This ease arises from injuries suffered by Scott Dominguez (Dominguez) while serving as an employee of Evergreen Resources, Inc. (Evergreen). Dominguez sued Evergreen and its owner, Allan Elias, (Elias) and obtained a default judgment against them. Dominguez also sued Kerr-McGee Chemical, LLC, (Kerr-McGee) and the two reached a settlement. Kerr-McGee later sought and won indemnity awards from Evergreen and Elias (collectively, the Employer). The Employer asks this Court to review the district court’s denial of his summary judgment motion regarding Dominguez’s suit and the district court’s grant of summary judgment to Kerr-McGee on its cross-claim for indemnity. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Evergreen owned an eleven by thirty-six-foot 25,000-gallon horizontal steel tank (the steel tank). The steel tank had originally been used by another company owned by Elias, and was used as part of a cyanide leach process to recover silver from precipitator dust. After several years of such use, a layer of cyanide-laced sludge formed at the bottom of the steel tank. In 1992, Elias moved the steel tank to Evergreen’s facilities in Soda Springs, Idaho.
In 1995, Evergreen sold its assets and intellectual property to Kerr-McGee, which Kerr-McGee intended to use in the construction of a new fertilizer plant. Kerr-McGee contracted with Evergreen to use the purchased assets to conduct research. Evergreen and Kerr-McGee entered into an agreement that expressly provided for Evergreen to indemnify Kerr-McGee for claims arising from Evergreen’s operation.
In the summer of 1996, Elias directed Dominguez and another employee to wash out the sludge that had accumulated in the steel tank. Dominguez alleges Elias knew it was hazardous to enter the steel tank, but concealed that knowledge from Dominguez. Contrary to federal regulations, no confined space entry permit had been prepared, there had been no special employee training, appropriate safety equipment was not provided, and no attendant was standing by. The two employees entered the steel tank through a manhole opening on the top of the tank, and using a water hose and broom the pair attempted to wash the sludge out through a small opening. While in the steel tank, Dominguez was overcome by poisonous hydrogen cyanide gas and lost consciousness. The other employee was able to escape.
*10 When firefighters arrived on the scene they cut through the steel tank in order to pull Dominguez out. Elias was allegedly uncooperative with rescue and medical workers, refusing to accurately identity the material in the steel tank and thereby hampering Dominguez’s rescue and treatment.
Although near death when he was extracted, Dominguez survived. Having absorbed significant quantities of cyanide, Dominguez suffered severe and irreversible brain damage.
Elias contacted the State Insurance Fund, Evergreen’s worker’s compensation insurance carrier, and reported the incident. Since that time Dominguez has received worker’s compensation benefits.
Elias was later indicted and convicted on federal charges of improper disposal of hazardous waste, knowing that his actions placed others in imminent danger of death or serious bodily injury, as well as making material misstatements relating to a confined space entry permit he falsely claimed was prepared prior to Dominguez entering the steel tank.
United States v. Elias,
Dominguez, acting through his legal guardian, brought a civil action against the Employer and Kerr-McGee in Caribou County District Court. The Employer filed a cross-claim against Kerr-McGee for indemnification. The Employer and Kerr-McGee each moved the district court for summary judgment regarding Dominguez’s claims, and both motions were denied. Additionally, the district court denied the Employer’s motion for reconsideration.
Kerr-McGee settled with Dominguez, paying Dominguez for a release of all claims against the company. Kerr-McGee then brought a cross-claim for indemnity against the Employer for the settlement monies as well as costs and attorney fees. Both Kerr-McGee and the Employer moved for summary judgment on their respective cross-claims. The district court denied the Employer’s summary judgment motion on the cross-claim, but granted Kerr-McGee’s cross-claim for indemnity against Evergreen.
The Employer’s counsel withdrew, and the district court ordered the Employer to find new counsel within 20 days. After the Employer failed to do so, pursuant to I.R.C.P. 11(b)(3) the district court entered default and default judgments against the Employer and in favor of Dominguez. Pursuant to the default judgment, Dominguez was ultimately awarded $23,400,000 to be paid by Evergreen and Elias jointly and severally. This total was already reduced by the amounts paid to Dominguez by Kerr-McGee and the State Insurance Fund for worker’s compensation. The Employer did not move for relief from the final judgment. ■
Kerr-McGee moved the district court to reconsider its cross-claim for indemnification against Elias personally. The court granted Kerr-MeGee’s motion, finding Elias liable to Kerr-McGee under the doctrine of common law implied indemnity.
The Employer filed the appeal that is now before this Court.
