                                                                            Feb 03 2016, 9:49 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
David B. Wilson                                            James D. Ahern
Indianapolis, Indiana                                      Brandon Kroft
                                                           Heather T. Gilbert
                                                           CASSIDAY SCHADE LLP
                                                           Crown Point, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Brenda Hall,                                               February 3, 2016
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           49A02-1502-CT-67
        v.                                                 Appeal from the Marion Superior
                                                           Court No. 4
Dallman Contractors, LLC,                                  The Honorable Cynthia J. Ayers,
Shook LLC, and AT&T                                        Judge
Services, Inc.,                                            Trial Court Cause No.
Appellees-Defendants                                       49D04-0802-CT-8563




Altice, Judge.


                                           Case Summary




Court of Appeals of Indiana | Opinion 49A02-1502-CT-67 | February 3, 2016                          Page 1 of 12
[1]   This case arises out of a negligence action filed by Brenda Hall (Hall) against

      AT&T Services, Inc. (AT&T Services), among others,1 for injuries she sustained

      when she tripped and fell on her way into work. AT&T Services filed a motion

      for summary judgment asserting that Hall’s negligence claim against it was

      barred by the exclusive remedies provision of the Worker’s Compensation Act

      (the Act). See Ind. Code § 22-3-2-6. The trial court agreed, finding that the

      designated evidence established that under the corporate structure of AT&T,

      Inc., AT&T Services and Ameritech, Hall’s employer, were both subsidiaries of

      AT&T, Inc., and as such, were joint employers of Hall. Consequently, Hall’s

      negligence action against AT&T Services could not stand because Hall had

      already received a worker’s compensation settlement from Ameritech. The trial

      court therefore granted summary judgment in favor of AT&T Services.


[2]   We affirm.2


                                        Facts & Procedural History


[3]   On December 5, 2007, Hall, while on her way into work for Ameritech, tripped

      and fell over the snow-covered legs of a construction sign placed in a walkway

      adjacent to an ongoing construction project at the AT&T building in downtown

      Indianapolis. As a result of the fall, Hall injured her arm. On June 8, 2008,




      1
       Hall has also named Dallman Contractors, LLC, and Shook LLC as defendants in the negligence action.
      They are not participating in this appeal.
      2
       We held oral argument in this matter on January 14, 2016. We commend counsel on the quality of their
      written and oral advocacy.

      Court of Appeals of Indiana | Opinion 49A02-1502-CT-67 | February 3, 2016                   Page 2 of 12
      Hall filed for worker’s compensation benefits. On September 21, 2009, the

      Worker’s Compensation Board of Indiana issued a stipulated award to Hall to

      compensate her for a twenty-nine percent permanent partial impairment of her

      right arm.


[4]   On February 25, 2008, Hall filed her complaint for damages against Dallman

      Contractors, LLC (Dallman). On June 30, 2008, Dallman named “AT&T” 3 as

      a non-party. Appellant’s Appendix at 27. Hall filed an amended complaint on

      April 29, 2009, in which she added Shook LLC and “American Telephone &

      Telegraph Company f/k/a AT&T, Inc. d/b/a AT&T Property Management”

      (AT&T Property Management) as additional defendants. Id. at 33. On

      October 20, 2009, AT&T Property Management filed an Ind. Trial Rule 17

      motion to “substitute AT&T Services, Inc. in its stead as the real party in

      interest.” Id. at 54. AT&T Management alleged that “responsibility for

      physical building maintenance at the AT&T property in question, such as snow

      and ice removal, is properly designated as AT&T Services, Inc.” Id. AT&T

      Management maintained that it was responsible only for administrative

      management of the AT&T properties, including the property in question. The

      trial court granted the motion and AT&T Services was substituted for AT&T

      Management.




