Campbell v. Eckman/Freeman & Associates

Material,” desig Evidentiary in which she affirmative defenses her answer and nated entirety; reference was a

their the second eonclusory in her memorandum statement ... to be mortgage “the instrument

effective, freely, voluntarily must be done threat, duress, knowingly and without misrepresentation or fraud”. Record at 120- however, not,

21. Abbott’s memorandum did specific affidavits refer to assertions supported affirmative defense of which her duress; instead, the focus her memoran Thus, appears

dum to be her fraud defense. designate any specifically Abbott failed to relating evidence to duress and the trial summary granting judg did not err in court Corp. v. McDonald’s ment. Morris Cf. (1995) Ind.App., 650 N.E.2d (mov-ant issue because it was mentioned in waived unsupported of motion one sentence its summary judgment).5 trial court is affirmed. RUCKER, JJ., FRIEDLANDER and concur. CAMPBELL,

Patrick J. Appellant-Plaintiff, ASSOCIATES, & ECKMAN/FREEMAN Appellee-Defendant. No. 71A04-9602-CV-67. Appeals Court of of Indiana. Sept. sup- unless the material fact and the relevant evidence 5. Even if the assertions in Abbott's affidavit duress, ported her affirmative defense of specifically designated to the trial court. were specif- could not reverse because Abbott failed to ically designate Examiners, 56(H). E.g., National Bd. T.R. to the trial court evidence (improperly designated supra, summary supporting this defense. A summaiy support materials will not a reversal of ground judgment may not be reversed on the judgment). genuine that there issue of material fact Tabor,

Roger Weitgenant, Blachly, A. Bo- Hartman, Valparaiso, Appellant zik & for Plaintiff. Hinkle,

Patrick J. Edward N. Kalamaros Associates, Bend, Appellee-De- & South for fendant.

OPINION RILEY, Judge.

STATEMENT OF THE CASE Plaintiff-Appellant Campbell ap- Patrick J. peals summary judgment from the Defendant-Appellee in favor of Eekman- negli- Freeman & Associates his suit for gence. affirm.

We

ISSUE

Campbell raises one issue: Whether finding trial court erred in that Eekman- no as a Freeman owed matter of law. AND HISTORY

