Ice, Miller, Donadio & Ryan
Attorney for Appellant
American Laboratories, Inc.
Richard R. McDowell
Hill, Fulwider, McDowell, Funk & Matthews
Attorney for Appellant
Agritek Bio Ingredients, Inc.
Dale W. Eikenberry
Attorneys for Appellant
Henwood Feed Additives
James M. Hinshaw
David O. Tittle
Bingham, Summers, Welsh & Spilman
Attorney for Appellee
Richard J. Dick
Mitchell, Hurst, Jacobs & Dick
Appellee (Plaintiff below).
AGRITEK BIO INGREDIENTS, INC.,
Appellant (Defendants below),
Appellee (Plaintiff below).
) Supreme Court No.
) Court of Appeals Consolidated
) Cause No.
APPEAL FROM THE MARION COUNTY SUPERIOR COURT
The Honorable Gerald S. Zore, Judge
Cause No. 49D07-9403-CT-0301
Mullens initially wore paper masks to protect herself from the dust, but found
them to be inadequate and began to use a respirator. Three to
four months into her job, Mullens e
xperienced a persistent cough that would diminish
after she went home from work and on weekends. In March, 1991,
Mullens sought emergency room treatment for bronchitis, a condition for which she had
received medical care prior to her employment with Grow Mix. The bronchitis
went away, but the cough continued.
On February 4, 1992, Mullens experienced severe coughing and shortness of breath at
work. She went to the emergency room again, was told that she
had bronchitis, and received a prescription for antibiotics. This time the antibiotics
did not work, so Mullens scheduled an appointment with her general physician, Dr.
Kenneth Watkins. On March 17, 1992, Dr. Watkins diagnosed Mullens with bronchitis.
Dr. Watkins told Mullens that it was possible that her coughing and
breathing problems were work-related, but that there were several other potential causes.
If Mullenss problems were work-related, the doctor was unsure whether the problems were
caused or merely aggravated by the conditions at work. On March 23,
1992, Dr. Watkins advised Mullens not to work for a minimum of two
weeks and referred her to a pulmonary specialist for follow-up tests and to
further investigate the source of her ailments.
On March 26, 1992, the specialist, Dr. Reihman, told Mullens that it was
possible that work-related chemical exposure only was triggering an injury caused by something
else. Dr. Dana Reihman advised Mullens to undergo some tests. On
June 11, 1992, Dr. Reihman made the following observation: The etiology of
Mrs. Mullens[s] chronic airflow obstruc
tion and its relationship to her work environment remains
unclear. In April, 1992, when Mullens was working with Dr. Reihman to
identify the cause of her ailments, Degussa Corporation
representatives visited her at work
and told her that their product could not be causing her medical problems.
Dr. Reihman was ultimately unable to determine the cause of Mullenss problems and referred her to Dr. Joe Garcia, a pulmonary specialist, for further evaluation. At Mullenss first visit with Dr. Garcia in June, 1992, Dr. Garcia repeated Drs. Watkinss and Reihmans assessments, telling Mullens that chemical exposure at work might be related to her ailments but that other causes were possible. Dr. Garcia treated Mullens and attempted to diagnose her problems from June, 1992 until March, 1994, when Mullens and her attorney received the first unequivocal statement from any doctor that her lung disease was caused by exposure to chemicals consistent with those used at Grow Mix.
On March 25, 1994, Mullens filed a complaint against Degussa Corporation, Pigment Division, North America Silica Company, P.Q. Corporation, and Agritek Bio Ingredients, Inc. (collectively, Defendants), alleging negligence in the sale of, and her exposure to, products that caused lung damage. See footnote Defendants joined in a motion for summary judgment arguing that Mullens did not assert her claims within the two-year statute of limitations for products liability actions. Defendant Agritek also filed a motion to dismiss Mullenss tort claims against it, asserting that because Agritek was her employer, the Indiana Workers Compensation Act provided her exclusive remedies for work-related injuries on the job. On May 1, 1997, the trial court denied Defendants motion for summary judgment. On May 8, 1997, the trial court denied Agriteks motion to dismiss. Defendants appealed to the Court of Appeals. The Court of Appeals concluded that Mullens failed to file her claims within the statute of limitations period and reversed the trial court, thereby granting Defendants motion for summary judgment and rendering moot Agriteks separate appeal on their motion to dismiss. Degussa Corp. v. Mullens, 695 N.E.2d 172, 178 (Ind. Ct. App. 1998).
Additional facts will be provided as needed.
