National Can Corp. v. Jovanovich

one exam interest. When against his tions given Agent of Louis P. In the Matter entire statement

ines the McHENRY, Jr. Kincaid, evidence which it contain does interest; against his be No. 10S00-8605-DI-454. already admitted had been such evidence Indiana. Supreme Court of dispute. The not and was evidence by appellant a denial did contain statement 20, Feb. raped the victim. This he had that self-serving declaration which course was PENDING ORDER OF SUSPENSION Marts v. admissible. State was not DETERMINATION FINAL did not Ind., 18. The trial court 432 N.E.2d Hearing appoint- Officer Comes now the into refusing permit the statement err in and, having ed in this matter found evidence. appear Respondent failed to and meet Appellant claims the verdict of the proof, that the recommends his burden jury contrary to law because there was was practice Respondent suspended from the prove beyond a rea insufficient evidence to final determination this of law until that he committed the of sonable doubt Court. argues He he was fense of confinement. advised, Court, being duly finds And this evi guilty of confinement because the Hearing recommendation that the Officer's willingly en dence shows that victim should suspension pending prosecution left alone him tered his vehicle and with Respon- and the accepted approved leaving shopping after her cousins suspended. should be so dent charging The affidavit and the center. ORDERED, THEREFORE, AD- IS, IT facts in this case disclose that he was not the Re- AND DECREED JUDGED confining charged her at that time. with Jr., McHenry, be and he Louis P. spondent support The affidavit and the evidence practice of suspended from the hereby is clearly it at a thereof show that was later final pending a determina- in this state law the knife and forced displayed time that he present case. by this Court tion him and her to enter a motel room with is directed to of this Court The Clerk he her from the motel later removed Order in accordance notice of this forward room force and confined her his auto and Disci- provisions of Admission with the he Terre Haute. mobile until reached 3(d). pline Rule clearly sup The evidence above recited concur. All Justices ports finding jury that he was guilty of confinement. See Lewis v. State

(1982), Ind., 440 N.E.2d cert. denied L.Ed.2d 284. CORPORATION, CAN NATIONAL court is affirmed. trial Defendant-Appellant, C.J., DeBRULER, GIVAN, SHEPARD, JJ., concur. PIVARNIK JOVANOVICH, Michael DICKSON, J., concurs result. Plaintiff-Appellee.

No. 3-885A212. Indiana, Appeals of Court of Third District. 18, 1987. Feb. 6, 1987. May Rehearing Denied Maurice S. Weigle, Kaster, Laura A. Joel J. Africk, White, Diana C. Block, Jenner & Chicago, III., Stephen M. Terrell, Ice Miller Donadio & Ryan, Indianapolis, for defend- ant-appellant.

Michael Bergerson, S. Kenefick, Gilmore Bergerson, & Michigan City, Anne Willis Reed, Milwaukee, Wis., for plaintiff-appel- lee.

GARRARD, Judge. Presiding Corporation (hereinafter National Can Can") appeals 'National judg- adverse ment in (here- favor of Michael Jovanovich "Jovanovich"), inafter an employee who injured was while working for National Can. receiving After the verdict of an advisory jury, the trial court awarded Jova- $600,000 novich in compensatory damages $275,000 punitive damages. We re- verse. Facts

