FOR PUBLICATION


ATTORNEY FOR APPELLANT:                      ATTORNEY FOR APPELLEE:

DAVID C. KOLBE                               LYLE R. HARDMAN
David C. Kolbe, P.C.                         Hunt Suedhoff Kalamaros, LLP
Warsaw, Indiana                              South Bend, Indiana


                                                                            FILED
                                                                       Mar 23 2012, 9:33 am

                              IN THE
                                                                               CLERK
                    COURT OF APPEALS OF INDIANA                              of the supreme court,
                                                                             court of appeals and
                                                                                    tax court




THE ESTATE OF DONALD                         )
EUGENE SMITH,                                )
                                             )
       Appellant,                            )
                                             )
              vs.                            )      No. 43A01-1103-PL-136
                                             )
JOSHUA STUTZMAN d/b/a                        )
KEYSTONE BUILDERS,                           )
                                             )
       Appellee.                             )


                    APPEAL FROM THE KOSCIUSKO SUPERIOR COURT
                           The Honorable Duane G. Huffer, Judge
                              Cause No. 43D01-1010-PL-198



                                   March 23, 2012


                            OPINION - FOR PUBLICATION


BROWN, Judge
       The Estate of Donald Smith (the “Estate”) appeals from the trial court’s dismissal

of its lawsuit against Joshua Stutzman d/b/a Keystone Builders (“Stutzman”). The Estate

raises two issues, which we revise and restate as whether the trial court properly granted

Stutzman’s motion to set aside default judgment and motion to dismiss and dismissed the

Estate’s action. We affirm.

       The relevant facts follow. Smith worked for Stutzman. Stutzman filed a report of

employee injury/illness with the Indiana Worker’s Compensation Board (the “Board”)

prepared on June 8, 2010, which indicated that on March 26, 2010, Smith suffered a

“[b]roken neck” and was “on a ladder [and] fell 20 feet and died.”                        Appellee’s

Supplemental Appendix at 1. A Settlement Agreement and Petition for Approval (the

“Settlement Agreement”) was entered into by Donald Smith, deceased, by his widow

Carol Smith, Stutzman, and Travelers Casualty Insurance Company of America

(“Travelers”), and the Settlement Agreement was filed with the Board on June 22, 2010.

The parties to the Settlement Agreement agreed that Smith’s worker’s compensation

claim would be settled for a lump sum payment of $100,000, payable to his sole

presumptive dependent, Carol Smith. On June 28, 2010, the Board entered an order

approving the Settlement Agreement and directing payment of $100,000.1

       On October 21, 2010, the Estate filed a complaint for damages against Stutzman in

the Kosciusko Superior Court alleging in part that while working for Stutzman as an


       1
           The June 28, 2010 order directed that the payment be made by Stutzman as the named defendant
in the worker’s compensation action to Donald Smith, deceased, by his widow Carol Smith, as the named
plaintiff in the worker’s compensation action, and the Settlement Agreement provided that Travelers was
making payment in settlement of the claim.

                                                  2
independent contractor on March 26, 2010, Smith fell from a roof resulting in his death

and that Stutzman was negligent in maintaining safe work premises which was the direct

and proximate cause of Smith’s death. On December 27, 2010, the Estate filed a motion

for judgment by default and an affidavit in support of its motion. On December 28, 2010,

the court entered an entry of default against Stutzman.

       On February 1, 2011, Stutzman filed a Motion to Set Aside Default Judgment and

Motion to Dismiss together with a memorandum of law. In its motion and memorandum,

Stutzman cited to Ind. Trial Rules 60(B) and 12(B)(1) and argued that the December 28,

2010 entry of default was void in part because the Board has exclusive jurisdiction over

the claim, Stutzman is immune from suit and damages in a state court proceeding, and the

Estate is estopped from asserting that Smith was an independent contractor. On February

18, 2011, the Estate filed a response to Stutzman’s motion to dismiss, and on February

22, 2011, Stutzman filed a reply.

       On March 4, 2011, the court held a hearing on Stutzman’s February 1, 2011

motion and entered an order which found that the Board “has exclusive jurisdiction of

this matter,” granted Stutzman’s motion, and ordered that the case be dismissed.

Appellant’s Appendix at 5.