II. STANDARD OF REVIEW
Jurisdictional matters are questions of law over which this Court exercises free review.
State v. Jones,
III. ANALYSIS
The Employer asserts the district court lacked jurisdiction to hear Dominguez’s claim. The Employer also assigns error to the district court’s denial of his summary judgment motion against Dominguez, and the grant of summary judgment to Kerr-McGee on its indemnity cross-claim against Elias.
A. Jurisdiction
The Employer argues the district court was without jurisdiction to hear Dominguez’s suit because a worker’s compensation claim was Dominguez’s only available remedy
*11
and therefore proper jurisdiction rested solely with the Industrial Commission. “A question of jurisdiction is fundamental; it cannot be ignored when brought to our attention and should be addressed prior to considering the merits of an appeal.”
State v. Kavajecz,
1. The Employer Exclusion
Idaho’s worker’s compensation law provides benefits for workers who suffer injuries arising out of and in the course of employment.
Robison v. Bateman-Hall, Inc.,
The Employer argues an injury is either (1) an accident sustained in the course of employment, or (2) the result of an intentional tort — but cannot be both. In the Employer’s view, only an injury resulting from an “accident” is compensable under worker’s compensation, but an injury resulting from an intentional act is not an accident and therefore is non-compensable. Because Dominguez was injured in the course of his employment and has been receiving worker’s compensation benefits, the Employer maintains it is inconsistent for Dominguez to continue to claim he was the victim of an intentional tort.
Contrary to the Employer s assertions, injury in the course of employment and injury as the result of an intentional act are not mutually exclusive. As a matter of common sense, an employee can be harmed while working, whether that harm is the result of negligence or design. Even if an employer commits an intentional tort against an employee, it does not follow that the tort necessarily arose outside of the employment context, or that the employee was acting outside the course of his employment at the time of injury.
An injury can be “accidental” from the perspective of an employee while at the same time being intentional on the part of the employer. The worker’s compensation law defines an “injury” as “a personal injury caused by an accident arising out of and in the course of any employment covered by the worker’s compensation law.” I.C. § 72-102(17)(a). In turn, an “accident” is defined as “an unexpected, undesigned, and unlooked for mishap, or untoward event, connected with the industry in which it occurs, and which can be reasonably located as to time when and place where it occurred, causing an injury.” I.C. § 72-102(17)(b). From Dominguez’s perspective, the injury that befell him was an accident under the statutory definition. In cleaning out the sludge at the bottom of the steel tank, Dominguez did not intend to be overcome by hydrogen cyanide gas. His injury was an untoward event, connected to the industry in which it occurred, which can be reasonably located as to time and place. It is no contradiction for Dominguez’s to maintain he suffered an accident covered by worker’s compensation and at the same time argue he was harmed by the Employer’s intentional acts.
Moreover, this Court has stated that “the exclusiveness of an injured employee’s remedy [under worker’s compensation] is not absolute.... The exemption from liability given to an employer by section 72-209(1) does not apply in any ease where injury or death is proximately caused by the willful or unprovoked physical aggression of the employer.”
Selkirk Seed Co. v. State Ins. Fund,
In this case, Dominguez has alleged a willful or unprovoked physical aggression by his employer, and therefore his claim falls into a statutory exception to the exclusive remedy rule. I.C. § 72-209(3). Consequently, Dominguez is permitted to collect those worker’s compensation benefits for which he is eligible
and
to bring a cause of action against his employer outside the worker’s compensation system.
Id.; Kearney,
2. Jurisdiction Of The Industrial Commission
The Employer argues the Industrial Commission determined that Dominguez was entitled to worker’s compensation, and because of this determination the Commission obtained exclusive jurisdiction over the matter. Commonly, the determination of whether a worker is eligible for worker’s compensation benefits resolves whether jurisdiction lies with the Industrial Commission or with the courts.
See Anderson v. Gailey,
However, the determination of whether a worker is eligible for worker’s compensation does not always resolve the question of jurisdiction. When a claimant was injured by the willful or unprovoked physical aggression of his employer, he may be eligible for benefits and yet also pursue a cause of action in tort. I.C. § 72-209(3);
Kearney,
In the present case, the Employer filed a claim with its surety, the State Insurance Fund, which led to Dominguez receiving benefits. There is no mention in the record of any ruling or determination issued by the Industrial Commission regarding whether Dominguez was entitled to benefits under worker’s compensation, or even that such a ruling was ever sought. Certainly the Industrial Commission never determined whether the I.C. § 72-209(3) exception to the exclusive remedy rule applied in this case. The State Insurance Fund is simply an insurance carrier.
