The opinion
IN THE
Court of Appeals of Indiana FILED
Dec 04 2024, 11:00 am
Theresa England, CLERK
Indiana Supreme Court
Court of Appeals
Appellant-Plaintiff and Tax Court
v.
Steven R. Siebe and FedEx Freight, Inc., a foreign for-profit
corporation licensed in Indiana,
Appellees-Defendants
December 4, 2024
Court of Appeals Case No.
24A-CT-497
Appeal from the LaPorte Superior Court
The Honorable Richard R. Stalbrink, Jr., Judge
Trial Court Cause No.
46D02-2105-CT-898
Opinion by Judge Mathias
Judges Brown and Kenworthy concur.
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Mathias, Judge.
[1] Theresa England appeals the trial court’s dismissal of her complaint for lack of
subject matter jurisdiction. England raises four issues for our review, which we
consolidate and restate as the following two issues:
1. Whether the trial court’s dismissal of England’s complaint was
contrary to Indiana’s Worker’s Compensation Act (“the Act”).
2. Whether Indiana Code section 22-3-6-1(a), which defines an
“employer” under the Act to encompass parent and subsidiary
companies, violates the Indiana Constitution.
[2] We affirm.
Facts and Procedural History
[3] In August 2020, England worked as an employee of FedEx Express
Corporation (“FedEx Express”), and Steven R. Siebe worked as an employee of
FedEx Freight, Inc. (“FedEx Freight”). FedEx Express is a 100% owned
subsidiary of FedEx Corporation. FedEx Freight is a 100% owned subsidiary of
FedEx Freight Corporation, and FedEx Freight Corporation, like FedEx
Express, is a 100% owned subsidiary of FedEx Corporation.
[4] Around 9:10 a.m. on August 17, while in the course and scope of her
employment with FedEx Express, England delivered a shipment to Pratt
Industries, Inc. in Valparaiso. At the same time and place, Siebe, while in the
course and scope of his employment with FedEx Freight, was operating a
tractor-trailer at the Pratt Industries’ loading dock. England attempted to make
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her delivery at a delivery office, but she was directed to make the delivery at the
loading dock. As she walked along the loading dock, Siebe operated the tractor-
trailer in reverse, but the tractor-trailer did not have an operating audible or
visual warning system to alert others that the vehicle was being operated in
reverse. Siebe then backed the tractor-trailer into England, pinning her between
the vehicle and the loading dock. England suffered catastrophic injuries.
[5] In May 2021, England filed her complaint against Siebe, FedEx Freight, and
Pratt Industries. Thereafter, Siebe and FedEx Freight jointly moved to dismiss
England’s complaint as to them on the ground that her claims were barred by
the Act. In support of their joint motion to dismiss, Siebe and FedEx Freight
submitted designated evidence, which included business records that showed
the parent and subsidiary relationships of the various FedEx businesses. In
response, England argued that the relevant statutory language and precedent
did not support the motion to dismiss. She also argued that a contrary
understanding of the relevant statutes would violate her rights to open courts
and trial by jury under Article 1, Sections 12 and 20 of the Indiana
Constitution. See Appellant’s App. Vol. 2, p. 74.
[6] The trial court held a hearing on the joint motion to dismiss and heard the
arguments of counsel. Thereafter, the court entered its order dismissing
England’s complaint as to Siebe and FedEx Freight. The court then certified its
order for interlocutory review, which we accepted.
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Standard of Review
[7] England appeals the trial court’s dismissal of her complaint as to Siebe and
FedEx Freight, whom we will refer to collectively as FedEx Freight going
forward. As our Supreme Court has explained:
a motion to dismiss for lack of subject matter jurisdiction presents
a threshold question concerning the court’s power to act. When a
court lacks subject matter jurisdiction, any action it takes is void.
A dismissal under Trial Rule 12(B)(1) is not an adjudication on
the merits nor is it res judicata. A plaintiff thus is free to refile the
action in the . . . tribunal that has jurisdiction. Lack of subject
matter jurisdiction is an affirmative defense which may be raised
in the pleadings, see T.R. 8(C), or on motion under 12(B)(1).
***
In ruling on a motion to dismiss for lack of subject matter
jurisdiction, the court may resolve factual disputes. The court has
considerable latitude in devising procedures to ferret out the facts
pertinent to jurisdiction, and it is well established that in doing so
it may consider not only the complaint and motion but any
affidavits or other evidence submitted. Moreover, when
considering a motion to dismiss for want of subject matter
jurisdiction, a court may weigh the evidence to determine the
existence of the requisite jurisdictional facts.
Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d 1282, 1286-87 (Ind. 1994) (citations
omitted). And where, as here, the facts are not in dispute, “the question of
subject matter jurisdiction is one of law,” and we will “review the trial court’s
ruling de novo.” Citizens Action Coalition of Ind. v. Koch, 51 N.E.3d 236, 240 (Ind.
2016).
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1. Indiana’s judiciary does not have original jurisdiction over
England’s claims against a joint employer or its employee.
[8] On appeal, England first contends that the trial court misapplied the Act when
it dismissed her complaint. We do not agree.
[9] Our Supreme Court has long made clear that
recovery for personal injury or death by accident arising out of
employment and in the course of employment [must] be sought
exclusively under the Worker’s Compensation Act and . . . such
actions are cognizable only by the Worker’s Compensation
Board. The legislature intended the board’s jurisdiction in such
cases to be original and exclusive, and resort may not be had to
the courts until the administrative process has been completely
exhausted. Claims which do not meet any one of the
jurisdictional prerequisites do not fall within the act and may be
pursued in court.
Perry, 637 N.E.2d at 1285 (citations omitted).
[10] The Act defines an “employer” in relevant part to expressly include “a parent
corporation and its subsidiaries,” which “shall each be considered joint
employers” of the injured employee. Ind. Code § 22-3-6-1(a) (2020). As we have
explained:
[In] McQuade v. Draw Tite, Inc., 659 N.E.2d 1016 (Ind.
1995), . . . 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
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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. § 22-3-2-13, which left
intact the injured employee’s right to pursue a legal claim against
any “other person than the employer.”
[And in] Ritter v. Stanton, 745 N.E.2d 828 (Ind. Ct. App. 2001),
trans. denied, . . . 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 from which he had already received
a worker’s compensation settlement.
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[s] to the Act’s
definition of “employer” abrogated the holdings in Ritter and
McQuade.
Hall v. Dallman Contractors, LLC, 51 N.E.3d 261, 264-65 (Ind. Ct. App. 2016)
(footnote omitted; some alterations original to Hall).
[11] In Hall, an employee of Ameritech Services, Inc. was injured in the course and
scope of her employment when she tripped in snow outside of a building owned
by AT&T, Inc. The employee sued AT&T, Inc. for her injuries, and AT&T,
Inc. moved to substitute AT&T Services, Inc. as the real party in interest as
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AT&T Services, Inc. was alleged to be the party responsible for snow removal
outside the building.
[12] The AT&T companies then moved to dismiss the employee’s complaint for
lack of subject matter jurisdiction based on the Act’s statutory definition of an
employer. In support of that motion, the AT&T companies submitted evidence
that showed that Ameritech Services, Inc. was 100% owned by numerous Bell
companies; that the Bell companies were 100% owned by AT&T Teleholdings,
Inc.; and that AT&T Teleholdings, Inc. was 100% owned by AT&T, Inc. The
evidence further showed that AT&T Services, Inc. was 83.1% owned by AT&T,
Inc. The trial court agreed with the AT&T companies and dismissed the
employee’s complaint.
[13] On appeal, we agreed with the trial court and held that the relevant statutory
definition of a “subsidiary” includes “all tiered subsidiaries.” Id. at 267
(quotation marks omitted). Thus, we concluded that Ameritech Services, Inc.
was a subsidiary, albeit a “third-tier subsidiary,” of AT&T, Inc., and that
AT&T Services, Inc. was “also a subsidiary of AT&T, Inc.” Id. As both the
employee’s direct employer (Ameritech Services, Inc.) and the alleged tortfeasor
(AT&T Services, Inc.) had a common parent company (AT&T, Inc.), we held
that the direct employer and alleged tortfeasor “should be considered joint
employers pursuant to the Act’s definition of ‘employer.’” Id. Hence, the
employee’s action against the alleged tortfeasor was “barred by the exclusive
remedies provision of the Act.” Id.
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[14] Here, England was an employee of FedEx Express. FedEx Express is a 100%
owned subsidiary of FedEx Corporation. She has filed suit against FedEx
Freight and its employee; however, FedEx Freight is a 100% owned subsidiary
of FedEx Freight Corporation, and FedEx Freight Corporation, like FedEx
Express, is a 100% owned subsidiary of FedEx Corporation. Thus, like the
employee in Hall, both England’s direct employer (FedEx Express) and the
alleged tortfeasor (vicariously, FedEx Freight) have the same parent company
(FedEx Corporation). Accordingly, England’s direct employer and the alleged
tortfeasor are joint employers under the Act, and her claims against Siebe and
FedEx Freight are barred by the Act’s exclusive remedies provision.
[15] Still, England argues that Indiana Code section 22-3-6-1(a) “does not
say . . . that sibling corporations are ‘joint employers’ under the Act.”
