Wine-Settergren v. Lamey

• Decision Date: 22 September 1999
• Docket Number: No. 49S04-9909-CV-489.,49S04-9909-CV-489.
• Citation: 716 N.E.2d 381
• Parties: Cindy WINE-SETTERGREN and Jay Settergren, Appellants (Plaintiffs Below), v. Robert H. LAMEY, Jr., Appellee (Defendant Below).
• Court: Indiana Supreme Court

716 N.E.2d 381

Cindy WINE-SETTERGREN and Jay Settergren, Appellants (Plaintiffs Below), v. Robert H. LAMEY, Jr., Appellee (Defendant Below).

No. 49S04-9909-CV-489.

Supreme Court of Indiana.

September 22, 1999.

Robert G. Barker, Price & Barker, Indianapolis, Indiana, Attorneys for Appellant.

James L. Peterson, David J. Mallon, Jr., Christopher S. Sears, John J. Sullivan, Indianapolis, Indiana, Attorneys for Appellee. SHEPARD, Chief Justice.

Appellants Cindy Wine-Settergren and Jay Settergren appeal the dismissal of their personal injury and loss of consortium actions against Robert H. Lamey, Jr., for lack of subject matter jurisdiction. The trial court entered this order pursuant to the exclusivity and subrogation provisions of the Worker's Compensation Act, which preclude negligence-based actions against those found to be "in the same employ" as the plaintiff at the time of the accidental injury. (R. at 70, citing Ind. Code Ann. § 22-3-2-13 (West 1991).)

The Court of Appeals affirmed. Wine-Settergren v. Lamey, 654 N.E.2d 920 (Ind. Ct.App. 1995). We grant transfer.

Facts

On July 8, 1992, Wine-Settergren and Lamey were both working for radio stations owned and managed by Horizon Broadcasting, Inc., and located in the same building. Wine-Settergren worked as a morning radio personality and news director for WKLR, and Lamey worked as the sports director for WIBC. Wine-Settergren had recently returned to work after undergoing nose surgery on or about June 26, 1992, and her nose was still susceptible to further injury by the slightest touch or pressure.

At about 6 a.m. the morning of July 8th, Wine-Settergren and Lamey were both in the Horizon building going about their daily routines. Wine-Settergren took a short break to buy some coffee and crackers from a vending machine. Lamey, while walking in the hallway outside of the small vending machine room, shouted over his shoulder at another co-employee, "[G]et off the phone, get to work." (R. at 231.) This loud shout surprised Wine-Settergren. She let out a startled gasp, saying "Oh, my God, Bob." (Id.; Wine-Settergren Dep., R. at 96.) Lamey heard Wine-Settergren's gasp and, realizing he had startled her, entered the vending machine room to apologize and console her. As Wine-Settergren turned around from the coffee machine, Lamey said "Oh, I'm sorry," and embraced her in a strong hug. (Wine-Settergren Dep., R. at 96.) As he did, he pulled her head into his collarbone, injuring her nose. From this, Wine-Settergren claims permanent pain and suffering, loss of her senses of taste and smell, the need for further cosmetic surgeries to restraighten and reshape her nose, and the loss of wages due to the subsequent surgeries. Apparently, Horizon's worker's compensation insurance carrier paid for nearly all of her medical bills, but Wine-Settergren has never appeared before a Worker's Compensation Board or filed a worker's compensation claim.

I. Standard of Review

The trial court has considerable latitude in devising procedures to ferret out the facts pertinent to jurisdiction and in weighing that evidence to resolve factual disputes affecting the jurisdictional determination. Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d 1282, 1286-87 (Ind.1994). The appealing party has the burden to demonstrate that the trial court erred in ruling on jurisdiction.

II. "In the Same Employ"

The Worker's Compensation Act states that the compensation it provides to employees exclude all other rights and remedies available to them for accidental personal injury or death arising out of and in the course of their employments. Ind. Code Ann. § 22-3-2-6 (West Supp.1997); Evans v. Yankeetown Dock Corp., 491 N.E.2d 969 (Ind.1986). This exclusive remedy provision provides immunity from suit for employers, Evans, 491 N.E.2d at 973, and those "in the same employ," O'Dell v. State Farm Mutual Auto. Ins. Co., 173 Ind.App. 106, 110, 362 N.E.2d 862, 866 (1977), who cause accidental injuries. Ind.Code Ann. § 22-3-2-13 (West 1991). Therefore, to maintain a common-law action against a co-employee tortfeasor for an injury arising out of and occurring in the course of the plaintiff's employment, she must either show that the injury was not "by accident," Tippmann v. Hensler, 716 N.E.2d 372, 375 (Ind.1999), or that the defendant was not "in the same employ" when the injury occurred. Because Wine-Settergren's injuries were not intentionally caused,¹ and thus were "by accident," see id., we will proceed to the issue of whether Lamey and she were "in the same employ" when the accidental injury occurred.

