integrate the TR 12(B)(6) motion for failure to state a claim with the TR 56 motion for summary judgment, see TR 12(B)(8), it is not reasonable to integrate the other TR 12(B) defenses in a similar fashion.  Id.  As a result, even if a TR 12(B)(1) motion is accompanied by supplemental data, information, or discovery material, it will not convert into a motion for summary judgment
                

In assessing its jurisdiction a court may need to examine the specific jurisdictional grant of authority in order to determine whether the requirements have been met. Squarcy v. Van Horne (1975), 163 Ind.App. 64, 321 N.E.2d 858. This may entail the need to examine each element and make a determination on whether a party's claim falls within the grant. Such is the case here where the Workmen's Compensation Act provides the relevant authority.

In the context of workmen's compensation, a civil court lacks subject matter jurisdiction where a claimant's action falls within the Act's exclusivity provision. See Wolf Corp. v. Thompson (1993), Ind.App., 609 N.E.2d 1170, 1171. IC 22-3-2-6 states:

EXCLUSIVE REMEDIES

The rights and remedies granted to an employee subject to IC 22-3-2 through IC 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, except for remedies available under IC 12-18-6. (emphasis added).

In addition, IC 22-3-2-13 provides:

Whenever an injury or death, for which compensation is payable under chapters 2 through 6 of the article shall have been sustained under circumstances creating in some other person than the employer and not in the same employ a legal liability to pay damages in respect thereto, the injured employee, or his dependents, in the case of death, may commence legal proceedings against the other person to recover damages notwithstanding the employer's or the employer's compensation insurance carrier's payment of or liability to pay compensation under chapters 2 through 6 of this article. (emphasis added).

IC 22-3-2-13 is an exception to the general rule limiting an employee's recovery for job-related accidental injuries to the provisions of the Act. See Skinner v. Martin (1983), Ind.App., 455 N.E.2d 1168, 1171. IC 22-3-2-13 allows the possibility of bringing suit against third parties but limits this exception to suits against individuals other than the employer or fellow employees. Id. The language "not in the same employ" specifically preserves a co-employee's immunity from common law liability for accidents found to have arisen out of and in the course of employment. Id.; Tarr v. Jablonski (1991), Ind.App., 569 N.E.2d 378, 379, trans. denied.

Several recent cases have, however, carved out an exception to this exception, holding that where a co-employee, normally covered under this exception, engages in horseplay or various other non job-related activities, he forfeits his immunity under IC 22-3-2-6. See e.g. Fields v. Cummins Emp. Fed. Credit Union (1989), Ind.App., 540 N.E.2d 631, 635, 637-38; Seiler v. Grow (1987), Ind.App., 507 N.E.2d 628, 630-31, trans. denied; Martin v. Powell (1985), Ind.App., 477 N.E.2d 943, 945, trans. dismissed. This conclusion is reached by interpreting the phrase "in the same employ" to mean an activity "in the course of employment." See Fields, supra 540 N.E.2d at 637; Seiler, supra 507 N.E.2d at 631; Martin, supra 477 N.E.2d at 945. Such activities as pulling chairs from under fellow employees and classic sexual harassment are not, under this analysis, "in the course of employment" and therefore are not "in the same employ" for the purposes of immunity under the Act. See Fields, supra 540 N.E.2d at 637-38; Martin, supra 477 N.E.2d at 944-45.

This interpretation causes us several problems. First, the requirement that the injury be sustained "in the course of employment" refers specifically to the status of the injured employee. ² The Act does not scrutinize the actions of the employer or the co-employee with regard to whether an injury occurred in the course of employment. For us to do so is to create a category of persons subject to liability unaddressed by the statute. Second, these two requirements, "in the same employ" and "in the course of employment," are separate and distinct requirements. They do not mean the same thing. For example, this court has acknowledged on previous occasions that the Act does provide that a claimant may rightfully proceed against a third party tort-feasor not in the same employ, but we have specifically stated that a co-employee is removed from liability for accidents found to have arisen out of and in the course of employment. Ward v. Tillman (1979), 179 Ind.App. 626, 386 N.E.2d 1003, 1005 ³; see also Skinner, supra 455 N.E.2d at 1171; O'Dell v. State Farm Mut. Auto. Ins. Co. (1977), 173 Ind.App. 106, 362 N.E.2d 862, 866. Thirdly, the interpretation contravenes the clear purposes behind the Act. Generally, workmen's compensation is intended to afford employees an adequate and certain remedy independent of any finding of negligence for accidents arising out of and in the course of employment. O'Dell, supra 362 N.E.2d at 864. This method of compensation, based upon a reallocation of risks, arose from a need to curb the harsh results rendered under the common law with its defenses of contributory negligence, assumption of the risk, and the fellow servant...