CURTSINGER et al v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Filing 54

ORDER denying State Farm's 34 Motion for Summary Judgment (Partial) as to Count II of the Complaint. Signed by Judge Richard L. Young on 7/27/2015. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

BOBBY CURTSINGER,
TABITHA CURTSINGER,

)
)
)
Plaintiffs,
)
)
vs.
)
)
STATE FARM MUTUAL AUTOMOBILE )
INSURANCE COMPANY,
)
)
Defendant.
)

4:13-cv-00201-RLY-WGH

ENTRY ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiffs, Bobby and Tabitha Curtsinger, brought this action against Defendant,
State Farm Mutual Automobile Insurance Company, to recover insurance benefits under
a policy issued to Jesse and Debra King. Bobby Curtsinger sustained injuries in an
automobile accident while operating a vehicle owned and insured by the Kings. State
Farm moves for summary judgment on Count II of Plaintiffs’ Complaint. Count II
alleges State Farm failed to honor the Policy’s Medical Payments Coverage provisions.
For reasons set forth below, State Farm’s motion is DENIED.
I.

Background
In November 2011, Mr. Curtsinger installed siding for Jesse King, a contractor, at

one of Mr. King’s residential job sites. After completing the job, Mr. Curtsinger drove
King’s truck to return unused siding. Another vehicle, deemed at fault, struck the vehicle
driven by Mr. Curtsinger, injuring him. The particular facts of the work Mr. Curtsinger
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performed and of the wreck are undisputed. Under Count II, Plaintiffs seek Medical
Payment Coverage from Defendant, the insurer of King’s vehicle. (See generally Filing
No. 34-1, Ex. A Curtsinger Dep.; Filing No. 34-2, Ex. B King Dep.; Filing No. 42-1, Ex.
A Excerpts Curtsinger Dep.; Filing No. 42-2, Ex. B Excerpts King Dep. (all hereinafter
referenced by Filing No.)).
King’s policy with State Farm for the vehicle involved excludes Medical Payment
Coverage “if any workers’ compensation law or any similar law applies to that insured’s
bodily injury.” (Filing No. 1-2, Exhibit A, State Farm Policy Booklet 11 (“the Policy”)).
Mr. Curtsinger initially sought workers’ compensation benefits from King, but dropped
the action pursuant to an agreement. The agreement precluded Mr. Curtsinger from
further pursuing workers’ compensation recovery but did not release all claims arising
from the wreck. (Filing No. 37, Compromise Agreement ¶ 3 (hereinafter “Compromise
Agreement”)).
II.

Standard of Review
When sitting in diversity jurisdiction, under the Erie Doctrine, federal courts apply

state substantive law but federal procedural law. Gasperini v. Ctr. for Humanities, Inc.,
518 U.S. 415, 428, 116 S. Ct. 2211 (1996). This court applies the federal standard for
summary judgment and Indiana law for the insurance benefits claim.
Summary judgment should be granted when there is no dispute as to any material
fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A
fact is material if it might affect the outcome of the case and genuine “if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
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Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986). The court views the
evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348 (1986); see also
Carmen v. Tinkes, 762 F.3d 565, 566 (7th Cir. 2014) (restating the summary judgment
standard).
III.

Discussion
Indiana’s workers’ compensation statute requires employers and employees “to

pay and accept compensation for personal injury or death by accident arising out of and
in the course of employment . . . .” Ind. Code § 22-3-2-2(a). An employee is “every
person, including a minor, in the service of another, under any contract of hire or
apprenticeship, written or implied, except one whose employment is both casual and not
in the usual course of trade, business, occupation, or profession of the employer.” Ind.
Code § 22-3-6-1(b).
State Farm argues Indiana’s workers’ compensation statutes apply to Mr.
Curtsinger because he was an employee acting in the course of his employment for King.
Thus, Defendant argues, the Policy’s workers’ compensation exception precludes
recovery. Plaintiffs counter that several disputes of fact preclude finding Mr. Curtsinger
was an employee.
The parties do not dispute whether Mr. Curtsinger was acting in the course of his
employment at the time of the accident. Instead, the parties contest whether Mr.
Curtsinger should be classified as an employee for the purposes of workers’

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compensation. Thus, whether State Farm succeeds on summary judgment turns on
whether a factual dispute exists as to Mr. Curtsinger’s classification as an employee.
Plaintiffs first argue the issue is inappropriate for summary judgment because it is
a question of fact. The question “can be one of mixed law and fact.” Expressway Dodge,
Inc. v. McFarland, 766 N.E.2d 26, 28 (Ind. Ct. App. 2002). “If the evidence is
undisputed and reasonably susceptible to but one inference, the question is one of law.”
Id. However, conflicting evidence or evidence that supports different inferences, presents
a question of fact. Id.
To distinguish between employees and independent contractors, under the statute,
Indiana defers to the Restatement’s ten-factor test. Id. at 30. The factors are:
(a) the extent of control which, by the agreement, the master may exercise
over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or
business;
(c) the kind of occupation, with reference to whether, in the locality, the
work is usually done under the direction of the employer or by a specialist
without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities,
tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the
employer;
(i) whether or not the parties believe they are creating the relation of master
and servant; and
(j) whether the principal is or is not in business.

