Cox v. American Aggregates Corp., 684 N.E.2d 193

Cox v. American Aggregates Corp.

684 N.E.2d 193

Ind.

1997

Check Treatment

*1 Gary BURRIS, Petitioner, COX, Appellant, Earl Ronald Indiana, Respondent. STATE AMERICAN AGGREGATES

No. 49S00-9509-SD-1112. CORP., Appellee, Supreme Court of Indiana. No. 93S02-9701-EX-20. 26,

Aug. 1997. Supreme Court of Indiana. SETTING DATE ORDER EXECUTION 26, Aug. 1997. 28, 1995, On November the execution of stayed, Gary Burris was the Seventh Cir- Appeals acting

cuit Court of en a few banc place.

hours before it was to have taken

Thereafter, that court directed a second fed- proceeding

eral habeas in the District U.S. rejected The District

Court. Court Burris’s petition

claims and denied the second corpus.

writ of habeas The Seventh Circuit Appeals

Court of affirmed. pending.before

This has it Court since

June the Motion to “State’s Set Execution Objections

Date” and also the “Petitioner’s

State’s Motion Set Execution Date” filed

by counsel on behalf of Burris. We have pleadings

waited to address these until the requests

Seventh Circuit ruled on Burris’s rehearing rehearing and for en banc. On 13, 1997,

August the Seventh Circuit denied petition rehearing rejected sug-

gestion rehearing stay en bane. No

execution is effect in either the state or judicial systems.

federal advised, duly

Being grants

State’s motion. Pursuant to Indiana Crimi-

nal Rule and Indiana Code 35-50-2-

9(h), the Court now orders that the date of Gary

execution of Burris is set for November before the hour of sunrise. The

Superintendent/Warden of the Indiana State carry

Prison is directed to out the execution with accordance Indiana law. This order

shall constitute the warrant for execution §§

described Indiana Code 35-38-6-2 & 3.

All Justices concur.

194

him plaintiff seeking the lawsuit as loss 29, 1991, January of consortium. On summary judgment trial court entered any sug favor for lack of evidence of AAC appealed gesting an intentional tort. Cox 28, 1991, of Ap and on October peals the trial on the affirmed court same ground. Aggregates Corp., v. American Cox N.E.2d Subse 26, 1993, turned quently, on October Cox to the Board for under the Work Compensation injury. er’s Act for the 1986 Act, Compensation the Worker’s Under years claims filed two must be within from an or be time of accident “forever (1993). § barred.” 22-3-3-3 Be IND.Code cause not file a with the Cox did claim Board occurred, injury until after his seven determined that the claim was Board appealed the Board’s decision barred. Cox Appeals and the held that Jour Court Cross, Indianapolis, ap- H. for Christopher § ney’s 34-1- Account Indiana Code pellant. 2-8, preserved Cox’s claim under the Work Rich, for Indianapolis, appellee. A. Miriam Compensation er’s Act. Cox American (Ind.Ct. Corp.,

