ATTORNEYS FOR APPELLANT            ATTORNEYS FOR APPELLEE

Robert T. Keen, Jr.                Joseph A. Christoff
Karl J. Veracco                Catherine S. Christoff
Fort Wayne, Indiana                Fort Wayne, Indiana

DENNIS TIPPMANN, JR.,                      )
                                                )
    Appellant (Defendant Below                  ),    )
                                                )  02S03-9603-CV-201
        v.                                      )  in the Supreme Court
                                                )
BRIAN S. HENSLER,                               )  02A03-9412-CV-467
                                                )  in the Court of Appeals
    Appellee (Plaintiff Below                   ).    )

                                            

                                            

                                            

             

                                            
APPEAL FROM THE ALLEN SUPERIOR COURT
   The Honorable Nancy Eshcoff Boyer, Judge
       Cause No. 02D01-9209-CP-1645
                   

    This case comes to us on interlocutory appeal from the denial of Dennis Tippmann, Jr.'s, motion for summary judgment. The Court of Appeals remanded the case to the trial court for more fact finding on the trial court's subject matter jurisdiction. Tippmann v. Hensler, 654 N.E.2d 821, 826 (Ind. Ct. App. 1995).

    At the far end of the room in one corner was a paint booth in which employees test fired paintball guns and paint grenades. At that same end of the room, but in the opposite corner, was the door through which one would enter or exit the room. "[J]ust for fun," and not as part of their actual duties, (R. at 97), one of the

employees fired a few shots down the length of the service room into the paint booth, and Hensler did likewise with the gun he now had. Tippmann angrily told the employees to stop firing their guns because, according to Tippmann, "it [was] kind of messy" and he "would probably have the clean it up." (R. at 49.) Hensler, however, stated that it was not part of Tippmann's job responsibilities to clean the paint booth, that in fact no one cleaned it. Regardless, Hensler responded to Tippmann's order by "dry firing" his gun (firing without ejecting a paintball) at the ceiling. Tippmann responded to Hensler's act of defiance by beginning to load his paintball gun, stating that he was going to shoot Hensler. Tippmann admitted that at this time he "may have wanted to hit Hensler while he was in the room." (R. at 95.) Hensler responded, "Forget this. I'm going to get out of here," (R. at 60), and exited the service room. He did not state that he would be returning.

    Tippmann testified that after Hensler left he decided to fire at the door through which Hensler had exited so as to make a loud sound against it and "scare" Hensler. (R. at 53-55.) Hensler, however, realizing after exiting that his break had not yet expired, re-entered the service room to continue his break "and talk to the guys." (R. at 61.) He stated that he was not in fear of being shot by Tippmann if he re-entered, believing that Tippmann had been "playing around" and was not really serious when he earlier threatened to shoot Hensler. (Id.) He therefore

approached the door and proceeded to re-enter unannounced. Tippmann says that just as he fired his shot at the door, Hensler unexpectedly reentered the room through it. Tippmann's paintball struck Hensler in the left eye, causing severe and permanent damage.

    Hensler filed a worker's compensation claim with Tippmann Pneumatics, and entered a settlement agreement with the company regarding the claim. He then filed a complaint in Allen Superior Court against Tippmann, alleging that Tippmann's negligence caused his injury, or alternatively that Tippmann intentionally caused his injury. Tippmann moved for summary judgment, claiming that the exclusivity provision of the Worker's Compensation Act, Ind. Code § 22-3-2-6, barred Hensler's action against him. The trial court denied Tippmann's motion, finding that material issues existed as to whether Tippmann intended to injure Hensler; whether the injuries were the result of horseplay and, if so, whether Hensler was an active participant or an innocent victim; and whether Tippmann was "in the same employ" when he injured Hensler. Tippmann then sought and received leave to file an interlocutory appeal.

    The Court of Appeals remanded for a factual determination only on the issue of whether Hensler actively participated in horseplay, stating that if so, the trial court could hear the case, but if not, the trial court should dismiss for lack of subject matter

jurisdiction. Tippmann, 654 N.E.2d at 826. The court based its holding on prior Indiana cases that denied worker's compensation benefits to victims of horseplay injuries who themselves were actively engaged in the horseplay when the injury occurred. Id. at 826 (citing Weldy v. Kline, 616 N.E.2d 398 (Ind. Ct. App. 1993)). It rejected the trial court's rulings concerning the other two material issues. First, the Court of Appeals held that the litigants had been "in the same employ," because "had Tippmann been injured under the same or similar circumstances, he would have been able to obtain worker's compensation benefits to the same extent as Hensler." Id. at 825. Second, it declared that the trial court must consider the question of Tippmann's intent to harm Hensler when he fired the injurious volley. Id. at 826.

jurisdiction on which the plaintiff carries the burden of proof and would, typically, have been required to present evidence." Foshee v. Shoney's Inc., 637 N.E.2d 1277, 1280-81 (Ind. 1994).