FACTS PROCEDURAL This case arises from medical care and Campbell following treatment injury. Campbell work-related suffered an injury to his arm while at work and medical provided pursuant treatment was to the Compensation Indiana Act. Ind. Worker’s seq. 22-3-2 et. Eekman-Freeman is a Code monitoring company provides a case ser- companies, employers and vice to insurance clients involved in worker’s injuries physical claims and other claims for Essentially, brought against Eck- them. provides services to assist and man-Freeman given employees monitor the care receiving medical care while the case, Eekman- In this and rehabilitation. Specialist, Freeman Rehabilitation Sherrie Camp- (Ind.Ct.App.1995), reh’g de- Brewington, assigned to monitor nied, against reviewing denied. sum- compensation claim trans. When bell’s worker’s rulings, may returning mary judgment him consider Manpower goal portions pleadings, deposi- Brewington doc- those safely to work. attended admissions, tions, interrogatories, Campbell, monitored answers appointments tor’s notice, judicial matters of other mat- physical therapy, and monitored his com- designated trial court plans. ters pliance with treatment moving party purposes of the motion for by filing this lawsuit initiated 56(C), (H); summary judgment. T.R. Rosi complaint form J. medical Corp., Furniture v. Business Kelbel, M.D. and Eckman-Freeman Michael (Ind.1993). moving for sum- represent- Campbell was not & Associates. mary making judgment bears the burden of Upon motion ed counsel at the time. showing genu- prima facie that there are no Kelbel, him trial court dismissed Dr. the ine issues of material fact and that the mov- jur- subject-matter from the case for lack of as a matter of ant is entitled isdiction, Campbell’s failure to first due Yater, 511, v. 631 N.E.2d 513 law. Hermann panel submit the case to the medical review reh’g (Ind.Ct.App.1994), denied. Once the Malprac- as the Indiana Medical burden, this the burden movant satisfies (1993). Act. Ind.Code 27-12-8-4 tice See nonmoving party produce shifts to the Subsequently, the matter was submitted to specifically designated showing facts the ex- panel, the medical review which found the genuine istence of a issue. Id. support evidence did not the conclusion applicable Dr. failed to meet the stan- Kelbel reviewing When the trial court’s charged complaint. in dard of care as the summary judgment, decision on a motion for apply the same standard as the trial a mo- Thereafter Eckman-Freeman filed United, Inc., court. v. Contractors Gilliam Summary Judg- captioned tion Motion For 1236, (Ind.Ct.App.1995), Alternative, 648 N.E.2d 1238 ment Or In The Motion To liberally all trans. denied. We construe des Subject Matter Juris- Dismiss For Lack Of evidentiary ignated light material in the most Specifically, diction. Eckman-Freeman ar- nonmoving party favorable to the to deter gued genuine for that there were no issues genuine mine whether there is a issue of trial, alternative, or in the that the exclusivi- Carriage, material fact for trial. Haas Inc. ty provision of the Indiana Worker’s Com- Berna, 284, (Ind.Ct.App. v. 651 N.E.2d 287 pensation for lack of Act mandated dismissal 1995). Any as to existence of a doubt subject-matter jurisdiction. Campbell filed factual issue should be resolved response and Eckman-Freeman filed its 56(C); moving party. T.R. Cowe v. Forum 1994, reply by hearing the end of and a was (Ind.1991). Inc., 630, Group, 575 N.E.2d 633 January held in of 1995. In November Summary judgment rarely in appropriate is granted the trial court Eckman-Free- Ladywood Kelly actions. v. summary judgment finding man’s motion for (Ind.Ct. Apartments, 622 N.E.2d genuine no issue of materi- [was] “there denied, App.1993), reh’g trans. denied. al fact as to whether Eekman/Freeman Campbell owed to Plaintiff of care AND DISCUSSION DECISION (R. 182). ...” The trial court did not ad- 12(B)(1) motion dress Eckman-Freeman’s in Due to the manner which filed subject-matter jurisdic- dismiss for lack of action, procedural this there are threshold Campbell