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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 the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: MATTHEW JON MCGOVERN Evansville, Indiana

ATTORNEY FOR APPELLEE: JOHN J. KREIGHBAUM Fine & Hatfield Evansville, Indiana

FILED
Nov 10 2009, 8:15 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
DARIN W. CHAMBERLAIN, Appellant-Plaintiff, vs. KYLE A. DAUGHERTY, Appellee-Defendant. ) ) ) ) ) ) ) ) )

CLERK

No. 82A04-0904-CV-230

APPEAL FROM THE VANDERBURGH CIRCUIT COURT The Honorable Carl A. Heldt, Judge Cause No. 82C01-0808-CT-326

November 10, 2009

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Darin W. Chamberlain appeals from the trial court's order granting the motion of Kyle A. Daugherty to dismiss Chamberlain's complaint for damages arising from personal injuries he suffered in an accident at his place of employment. Chamberlain presents a single issue for review, namely, whether Indiana Code Section 22-3-2-6, the exclusivity provision in the Indiana Worker's Compensation Act ("the Act"), bars Chamberlain's complaint against Daugherty. We hold that it does. We affirm. FACTS AND PROCEDURAL HISTORY On August 5, 2006, Chamberlain and Daugherty were employed at First Avenue Car Wash in Evansville. After Daugherty's supervisor, Mark Call, reprimanded him, Daugherty returned to work, entering a car to move it forward. At that time, Chamberlain was cleaning the rear bumper of a car approximately one and one-half car lengths in front of the car Daugherty was driving. Daugherty, with an "angry and crazed look on his face[,]" "gunned" the car he was in, pinning Chamberlain between the two vehicles. Appellant's App. at 13. Chamberlain suffered severe injury to his leg as a result of the accident. On August 4, 2008, Chamberlain filed a complaint against Daugherty, seeking damages for the injury to his leg. On October 28, Daugherty filed a motion to dismiss the complaint under Indiana Trial Rule 12(B)(1), citing in support the exclusivity provision of the Act. On January 12, 2009, Chamberlain filed his brief in opposition to the motion to dismiss the complaint. On January 16, Daugherty filed a response to Chamberlain's
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brief in opposition, on January 26 Chamberlain filed his reply brief, and on February 13, Daugherty filed his sur-reply brief.1 On March 25, the court held a hearing on

Daugherty's motion to dismiss. The court issued an order granting the motion, stating in part: [The Court] now finds that the act of [Daugherty] which allegedly caused the injury to [Chamberlain] was the moving of an automobile, and moving of automobiles was one of the jobs that [Daugherty] normally performed for the benefit of his employer. The fact that [Daugherty] may have operated the vehicle recklessly or outrageously, or in a dangerous way because he was angry at his employer, does not take his actions outside of the course and scope of his employment. Consequently, the Worker's Compensation Act bars [Chamberlain's] Complaint and this Court does not have the subject matter jurisdiction to entertain it. Appellant's App. at 15. Chamberlain now appeals. DISCUSSION AND DECISION Standard of Review Our standard of review of a trial court's ruling on a Trial Rule 12(B)(1) motion "is a function of what occurred in the trial court and is dependent upon: (i) whether the trial court resolved disputed facts; and (ii) if the trial court resolved disputed facts, whether it conducted an evidentiary hearing or ruled on a paper record." H.D. v. BHC Meadows Hosp., 884 N.E.2d 849, 852 (Ind. Ct. App. 2008), trans. denied. If a factual dispute exists and the trial court conducts an evidentiary hearing, we defer to its findings and judgment. Id. at 852-53. Where, as here, the facts before the trial court were in dispute, and an evidentiary hearing was held, we will give the trial court's factual findings and judgment deference. See Eichstadt v. Frisch's Rests., Inc., 879 N.E.2d 1207, 1209-10 (Ind. Ct.
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The parties have not included in the record on appeal any of the pleadings filed in response to Daugherty's motion to dismiss.

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App. 2008) (citing Argabright v. R.H. Marlin, Inc., 804 N.E.2d 1161, 1165 (Ind. Ct. App. 2004), trans. denied). We will only reverse if the findings and judgment are clearly erroneous. Id. In this case, we must determine whether, under the exclusivity provision of the Indiana Worker's Compensation Act, the trial court lacked subject matter jurisdiction over Chamberlain's complaint. The Act provides an exclusive remedy against an

employer for accidental injuries that arise out of and in the course of the injured employee's employment. Ind. Code

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