FOR PUBLICATION
ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE:
JOSEPH BANASIAK JOSEPH STALMACK Highland, Indiana Joseph Stalmack & Associates, P.C. Munster, Indiana
FILED Mar 08 2012, 9:21 am
IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court
GLADYS E. CURRY and ) THOMAS CURRY, ) ) Appellants-Plaintiffs, ) ) vs. ) No. 45A04-1106-CT-290 ) D.A.L.L. ANOINTED, INC., ) ) Appellee-Defendant. )
APPEAL FROM THE LAKE SUPERIOR COURT The Honorable John R. Pera, Judge Cause No. 45D10-0910-CT-190
March 8, 2012
OPINION - FOR PUBLICATION
KIRSCH, Judge Gladys E. Curry (“Gladys”) and her husband, Thomas Curry (“Thomas”)(collectively
“the Currys”), appeal from the trial court’s order dismissing their complaint for injuries and
loss of consortium against D.A.L.L. Anointed, Inc. (“D.A.L.L.”). The Currys present several
issues for our review, the following of which is dispositive: Whether the trial court erred by
dismissing the complaint for lack of subject matter jurisdiction based on the exclusivity
provision of the Indiana Worker’s Compensation Act (“the Act”).1
We affirm.
FACTS AND PROCEDURAL HISTORY
The facts that were before the trial court follow. D.A.L.L. operated a McDonald’s
Restaurant located in Hammond, Indiana. Gladys was employed by D.A.L.L. at that
McDonald’s Restaurant. On October 15, 2007, Gladys went to the restaurant to attend an
employee meeting scheduled to begin at 5:00 p.m., but arrived at the restaurant at
approximately 3:45 p.m. in order to eat a meal beforehand. Some of the employee meetings
were mandatory, but Gladys could not recall whether that meeting was mandatory. She was
not scheduled to work and did not clock in as she would if she were working. Gladys could
not recall if she received any pay for attendance at the meeting.
After ordering her meal, Gladys went outside the restaurant to eat her food in an
outdoor dining area. While Gladys was outdoors, other employees gathered for the upcoming
meeting. Gladys finished her meal and got up to take her tray and garbage to an outdoor
garbage can when she tripped over a hazard on the ground in the outdoor dining area. Gladys
1 See Ind. Code § 22-3-2-6.
2 fell to the ground and sustained injuries. A fellow employee drove Gladys to a hospital for
treatment for her injuries.
D.A.L.L.’s worker’s compensation insurance carrier requested that she treat with a
physician selected by the carrier and she did so. The medical bills related to that treatment
were paid by D.A.L.L.’s worker’s compensation insurance carrier, as were additional medical
bills submitted by Gladys. The worker’s compensation insurance carrier also made wage
payments to her.
The Currys filed a complaint against D.A.L.L., McDonald’s Corporation, and
Franchise Realty Corporation, seeking damages for injuries sustained by Gladys and for
medical expenses incurred by Thomas for her care and for his related loss of consortium
claim. By stipulation of the parties, McDonald’s Corporation and Franchise Realty
Corporation were dismissed from the case. D.A.L.L. filed a motion to dismiss pursuant to
Indiana Trial Rule 12(B)(1) and designated evidence in support. The Currys filed their
response to the motion to dismiss and a list of evidence. D.A.L.L. filed a reply in support of
the motion to dismiss and moved to strike certain portions of Gladys’s affidavit to the extent
it conflicted with her deposition testimony, which was also designated. The trial court held a
hearing on the motion to dismiss and entered an order dismissing the complaint with
prejudice, but did not rule on the motion to strike. The Currys now appeal.
DISCUSSION AND DECISION
The Currys appeal claiming that the trial court erred by dismissing their complaint
with prejudice. In particular, the Currys argue that: (1) Gladys never made a worker’s
compensation claim with D.A.L.L. or its worker’s compensation carrier for her injuries; (2)
3 Gladys was not on the clock with her employer at the time of her injury; and (3) although
Gladys came to the restaurant for the employer-called meeting, her injuries occurred before
the meeting had begun and while she was having a meal outside the scope of the
employment-related activity.
