Wior v. Anchor Industries, Inc.

"by coverage injuries occurring accident" exclusivity therefore is barred

and Compensation Act.

provision of the Worker's above, we reverse the

For reasons stated entry summary judgment and

trial court's with

remand cause to the trial court this subject

instructions to dismiss for lack jurisdiction.2

matter REMANDED.

REVERSED and RILEY, JJ., and concur.

RUCKER WIOR, Appellant-Plaintiff,

Glenn

v. INDUSTRIES, INC.,

ANCHOR

Appellee-Defendant.

No. 82A01-9406-CV-203. Indiana, Appeals

Court of

First District.

Oct. 1994.

Rehearing Denied Jan. attorney disagree argument the award fees and costs for its with DSM's 2. Because we having defend this action in the trial court frivolous, claim was unreason- the Owenses' able, appeal. groundless, reject request we DSM's as a mat- judgment Yoeum, is entitled Yocum, Ev- the movant Yocum and Joseph A. ter of law. ansville, appellant. Mary Franke, Schiff, Lee Michael

Wm. Wior, most favorable Evansville, Kahn, nonmovant, in the Dees, that he has worked Kahn, & shows Donovan industry since needle trades sewing and appellee. family in a busi- first worked childhood. He Judge. ROBERTSON, him- ness, employers, then for for other then consulting eventually operated a self. He summary appeals from Wior ilenn Indianapolis. in business Industries, Inc., Anchor judgment granted to a manufacturer is contract, Anchor Industries un- in lawsuit for breach Wior's for the synthetic products canvas and custom dismissal, wrongful discharge. Wior just and industry. pro- to a Due recreational outdoor following issues: presents the Supervi- company, a Plant within the motion in commit error I. the court below Did plant a in available at position became sor (hereaf- Industries, Inc.'s Anchor granting Evansville; Industries adver- Anchor and "Anchor"[) judg- summary motion for ] ter Indianapolis in news- position an tised for the (hereafter against Wior ment Glenn ad," a "blind The advertisement was paper. "Wior"). employer is not prospective which means the court below's statement II. Did men- did not The advertisement identified. facts that undisputed material facts omit in Evans- position located that tion the merits. require a trial on respond- ville, only "Middlewest." Wior wrongful dis- have a III. Did Wior a resume and advertisement with ed to the per- of contract of charge claim for breach cover letter. employment outside the statute manent Wior about contacted Anchor frauds. meeting, At a later prospective employment. a viable claim for Wior have IV. Did he cur- Industries that Anchor Wior advised discharge upon his refusal based through rently had having a employee an to terminate that, per- without consulting and his business compensation claim. worker's Industries, with Anchor manent findings relat- the court below's Did V. and his not move himself family he would handbook cor- ing to Anchor's In- Indianapolis to Evansville. from any rectly viable issue. state they were look- dustries informed Wior a viable claim for Wior have IV. Did they have to train to did not ing for someone in- misrepresentation or negligent either indicated Anchor Industries position. fill the misrepresentation. tentional permanence" "position of position was a temporary "that it was not specified and part. reverse in part in and We affirm "until to be Employment was employment." summary judgment, review of On years." retirement;" plus ... 