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Expressway Dodge, 766 N.E.2d at 29 (quoting Moberly v. Day, 757 N.E.2d 1007,
1010 (Ind. 2001)). 1 The court must look to all factors. Mortgage Consultants,
Inc. v. Mahaney, 655 N.E.2d 493, 496 (Ind. 1995). No factor is dispositive, and
the list is not exhaustive. Id. However, the right to control is “important” and
often “determinative.” Moberly, 757 N.E.2d at 110 (quoting Restatement,
comment (d) to subsection (1)).
Although the underlying evidentiary facts are not disputed, the evidence
gives rise to different inferences. For example, as to control, King never gave Mr.
Curtsinger specific instructions and did not supervise his work, but King felt he
could correct Mr. Curtsinger if he did something incorrectly. (Filing No. 34-2 at
9, 13). Regarding the skill required, Mr. Curtsinger was skilled, but he was hired
on the day of the accident as a basic laborer. (Filing No. 34-2 at 9; Filing No. 42-1
at 10–11). As to length of employment, in this case, King employed Mr.
Curtsinger only for the day of the accident, but King sporadically had Mr.
Curtsinger assist on jobs over years. (Filing No. 34-1 at 2; Filing No. 34-2 at 3).
In regard to the tools supplied, Mr. Curtsinger provided his own tools for the job,
but used King’s truck to return the siding. (Filing No. 34-1 at 3; Filing No. 34-2 at
11–12). In considering whether the work was in the employer’s regular business,
Mr. Curtsinger sometimes worked for King at King’s own home—outside his
regular business. (Filing No. 34-2 at 3–4). However, the residential construction

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Indiana courts use the term “independent contractor” to distinguish a worker who is not an employee for
the purposes of workers’ compensation. See Expressway Dodge, 766 N.E.2d at 28–29.

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job from which Mr. Curtsinger was driving was within King’s regular business.
(Id.). Altogether, the evidence is not reasonably susceptible to but one inference.
In its reply brief, State Farm asserts that Mr. Curtsinger’s previous attempt
at recovery before the Indiana Worker’s Compensation Board, where he identified
himself as an employee of King, precludes him from now identifying as an
independent contractor. In support, State Farm relies on Piscione v. Ernst &
Young, LLP, 171 F.3d 527, 532 (7th Cir. 1998). However, Piscione deals with
conflicting testimony between an affidavit and a deposition in a single case. 2 Id.
Where a party seeks to preclude the opposing party from asserting a position taken
in an earlier legal proceeding, the relevant doctrine is judicial estoppel. Walton v.
Bayer Corp., 643 F.3d 994, 1002 (7th Cir. 2011). Judicial estoppel only applies if
the party was successful in the previous legal proceeding. Id. A party is not
precluded from a previous position in an unsuccessful proceeding because, after
losing the suit, “[the party] may have learned a lesson about what the facts show
and the law supports.” Astor Chauffeured Limousine Co. v. Runnfeldt Inv. Corp.,
910 F.2d 1540, 1548 (7th Cir. 1990). Mr. Curtsinger did not recover from the
Board, (Compromise Agreement ¶ 3b, 3e), 3 and he is not estopped from his
argument here.

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In addition to the distinguishable facts, the proposition in Piscione was overruled “to the extent [it]
suggest[ed] a plaintiff may not rely on ‘self-serving’ evidence to create a material fact dispute.” Hill v.
Tangherlini, 724 F.3d 965, n.1 (7th Cir. 2013).
3
In support of Defendant’s contention Mr. Curtsinger is barred by the agreement reached in his previous
workers’ compensation action, Defendant cites to Document No. 34-3, now located at Filing No. 37.
However, in this agreement Mr. Curtsinger only relinquished workers’ compensation claims, not all
claims arising out of the accident. (Compromise Agreement ¶ 3e).

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IV.

Conclusion
For the reasons stated above, the court DENIES State Farm’s Motion for

Summary Judgment on Count II of the Complaint (Filing No. 34).

SO ORDERED this 27th day of July 2015.

RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana

Distributed Electronically to Registered Counsel of Record.

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