       The issue is whether the trial court properly granted Stutzman’s February 1, 2011

motion to set aside default judgment and motion to dismiss. The Estate acknowledges

that in Indiana if the Worker’s Compensation Act applies to an injury then all other

remedies are excluded. However, the Estate argues that “no concession was made by

[Stutzman] and no contention was asserted by the Estate that [] Smith was an employee,”

                                             3
that “the sole argument [Stutzman] can make is that the [Settlement Agreement], by its

very existence, invokes exclusivity barring subsequent civil suit,” and that “while the

settlement was made pursuant to Section 15 under the Worker’s Compensation Code, the

issue of employment remained outside the Act and its status remained unresolved.”

Appellant’s Brief at 5-6. The Estate “concedes that it could never reopen an action under

the [Act] for further benefits from Travelers by virtue of the [Settlement Agreement]” but

maintains that “there is nothing in the statute which prohibits a civil claim on the

remaining disputed issue, the question of employment” and that the Settlement

Agreement “specifically left this issue unresolved.” Id. at 7. The Estate asserts that “the

parties clearly did not intend to resolve all issues,” that “[t]he issue of employment

remained on the table,” and that “[i]ndeed, that issue was left completely unresolved for

possible resolution in a civil court of law.” Id.

       Stutzman maintains that the court correctly determined that the Estate admitted

that Smith was an employee of Stutzman by invoking the jurisdiction of the Board and

receiving worker’s compensation benefits. Specifically, Stutzman argues that the parties

stipulated in the Settlement Agreement that the Board had subject matter jurisdiction over

the claim and that “[i]t is axiomatic that, for the Board to have subject matter jurisdiction,

Smith was [Stutzman’s] employee, acting within the scope and course of his

employment.” Appellee’s Brief at 9. Stutzman further argues that “[t]he very act of

seeking (and accepting) worker’s compensation benefits constitutes an admission by the

Estate that Smith was an employee acting within the scope and course of his

employment.” Id. Stutzman also argues that the Estate is judicially estopped from

                                              4
claiming that Smith was an independent contractor. Stutzman asserts that the trial court

did not have subject matter jurisdiction over the Estate’s action, that thus the court’s entry

of default judgment was void, and that the court correctly vacated the entry of default

judgment and dismissed the case.

       The Indiana Worker’s Compensation Act provides for compensation of injury or

death by accident arising out of and in the course of employment. Ind. Code § 22-3-2-2;

Wright Tree Serv. v. Hernandez, 907 N.E.2d 183, 186 (Ind. Ct. App. 2009), trans. denied.

Ind. Code § 22-3-2-6, the exclusivity provision of the Act, provides:

       The rights and remedies granted to an employee subject to IC 22-3-2
       through IC 22-3-6 on account of personal injury or death by accident shall
       exclude all other rights and remedies of such employee, the employee’s
       personal representatives, dependents, or next of kin, at common law or
       otherwise, on account of such injury or death, except for remedies available
       under IC 5-2-6.1.[2]

       This court has stated that the Worker’s Compensation Act is designed to grant

compensation to injured employees without regard to fault. Waldridge v. Futurex Indus.,

Inc., 714 N.E.2d 783, 785 (Ind. Ct. App. 1999) (citation omitted), reh’g denied, trans.

denied. “Once an injured employee accepts or receives compensation under the Act, she

concedes that the injury was accidental in nature and that it arose out of and in the course

of employment.” Id. (emphasis added). “Accordingly, the employee may not later sue

her employer in tort based on the same work-related injury.” Id.

       This court has further stated:

              [B]y electing to come under the [Worker’s] Compensation Act, an
       employer and employee accept the procedure provided by that act for the
       adjudication of claims for compensation, and they waive the right of a trial
       2
           Ind. Code § 5-2-6.1 governs compensation for victims of violent crimes.
                                                     5
       by jury. An agreement, when filed with and approved by the [Worker’s
       Compensation] Board has the force and effect of an award, and adjudicates
       the facts involved therein . . . .

       Where there is no fraud on the part of the employer or an attempt to take
       advantage of the employee, the fact that the employee is ignorant of the
       provisions of [the Act] at the time he accepts compensation from his
       employer with full knowledge of all the facts does not defeat the effect of
       such acceptance as an election to take the compensation.