20 "[it trial in the stands shoes this Court whether asked Wior Anchor Industries When v. Barnett F. Trust court. Maurice Jones up to willing give his business he would be 1301, (1994), Ind.App., Banks answered, Industries, Wior work for liberally all construe This Court must 1303. future, a to a sound "with a commitment evidentiary matter designated favor talking 20 employment-you were long-term against the resolve doubt nonmovant and opportunity here be plus years-a appears that Even if it movant. Id. Anchor, he yes." stated that Wior at V.P. trial, summary at will not succeed nonmovant but that agree come to Evansville would inappropriate where material judgment job. The com- to have a he had undisputed lead facts conflict or where facts hired him. pany agreed and Summary conflicting inferences. An- August began work designated if the appropriate judgment job him that his informed chor Industries there is no evidentiary shows that matter fact after 90 any material be evaluated performance would issue as to genuine days subsequent job writing, shall signed by be party performance produc- evaluation therewith, revealed that charged to be by per- or some departments tion several by would not son lawfully be thereunto him authorized affected Wior's absence and that Wior lacked "a go sense of what direction to Ind.Code 32-2-1-1. job." learn the On or about November affirmatively It must appear by the discharged Wior be- contract, terms of a stipulations that its are just cause he "was fitting not in at Anchor." performed not to year within a after it is looking Anchor had been for someone it did made, in bring order to provi it within the not have just to train and Wior "was sions of the statute of frauds. working Hinkle v. out." (1885), 84, Fisher 104 Ind. 3 N.E. 624. The I, II, always & III Statute of Frauds has been held to apply only which, by express contracts the Wior claims he a has valid stipulations parties, of the were not to be discharge claim for breach of contract of performed year, within a and not to those permanent employment and asserts that his might not, which might or upon contingen a oral contract remained outside the Statute of cy, performed be year. within a Indiana & Frauds. He claims he could not be dis (1864), I.C.R. Co. v. ScearCe 23 Ind. 223 charged without cause. Anchor Indus (quoting Wiggins (1855), v. Keiser 6 Ind. tries contrary positions. takes the The trial 252). year The one clause of the Statute of court stated that Wior's claim: Frauds application has no to contracts which supported by is not undisputed, the mate- capable are being performed of within one rial in facts the record. No enforceable thereof,. year of making the Kiyose v. Trust employment oral contract can be found to (1975), ees University Indiana 166 Ind. of exist between Wior and Anchor because of 34, 40-41, App. 886, 333 N.E.2d (empha 889 a comply failure to requirement with the of original). sis In a contract of lifetime em ("Statute") Indiana's Statute of Frauds ployment, death contingency is the which and Wior cannot avoid the Statute's re- agreement renders the fully performed. Id. quirement any theory. under Because contingency the is one may which not, however, Wior need supported have his time, occur any at such a by contract its claim undisputed .with facts in the record. capable terms is being performed of within Summary judgment inappropriate is where year one and is therefore not within the facts, although undisputed, lead conflicting (emphasis Statute. original) (citing 2 inferences. The trial court should have lib- Corbin, (1950). Contracts See. 446 erally construed all designated evidentiary matter in favor of Wior and should have Under the evidence most favorable to any resolved against doubt Indus- Wior, the terms of his contract tries. with Anchor contains no provision affirmative parties agree applicable that the por- stipulations that its performed were not to be tion of Indiana's version of the Statute of year within a after it had been made. states, Frauds pertinent part: Whether the was per at-will or manent,