Jovanovich was a machinist/millwright LaPorte, at National Can's plant. Indiana His millwright duties as a included weld- ing, climbing heavy lifting. In addition to his work as a machinist/millwright, Jo- vanovich was active in the local union and was a grievance member of the union com- mittee. . May 14, On 1980, Jovanovich was as- signed carry gearbox, weighing ap- proximately pounds, up several stairs and install it on a machine called a necker- flanger. Jovanovich injured his back dur- ing his attempt carry gearbox. This injury required that Jovanovich be exam- by ined orthopedic surgeon LaPorte, Dr. Blair. May 20, On Dr. Blair examined Jovanovich and found that while his "clini- cal examination" normal, was Jovanovich experiencing pain. was back Jovanovich soon returned to work but was assisted jobs. fellow workers in some of the heavier weight according to his tolerance Jovanovich was In the summer disability pain. this limitation in ac- of full Provided that seven weeks placed on period kept tivities are for a of three of a LaPorte recommendation leave at the months, enough he should have time addition, filed chiropractor. In recover well. compensation for his for workmen's a claim your questions, I don't As for fourth initially attempt caused back anyone exactly answer how think can May De- gearbox 1980. to install the weight you lift must much he can and to spite pain, Jovanovich returned his back reports he whether or not he trust when performed fall of 1980 and his work pain. has machinist/millwright. regular duties as a disabled, declaring patient I am not produced evidence at trial to Jovanovich in limita- common sense requesting but during period this he suffered show that acceptable period for an of activities tion pain, weight psy- loss and continual back of time." chological deterioration. National 260E). Shortly after (Record, p. In December Jovanovich was exam- re- letter, Jovanovich this received Can neurologist, ined a LaPorte Dr. John Dr. Galea's to pursuant to work turned to injury Galea, found Jovanovieh's who instructions. spi- permanent than spasm rather a muscle 27, 1981, damage. After exam- January Jovanovich was injury or nerve On nal Jovanovich, to sent a letter ining Dr. Galea basecoa- assigned to dismantle an obsolete objections to the despite his ter machine recommending that Jovano- Can National lifting pulling for heavy and on the avoid result of his work assignment. vich As a 260). (record, p. Dr. months least three experienced more Jovanovich basecoater suggested that Jovanovich Galea also he sent home because pain and was back Having "light duty" status. placed on the basecoa- not continue his work on could status, "light duty" any formal abolished re days later Jovanovich ter. Several light duty refused exclusive National Can Can indicat a letter from National ceived him home sent Jovanovich and work to or risk ing he return to work duties perform his routine until he could employment. discharge from suspension or Can then National without restriction. continued returned to work and Jovanovich explaining to Dr. Galea sent a letter employ until November in National Can's at their available light duty no work was claimed at trial that 1981. Jovanovich of Dr. requested a clarification plant, and February 1981 to during period from re- diagnosis recommendations and Galea's 28, 1981, assigned most he was November restrictions. work garding Jovanovich's caused his condition ly heavy labor which Galea, in Dr. correspondence, After some to worsen.1 letter, responded: his December 14, 1983, On December the Industrial primarily concur essentially and "I Board of Indiana reviewed Jovanovich's I feel diagnosis of Dr. Blair but with gearbox his 1980 claim which he filed for recovery pa- this proper to achieve stipu- injury. National Can and Jovanovieh limitations at have certain tient should permanent lated that Jovanovich had a 22% of time and when given period work for disability. stipulation on this partial Based talking I am not as saying this I am provided by and additional medical evidence disability. permanent examined and treated doctors who several Answering your specific questions, my gearbox and ba- after both the Jovanovich 1) Injury Diagnoses are: Final incidents, the Board awarded Jo- secoater superficial right dorsal branches disability. rami, temporary total along vanovich posterior T-8 and T-9 with a Jovanovich then filed this action in degree paraspinal La- sprain of muscle Superior Porte Court patient can muscles on that side. The National Can up alleging Can, perform regular job, he could lift that National acting out of contractors. outside repaired made actions Can's that National claims Jovanovich 806). (Record, p. pre- filing grievances to by his motivated were parts having machine Can National vent IV, him, Whether malice Indiana wilfully, toward courts intentionally recog have nized an wantonly assign refused intentional injury him light excep tion to the duty Further, work. alleged Compensa tion Act exclusivity provision. that National Can knew that Jovanovich's performance We affirm part heavy work part. reverse in cause injury further Hence, his back. Jovano- Discussion concluded, vich National Can intentionally Initially National argues Can that Jova- injured him. The trial agreed court with noviech'sclaim for is, intentional Jovanovich and $600,000 awarded him substance, a alleging claim that National compensatory $275,000 punitive XI, Can breached Article Section 7 of the damages. court, trial found parties' bargaining collective in favor of National Can's set-off for sums governing assignment of employees to already paid to Jovanovich under status,3 duty XV, and Article Indiana Workmen's Compensation Act and 1 of the same governing retali disability National Can's and medical atory assignments.4 work Further, Nation plan. insurance al argues, Can because these claims neces National Can now seeks reversal of the sarily require interpretation substantial judgment presents trial court's and the fol- the collective bargaining agreement, Sec lowing issues: tion 301 of the Management Labor Rela I. Whether 5 Section 301 of the Labor tions Act preempts any state applica law Management preempts Relations Act ble to Jovanovich's claim for intentional ~ Jovanovieh'sstate law claimof inten- injury. In primary reliance on Allis-Chal employer tional misconduct. Corp. (1985), mers 202, v. Lueck 471 U.S. II. 1904, Whether Jovanovieh's claim of inten- 105 206, S.Ct. 85 LEd.2d National employer urges tional misconduct is within Can this court to vacate the trial primary jurisdiction the judgment of the Na- court for Jovanovich. pursu- tional Labor Relations Board I Preemptive Scope Section 301 ant to Section 8 of the National La- competing Two interests shaped have

