ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Robert G. Barker James L. Peterson
Price & Barker David J. Mallon, Jr.
Indianapolis, Indiana Christopher S. Sears
John J. Sullivan
SUPREME COURT OF INDIANA
CINDY WINE-SETTERGREN and ) JAY SETTERGREN, ) ) Appellants (Plaintiffs Below ),) ) 49S04-9909-CV-489 ) in the Supreme Court v. ) ) 49A04-9408-CV-316 ROBERT H. LAMEY, JR., ) in the Court of Appeals ) Appellee (Defendant Below ). )
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
The Court of Appeals affirmed. Wine-Settergren v. Lamey, No.
49A04-9408-CV-316 (Ind. Ct. App. Aug. 25, 1995). We grant
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
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
Settergren's injuries were not intentionally caused,See footnote
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
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 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, slip. op. at 4-5.
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
the defendant has, under Weldy's test, been found "in the
The major difference between the two lines of cases is their focus: one incorporates a review of the co-employee tortfeasor's actions, the other looks only at the plaintiff's actions, effectively analyzing only whether the two employees shared a common employer. Our determination of the appropriate interpretation of "in the same employ," therefore, turns on which focus we find appropriate.
Westinghouse Elec. Corp., 637 N.E.2d 1271 (Ind. 1994), however, we
indicated our approval of the Martin-line's review of the co-
employee defendant's actions in applying the "in the same employ"
[I]f the tortfeasor co-worker was not acting in the course of his employment at the time he inflicted the injuries, then he is not considered to be 'in the same employ' as the sufferer. . . . In such a case, the sufferer may not only collect workers [sic] compensation but may also bring suit against the tortfeasor co-worker pursuant to the claim and subrogation provisions of Ind. Code Ann. § 22-3-2-13 (West 1991).
Id. at 1275 n.6 (citing Martin, 477 N.E.2d 943; Lutz v. DeMars, 559
N.E.2d 1194 (Ind. Ct. App. 1990); Fields, 540 N.E.2d 631). Our
analysis of precedent and policy today leads us to affirm this
prior approval of the Martin standard for use in determining when
a co-employee tortfeasor is "in the same employ."
1. Precedent Supports a Definition that Reviews the Defendant's Actions. The two tests, which have been seen as incongruous by various Court of Appeals panels, are actually cut from the same cloth. Weldy states, "The test, according to the court in Ward, . . . to determine whether [the parties] were 'in the same employ' is whether or not the denominated defendant . . . could obtain compensation benefits under the same or similar circumstances." Weldy, 616 N.E.2d at 403 (citing Ward, 179 Ind. App. at 631, 386 N.E.2d at 1005). Ward cites O'Dell v. State Farm Mutual Auto. Ins. Co., 173 Ind. App. 106, 362 N.E.2d 862 (1977), for the test which Weldy propounds. O'Dell actually states:
Id., 173 Ind.App. at 111, 362 N.E.2d at 866 (emphasis added). As this quote clearly shows, the test enunciated in Weldy (the latter half of this quote) was originally articulated as merely a way to determine when the parties are "in the course of their employments," which necessarily focuses on each of their actions which led to the injury. The O'Dell panel never intended for the actions of the defendant to be removed from "in the same employ" consideration. It was merely broadening "in the same employ" to encompass accidental-injury-causing actions which occurred in the course of and arose out of the co-employee's employment, but would not necessarily be considered part of "conducting the employer's business," per se.See footnote 4 This concern is understandable. It would not
be fair for the injured employee to receive the compensation
provided by the Act, and for the uninjured employee not to receive
the immunity provided by it, when both were doing exactly the same
thing when the accidental injury occurred, being identically
situated in all legally relevant respects but for one being injured
and the other not. Such analysis does not remove the focus from
the co-employee tortfeasor; it merely investigates whether he,
was acting in a manner reasonably connected to his employment
when the accident occurred.
Judge Neal once wisely wrote, "[R]eliance on legal rules or principles without reference to the facts providing the foundation for such rules or principles can distort their meaning." Indiana & Michigan Elec. Co. v. Morgan, 494 N.E.2d 991, 995 (Ind. Ct. App. 1986). By not tracing the full history of their test nor viewing it in the context of the cases in which it first appeared, the appellate panels reciting the O'Dell/Ward test have misunderstood its focus and misinterpreted its intentions. "The crucial issue . . . is not what [the plaintiff] was doing at the time. Rather, we must focus upon [defendant]'s activities. . . . The worker's compensation act is not designed to insulate co-employees from
liability for acts which are not in the course of their
employment." Seiler, 507 N.E.2d at 631.
2. Legislative Intent Supports a Definition which Reviews the Defendant's Actions. We also believe that the legislature did not intend for the employment status of the two employees to be the sole determinant of when the litigants are "in the same employ." In Evans, 491 N.E.2d 969, while addressing employee personal injury suits against employers, we agreed with Judge Conover's assessment that "where an off-duty employee is injured when struck by his employer's truck in the middle of town on his day off, the legislature did not intend that the Industrial Board should have jurisdiction." Id. at 972. If the legislature did not intend for the employment relationship, in and of itself, to insulate an employer from negligence suits brought by its employee, we see no reason why it would intend for that relationship, in and of itself, to so insulate the negligent co-employee. As we said in Evans, "Our role is to construe and apply [legislative] enactments so as to carry out legislative intent." Id. at 971.
