Wolf Corp. v. Thompson

• Decision Date: 08 March 1993
• Docket Number: No. 92A03-9208-CV-237,92A03-9208-CV-237
• Citation: 609 N.E.2d 1170
• Parties: WOLF CORPORATION, Appellant-Defendant, v. Permilla THOMPSON, Executrix of the Estate of Robert Thompson, and Permilla Thompson, Individually, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 1170

609 N.E.2d 1170

WOLF CORPORATION, Appellant-Defendant, v. Permilla THOMPSON, Executrix of the Estate of Robert Thompson, and Permilla Thompson, Individually Appellees-Plaintiffs.

No. 92A03-9208-CV-237.

Court of Appeals of Indiana Third District.

March 8, 1993.

Scott T. Niemann, Andrea L. Hermer, Rothberg, Gallmeyer, Fruechtenicht & Logan, Fort Wayne, for appellant-defendant.

HOFFMAN, Judge.

Appellant-defendant Wolf Corporation (Wolf) brings this certified interlocutory appeal from the trial court's denial of its motion for summary judgment as to count 1 of the Estate's complaint.

The facts relevant to the appeal disclose that Wolf employed Robert Thompson, the deceased, as a truck driver at its bedding manufacturing facility in Fort Wayne, Indiana. On March 16, 1989, Thompson suffered a back injury while attempting to back a tractor to a trailer. Thompson continued to work until May 9, 1989, at which time he sought medical attention and notified Wolf that he was unable to continue work. On August 17, 1989, Wolf filed a report of Thompson's injury with its worker's compensation insurance carrier, American Mutual Insurance Company (American). American made no benefit payments to Thompson until after January 15, 1990, the date of his death from a heart attack.

On October 18, 1991, Thompson's wife Permilla, as executrix of his estate and in her individual capacity, filed a complaint for damages against Wolf and American. The complaint contained three counts, the first and third involving an action for wrongful death, and the second involving an action for fraud. ¹ On October 21, 1991, the Estate filed an application for adjustment of claim with the Indiana Worker's Compensation Board. Both Wolf and American filed answers on December 3, 1991, and Wolf filed an amended answer on December 30, 1991. On April 20, 1992, Wolf filed a motion for summary judgment which the trial court granted as to counts 2 and 3 but denied as to count 1 of the complaint. Upon Wolf's petition, the trial court certified for appeal its interlocutory order, and on September 21, 1992, this Court granted Wolf's petition for leave to appeal from interlocutory order.

Wolf claims the trial court erred in denying its motion for summary judgment as to count 1 of the Estate's complaint. In reviewing a motion for summary judgment, this Court stands in the shoes of the trial court. According to Ind.Trial Rule 56(C), the party moving for summary judgment must specifically designate to the trial court the evidentiary matter on which it relies for purposes of the motion. The non-moving party must then specifically designate to the trial court facts which would indicate the existence of an issue of material fact. Id. Neither the trial court nor this Court may search the record, and neither may ground its determination on evidentiary matter other than that which the parties designated to the trial court. Babinchak v. Town of Chesterton (1992), Ind.App., 598 N.E.2d 1099, 1101-1102.

As Wolf notes, the Estate failed to file anything in response to its motion for summary judgment. ² Therefore, under T.R. 56(C), this Court's review is limited to the evidentiary matter Wolf designated to the trial court. In support of its motion for summary judgment, Wolf filed a Designation of Supporting Materials which included the Estate's complaint, Wolf's answer and amended answer, American's answer, the affidavit of the secretary of Wolf, the deceased's application for adjustment of claim, and a memorandum in support of Wolf's motion for summary judgment.

Wolf contends the trial court lacked subject-matter jurisdiction over the Estate's wrongful death cause of action due to the exclusive remedy provision of the Indiana Worker's Compensation Act. In count 1 of its complaint, the Estate alleges that Wolf's improper handling of the deceased's worker's compensation claim resulted in the deceased's death. However, IND.CODE Sec. 22-3-2-6 (1988 Ed.), the exclusive remedy provision of the Worker's Compensation Act, provides as follows:

"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, his 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 16-7-3.6."

In Evans v. Yankeetown Dock Corp. (1986), Ind., 491 N.E.2d 969, our Supreme

Court held that IND.CODE Sec. 22-3-2-6 excludes all rights and remedies of an employee against his employer for personal injury or death if the injury or death was (1) by accident, (2) arising out of employment, and (3) arising in the course of employment. Id. at 973. As will be shown below, this Court finds that the Estate's wrongful death action meets the three jurisdictional prerequisites and, thus, falls within the...