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04/07/88 BILLY F. SHARP v. JOHN L. BAILEY

Filed: April 7, 1988.

BILLY F. SHARP, RUBEN ADAMS TRUCKING AND JACK GRAY TRANSPORT, INC., DEFENDANTS-APPELLANTS
v.
JOHN L. BAILEY PLAINTIFF-APPELLEE



APPEAL FROM THE JASPER SUPERIOR COURT, The Honorable J. Philip McGraw, Judge, Cause No. CP84-2-199.

Garrard, P.j., Ratliff, C.j. and Hoffman, J. Concur.

Author: Garrard

GARRARD, P.J.

John Bailey was driving a truck when he was injured in a collision with another truck operated by Billy Sharp. Bailey owned the truck he was driving and Ruben Adams Trucking owned the truck operated by Sharp. At the time of the collision, however, both trucks were leased exclusively to Jack Gray Transport, Inc. and both were in fact being operated in Transport's business.

When Bailey commenced this civil action to recover for his injuries all three defendants sought summary judgment on the ground that Bailey's exclusive remedy was workmen's compensation.

The trial court apparently granted summary judgment in favor of Sharp and Adams Trucking and denied it as to Transport.[Footnote 1] This interlocutory appeal followed. We consider the propriety of summary judgment as to each defendant.

Under the lease arrangements both trucks operated under Transport's authority and carried Transport's ICC and PSCI permit numbers.

Both leases contained provisions which (a) required the lessors to maintain Workers Compensation Insurance covering the drivers; (b) provided the equipment would be used exclusively in the lessee's business; (c) required drivers to comply with all ICC rules and regulations as well as the lessee's rules; (d) entitled lessee to have any driver replaced whom it determined was unqualified; and (e) required the lessors to indemnify the lessee for loss arising from accidents.

Transport paid rental payments from which Bailey paid himself and Adams Trucking paid Sharp. Pursuant to a lease supplement provision Transport was providing liability insurance for Bailey, Sharp and Adams Trucking.

We first consider Bailey's action against Transport. Pursuant to the Workmen's Compensation Act, specifically IC 22-3-2-6, the remedies against employers provided by the Act are exclusive. If Bailey suffered a compensable injury his civil action against Transport was barred and summary judgment was appropriate. See, e.g., Needham v. Fred's Frozen Foods, Inc. (1977), 171 Ind. App. 671, 359 N.E.2d 544.

It is undisputed that Bailey's activity at the time of the collision would place his injuries under the Act unless he was not an employee of Transport in performing his duties.

The factors generally considered when such questions arise are set forth in a number of decisions, such as Fox v. Contract Beverage Packers, Inc. (1980), Ind. App., 398 N.E.2d 709, 711-12. We think they need not be examined seriatim in cases such as this, however, because of our Supreme Court's decision in Transport Motor Express, Inc. v. Smith (1974), 262 Ind. 41, 311 N.E.2d 424.

In that case the long term lessee of a truck sent the truck and a driver to Indiana to enter into a (single) trip lease to haul a load of explosives for Transport Motor Express. The trip lease was entered into and the driver was killed during the trip and in performance of his duties. The question that reached the Supreme Court was whether the driver's window and dependent children were entitled to recover workmen's compensation benefits from Transport Motor Express, the single trip lessee.

The trip lease, apparently to comply with ICC regulations, assigned the driver a route, required him to keep a log, and gave the lessee the right to replace the driver for violation of ICC or PSCI rules or regulations. On the trip ...


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