The Indiana Court of Appeals reaffirmed the exclusive remedy through the Indiana Worker’s Compensation Act (“Act”) and further distinguished the employer-employee relationship when it denied Donovan Johnson, a construction worker, from suing a subcontractor for injuries sustained at work (Donovan Johnson and Aileen Johnson v. Poindexter Transport, Inc. and Crane Service, 994 N.E. 2d 1206 (2013)).
Donovan Johnson was working for R. L. Turner, a general contractor, on December 9, 2009, when he was injured by a wooden block form which fell and struck him. Johnson filed a lawsuit against Poindexter Transport, Inc. and Crane Service (“Poindexter”), a subcontractor of R. L. Turner, claiming the injury was the result of negligence by David Creel (“Creel”), a crane operator who was employed by Poindexter. Poindexter filed a motion to dismiss the claim for a lack of subject matter jurisdiction, citing that Donovan and Creel were co-employees and therefore the remedy was to file a claim under the Act.
The Act provides an exclusive remedy which bars other courts from hearing claims brought against an employer for an on-the-job injury. However, it does allow for an action to be brought against a third party provided that the third party is not the employer or a fellow employee.
The Court of Appeals applied seven factors by which to identify the employer-employee relationship between R. L. Turner and Creel. These seven factors are:
- Right to Discharge;
- Mode of Payment;
- Supplying Tools or Equipment;
- Belief of the Parties as to their Relationship;
- Length of Employment; and
- Establishment of Work Boundaries.
Factors weighing in favor of Poindexter’s argument were: R.L. Turner had the right to terminate Creel from the job and control his hours and work; Creel was supervised by R.L. Turner employees; and R.L. Turner had provided the equipment used on the job.
Based on these factors, the court concluded that Creel was in fact a borrowed employee of R. L. Turner, making him a co-employee of Johnson and therefore barred Johnson from filing a claim against Poindexter or Creel. This left Johnson with the lone remedy to pursue a claim under the Act.
For more information about the Indiana’s Worker’s Compensation Act, defense of worker’s compensation claims, or any similar area of law, please contact Steve Lavallo at (812) 423-3183 or SLavallo@KDDK.com, or contact any member of the KDDK Worker’s Compensation Defense Practice Team.
About the Author
Stephen S. Lavallo, a partner at the law firm Kahn, Dees, Donovan & Kahn, LLP, in Evansville, Indiana, has more than 25 years’ experience in the practice of worker’s compensation defense, business, real estate, and estate planning and administration law; and is a certified civil mediator. He represents businesses, both large and small, as well as individuals in a wide variety of business transactions, organization, sales and leasing of properties, and in the defense of companies from worker’s compensation claims. In addition, Steve advises individuals in connection with their estate and wealth transfer planning and during the process of probate and trust administration.