source: Caselaw Access Project

author: BAKER, Judge.

license: Public Domain

text:
    AUTO-OWNERS INSURANCE COMPANY, Appellant-Defendant, v. Cathy BENKO and Gerald Ewing, as Executors of the Estate of Laverna Ewing, Deceased, Appellees-Plaintiffs.
    No. 75A04-1108-CT-440.
    Court of Appeals of Indiana.
    March 20, 2012.

      David L. Taylor, Thomas R. Haley III, Jennings, Taylor, Wheeler & Haley P.C., Carmel, IN, Attorneys for Appellant.
    Douglas D. Small, Foley & Small, South Bend, IN, Attorney for Appellees.
   OPINION

BAKER, Judge.

In this case, a woman was injured in a vehicular accident and filed a claim for bodily injury against the man who had struck her. She settled for the policy limits of his insurance policy, but it was insufficient to cover her injuries, so she filed an underinsured motorist claim with her own insurance company, who denied the claim stating that she had not complied with a provision in the policy requiring that she bring a claim against them within two years of the accident. We conclude that the plain language of the provision would lead an ordinary policyholder to believe that they were required to bring a bodily injury claim against the alleged tortfeasor within the applicable statute of limitations, which occurred in this case. Additionally, if the insurance company intended a different interpretation, it should have stated so in plain English so that their policyholders understand what is necessary to protect their interests and collect their benefits under the policy.

Appellant-defendant Auto-Owners Insurance Company (Auto-Owners) appeals the trial court’s grant of summary judgment in favor of appellees-plaintiffs, Cathy Benko and Gerald Ewing as Executors of the Estate of Laverna Ewing, (collectively, “the Appellees”). More particularly, Auto-Owners contends that the trial court erred by denying its motion to strike the Appellees’ untimely designated evidence that they had filed in support of their motion and by finding that Auto-Owners’s underinsured motorist coverage contractual limitation provision (the Provision) is unenforceable because it is vague and ambiguous. Concluding that the trial court did not err by denying Auto-Owners’s motion to strike or by granting the Appellees’ motion for summary judgment, we affirm.

FACTS

The Accident

On August 17, 2007, Laverna Ewing’s vehicle was stopped at a railroad crossing on State Road 8 near Knox when it was struck from behind by a vehicle driven by Brent Vannorman. Ewing sustained property damage and bodily injury as a result of the accident.

Ewing obtained counsel before the expiration of the two-year statute of limitations applicable to her bodily injury claims, which according to Indiana statute, expired on August 15, 2009. On August 11, 2009, Ewing and Benko, as her legal guardian, filed a complaint for damages against Vannorman, alleging bodily injury and property damage.

On or about September 23, 2009, State Farm, Vannorman’s liability insurer, offered to settle Ewing’s claim against Van-norman for his policy limits of $100,000 per person. Following State Farm’s offer, Ewing notified Auto-Owners of Vannor-man’s offer to settle Ewing’s claim for his policy limits.

Ewing’s Claim for Underinsured Motorist Benefits

Ewing first provided Auto-Owners with notice of a possible underinsured motorist claim on October 23, 2009. On March 4, 2010, Auto-Owners filed a motion to intervene in Ewing’s bodily injury lawsuit against Vannorman and filed its complaint for declaratory judgment. More particularly, Auto-Owners sought a declaration that Ewing’s underinsured motorist claim was barred by the Provision in her policy which provides:

a. TIME LIMITATION FOR ACTIONS AGAINST US
Any person seeking Uninsured or Un-derinsured Motorist Coverage must:
(1) present a claim for compensatory damages according to the terms and conditions of the policy; and
(2) conform with any applicable statute of limitations applying to bodily injury claims in the state in which the accident occurred.

Appellant’s App. p. 74 (quoting from complaint seeking declaratory judgment) (emphasis in original). Auto-Owners pointed out that the applicable statute of limitations for bodily injury claims in Indiana is two years from the date of the accident and that Ewing had failed to file suit for underinsured motorist coverage under the policy by failing to file suit against Auto-Owners on or before August 15, 2009.

On April 26, 2011, Ewing filed a motion for partial summary judgment solely on the issue of the validity of the Provision. Specifically, Ewing alleged that the Provision was “impermissibly vague and ambiguous and, therefore, unenforceable as sought to be applied by Auto-Owners.” Appellant’s App. p. 168.

On July 21, 2011, just before the trial court’s hearing on the motion for summary judgment, Ewing supplemented her designation of evidence with deposition testimony without seeking leave from the court to do so. Auto-Owners moved to strike Ewing’s untimely designated evidence. This motion was denied.