Aggregates TO TRANSFER ON PETITION petition App.1996). granted AAC’s to We injuries, Indiana Code leged intentional bar “Statute”) hold that such claims as a welder Ronald Westinghouse Statute. er’s cability gates der Cox sued We In the summer of BOEHM, Justice. for loss of future against Factual and Procedural (Ind.1994) (“the granted transfer to consider the Corp. of the Cox to claims civil suffered (“AAC”). damages for Journey’s Elec. injury by AAC. Baker v. appellee lawsuits Board Compensation Act. We Corp., presented earnings. To injuries are not [Worker’s 1986, appellant Earl On § 22-3-2-6, pain (the “Board”) American for work related March while subject to History Statute Compensa- avoid 27, 1987, suffering working Cox Aggre- Work- to the appli- (the un- al- this case transfer and now affirm the Board’s dismiss al of Indiana Code tion of the brought within If, except negligence determination, and or reversed on death contemplated. I. The after the commencement of plaintiff action pf provided: claims. Journey’s party, abate, Does Not first, clear claim, fails § appeal, 22-3-3-3. preserves five or therein, or the claim is barred be deemed judgment Account Statute ^[5] be defeated unless the Apply a new purposes from The version of Cox’s worker’s prosecution, applicable be arrested a continua- after such by action, herein cause by be or (1988).1 “pur- The 34-1-2-8 by its not bar certain Act] terms does Ind.Code actions”). contemplated” determina- joined poses herein are tort His wife application in the same respects of the statute in 1993 in vides for 1. The statute was amended previous split as the version. Section circumstances not relevant this case. The amendment (b) period (a) plaintiff has pro- the time shortens the statute into two sections. Section parents tions of when an action has commenced. Ve new claims asserted were not (Ind. preserved they because Repay, part 520 N.E.2d were not a solowski 1988). applies, original action. Generally, it the Stat when ute serves to resuscitate actions that have principles underlying Vesolowski con- expired otherwise under a statute of limita disposition trol of'-thecurrent case. Both the plaintiff *3 gives tions. Because the Statute a malpractice compensa- medical and worker’s (now three) years an additional five to refile proce- -statutes contain substantive and action, if applies, the Cox’s claim Statute dural limitations. But unlike the Worker’s timely. before the Board would be Act, Compensation malpractice medical cre- ates, Journey’s applies by that, The Account initiated, Statute or right modifies a once preserve only its terms to a “new action’' brought, that takes the of a in lawsuit a court form may be “a of continuation of the first.” Its law. The same true of each of the other is typical statutory use is to action in of by save an filed the causes action cited A Cox. worker’s, claim, however, wrong by allowing plaintiff enough compensation court can- brought not be in refile the in forum time to same claim the correct other than the Board, conversely example, jur- forum. For and the Board has no the statute enables an general legal isdiction over personal jurisdic- action for claims. More dismissed lack of importantly, Journey’s Account tion in one state to in Statute be refiled another state preserves only those claims that are “a con- despite intervening running of the stat- tinuation of the first” action. In See, each of the e.g., ute of limitations. v. Ullom Mid- by cases cited Cox the elements of Industries, Inc., the cause F.Supp. land 663 491 of action (S.D.Ind.1987). asserted the second “action” were contrast, the-same as those in the first. In Journey’s Account Statute is not limit compensation elements of a worker’s ed to causes of action at that existed common any remedy claim are different from those of out, points Journey’s law. As Cox Ac available in a court. Unlike the tort lawsuit applied count Statute has been revive ac initiated, requirement that Cox there is no of lapsed provisions tions that have under of wrongdoing or even fault in a statutory several schemes. These include compensation § claim. 22-3-2-2 Ind.Code Act, Vesolowski, Malpractice the Medical 520 (1991) (employer pay “personal inju- shall for Act, 433; Wrongful City N.E.2d at Death ry arising or death accident out of and in (Ind. Moore, Evansville v. 563 N.E.2d 113 of employment”). Indeed, the course of if the 1990); the Will Contest Willman elements of a worker’s claim Railing, (Ind.Ct.App.1991); met, usually are it is fatal to a court case. Act, Ullom, Liability and the Products Serv., Transp. Mannon v. Howmet Vesolowski, F.Supp. at 491. In example, for (Worker’s (Ind.Ct.App.1995) N.E.2d 1135 parents injured brought of an child a Compensation provides remedy Act exclusive timely malpractice medical on recovery injuries arising of personal out child’s behalf Illinois. The court dismissed employment of employ- and the course of jurisdiction personal the suit for lack of over ment.). sum, In compensa- Cox’s worker’s the defendant. After the statute of limita tion claim is anot “new action” because it is malpractice tions on medical actions ex presented not an action before a court. Nor pired, parents daughter’s refiled their can it be a “continuation of the first” action Indiana, action in also with new claims on substantively because the two claims are dif- their own behalf. This Court held that be Accordingly, correctly ferent. the Board de- original timely cause the action was filed and Journey’s termined that the Account Statute merits, not on Journey’s dismissed apply. does not applied and saved the Existing II. Case Law Vesolowski, daughter’s action. 520 N.E.2d at daughter’s 435-36. The “new action” was a Our conclusion that the However, “continuation of the first.” the Statute does not apply Compen to Worker’s original refile an action governed to the later of three after die statute of limitations that (1993). the failure of the original action, first or the final date of Code action. 34-1-2-8 Ind Statutory Policy Supports the III. existing with case consistent sation claims Inapplicability of the parties discuss Wawrinchak Both law. Corp., Ind.App. Steel United States (1971), Gayheart and v. New N.E.2d 395 Act was The Worker’s Inc., 271 Ind. Foundry provide regime efficiently and passed Co. nam Wawrinchak, workplace. (1979). fairly resolving injuries in the In N.E.2d 163 right of without a creates a general statute distinguished between court prescribes fault and the amount showing of waived, limitations, may be which employee An with a claim compensation. concluded Wawrinchak “nonclaim” statute.2 years, two or lose it. To must raise it within Compensation Act was a proceed several later permit Cox fil period that the nonclaim statute Compensation Act based under the Worker’s be ex that act not under ing a claim tort claim would at on a failed intentional *4 disability, or miscon fraud by “the tended invite, to, open perhaps and least the door may the “time to act parties” nor of the duct litigation that repetitive and extensive the lengthened parties or the ... be waived designed Act is the Worker’s argues, at 400. Cox and Id. by the court.” discourage. If the to that this Appeals agreed, of any injured operated urges, as Cox Gayheart undermined decision Court’s easily circumvent the two employee could flexibility in against line hard Wawrinchak’s compen- year filing limit for a worker’s time requirement for worker’s year filing the two ac- by filing an intentional tort sation claim Ap the Court of claims. As fails, employee If the tort action tion. noted, that “when a Gayheart held peals by invok- over before the Board could start fraudulently forgo to induced party was re- Journey’s Account Statute. This ing the application an modification timely filing of prompt goal of and sult would undermine award, ap his worker’s of injuries disposition of work related efficient at period was tolled limitation plicable principle regular of “upset the lodestar and Cox, employers un- perpetrated.” liability” predictable fraud was time the Baker, this, N.E.2d at 1274. argues there the Act. Cox der at 217. From N.E.2d extend intervention to precedent for court problem raises a second contention required under limits time application of the Jour- In the usual as well. Compensation Act. suit is sub- ney’s Account Statute the second However, stantially the same as the first. today ground- However, is not our decision from re- unfairness could result significant Compen- of the the structure Worker’s ed on “actions” before the Board as garding claims statute. Nor is Act as a nonclaim sation In Journey’s Account Statute. under to in this case attributable delay case, holding for consequences of this turns Rather our decision of defendant. on the significant a burden might not be Cox Journey’s Account of the on the construction law- was alerted to Cox’s employer. AAC the Jour- Gayheart not involve did Statute. necessary suit, preparations nothing tells us ney’s and so investigation, location of a mount defense— applies to work- the Statute about whether witnesses, largely in- discovery presumably — a work- Because compensation claims. er’s against a those needed to defend cluded is not an “action” compensation claim er’s But if Cox compensation claim. worker’s as “a continuation considered be com- worker’s first filed unsuccessful first,” Journey’s Account Statute then, years up to five pensation claim and how the limita- apply regardless of not in rebanee on does later tort, is character- sued AAC for an period built into the statute employer' is to the potential of unfairness ized. part itself.... The nonclaim a of the action as one a nonclaim statute 2. court defined general self-executing statute where the statute is right and has inherent of action that "creates Wawrinchak, Ind.App. imposes limitations is not.” right of action. in it the denial of 451-52, at at 267 N.E.2d 399-400. which is precedent time element condition —the employer significant. The would for several statutorily believe itself with a faced In the Matter of James R. FISHER. exposure