No might action shall the contract brought might be or not the following performed have been year. cases: within a position takes the the em # ik ployment at-will; but, under Anchor In Upon any Fifth. agreement that is not to approach, dustries' could (1) performed year one within from the and, fact, have did end expira before the making thereof ... tion year. of one To contrary, # x x G G claims that contemplated contract "per promise, Unless the contract agreement or so, manent" If then his death upon which such action brought, shall be within year one agreement ais contin- or some thereof, memorandum or note geney which would have fully rendered it im arises, express or may be either ployee under either year. within a performed City Kirmse v. terms, or written. contract, plied, verbal by its theory, legal Ind.App. 51 N.E.2d 883 year. Gary one performed within being capable of 10). not, may how § One (citing 89 C.J. does Frauds therefore The Statute ever, another to a contract unilaterally bind oral action on the prevent Wior's apply to meeting minds is a employment; contract. employment rela necessary to establish that Wior contends Anchor Industries Indiana v. Review Board tionship. Moore con "independent produce evidence of must (1980), Ind. Security Division Employment perma a contract of to establish sideration" is a Mutual assent N.E.2d 325. App., 406 not, and, he did employment; because nent of a contract. the creation prerequisite "good have had need not (1992), Ind.App., 601 v. Blanchard Jackson contrary, discharge. To the his cause" for parties The intention of N.E.2d 411. consideration rule of additional general . trier to be determined factual matter actually rule of misconception. -It is is a cireumstances. Conti all of the of fact from parties' if applied to be convenience (1985), Ind. v. Followell nental Grain Co. nature of regarding intent denied. trans. App., 475 parties' If the not clear. support is sufficient no clearly there is manifested intention is Industries and Anchor that Wior conclusion consideration. for "additional" requirement per- exchange for bargained-for engaged in a Indiana Public Service Co. Romack v. of that Wior therefore employment and manent 768, (quot 777 (1986), N.E.2d Ind.App., 499 If work until retirement. committed to was (1982), Ins. Co. ing Martin v. Federal Life believed, then of the events Wior's version 148, 143, 596, 440 Ill.Dec. Ill.App.3d 65 109 per- regard to the intention with parties' the part, 998, 1003), adopted in dissent N.E.2d clearly employment the nature of manent also, v. 1024, Jarboe 1025. See N.E.2d 511 requirement of there is no manifested and (1993), Newspapers Community Landmark independent consideration. (oral 1291, prom 1295 Ind.App., 625 N.E.2d un which are regard employment to in ises required to have if were Even Wior may Frauds of under Statute enforceable independent consider of evidence produced promissory under enforceable nonetheless be however, ation, most favorable the evidence York-Division, Borg-War Eby estoppel); v. of such inde the existence supports to Wior 623, 627 (1983), N.E.2d Ind.App., 455 ner Pad In Table Ohio pendent consideration. sub estoppel as a consideration (promissory (1981), Indiana, Hogan Ind. Inc. v. Co. of case); Pepsi-Cola employment in stitute employee 144, while the 424 N.E.2d App., (1982), Ind. Inc. v. Woods Bottlers, General had (same). N.E.2d 698 App., 440 until she was to work a desire indicated rule, employment general As a that she indicated "ready" retire and to will of at the are terminable relationships sixty-two, un- age at "expected" to retire Co., Inc. v. Equipment party. W & W either not committed she was the evidence der Ind.App., 568 Mink either. do can tenure of service If the denied. trams. There, employee had mani- the Id. at 145. from the terms not be determined finding a in subjective interest fested may contract, at will and is one such contract through the carry her steady position of any at the election at time be terminated ready to until she was last her years and to at 697. 440 N.E.2d Pepsi-Cola, party. either however, "would employee, The retire. Id. perma contract for are free to parties things in order to do the same have had permanency long as employment so nent at 146. Id. job on basis." accept the terms from determined can be a matter of as was insufficient contract. than a contract more to establish law will of either at the terminable employment employment, out The contract favorably to the most Id. Viewed party. and em- employer relation which the 1280 employee, the evidence merely established mack stands for the proposi unremarkable employee sought job and, had independent tions that consideration is con it, accept order given up she had her sulted parties' when the intent regarding the existing job secretarial and had been re- permanent employment nature of is not clear quired to move her residence. Id. at 147. independent and that may consideration es Such conduct did not constitute such inde- agreement tablish the between parties pendent consideration necessary to convert was more than a employment contract of her to one requiring good cause terminable at the will party. of either The for termination. opinion itself states that the case follows the The Ohio Table court identified in two Table, line of cases noted in Ohio id. at jurisdictions stances from other sup which in one of which employee, like the em port independent existence of consider ployee Romack, had been induced to sur ation. One of these instances was where the existing permanent render employment when employee had been induced to surrender ex employer was employee aware the was isting "permanent" employment and the em unwilling to do so except permanent em ployer was made aware that ployment. Id. at 778. unwilling to do except so in return for present case also follows the line of permanent employment. Table, Ohio cases Here, noted in Okio Table the evi- (citing N.E.2d at 146 Collins v. Parsons Col (Iowa lege 1973), dence most 594). favorable to Wior support 203 N.W.2d would This a determination that example independent in- consideration estab