Our Supreme Court has stated the following regarding the standard of review in
situations such as this:
When an employer defends against an employee’s negligence claim on the basis that the employee’s exclusive remedy is to pursue a claim for benefits under the Indiana Worker’s Compensation Act, the defense is properly advanced through a motion to dismiss for lack of subject matter jurisdiction under Indiana Trial Rule 12 (B)(1). In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial court may consider not only the complaint and motion but also any affidavits or evidence submitted in support. In addition, the trial court may weigh the evidence to determine the existence of the requisite jurisdictional facts.
***
A review of the case authority shows that the standard of appellate review for Trial Rule 12(B)(1) motions to dismiss is indeed a function of what occurred in the trial court. That is, the standard of review is dependent upon: (i) whether the trial court resolved disputed facts; and (ii) if the trial court resolved disputed facts, whether it conducted an evidentiary hearing or ruled on a “paper record.”
If the facts before the trial court are not in dispute, then the question of subject matter jurisdiction is purely one of law. Under those circumstances no deference is afforded the trial court’s conclusion because appellate courts independently, and without the slightest deference to trial court determinations, evaluate those issues they deem to be questions of law. Thus, we review de novo a trial court’s ruling on a motion to dismiss under Trial Rule 12(B)(1) where the facts before the trial court are undisputed.
If the facts before the trial court are in dispute, then our standard of review focuses on whether the trial court conducted an evidentiary hearing. Under those circumstances, the court typically engages in its classic fact-finding function, often evaluating the character and credibility of witnesses. Thus,
4 where a trial court conducts an evidentiary hearing, we give its factual findings and judgment deference. And in reviewing the trial court’s factual findings and judgment, we will reverse only if they are clearly erroneous. Factual findings are clearing erroneous if the evidence does not support them, and a judgment is clearly erroneous if it is unsupported by the factual findings or conclusions of law.
However, where the facts are in dispute but the trial court rules on a paper record without conducting an evidentiary hearing, then no deference is afforded the trial court’s factual findings or judgment because under those circumstances a court of review is in as good a position as the trial court to determine whether the court has subject matter jurisdiction. Thus, we review de novo a trial court’s ruling on a motion to dismiss where the facts before the court are disputed and the trial court rules on a paper record.
GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001) (internal quotations and citations
omitted).
In this case, the trial court held a hearing on the motion to dismiss, but did not receive
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FOR PUBLICATION
ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE:
JOSEPH BANASIAK JOSEPH STALMACK Highland, Indiana Joseph Stalmack & Associates, P.C. Munster, Indiana
FILED Mar 08 2012, 9:21 am
IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court
GLADYS E. CURRY and ) THOMAS CURRY, ) ) Appellants-Plaintiffs, ) ) vs. ) No. 45A04-1106-CT-290 ) D.A.L.L. ANOINTED, INC., ) ) Appellee-Defendant. )
APPEAL FROM THE LAKE SUPERIOR COURT The Honorable John R. Pera, Judge Cause No. 45D10-0910-CT-190
March 8, 2012
OPINION - FOR PUBLICATION
KIRSCH, Judge Gladys E. Curry (“Gladys”) and her husband, Thomas Curry (“Thomas”)(collectively
“the Currys”), appeal from the trial court’s order dismissing their complaint for injuries and
loss of consortium against D.A.L.L. Anointed, Inc. (“D.A.L.L.”). The Currys present several
issues for our review, the following of which is dispositive: Whether the trial court erred by
dismissing the complaint for lack of subject matter jurisdiction based on the exclusivity
provision of the Indiana Worker’s Compensation Act (“the Act”).1
We affirm.
FACTS AND PROCEDURAL HISTORY
The facts that were before the trial court follow. D.A.L.L. operated a McDonald’s
Restaurant located in Hammond, Indiana. Gladys was employed by D.A.L.L. at that
McDonald’s Restaurant. On October 15, 2007, Gladys went to the restaurant to attend an
employee meeting scheduled to begin at 5:00 p.m., but arrived at the restaurant at
approximately 3:45 p.m. in order to eat a meal beforehand. Some of the employee meetings
were mandatory, but Gladys could not recall whether that meeting was mandatory. She was
not scheduled to work and did not clock in as she would if she were working. Gladys could
not recall if she received any pay for attendance at the meeting.