3. Sound Policy Supports a Definition which Reviews the Defendant's Actions. A test that reviews the actions of the co- employee, instead of effectively inquiring only into whether the litigants share a common employer, is also supported by sound
First, it must be remembered that the remedies provided in the
Worker's Compensation Act are "in derogation of common law." It is
a well-known principle in Indiana that statutes "in derogation of
the common law and are to be strictly construed against limitations
on a claimant's right to bring suit." Collier v. Prater, 544
N.E.2d 497, 498 (Ind. 1989) (citing Sherfey v. City of Brazil, 213
Ind. 493, 13 N.E.2d 568 (1938)).
Second, even the theoretical arguments supporting co-employee negligence immunity do not justify such immunity when the co- employee's injury-causing actions do not arise out of and occur in the course of his employment. Worker's compensation was designed as a quid pro quo exchange between the employee and the employer. The employer assumed the cost of paying regular and relatively quantifiable amounts under the worker's compensation system in exchange for obviating the threat of large and unexpected awards. The employee gave up his right to pursue a common law remedy for injuries sustained in work-place accidents in exchange for a certain, although possibly smaller, remedy without litigation. Evans, 491 N.E.2d at 971; 1 Arthur Larson, The Law of Workmen's Compensation §§ 2.00-2.20 (1997). "Perhaps, so the argument runs, one of the things [the employee] is entitled to expect in return for what he has given up is freedom from common-law suits based on industrial accidents in which he is at fault." 6 Larson, § 72.22.
Even if such an argument is true, Professor Larson states, this
immunity only attaches to the co-employee when he "is acting within
the course of his employment," because the employment increases
only his risk of causing employment-related injuries to his fellow-
workers, not non-employment related injuries. Id. § 72.23.
Finally, it would be unreasonable to allow immunity to a
tortfeasor simply because he shares a common employer with the
plaintiff. As the Court of Appeals said in Thiellen, 530 N.E.2d
The phrase "in the same employ" must be construed as requiring more than its literal meaning of merely having a common employer. A literal reading would preclude a third party action by an employee who is injured while driving a delivery truck for his employer on a city street against the negligent driver of an automobile who broadsides and injures the employee merely because the negligent driver happens to be a vacationing fellow employee on his way to the airport. That reading is unreasonable.
Id. at 767.
Our understanding of precedent, legislative intent, and policy leads us to conclude that for an employee defendant to be "in the same employ" for purposes of the Act, two things must exist. First, he must be employed by the same employer as the plaintiff. Second, he must have been engaging in actions reasonably related to his employment during a time and under circumstances reasonably incidental to that employment when he accidentally causes the injury. The best way to determine the latter, once the plaintiff's and defendant's co-employment status is resolved, is with the
framework currently in place, i.e., by asking whether the
defendant's actions causing the accidental injury arose out of and
occurred in the course of his and the plaintiff's mutual
employment. By so holding we standardize the requirements an
employee must satisfy to find himself within the ambit of the
worker's compensation act: whether he seeks compensation or
immunity, the accidental injury that he either received or caused
must have arisen out of and occurred in the course of his
seeking fresh air, answering telephone calls, eating lunch, or
going to the toilet, such personal acts have been held to be in the
pursuit of personal comfort or convenience and thus incidental to
employment." Indiana & Michigan Elec. Co,, 494 N.E.2d at 993
(citing 30 I.L.E. Workmen's Compensation § 125 (1960); B. Small,
Workmen's Compensation Law § 6.15 (1950)).
Maintaining a congenial work environment where employees get
along with one another is desired by both the employer and the
employees. For the employer, such an environment increases
employee productivity and teamwork and decreases employee turnover.
For the employees, it increases the amount of enjoyment they have
while at their place of business. Wine-Settergren admits that
Lamey was attempting to apologize and console her after his shout
to another employee unintentionally scared her. While embracing
another employee in an apologetic and conciliatory hug may not be
found in Lamey's job description, such actions are ones that could
be reasonably expected between co-employees. Counsel for Lamey
articulated this sentiment well:
A wide variety of interaction occurs among employees in a work place. Hands are shaken, backs are patted, hugs are given all as part of the natural and habitual activities of employees working together. This kind of activity is as much a part of the employment as the machinery used in the workplace.
(Defendant's Post H'rg Br. in Supp. of Mot. to Dismiss, R. at
Even among co-employees who are not the closest of friends,
such actions could be reasonably expected. As Justice DeBruler
noted in Moran v. State, 644 N.E.2d 536, 541 (Ind. 1994),
"[I]nhabitants of this state have always valued neighborliness,
hospitality, and concern for others, even those who may be
strangers." Because no evidence was presented to show that Horizon
had prohibited such actions, or had previously reprimanded
employees for similar activities in the past to the common
knowledge of all the employees, the accidental injury caused by
Lamey's actions arose out of his employment.
The "in the course of the employment" requirement refers to
the time, place, and circumstances under which the accidental
injury occurs, rather than its causation. Gordon, 585 N.E.2d at
1365; Indiana & Michigan Elec. Co., 494 N.E.2d at 994; see Evans,
491 N.E.2d at 975-76. The accidental injury occurred during the
parties' regular working hours and in a vending machine room on the
employer's premises where Lamey could reasonably be expected to be
during his employment. Therefore, the injury occurred in the
course of his employment.
We therefore affirm the trial court.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
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