bor Relations Act. preemption. doctrine of On one hand the III. Whether Jovanovich's claim of em- Supreme United recog- States Court has

ployer "by misconduct is accident" powers nized that the broad which Con- coverage and thus within the gress has conferred the National La- Compensation Indiana's Workmen's interpret bor Relations Board to and en- Act. Management force the Labor Relations Act issues, 2. National Can raised "Every dispute any two additional kind or character regarding acceptance first whether Jovanovich's Company which arise between the compensation of workmen's benefits employees 1983 the union or the shall be deemed barring constitutes an election of remedies grievance this to be a and shall be handled in action, state court and whether the case was procedures accordance with the set forth in assumption employer tried under an that an can agreement." this gross negligence. be held liable for Additional- (Record, 1172B). p. ly, challenged propriety of the 301, trial 185(a) court's: set off order. We find it unneces- provides 5. Section 29 U.S.C. Section sary light to address these issues in of our hold- pertinent part: ing that Jovanovich's claim was within Indiana's orga- "Sec. 185. Suits Compensation Act. nizations Venue, (a) amount, citizenship XI, provides: 3. Article Section 7 Suits for violation of contracts between an "Aged partially incapacitated employees organization represent- and a labor (2) years who have two or more of continuous ing employees industry affecting in an com- Company given pref- service with the will be chapter, merce as defined in this or between placement by Company erence for to such any organizations, may brought such labor might they work as be available and are any district court of the United States hav- perform." able to ing jurisdiction parties, respect without (Record, 1172B). p. controversy to the amount or without re- gard XV, citizenship parties." provides: 4. Article Section 1 1228 totality of the circumstances Con imply conflicting

necessarily state occupy sought [exclusively] gress yield to federal law. rules of law (quoting (1977), 290, 105 at 1910 Ma field...." S.Ct. Carpenters 430 U.S. Farmer v. (1978), Corp. lone v. White Motor 1056, 1061, 338; U.S. 295, 97 51 L.Ed.2d 497, 504, 1185, 1190, 98 S.Ct. 55 L.Ed.2d (1967), 171, 178-9, Sipes U.S. Vaca v. 443). 910-11, 903, (quot 17 L.Ed.2d 87 S.Ct. ing v. Bldg. Trades Council Diego San Supreme analyzed Court first 242, 236, (1959), 79 S.Ct. 359 U.S. Garmon preemptive effect of Section 301 in Team 775). the other 773, 778, On 95, sters v. Lucas Flour 369 U.S. remained si hand, Congress has because 571, 576, 82 S.Ct. 7 L.Ed.2d 593. The preemp scope federal regarding lent Congress stated Court intended that law, has Supreme Court tion of state uniformly prevail labor law over state laws or preempted all not declared inconsistent state law. 369 any touches or concerns regulation "that specified S.Ct. at 577. The Court further interrelationships be complex way the why govern federal law should the mean employers and un employees, tween ing given to bargain terms a collective Farmer, 430 U.S. at supra, ing agreement when it stated: ions...." 1061; Motor Em Coach 97 S.Ct. at 301(a) of Section matter "[TJhe Lockridge 403 U.S. for uniform peculiarly ployees 'is one that calls 1909, 1919, 29 L.Ed.2d 473. 289, 91 S.Ct. possibility ... The that individual law.' preemptive clarify the attempt In an might terms have different contract law, courts have meanings state and federal law labor the under effect of federal inquiry into such engaged in a balanced disruptive inevitably exert a influ- and nature of the federal the upon negotiation factors as and ad- ence both the activity at regulating in the interests state agreements. of collective ministration party Farmer, neither could be certain of at Because 97 S.Ct. 430 U.S. issue. in noted Supreme Court rights 1063. As the it had obtained or con- the which ceded, negotiating process the of "demon supra, the cases Sipes, Vaca v. preempt immeasurably to the decision would be made strate that given over a jurisdiction court and state necessity trying by the of more difficult upon nature depend the class of cases provisions such to formulate contract being asserted particular interests meaning same way as to contain the the the administration of and effect systems of law which under two or more policies judicial of concurrent national labor enforcing might someday be invoked and remedies." 386 U.S. at administrative bargain contract. Once the collective the 180, 87 S.Ct. at 911. made, conflicting possibility of was specific regard preemptive