Appellant’s Br. at 12. England is incorrect. The statute says, “a parent
corporation and its subsidiaries . . . shall each be considered joint
employers . . . .” I.C. § 22-3-6-1(a) (emphases added). That language
unambiguously identifies parent companies of the employee’s direct employer
as joint employers, and it likewise unambiguously and separately identifies all
of the parent company’s subsidiaries—and, thus, “sibling corporations”—as
joint employers.
[16] England also argues that we should follow McQuade and other authority that
predates the current statutory language. We decline to do so. In addition,
England argues that Hall was incorrectly decided and that we should not follow
it. We disagree and think that Hall correctly follows the plain language of the
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Act. Finally, England asserts that Hall is distinguishable because the employee
in Hall, unlike England, had already received a worker’s compensation
settlement from her employer. But England’s attempt to distinguish Hall has no
bearing on the statutory definition of an employer under the Act, and we do not
find her argument persuasive.
[17] Accordingly, the trial court properly dismissed England’s complaint as to
FedEx Freight and Siebe in accordance with the Act.
2. Indiana Code section 22-3-6-1(a) is constitutional.
[18] We thus turn to England’s arguments on appeal that Indiana Code section 22-3-
6-1(a) violates the Indiana Constitution. According to England, by defining an
“employer” under the Act to include a parent corporation and its subsidiaries,
Indiana Code section 22-3-6-1(a) violates the Open Courts Clause of Article 1,
Section 12 of the Indiana Constitution and the Right to Trial by Jury Clause of
Article 1, Section 20. England also argues for the first time on appeal that the
statute violates the Equal Privileges and Immunities Clause of Article 1, Section
23.
[19] As our Supreme Court has made clear:
When a statute is challenged as an alleged violation of the
Indiana Constitution, our standard of review is well settled. A
statute is presumed constitutional until the party challenging its
constitutionality clearly overcomes the presumption by a
contrary showing. If a statute has two reasonable interpretations,
one constitutional and the other not, we will choose the
interpretation that will uphold the constitutionality of the statute.
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We do not presume that the General Assembly violated the
constitution unless the unambiguous language of the statute so
mandates. This Court should nullify a statute on constitutional
grounds only where such result is clearly rational and necessary.
Sims v. U.S. Fid. & Guar. Co., 782 N.E.2d 345, 349 (Ind. 2003).1
[20] In a similar challenge to the constitutionality of the Act in Sims, our Supreme
Court made clear that the Act did not violate either the Open Courts Clause or
the Right to Trial by Jury Clause. As the Court explained, an employee under
the Act “is not completely denied access to the courts. Rather, he is merely
required to present his claim first to the full Worker’s Compensation Board.” Id.
at 351. Further, claims covered by the Act are “part of a special statutory
proceeding” and are not a “‘civil case’ as contemplated by” the Right to Trial
by Jury Clause. Id. We conclude that Sims forecloses England’s similar
arguments under Sections 12 and 20 of Article 1.
[21] That leaves England’s challenge to Indiana Code section 22-3-6-1(a) under the
Equal Privileges and Immunities Clause of Article 1, Section 23. And, here, we
agree with FedEx Freight that England has not preserved this argument for
appellate review. As our Supreme Court has held: “the general rule is that
failure to challenge the constitutionality of a statute at trial results in waiver of
review on appeal.” Planck v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind.
1
Although FedEx Freight relied on Sims in the trial court and in its Appellees’ Brief, England does not
discuss or mention it in either of her briefs to our Court.
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2013). Here, England challenged the constitutionality of the statute in the trial
court only under Article 1, Sections 12 and 20. She did not challenge the statute
under Article 1, Section 23. Further, in Sims, our Supreme Court held that the
Act as a whole did not violate Article 1, Section 23, and in her briefs on appeal
England makes no attempt to distinguish that authority. See Sims, 782 N.E.2d at
353-54; see also Ind. Appellate Rule 46(A)(8)(a). Accordingly, we conclude that
England’s argument under the Equal Privileges and Immunities Clause is not
properly before us.
Conclusion
[22] For all of these reasons, we affirm the trial court’s dismissal of England’s
complaint against Siebe and FedEx Freight.
[23] Affirmed.
Brown, J., and Kenworthy, J., concur.
ATTORNEYS FOR APPELLANT
William T. Gibbs
Corboy & Demetrio, P.C.
Chicago, Illinois
Jon F. Schmoll
Langer & Langer
Valparaiso, Indiana
ATTORNEYS FOR APPELLEES
Bruce D. Jones
Keith A. Gaston
Emily O. Sery
Court of Appeals of Indiana | Opinion 24A-CT-497 | December 4, 2024 Page 11 of 12
Cruser, Mitchell, Novitz, Sanchez, Gaston, & Zimet, LLP
Indianapolis, Indiana
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