A. Two Interpretations of "In the Same Employ"

As the Court of Appeals noted, there are two lines of Indiana Court of Appeals cases interpreting the phrase "in the same employ." Wine-Settergren, 654 N.E.2d at ____.

One line, exemplified by Martin v. Powell, 477 N.E.2d 943 (Ind.Ct.App.1985),trans. dismissed, and Seiler v. Grow, 507 N.E.2d 628, 631 (Ind.Ct.App.1987),trans. denied, states that the phrase "in the same employ" looks to determine whether the accidental injury arose "in the course of [the tortfeasor employee's] employment." Martin, 477 N.E.2d at 945; Seiler, 507 N.E.2d at 631. Subsequent panels of the Court of Appeals have modified Martin's test somewhat. One has reinterpreted it to mean actually "arising out of [the tortfeasor employee's] employment." Fields v. Cummins Emp. Fed. Credit Union, 540 N.E.2d 631, 637-38 (Ind.Ct.App.1989) (emphasis added). Others have combined the two notions. For example, one panel has stated that "in the same employ" means "the personal injury occurs in the course of and arises out of the co-employee's employment," Thiellen v. Graves, 530 N.E.2d 765, 768 (Ind.Ct.App.1988) (emphasis added), and another that "the act causing the injury arose out of and was incidental to the employment," Rodgers v. Hembd, 518 N.E.2d 1120, 1122 (Ind.Ct. App.1988) (emphasis added). Although these cases use slightly different language, they express a common theme: application of the phrase "in the same employ" includes analysis of the co-employee's injury-causing actions to determine whether they were causally related to his employment.

Under this approach, certain non-job related actions, such as horseplay and sexual harassment, have been found not to have the necessary causal connection to the co-employee defendant's employment, thus making her "not in the same employ" and vulnerable to suit. E.g., Fields, 540 N.E.2d at 638; Martin, 477 N.E.2d 943.

The other line of cases, exemplified by Weldy v. Kline, 616 N.E.2d 398 (Ind.Ct. App.1993), chose not to engage in a Martin-type analysis because it disapproved any interpretation of "in the same employ" which analyzed the co-employee tortfeasor's activities that led to the injury or death. As the panel in Weldy stated, "The Act is concerned with only the injured employee and the circumstances surrounding his or her injury." Id. at 403. According to the Weldy court, "The Act does not scrutinize the actions of 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." Id. at 402. Therefore, the Weldy court looked to a test enunciated in Ward v. Tillman, 179 Ind.App. 626, 631, 386 N.E.2d 1003, 1005 (1979), which stated that the co-employee defendant is "in the same employ" if he "could obtain compensation benefits in the same or similar circumstances" as the injured plaintiff. Weldy, 616 N.E.2d at 403 (citing Ward); see also Tapia v. Heavner, 648 N.E.2d 1202, 1208 (Ind.Ct.App.1995).

As currently interpreted, the Weldy test, instead of focusing on the actions of the co-employee defendant, reviews only the actions of the injured plaintiff and asks whether the defendant, if he had received rather than caused the injury, could recover similar benefits from the plaintiff's employer. For example, the defendant in Weldy caused the plaintiff widow's husband to drown by throwing him into a pool while at an after-work party sponsored by the employer for its employees. The Weldy panel applied its "in the same employ" standard, noting that both men

worked in the kitchen at the Holiday Inn and both attended the party given by their mutual employer. As employees they were identically situated. Should the positions have been reversed, Weldy would have been able to obtain compensation benefits to the same extent as Kline. We can think of no clearer case of someone `in the same employ.'

Weldy, 616 N.E.2d at 403. See also Tapia, 648 N.E.2d at 1208 (applying Ward test in like manner to the facts of its case and coming to the same conclusion). The Wine-Settergren panel's application of the Ward test is also illustrative:

[Wine-Settergren and Lamey] both worked for Horizon and were similarly situated radio personalities. If the situation had been reversed, Lamey would have been able to obtain worker's compensation benefits to the same extent as Wine[-Settergren]. Hence, worker's compensation is Wine[-Settergren]'s exclusive remedy and the trial court lacked subject matter jurisdiction....

Wine-Settergren, 654 N.E.2d at ____ _ ____.

By analyzing only the actions of the victim in determining whether she and the defendant were "in the same employ," this interpretation of the Ward test effectively equates "in the same employ" with merely "having the same employer." Once the defendant has shown that the plaintiff could receive or has received worker's compensation for her injury, we cannot think of an instance where the defendant would be subject to suit under this test if he and the plaintiff were also co-employees. Nor could there be such an instance. By placing the defendant in the shoes of plaintiff and stating that the plaintiff's injuries are compensable under the Act,² the defendant has, under Weldy's test, been found "in the same employ."

The major difference between the two lines of cases is their focus: one...