With to the compet- interpretation under substantive Manage- effect 801 of the of Section Labor to stimu- ing legal systems would tend to its inter- prolong disputes as Act, Congress late and ment Relations has not ex- plicitly might substantially pretation addressed whether and to what ex- ... [and] preempt willingness agree impede parties' tent it intended that Section 301 providing for final arbi- to contract terms Allis-Chalmers, conflicting state law. su- disputes." of judicial resolution tral Thus, pra, 105 S.Ct. at 1910. the task of 103-4, defining preemptive scope of Section Id. at 82 S.C.t at 576-7. Conse quently the Lucas Flour Court held that a by 801 has been undertaken the courts. alleges provision suit which a violation of a Ordinarily, the court sustain a state will brought of a labor contract must be regulation law or "unless it conflicts with by Section 301 and resolved reference to federal law or would frustrate the federal federal law. Id.6 scheme, or unless the courts discern Courtney In Charles Dowd Co. v. National Labor Relations Act under Gar mon, supra, power the state courts lack the Su 82 S.Ct. preme adjudicate trigger preemption. Court said that courts have concur the claims state that jurisdiction Longshoremen's rent in Section 301 cases. How International Assoc. v. Davis ever, clearly preempted by where state law is recently in Most Corp. Allis-Chalmers tract claims as claims for tortious breach endeay- Lueck, supra, Supreme Court contract." (citations omitted). ored preemptive to further define the Id. at 1911 every ef Not however, dispute, which concerns an em fect of Section 301. In Allis-Chalmers ployment relationship, or tangentially in Lueck, employee, Allis-Chalimers volves a bargaining provision collective is brought a state tort action Allis- preempted by Section 301 or federal labor Aetna, Chalmers disability and insur Furthermore, law. Id. it would be incon carrier, ance duty for breach of a good congressional sistent with permit intent to handling faith in disability claim rather preempt Section 8301to state rules that filing grievance than pursuant proscribe rights conduct or establish parties' bargaining collective agreement. obligations wholly independent that are The court recognized: Allis-Chalmers underlying bargaining agree collective policies "If the that animate Section Accordingly, ment. the Allis-Chalmers given range, proper are be their rights court obligations noted that pre-emptive effect of Sec- independently private agree do not exist beyond alleg- tion 301 must extend suits ments, that, result, as a can be waived violations,. ing policies contract These by agreement parties, or altered are require relationships that the created preempted. Id. at 1912.7 Hence the rele bargaining] agreement collective be [a inquiry preemption vant by application defined evolving of 'an cases is whether the state tort action is grounded federal common law national rights on based a violation of or duties policy' labor parties independently conferred on the in interpretive interests uniformity contract, any underlying or whether the predictability require that labor- inextricably tort action is intertwined with disputes contract resolved refer- underlying agree the terms of the ence require to federal law also that the inquiry ment. Intertwined is an meaning given a phase contract or term examination of the kind of relief a claimant interpreta- to uniform federal seeking is to assert. If a state rule or Thus, questions tion. relating to what regulation merely purports to define terms parties agreement agreed, to a labor obligations by or within created the collec legal consequences and what were in- bargaining agreement, reg tive the rule or tended to flow from breaches of that preempted.8 ulation is agreement by must be resolved reference We believe Jovanovich's claim for law, to uniform federal whether such injury sufficiently intentional is not inter questions arise in the context of a suit parties' twined bargain with collective for breach of alleg- contract or a suit ing agreement justify pre to Section ing liability in Any tort. other result emption. Further, significant factual would elevate form over substance and present differences between the case and parties allow requirements evade the support holding Allis-Chalmers our of by re-labeling Section 801 their con- preempted by Jovanovich's claim is not Sec- - -, pre-empted by would have S.Ct. also been other governing employment 389. federal laws or benefit plans. every Nor do we hold that statelaw agreed 7. Later cases since Allis-Chalmers have asserting right way suit that relates in some Michigan with this result. Mut. Ins. Co. v. Unit provision collective-bargaining agree- to a in a (6th Cir.1985), 104; ed Steel Workers 774 F.2d ment, generally parties or more to such (11th 1985), Hechler v. Electrical Workers Cir. agreement, necessarily pre-empted by an is 788; 772 F.2d Cola Bottlers, Mitchell v. Pepsi (7th Cir.1985), scope pre-emp- The full Inc. 772 F.2d 342. 