Anonymous Provider 2 v. Estate of Ryan K. Askew, by Fonetta Askew, Personal Representative

FILED Nov 28 2023, 9:30 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES Michael A. Sarafin Douglas D. Church Michael J. Bolde Alexander P. Pinegar Johnson & Bell, P.C. Steven H. David Crown Point, Indiana Sloan R. Schafer Church Church Hittle + Antrim Noblesville, Indiana Daniel B. Vinovich Hilbrich Cunningham Dobosz Vinovich & Sandoval, LLP Highland Indiana

IN THE COURT OF APPEALS OF INDIANA

Anonymous Provider 2, November 28, 2023 Appellant-Petitioner, Court of Appeals Case No. 23A-CT-992 v. Appeal from the Lake Superior Court Estate of Ryan K. Askew, by The Honorable John M. Sedia, Fonetta Askew, Personal Judge Representative, Trial Court Cause No. Appellee-Respondent. 45D01-2211-CT-1196

Opinion by Judge Brown Judges Vaidik and Bradford concur.

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Brown, Judge. [1] Anonymous Provider 2 (“AP2”) appeals the trial court’s denial of his motion to

dismiss under Ind. Trial Rule 12(B)(1). The Estate of Ryan Askew (“the

Estate”) filed a motion to dismiss the appeal. We dismiss the appeal and

remand.

Facts and Procedural History [2] In December 2021, the Estate filed a proposed complaint against AP2 and two

other parties with the Indiana Department of Insurance alleging that Ryan

Askew, a security guard at Community Hospital, died after being shot during

an encounter with a mentally ill and dangerous patient and that the defendants

committed medical malpractice in part by failing to timely and properly

evaluate the patient and transfer the patient to an appropriate unit or facility for

hospitalization and treatment. [3] On November 23, 2022, AP2 filed a “Petition for Preliminary Determination of

Law and 12(B)(1) Motion to Dismiss.” Appellant’s Appendix Volume II at 18.

The petition stated that AP2 “move[d] the Court to dismiss [the Estate’s]

medical malpractice case against [AP2] because [the Estate], despite already

exhausting its sold [sic] and exclusive remedy under the Worker’s

Compensation Act (‘WCA’) for a work injury involving [Askew] who was a

fellow employee in the same employ as [AP2], now seeks to circumvent its sole

remedy under the WCA and pursue additional compensation pursuant to the

Indiana Medical Malpractice Act . . . (‘MMA’).” Id. The Estate filed a

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response arguing that AP2 was “not a fellow employee under the WCA” and,

“even if he were, Indiana Courts have long allowed medical malpractice claims

to proceed against fellow employee-physicians as an exception to the WCA.”

Id. at 51. On April 3, 2023, the court held a hearing. [4] On April 6, 2023, the trial court issued an “Order on Petition for Preliminary

Determination Denying Motion to Dismiss.” Id. at 10. The court found that

Askew was employed by Munster Hospital, AP2 was employed by Community

Care Network, Inc., and Askew had “the right to pursue his remedy for medical

malpractice against [AP2] as the two were not coworkers as defined by IC 22-3-

2-13(a).” 1 Id. at 11-12. The court further indicated AP2’s position was that the

subsidiary arrangement of AP2 and Askew’s employers made AP2 and Askew

fellow employees, and the court found that, “[b]ecause Munster Hospital,

which employed [Askew], owned only a third of the shares of and could not ‘ . .

. control[s] the activities . . .,’ IC 22-3-6-1(a), 2 of Community Care, which

1 Ind. Code § 22-3-2-13(a) provides in part:

Whenever an injury or death, for which compensation is payable under chapters 2 through 6 of this article shall have been sustained under circumstances creating in some other person than the employer and not in the same employ a legal liability to pay damages in respect thereto, the injured employee, or the injured employee’s dependents, in case of death, may commence legal proceedings against the other person to recover damages notwithstanding the employer’s or the employer’s compensation insurance carrier’s payment of or liability to pay compensation under chapters 2 through 6 of this article. 2 Ind. Code § 22-3-6-1(a) provides in part:

A corporation, limited liability company, or limited liability partnership that controls the activities of another corporation, limited liability company, or limited liability partnership, or a corporation and a limited liability company or a corporation and a limited liability partnership that are commonly owned entities, or the controlled corporation, limited liability company, limited liability partnership, or commonly owned entities, and a parent corporation and its subsidiaries shall each be considered joint employers of the corporation’s, the controlled

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employed [AP2], [AP2] fits the definition of ‘. . . some other person than the

employer and not in the same employ . . . ,’ IC 22-3-2-13(a), as [Askew].” Id. at

