RATLIFF, Senior Judge.
STATEMENT OF THE CASE
Joe Glenn Burke, Jr., appeals from a judgment in favor of Mark Wilfong and Joseph
ISSUES
II. Was Burke in the same employ as Wilfong and Hulse?
FACTS
In early 1991, Joe Glenn Burke, Jr., Joseph Hulse, Michael Antecki and Mark Wilfong were all employed by Hunter Corporation as millwrights. Hunter, a Lake County contractor, had a contract with Northern Indiana Public Service Company, Inc. to repair a turbine at NIPSCO's Schahfer Generating Plant.
At the Schahfer Plant, Hunter employees were required to park their cars in a parking lot set aside for contracted employees. This parking lot was only accessible by Schahfer Road, a dual lane road on NIPSCO's property which ran between a guard shack at the main entrance and the contractor's parking lot. Schahfer Road, which is privately owned and maintained by NIPSCO, is only accessible to NIPSCO employees, contracted employees and persons conducting business with NIPSCO. To gain access to Schahfer Road, Hunter employees were required to sign in with NIPSCO guards located at the guard shack.
At approximately 7:20 a.m. on January 14, 1991, Burke and Antecki were passengers in a car owned and driven by Hulse. All three were scheduled to work the 7:30 a.m. to 4:00 p.m. shift. They had checked in at the guard's shack, and they were driving south on Schahfer Road toward the Hunter employee's parking lot. Wilfong had just completed the midnight to 8:00 a.m. shift. He had been allowed to clock out at 7:15 a.m. with other employees working that shift, and he was driving his car north on Schahfer Road toward the guard's shack. Wilfong's vehicle slid due to snow, ice and a dip in the road, crossed the center line and struck Hulse's vehicle. Burke was injured in the accident.
Burke and his wife, Mary, filed a personal injury action against Hulse and Wilfong alleging that both drivers were negligent in the operation of their vehicles. The Burkes later amended their complaint to include NIPSCO as a defendant. Hulse and Wilfong filed summary judgment motions arguing that Burke could not bring a civil suit against them because the sole jurisdiction of the cause was with the Indiana Worker's Compensation Board. The trial court granted Hulse and Wilfong's motions for summary judgment after finding that the Burke's exclusive remedy is under the Indiana Worker's Compensation Act.
Burke now contends that the trial court's grant of summary judgment was erroneous because his injuries did not arise out of and in the course of his employment.
DECISION
As a preliminary matter we note that although the trial court granted Hulse and Wilfong's motions for summary judgment, NIPSCO was still a party to the action. Ind.Trial Rule 56(C) states in pertinent part:
The trial court's order does not in writing expressly determine that there is no just reason for delay and it does not in writing expressly direct entry of judgment as to less than all the parties. Thus, according to T.R. 56(C), this is an interlocutory order and not a final judgment. As a result, the order would not normally be appealable until a final judgment is rendered. However, according to Appellate Rule 4(E):
Thus, we will exercise our discretion to pass upon the severable adjudicated issues which pertain to Hulse and Wilfong and we will consider the merits of this case in order to facilitate a speedy disposition of it. See Pekin Insurance Co. v. Charlie Rowe Chevrolet, Inc. (1990), Ind. App., 556 N.E.2d 1367; Krueger v. Bailey (1980), Ind. App., 406 N.E.2d 665. We now proceed to address the specific issues.
On appeal from a summary judgment, we apply the same standard applicable in the trial court. Malachowski v. Bank One, Indianapolis (1992), Ind., 590 N.E.2d 559, 562. We must determine whether the designated record reveals a genuine issue of material fact and whether the trial court correctly applied the law. Shuamber v. Henderson (1991), Ind., 579 N.E.2d 452, 454. Rational assertions of fact and reasonable inferences therefrom are deemed to be true, and any doubt as to a fact, or an inference to be drawn is resolved in favor of the nonmoving party. Malachowski, supra.
ISSUE I. DID BURKE'S INJURY ARISE OUT OF AND IN THE COURSE OF HIS EMPLOYMENT?
The Indiana Worker's Compensation Act provides compensation to employees for injuries which arise out of and in the course of their employment.
The phrase "in the course of employment" refers to the time, place and circumstances surrounding the accident. Blaw-Knox Foundry and Mill Machinery, Inc. v.
Indiana courts previously have held that the period of employment encompasses a reasonable time before and after the employee engages in work. Goldstone v. Kozma (1971), 149 Ind.App. 626, 274 N.E.2d 304. They have also held that parking lots and private drives within the employer's supervision are clearly extensions of the employer's operating premises, Ward v. Tillman (1979), 179 Ind.App. 626, 386 N.E.2d 1003, 1005; O'Dell, supra, and thus a place where an employee reasonably may be. Lastly, the courts have held that employees are doing something incidental to their employment while they are on their employer's premises. Ward, supra.
Burke's injury occurred ten minutes before his shift at the plant was scheduled to begin. Thus, under the above-discussed authority, he was injured within the period of his employment. In addition, the accident occurred on a private employee access road which NIPSCO owned and maintained. This road was an extension of NIPSCO's operating premises and a place where Burke might reasonably be. Burke's injury clearly occurred in the course of his employment.
An injury "arises out of" employment when a causal nexus exists between the injury sustained and the duties or service performed by the injured employee. Thiellen v. Graves (1988), Ind. App., 530 N.E.2d 765, 767. This causal relationship is established when a reasonably prudent person considers a risk to be incidental to the employment at the time of entering into it. Id. Indiana courts have held that accidents resulting from employees arriving at and leaving from an employer's premises are employment related risks. Thiellen, supra; Ward, supra. Because the accident which caused Burke's injury occurred on NIPSCO's premises while Burke was arriving for work, Burke's injury arose out of his employment.