While the present case is one based on a products liability claim, case
law regarding medical malpractice claims is instructive because medical and diagnostic issues are
common between the two actions, the statute of limitations for both claims is
two years, and discovery is sometimes at issue in determining whether the respective
statutes of limitation have been triggered. The question of when a plaintiff
alleging medical malpractice discovered facts which, in the exercise of reasonable diligence, should
lead to the discovery of the medical ma
lpractice and resulting injury, is often
a question of fact. Van Dusen v. Stotts, 712 N.E.2d 491, 499
We agree with the Court of Appealss assertion in the present case that
a plaintiff need not know with certainty that malpractice caused his injury, to
trigger the running of the stat
utory time period. See Degussa Corp., 695
N.E.2d at 178. Once a plaintiffs doctor expressly informs the plaintiff that
there is a reasonable possibility, if not a probability that an injury was
caused by an act or product, then the statute of limitations begins to
run and the issue may become a matter of law. Van Dusen,
712 N.E.2d at 499. When a doctor so informs a potential plaintiff,
the plaintiff is deemed to have sufficient information such that he or she
should promptly seek additional medical or legal advice needed to resolve any remaining
uncertainty or confusion regarding the cause of his or her injuries, and therefore
be able to file a claim within two years of being informed of
a reasonably possible or likely cause. Id. (citing Degussa, 695 N.E.2d at
178 (quoting in turn United States v. Kubrick, 444 U.S. 111, 122-23 (1979))).
An unexplained failure to seek additional information should not excuse a plaintiffs
failure to file a claim within the statutorily defined time period. See
Although [e]vents short of a doctors diagnosis can provide a plaintiff with evidence of a reasonable possibility that anothers product caused his or her injuries, a plaintiffs mere suspicion or speculation that anothers product caused the injuries is insufficient to trigger the statute. Evenson v. Osmose Wood Preserving Co. of Am., 899 F.2d 701, 705 (7th Cir. 1990) (applying Indiana law). While Mullens might have suspected that a chemical from work was the cause of her problems when she first visited Dr. Watkins on March 17, 1992, the best that Dr. Watkins could do to respond to her concerns was to emphasize that there were a range of potential causes. See id. (Although [plaintiff] himself suspected at this time [(the time of his visit to the doctor and request for CCA chemical tests)] that CCA was the culprit, his attempts to determine the actual cause were rebuffed by his doctors in whom he could place some reliance. What [plaintiff] had was not some evidence of a reasonable possibility that CCA was the cause but only a laymans mere suspicion to this effect.)
Circumstances where a physician tells a patient that a product or act is
one of several possible causes of an injury present a complex of factually
and legally relevant questions about how the physician conveyed the information to the
patient and what emphasis the ph
ysician placed on the potentially tortious cause over
other causes. Nevertheless, Mullens was responsible and diligently followed her physicians recommendations,
undergoing further tests and attempting to gather information regarding the cause of her
medical problem and its relationship to past respiratory ailments before initiating a lawsuit
against Defendants. Mullens attempted to gather information that would transform speculation into
a causal link that was reasonably possible or probable before she filed suit
On March 17, 1992, Mullens merely suspected that work products had something to
do with her illness and Dr. Watkins said nothing to confirm, deny, or
even strengthen her suspicions. In light of the ongoing medical consultation that
Mullens undertook between March 17, 1992, and March 25, 1994, the date Mullens
filed her complaint, we do not b
elieve that the statute was triggered as
late as March, 1994, as argued by Mullens. However, we also see
nothing in the record to indicate that on March 17, 1992 (or even
in the following eight days that would have been outside of the statutory
period), Mullenss physicians had yet informed her that there was a reasonable possibility,
if not probability, that her ailments were caused by work chemicals.
Indianas Workers Compensation Act provides the exclusive remedy for employees who experience personal
injury arising out of and in the course of employment. Ind. Code
§§ 22-3-2-2(a) & 22-3-2-6. Employee means every person, including a minor,
in the service of another, under any contract of hire or apprenticeship, written
or implied, except one whose employment is both casual and not in the
usual course of the trade, business, occupation, or profession of the employer.
Ind. Code § 22-3-6-1(b). Therefore, to be excluded from coverage under the
Workers Compensation Act, the employee must be one whose employment is not only
casual but also not in the usual course of the employers business.
Hale v. Kemp, 579 N.E.2d 63, 66 (Ind. 1991). In addition, it
is possible for an employee to be in the joint service of two
(2) or more employers, Ind. Code § 22-3-3-31, and an employees remedies remain
exclusive under the Workers Compensation Act even in such dual employer situations.
