Attorney’s for Appellants
Degussa Corporation, Pigment Division,
North American Silica Company, and
P.Q. CORPORATION
Cory Brundage
Ice, Miller, Donadio & Ryan
Indianapolis, Indiana
Attorney for Appellant
American Laboratories, Inc.
Richard R. McDowell
Hill, Fulwider, McDowell, Funk & Matthews
Indianapolis, Indiana
Attorney for Appellant
Agritek Bio Ingredients, Inc.
Dale W. Eikenberry
Wooden, McLaughlin
Indianapolis, Indiana
Attorneys for Appellant
Henwood Feed Additives
James M. Hinshaw
David O. Tittle
Bingham, Summers, Welsh & Spilman
Indianapolis, Indiana
Attorney for Appellee
Richard J. Dick
Mitchell, Hurst, Jacobs & Dick
Indianapolis, Indiana
IN THE
INDIANA SUPREME COURT
DEGUSSA CORPORATION, PIGMENT DIVISION, NORTH AMERICA SILICA COMPANY, and
P.Q. CORPORATION,
Appellants (Defendant below),
v.
LENITA MULLENS,
Appellee (Plaintiff below).
AGRITEK BIO INGREDIENTS, INC.,
Appellant (Defendants below),
v.
LENITA MULLENS,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 49S05-9812-CV-763
)
) Court of Appeals Consolidated
) Cause No.
) 49A05-9706-CV-215
)
)
)
)
)
)
)
)
)
APPEAL FROM THE MARION COUNTY SUPERIOR COURT
The Honorable Gerald S. Zore, Judge
Cause No. 49D07-9403-CT-0301
ON PETITION TO TRANSFER
March 16, 2001
SULLIVAN, Justice.
Lenita Mullens filed a complaint against Defendants for negligently
exposing her to products which allegedly caused her to suffer permanent
lung damage. Defendants moved for summary judgment asserting that Mullens
filed her complaint after the expiration of the two-year statute of
limitations for her products liability claim. Finding that Mullens filed a
timely claim, we affirm the trial court’s denial of Defendants’ summary
judgment motion. Defendant Agritek filed a separate motion to dismiss,
asserting that the Indiana Worker’s Compensation Act precluded Agritek’s
liability in tort to Mullens. The members of this court participating in
this case are evenly divided on this issue and so the trial court’s denial
of Agritek’s motion to dismiss is affirmed.
Background
On September 4, 1990, Lenita Mullens began work for Grow Mix, a
company formed by Richard Martin and Agritek Bio Ingredients, Inc.
(Agritek), to produce feed additive products for Agritek.[1] Mullens
oversaw the production of Agritek products for Grow Mix and one of her
primary responsibilities included the physical mixing of liquid and dry
ingredients to make animal feeds. The mixing process generated a great
deal of dust.
Mullens initially wore paper masks to protect herself from the dust,
but found them to be inadequate and began to use a respirator. Three to
four months into her job, Mullens experienced a persistent cough that would
diminish after she went home from work and on weekends. In March, 1991,
Mullens sought emergency room treatment for bronchitis, a condition for
which she had received medical care prior to her employment with Grow Mix.
The bronchitis went away, but the cough continued.
On February 4, 1992, Mullens experienced severe coughing and shortness
of breath at work. She went to the emergency room again, was told that she
had bronchitis, and received a prescription for antibiotics. This time the
antibiotics did not work, so Mullens scheduled an appointment with her
general physician, Dr. Kenneth Watkins. On March 17, 1992, Dr. Watkins
diagnosed Mullens with bronchitis. Dr. Watkins told Mullens that it was
possible that her coughing and breathing problems were work-related, but
that there were several other potential causes. If Mullens’s problems were
work-related, the doctor was unsure whether the problems were caused or
merely aggravated by the conditions at work. On March 23, 1992, Dr.
Watkins advised Mullens not to work for a minimum of two weeks and referred
her to a pulmonary specialist for follow-up tests and to further
investigate the source of her ailments.
On March 26, 1992, the specialist, Dr. Reihman, told Mullens that it
was possible that work-related chemical exposure only was triggering an
injury caused by something else. Dr. Dana Reihman advised Mullens to
undergo some tests. On June 11, 1992, Dr. Reihman made the following
observation: “The etiology of Mrs. Mullens[’s] chronic airflow obstruction
and its relationship to her work environment remains unclear.” In April,
1992, when Mullens was working with Dr. Reihman to identify the cause of
her ailments, Degussa Corporation[2] representatives visited her at work
and told her that their product could not be causing her medical problems.