Burke argues that because his employer, Hunter, did not own the road, this rule does not apply. However, he cites no authority for this proposition. In fact, according to our case law, the fact that the employer does not own the premises on which the employee is injured does not preclude the exclusive remedy of the worker's compensation act. Goldstone, supra. (employee who slipped and fell in a parking lot adjacent to the building in which she worked as she was getting into a friend's car to go to lunch was entitled to worker's compensation benefits even though her employer did not own the parking lot).
In addition, courts in other jurisdictions have held that when a contractor's employee is performing work pursuant to a contract on another company's property, that property is considered the employer's property for worker's compensation purposes. Downey v. Vanderlinde Electric Corp. (1950), 276 App. Div. 1044, 95 N.Y.S.2d 685 ("The place where the employer's contract was being performed is deemed the employer's plant. It is, therefore, to be treated, in its facilities for ingress and egress, as would such facilities of the employer's own plant, while the work was in progress.") (citations omitted).
In a more recent opinion, the Ohio Court of Appeals held that the administratrix of the estate of a contractor's employee who was killed in an automobile accident on a private employee access road was entitled to worker's compensation benefits. Faber v. R.J. Frazier Co. (1991), 72 Ohio App.3d 9, 593 N.E.2d 410. In Faber, the decedent Faber was employed by Frazier, a contractor which supplied general tradesmen for work at a nuclear plant owned by Cleveland Electric Illuminating Company. Faber completed his shift, clocked out, and was exiting CEI's premises on an employee access road — owned and maintained by CEI — when his automobile was struck by a car driven by the employee of another contractor. The court found the CEI property, including the plant, parking lot, and access road, comprised the employment premises of Faber regardless of
Burke also argues that the risk of injury was not exclusive to the employment relationship because an employee's spouse has travelled the road in the past. In making this argument, Burke attempts to analogize the facts of his case to the facts of Segally v. Ancerys, (1985), Ind. App., 486 N.E.2d 578, reh'g. denied. In Segally, a car driven by Ancerys was struck from behind by a car driven by Segally. The accident occurred at the entrance to United States Steel Corporation where both of the drivers were employed. Ancerys filed a personal injury action against Segally, and Segally filed a motion for summary judgment. Segally's motion was denied because there were genuine issues of material fact concerning Ancerys' employment status and the scope of his employment at the time of the accident. Segally struck Ancerys at the gatehouse of the U.S. Steel Plant, and without more information, the court was unable to conclude whether the risk to Ancerys at the gatehouse was common to workers and non-workers alike. This issue of material fact is not present in Burke's case. Wilfong struck the car in which Burke was a passenger on NIPSCO's private employee access road after Burke had signed in at the gatehouse. Because Schahfer Road is only accessible to NIPSCO employees, contracted employees and persons conducting business with NIPSCO, the risk to Burke on Schahfer Road was not common to workers and non-workers alike. In addition, in Segally, Ancerys arrived at the gatehouse one hour and fifteen minutes prior to his starting time. His early arrival left open the possibility that he had arrived early for personal reasons since there was no other information in the record addressing this issue. Burke, on the other hand, did not arrive to work early on the day of the accident. In fact, he arrived at work at his customary time and he was injured just ten minutes prior to the starting time of his shift.
II. WAS BURKE IN THE SAME EMPLOY AS WILFONG AND HULSE?
The mere fact that Burke's injuries are covered by worker's compensation does not automatically bar him from pursuing an action against a third party. Thiellen, supra. Worker's compensation is Burke's exclusive remedy to the extent that it bars other claims against the employer, and in some cases, fellow employees. However, the Act does permit actions against third party tortfeasors.
According to Ind. Code 22-3-2-13:
Traditionally, the test used to determine whether the parties were "in the same employ" was whether the denominated defendant could obtain compensation benefits in the same or similar circumstances. O'Dell, supra. However, in Thiellen v. Graves, supra, this court added an additional requirement to the interpretation of this phrase. According to Thiellen, the legislative intent behind the phrase is to require some nexus between the employment of the third party and the injury rather than merely the third party's status as sharing a common employer with the injured employee. Id. at 767. The court in Thiellen specifically disproved of the O'Dell language as overly broad.
However, in a recently decided case, this court has declined to follow the Thiellen requirements. Weldy v. Kline (1993), Ind. App., 616 N.E.2d 398, 403, reh'g. denied. In Weldy, this court stated that the nexus requirement is unnecessarily repetitive because cases interpreting the Act already provide
Under either test, Burke, Hulse and Wilfong were all in the same employ. Under the O'Dell test, the denominated defendants, Hulse and Wilfong, could have obtained compensation benefits under the same or similar circumstances. All three of the men worked at the Schahfer Plant and, as employees, they were identically situated. Under the Thiellen test, the act which caused Burke's injury arose out of and occurred in the course of Wilfong and Hulse's employment. Thus, Burke was in the same employ as Wilfong and Hulse, and worker's compensation is his exclusive remedy.
We note that Burke's third party tort claim against NIPSCO remains viable. This decision in no way affects that claim.
Affirmed.
CHEZEM and KIRSCH, JJ., concurring.
FootNotes
Here, Hulse and Wilfong improperly raised their arguments in the trial court with motions for summary judgment. Nevertheless, in the interest of judicial economy we will address the merits of Burke's arguments on appeal because no factual dispute exists and the result will be the same — regardless of the manner in which Hulse and Wilfong's arguments were raised. In effect, then, we will treat Hulse and Wilfong's motions for summary judgment as motions for lack of subject matter jurisdiction.
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