To determine whether an employer-employee relationship exists, thus bringing an e
mployee under the
Workers Compensation scheme because his or her employment is not casual and is
in the usual course of the employers business, we examine seven factors:
(1) the right to discharge, (2) the mode of payment, (3) the supplying
of tools or equipment, (4) the belief of the parties in the existence
of an employer-employee relationship, (5) the control over the means used in the
results reached, (6) the length of employment, and (7) the establishment of work
boundaries. GKN Co., slip op. at 7-8 (citing Hale, 579 N.E.2d at
67). These factors are weighed against each other as part of a
balancing test in which the right of the employer to exercise control over
the employee is given the greatest weight. Id.
Because Agritek challenges the trial courts jurisdiction, it bears the burden of proving
that Mullenss claim falls within the scope of the Workers Compensation Act.
Id. at 11. Mullens and Agritek stipulated to the trial courts use
of deposition excerpts and other materials for ruling on Agriteks motion to dismiss.
We analyze the seven factors in light of the evidence presented in
these materials and Agriteks burden of proof as follows.
Right to discharge. Mullens was hired following Martins discharge of a former
employee because Agritek representative Jeannie Barnes was dissatisfied with the former employees work
and requested that Martin discharge him. Martin acknowledged in his deposition that
Agritek had the power to determine whether Martin should terminate an employee working
on the Agritek project and that Martin would most likely carry out any
such request made by Agritek, as he had done with Mullenss predecessor.
The Court of Appeals recognized a similar indirect right of discharge in U.S.
Metalsource Corp. v. Simpson, 649 N.E.2d 682, 685 (Ind. Ct. App. 1995) (finding
that while one employer in a dual employer situation did not have the
direct power to terminate employment, it could, and did, terminate employment by instructing
the other employer that it no longer wanted a specific employee to do
work for them). While Martin, as head of Grow-Mix and a subcontractor
with Agritek, would execute an employee termination decision, Agritek retained and exercised an
indirect right to discharge.
Mode of payment. Mullenss regular paycheck came from Gro-Tec, but Agritek wrote
the check for Mullenss 1991 Christmas bonus, suggesting dual responsibility for Mullenss compensation.
Supplying of tools or equipment. Under the agreement between Martin and Agritek,
Martin supplied the building or mixing location through a lease agreement and Agritek
supplied all other equipment, raw materials, formulas, and instructions with regard to the
production process to persons Martin hired to perform the work. Agritek supplied,
and Mullens wore, uniforms that had Agriteks name on an attached patch.
In addition, Agritek provided masks and respirators for Mullens to use and reimbursed
Martin if he had to reimburse Mullens for her private purchases of masks
and respirators. Agritek supplied the majority of tools and equipment necessary to
Belief of the parties in the existence of an employer-employee relationship. The
Court of Appeals has held that the belief of the parties in the
existence of an employer-employee relationship can often best be determined by the terms
of the contract. Nowicki v. Cannon Steel Erection Co., 711 N.E.2d 536,
541 (Ind. Ct. App. 1999), transfer denied. However, the Agritek-Martin contract is
relatively brief and focuses on the lease of buildings, stock responsibilities, price paid
for products, and designation of responsibility for equipment repair. Nevertheless, by the
nature of their actions and shared responsibilities, Martin and Agritek, as represented by
Barnes, operated such that each believed the other to have some authority over
Mullens and the work she performed. Nothing in the record suggests that
Martin took issue with Barness daily guidance and supervision of Mullenss work, nor
does Agritek deny Martins status as Mullenss co-employer. As an example of
their belief that they co-employed Mullens, Barnes and Martin jointly conducted Mullenss performance
While Mullens averred that she considered herself to be a Gro-Tec employee, her
elief does not defeat the existence of [an] employer-employee relationship in light of
[her] long-term acquiescence to conditions evidencing the relationship. U.S. Metalsource, 649 N.E.2d
at 686. The conditions of Mullenss employment outlined herein and the
intensive role Barnes played in her daily routine suggest the existence of an
employment relationship between Agritek and Mullens and a co-employer relationship between Martin and
Agritek that exceeds the bounds of a simple, hands-off, product supply subcontract.
Control over the means used in the results reached. From the time
Mullens began her work at the Modoc facility, she had daily contact with
Barnes at Agriteks offices in Ontario, Canada. The contact consisted of at
least five to seven phone calls per day and involved orders from Barnes
regarding each days work such as products to be produced, the mixing formula
Mullens was to use, customer names and shipping instructions for each product, and
the order of priority in which Mullens was to mix and ship the
products. In fact, Mullens had very little, if any, daily contact with
Martin, although Martin generally determined Mullenss rate of pay, hours worked, and leave
time. Barnes would occasionally request Mullens to work overtime, which she did.