      3
          Dallman referred only to “AT&T” and not a specific corporate entity.


      Court of Appeals of Indiana | Opinion 49A02-1502-CT-67 | February 3, 2016   Page 3 of 12
[5]   On January 30, 2012, AT&T Services filed its first motion for summary

      judgment in which it claimed that Hall’s claim against it was barred under the

      exclusive remedy provision of the Act. On June 4, 2012, the trial court granted

      summary judgment in favor of AT&T Services, thereby dismissing Hall’s claims

      against AT&T Services with prejudice. After her motion to correct error was

      denied, Hall appealed. This court reversed and remanded, finding that

      questions of fact remained as to whether AT&T Services was Hall’s employer

      or a joint employer for purposes of the exclusive remedy provision of the Act.

      Specifically, the court found that AT&T Services’ designated evidence did not

      establish that it was a subsidiary. See Hall v. Dallman Contractors, LLC, 994

      N.E.2d 1220 (Ind. Ct. App. 2013) (Hall I).


[6]   On May 30, 2014, AT&T Services filed its second motion for summary

      judgment, again claiming that Hall’s claim was barred by the exclusive remedy

      provision of the Act. AT&T Services designated evidence it argued established

      that Ameritech and AT&T Services are both subsidiaries of AT&T, Inc., and

      therefore joint employers of Hall. On January 9, 2015, the trial court entered

      an order granting AT&T Services’ second motion for summary judgment. In

      support of its decision, the trial court determined that AT&T Services and

      Ameritech were both subsidiaries of AT&T, Inc., and therefore, for purposes of

      the Act, were joint employers of Hall. The court concluded that Hall’s prior

      worker’s compensation action “was her sole and exclusive remedy against them

      for the injuries she sustained as a result of her fall on December 5, 2007. [Hall],

      therefore, cannot proceed in this action against [AT&T Services] and


      Court of Appeals of Indiana | Opinion 49A02-1502-CT-67 | February 3, 2016   Page 4 of 12
      accordingly; [AT&T Services] is entitled to Summary Judgment as a matter of

      law.” Appellant’s Appendix at 22-23.


                                           Discussion & Decision


[7]   Hall maintains that summary judgment is inappropriate. We review summary

      judgment de novo, applying the same standard as the trial court: “Drawing all

      reasonable inferences in favor of . . . the non-moving parties, summary

      judgment is appropriate ‘if the designated evidentiary matter shows that there is

      no genuine issue as to any material fact and that the moving party is entitled to

      judgment as a matter of law.’” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.

      2009) (quoting Ind Trial Rule 56(C)). “A fact is ‘material’ if its resolution

      would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is

      required to resolve the parties’ differing accounts of the truth, or if the

      undisputed material facts support conflicting reasonable inferences.” Id.

      (internal citations omitted).


[8]   The initial burden is on the summary-judgment movant to “demonstrate . . . the

      absence of any genuine issue of fact as to a determinative issue,” at which point

      the burden shifts to the non-movant to “come forward with contrary evidence”

      showing an issue for the trier of fact. Id. at 761-62 (internal quotation marks

      and substitution omitted). And “[a]lthough the non-moving party has the

      burden on appeal of persuading us that the grant of summary judgment was

      erroneous, we carefully assess the trial court’s decision to ensure that [s]he was

      not improperly denied h[er] day in court.” McSwane v. Bloomington Hosp. &


      Court of Appeals of Indiana | Opinion 49A02-1502-CT-67 | February 3, 2016     Page 5 of 12
       Healthcare Sys., 916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks

       omitted).


[9]    Indiana law is clear that the Act provides “the exclusive remedy for recovery of

       personal injuries arising out of and in the course of employment.” Hall I, 994

       N.E.2d at 1224 (citing GKN Co. v. Magness, 744 N.E.2d 397, 401-02 (Ind.

       2001)). “‘Although the Act bars a court from hearing any common law claim

       brought against an employer for an on-the-job injury, it does permit an action

       for injury against a third-party tortfeasor provided the third-party is neither the

       plaintiff’s employer nor a fellow employee.’” Id. (quoting GKN Co., 744 N.E.2d

       at 402). In its definition of “employer,” the Act provides that “[a] parent

       corporation and its subsidiaries shall each be considered joint employers of the

       corporation’s, the parent’s, or the subsidiaries’ employees for purposes of IC 22-

       3-2-6 [exclusive remedies] and IC 22-3-3-31 [apportionment of award].” I.C. §

       22-3-6-1(a).