appeals. tion. compelled issues that we feel to address. Campbell’s “Proposed Complaint” against STANDARD OF REVIEW Dr. Kelbel and Eckman-Freeman is a form Summary judgment appropriate complaint Department used the Indiana genuine brought when there is no issue of mate Insurance claims under moving party Malpractice fact Indiana Medical Act. It is al- rial and the is entitled leged complaint judgment as a matter of law. Ind.Trial Rule that Dr. Kelbel as well 56(C); Tyner, provid- Holdings, L.K.I. Inc. v. 658 as Eckman-Freeman are health care Act, general action in an Indiana court of and that due to state as defined ers jurisdiction.” County Hosp. suffered nerve Putnam negligence, their Sells, damage right (Ind.Ct.App.1993) to his shoulder and and muscle suffering, Center, pain (quoting Anthony him arm which caused St. Medical Inc. v. Smith, anguish. wages (Ind.Ct.App. loss of and mental 1992), denied). trans. above, initially Dr. Kelbel was As noted from action due to dismissed Although Brewington registered is a failure to submit the case to medical review nurse, providing she health care panel. Eckman-Freeman did not elect to acting capacity when of rehabilitation premise move for dismissal under this be- Eckman-Freeman, specialist for nor does providers health care as cause are not she fall within definition of health care Malpractice Medical Act. defined under the provider Malpractice in the Act. Rather, moved for Eckman-Freeman sum- (1996). Therefore, Ind.Code 27-12-2-14 See mary judgment, or in the alternative for Campbell’s failure to submit cause to subject-matter jurisdic- for lack of dismissal panel deprive medical review did not 12(B)(1). T.R. trial court tion under subject-matter jurisdiction. court of granted summary judgment in favor of Eck- Exclusivity B. The Provision of the man-Freeman, and did not rule on the T.R. Compensation Worker’s Act 12(B)(1)part of the motion. The second threshold issue as we Subject-Matter I. Jurisdiction remedy see it is whether sole lies A. Medical Review Panel As Procedural Compensation within the Worker’s Act and Subject-Matter Requisite to subject-matter whether the trial court had Jurisdiction jurisdiction adjudicate to his claim. Eckman-Freeman contends that be The first threshold issue is wheth by Manpower’s cause were hired work subject-matter juris er the trial court lacked carrier, Insurance, compensation er’s CNA Campbell's diction due to failure to submit Campbell's compensation monitor worker’s Department the cause to the of Insurance claim, exclusivity provision of the Act opinion and obtain an from a medical review applies thereby precluding Campbell from panel filing complaint before with the any bringing against common law claim Eck- fairly although trial court. It is clear that man-Freeman. Campbell, acting pro filing se at the time of complaint, complaint alleging filed med recently supreme Our court has negligence, ordinary ical his claim is one for held a series of decisions that the use of a negligence. pleadings according We treat summary judgment inappropriate motion is caption. their content rather than their exclusivity provision where the Act’s is raised Indiana, Inc., Hosp. v. Ground Methodist plaintiffs complaint. Perry as a bar to v. (Ind.Ct.App.1991), reh’g CMC, Inc., Buick 637 N.E.2d Stitzer denied, such, Campbell’s trans. denied. As (Ind.1994), denied; reh’g Foshee v. Sho complaint alleged ordinary negligence (Ind.1994). Inc., 1277, 1280 ney’s, 637 N.E.2d governed by claim and therefore was not Subject-matter jurisdiction power is the of a Malpractice Indiana Medical Act. particular court to hear and decide a class of Pursuant to section 27-12-8-4 of the County Hosp., cases. Putnam 619 N.E.2d Act, Malpractice Indiana Medical submission Subject-matter jurisdiction cannot be proposed complaint to the medical re- waived, may by parties or and be raised panel precedent filing view is a condition time, including appeal. the court at malpractice claim in “[I]f medical Indiana. Id. qualified pro- is a health defendant care Act, proposed complaint Compensation provides Act

