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Jennings v. St. Vincent Hospital and Health Care Center8/17/2005
r surprised when that area of the hospital is the "boundary" that is used by Jennings. He certainly could not ply his professional trade anywhere else or he would be outside the parameters of the contract between St. Vincent and StarMed. It was the contract that defined Jennings' physical "work boundaries," not St. Vincent. The contract was also highly specific as to how many hours per week Jennings could work and when he was entitled to time off. St. Vincent had control over when those hours would be assigned, but none over the amount of hours.
The fact is that St. Vincent entered into this business arrangement because it believed it was one that was beneficial and shielded it from various liabilities. Fair enough. I do not believe that an entity such as St. Vincent should be permitted to use this decision to enter into this agreement with StarMed as both a sword and a shield. Judge Kirsch aptly stated a few years ago that the purpose of the Worker's Compensation Act is "not to immunize third-party tort feasors and their liability insurers from liability for negligence which results in serious injuries to one who is not in their employ." Nowicki, 711 N.E.2d at 544 (Kirsch, J., dissenting). Additionally, I keep in mind that "the remedies provided in the Worker's Compensation Act are in derogation of common law, . . . and a statute that is in derogation of common law must be strictly construed against limitations on a claimant's right to bring suit." McQuade v. Draw Tite, Inc., 659 N.E.2d 1016, 1018 (Ind. 1995). Any doubts about the application of the Act must be resolved in favor of the injured party. See id. (quoting Stump v. Commercial Union, 601 N.E.2d 327, 331-32 (Ind. 1992)). Although the facts here seem to make this a relatively close call, further scrutiny, in my opinion, reveals that we should err, if at all, on the side of the suing claimant -- Jennings.
The majority and I are on the same page that the mode of payment and length of employment factors of the Hale test clearly weigh against finding co-employee status for Jennings. I think we also are in agreement that the "work boundaries" factor is, at best, neutral in this case. The majority also recognizes that the belief of the parties factor weighs against finding co-employee status, but I would place much more emphasis on this factor than the majority does, given the plain and unambiguous language of the contract between St. Vincent and StarMed. I concede that St. Vincent had an indirect right to discharge Jennings but give this factor only minimal weight. I disagree that the "supplying tools or equipment" factor clearly weighs in favor of finding co-employee status and conclude it is at most a neutral consideration, given the nature of the "tools or equipment" a nurse uses in his or her work. I also disagree that the control factor indicates co-employee status, given that Jennings was directed in his day-to-day activities by doctors who themselves were independent contractors, not employees of St. Vincent. I would find, after weighing the seven Hale factors, that Jennings was not a "co-employee" of St. Vincent and StarMed.
I vote to reverse the trial court and to reinstate the complaint.
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