Williams v. Delta Steel Corp., 695 N.E.2d 633, 635 (Ind. Ct. App. 1998) (citing Ind.

Univ. Hosps. v. Carter, 456 N.E.2d 1051, 1054-1055 (Ind. Ct. App. 1983) (citations

omitted)), trans. denied.   This court noted that “[i]n reaching that conclusion, we

reasoned that an employee, by accepting and receiving compensation under the Act,

concedes that the injury was accidental in nature and that it arose out of and in the course

of employment.”      Id. (citing Univ. Hosps., 456 N.E.2d at 1056 (footnote omitted)

(emphasis added)).

       Further, the Indiana Supreme Court has stated that “[t]he exclusivity provision

[Ind. Code § 22-3-2-6] bars a court from hearing any common law action brought by the

employee for the same injuries.” Sims v. U.S. Fidelity & Guar. Co., 782 N.E.2d 345,

349-350 (Ind. 2003). The Court further stated:

              When an injury to a servant is found to be covered by a workers’
       compensation act, it is uniformly held that the statutory compensation is the
       sole remedy, and that any recovery against the employer at common law is
       barred. It is recognized that this remedy is in the nature of a compromise,
       by which the worker is to accept a limited compensation, usually less than
       the estimate which a jury might place upon his damages, in return for an
       extended liability of the employer, and an assurance that he will be paid.

Id. at 351-352 (quoting W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF

TORTS § 80, at 574 (5th ed. 1984) (footnotes omitted)); see also Christopher R. Brown,

                                             6
D.D.S., Inc. v. Decatur Cnty. Mem’l Hosp., 892 N.E.2d 642, 649 (Ind. 2008) (noting that

“the remedies provided in the Worker’s Compensation Act are in derogation of the

common law” and that “the law in this jurisdiction is settled that if the Worker’s

Compensation Act applies to an injury, then the rights and remedies granted to an

employee by the Act exclude all other rights and remedies of such employee . . . .”)

(internal quotation marks and citations omitted).

       In Ind. Univ. Hosps., the Full Industrial Board approved of an agreement pursuant

to which an employee would receive certain worker’s compensation benefits.             456

N.E.2d at 1053.    The employee later brought a civil negligence action against her

employer alleging that the employer failed to maintain a safe place for business invitees.

Id. The employee argued on appeal that she was not injured in the course of her

employment but between shifts while she was not on duty. Id. at 1054. This court

examined the agreement entered into by the parties and found that the intent of the

agreement was clear on its face and that there was no evidence that the employer

misguided the employee into signing the agreement. Id. at 1055. The court then held:

       [I]n the present case, the Industrial Board’s approval of the parties’ mutual
       compensation agreement is a determination that the incident did arise out of
       and in the course of her employment. In addition, [the employee] signed
       the agreement and received the benefit payments. She cannot now
       complain that the incident did not occur in the scope of her employment.
       [The employee] made a binding election of remedies, precluding her from
       pursuing another separate remedy.

Id. at 1056.

       Here, the Settlement Agreement provided in part:



                                             7
1.   The [Board] has jurisdiction of this claim and may take such further
     action as is necessary to carry out the provisions of this Settlement
     Agreement and Petition for Approval at the Indianapolis offices of
     the Board without further notice to the parties hereto, which notice is
     hereby waived by the parties.

2.   On March 26, 2010, Donald E. Smith, Jr. was performing work for
     [Stutzman] when he fell from a roof, sustaining injuries that caused
     his death.

3.   Pursuant to Indiana Code § 22-3-3-18 and § 22-3-3-19, Carol Louise
     Smith is the sole presumptive dependent of Donald E. Smith, Jr.

4.   No Application for Adjustment of Claim has been filed by Donald E.
     Smith, Jr., or his Estate, or Carol Louise Smith.

5.   There are disputes between the parties as to whether Donald E.
     Smith, Jr. was an employee of [Stutzman], as it is defined by Ind.
     Code § 22-3-6-1. There is also a dispute as to whether [Stutzman]
     had a valid worker’s compensation policy with Travelers in place at
     the time of [] Smith’s injury.