[10]   Hall directs us to McQuade v. Draw Tite, Inc., 659 N.E.2d 1016 (Ind. 1995),

       wherein our Supreme Court held that an employee was not precluded under the

       Act from bringing a negligence action against the parent corporation of her

       employer. At that time, however, the statutory definition of “employer” for

       purposes of the Act did not include a parent or subsidiary of the defendant’s

       employer. Finding the statutes in the Act were silent as to its applicability to an

       injured worker seeking recourse against his employer’s parent corporation, the

       court held that the parent corporation fell within the language of I.C. § 22-3-2-



       Court of Appeals of Indiana | Opinion 49A02-1502-CT-67 | February 3, 2016   Page 6 of 12
       13, which left intact the injured employee’s right to pursue a legal claim against

       any “other person than the employer.”


[11]   Hall also directs us to Ritter v. Stanton, 745 N.E.2d 828 (Ind. Ct. App. 2001),

       trans. denied, wherein this court refused to depart from the McQuade holding.

       We held that an injured employee could maintain an action against The Kroger

       Company, which was the parent corporation of his employer 4 from which he

       had already received a worker’s compensation settlement.


[12]   Effective July 1, 2000, the definition of employer under the Act was amended to

       provide that “[a] parent or a subsidiary of a corporation or a lessor of employees

       shall be considered to be the employer of the corporation’s, the lessee’s, or the

       lessor’s employees for purposes of IC 22-3-2-6.” In 2001, the legislature further

       amended the definition of “employer” for purposes of the Act to provide “[a]

       parent corporation and its subsidiaries shall each be considered joint employers

       of the corporation’s, the parent’s, or the subsidiaries’ employees for purposes

       of IC 22-3-2-6 and IC 22-3-3-31.” We find that the amendment to the Act’s

       definition of “employer” abrogated the holdings in Ritter and McQuade.


[13]   Hall nevertheless argues that we should strictly construe the statutory language

       and find that the Act’s definition of employer limits a “joint employer” to the

       subsidiaries of a single “parent corporation.” In other words, Hall argues that

       the legislature’s use of “parent corporation” in the singular signifies its intent to



       4
           Stanton worked for Gateway Freightline Corporation, which was a wholly owned subsidiary of Kroger.


       Court of Appeals of Indiana | Opinion 49A02-1502-CT-67 | February 3, 2016                     Page 7 of 12
       limit “parent corporation” to a direct or immediate parent corporation and

       exclude any higher tiered “parent” corporations. Hall maintains that the

       evidence shows only that the Bell Companies own 100% of Ameritech and not

       whether any one of the Bell Companies owns a majority of the voting shares of

       Ameritech. Hall asserts that if only one of the Bell Companies owns a majority

       of Ameritech’s shares, then that company is the parent corporation of

       Ameritech, thereby making AT&T Holdings and AT&T, Inc. the grandparent

       and great-grandparent corporations, respectively, of Ameritech. Hall designates

       them as such because, according to Hall, Ameritech cannot have multiple

       parent corporations. In the alternative, Hall argues that if none of the Bell

       Companies holds a majority of shares of Ameritech, then AT&T Teleholdings

       should be deemed the parent corporation, not AT&T, Inc. Under Hall’s

       interpretation of what constitutes a parent corporation, AT&T Services and

       Ameritech are not subsidiaries of the same parent corporation and therefore

       they are not joint employers of Hall such that AT&T Services can assert the

       exclusive remedy provision of the Act.