Mullens also had regular written exchanges with Barnes and would sign matters
and prepare documents on behalf of Agritek, using her name in conjunction with
Agriteks. On occasion, Mullens would deal directly with Agritek customers. For
decisions regarding the means and results of Mullenss tasks, Barnes functioned as Mullenss
daily supervisor and employer.
Length of employment. Martin hired Mullens for the specific purpose of carrying
out the provisions of his contract with Agritek, and Barnes was intensely involved
in directing Mullenss daily routine for her entire 22month tenure working to produce
animal feed under the Martin-Agritek contract. Agritek determined the length of Mullenss
employment to the extent that she was hired to produce animal feed for
them, Barnes made decisions regarding whether Mullens would work overtime, and Agritek held
an indirect right of discharge as concluded supra.
Establishment of work boundaries. Our case law indicates that this factor primarily implicates spatial boundaries, but might also encompass temporal and other boundary issues as well. See Nowicki, 711 N.E.2d at 543-44. To the extent that this factor implicates other types of boundaries, we have addressed those issues under the factors examined supra and have determined that they favor the existence of an employment relationship between Agritek and Mullens. With respect to spatial boundaries, we find that Martin and Agritek determined together through the terms and conditions of the agreement they signed in December, 1989 the location of Mullenss work to be the Modoc, Indiana facility.
Thus, Chief Justice Shepard and I conclude that all seven factors indicate the existence of an employer-employee relationship between Mullens and Agritek. We believe that Agritek met its burden of demonstrating an employer-employee relationship. Indeed, there is no theory supported by the evidence in the record that supports the trial courts judgment. And, as demonstrated by the discussion under the captions Right to Discharge and Control over the means used in the results reached, the factor weighted most heavilyright to exercise control over the employeeclearly indicates the existence of an employer-employee relationship between Mullens and Agritek. Under the circumstances of this case, the fact that Mullens also worked for Grow-Mix is inconsequential. Where two employers so associate themselves that both are in direct control of an employee, and the employee is made accountable to both employers, we consider the employee to have two employers. See Walters v. Modern Aluminum, 699 N.E.2d 671, 673 (Ind. Ct. App. 1998) (quoting U.S. Metalsource, 649 N.E.2d at 685 (quoting in turn Jackson Trucking Co. v. Interstate Motor Freight Sys., 122 Ind. App. 546, 557, 104 N.E.2d 575, 580 (1952))), transfer denied.
Chief Justice Shepard and I conclude that Mullens was an Agritek employee and as such is limited, with respect to her claims against Agritek, to remedies under the Indiana Workers Compensation Act for her work-related injuries.
SHEPARD, C.J., concurs. DICKSON and BOEHM, JJ., concur except as to part
II, from which they dissent. RUCKER, J., is not participating.
I concur as to Part I of Justice Sullivan's opinion, but write separately
Part II. As we explained in GKN Co. v. Magness,
--- N.E.2d ---, ---, No. 49S02-0002-CV-116, slip op. at 6 (Ind. 2001), in
reviewing a case in this procedural posture, "we affirm the judgment of the
trial court on any legal theory the evidence of record supports." We
further emphasized that "the ruling of the trial court is presumptively correct, and
we will reverse on the basis of an incorrect factual finding only if
the appellant persuades us that the balance of evidence is tipped against the
trial court's findings." Id.
Reviewing the evidence anew, Justice Sullivan's opinion finds that a Mullens/Agritek employment relationship is indicated by all of the factors enumerated in GKN Co. I disagree.
Beginning with the presumption that the trial court ruling is correct, as required by GKN Co., --- N.E.2d at ---, slip op. 6, Agritek has not persuaded me that "the balance of evidence is tipped against the trial court's findings." Mullens was employed by Martin, not hired as an employee of Agritek. Throughout Mullens's employment, she was paid by Martin. Agriteks 1991 Christmas check, which plaintiff contends was intended as a gift and not as compensation for labor, pales in comparison to the two years of Mullenss compensation paid by Martin. Mullens believes that she was employed by Martin, not Agritek. The frequency of contact between Mullens and Agritek does not convince me that Agritek's right to control Mullens was superior to Martin's. Mullens performed all her duties at a facility leased and supervised by Martin. Further, Mullenss rate of pay, benefits, working hours, and permission for medical, vacation, and holiday absences were all determined by Martin, not Agritek.
I am satisfied that the evidence of record supports the judgment of the trial court, and that the presumption of correctness of the trial court's ruling has not been overcome. I believe that the trial court should be affirmed on this i ssue.
BOEHM, J., concurs. SHEPARD, C.J., and SULLIVAN, J., dissent. RUCKER, J.,