Dr. Reihman was ultimately unable to determine the cause of Mullens’s
problems and referred her to Dr. Joe Garcia, a pulmonary specialist, for
further evaluation. At Mullens’s first visit with Dr. Garcia in June,
1992, Dr. Garcia repeated Drs. Watkins’s and Reihman’s assessments, telling
Mullens that chemical exposure at work might be related to her ailments but
that other causes were possible. Dr. Garcia treated Mullens and attempted
to diagnose her problems from June, 1992 until March, 1994, when Mullens
and her attorney received the first unequivocal statement from any doctor
that her lung disease was caused by exposure to chemicals consistent with
those used at Grow Mix.
On March 25, 1994, Mullens filed a complaint against Degussa
Corporation, Pigment Division, North America Silica Company, P.Q.
Corporation, and Agritek Bio Ingredients, Inc. (collectively,
“Defendants”), alleging negligence in the sale of, and her exposure to,
products that caused lung damage.[3] Defendants joined in a motion for
summary judgment arguing that Mullens did not assert her claims within the
two-year statute of limitations for products liability actions. Defendant
Agritek also filed a motion to dismiss Mullens’s tort claims against it,
asserting that because Agritek was her employer, the Indiana Worker’s
Compensation Act provided her exclusive remedies for work-related injuries
on the job. On May 1, 1997, the trial court denied Defendants’ motion for
summary judgment. On May 8, 1997, the trial court denied Agritek’s motion
to dismiss. Defendants appealed to the Court of Appeals. The Court of
Appeals concluded that Mullens failed to file her claims within the statute
of limitations period and reversed the trial court, thereby granting
Defendants’ motion for summary judgment and rendering moot Agritek’s
separate appeal on their motion to dismiss. Degussa Corp. v. Mullens, 695
N.E.2d 172, 178 (Ind. Ct. App. 1998).
Additional facts will be provided as needed.
Discussion
I
Ind. Code § 33-1-1.5-5 (1993) is the limitations statute that governs
Mullens’s action based on negligence and products liability theories.[4]
It states that “any product liability action in which the theory of
liability is negligence or strict liability in tort … must be commenced
within two (2) years after the cause of action accrues…” Ind. Code § 33-1-
1.5-5. The statute is silent as to the meaning of “accrues.” However, we
have adopted a discovery rule through case law for the accrual of claims
arising out of injuries allegedly caused by exposure to a foreign
substance. The two-year statute of limitations begins “to run from the
date the plaintiff knew or should have discovered that she suffered an
injury or impingement, and that it was caused by the product or act of
another.” Barnes v. A.H. Robins Co., 476 N.E.2d 84, 87-88 (Ind. 1985); See
also Wehling v. Citizens Nat’l Bank, 586 N.E.2d 840, 842-43 (Ind. 1992)
(extending the discovery rule rationale of Barnes to all tort claims).
Defendants contend that the statute of limitations started to run
when Dr. Watkins examined Mullens on March 17, 1992, and suggested that
exposure to chemicals at work was one of a number of possible causes of her
problems. Therefore, when Mullens filed her claim on March 25, 1994, it
was eight days late. Mullens responds that the statute of limitations did
not begin to run until sometime after March 25, 1992, if not as late as
March 1994 when she received the first diagnosis from a physician that her
lung disease was caused by exposure to chemicals at work.
While the present case is one based on a products liability claim,
case law regarding medical malpractice claims is instructive because
medical and diagnostic issues are common between the two actions, the
statute of limitations for both claims is two years, and discovery is
sometimes at issue in determining whether the respective statutes of
limitation have been triggered. The question of when a plaintiff alleging
medical malpractice “discovered facts which, in the exercise of reasonable
diligence, should lead to the discovery of the medical malpractice and
resulting injury, is often a question of fact.” Van Dusen v. Stotts, 712
N.E.2d 491, 499 (Ind. 1999).