301. tive effect of federal labor-contract law re- Allis-Chalmers, holding 8. The is not case-by-case mains to be fleshed out on a without limits. The Court noted at basis." 1916: perhaps emphasizing is "It worth the nar- today. row focus of the reach conclusions we pass judgment We no on whether this suit interpretation First, stantial of the contract. Jo- tion 8301. Jovanovieh's claim that intentionally injured him is National Can claim, hand, vanovich's on the other re- grounded in essentially one common law quires only an examination of National while Lueck's claim Allis-Chalmers was Can's actions in of its duties under the product of contract itself.9 Unlike tort law this state. These distinctions Jovanovich, Lueck have no cause of require that we find that Jovanovieh's underlying action if the insurance contract claim is "substantially dependent" upon Further, did not exist. the collective bar parties' bargaining agree- collective gaining agreement pro in Allis-Chalmers ment is required preemption as for remedy for Lueck's vided a claim of breach Allis-Chailmers. Jovanovich's claim is not contract, However, namely, arbitration. preempted by Section 801 of the Labor parties' agreement while the stated that Management Relations Act. any employer-employee dispute should be Next, argues National Can that the trial grievance, filed as a Jovanovich's claim for court lacked jurisdiction matter damages arising personal essentially Jovanovieh's claim was an employer's caused intentional con practice unfair pri labor claim within the specifically duct was not addressed or con mary jurisdiction of the National templated by parties' Labor bargain collective ing agreement. important (NLRB) The most dis pursuant Relations Board to Sec Act, tion 8 of the National Labor Relations tinction, perhaps, is that Lueck's claim in necessarily required 158(a).10 Allis-Chalmers sub- 29 U.S.C. Section We believe that 9. We believe that Jovanovich asserted at least later, agreement, (i) of such whichever is the if possible injury, organization two claims: one for representative intentional such labor is the employer's and the other based on the retali- 159(a) employees provided as in section atory practices parties' appropriate in breach collective-bargaining collec- this title in the bargaining agreement. made, tive If Jovanovich had unit covered such when latter, pursued (ii) clearly following such action would unless an election held as preempted by 159(e) provided law. Vantine v. Elkhart in section of this title within (Ith Cir.1985), Mfg. year Brass Co. preceding 762 F.2d one the effective date of such agreement, the Board shall have certified that at provides pertinent part: 10. Section 8 majority employees eligible least a to vote practices in such election have voted to rescind the au- "Sec. 158. Unfair labor (a) practices by employer thority Unfair organization labor of such labor to make such practice agreement; shall further, It be an unfair labor for an Provided That no em- employer- ployer justify any shall discrimination (1) with, restrain, employee non-membership interfere or coerce em- for in a labor ployees (A) rights guaranteed organization grounds the exercise of the if he has reasonable title; in section 157 of this believing membership that such was not (2) employee to dominate or interfere with the forma- available to the on the same terms generally applicable any organization and conditions tion or administration of to other it; members, (B) support contribute financial or grounds other if he has reasonable Provided, subject regulations That to rules and believing membership for that was denied or published by pursuant made and the Board to terminated reasons other than the failure of title, employer section employee 156 of this an periodic shall not the to tender the dues and prohibited permitting employees uniformly from required to the initiation fees as a con- during working confer acquiring retaining with him membership; hours without dition of or "(4) pay; discharge loss of time or to or otherwise discriminate (3) by regard employee discrimination to hire or an because he has filed charges given testimony sub-chap- employment any or under this tenure of or term or condition ter; employment encourage discourage to or membership any organization; (5) bargain collectively labor Provid- to refuse to with the ed, nothing subchapter, any That representatives employees, in this or in of his States, preclude 159(a) other provisions statute of the United shall of section of this title." Further, employer making rule, an general from an question with a as a the federal established, maintained, organization (not labor appear complaint on the face of the to court, any justify assisted action defined in this subsec- removal to federal and whether a practice) require complaint tion as an presents question unfair labor to as a such a federal de- employment membership pends theory recovery condition of therein on the advanced in a day following begin- plaintiff's well-pleaded on or after the thirtieth complaint. Franchise ning employment of such or the effective date (1983), Bd. v. Tax Construction Laborers 463

