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03/22/88 STATE INDIANA v. STEVEN P. MILEFF AND

Filed: March 22, 1988.

STATE OF INDIANA, APPELLANT (THIRD-PARTY PLAINTIFF BELOW),
v.
STEVEN P. MILEFF AND CINCINNATI INSURANCE COMPANY, APPELLEES (THIRD-PARTY DEFENDANTS BELOW)



APPEAL FROM THE MARSHALL SUPERIOR COURT, The Honorable R. Alexis Clarke, Judge, Cause No. SC 85-215

Conover, J., Miller, P.j., and Buchanan, J., concur.

Author: Conover

CONOVER, J.

The State of Indiana (State) appeals the entry of summary judgment in favor of Steven P. Mileff and Cincinnati Insurance Company (collectively, Mileff) in an action where the State seeks to enforce a Workmen's Compensation employer's lien on the proceeds of a settlement reached in the employee's action against Mileff, a negligent third party.

Affirmed in part, reversed in part, and remanded.

Restated, the State's issues are

1. whether the trial court erred by determining the State had no valid lien upon the third party settlement,

2. whether the trial court erred by determining the State waived any claim or lien against the settlement proceeds by failing to give notice it intended to assert an employer's statutory lien,

3. whether the lien should be asserted against the settlement funds now in the hands of Robertson, and

4. whether the trial court erred by assessing costs against the State.

Lorie Robertson (Robertson), a State employee acting within the course and scope of her employment, was injured in an automobile accident in Fulton County in July, 1983. Her attorney filed two separate law suits, one against the State for negligent design of the highway at the accident site, the other against Mileff the other driver. Judgment against the State was entered in the negligence action, but the cause was reversed on appeal.

Robertson did not file a Workmen's Compensation claim against her employer, the State, because her attorney believed the State was liable for negligence. She did, however, claim and receive disability benefits totaling $20,152.32 under the Indiana Administrative Code, Sec. 31 I.A.C. 2-11-5 as a merit employee of the State. After the accident, the State filed a Form 24 report of the injury with the Industrial Board as required by statute. Prior to the appeal of the State's case, it filed a set of interrogatories, one requiring disclosure of any actions against third parties. Robertson's answer informed the State of her action against Mileff. The State, however, never notified any of these parties it intended to assert an employer's lien to recover its expenditures due to Robertson's injuries.

In 1984, Robertson and Mileff began negotiations for settlement of that lawsuit. As a preliminary to those Discussions, Robertson's attorney asked her immediate supervisor at the Northern Indiana Children's Hospital to determine whether the State intended to press its claim for reimbursement for money it had expended because of Robertson's injuries in the automobile accident. The supervisor responded in the negative.

Thereafter, Robertson and Mileff settled the case. Robertson was paid $4,107.65 for lost time from work and $40,000 for injuries she received in the accident. The State now seeks to enforce a statutory employer's lien against Mileff for $20,152.32 covering medical and wage payments made to or for Robertson because of this accident.

From an adverse summary judgment, the State appeals.

When reviewing the grant of a motion for summary judgment we stand in the shoes of the trial court. Lafary v. Lafary (1985), Ind.App., 476 N.E. 155, 158. We must determine whether any genuine issue of material fact exists and whether the law was correctly applied. Mead, Johnson and Co. v. Oppenheimer (1984), Ind.App., 458 N.E.2d 668. We must liberally construe all evidence in favor of the nonmovant and resolve any doubt as to the existence of a genuine issue against the proponent of the motion. Kahf v. Charleston South Apartments (1984), Ind.App., 461 N.E.2d 723; Grimm v. F.D. Borkholder Co., Inc. (1983), Ind.App., 454 N.E.2d 84, 86; Moll v. South Central Solar Systems, Inc. (1981), Ind.App., 419 N.E.2d 154, 159. Summary judgment may not be used as a substitute for trial to resolve factual disputes. Even if the trial court believes the nonmoving party will not be successful at trial, where material facts conflict or conflicting inferences are possible from undisputed facts, summary judgment should not be entered. Grimm, 454 N.E.2d at 86; Clipp v. Weaver (1983), Ind., 451 N.E.2d 1092; English Coal, Inc. v. Durcholz (1981), Ind.App., 422 N.E.2d 302, 307.

We have a duty to sustain the action of the trial court if it can be done on any legal ground on the record. This is true even though the reasons given by the trial court for its action may be erroneous, if the ruling can be sustained on any other ground. Hurst v. Board of Comm'rs. of County of Pulaski (1985), Ind., 476 N.E.2d 832, 834; Elmore v. City of Sullivan (1978), Ind.App., 380 N.E.2d 108, 110. This rule applies ...


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