6.   By reason of these disputes and with knowledge of the uncertainty
     and expense of litigation of this claim, the parties seek to resolve
     their differences and are willing to give up any rights they may have
     in connection with this claim under the provisions of the Worker’s
     Compensation Act. The parties have agreed that [Smith’s] worker’s
     compensation claim be compromised and settled for the lump sum
     payment of One Hundred Thousand and 00/100 Dollars
     ($100,000.00), payable to his sole presumptive dependent, Carol
     Louise Smith, which amount includes compensation for any and all
     medical, funeral and burial expenses of [Smith], including unpaid or
     outstanding expenses.

7.   This settlement is intended to resolve the claims of the employee,
     Donald E. Smith, Jr. and his dependents against the employer and
     Travelers, as it relates to worker’s compensation benefits to which
     [Smith] or his dependents may be entitled. In making this
     settlement, [Smith], deceased, by his widow Carol Louise Smith,
     agrees to release and discharge [Stutzman] and its compensation
     insurance carrier, Travelers [], as well as their agents, assigns,
     insurers, and legal counsel from any and all manner of actions,
     causes of action, suits, accounts, contract, debts, attorneys fees,

                                    8
      claims and demands whatsoever, at law or in equity, and however
      arising, that were asserted, or could have been asserted, by her
      before the [Board], and waives all further rights under the Indiana
      Worker’s Compensation Act. Travelers specifically retains the right
      to assert a lien against any third party recovery as set forth in Ind.
      Code § 22-3-2-13.

8.    This settlement is not intended to resolve any claims that may exist
      as between the employer and Travelers, and those parties
      specifically retain the right to dispute whether Travelers owes a duty
      of coverage to [Stutzman] for the claims asserted by [] Smith, or his
      Estate, or his dependents. Travelers further retains its rights of
      equitable subrogation against [Stutzman] for any payments made
      under this Settlement Agreement. Further, this settlement does not
      waive any rights of the parties as to other claims not covered under
      the Worker’s Compensation Act, Ind. Code § 22-3-2 through Ind.
      Code § 22-3-6 et seq.

9.    The parties understand that upon submission of this Settlement
      Agreement, and approval of it by the Board, all matters with respect
      to [Smith’s] injury of March 26, 2010 shall be forever resolved,
      settled and ended. There shall be no finding of any liability on the
      part of [Stutzman] with respect to any injury or combination of
      injuries of [Smith], nor shall this settlement be construed as an
      admission that [Smith] was an employee of [Stutzman]. Further,
      although Travelers is making payment in settlement of this claim,
      payment shall not be construed as a finding of an admission of
      liability to provide worker’s compensation coverage to [Stutzman]
      for the injuries to [Smith].

10.   Carol Louis Smith, acknowledges that she has read this Settlement
      Agreement, that she has had an opportunity to have it reviewed by
      an attorney, and that she understands that this agreement represents a
      full and final settlement of all of [Smith’s] worker’s compensation
      claim with respect to the alleged injury. She understands that upon
      approval of this Settlement Agreement by the Board, she will not be
      entitled to receive from the employer, or its insurance carrier, or from
      the Second Injury Fund, any additional sum or sums of money on
      account of [Smith’s] claimed injury for compensation, or for
      medical, funeral, or burial expenses, regardless of whether there is a
      change of condition.



                                     9
11.       Pursuant to this Settlement Agreement, [Stutzman] shall have no
          obligation for past, present, or future medical and hospital bills,
          funeral and burial expenses, and associated expenses relating to
          [Smith’s] injury, and the parties state that all unpaid medical
          provider, funeral and burial bills shall remain the responsibility of
          Carol Louise Smith. Carol Louise Smith specifically agrees to
          indemnify and hold harmless [Stutzman] and Travelers from any
          demands for payment of these bills and expenses by the providers or
          creditors. Further, Carol Louise Smith specifically agrees to
          indemnify and hold harmless [Stutzman] and Travelers against any
          claims which may arise by any persons claiming to be dependents of
          [Smith].