1231 trial determining court was correct in (1958), 617, Gonzales 923, 356 U.S. 78 S.Ct. that Jovanovieh's tort claim gov- was not {wrongful 1018 expulsion from erned Section 8. union membership). A number factors have led the court IL, Preemptive Scope Section 8 recognize to exceptions to the pre- Garmon The Supreme United States Court in emption rule. Linn, 'The Court in supra, Diego Bldg. San Trades Council v. Gar considered several in finding factors an (1959), general mon set forth the exception (1) to rule re preemption: federal garding the primary jurisdiction of the complained conduct protected was not 8,

NLRB in Section unfair practice Act; (2) there was no risk that claims, when it stated: allowing a state cause of action would re- regulation sult in state of conduct that "When it is clear or fairly be Congress (8) intended protect; to assumed there ex- that the activities which a State overriding ists "an pro- state interest" in purports regulate protected by are tecting its residents from harm and this Section 7 of the National Labor Relations state interest was "deeply Act, rooted in local constitute an prac- unfair labor feeling and responsibility;" (8) finally and 8, tice under regard due for the there is little risk that the state cause of requires jur- enactment that state action would interfere with effective ad- yield. isdiction must To leave the States ministration of uniform poli- national labor regulate free to conduct plainly so within 61, ey. 888 U.S. at 86 S.Ct. at 662. Our central aim regulation of federal in- examination of these present factors in the great volves too danger of conflict be- case requires that we find that Jovano- power tween by Congress, asserted and vich's tort claim is outside preemptive requirements imposed by state law." reach of Section 8. 236, 244, 773, 859 U.S. 779, 79 S.Ct. 3 L.Ed.2d 775.11 Supreme Court, The The National Labor how Relations Act does ever, has refused preempt activity which protect against, address, nor does it arguably personal fall direct consequences within the reach of the of tortious Garmon rule if activity misconduct merely physical "was a which causes peripheral concern and emotional harm to Manage employee. Labor ment Act ... Act's failure problem touched to address this interests so makes [or] deeply apparent rooted in local that there is feeling allowing no risk that [state] that, responsibility Jovanovich's claim would compel absence of encroach ling congressional direction, Congress area which occupy intended to [the court] exclusively. could not infer Congress Even if a minimal deprived had risk of such power States of existed, act." Id. at conflict risk would be sub- stantially outweighed 248-4, by the 779; see, state's sub- 779 S.Ct. at eg., Farmer v. Carpenters, supra, 296-7, controlling U.S. at 97 stantial interest in tortious be- (violent threats, S.Ct. at 1061 protecting Further, harassment havior and its citizens. hiring there is no "deeply discrimination); interest more hall rooted in Linn v. feeling local responsibility'" Plant Guard Workers than a 383 U.S. (malicious 86 S.Ct. 15 L.Ed.2d 582 li state's in protecting interest its citizens bel); physical and mental Auto Workers v. Russell Lastly, harm. (mass L.Ed.2d 1030 of the fact that Jovanovich's claim can picketing and adjudicated Machinists v. regard libel} without to the merits 1, 9-12, 2841, 2846-48, Hence, U.S. 103 question. eral pleading" the "artful doc plaintiff may 420. A jurisdic not avoid apply federal present trine does not case. by "artfully pleading" tion his claim as a state recently 11. The Garmon law claim rule was when such claim is in reaffirmed in substance a Longshoremen's question. (7th Pepsi International Assoc. Mitchell v. v. Davis Cola - Cir.1985), -, 772 F.2d 344. 106 S.Ct. We believe that L.Ed.2d complaint present

Jovanovich's does 389. a fed underlying controversy, of the labor there injury A. Personal or death acci- is no risk of interference with effective dent; of a uniform national administration B. injury arising Personal or death policy. Consequently, we find that employment; Jovano- out of preempted by tort claim is not vich's Sec- injury C. Personal arising or death jurisdiction tion 8 and is not within the employment. the course of the NLRB. employee injuries Actions for or death which prereq- do not meet each these Compensation IIL Exelusiv- uisites may are mot excluded and pursued ity and an in the Provision Intentional In- courts." jury Exception added). (emphasis 491 N.E.2d

Finally, National Can asserts that point The focal of the court's decision in under the Yankeetown was whether some untoward recovery limited to Jovanovich is event must causing be established as Compensation pur Indiana Workmen's Act (an accident) injury exclusivity provision, whether it suant to the Act's IC was suffi- or 22~-83-2-6, injury unexpectedly cient that an provides: resulted which activity from some in the scope course and "Exclusive remedies employment. rights Sec. 6. The and remedies argument Jovanovich's seeking to trans- granted employee subject to an to IC pose analysis the court's to force the con- through 22-8-2 22-8-6 IC on account of clusion that employee expects whenever an personal infury or death accident shall anticipates injury, or an he is outside the rights exclude all other and remedies of act is injuries unwarranted. Such personal employee, representa such "by nevertheless arise accident" within the tives, kin, dependents or next of at com meaning of the statute. otherwise, mon law on account of such death, except for remedies On the other hand plain both the lan- available under IC 16-7-8.6." guage compensation of the statute and the opinion recognize in Yankeetown that if an agree Both National Can employer intentionally injures employee, an injuries during that Jovanovieh's arose apply. the Act does not employment out of his with National Can. parties' dispute, is whether policy Public reinforces this conclusion injuries "by Jovanovich's were accident" as since it perversion would be a total required by IC 22-3-2-6 set forth above purposes permit humanitarian of the Act hence, Compen- our within Workmen's an to use the Act as a shelter sation Act. liability for an intentional tort. support In of its claim that Jovanovich's Thus, jurisdiction the trial court had injuries "by were accident" National Can entertain alleging Jovanovich's claim in- relies Evans Yankeetown Dock tentional tort. (1986), Ind., Corp. 491 N.E.2d 969. In Specific Requirement IV. Intent Supreme