    Thus, a suit against a co-employee can proceed at trial under one of two circumstances. First, if the plaintiff can show that the Act does not apply to that particular litigation, then the trial court, and not the Worker's Compensation Board, has jurisdiction. The plaintiff accomplishes this by showing that the injury was not "by accident," that it did not "arise out of his employment," or that it did not "occur in the course of his employment." Ind. Code Ann. §§ 22-3-2-6, 22-3-6-1(e) (West Supp. 1997); Evans, 491 N.E.2d at 973. Second, even if the Act applies, its exclusive remedy provision will not bar a common law suit against an employee who was not "in the same employ" as the

plaintiff when the injury occurred. Ind. Code Ann. § 22-3-2-13 (West 1991); Thiellen v. Graves, 530 N.E.2d 765, 768 (Ind. Ct. App. 1988).

    In Baker v. Westinghouse Elec. Corp., 637 N.E.2d 1271 (Ind. 1994), we reaffirmed the Evans interpretation of "by accident" as meaning an unexpected injury, rather than an unexpected or unusual event. We noted, however, that Evans' victim-focused "by accident" test left out another important consideration for determining when

an employee's injury, if caused by his employer, was accidental: the employer's intentions and expectations. Id. at 1273. Thus, we stated, "Because we believe an injury occurs 'by accident' only when it is intended by neither the employee nor the employer, the intentional torts of an employer are necessarily beyond the pale of the act." Id.; see also Perry, 637 N.E.2d at 1287; Foshee, 637 N.E.2d at 1281.

    Viewing this language in Baker narrowly, Tippmann argues that his alleged intent to harm Hensler is of no moment, since only the employer's and injured employee's intentions matter when determining whether the injury was "by accident." (Appellant's Br. at 14-15, Appellant's Transfer Br. at 9-10.) The Court of Appeals agreed with Tippmann's interpretation of Baker. Tippmann, 654 N.E.2d at 825; see also Landis v. Landis, 664 N.E.2d 754, 756 (Ind. Ct. App. 1996). Such an application of the test enunciated in our recent cases, while adhering to its letter, ignores its reasoning and misapprehends its purpose.

    Baker, Perry, and Foshee were cases in which an employer was being sued by its employee -- the "by accident" requirement in suits against co-employees was not at issue, see, e.g., Perry, 637 N.E.2d at 1285 n.1; Foshee, 637 N.E.2d at 1280 n.1, nor was it specifically addressed.See footnote 2 While the test stated in these opinions

mentions only the expectations of employer defendants and employee plaintiffs, the reasoning behind the test imparts itself equally to intentional torts inflicted by employees as to those inflicted by employers. We think that the same considerations which prevent an employer who has intentionally injured its employee from claiming that the injury was "by accident" also prevent a co-employee who has intentionally injured a fellow employee from asserting the injury was "by accident." Therefore, following the logical progression of reasoning from Evans to Baker to the case at hand, we hold that a party to a worker's compensation suit cannot claim that the injury at issue occurred "by accident," and thereby receive compensationSee footnote 3 or immunity under the Act, when that party intended harm to arise from the acts which resulted in the injury. Therefore, the appropriate test for determining whether the injury was accidentally caused is the question, "Did the party who is

advocating the applicability of the Act intend for harm to result from the actions that party undertook?" If so, then the injury did not occur "by accident" for that particular litigant.

    Because this test focuses more on the intentions of the party alleging "accidental" injury than on the injury itself, one might notice that the same injury can be both "by accident" and not "by accident," depending on who is alleging the applicability of the Act. Such a circumstance, however, is not unusual. According to the North Carolina Court of Appeals, "[t]he mere fact . . . that an injury is termed 'accidental' from the injured employee's viewpoint, requiring the employer to pay compensation under the Act, does not mean that the injury is accidental from the viewpoint of the intentional assailant." Andrews v. Peters, 284 S.E.2d 748, 750 (N.C. Ct. App. 1981). For instance, an employee who is repeatedly stabbed by a fellow employee during an argument at work could file a claim for and receive worker's compensation on the premise that the injury she suffered was "by accident." In this instance, neither the employee nor the employer intended or expected the injury; therefore, to those parties it was unexpected and accidental.