vider under the The Worker’s injuries by panel compensation employees for submitted to the medical review and a by panel upon the medical review accident which out of and in the course decision arise complaint required prior employment. Ransburg Industries instituting of their legs in an Brown, injured employee lost both of his Stump’s (Ind.Ct.App.1995), accident. While condition reh’g industrial denied. him care and to receive extensive remedy provi The Act’s exclusive exercise, hospital after four- he left the provides that sion in- days from the teen based on assurances granted to an rights The and remedies it him with the surer that subject through to IC 22-8-2 IC employee therapy, special ac- required outpatient injury or personal account of 22-3-6 on in his home. The insurer commodations other by accident shall exclude all death promise. Persuading reneged on its then employee, rights and remedies of such hospital early Stump to leave the substantial- employee’s personal representatives, de- costs, ly the insurer’s and caused reduced kin, or pendents, or next of at common law inju- Stump permanent to suffer additional otherwise, injury of such or on account ries. death, except available under for remedies supreme these court held were IC 5-2-6.1. jurisdiction injuries within the exclusive not (1993). lim This section Ind.Code 22-3-2-6 compensation It de- of the worker’s board. juris employee injury meets the its an whose the insurer had assumed a termined requirements of the Act dictional imposed by duty in addition to the duties rights the Act. and remedies Act, prom- that breach of this additional Thus, injury employee’s if an occurred remedied the Act. The ise could be out of and in the course of accident and arose that the mere fact that court reasoned employment, he is entitled to worker’s com carrier has a with the insurance pensation and Ind.Code 22-3-2-6 bars a employer special should not afford it immuni- hearing any court from common law action ty under the Act. Id. at 331. The court inju brought for the same may noted that various entities be involved However, permits ries. the Act actions obligations assisting employers to fulfill their tortfeasors, long so as the third laws, under the worker’s such plaintiffs employer third is neither the services, hospitals, physicians, as ambulance employee. v. R.H. nor his fellow Williams providing medical and rehabilita- and others (Ind.Ct. Marlin, Inc., 656 N.E.2d 1150 compensa- tive care covered under worker’s injured right employee of an App.1995). The adequate “[w]e tion. The court said find no damages against an action for a to assert justification compensa- to worker’s absolve person employer other than the or fellow tion insurance carriers and other such third expressly recognized in employee is Ind.Code parties responsibilities of their in the event of (1993). 22-3-2-13 injuries proximately additional or harm Union, Stump In v. Commercial 601 by caused their actionable conduct.” Id. (Ind.1992), supreme our court N.E.2d 327 injured Stump permits is limited that it an remedy provision held that the exclusive only against pursue worker to certain claims prohibit employee asserting does not from compensation “in a worker’s carrier against employer’s a cause action injuries proxi- of additional or harm event injuries compensation carrier worker’s mately by [its] caused actionable conduct.” by proximately caused the insurance carri- Id.2 gross negli- tortious conduct such as er’s Although dealing gence, we are not here intentional infliction of emotional dis- tress, duty Stump, constructive fraud.1 In the with a case of unconscionable breach of or fiduciary dy provision Compensation of the Worker’s Act 1. The court also held that there is no by compensation (such duty misrepresenta- owed a worker’s insurer to their tortious acts when employee. Stump, tion, services, a claimant 601 N.E.2d at 334. provide promised refusal to reporting intending deprive fraudulent to States District Court for the north- 2. The United benefits) employee employee causes recently of Indiana clarified the lim- ern district injuries separate his work-related in- incur from Stump itations of the decision and stated Co., juries.” Rayford v. Lumbermens Mut. Cas. "[Stomp] prevent meant to insurance (N.D.Ind.1994). F.Supp. hiding carriers from behind the exclusive reme- (2) parties; em between the the reasonable fore- Stump, the rationale as was the ease alleged seeability person injured; of harm to the equally applicable. The ployed is (3) Webb, public policy Eekman-Freeman is not concerns. 575 N.E.2d negligent conduct of by of care will 995. Such be found kind of harm for which Worker’s compen persons Compensation Act was calculated to the courts where reasonable Moreover, recognize agree Stump, it and that it the remedies exists. sate. Compensation Act are in dero 601 N.E.2d at 332. In the absence of the the Worker’s law, duty, negli- must existence of a there can be no gation of the common and as such strictly against gence. SuperX, limitations on a Hooks at 517 be construed Webb, 995). McQuade right bring (citing 575 N.E.2d at claimant’s suit. (Ind. Tite, Inc.,