We agree with the Court of Appeals’s assertion in the present case
that a plaintiff need not know with certainty that malpractice caused his
injury, to trigger the running of the statutory time period. See Degussa
Corp., 695 N.E.2d at 178. Once a plaintiff’s doctor expressly informs the
plaintiff that there is a “reasonable possibility, if not a probability”
that an injury was caused by an act or product, then the statute of
limitations begins to run and the issue may become a matter of law. Van
Dusen, 712 N.E.2d at 499. When a doctor so informs a potential plaintiff,
the plaintiff is deemed to have sufficient information such that he or she
should promptly seek “additional medical or legal advice needed to resolve
any remaining uncertainty or confusion” regarding the cause of his or her
injuries, and therefore be able to file a claim within two years of being
informed of a reasonably possible or likely cause. Id. (citing Degussa,
695 N.E.2d at 178 (quoting in turn United States v. Kubrick, 444 U.S. 111,
122-23 (1979))). An unexplained failure to seek additional information
should not excuse a plaintiff’s failure to file a claim within the
statutorily defined time period. See id.
Although “[e]vents short of a doctor’s diagnosis can provide a
plaintiff with evidence of a reasonable possibility that another’s” product
caused his or her injuries, a plaintiff’s mere suspicion or speculation
that another’s product caused the injuries is insufficient to trigger the
statute. Evenson v. Osmose Wood Preserving Co. of Am., 899 F.2d 701, 705
(7th Cir. 1990) (applying Indiana law). While Mullens might have suspected
that a chemical from work was the cause of her problems when she first
visited Dr. Watkins on March 17, 1992, the best that Dr. Watkins could do
to respond to her concerns was to emphasize that there were a range of
potential causes. See id. (“Although [plaintiff] himself suspected at this
time [(the time of his visit to the doctor and request for CCA chemical
tests)] that CCA was the culprit, his attempts to determine the actual
cause were rebuffed by his doctors in whom he could place some reliance.
What [plaintiff] had … was not some evidence of a reasonable possibility
that CCA was the cause but only a layman’s mere suspicion to this effect.”)
Circumstances where a physician tells a patient that a product or act
is one of several “possible” causes of an injury present a complex of
factually and legally relevant questions about how the physician conveyed
the information to the patient and what emphasis the physician placed on
the potentially tortious cause over other causes. Nevertheless, Mullens
was responsible and diligently followed her physician’s recommendations,
undergoing further tests and attempting to gather information regarding the
cause of her medical problem and its relationship to past respiratory
ailments before initiating a lawsuit against Defendants. Mullens attempted
to gather information that would transform speculation into a causal link
that was “reasonably possible” or “probable” before she filed suit against
Defendants.
On March 17, 1992, Mullens merely suspected that work products had
something to do with her illness and Dr. Watkins said nothing to confirm,
deny, or even strengthen her suspicions. In light of the ongoing medical
consultation that Mullens undertook between March 17, 1992, and March 25,
1994, the date Mullens filed her complaint, we do not believe that the
statute was triggered as late as March, 1994, as argued by Mullens.
However, we also see nothing in the record to indicate that on March 17,
1992 (or even in the following eight days that would have been outside of
the statutory period), Mullens’s physicians had yet informed her that there
was a reasonable possibility, if not probability, that her ailments were
caused by work chemicals.
II
Agritek contends that the trial court erred when it failed to dismiss
Mullens’s complaint against Agritek. Agritek argues that Mullens falls
within the definition of “employee” under the Worker’s Compensation Act and
therefore the court lacked subject matter jurisdiction over Mullens’s
negligence and strict liability claims against Agritek. As to this issue,
I write to express the views of Chief Justice Shepard and myself. Because
Justice Rucker is not participating in this appeal, the Court is evenly
divided and the trial court will therefore be affirmed on this issue
pursuant to Ind. Appellate Rule 59(B).
Prior to denying Agritek’s motion to dismiss, the trial court did not
conduct an evidentiary hearing. Rather, it ruled upon a paper record
consisting of the parties’ complaints, affidavits, and excerpts of
deposition testimony. Where facts are in dispute but the trial court rules
on a paper record without conducting an evidentiary hearing, we review the
trial court’s ruling de novo. GKN Co. v. Magness, No. 49S02-0002-CV-116,
Slip Op. at 6 (Ind. Mar 13, 2001). In doing so, we will affirm the
judgment of the trial court on any legal theory the evidence of record
supports. However, the ruling of the trial court is presumptively correct,
and we will reverse on the basis of an incorrect factual finding only if
the appellant persuades us that the balance of evidence is tipped against
the trial court’s findings. Id.