    When the same employee, however, then brings suit against the co-employee for the intentional tort, it is the co-employee tortfeasor, and not plaintiff who, in order to receive immunity, must allege that the stabbing injury he inflicted was "by

accident," something he is unable to do. As Professor Larson states, "The legal reason for permitting the common-law suit for direct assault by the employer or coemployee . . . is that the same person cannot commit an intentional assault and then allege it was accidental." 6 Arthur Larson, Larson's Worker's Compensation Law, § 68.21(b), at 13-123 (1997). He further states, "There is nothing inconsistent in this result, curious as it may seem on the surface, since it is quite proper to analyze the incident in each type of action from the standpoint of the person having the burden of establishing his case or defense." Id. § 68.12 at 13-12.

likewise.See footnote 4 There is one important distinction, however, between these many cases and the case at bar. These cases involved either an injured employee's attempt to sue her employer for an injury intentionally caused her by a co-employee, see, e.g., Foshee, 637 N.E.2d 1277; Evans, 491 N.E.2d 969; Gordon v. Chrysler Motor Corp., 585 N.E.2d 1362 (Ind. Ct. App. 1992); Fields v. Cummins Emp. Fed. Credit Union, 540 N.E.2d 631 (Ind. Ct. App. 1989); Arrow Uniform Rental, Inc. v. Suter, 545 N.E.2d 832 (Ind. Ct. App. 1989); Shelby v. Truck & Bus Group Div. of GMC,See footnote 5 533 N.E.2d 1296 (Ind. Ct. App. 1989); or an employer's attempt to overturn an award of compensation to an employee who was intentionally injured by a co- employee, see, e.g., Inland Steel Co. v. Flannery, 88 Ind. App. 347, 163 N.E. 841 (1928); Furst Kerber Cut Stone Co. v. Mayo, 82 Ind. App. 363, 144 N.E. 857 (1924); Payne v. Wall, 76 Ind. App. 634, 132 N.E. 707 (1921); Mueller v. Klingman, 73 Ind. App. 136, 125 N.E. 464 (1919). None of these cases involved the applicability of the Worker's Compensation Act to an intentional

tort action between fellow employees. This is an important distinction, because in all these cases the party alleging that the injury was "by accident" was not the party that had intentionally caused the harm. Thus, from the standpoint of the one alleging accidental injury in each case, the injury was not intended or expected, and was, to him or her, "accidental."See footnote 6

    Thirty-four states currently exclude intentional tortfeasors from worker's compensation immunity. Larson, § 72.21 at 14-143 n. 23.01 (Supp. Nov. 1997). Twenty-two have statutory provisions explicitly excepting intentional torts, id. n.23.1, and twelve except intentional torts through judicial decisions "based usually either on public policy or on the limitation of the act to

accidental injury." Id. at 14-143, 14-145. Like Indiana, many of the states which exclude intentional torts from worker's compensation immunity under an accidental injury limitation or its equivalent do so in the face of older precedent finding one employee's intentional injuring of another to be "by accident" for purposes of compensation of the injury under the Act. The Supreme Court of Tennessee addressed this apparent inconsistency thirty years ago:
    We have authority for the proposition that an employee who is injured by a third person at a time when he is acting in the course of his employment suffers an "accident arising out of employment," which is compensable.

    All of these cases treat the injuring incident as an "accident" on the theory the incident was unexpected or unusual, or unintended from the standpoint of the employee. . . .

    . . . .

[W]hat we have to decide is whether or not the fiction, that the employee-victim of an intentional, deliberate assault has sustained an accident because it was unexpected and unintended on his part, can be availed of by an assaulting co-employee to compel his victim to proceed under the Act. And we think the assaulter cannot so compel the victim, because the fiction was created and is allowed to operate solely because this is the fair, right and just thing to do. It is a conclusion based entirely on the effect on the assaulted employee. So that it would be a travesty on justice, indeed, to make this fiction operate in favor of one whose act has been wilful and malicious and intentionally harmful and is in no conceivable sense an "accident."

Williams v. Smith, 435 S.W.2d 808, 809-11 (Tenn. 1968) (citations omitted). Professor Larson also approves distinguishing the older cases on this basis, as noted by the Michigan Supreme Court:
[T]his Court has found deliberate assaults by coemployees or third persons to be compensable under the act.