Yankeetown Court held that the statutory "by term accident" refers to While we find that Jovanovieh's unexpected injury rather than an unex- beyond claim is scope of the Work pected causing injury. event The court in Act, Compensation men's it nevertheless Yankeetown stated: fail, law, as a matter of for failure to rights "IC 22-3-2-6 excludes all satisfy specific requirement intent nec employee against

remedies of an his em- essary prevail on a claim of intentional ployer personal injury or death employer misconduct operation outside the if following statutory jurisdictional three proven statute. While it must be prerequisites are supervisory met: that the employee acted as the seq. IC 16-7-3.6-1 et deals with tion to victims of violent crimes. compensa

1233 ego alter of corporation the or acted only to be a foreseeable risk which a direct orders from in those of control the avoid, reasonable man would and be- corporation,13 proven it must also be that certainty." comes a employer the had an actual intent to cause Cunningham, supra 1190; Blade, at su- harm complained the of.14 As the courts in 1088; pro Tribbett, at supra at 383 Cunningham v. Aluminum Co. Amer (citations omitted). ica, (1981),Ind.App., 1186, Inc. 417 N.E.2d There is a causative factor involved that (1938), Blade v. Anaconda Aluminum Co. is closely equated with analysis. this intent Ind.App., 452 N.E.2d 1036 and Tribbett v. Assuming actor, that the Tay Industries, (1984), Mor here the employ- Ind.App., Inc. er, subjectively harbors an noted, actual intent 471 N.E.2d 382 Dean Prosser distin injury occur, that an the nexus guished requisite between the specific the intent under actor's conduct and the lying resultant negligence: intentional tort and must be one of substantial certainty for an knowledge mere apprecia- "[The intentional tort to occur. frequently Most risk, tion of a short of substantial cer- us, contexts such as the one before tainty, equivalent is not the of intent. nexus is destroyed because the "victim" is The defendant who acts the belief of left with the choice of whether to engage in consciousness causing that he is ap- the activity. hazardous may He preciable refuse to risk of harm to another may be dangerous environment, work the negligent, to lift great and if the risk is his heavy object, delivery make the a may conduct characterized as reckless high dark, crime area after etc. If wanton, he does but is not classed as an inten- wrong. engage assignment tional in the In such injured cases the distinc- and is consequence, tion between negligence may intent and he be entitled obvi- to recover ously is a degree. matter of Apparently compensation laws, worker's or for the line has by been drawn the courts at negligence common law recklessness point danger where the known ceases relationship where the governed is not by problem holding employer We see no remedy injury by employee for the or his Hable for expressly torts he directs or authorizes dependents against employer and insur- There, employees. his employer part quid ance carrier. quo pro This is of the personal acts culpability with such moral gains in which employees the sacrifices and fail, responsible. he must be held Courts how employers put are to some extent in bal- ever, explicitly distinguish those cases from ance, for, while the assumes a new incidents where the intentional tort is commit fault, liability without he is relieved of the by employer personally, ted not but a prospect large damage verdicta." supervisor. Although foreman or the foreman Larson, supra, 2A Section 65.11. In fault, personally it does not follow quid quo pro underlying Indiana's Workmen's culpability moral can be shifted to the stringent Act, we believe a stan Compensation employer by simple reliance on the doctrine of specific necessary dard of intent is to avoid the respondeat superior. It must be shown that the compensation being workmen's scheme "swal employer, acting pursuant actor was the one up" glut lowed of common law suits out employer's acting direct order or one as the side the Act. Such a result is inconsistent with 2A, ego Larson, corporation. alter A. legislative purpose underlying our work (1983), Compensation Law Workmen's Sec realize, compensation men's statute. We how 68.22; Note, Compensation tion Ex ever, jurisdictions that other are not in accord panding Exception the Intentional Tort to In regarding stringent specific how intent stan Wilful, Employer clude Wanton and Reckless Misconduct, dard should 890, be. See Serna v. Statewide Con 58 Notre Dame LRev. 899 12, (1967), 15, 504, (1983); (1950), tractors Laundry 6 Ariz. 429 P.2d Heskelt v. Fisher 508 Co. 28; (the Bryan stringent standard); Beazley 217 Ark. S.W.2d most v. Utah Int'l. v. Torto- (Utah 1975), 892; (La.1981), (the 533 P.2d Jablonski v. Multack rich 397 So.2d 475 intermediate Ill.App.3d 908, (1978), 20 Ill.Dec. adopting standard the definition of intent con 924; N.E.2d Daniels v. 55 N.C. (Second) tained in Restatement Swofford Torts Section App. 286S.E.2d582. (1965)); finally, Fraser Co. v. 8A Mercer Industrial Accident Comm'n. 40 Cal.2d recognized 14. As in Larson's treatise on work- 102, 120, (the 251 P.2d most liberal compensation men's law: standard). compensation "Once workmen's act has applicable become ... it affords the exclusive rights compensation. grant- If he refuses the The and remedies worker's herein subjected assignment may employee subject he to disci- ed to an to this act ... pline may litigate rights shall exclude all other and he be entitled to or and reme- procedure employee, grievance utilize a formal to con- dies of such ... at common discipline. he not any test But is entitled otherwise, law ... theory on the of intentional to recover tort. exclusivity This extends even to intentional There is a failure of intentional causation subject torts. On this we have said the actor's conduct and vie- between Appellants try to draw a distinction injury. tim's negli- between an intentional tort and a The record shows that both Jovanovich gent purposes tort. The distinction for advised, fully pur- and National Can were Compensation of our Act is letter, suant to Dr. Galea's that Jovanovich unnecessary. The distinction to be "regular job" according perform could his drawn is whether the tort or accident pro- pain. his tolerance for Jovanovich employ- arose out of and in the course of showing testimony duced at trial National case). (Citing (Emphasis sup- ment. animosity him Can's toward because of his plied). activities, mainly filing grievances. union Corp. Burkhart v. Electronics Wells provided also evi- substantial (1966), Ind.App. N.E.2d showing dence National Can's desire to Accord, v. North United States Steel quit job or to force force Jovanovich (C.A.7, 1974) 810; Corp. 495 F.2d Tribbett grievances, him to withdraw certain Industries, Tay Mor Ind. Inc. presented evidence both. Jovanovich even 332; App., 471 N.E.2d Blade v. Anaconda "heavy assignments that his work" came Ind.App., Aluminum Co. believe, high-level supervisors. We 1036; Cunningham N.E.2d v. Aluminum viewing the evidence in the most fa- America, (1981), Ind.App., 417 Co. Inc. Jovanovich, vorable to that this evidence as N.E.2d 1186. a matter of law fails to show either the Further, nothing I find in the Workmen's