Indiana’s Worker’s Compensation Act provides the exclusive remedy for
employees who experience personal injury arising out of and in the course
of employment. Ind. Code §§ 22-3-2-2(a) & 22-3-2-6. “Employee” means
“every person, including a minor, in the service of another, under any
contract of hire or apprenticeship, written or implied, except one whose
employment is both casual and not in the usual course of the trade,
business, occupation, or profession of the employer.” Ind. Code § 22-3-6-
1(b). Therefore, to be excluded from coverage under the Worker’s
Compensation Act, “the employee must be one whose employment is not only
casual but also not in the usual course of the employer’s business.” Hale
v. Kemp, 579 N.E.2d 63, 66 (Ind. 1991). In addition, it is possible for an
employee to be “in the joint service of two (2) or more employers,” Ind.
Code § 22-3-3-31, and an employee’s remedies remain exclusive under the
Worker’s Compensation Act even in such dual employer situations.
To determine whether an employer-employee relationship exists, thus
bringing an employee under the Worker’s Compensation scheme because his or
her employment is not casual and is in the usual course of the employer’s
business, we examine seven factors: (1) the right to discharge, (2) the
mode of payment, (3) the supplying of tools or equipment, (4) the belief of
the parties in the existence of an employer-employee relationship, (5) the
control over the means used in the results reached, (6) the length of
employment, and (7) the establishment of work boundaries. GKN Co., slip
op. at 7-8 (citing Hale, 579 N.E.2d at 67). These factors are weighed
against each other as part of a balancing test in which the right of the
employer to exercise control over the employee is given the greatest
weight. Id.
Because Agritek challenges the trial court’s jurisdiction, it bears
the burden of proving that Mullens’s claim falls within the scope of the
Worker’s Compensation Act. Id. at 11. Mullens and Agritek stipulated to
the trial court’s use of deposition excerpts and other materials for ruling
on Agritek’s motion to dismiss. We analyze the seven factors in light of
the evidence presented in these materials and Agritek’s burden of proof as
follows.
Right to discharge. Mullens was hired following Martin’s discharge
of a former employee because Agritek representative Jeannie Barnes was
dissatisfied with the former employee’s work and requested that Martin
discharge him. Martin acknowledged in his deposition that Agritek had the
power to determine whether Martin should terminate an employee working on
the Agritek project and that Martin would most likely carry out any such
request made by Agritek, as he had done with Mullens’s predecessor. The
Court of Appeals recognized a similar “indirect” right of discharge in U.S.
Metalsource Corp. v. Simpson, 649 N.E.2d 682, 685 (Ind. Ct. App. 1995)
(finding that while one employer in a dual employer situation did not have
the direct power to terminate employment, it could, and did, terminate
employment by instructing the other employer that it no longer wanted a
specific employee to do work for them). While Martin, as head of Grow-Mix
and a subcontractor with Agritek, would execute an employee termination
decision, Agritek retained and exercised an indirect right to discharge.
Mode of payment. Mullens’s regular paycheck came from Gro-Tec, but
Agritek wrote the check for Mullens’s 1991 Christmas bonus, suggesting dual
responsibility for Mullens’s compensation.
Supplying of tools or equipment. Under the agreement between Martin
and Agritek, Martin supplied the building or mixing location through a
lease agreement and Agritek supplied all other equipment, raw materials,
formulas, and instructions with regard to the production process to persons
Martin hired to perform the work. Agritek supplied, and Mullens wore,
uniforms that had Agritek’s name on an attached patch. In addition,
Agritek provided masks and respirators for Mullens to use and reimbursed
Martin if he had to reimburse Mullens for her private purchases of masks
and respirators. Agritek supplied the majority of tools and equipment
necessary to Mullens’s work.
Belief of the parties in the existence of an employer-employee
relationship. The Court of Appeals has held that the belief of the parties
in the existence of an employer-employee relationship can often best be
determined by the terms of the contract. Nowicki v. Cannon Steel Erection
Co., 711 N.E.2d 536, 541 (Ind. Ct. App. 1999), transfer denied. However,
the Agritek-Martin contract is relatively brief and focuses on the lease of
buildings, stock responsibilities, price paid for products, and designation
of responsibility for equipment repair. Nevertheless, by the nature of
their actions and shared responsibilities, Martin and Agritek, as
represented by Barnes, operated such that each believed the other to have
some authority over Mullens and the work she performed. Nothing in the
record suggests that Martin took issue with Barnes’s daily guidance and
supervision of Mullens’s work, nor does Agritek deny Martin’s status as
Mullens’s co-employer. As an example of their belief that they co-employed
Mullens, Barnes and Martin jointly conducted Mullens’s performance reviews.