At the July 25, 2011 summary judgment hearing, Ewing argued that the Provision of the underinsured motorist endorsement was not enforceable because the policy language was vague and ambiguous. More particularly, Ewing argued that the Provision created an ambiguity as to who an insured must bring a claim against for underinsured benefits, the time period in which a claim must be made, and the operation of the policy’s subrogation provisions. Auto-Owners opposed Ewing’s motion, arguing that the policy is unambiguous and enforceable and that Indiana courts have enforced the same or similar provisions.

To address questions raised by the trial court at that hearing, Auto-Owners filed a post-hearing brief, discussing certain issues considered by prior panels of the Indiana Court of Appeals. More particularly, Auto-Owners countered Ewing’s assertion that the issue of vagueness and ambiguity had not been raised or decided in Indiana.

On August 5, 2011, the trial court granted summary judgment in favor of Ewing, concluding that the “underinsured motorist coverage limitations clause of the Auto-Owners policy is impermissibly vague and ambiguous,” and therefore “unenforceable.” Appellant’s App. p. 12. On August 17, 2011, the trial court entered an order of final judgment against Auto-Owners on its complaint for declaratory relief. Auto-Owners now appeals.

DISCUSSION AND DECISION

I. Motion to Strike Designated Evidence

Auto-Owners argues that the trial erred by denying its motion to strike the Appellees’ July 21, 2011 supplemental designation of evidence that it contends was untimely. Auto-Owners points out that the Appellees failed to seek leave from the trial court, and, in any event, the local rules did not provide for the filing of a reply brief or supplemental designated evidence.

The Appellees counter that the supplemental designated evidence included the deposition of Cathy Benko, which was taken after the Appellees had filed their motion for summary judgment. Additionally, the Appellees point out that Auto-Owners cited Benko’s deposition testimony in its response to the Appellees’ summary judgment motion, and, therefore, it was proper for the Appellees to respond by filing a reply brief and supplemental designated evidence. In other words, the Appellees contend that their reply brief “merely includes further and more complete information to clarify and respond to that set for in Auto-Owners’[s] response.” Appellees’ Br. p. 38.

In Spudich v. Northern Indiana Public Service Co., 745 N.E.2d 281, 285-86 (Ind.Ct.App.2001), a panel of this Court was confronted with whether a local rule permitting reply briefs conflicted with Trial Rule 56. The panel recognized that “Trial Rule 56 neither expressly permits nor precludes such a reply brief. The supreme court has, in other instances, either expressly permitted or expressly prohibited reply briefs.” Id. at 287 (comparing Trial Rule 56 with Appellate Rule 56(D) (“Reply briefs on Rehearing are prohibited”) and Appellate Rule 46(C) (“The appellant may file a reply brief responding to the appel-lee’s argument”)). The panel noted that regarding Trial Rule 56, although our Supreme Court has remained silent on the specific subject of a reply brief, the Rule does provide for affidavits in support or opposition of summary judgment to be supplemented by depositions, interrogatories, and other affidavits. Id. (citing Trial Rule 56(E)).

Here, as stated above, the Appellees filed a reply brief and designated Benko’s deposition that was taken after the Appel-lees had filed their motion for summary judgment. Moreover, in Auto-Owners’s response to the Appellees’ motion, it referred to Benko’s deposition. In the absence of any language in Trial Rule 56 explicitly prohibiting reply briefs and such designations and in light of these facts and circumstances, we cannot say the trial court erred in denying Auto-Owners’s motion to strike.

II. Enforceability of the Contractual Limitation Provision

Auto-Owners appeals the grant of the Appellees’ motion for partial summary judgment on Auto Owners’s complaint for declaratory relief. When reviewing a grant of summary judgment, we apply the same standard as the trial court, namely, summary judgment should be granted only if the designated evidence demonstrates that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Scribner v. Gibbs, 953 N.E.2d 475, 479 (Ind.Ct.App.2011); see also Ind. Trial Rule 56(C). Additionally, we must construe all factual inferences in favor of the nonmoving party, and all doubts as to the existence of a material issue must be resolved against the moving party. Id.

Moreover, “a trial court’s grant of summary judgment is clothed with a presumption of validity, and the party who lost in the trial court has the burden of demonstrating that the grant of summary judgment was erroneous.” Cox v. N. Ind. Pub. Serv. Co., Inc., 848 N.E.2d 690, 695-96 (Ind.Ct.App.2006). An appellate court “will affirm upon any theory or basis supported by the designated materials.” Id.

At the center of this dispute is the Provision contained in the insurance policy. Auto-Owners argues that the uninsured motorist claim is time-barred by the Provision, which, according to Auto-Owners, has been previously upheld by panels of this Court. The Appellees counter that the Provision is vague and ambiguous, and therefore, unenforceable.

