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FOR PUBLICATION

ATTORNEYS FOR APPELLANT: MARY M. RUTH FELDHAKE JULIA BLACKWELL GELINAS LUCY R. DOLLENS Locke Reynolds, LLP Indianapolis, Indiana

ATTORNEY FOR APPELLEE: LEE F. BAKER Nunn Law Office Bloomington, Indiana

IN THE COURT OF APPEALS OF INDIANA
WISHARD MEMORIAL HOSPITAL, Appellant-Defendant, vs. JENNY KERR, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-0508-CV-793

APPEAL FROM THE MARION SUPERIOR COURT The Honorable David J. Dreyer, Judge Cause No. 49D10-0403-CT-484

May 10, 2006

OPINION - FOR PUBLICATION

BARNES, Judge

Case Summary Wishard Memorial Hospital ("Wishard") appeals the trial court's denial of its motion to dismiss Jenny Kerr's complaint, which alleged negligence on Wishard's part and sought personal injury damages. We affirm. Issue The sole issue is whether the trial court properly concluded that Wishard did not employ Kerr at the time of her injury and, therefore, the Worker's Compensation Act ("the Act") did not bar her from bringing this cause of action against Wishard. Facts Kerr is a registered nurse ("RN") who was directly employed by CareStaff, Inc., which is a temporary staffing agency for nurses. On September 12, 2002, CareStaff executed an agreement with Wishard for Kerr to work at Wishard, beginning on September 16 and ending October 12, 2002. The agreement listed the specific dates and times that Kerr was expected to work and referred to Kerr as a "CS Employee." App. p. 51. Kerr was assigned to work in Wishard's psychiatric emergency room ("ER"). On October 1, 2002, Kerr was departing Wishard after completing a shift when she slipped and fell on a freshly waxed floor, resulting in injuries. Kerr applied for and received worker's compensation benefits from CareStaff's insurer. She also filed a complaint sounding in negligence against Wishard; the complaint gave no indication that Kerr was an employee of Wishard. Wishard moved to dismiss the complaint for lack of subject matter jurisdiction, alleging that Kerr's cause of action was barred by the exclusivity provision of the Act 2

because Wishard was Kerr's employer. Ruling on a paper record, the trial court denied Wishard's motion to dismiss. The trial court certified this ruling for interlocutory appeal and we have agreed to accept jurisdiction. Analysis A defense against an employee's negligence claim on the basis that the employee's exclusive remedy is to pursue a claim for benefits under the Act is properly advanced through a motion to dismiss for lack of subject matter jurisdiction under Indiana Trial Rule 12(B)(1). GKN Co. v. Magness, 744 N.E.2d 397, 400 (Ind. 2001). "In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial court may consider not only the complaint and motion but also any affidavits or evidence submitted in support." Id. The trial court may weigh the evidence to resolve the jurisdictional issue. Id. The standard of appellate review for Trial Rule 12(B)(1) motions to dismiss is dependent upon what occurred in the trial court, that is: (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." Id. at 401. Here, the trial court ruled entirely on a "paper record." "We review de novo a trial court's ruling on a motion to dismiss where the facts before the trial court are disputed and the trial court rules on a paper record." Id. Additionally, the parties disagree on some of the facts and, just as important, on some of the inferences arising from the facts. In this type of situation, we will affirm the judgment of the trial court on any legal theory supported by the evidence. Id. "However, the ruling of the trial court is presumptively correct, and we 3

will reverse on the basis of an incorrect factual finding only if the appellant persuades us that the balance of evidence is tipped against the trial court's findings." Id. The Act "provides the exclusive remedy for recovery of personal injuries arising out of and in the course of employment." Id. at 401-02 (citing Ind. Code

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