After ordering her meal, Gladys went outside the restaurant to eat her food in an
outdoor dining area. While Gladys was outdoors, other employees gathered for the upcoming
meeting. Gladys finished her meal and got up to take her tray and garbage to an outdoor
garbage can when she tripped over a hazard on the ground in the outdoor dining area. Gladys
1 See Ind. Code § 22-3-2-6.
2 fell to the ground and sustained injuries. A fellow employee drove Gladys to a hospital for
treatment for her injuries.
D.A.L.L.’s worker’s compensation insurance carrier requested that she treat with a
physician selected by the carrier and she did so. The medical bills related to that treatment
were paid by D.A.L.L.’s worker’s compensation insurance carrier, as were additional medical
bills submitted by Gladys. The worker’s compensation insurance carrier also made wage
payments to her.
The Currys filed a complaint against D.A.L.L., McDonald’s Corporation, and
Franchise Realty Corporation, seeking damages for injuries sustained by Gladys and for
medical expenses incurred by Thomas for her care and for his related loss of consortium
claim. By stipulation of the parties, McDonald’s Corporation and Franchise Realty
Corporation were dismissed from the case. D.A.L.L. filed a motion to dismiss pursuant to
Indiana Trial Rule 12(B)(1) and designated evidence in support. The Currys filed their
response to the motion to dismiss and a list of evidence. D.A.L.L. filed a reply in support of
the motion to dismiss and moved to strike certain portions of Gladys’s affidavit to the extent
it conflicted with her deposition testimony, which was also designated. The trial court held a
hearing on the motion to dismiss and entered an order dismissing the complaint with
prejudice, but did not rule on the motion to strike. The Currys now appeal.
DISCUSSION AND DECISION
The Currys appeal claiming that the trial court erred by dismissing their complaint
with prejudice. In particular, the Currys argue that: (1) Gladys never made a worker’s
compensation claim with D.A.L.L. or its worker’s compensation carrier for her injuries; (2)
3 Gladys was not on the clock with her employer at the time of her injury; and (3) although
Gladys came to the restaurant for the employer-called meeting, her injuries occurred before
the meeting had begun and while she was having a meal outside the scope of the
employment-related activity.
Our Supreme Court has stated the following regarding the standard of review in
situations such as this:
When an employer defends against an employee’s negligence claim on the basis that the employee’s exclusive remedy is to pursue a claim for benefits under the Indiana Worker’s Compensation Act, the defense is properly advanced through a motion to dismiss for lack of subject matter jurisdiction under Indiana Trial Rule 12 (B)(1). In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial court may consider not only the complaint and motion but also any affidavits or evidence submitted in support. In addition, the trial court may weigh the evidence to determine the existence of the requisite jurisdictional facts.
***
A review of the case authority shows that the standard of appellate review for Trial Rule 12(B)(1) motions to dismiss is indeed a function of what occurred in the trial court. That is, the standard of review is dependent upon: (i) whether the trial court resolved disputed facts; and (ii) if the trial court resolved disputed facts, whether it conducted an evidentiary hearing or ruled on a “paper record.”
If the facts before the trial court are not in dispute, then the question of subject matter jurisdiction is purely one of law. Under those circumstances no deference is afforded the trial court’s conclusion because appellate courts independently, and without the slightest deference to trial court determinations, evaluate those issues they deem to be questions of law. Thus, we review de novo a trial court’s ruling on a motion to dismiss under Trial Rule 12(B)(1) where the facts before the trial court are undisputed.
If the facts before the trial court are in dispute, then our standard of review focuses on whether the trial court conducted an evidentiary hearing. Under those circumstances, the court typically engages in its classic fact-finding function, often evaluating the character and credibility of witnesses. Thus,
4 where a trial court conducts an evidentiary hearing, we give its factual findings and judgment deference. And in reviewing the trial court’s factual findings and judgment, we will reverse only if they are clearly erroneous. Factual findings are clearing erroneous if the evidence does not support them, and a judgment is clearly erroneous if it is unsupported by the factual findings or conclusions of law.