Initially, we observe that we interpret the terms of an insurance policy using the same rules of interpretation applied to other contracts. Cincinnati Ins. Co. v. Am. Alt. Ins. Corp., 866 N.E.2d 326, 832 (Ind.Ct.App.2007). More particularly, if the language is clear and unambiguous, we will apply the plain and ordinary meaning. Id. Nevertheless, courts are to interpret policy terms “from the perspective of an ordinary policyholder of average intelligence.” Allgood v. Meridian Sec. Ins. Co., 836 N.E.2d 243, 246-47 (Ind.2005). Where an ambiguity exists, that is, where reasonably intelligent people may interpret the policy’s language differently, Indiana courts construe insurance policies strictly against the insurer. Id. at 247.

Here, as stated above, the Provision provides:

a. TIME LIMITATION FOR ACTIONS AGAINST US

Any person seeking Uninsured or Un-derinsured Motorist Coverage must:

(1) present a claim for compensatory damages according to the terms and conditions of the policy; and
(2) conform with any applicable statute of limitations applying to bodily injury claims in the state in which the accident occurred.

Appellant’s App. p. 230. Additionally, Section V, which encompasses what a policyholder must do after an accident or loss to preserve Auto-Owners’s right to recover payments provides:

a. If we make a payment under this policy and the person to or for whom payment is made has a right to recover damages from another, we will be entitled to that right. That person shall do everything necessary to transfer that right to us and shall do nothing to prejudice it.
b. The person to or for whom payment is made under the Uninsured Motorist Coverage and/or Underinsured Coverage must hold in trust for us his rights of recovery against any legally liable person. He must do all that is proper to secure such rights and must do nothing to prejudice them. He must take any required action in his name to recover damages and reimburse us out of any proceeds to the extent of our payment.

Appellant’s App. p. 44.

In light of the plain language of these provisions, we think that an ordinary policyholder would interpret the Provision as requiring them to bring a claim for bodily injury against the alleged tortfeasor within the applicable statute of limitations, thereby protecting Auto-Owners’s subrogation rights, and reimburse Auto-Owners out of the proceeds to the extent of Auto-Owners’s prior payments. Otherwise, policyholders are basically required to bring a claim against Auto-Owners at the same time that they bring a claim against the alleged tortfeasor. While we recognize that this may have been Auto-Owner’s intent, it should have stated so in plain English in its policy documents so that its policyholders know how to protect their interests and collect their benefits. '

In any event, we conclude that the language in the policy is clear from the perspective of an ordinary policyholder and that the Appellees did what was required of them under the policy, inasmuch as they filed a complaint against Vannorman before the expiration of the statute of limitations. Consequently, we affirm the decision of the trial court.

The judgment of the trial court is affirmed.

DARDEN, J., and BAILEY, J., concur.

      . Laverna Ewing died following the filing of this lawsuit due to causes unrelated to the accident, although it is unclear exactly when she passed away. In any event, this appeal has been brought by Cathy Benko and Gerald Ewing as Executors of the Estate of Laverna Ewing (collectively, “the Appellees”).


author: BAILEY, Judge.

text:
    Bil MUSGRAVE, Appellant-Respondent, v. SQUAW CREEK COAL COMPANY and Indiana Department of Natural Resources, Appellees-Petitioners.
    No. 49A05-1104-MI-164.
    Court of Appeals of Indiana.
    March 21, 2012.

      Peter M. Racher, Stephanie T. Eckerle, Josh S. Tatum, Plews Shadley Racher & Braun LLP, Indianapolis, IN, Attorneys for Appellant.
    E. Sean Griggs, David R Gillay, Barnes & Thornburg LLP, Indianapolis, IN, Attorneys for Appellee Squaw Creek Coal Company.
    Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee Indiana Department of Natural Resources.
   OPINION

BAILEY, Judge.

Case Summary

Bil Musgrave (“Musgrave”), a former coal miner, appeals the trial court’s order in favor of Squaw Creek Coal Company (“SCCC”) and the Indiana Department of Natural Resources (“DNR”) on SCCC’s petition for judicial review. SCCC petitioned the trial court for judicial review of an order issued by an Indiana Natural Resources Commission (“Commission”) Administrative Law Judge (“ALJ”) vacating the DNR’s decision to release certain portions of SCCC’s reclamation bond on its surface mining permit, and the trial court reversed. The DNR cross-appeals the trial court’s order. We affirm.

Issues

The parties raise several issues for our review, which we consolidate and restate as the following three issues:

I. Whether the trial court erred by denying Musgrave’s motion to dismiss SCCC’s petition for judicial review for lack of jurisdiction because SCCC did not serve summonses upon the Commission, the DNR, and the Indiana Attorney General, and did not pay the Marion County Superior Court filing fee;
II. Whether Musgrave is collaterally estopped from challenging the DNR’s decision to release the reclamation bond at issue; and
III. Whether the trial court erred by reversing the ALJ’s order and remanding for entry of judgment in favor of SCCC and the DNR.