While Mullens averred that she considered herself to be a Gro-Tec
employee, her belief “does not defeat the existence of [an] employer-
employee relationship in light of [her] long-term acquiescence” to
conditions evidencing the relationship. U.S. Metalsource, 649 N.E.2d at
686. The conditions of Mullens’s employment outlined herein and the
intensive role Barnes played in her daily routine suggest the existence of
an employment relationship between Agritek and Mullens and a co-employer
relationship between Martin and Agritek that exceeds the bounds of a
simple, hands-off, product supply subcontract.
Control over the means used in the results reached. From the time
Mullens began her work at the Modoc facility, she had daily contact with
Barnes at Agritek’s offices in Ontario, Canada. The contact consisted of
at least five to seven phone calls per day and involved orders from Barnes
regarding each day’s work such as products to be produced, the mixing
formula Mullens was to use, customer names and shipping instructions for
each product, and the order of priority in which Mullens was to mix and
ship the products. In fact, Mullens had very little, if any, daily contact
with Martin, although Martin generally determined Mullens’s rate of pay,
hours worked, and leave time. Barnes would occasionally request Mullens to
work overtime, which she did. Mullens also had regular written exchanges
with Barnes and would sign matters and prepare documents on behalf of
Agritek, using her name in conjunction with Agritek’s. On occasion,
Mullens would deal directly with Agritek customers. For decisions
regarding the means and results of Mullens’s tasks, Barnes functioned as
Mullens’s daily supervisor and employer.
Length of employment. Martin hired Mullens for the specific purpose
of carrying out the provisions of his contract with Agritek, and Barnes was
intensely involved in directing Mullens’s daily routine for her entire
22–month tenure working to produce animal feed under the Martin-Agritek
contract. Agritek determined the length of Mullens’s employment to the
extent that she was hired to produce animal feed for them, Barnes made
decisions regarding whether Mullens would work overtime, and Agritek held
an indirect right of discharge as concluded supra.
Establishment of work boundaries. Our case law indicates that this
factor primarily implicates spatial boundaries, but might also encompass
temporal and other boundary issues as well. See Nowicki, 711 N.E.2d at 543-
44. To the extent that this factor implicates other types of boundaries,
we have addressed those issues under the factors examined supra and have
determined that they favor the existence of an employment relationship
between Agritek and Mullens. With respect to spatial boundaries, we find
that Martin and Agritek determined together — through the terms and
conditions of the agreement they signed in December, 1989 — the location of
Mullens’s work to be the Modoc, Indiana facility.
Thus, Chief Justice Shepard and I conclude that all seven factors
indicate the existence of an employer-employee relationship between Mullens
and Agritek. We believe that Agritek met its burden of demonstrating an
employer-employee relationship. Indeed, there is no theory supported by
the evidence in the record that supports the trial court’s judgment. And,
as demonstrated by the discussion under the captions “Right to Discharge”
and “Control over the means used in the results reached,” the factor
weighted most heavily—right to exercise control over the employee—clearly
indicates the existence of an employer-employee relationship between
Mullens and Agritek. Under the circumstances of this case, the fact that
Mullens also worked for Grow-Mix is inconsequential. Where two employers
so associate themselves that both are in direct control of an employee, and
the employee is made accountable to both employers, we consider the
employee to have two employers. See Walters v. Modern Aluminum, 699
N.E.2d 671, 673 (Ind. Ct. App. 1998) (quoting U.S. Metalsource, 649 N.E.2d
at 685 (quoting in turn Jackson Trucking Co. v. Interstate Motor Freight
Sys., 122 Ind. App. 546, 557, 104 N.E.2d 575, 580 (1952))), transfer
denied.
Chief Justice Shepard and I conclude that Mullens was an Agritek
employee and as such is limited, with respect to her claims against
Agritek, to remedies under the Indiana Worker’s Compensation Act for her
work-related injuries.