Draw private entity by a Whether hired an em 1995). ployer’s compensation worker’s carrier Having trial established that the court was injured rehabilitation services to the subject-matter jurisdiction to ad- vested a owes care to the claims, judicate the common law we reach employee appears to be an issue of first Camp- question of whether the substantive impression in Indiana. A similar issue was negli- asserted a cause of action for bell has Supreme addressed Court of Alabama gence. Associates, in International Rehabilitation (Ala.1992). Adams, Inc. v. 613 So.2d 1207 Negligence: II. Did Eekman-Freeman case, compensation recipi the worker’s Duty Campbell? Owe a brought misrepresentation ent a fraud dispositive The issue is whether Eekman- company action a rehabilitation hired Freeman, company a hired to monitor the employer’s his worker’s car in- rehabilitation of work-related rier, CIGNA Insurance. CIGNA’s claims jury, owed a of reasonable care to adjuster Intracorp retained the services of Campbell. help decide how to handle Adams’s claim. premise recovery To a on a theo employment relationship between CIG- ry negligence, plaintiff must establish Intracorp NA and was evidenced a writ (1) duty part three elements: “Request specifically ten for Service” which to conform his to a defendant conduct stan requested Intracorp perform “aggres arising dard of care from his management” sive medical and a full initial (2) plaintiff, of the defen with the failure Adams, evaluation, including contacts with requisite conform conduct to the dant to his employer, physician. and his Interna required by relationship, standard of care Rehab., tional 613 So.2d at 1208. (3) injury plaintiff proximately and an to the initially specialist as- rehabilitation Jarvis, by caused the breach. Webb v. 575 signed began by contacting to Adams’s case (cit (Ind.1991), reh’g N.E.2d 995 denied attorney seeking begin consent to Adams’s Griesel, 604, 611, ing 261 Ind. Miller signed her on Adams and a con- evaluation (1974)). N.E.2d There are no more lawyer .responded sent form. Adams’s legal negli elements to the tort medical requesting complete description of the ser- gence than there are to other Intracorp extending to Adams vices would be Capello, torts. Burke v. explanation as well as an and full disclosure (Ind.1988). relationship and In- of the between CIGNA response recognizes any tracorp. Intracorp forwarded this Whether the law adjuster, obligation part particular defen to the CIGNA claims who then suspended Adams’s benefits due to his “re- dant to conform his conduct to a certain plaintiff accept is a fusal to rehabilitation.” Id. at standard for the benefit of the following day, special- question exclusively for courts. The the rehabilitation of law attorney’s SuperX, McLaughlin, responded Inc. v. 642 ist letter Hooks (Ind.1994). Intracorp’s sending regarding Three factors information Intracorp it was a explained in that must be considered and balanced order services. (1) organization relationship professional, private, impose duty: to service a court Bradly argued Registered appeal, Intracorp and and that had a staff of Nurses On denying specialized in that the trial court erred their Counselors who Rehabilitation motion for a directed verdict on the fraud assisting injured persons to recover and re- by refusing claim and erred their safely listing A turn to work. Id. some request fraud for a JNOV as to the cause included as follows: inter- their services was discussing In of action. whether Adams information; pret medical coordinate activi- sufficiently proved suppression a ma- had ties and communication between all involved fact, Intracorp’s terial the court discussed professionals; health care assure that Through Intracorp’s to disclose. “Re- plan will secure the best medical treatment Guide,” Specialist habilitation Resource quickest recovery; provide professional and presented that it was In- Adams evidence develop plan; advice to a rehabilitation assist tracorp’s policy fully inform written person to take control of recov- his/her Spe- clients of its with them. ery; employers and work with to facilitate a cifically, that the Resource Guide stated possible safe return to work at the earliest clearly time. These documents also stated provide Rehabilitation counselors who ser- Intracorp that was retained the insurance request of a third vices will company Intracorp’s that involvement and clarify relationships the nature of their and services were based on the insurance parties. all involved Rehabilitation coun- company’s request. The letter further stated employed by parties selors third as case “[wje’re help, you here to and we’d like and witnesses, expert consultants or where your family possible to be as comfortable as pretense there is no or intent to your recovery.” our with involvement Id. counseling directly rehabilitation services review, beyond to clients file initial inter- correspondence, One month after this assessment, define, clearly view will and/or suspend- Adams it had sued CIGNA because means, through written or oral the limits time, During ed his benefits. this Adams relationship. of their physician therapist told his and that he affirming expected placed pro- to be in a Id. at 1215. en- rehabilitation verdict, jury’s tered on the gram Intracorp the court held the near future. that Bradly, Intracorp met an When Adams Specialist, Rehabilitation for his initial con- Intracorp, by policy, its own business had sultation, he asked her whose interest she obligation to disclose to Adams the serve, replied was there to and she that she undertaking limited nature of its for CIG- company’s served the insurance interest at is, particular NA. That because of the point, meeting that but after their initial ease, especially circumstances of this represent she would his interests. Id. company policy Intracorp stated ... Bradly performed no further services for Bradly had a to disclose to Adams month, following Adams. The Adams and perform that CIGNA had hired them to CIGNA settled the worker’s Intracorp an initial evaluation ... settlement, part lawsuit. As CIGNA Bradly had a to disclose to Adams pay for Adams’s rehabilita- had not been hired CIGNA expenses. tion and medical perform range the full of services dis- provided cussed in the services brochure to Intracorp alleging negli- Adams then sued Adams. (or