defined financial and the need No. 49S00-8905-DI-386. proof employer’s offer on limited issues. The expense devotion of effort and to the defense Supreme Court of Indiana. guarded by would be that belief. It is funda- Sept. 1997. mentally proceeding unfair to convert the general into a tort lawsuit after the

event.

Finally, nothing prohibits an employee filing

from a claim with the Board and initiat

ing concurrently, although a lawsuit adminis proceedings

trative have been described as

serving “only complicate resolution of the Industries, Tay

matter.” Tribbett v. Mor

Inc., so,

If certainly there were a need to do Cox

could have done that in this case. He knew year year

one before the two window had

expired disputed jurisdiction that AAC

the court to hear the lawsuit. He and his

attorney also were both familiar with the two

year filing requirement. The result one

proceeding may operate judicata as res

the' if disposition second the first results in a merits,”

“on the Riverview Health Care v.

Wright, (Ind.Ct.App.

1988), but difficulty by any is a faced

plaintiff seeking pursue concurrent reme

dies.

Conclusion

The decision of the dismissing Board untimely

claim as is affirmed.

SHEPARD, C.J., and DICKSON and

SELBY, JJ., concur.

SULLIVAN, J., dissents, believing this properly

case was resolved the Court of

Appeals. Aggregates Corp., Cox American E. Elberger, McKinney

Ronald Bose Evans, Indianapolis, Respondent.