 Pursuant to Ind. Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of establishing                                       Sep 24 2013, 5:29 am
 the defense of res judicata, collateral
 estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                            ATTORNEY FOR APPELLEES:

JOHN P. NICHOLS                                    ROBERT F. DOLACK
Anderson & Nichols                                 Travelers Staff Counsel Office
Terre Haute, Indiana                               Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

NANCY HARNEY,                            )
                                         )
      Appellant-Plaintiff,               )
                                         )
             vs.                         )                  No. 84A05-1304-CT-184
                                         )
DENNY’S RESTAURANT, INC.,                )
B.R. ASSOCIATES, INC., and CITIZENS BANK )
OF MICHIGAN CITY INDIANA,                )
                                         )
      Appellees-Defendants.              )


                       APPEAL FROM THE VIGO SUPERIOR COURT
                           The Honorable John T. Roach, Judge
                             Cause No. 84D01-1104-CT-3372



                                       September 24, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
       The undisputed facts are that on May 7, 2009, Nancy Harney was employed as a

server at a Denny’s Restaurant in Terre Haute owned by franchisee B.R. Associates, Inc.

Approximately ten minutes before her shift, she “parked on the side of the building where the

employees are supposed to park,” walked up the sidewalk toward the restaurant, and slipped

and fell on gravel scattered across the sidewalk at the entrance. Appellant’s App. at 60.

Harney filed a negligence complaint against Denny’s, B.R. Associates, and Citizens Bank of

Michigan City Indiana, which has an ownership interest in the premises. The defendants

filed a motion for summary judgment asserting that Harney’s exclusive remedy is under the

Indiana Worker’s Compensation Act (“the Act”). The trial court granted the motion without

a hearing. Harney now appeals.

       The Act “provides compensation to employees for injuries which arise out of and in

the course of their employment.” Lawhead v. Brown, 653 N.E.2d 527, 529 (Ind. Ct. App.

1995) (citing Ind. Code § 22-3-2-2). “The rights and remedies under the Act are exclusive

and exclude all other rights and remedies for such injuries.” Id. (citing Ind. Code § 22-3-2-

6). “[T]he course of employment includes the time that employees are on the employer’s

premises and are going to and leaving the work place.” Id. “[T]he period of employment

includes a reasonable time before and after the employee engages in work.” Id. “[T[he Act

extends ‘to those accidents resulting from the ingress-egress of employees to the employer’s

operating premises or extensions thereof.’” Id. (quoting Segally v. Ancerys, 486 N.E.2d 578,

581-82 (Ind. Ct. App. 1985)).




                                             2
       Harney’s only argument against the Act’s applicability is that she “was walking in an

area where non-employees are often present.” Appellant’s Br. at 4. Contrary to her

assertion, Segally does not state that being injured in a public area precludes application of

the Act. In fact, Segally says that “the actual situs of the injury, although a consideration, is

not controlling.” 486 N.E.2d at 581. Because it is undisputed that Harney was injured as she

was about to enter the restaurant to begin her shift, we agree with the trial court that her

injuries arose out of and in the course of her employment and that her exclusive remedy is

under the Act. See Lawhead, 653 N.E.2d at 529 (“An injury ‘arises out of’ employment

when a causal nexus exists between the injury sustained and the duties or service performed

by the injured employee.… [A]ccidents resulting from employees arriving at or leaving from

an employer’s premises are employment related risks.”).

       That being said, we note that a summary judgment motion is inappropriate for raising

the Act’s exclusivity provision because it is an attack on the trial court’s subject matter

jurisdiction. Davis v. Cent. Rent-A-Crane, Inc., 663 N.E.2d 1177, 1179 (Ind. Ct. App. 1996)

(citing Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d 1282, 1286 (Ind. 1994)), disapproved

on other grounds by GKN Co. v. Magness, 744 N.E.2d 397 (Ind. 2001).

       Summary judgment cannot be rendered by a court without jurisdiction.
       Instead, the defense should be raised as an affirmative defense in the answer or
       by a motion to dismiss pursuant to Ind. Trial Rule 12(B)(1). Thus, the motion
       for summary judgment shall be treated as a motion to dismiss for lack of
       subject matter jurisdiction.

Id. (citations omitted). Consequently, we reverse the trial court’s entry of summary judgment

and remand with instructions to dismiss for lack of subject matter jurisdiction.


                                               3
      Reversed and remanded.

BARNES, J., and PYLE, J., concur.




                                    4