gence performance nonperfor- in the mance) duties, wantonness, professional of its Thus, Id. at 1215. while the to disclose fraud, and a intentional interference with facts to the in client International Rehab. relationship. business The case was submit- part repre- was based in on the affirmative jury negligence ted to the on the and fraud in company’s sentations made the service action, suppression jury brochure, causes of and the parties’ the failure to raise the against Intracorp returned a verdict both negligence of due care issue and the $80,000 Bradly, awarding compensato- suggests and court’s failure to address it a tacit ry $75,000 damages punitive damages. acceptance duty. and of the existence of the In- Rehab., Relationship jury A. deed, the found in International Adams claim. in favor of facts Turning to the of the case be us, question is fore the first whether the Byrd, case is Cole Another instructive relationship Eckman-Freeman and between Supreme Illinois decided the which was support can the conclusion that 128, 212 year. Ill.2d Ill.Dec. last Court duty. Eckman-Freeman owed a (1995). Cole, 234, In a 656 N.E.2d 1068 long It has established that the exis been was awarded claimant worker’s duty upon respect one to act tence with against third-rparty tortfeasor a a relationship another of the arises out be compensation carrier and the worker’s Hooks, at In tween them. 517. Among expenses. sought reimbursement Cole, the Illinois court concluded that the a expenses were from rehabilita the services relationship primarily was between the insur hired the insurer. The tion coordinator company. the er and rehabilitation 167 Ill.2d Supreme Court held that medical re Illinois 212 Ill.Dec. 656 N.E.2d 1068. by a provided services rehabilita habilitation acknowledge we that the medical reha While request at the insurer’s were tion coordinator is hired the insur bilitation coordinator for the of the insurer and primarily benefit care, expedite ance carrier medical these necessary medical or were not reimbursable companies by own are obli their insistence services. rehabilitation protect injured gated to the interests of the injured employee. The worker relies on issue, deciding In this the court considered professional judgment in their skill and coor of the the nature between necessary dinating medical treatment. the coordinator, the rehabilitation insur medical However, if insurance instructs a carrier hired, company by they which are and ance company to its ser rehabilitation discontinue they injured pro worker for are whom vices, the insurance carrier’s instructions Cole, viding service. the court was govern. would engaged in this for the limited consideration purpose deciding whether the services undisputed It is that Eckman-Freeman injured primarily on of the work were behalf by Manpower’s compen- hired was worker’s Act, er, and thus reimbursable under or carrier, It further sation insurance CNA. insurer, case which on behalf Brewington undisputed that Sherrie neither not be under the Act. reimbursable pro- nor of Eckman-Freeman However, find of the court’s some com Campbell. vided care or treatment to medical ments instructive on the issue whether designated portions Brew- Based on the specialist should owe rehabilitation ington’s deposition, was em- affidavit and she injured worker. The court noted that ployed Specialist a Rehabilitation specialist made recommen the rehabilitation during Camp- the time of Eckman-Freeman insurer and dations August 9, Brew- bell’s treatment. On worker; insurer, injured injured not the ington assigned Campbell’s was to monitor worker, stop right to ser controlled the compensa- his worker’s rehabilitation while them; expand or and the rehabilitation vices Manpower pending. tion claim directly specialist reported to the insurer. although Brewington employ- that stated her Id., N.E.2d at 212 Ill.Dec. Eckman-Freeman, ap- actual er was “the court further noted that proceed proval to with activities related or control employee had little choice Mr. rehabilitation was 87). (R. regard Brewington to the rehabilitation service. Id. Ul by CNA Insurance.” timately, the lower the court affirmed court’s in- Campbell’s progress, clarified monitored specialist’s findings Campbell’s physicians rehabilitation formation from testimony Specifically, indicated she Brew- reported demeanor to CNA. back managing “[through- the of the ington file on behalf insur affidavit that was stated her providing any period sort of time that monitored [she] rather than service out the er ease, Id., any 240, did-not make plaintiff. [she] 212 Ill.Dec. at 656 Mr. to the prescribe or diagnosis, [she] nor did at 1074. any Rather, us, or care treatment. attend- Campbell [she] the case before seems to appointments Campbell, ed doctor’s premise theory with Mr. sup- on a physical therapy compli- monitored and his posed by Brewington error which caused his plan, ance with the treatment maintained originally surgery scheduled postponed to be physical therapist communication with the Following Campbell’s one month. inju- and the doctors and recommended certain work, ry at he consulted with physi- several (R. 80). physicians.” including orthopedic cians specialist and a neurologist. Campbell initially pre- was President, Eckman-Freeman Jean Eck- aggressive physical scribed an therapy treat- man, prepared job description a written plan nonsurgical ment as a alternative. specialist the rehabilitation which character- However, Campbell’s symptoms per- when position ized the as one of “liaison between sisted, he became frustrated and demanded client, employer, physician parties and all surgical Eventually, surgery intervention. involved, in to return order the client to work 22, was April scheduled Dr. Misamore for job in an appropriate physical which fits the 1991, pending approval. CNA Brewington (R. 86). physician.” limitations set present was not surgery the time the was prepared job first sentence of the de- scheduled; however, another Eckman-Free- scription provides that “[t]he rehabilitation Specialist, Ditmore, man Rehabilitation Gail specialist provides services to clients receiv- relayed was there and the information to ing benefits from insurance carriers from Brewington. required opinion CNA disability second compensation systems.” various (R. 86). prior approving surgery, and referred Campbell to Dr. Ribaudo for an evaluation. us,