lishes, duced Wior to existing permanent surrender the face of a situation where the parties' when intent regarding Industries was na aware ture of that Wior clear, unwilling is not do so ex- agreement cept in return parties between the is more than Romack, an indefinite contract of See termin N.E.2d at 777-778. The able at will. cireumstances, fact, supports evidence pro the view that Wior insisted proof vide of a meeting about, upon permanent minds and that An- to, and mutual permanent assent employ chor agreed Industries and hired him. Such ment. incompatible actions are with employment at the will parties and "indepen- establish Anchor places Industries emphasis much dent consideration" permanent Romack, employ- on 499 N.E.2d adopted dissent ment. part, 511 N.E.2d 1025. Anchor In- proceeds dustries through the list of "distin-

guishing provided factors" Industries there contends that and then previous attempts Wior's to distinguish "perma Wior's was not situation from nent" that of the because he employee was a self-employed, in Romack. inde The "dis- pendent tinguishing 1) consultant factors" and had doing poor include that: been an em- ployee ly. uniquely qualified 2) merely This is an position; for the invitation to view the who had employment" "lifetime evidence and the with inferences pre- favorably most 3) employer; vious to Anchor by position. Industries' recruited An agree new employer 4) for a ment unique position; steady furnish permanent and advised em the new employer ployment imposes he would leave his duty old master the position only job if employ the new long offered the servant as same as the servant permanency able, employment, ready, advancement, willing perform and such ser benefits; 5) and upon vices as basis may was told master have for him to by employer new perform. he "perma- would have Pennsylvania See Co. v. Dolan nent employment" 6 Ind.App. if he would 32 N.E. 802. An come to work with the employer. new Romack, assured permanency includes N.E.2d at Romack, 776-777. Our reading of the notion of an assured non-arbitrary firing. however, does not lead us Romack, to the conclusion See 499 N.E.2d at 778. The trier of that the "distinguishing factors" are a strict fact safely could infer that Wior would have recipe "independent consideration." employed Ro- himself long able, as as he was statute Indiana not identified Wior has that he perform and willing to ready, and right or of a the existence arbitrarily. declares which himself have fired would As a of his case. to the facts duty applicable un- mean does not "Permanent" result, the existence of not shown he has permanent even ceasing employment; wrongful dis- in favor of his good public policy cause may discharged with be correctly de- sup- The trial court charge claim. death. or be cheated was entitled self-employment, termined that that Wior's the view ports this issue. consultant, of law on "perma- judgment as matter independent an as require An- it could sense that nent" good established to have

chor V discharge. cause for Wior's that, inasmuch court determined The trial employee, the been an at-will as Wior had did not of Frauds the Statute Industries' not review court need be the oral contract action on bar Wior's decid- This Court has employee handbook. one performed within it not to be cause was however, ed, jury could determine Further, pro Wior agreement. year of the could employee who permanent was a Wior consideration" "independent sufficient vided good showing of only upon a discharged Finally, a employment. permanent for the may be the handbook The contents of cause. about fact exists of material genuine issue in the determination considered a contract parties entered into whether cause. so, If employment. for Wior's required Anchor Indus the cireumstances VI discharge good cause to had tries to have claims for that he has viable asserts Wior im therefore Summary judgment was Wior. intentional misrepresentation negligent proper. court deter- The trial