16-17. The court denied AP2’s motion to dismiss under Ind. Trial Rule

12(B)(1). 3 The court’s order cited Ind. Trial Rule 54(B) and stated, “[t]here

being no just reason for delay, a final and appealable judgment is entered in

favor of [the Estate] and against [AP2].” Id. at 17. On May 3, 2023, AP2 filed

a notice of appeal. [5] On July 26, 2023, the Estate filed a motion to dismiss the appeal. The Estate

argued:

A trial court may only certify an order as “final and appealable” under T.R. 54(B)[4] when the order disposes of one or more

corporation’s, the limited liability company’s, the limited liability partnership’s, the commonly owned entities’, the parent’s, or the subsidiaries’ employees for purposes of IC 22-3-2-6 and IC 22-3-3-31. 3 Ind. Trial Rule 12(B) provides “the following defenses may be made by motion: (1) Lack of jurisdiction over the subject matter . . . .” Ind. Trial Rule 12(D) provides, “[w]hether made in a pleading or by motion, the defenses specifically enumerated (1) to (8) in subdivision (B) . . . shall, upon application of any party . . . be determined before trial unless substantial justice requires the court to defer hearing until trial.” 4 Ind. Trial Rule 54(B) provides:

When more than one [1] claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. A judgment as to one or more but fewer than all of the claims or parties is final when the court in writing expressly determines that there is no just reason for delay, and in writing expressly directs entry of judgment, and an appeal may be taken upon this or other issues resolved by the judgment; but in other cases a judgment, decision or order as to less than all the claims and parties is not final.

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claims or issues against a party. Courts have elaborated that judgment “must dispose of at least a single substantive claim.” See, e.g., Cardiology Assocs. of NW Ind., P.C. v. Collins, 804 N.E.2d 151, 154 (Ind. Ct. App. 2004). Here, the order denied the dismissal so the claim against [AP2] was not disposed of and he is still in the case at this juncture.

July 26, 2023 Motion to Dismiss at 2. The Estate argued that, “[b]ecause the

trial court’s order in this case denied [AP2’s] Motion to Dismiss, the order did

not render any ‘final judgment’ against anyone because it did not ‘dispose’ of

one or more claims or issues against a party” and, “[t]herefore, the order cannot

be a final appealable order, even though the trial court added the T.R. 54(B)

‘magic language’ to the end of its order.” Id. It contended that “the appropriate

avenue of appeal is that of a discretionary interlocutory appeal.” Id. at 2-3. On

August 2, 2023, AP2 filed a response arguing that, “[u]nlike the summary

judgment order in [Cardiology Associates], the Appealed Order decided a T.R.

12(B)(1) defense that the Trial Court had to decide before trial as required by

T.R. 12(D)” and “[t]he Appealed Order . . . includes all required language that

renders it final under T.R. 54(B), and App. R. 2(H)(2).” August 2, 2023

Response to Motion to Dismiss at 6-7.

Discussion [6] The dispositive issue is whether the trial court’s April 6, 2023 order is an

appealable order. A party may appeal from a final judgment and certain

interlocutory orders. See Ind. Appellate Rule 5; Ind. Appellate Rule 9(A). Ind.

Appellate Rule 2(H) provides that a judgment is a final judgment if:

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(1) it disposes of all claims as to all parties;

(2) the trial court in writing expressly determines under Trial Rule 54(B) or Trial Rule 56(C) that there is no just reason for delay and in writing expressly directs the entry of judgment (i) under Trial Rule 54(B) as to fewer than all the claims or parties, or (ii) under Trial Rule 56(C) as to fewer than all the issues, claims or parties;

(3) it is deemed final under Trial Rule 60(C);

(4) it is a ruling on either a mandatory or permissive Motion to Correct Error which was timely filed under Trial Rule 59 or Criminal Rule 16; or

(5) it is otherwise deemed final by law. [7] AP2’s notice of appeal identifies the order being appealed as the trial court’s

April 6, 2023 order and indicates the order is a final judgment. AP2 agrees that

the April 6, 2023 order does not dispose of all claims as to all parties and is not

a final judgment under Ind. Appellate Rule 2(H)(1). The April 6, 2023 order

contains the language referenced in Trial Rule 54(B) that there is no just reason

for delay. [8] In Legg v. O’Connor, the defendants in a medical malpractice action moved for

summary judgment. 557 N.E.2d 675, 676 (Ind. Ct. App. 1990). The trial court

granted “judgment as a matter of law on all issues except the issue of informed

consent” and “certified the case for appeal, reciting that there [was] not just

reason for delay, and reserving for trial the issue of informed consent.” Id. On

appeal, this Court held that, to be certifiable under Trial Rule 54(B), “a

judgment must possess the requisite degree of finality, and must dispose of at

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least a single substantive claim.” Id. We held that Trial Rule 54(B) “does not

apply to a single claim action,” “[a] claim asserts only one legal right growing

out of a single transaction or series of related transactions,” and “[a] single

claim resting on multiple theories or a single claim with an alternative request

for relief [is] not [a] final judgment[] which a trial court may certify [under Trial