DeMoss v. City of Coeur D’Alene,
A decision by the Industrial Commission has res judicata effect only for those issues the Commission actually decides. Even if the Industrial Commission had determined Dominguez was entitled to worker’s compensation, this would not be equal to a determination regarding whether he was the victim of willful or unprovoked physical aggression. Either issue is within the competence of the Industrial Commission, but in this case neither was subjected to a determination by that body. 1 Consequently, the district court was acting within its jurisdiction when issuing a judgment in this case.
B. Appealability of the Denial of the Employer’s Summary Judgment Motion
The Employer asks this Court to review the district court’s denial of his summary judgment motion concerning Dominguez’s factual claim. Although the denial of a summary judgment motion is a non-final order not normally subject to appeal, the Employer contends the default judgment entered against him was a final judgment permitting him to appeal directly to this Court.
Unless review is specifically provided for by statute or rule, this Court may only review appeals from final judgments.
Idah-Best, Inc. v. First Sec. Bank,
An order denying a motion for summary judgment is an interlocutory order from which no direct appeal may be taken.
Bowles v. Pro Indiviso, Inc.,
Not only is the Employer barred from appealing the denial of his summary judgment motion, but even if we were to treat his appeal as springing instead from the entry of judgment by default, review would be improper. It should be noted the Employer never moved the district court for relief from the default judgment entered against him. Idaho Rule of Civil Procedure 60(b) permits a court to relieve a party from final judgment on such grounds as mistakes, inadvertence, excusable neglect, newly discovered evidence, or fraud. The grant or denial of a motion for relief may be reviewed by an appellate court for abuse of discretion.
Shelton v. Diamond Int’l Corp.,
In
Economic Development Council,
several defendants against whom defaults were entered in district court and never set aside appealed from a summary judgment entered against them.
Although a judgment by default is a final judgment, no appeal lies directly from such a ruling. The central function of the appeals process is the correction of error. If a matter was abandoned by the defaulting party and never properly presented to the trial court, there can be no error by the trial court on a question it was never asked to consider. A defaulting party may only be heard on appeal after it has filed a post-judgment motion to set aside the default and then invoked an adverse ruling on the motion. Only then has the trial court been granted the opportunity to correct any errors in its grant of judgment by default, and only then is the appellate court reviewing a trial court ruling weighing the competing arguments of the parties. Therefore, the Employer’s failure to move the trial court to set aside the judgment by default bars his appeal to this Court.
C. Indemnity
The Employer challenges the district court’s grant of summary judgment in favor of Kerr-McGee on its cross-claim for common law indemnity against Elias. The Employer argues the district court’s award to Kerr-McGee was in violation of the requirement found in I.C. § 72-209(2) that the liability of an employer to indemnify a third party “shall be limited to the amount of compensation for which the employer is liable” under the worker’s compensation law. Review of the record reveals the Employer did not raise this argument with the district court. We will not consider arguments raised for the first time on appeal.
Combs v. Kelly Logging,
D. Attorney Fees
The Employer requests attorney fees on appeal but presented no argument or authority in its opening brief in support of this request. As a result, the Employer cannot be awarded attorney fees on appeal.
Myers v. Workmen’s Auto Ins. Co.,
Kerr-McGee also requests attorney fees on appeal, pursuant to I.A.R. 41. Idaho Appellate Rule 41 provides the procedure for requesting attorney fees on appeal, but is not authority alone for awarding fees.
Shawver v. Huckleberry Estates,
Dominguez requests attorney fees on appeal pursuant to I.C. § 12-121 and I.R.C.P. 54(e). Idaho Code § 12-121 permits an award of attorney fees in a civil action to the prevailing party if the court determines the case was brought, pursued or defended frivolously, unreasonably or without foundation.
Mutual of Enumclaw Ins. Co. v. Pedersen,
IY. CONCLUSION
This Court affirms the rulings from which the Employer appeals in all respects. Costs, but not attorney fees on appeal, are awarded to Kerr-McGee and Dominguez.
Notes
. The Employer filed for worker’s compensation benefits on Dominguez's behalf, and there was no dispute that Dominguez was eligible. It does not appear the issue of willful or unprovoked physical aggression was raised in the request for benefits. As a result, there was no disputed issue for which a decision by the Industrial Commission was required. We cannot fault Dominguez for failing to raise the I.C. § 72-209(3) exception with the Industrial Commission, because it was the Employer who filed for benefits and Dominguez cannot be restricted to the Employer’s potentially self-serving choice of claims.