COA upholds summary judgment in workers’ comp case

November 30, 2016

Although he was hired to work on a specific project for a southern Indiana construction company, a worker who was injured on a construction job must seek damages through Indiana’s Worker’s Compensation Act because he was considered an “employee” of the company.

In April 2012, Joe’s Construction LLC, a company that did not carry workers’ compensation insurance, began working on a project installing water lines. Mark Vinup was hired by Joe’s Construction to work on the project.

During the project, a water pipe was knocked loose from its trailer and hit Vinup in the face and head, resulting in injuries. Vinup contacted Joe’s Construction to pursue workers’ comp benefits but received a letter saying he was not eligible for benefits because he was an independent contractor.

 Vinup then filed a complaint for damages, but Property-Owners Insurance Company filed a declaratory judgment complaint asking for a determination that pursuant to a policy exclusion, the policy did not provide coverage for the potential liability of the construction company or its owner, Joe Getz; that it had no duty to defend; and that it would not be liable for any judgment rendered in the future against the company or Getz related to Vinup’s injuries.

Property-Owners and Joe’s Construction then each filed for summary judgment, with the insurance company arguing that the company’s liability policy contained an employer’s liability exclusion that excluded coverage from bodily injury to employees of the insured arising during employment, thus not holding it responsible for Vinup’s injuries. Joe’s Construction argued that Vinup’s claims should be brought under Indiana’s Worker’s Compensation Act because he was considered an employee under Indiana law.

The Ohio Circuit Court granted both summary judgment motions, finding that there was no genuine issue of fact, that Vinup was an employee and that his injuries arose from his employment. Vinup appealed, arguing that there was a genuine issue of material fact as to whether he was an employee or an independent contractor.

Specifically, Vinup argued that six of the 10 factors laid out in Moberly v. Day, 757 N.E.2d 1007,1009 (Ind. 2001) to be used in the analysis of whether a person is an independent contractor or an employee weighed in favor of him being an independent contractor. For example, Vinup said he was employed for short-term work and was paid sporadically, two factors that generally lend themselves to the work of an independent contractor.

However, the Indiana Court of Appeals found Wednesday that a review of all 10 factors showed that Vinup failed to establish that a genuine issue of material fact exists as to whether he was Getz’s employee at the time of his injuries.

Further, the appellate court found that Vinup did not fit the definition of a “temporary worker” under the business’ liability policy and, thus, was considered an employee. Therefore, the grant of summary judgment in favor of Property-Owners and Joe’s Construction was not erroneous.

The case is Mark Vinup v. Joe’s Construction, LLC and Joe Getz and Property-Owners Insurance Company v. Joe’s Construction, LLC and Joe Getz, 58A04-1602-CT-502.


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