Rule 54(B)] for appeal.” Id. (citations omitted). The Court found the plaintiff’s

claim arose from a single transaction, “[t]his single negligence claim cannot be

certified under T.R. 54(B),” and “[t]he trial court’s order was interlocutory

despite the [Trial Rule 54(B)] certification,” and the Court dismissed the appeal.

Id. at 677. [9] In Cardiology Assocs., the defendants appealed the denial of their motion for

summary judgment. 804 N.E.2d at 153. This Court observed that, “to be a

final judgment under T.R. 54(B) and T.R. 56(C), a judgment must possess the

requisite degree of finality and must dispose of at least a single substantive

claim,” id. at 154 (citing Legg, 557 N.E.2d at 676), and noted an order denying a

motion for summary judgment “is not a final appealable order, as no rights

have been thereby foreclosed” and “[t]he denial merely places the parties’ rights

in abeyance pending ultimate determination by the trier of fact.” Id. at 154-155

(citations omitted). We concluded the trial court’s ruling was interlocutory in

nature despite the trial court’s use of the magic language in Trial Rule 54(B) and

the parties did not follow the proper procedure for bringing an interlocutory

appeal, and we dismissed the appeal and remanded for further proceedings. Id.

at 155 (citations omitted). See also Anonymous Dr. A v. Sherrard, 783 N.E.2d 296,

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299 (Ind. Ct. App. 2003) (holding the trial court’s denial of the defendant’s

summary judgment motion arguing the statute of limitations in a medical

malpractice action had expired was not a final appealable judgment despite the

trial court’s use of the magic language in Trial Rule 54(B) and dismissing the

appeal), reh’g denied. [10] Here, the only substantive claim is the Estate’s medical malpractice claim. The

trial court’s order denying AP2’s motion to dismiss did not dispose of the

Estate’s single claim. The court’s order did not possess the requisite degree of

finality to be certifiable under Trial Rule 54(B) and did not constitute an

appealable order under Appellate Rule 2(H)(2). See Cardiology Assocs., 804

N.E.2d at 153-155; Anonymous Dr. A, 783 N.E.2d at 299; and Legg, 557 N.E.2d

at 677. See also Boley v Knowles, 905 SW2d 86, 87-90 (Mo. 1995) (holding the

trial court’s denial of a motion to amend complaint to add a claim for expenses

did not dispose of plaintiff’s single medical malpractice claim and, despite the

court’s use of the language that there was no just reason for delay, the court’s

ruling was not appealable and dismissing the appeal); Sisemore v Farmers Ins. Co.,

779 P.2d 1303, 1305-1306 (Ariz. Ct. App. 1989) (dismissing the plaintiffs’

appeal of the trial court’s denial of their request for punitive damages because

the ruling did not dispose of either their contract claim or their bad faith claim

and holding the order was not appealable despite the court’s finding there was

no just reason for delay under Arizona Trial Rule 54(B); and dismissing the

defendant’s cross-appeal of the denial of its motion to dismiss certain parties

because the ruling did not dispose of any claims and, despite the court’s use of

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the language in Arizona Trial Rule 54(B), was not an appealable order), review

denied; Glacier Gen. Assur. Co. v Hisaw, 651 P.2d 539, 542 (Idaho 1982) (holding

that the trial court erred in certifying its partial summary judgment as

appealable under Idaho Trial Rule 54(B) where the ruling did not dispose of the

single claim under an insurance policy and that Rule 54(B) “operates only when

there are in the action multiple claims of which at least one has been

adjudicated”). We cannot say the order falls into any of the remaining

categories of Appellate Rule 2(H). Accordingly, the appealed order is not a

final judgment under Appellate Rule 2. AP2 is therefore appealing from an

interlocutory order. AP2 does not assert the right to appeal from the

interlocutory order under Appellate Rule 14(A), there is no indication AP2

sought certification from the trial court or permission from this Court to file a

discretionary interlocutory appeal, and AP2 has not stated a statutory right to

appeal. Accordingly, we dismiss the appeal and remand for further

proceedings. See Legg, 557 N.E.2d at 677. [11] Dismissed and remanded.

Vaidik, J., and Bradford, J., concur.

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