12.       This agreement is entered into by the parties as a compromise
          settlement agreement in order to gain approval thereof by the Board
          pursuant to Indiana Code § 22-3-2-15.[3] This agreement and
          stipulation shall be of no force or effect in the absence of an entry of
          an order directing such payment by the Defendant [Stutzman] to the

3
    Ind. Code § 22-3-2-15 provides:

(a)       No contract, agreement (written or implied), rule, or other device shall, in any
          manner, operate to relieve any employer in whole or in part of any obligation
          created by IC 22-3-2 through IC 22-3-6. However, nothing in IC 22-3-2 through
          IC 22-3-6 shall be construed as preventing the parties to claims under IC 22-3-2
          through IC 22-3-6 from entering into voluntary agreements in settlement thereof,
          but no agreement by an employee or his dependents to waive his rights under IC
          22-3-2 through IC 22-3-6 shall be valid nor shall any agreement of settlement or
          compromise of any dispute or claim for compensation under IC 22-3-2 through
          IC 22-3-6 be valid until approved by a member of the board, nor shall a member
          of the worker’s compensation board approve any settlement which is not in
          accordance with the rights of the parties as given in IC 22-3-2 through IC 22-3-6.
          No such agreement shall be valid unless made after seven (7) days from the date
          of the injury or death.

(b)       A compromise settlement approved by a member of the worker’s compensation
          board during the employee’s lifetime shall extinguish and bar all claims for
          compensation for the employee’s death if the settlement compromises a dispute
          on any question or issue other than the extent of disability or the rate of
          compensation.

(c)       A minor dependent, by parent or legal guardian, may compromise disputes and
          may enter into a compromise settlement agreement, and upon approval by a
          member of the worker’s compensation board, the settlement agreement shall
          have the same force and effect as though the minor had been an adult. The
          payment of compensation by the employer in accordance with the settlement
          agreement shall discharge the employer from all further obligation.

                                             10
             Plaintiff [Smith], which order constitutes an approval of the
             compromise agreement pursuant to Indiana Code § 22-3-2-15.

Appellant’s Appendix at 20-24 (emphases added).

      We observe that although the parties acknowledged the existence of certain

disputes, including whether Smith was an employee of Stutzman, the parties expressly

agreed to resolve any such differences by entering the Settlement Agreement.

Specifically, with respect to the disputes or differences, paragraph 6 of the Settlement

Agreement provides in part that “[b]y reason of these disputes and with knowledge of the

uncertainty and expense of litigation of this claim, the parties seek to resolve their

differences and are willing to give up any rights they may have in connection with this

claim under the provisions of the Worker’s Compensation Act.” Id. at 21.

      The Estate stipulated that the Board had subject matter jurisdiction over the

Estate’s claim, thereby making a judicial admission, the effect of which precluded its

claim for recovery in the instant case. Moreover, the implication of the language of the

Settlement Agreement above, including the emphasized portions, is that the parties

intended for the payment of $100,000 to resolve any claim which Smith, his dependents,

or the Estate may have against Stutzman or Travelers in connection with Smith’s injury

and that Smith would not be entitled to obtain additional sums of money from Stutzman

in connection with the injury. See, e.g., id. at 23 (stating that Carol Smith “will not be

entitled to receive from the employer, or its insurance carrier, or from the Second Injury

Fund, any additional sum or sums of money on account of [Smith’s] claimed injury for

compensation . . . .”) (emphases added).


                                           11
      Finally, as stated in our previous decisions, an employee, by accepting and

receiving compensation under the Act, concedes that the injury arose out of and in the

course of employment. See Waldridge, 714 N.E.2d at 785, Williams, 695 N.E.2d at 635,

and Ind. Univ. Hosps., 456 N.E.2d at 1053-1056. Here, Carol Smith as Donald’s sole

presumptive dependent accepted and received compensation of $100,000 under the Act in

connection with Smith’s injury and death while working for Stutzman and thus conceded

that the injury arose out of and in the course of employment.

      Based upon the record, we conclude that compensation was accepted and received

under the Act and the Estate may not later claim that Smith’s injuries occurred outside

the scope of employment. See Ind. Univ. Hosps., 456 N.E.2d at 1054-1055 (holding that

an employee who accepted and received compensation under the Act may not later claim

that the injuries occurred outside the scope of employment). Accordingly, the trial court

properly granted Stutzman’s motion to set aside default judgment and motion to dismiss.

      For the foregoing reasons, the March 4, 2011 order issued by the trial court is

affirmed.

      Affirmed.

MAY, J., and CRONE, J., concur.




                                            12