[14]   We disagree with Hall’s reading of the statutory language. As noted by this

       court in Hall I, the Act does not define subsidiary. In Hall I, this court therefore

       looked to the Indiana Business Corporation Law’s (BCL) definition of

       subsidiary, which provides that a subsidiary of a resident domestic corporation

       “‘means any other corporation of which a majority of the outstanding voting

       shares entitled to be cast are owned (directly or indirectly) by the resident

       domestic corporation.’” Hall I, 994 N.E.2d at 1226 (quoting Ind. Code § 23-1-


       Court of Appeals of Indiana | Opinion 49A02-1502-CT-67 | February 3, 2016   Page 8 of 12
       43-16). The court in Hall I determined that the evidence presented did not

       establish that AT&T Services and Ameritech were subsidiaries pursuant to this

       definition. To be sure, in addition to the uncertainty as to which entity was

       Hall’s employer, the court noted that the designated evidence showed only that

       Ameritech owned 8.15% of AT&T Services at the time of Hall’s fall, which was

       clearly not a majority of the outstanding voting shares. No further evidence

       was presented concerning the “complex corporate structure” involved. Id. at

       1224.


[15]   In its second motion for summary judgment, AT&T Services again argued that

       Hall’s claim was barred by the exclusive remedy provision of the Act. This

       time, AT&T Services sought to establish that it and Ameritech were subsidiaries

       within the meaning of that term as defined in the BCL and to answer the factual

       questions this court found were left unanswered in Hall I. In support of its

       second motion, AT&T Services designated the Affidavit of Stacy Hitzemann,

       Senior Data Analyst for AT&T Services, who affirmed that Hall was employed

       by Ameritech at the time of the occurrence. AT&T Services also designated the

       Affidavit of Steven Threlkeld, who explained the relevant portions of AT&T,

       Inc.’s corporate structure and the relationship between AT&T Services and

       Ameritech at the time of the occurrence. AT&T Services argues that this

       evidence establishes that it and Ameritech were both subsidiaries of AT&T, Inc.

       (the parent corporation) as defined by Section 16 of the BCL at the time of

       Hall’s fall. An organizational chart showing the corporate relationship between




       Court of Appeals of Indiana | Opinion 49A02-1502-CT-67 | February 3, 2016   Page 9 of 12
       AT&T Services and Ameritech was attached to Threlkeld’s affidavit and is

       reproduced below.




[16]   AT&T Services argues that because AT&T, Inc. owns 83.1% of AT&T

       Services, AT&T Services is a subsidiary of AT&T, Inc. AT&T Services further

       asserts that because AT&T, Inc. owns 100% of AT&T Teleholdings, Inc.,

       which in turn owns 100% of Illinois Bell Telephone Company, Wisconsin Bell,

       Court of Appeals of Indiana | Opinion 49A02-1502-CT-67 | February 3, 2016   Page 10 of 12
       Inc., Indiana Bell Telephone Company, Inc., Michigan Bell Telephone

       Company, and The Ohio Bell Telephone Company (the Bell Companies),

       which collectively owned 100% of Ameritech, Ameritech is also a subsidiary of

       AT&T, Inc., albeit a third-tier subsidiary.


[17]   In support of its position that there can be multiple tiers of subsidiaries and

       Ameritech should be deemed a subsidiary of AT&T, Inc., AT&T Services notes

       that the comments to the BCL’s definition of subsidiary elaborate that the term

       “includes all ‘tiered’ subsidiaries: If Corporation A owns a majority of the

       voting shares of Corporation B, which in turn owns a majority of the voting

       shares of Corporation C, Corporation C is a “subsidiary” of Corporation A for

       purposes of Chapter 43.” This comment squarely addresses the question

       presented and leads us to conclude that Ameritech is a subsidiary of AT&T,

       Inc. The fact that Ameritech is a third-tier subsidiary does not alter our

       conclusion.


[18]   Further, we agree that AT&T Services is also a subsidiary of AT&T, Inc.

       Because Ameritech and AT&T Services are both subsidiaries of AT&T, Inc.,

       they should be considered joint employers pursuant to the Act’s definition of

       “employer.” As such, Hall’s negligence action against AT&T Services is barred

       by the exclusive remedies provision of the Act because Hall has already

       received a worker’s compensation settlement from Ameritech. The trial court

       did not err in granting summary judgment in favor of AT&T Services.


[19]   Judgment affirmed.


       Court of Appeals of Indiana | Opinion 49A02-1502-CT-67 | February 3, 2016   Page 11 of 12
[20]   Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1502-CT-67 | February 3, 2016   Page 12 of 12
