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Binder v. Benchwarmers Sports Lounge8/24/2005
FOR PUBLICATION
Casey Binder appeals the trial court's entry of summary judgment against him. We reverse.
Issue
Binder raises one issue for our review: whether Benchwarmers Sports Lounge should be estopped from pleading the statute of limitations defense.
Facts and Procedural History
Binder worked at a bar called Benchwarmers Sports Lounge. At various times he worked in several different capacities: as an employee for the owner, as an "independent contractor" working security for the owner, and as an "independent contractor" working security for a gentleman hosting events at the bar. On January 16, 2002, Binder was working in the bar and was injured in attempting to break up a fight. Binder timely filed an Application for Adjustment of Claim with the Indiana Worker's Compensation Board.
During the course of the worker's compensation litigation, Binder's attorney, Patrick J. Hinkle, sent Benchwarmers discovery. Interrogatory No. 1.2, served on November 10, 2003, sought the names of Benchwarmers' witnesses and their expected testimony. Benchwarmers, by its attorney Sally P. Norton, responded on December 19, 2003, in pertinent part: "Unknown at this time; however, the Defendant may call the Plaintiff, Steve Mitchell, Meka Rans, and South Bend Police Records custodian to testify as to the facts surrounding the Plaintiff's employment with the Defendant and circumstances surrounding the January 16, 2002 alleged injury ." Appellant's Appendix at 3. Interrogatory No. 1.4, also served on November 10, 2003, asked: "What was the relationship between the Plaintiff Casey Binder and the Defendant at the time of the alleged injury?" Id. Benchwarmers responded: "Objection. This interrogatory is too vague and ambiguous so as to enable the Defendant to articulate a response to the same." Id.
Hinkle followed up on that response with a letter dated January 2, 2004. That letter read:
Is your client denying Casey was an employee at the time of the alleged injury ?
My Interrogatory No. 1.4 was intended to discover whether your client contends Casey was an employee, independent contractor, or invitee at the time he was injured. Can you respond now or do you still have an objection?
Please advise.
Appellant's App. at 94b. Norton responded by letter dated January 5, 2004:
In response to your January 2, 2004 correspondence wherein you request my client's position on whether Mr. Binder was an employee at the time of the alleged injury , it is my client's position that your client was not acting in the course and scope of his employment at the time of the alleged injury. I trust this answers the question posed in your January 2, 2004 correspondence.
Appellant's App. at 95.
On or about January 16, 2004, any claim Binder may have had against Benchwarmer's went from ripe to untimely as the two year statute of limitations expired without Binder filing a lawsuit.
On February 23, 2004, Hinkle took the deposition of Steven Mitchell, Benchwarmers' owner at the time of Binder's incident. At that time, Hinkle found out, for the first time, that, according to Mitchell, Binder was not employed by Benchwarmers in January of 2002. Appellant's App. at 114-15. Mitchell claimed that Binder was working security for a third party on the night of the incident. Appellant's App. at 114.
Binder filed his complaint in this matter on March 11, 2004. Benchwarmers answered and raised the defense of the statute of limitations. Benchwarmers then moved for judgment on the pleadings, claiming Binder's complaint was untimely. The parties briefed the issu
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