from the Elkhart Superior Court The Honorable Stephen R.
Bowers, Judge Trial Court Cause No. 20D02-1605-CT-105
Attorneys for Appellant Robert J. Konopa Eric W. von Deck
Elizabeth A. Klesmith Tuesley Hall Konopa LLP South Bend,
Attorney for Appellee Kevin W. Kearney Hunt Suedhoff
Kalamaros, LLP South Bend, Indiana
of the Case
Eshanya Walls ("Walls") filed a complaint against
Markley Enterprises, Inc. ("Markley"), alleging
that she was injured while working at Markley due to
Markley's negligence. Markley filed a motion to dismiss
under Indiana Trial Rule 12(B)(1),  and the trial court
dismissed Walls' complaint for lack of subject matter
jurisdiction, finding that Walls' negligence claim was
barred by the exclusive remedy provision of the Indiana
Worker's Compensation Act ("the Act"). On
appeal, Walls argues that the trial court erred in dismissing
her complaint. Using the statutory definition of
"employer" set forth in Indiana Code §
22-3-6-1(a), we conclude that Walls was an employee of both
Markley and the temporary staffing agency that placed her
with Markley, and that the trial court properly dismissed
Walls' action under Trial Rule 12(B)(1) because her
exclusive remedy rests with the Act.
the trial court erred in dismissing Walls' complaint for
negligence against Markley for lack of subject matter
terms of the agreement between the temporary staffing agency
and Markley amounted to Markley's waiver of the exclusive
remedy provision of the Act.
Markley is a corporation which maintains an assembly plant in
Elkhart County, Indiana. Bridge Staffing, Inc.
("Bridge") is a temporary staffing agency that
"assign[s] employees to perform services for client
companies, and provid[es] related management and human
resource services." (App. Vol. 2 at 142). On August 20,
2004, Markley and Bridge entered into a Client Service
Agreement ("Agreement"). Under the Agreement,
Markley, as Bridge's client, indicated its desire that
Bridge provide "services as may be necessary to meet
[Markley's] staffing needs" (App. Vol. 2 at 142),
and Bridge agreed to:
1. Provide [Markley] the employees and services as requested
by [Markley] or [Markley's] assigned representatives.
2. Assume full responsibility for paying, withholding, and
transmitting payroll taxes; making unemployment
contributions; and handling unemployment and workers'
compensation claims involving assigned employees with respect
to compensation that [Bridge] has agreed to pay.
3. Recruit, interview, test, screen, and ensure compliance
with legally required pre-employment obligations for all
employees to be ...