Apparently, the Court found the assaults to be accidents. As Professor Larson explained, "[T]he early difficulty presented by the argument that such an injury was the result of intention as distinguished from accident was overcome by the simple expedient of viewing the affair from the point of view of the victim rather than of the assailant, since from the victim's point of view the assault was an unexpected and untoward mishap." Professor Larson has suggested that in deciding whether an incident was an accident, the incident should always be viewed from the perspective of the person seeking the protection of the act: When the employee seeks to recover benefits, the question is whether the injury was an accident from the employee's perspective; if the employer seeks to impose the accident requirement as a defense, the question is whether the injury was an accident from the employer's perspective. Once it is recognized that the accident requirement is examined from the perspective of the party seeking to benefit from the alleged accident, the apparent conflict [with the older precedent] is resolved.

Beauchamp v. Dow Chemical Co., 398 N.W.2d 882, 888 (Mich. 1986) (superceded by statute) (quoting 2A Larson, § 68.12, p. 13-7) (footnotes omitted).See footnote 7 Accord Elliott v. Brown, 569 P.2d 1323 (Alaska 1977); Meerbrey v. Marshall Field & Co., 564 N.E.2d 1222 (Ill. 1990); Richardson v. County of Cook, 621 N.E.2d 114 (Ill. App. Ct. 1993); Mazarredo v. Levine, 80 N.Y.S.2d 237 (N.Y. App. Div. 1948).

B. Justifications for Excluding Intentional Tortfeasors from Immunity. Besides finding support from many other jurisdictions and from Professor Larson, our extension of the Baker rule to

encompass the intentions of a co-employee intentional tortfeasor when he is defending an intentional tort claim is supported by text, precedent, and policy.

    First, as we said in Evans, "by accident" means "accidental injury." Evans, 491 N.E.2d at 974. The common understanding of an "accidental" injury is one in which neither the inflicting nor the injured party expected the injury to occur, as exemplified by the following definition of "accidental": "happening or ensuing without design, intent, or obvious motivation or through inattention or carelessness." Webster's Third New International Dictionary 11 (1993) (emphasis added). Words such as "design," "intent," "inattention," and "carelessness" contemplate the mens rea of the one causing the injury, and not just the one receiving it.See footnote 8 This understanding, that the phrase "by accident" encompassed both the plaintiff's and the defendant's expectations, motivated us in Baker to broaden the Evans test and hold that the Act's language excluded from immunity an employer who intentionally injured its employee. See Baker, 637 N.E.2d at 1273. In light of that understanding of the Act's express language, to hold now that this same language does not exclude a co-employee's intentional torts from immunity would create an exception to the Act incompatible with its express language. Also, given Baker, such a holding would be "anomalous," Golec v. Metal Exchange Co., 551 N.W.2d 132, 150

(Mich. 1996), and "unreasonable," Newby v. Gerry, 690 P.2d 603, 607 (Wash Ct. App. 1984). "If the employer cannot use the worker's compensation act as a shield to protect itself from intentional misconduct, then neither should the act shield a coemployee from liability for intentional misconduct." Whaley v. McClain, 405 N.W.2d 187, 189 (Mich. Ct. App. 1987).

    Second, to hold that the Act provides immunity for employees who intentionally injure their co-workers would insulate those employees from the deterrence that arises from exposure to regular civil damages. Cf. Baker, 637 N.E.2d at 1274 (explaining the deterence effects of allowing regular civil damages against employers who commit intentional torts). As the Michigan Supreme Court noted, "Intentional misconduct would seem to be the type of behavior the Legislature would most want to deter and punish. Including intentional torts within the exclusivity provision would in that sense be counterproductive." Beauchamp, 398 N.W.2d at 889. In discussing this deterrence rationale, the Utah Supreme Court stated, "It would serve no social purpose to allow an employee to intentionally injure another employee engaged in the same employment, then use an otherwise socially beneficial, remedial, statute as a shield for such wrongdoing." Bryan v. Utah Int'l, 533 P.2d 892, 894 (Utah 1975). See also Newby, 690 P.2d at 607-08 ("forbidding suit would allow an employee to bludgeon a co-worker with civil impunity, and . . . remove the deterrent effect of civil liability and damages").