misrepresentation. to show an en- had failed mined that Wior IV upon which employment contract foreeable erro the trial court also claims trier of fact fraud. The his claim of base judgment on his summary neously granted however, conclude, parties en- that the could He asserts discharge claim. contract for Wior's into an enforceable tered shows to his claim most favorable evidence Therefore, the trial having discharged him for erroneous. is court's determination employee with a discharge an to refused that Wior maintains claim. compensation worker's the to avoid as a basis may not use fraud writ- and thus render of Frauds Statute employer policy prevents an Public virtually meaningless. ing requirement As having ex employee for discharging an from however, above, the contract determined right or for statutorily conferred a ercised Frauds because of the Statute not violative duty. statutorily imposed a having fulfilled year a within performed was not it Freight Remington v. See McClanahan Further, pre- Wior having been made. after (1988), Ind., This N.E.2d 390. 517 Lines "independent evidence of sented sufficient discharge retaliatory rejected has Court Therefore, Anchor Indus- consideration." violation upon generalized a predicated cases an entitlement not established tries has de a statute which policy absent public this issue. law on a matter of judgment as public policy. See of the the existence clares Brass, (1990), Ind.App., 553 Inc. v. Scott part Call and reversed affirmed Judgment Our n. trons. denied. 1229 N.E.2d part. consistently that broad decided have courts seope of the existence statements RUCKER, J., concurs. legisla left to the should be public policies BAKER, J., separate with Away, dissents id.; Inc. v. Morgan Drive ture. See Ind., opinion.

Brant BAKER, Judge, dissenting. compensation worker's against claim company. Although recognizes Indiana law I majority's dissent from opinion employee's cause of wrongful action for presented Wior has an oral contract outside discharge, yet it grant has supervisor the Statute of Frauds. It is true that the remedy. the same I resigned am to concur Statute of application Frauds has no to con- only this issue because our courts have capable tracts which are of being performed judicial shown restraint and refused to tread year within one making thereof. How- area, into this public policy even when ever, the evidence most favorable to Wior clearly violated, explicitly unless a statute support does not an inference that par- declares the existence public policy. agreement ties entered an per- could be year. formed within one Although Wior conclusion, In I majority dissent from the characterized his claims as one for breach of reversing summary decision judgment on the permanent contract for employment, per- breach of contract claim. On the related manent equate does not with negligent claims for misrepresentation lifetime alleged under cir- misrepresentation, intentional I would affirm cumstances. the trial court's determination that Wior presented his understanding per- of a failed to show an enforceable contract be- position manent with Anchor Industries as: thus, parties; tween the his claims likewise "With a future, commitment to a sound fail. I concur with the affirmance of sum- long-term employment-you talking were 20 mary judgment on discharge plus years-a us [sic] opportunity here claim. Anchor, to be a yes." V.P. at Record at 164. period He believed his

"until retirement." R. at 164. consid-

ering Wior's understanding

employment, it equate does not with lifetime referred case law. The upon by

cases relied majority have found

death to be a contingency agreements to the However, therein. death was not contem- Marriage In re the SPOOR, of Reba Ann plated as contingency here. To the con- Lyon, Appellant, Reba Ann n/k/a trary, retirement estimated twenty to be Petitioner, years, death, was the contingency of the alleged agreement employ- v. ment. upon by cases relied majority SPOOR, William Appellee-Respondent. applicable. are not using Even new math principles, one reasonably cannot expect No. 45A03-9310-CV-00362. years work 20 until retirement and simulta- neously expect perform the contract within Appeals Indiana, Court of year. The contract as contemplated by Third District. Wior is within seope of the Statute of written, Frauds. Since it was not Oct. Wior's fail, claim must and I would affirm entry summary judgment in favor of Anchor

Industries on this issue.

I also my note reluctance to concur with

the decision affirming summary judgment for

Anchor Industries on Wior's dis-

charge claim. It cannot be pub- denied that policy

lic transgressed supervisor when a

can be discharged legal without recourse for

refusing to fire an who filed

Case Details

Case Name: Wior v. Anchor Industries, Inc.

Court Name: Indiana Court of Appeals

Date Published: Oct 25, 1994

Citation: 641 N.E.2d 1275

Docket Number: 82A01-9406-CV-203

Court Abbreviation: Ind. Ct. App.