dissenting with opinion.
I believe the City and RPL are, for purposes of worker's compensation coverage, the same entity. For that reason, Turner's negligence action against the City was barred by the Act and was properly dismissed by the trial court. I must therefore respectfully dissent.
RPL is an electric utility owned by the City. Its employees' paychecks are issued by the city controller. The City owns the real estate RPL uses, and RPL and City departments and agencies share equipment. RPL is governed by a board that is made up of the same persons who serve on the Richmond City Council. Its employees' paychecks are issued by the City, and the City and RPL participate in the same *560worker's compensation plan. RPL utilizes the services of the Richmond city attorney.6
I believe the majority's reliance on McQuade and Forbes is misplaced, and that it is inappropriate to treat the City and RPL as a parent corporation and subsidiary.7 Implicit in Forbes and explicit in McQuade, 659 N.E.2d at 1020, is the well-recognized principle that an entity cannot organize itself and its subsidiaries so as to take advantage of the division into separate corporate parts, but then later disavow the separate corporate identities when sued by an injured employee. Because that policy concern is not so clearly implicated by the structuring of local government into separate divisions, I would decline Turner's invitation to treat RPL as a "corporate subsidiary" of the City. Rather, I believe the relationship between RPL and the City is analogous to the relationship between different branches of the same governmental unit.
*561I further disagree with the majority's assertion that its result comports with Buckley v. Standard Investment Co. There, our supreme court determined Citizen's Gas & Coke utility was not a political subdivision of the City of Indianapolis entitled to Tort Claims Act immunity. The majority recites the Buckley court's holding that the "tenuous statutory connection between the city and the operations of Citizens is not the type of relationship required to entitle Citizens to the benefits of immunity from tort liability." 581 N.E.2d at 921. The Buckley court noted that the Board was not made answerable to the city through the statute, and that the connection between the Board and the city was "slight and does not involve control over the actions or the makeup of the board." Id. at 922. Thus, "the statutory scheme under which Citizens is operated does not create a governmental entity. The legislature cannot simply mention an existing, independent Board of Trustees in a statute which allows them to maintain that independence and thereby make them a department of a city." Id.
The relationship between RPL and the City of Richmond is not so "tenuous" as that of Citizens and the City of Indianapolis, and I believe the majority's analysis is therefore inconsistent with that of Buckley. RPL, like Citizens, does operate under a "statutory scheme." However, that is the extent of the similarity between the status of RPL and that of Citizens.
As the majority suggests, RPL is presumably governed by Ind.Code chapter 8-1.5-3, which applies to all municipalities (other than consolidated cities) that own or operate utilities. That chapter, like chapter 8-1-11.1 that authorized the operation of Citizens, allows for governance of the utility by a board. However, Ind.Code § 8-1.5-8-3(a)(2) provides that the board may be composed of the members of the municipal legislative body, and the RPL board is, in fact, made up of the same individuals who compose the Richmond City Council. As such, it cannot be said that the City does not control the RPL board or that the board is not answerable to the City. To the extent the Buckley case was premised on that lack of connection or control, Buckley does not support the argument that RPL is not a "government entity."
Because the City and RPL are more properly characterized as different branches of the same governmental unit, I believe Turner was "in the same employ" when he was injured as were the employees of RPL. The trial court therefore properly determined it lacked subject matter jurisdiction to hear Turner's action, and I would affirm its dismissal of the lawsuit.
. In determining RPL is a separate entity from the City, the majority notes that "it appears that RPL regularly retains private counsel to handle its business affairs ... [tlhe record supports the conclusion that RPL has its own outside counsel ... [thus, it appears that RPL conducts its legal matters ... separate and distinct from the City." Op. at 557-58. I do not read the record as supporting this characterization of that aspect of RPL's relationship with the City.
Turner asserts in his Statement of the Facts that "RPL has the power to sue and be sued in its own name, has private counsel on retainer, and in fact has sued in its own name and has hired outside counsel in each case, rather than use the CITY'S counsel." (Br. of Appellant at 4.) The record reference Turner offers does not directly support that statement. It reflecis the following exchange between Turner's counsel and RPL's chief oper-, ating officer:
Q. Do you know of any time RP & L has filed a lawsuit against anybody?
A. I believe it has happened. It was before my time so I wasn't involved in it. I think the, maybe even five, eight years ago had to go to lawsuit, but it was before my time. I don't know how it's done.
Q. And that suit was brought on behalf of RPL directly, right?
A. I wasn't involved with it, I don't know.
Q. Is that your understanding, it was RP & L that brought suit?
A. Yes.
Q. Does RP & L have attorneys on staff?
A. I would consider the city attorney an attorney on staff. We pay for part of his wages and I call him up quite frequently and use them-
Q. The only counsel-
A. -but they would be the only consider staff.
Q. Do you have attorneys that you retain as independent law firms?
A. Yes.
Q. Are there some that are on a constant retainer?
A. Not what I would consider the true definition of retainer, no. We use them constantly, we pay for their services, but we don't pay a separate retaining fee.
Q. You just pay an hourly rate?
A. Hourly rate, correct.
Q. But you're using them all the time?
A. Yes.
Q. Those are just local Richmond firms or Indianapolis firms?
A. Indianapolis and at times Washington, D.C.
Q. And those are paid for by RP & L?
A. Yes.
Q. Is that, are you the one that hires the lawyers?
A. I'm the one that recommends hiring them but the city attorney has the, I guess final authority on whether or not he approves hiring them or not.
Q. Does he ever not follow your recommendation?
A. - Not since I've been on board, no.
(R. at 148.)
. Turner asserts in his argument, though not in his Statement of the Facts, that "RPL is "a separate and distinct profit-driven corporation," (Br. of Appellant at 10) and that "the CITY and RPL are effectively separate corporate entities." (Fd. at 15.) Turner directs us to no evidence in the record indicating the City and RPL have separate corporate structures, and my review of the record reveals none.