    Finally, we see little danger that allowing an employee to sue a co-employee for an intentional tort might lead to double recovery. See, e.g., Fregeau v. Gillespie, 451 N.E.2d 870, 872 (Ill. 1983). Such a fear, however, is unfounded because the employer or its worker's compensation insurance carrier would have subrogation rights to the award under Ind. Code § 22-3-2-13. Such subrogation would thereby repay the insurance carrier or company for the cost of the intentional wrong. In this way subrogation also prevents the intentional tortfeasor from shifting the cost of

his wrongdoing onto the industry and the consumer.See footnote 9 Meerbrey, 564 N.E.2d at 1229. As the Alaska Supreme Court stated,
Workmen's compensation benefits are paid from employer[s'] premiums, as a means of spreading the cost of hazards of the workplace. We do not believe it would be wise public policy to allow an intentional tortfeasor to shift his liability for his acts to such a fund. Assaults by fellow workers differ not in degree but in kind from the type of harm the statute was enacted to deal with [sic].

Elliott v. Brown, 569 P.2d 1323, 1327 (Alaska 1977). The Washington Court of Appeals summed up nicely the subrogation justification for not shielding co-employee intentional tortfeasors from liability:
The employer and worker's compensation fund will benefit because it has a lien on any recovery from the tortfeasor for benefits paid. . . . The employee will benefit by possessing a right to recover for the full measure of his injuries. . . . The public will benefit by a fairer allocation of compensation for injuries, and the deterrence of workplace intentional torts. The consumers will benefit because the costs of the wrongdoer's actions are not passed on as higher prices for goods and services. Only the intentional tortfeasor stands to lose if a suit proceeds. He is not deserving of protection.

Newby, 690 P.2d at 608 (citations omitted).

C. Showing Intent. In Baker we decided that a plaintiff must demonstrate a high degree of "intent to harm" on the part of an employer before an injury caused by that employer will be found intentional. We based our decision on the observation of the Court

of Appeals in National Can Corp. v. Jovanovich, 503 N.E.2d 1224 (Ind. Ct. App. 1987), that a lower standard risked "'the workmen's compensation scheme being "swallowed up" by a glut of common law suits outside the Act.'" Baker, 637 N.E.2d at 1275 (quoting National Can, 503 N.E.2d at 1233 n.14.) Our concern over a proliferation in litigation also informs our view of intentional tort actions against co-employees. Fregeau, 451 N.E.2d at 872. Therefore, "[n]othing short of deliberate intent to inflict an injury, or actual knowledge that an injury is certain to occur, will suffice." Baker, 637 N.E.2d at 1275.See footnote 10 We note, however, that the defendant need not have intended the particular injury which resulted. As long as he intended an appreciable degree of harm to arise from his actions, it does not matter that more or less harm resulted, compared to that which he originally intended. See Restatement (Second) of Torts § 8A cmt. b (1965).

D. Application of "By Accident" Standard. The trial court determined that a factual dispute existed as to "whether Tippmann intentionally acted to harm Hensler" when he fired the shot that struck Hensler in the eye. (R. at 128.) This determination was the product of its review of the evidence under a motion for summary judgment, upon which a court cannot weigh evidence, and

must resolve all inferences in favor of the non-moving party. Perry, 637 N.E.2d at 1286. When making a jurisdictional determination, however, a trial court has "considerable latitude in devising procedures to ferret out the facts pertinent to jurisdiction," and "may weigh evidence to determine the existence of the requisite jurisdictional facts. Id. at 1286-87.

    Our review of the record satisfies us that the evidence provided an adequate showing of "deliberate intent to inflict an injury," Baker, 637 N.E.2d at 1275, and that granting a motion to dismiss would have been error. Tippmann grabbed a gun, announced "Where do you want me to shoot you at?", and fired multiple times in Hensler's direction. This sufficies.

Dickson, Sullivan, Selby, and Boehm, JJ., concur.

Furst Kerber Cut Stone Co. v. Mayo, 82 Ind. App. 363, 144 N.E. 857 (1924)). We further stated,
When determining if an injury was "by accident," the dispositive inquiry is whether, as between the employer and sufferer, the injury was intended. As to this issue, intentions of co-workers, supervisors or other third parties are of no moment. Thus, if an employee is injured by the intentional tort of a co-worker and that tort was not also intended by the employer (or sufferer), and if the injury arose in and out of the course of the sufferer's employment, then it is compensable.
Id. When reading this footnote, one must do so within the context in which it is found. It is placed in the section of the opinion addressing the showing a plaintiff must make when alleging her employer intentionally injured her, in a subsection entitled "Who Must Intend?". As is evident from the text preceding the footnote, it is placed there to head off any thought that the intentions of a co-worker could be imputed to the employer, if the employer did not also intend the harm resulting from the actions of that co-employee. This footnote, however, in no way addresses whether the co-employee tortfeasor's intentions are relevant when she, and not the employer, is defending a claim of intentional injury.

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