Based on the limited facts before we do Campbell perceived not know whether that Campbell Brewington went to see Dr. Brewington behalf, acting was on his wheth- 11, April Ribaudo on 1991. Dr. Ribaudo Campbell relying er was comply on her to essentially opined that surgical while inter- pre-surgical with the requisites, and whether appropriate vention was indeed and had been Brewington had actual knowledge that by reputable recommended orthopedic sur- Campbell relying was professional on her geon, Dr. prefer Ribaudo would conservative Weighing services. all of these consider- treatment first. Dr. say Ribaudo went on to ations, we find that Eckman-Freeman did surgery that if prevails, Campbell then a relationship Campbell have with which postoperative should receive treatment under support duty in negligence. supervision surgeon of the to maximize (R. 95). 94, the outcome. Brewington Foreseeability B. re- layed Shaffer, this information to Elaine question The second is whether adjuster, CNA April claims and on Campbell reasonably was a foreseeable vic April surgery approved. Howev- tim by a reasonably foreseeable er, surgery April scheduled for did harm. Of course “[t]he of reasonable place. not take Brewington’s deposition tes- care is not ... owed to large, the world at timony indicates that she has no recollection but might rather to those reasonably who be canceling surgery, and she does not being subject foreseen injury Campbell know whether was informed that Webb, duty.” breach of the 575 N.E.2d at surgery was canceled. (citing Inc., Thiele Faygo Beverage, 574 (Ind.Ct.App.1986), reh’g Dr. Misamore’s office Camp- denied). denied, Imposition trans. physical bell prior receive a examination is limited to those surgery. instances where a possible reason It’s did not ably injured by foreseeable victim a rea receive that examination and therefore the sonably Thus, part foreseeable harm. surgery proceed; however, could not such inquiry into the existence of a is con conclusion pure would be a result of specula- exactly cerned with the same factors part. as is the tion on our What is clear is that the inquiry proximate Webb, into surgery cause. place did Brewington’s not take (citing N.E.2d at PROSSER AND KEA records do not reveal communication (5th TORTS, ed.1984)). TON ON Sec. 53 regard pre-sur- pre- say lar of this This is not that April the facts case. As of gery examination. completed. may not had not been facts of a future case lead us to a surgery examination the Campbell that she Brewington’s records do not indicate conclusion. If had suc- different pre-sur- the any attempts genuine to schedule in issues presenting made ceeded of mate- April prior to by examination gery regarding fact behavior Eckman- rial May ultimately surgery received Campbell Campbell which additional Freeman caused injuries, certainly public of 1991. policy then Campbell compensated that be for dictate Inc., Fawley Supermarkets, In v. Martin’s However, injury. resultant (Ind.Ct.App.1993), trans. showing. no such has made denied, quoted we from Justice Cardozo’s Co., Palsgraf Long Island R. opinion v. CONCLUSION (1928) 344, 162 99,100 N.E. where