necessary part intent on the of National Compensation authorizing Act suits Can or the direct nee- causative connection employee against based essary for an intentional tort. Hence we employer's intentional of the em- satisfy find that Jovanovich failed to ployee job, I while on the nor do find such requirements necessary successfully re- language in Evans v. Yankeetown Dock cover in action outside the Workmen's (1986), Ind., Corp. 491 N.E.2d as does Compensation Act. majority. apparent I believe it the trial judgment is reversed. jurisdiction court had no action, matter of this and the trial court STATON, J., concurs. by overruling erred National Can's motion CONOVER, P.J., concurs and files to dismiss. While this result seem separate opinion. harsh, our clear mandate is to follow the Only Legislature law. can make the CONOVER, Presiding Judge, concurring. change necessary Jovanovich sees as agree majority While I Jovano- with nature. cases this recover, vich should I do differ- so for Thus, ent reasons. I would remand this cause with Jovanovich had no common judgment directions to set aside the herein injuries law cause of action for the he prejudice. and dismiss this action with received, Corporation even if National Can injuries. intended he should suffer such remedy provided by

His exclusive was Compensation

Indiana Workmen's Act to

the exclusion of all other of action. causes says part

IND. 22-8-2-6 CODE

Case Details

Case Name: National Can Corp. v. Jovanovich

Court Name: Indiana Court of Appeals

Date Published: Feb 18, 1987

Citation: 503 N.E.2d 1224

Docket Number: 3-885A212

Court Abbreviation: Ind. Ct. App.