However, where the facts are in dispute but the trial court rules on a paper record without conducting an evidentiary hearing, then no deference is afforded the trial court’s factual findings or judgment because under those circumstances a court of review is in as good a position as the trial court to determine whether the court has subject matter jurisdiction. Thus, we review de novo a trial court’s ruling on a motion to dismiss where the facts before the court are disputed and the trial court rules on a paper record.
GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001) (internal quotations and citations
omitted).
In this case, the trial court held a hearing on the motion to dismiss, but did not receive
additional evidence. The point of contention between the parties was whether Gladys’s
injuries arose out of her employment or occurred in the course of the employment. Thus, in
dismissing the Currys’ complaint, the trial court resolved factual disputes on a paper record.
We, therefore, review de novo the trial court’s ruling here.
“[A] motion to dismiss for lack of subject matter jurisdiction presents a threshold
question concerning the court’s power to act.” Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d
1282, 1286 (Ind. 1994). Actions taken by a court lacking subject matter jurisdiction are void.
Id. The opponent of subject matter jurisdiction carries the burden of proving that the
Worker’s Compensation Board and not the trial court had jurisdiction over the matter. Id.
The Act provides the exclusive remedy for recovery of personal injuries arising out of
and in the course of employment. Ind. Code § 22-3-2-6. “If the Act covers an injury, the
5 courts have no jurisdiction to entertain common law claims against the employer or a fellow
employee.” Knoy v. Cary, 813 N.E.2d 1170, 1171 (Ind. 2004). An injury “arises out of”
employment if there is a causal connection between the injuries sustained by the employee
and the duties or services performed by the injured employee. Id. That causal connection
exists when a reasonable person would consider the injury to be the result of a risk incidental
to employment or where there is a connection between the employment and the injury. Id.
An accident leading to injury occurs “in the course of employment” when it occurs at the
time and place of employment while an employee is fulfilling his or her employment duties.
Id.
Case law involving whether injuries that occurred during after-hours work activities
were compensable has evolved since the enactment of the Act. Our Supreme Court noted in
Knoy, that in the early days of worker’s compensation, injuries sustained by employees
during after-hours work activities were for the most part not compensable. 813 N.E.2d at
1171. In 1957, the Supreme Court allowed recovery under the Act for an employee’s death
that occurred at an after-hours activity sponsored by the employer. Noble v. Zimmerman, 237
Ind. 556, 146 N.E.2d 828 (1957). The rationale for allowing recovery was that “employers
are more and more utilizing recreational programs for their employees . . . in aiding and
promoting better business relations with persons in their employ.” Id. at 569-70, 146 N.E.2d
at 834.
In a subsequent opinion by this court, Ski World, Inc. v. Fife, 489 N.E.2d 72, 73 (Ind.
Ct. App. 1986), recovery under the Act was allowed for injuries sustained by an employee
during an after-hours party for employees that was sponsored by the employer. We explained
6 that the rationale for recovery in Noble did not depend upon whether attendance at the party
was required, but on the connection between the employee’s employment and the party. Id.
at 77. The mandatory nature of the after-hours work-related activity is not required in order
for there to be recovery under the Act; rather the focus is on the connection between the
employer’s interests in improving the business by holding the after-hours work-related
activity and the employee’s employment. Knoy, 813 N.E.2d at 1172. If that is the situation,
then the after-hours work-related activity may be incidental to the employee’s employment.
In this case, D.A.L.L. held an employee meeting attended by several employees, such
as Gladys, who were not “on the clock.” Gladys’s deposition testimony revealed that
meetings were held regularly at the restaurant, some of which were mandatory, while others
were not. Some of the meetings led by the managers involved discussions of customer
complaints and how to improve the business in response to those complaints, while others
involved issues related to the operation of the restaurant, e.g., cleanliness issues. Gladys
stated that she was on the premises to attend the meeting, but arrived early to eat a meal
beforehand. Other employees were also present in advance of the meeting. We conclude
that the trial court did not err by dismissing the complaint. The connection between
D.A.L.L.’s interest in improving the business by holding employee meetings and Gladys’s
presence on the premises as an employee waiting for the meeting to begin, places jurisdiction
of her claim for compensation for injuries sustained while on those premises squarely within
the Act. Because of our resolution of this issue we do not address the other issue raised.
Affirmed. BARNES, J., and BRADFORD, J., concur.