N.Y. importance the fore explained the of he Accordingly, the trial court’s of sum- component duty seeability of as follows: mary judgment favor of Eckman-Freeman reasonably perceived risk to be defines “[t]he is affirmed. duty obeyed.” to be While a rehabilita the properly company’s failure to coordinate tion BAKER, J., concurs. create an unreason communicate could and CHEZEM, J., separate dissents injured employee, we risk of harm to the able opinion. in this find such a causal connection do not duty. give a so as to rise to case CHEZEM, Judge, dissenting. Policy C. Public respectfully I the second full dissent. Finally, public policy con we turn to slip opinion, paragraph page of the in it “Duty is not sancrosanct siderations. majority states on the limited that based self, expression of the sum but is an presented, it not have facts does answers policy of which total of those considerations Yet, separate following in the three issues. plaintiff say law to the is enti lead the that states, sentence, majority “Weighing the all Webb, 575 .2d at 997 protection.” tled to N.E considerations, of we find that Eck- these 53). KEETON, sec. (citing PROSSER AND relationship did have a man-Freeman policy competing issues There are several support duty in a which would here it. medical implicated as we see two sentences are incon- negligence.” These in is the rehabilitation coordinator hired question, and to me that the sistent illustrate goals containing with the of costs and surer entity employ- private a hired whether returning expedi to work the as carrier to er’s worker’s tiously possible, safely possi also as as as but injured employ- the services to rehabilitation hand, injured the other worker ble. On duty employ- of a care to ee owes cannot be considered and treated as ee, purely law. is not one of power. equal bargaining The bal possessing Cornelius, explained: In State policy ancing important of these consider of these the determination whether a task be for While ations is that should reserved foreseeability, [relationship, least, three factors very companies legislature. At the policy will public concerns] lead and render rehabilitation services such that generally matter imposition dis be Eckman-Freeman should decide, factual questions court to for the injured employee the limited close to may be interwoven with determination obligations and clear nature of their make the existence of a and employed are the insurance harm, foreseeability rendering exis- carrier. question a mixed of law tence relationship between Consideration of the fact, ultimately resolved the fact- to be harm, foreseeability public parties, finder. concerns, persuasive prece- policy 195, 198 (Ind.Ct.App.1994), trans. .2d convince that no N.E discussed above us dent ques- Believing material factual particu- recognized be under the denied. should tions are interwoven the determination existence of between Eckman-Freeman,

Campbell and I re- granting summary judgment. verse the order Conrad, James CONRAD Carol Appellants-Plaintiffs, FIRE & UNIVERSAL CASUALTY CO., Appellee- INSURANCE Defendant. No. 23A04-9603-CV-81. Appeals Court of Indiana. Sept. 1996. Rehearing Denied Nov. Williams, Offices,

Robert 0. Williams Law Covington, Appellants-Plaintiffs. for Jeffrey Doty, Kightlinger Gray, A. In- & dianapolis, Appellee-Defendant. OPINION CHEZEM, Judge. Summary

Case Appellants-Plaintiffs, James and Carol (the “Conrads”), appeal Conrad tri- from the summary al court’s Appellee-Defendant, favor of Universal Fire

Case Details

Case Name: Campbell v. Eckman/Freeman & Associates

Court Name: Indiana Court of Appeals

Date Published: Sep 19, 1996

Citation: 670 N.E.2d 925

Docket Number: 71A04-9602-CV-67

Court Abbreviation: Ind. Ct. App.