Conclusion
Having previously granted transfer in this case, thereby vacating the
opinion of the Court of Appeals, we affirm the trial court’s judgment
denying Defendants’ motions for summary judgment on the statute of
limitations issue. The members of this court participating in this
decision are evenly divided on whether to affirm or reverse the trial
court’s judgment denying Agritek’s motion to dismiss the claims against it
for lack of subject matter jurisdiction. In accordance with Ind.
Appellate Rule 59(B) which governs such circumstances, the trial court’s
judgment on this issue is also affirmed. We remand this case to the trial
court for proceedings consistent with this opinion.
SHEPARD, C.J., concurs. DICKSON and BOEHM, JJ., concur except as to
part II, from which they dissent. RUCKER, J., is not participating.
In The
INDIANA SUPREME COURT
DEGUSSA CORPORATION, PIGMENT )
DIVISION, NORTH AMERICA SILICA )
COMPANY, and P.Q. CORPORATION, )
Defendant-Appellant, )
)
v. ) 49S05-9812-CV-763
)
LENITA MULLENS, )
Plaintiff-Appellee. )
___________________________________ )
)
AGRITEK BIO INGREDIENTS, INC., )
Defendant-Appellant, )
)
v. )
)
LENITA MULLENS, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE MARION COUNTY SUPERIOR COURT
The Honorable Gerald S. Zore, Judge
Cause No. 49D07-9403-CT-0301
_________________________________________________
On Petition To Transfer
March 16, 2001
DICKSON, Justice
I concur as to Part I of Justice Sullivan's opinion, but write
separately to address Part II. As we explained in GKN Co. v. Magness, ---
N.E.2d ---, ---, No. 49S02-0002-CV-116, slip op. at 6 (Ind. 2001), in
reviewing a case in this procedural posture, "we affirm the judgment of the
trial court on any legal theory the evidence of record supports." We
further emphasized that "the ruling of the trial court is presumptively
correct, and we will reverse on the basis of an incorrect factual finding
only if the appellant persuades us that the balance of evidence is tipped
against the trial court's findings." Id.
Reviewing the evidence anew, Justice Sullivan's opinion finds that a
Mullens/Agritek employment relationship is indicated by all of the factors
enumerated in GKN Co. I disagree.
Beginning with the presumption that the trial court ruling is
correct, as required by GKN Co., --- N.E.2d at ---, slip op. 6, Agritek has
not persuaded me that "the balance of evidence is tipped against the trial
court's findings." Mullens was employed by Martin, not hired as an
employee of Agritek. Throughout Mullens's employment, she was paid by
Martin. Agritek’s 1991 Christmas check, which plaintiff contends was
intended as a gift and not as compensation for labor, pales in comparison
to the two years of Mullens’s compensation paid by Martin. Mullens
believes that she was employed by Martin, not Agritek. The frequency of
contact between Mullens and Agritek does not convince me that Agritek's
right to control Mullens was superior to Martin's. Mullens performed all
her duties at a facility leased and supervised by Martin. Further,
Mullens’s rate of pay, benefits, working hours, and permission for medical,
vacation, and holiday absences were all determined by Martin, not Agritek.
I am satisfied that the evidence of record supports the judgment of
the trial court, and that the presumption of correctness of the trial
court's ruling has not been overcome. I believe that the trial court
should be affirmed on this issue.
BOEHM, J., concurs. SHEPARD, C.J., and SULLIVAN, J., dissent. RUCKER, J.,
not participating.
-----------------------
[1] There is some dispute in the record as to whether Mullens was
employed by Grow Mix or Gro-Tec, two separately created companies housed in
the same building in Modoc, Indiana. Martin is the president of Gro-Tec.
Mullens asserts that she received her pay checks from Gro-Tec. For
purposes of the issues before us on appeal, we need not decide Mullens’s
employment status as it relates to Grow Mix and Gro-Tec.
[2] Degussa produced Sipernat 22, one of the ingredients used in
making the feeds.
[3] As the Court of Appeals noted, Mullens also named several other
defendants in her original complaint. However, they were either not
included in the amended complaint or they are not otherwise parties to this
appeal.
[4] Ind. Code § 33-1-1.5-5 has been recodified, without substantive
change, at Ind. Code § 34-20-3-1 (1998).
Degussa Corp. v. Mullens
Combined Opinion