Appeal from the United States District Court for the Northern District of Indiana, Hammond Division No. H 75 C 194 - Allen Sharp, Judge.
Fairchild, Chief Judge, Cummings and Tone, Circuit Judges.
We are asked by the plaintiff-appellant in this diversity case to hold that the Indiana Workmen's Compensation Act does not provide the exclusive remedy for injury or death incurred in the course of and in the scope of employment when the employer is in a "dual capacity," i.e., is both the employer and also the owner of the land, or also the manufacturer of defective equipment, on which the accident occurred. We agree with the District Court that the Act provides the exclusive remedy and therefore affirm a summary judgment in favor of the defendant.
Plaintiff's decedent, Christos Kottis, was killed while performing his duties as a craneman employed by defendant United States Steel Corporation in its plant in Gary, Indiana. It is undisputed that the accident arose out of and in the course of his employment, and that therefore the Indiana Workmen's Compensation Act, Ind. Ann. Stat. § 22-3-2-1, et seq., was applicable. Kottis' dependents have entered into a settlement agreement pursuant to which they are receiving benefits under the Act.
The administratrix of Kottis' estate brings this action against the employer on a "dual-capacity" theory to recover damages in addition to the workmen's compensation benefits. In her amended complaint she alleges that United States Steel was not only Kottis' employer but also occupied two other capacities, viz., owner of the land and manufacturer of the crane on which the accident occurred. The theory on which she bases her claim is that, as a landowner, United States Steel owed Kottis the same duty to exercise reasonable care to discover defects or dangerous conditions on the premises that it owed other invitees, and, as a manufacturer, it may be held liable for defects in its product. The amended complaint also names two other defendants, Alliance Machine Company and Eichleay Corporation, who are alleged to have participated in the manufacture and installation of the equipment, and against whom the action is still pending in the District Court. The District Court entered summary judgment for defendant United States Steel and made the direction and finding necessary to make that judgment appealable under Rule 54(b), Fed. R.Civ. P. Although plaintiff argues several points, the only one we need to reach is whether the workmen's compensation remedy is exclusive.*fn1
The Indiana Workmen's Compensation Act, Ind. Ann. Stat. § 22-3-2-6, provides as follows:
"The rights and remedies herein granted to an employee subject to this act . . . on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise, on account of such injury or death."
The Act reserves the remedy of the injured employee, or his dependents in case of death, against persons other than the employer and not in the same employ in the following language, Ind. Ann. Stat. § 22-3-2-13 (Supp. 1975):
"Whenever an injury or death, for which compensation is payable under chapters 2 through 6 of this article [22-3-2-1 -- 22-3-6-3] 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 his dependents, in case of death, may commence legal proceedings against such other person to recover damages. . . ."
The Indiana courts have repeatedly held that the remedy provided by the Act is exclusive. As Judge Beamer said in Hickman v. Western Heating & Air Conditioning Co., 207 F. Supp. 832, 833 (N.D. Ind. 1962),
"The rights and remedies granted to an employee subject to the Act on account of personal injury or death by accident are sole and exclusive of all other rights and remedies against the employer . . . . The Act specifically abolishes common law actions against an employer subject to its provisions." (Emphasis deleted.)
In a later opinion adopted by this court as its own and reported in North v. United States Steel Corp., 495 F.2d 810, 813 (7th Cir. 1974), Judge Beamer stated:
"The remedies of the act should extend to all situations where the employee would have his remedy at common law if there were no act, and the act should be so construed where its language reasonably permits such a construction, since the general purpose of the act ...