Facts and Procedural History

SCCC was formed in 1960 as a joint venture between Alcoa, Inc. and Peabody Coal Company to mine the coal from Squaw Creek Mine. The extracted coal was used to power Alcoa’s nearby aluminum production facility on the banks of the Ohio River. Musgrave is a former miner who worked at Squaw Creek Mine.

The Squaw Creek Mine was mined in segments using a method called “surface mining.” (App.636) Using this method, SCCC drilled and blasted the overburden that covered the coal, removed the blasted and drilled pieces with draglines and shovels, and dumped the pieces to the side, making “structureless pile[s] of debris” (App.692) that ranged from twenty-five to eighty feet tall. The exposed coal was then extracted and transported to a processing area using “haul roads” that were approximately fifty feet wide and inclined because the mine floor was well below the original grade of the land. (App.636)

Between 1965 and 1979, Alcoa used abandoned haul roads in Squaw Creek Mine to dispose of waste generated at its aluminum production facility, such as chromium sludge, spent pot lining, and tarry wastewater and tars from tunnel kilns. Because the haul roads were lower than the surrounding spoil, the waste was dumped at relatively low levels. Alcoa dumped its wastes in coordination with the Indiana Department of Health, the predecessor to the Indiana Department of Environmental Management (IDEM), and the wastes were covered with native overburden. It is estimated that Alcoa dumped its waste at twelve locations in Squaw Creek Mine, but some former miners assert that waste was dumped in several additional locations.

On March 28, 1984, SCCC obtained Permit S-008 to mine a certain area of Squaw Creek Mine’s North Field. The entire area covered by Permit S-008 is approximately 4,467 acres, 1,273.01 acres of which were actually mined. Successful reclamation of the land that was mined was secured with a bond.

All active mining at Squaw Creek Mine ended in 1987, and on October 26, 2007, SCCC applied for release of certain portions of the bond on Permit S-008. The DNR held a public hearing on the bond release petition on January 3, 2008 at which Musgrave and other concerned citizens testified, as did an Alcoa safety representative. Much of the hearing focused on Alcoa’s disposal of the waste, whether all disposal locations had been discovered, and the various health and environmental impacts that the waste disposal has allegedly had on Squaw Creek Mine. On January 4, 2008, the DNR conducted a field investigation of the area covered by the bond and approved SCCC’s bond release application on February 1, 2008. In approving the bond release, the DNR concluded that “[t]he actual or theoretical threat of pollution from industrial wastes is not the type of impact anticipated by the bond release requirements.” (App.96)

On February 15, 2008, Musgrave sought administrative review of the DNR’s decision from the Commission. After the parties filed several motions and participated in multiple conferences, Musgrave moved for summary judgment on April 3, 2009. SCCC and the DNR filed responses and cross motions for summary judgment on June 25, 2009 and June 26, 2009, respectively.

On December 28, 2009, the ALJ issued an order affirming the DNR’s decision to release parts of the bond on certain portions of SCCC’s reclamation bond, but vacating the DNR’s decision to affirm the release on others. Although the ALJ concluded that none of the identified sites where Alcoa dumped waste were located within the bonded area, the ALJ vacated the DNR’s decision as to certain portions of land because she concluded that “the migration of waste or constituents of that waste from the disposal sites throughout [Squaw Creek Mine] and possibly beyond is facilitated by the permeable overburden layer created throughout [Squaw Creek Mine] by SCCC’s mining operations.” App. 69. The ALJ based this conclusion on evidence that the mining spoil was behaving as an “unconfined aquifer” (App. 748) where lateral migration of water occurs.

SCCC sought judicial review of the ALJ’s order by filing its Verified Motion for Judicial Review in Marion County Superior Court on January 22, 2010. That same day, SCCC sent a copy of its petition for judicial review to Musgrave, the Indiana Attorney General, the DNR, and the Commission. It also sent a summons with the petition sent to Musgrave. SCCC did not send summonses to the Attorney General, the DNR, or the Commission.

On January 27, 2010, Attorney April Lashbrook of the Indiana Attorney General’s Office entered an appearance on behalf of the DNR. On February 8, 2010, Attorney Peter Racher entered an appearance on behalf of Musgrave. Then, on March 17, 2010, Attorneys Peter Racher and Stephanie Eckerle filed an “Amended Limited Appearance by Attorneys in a Civil Case” (App.98) as well as a motion to dismiss SCCC’s petition for lack of subject matter jurisdiction, lack of personal jurisdiction, insufficiency of process, insufficiency of service of process, and failure to state a claim upon which relief may be granted. The trial court denied Musgrave’s motion to dismiss on May 26, 2010.

The parties briefed the issue of whether the ALJ properly reversed the DNR’s decision on phase III release of the bond, and the trial court held oral argument on December 16, 2010. On March 11, 2011, the trial court issued its “Order on Verified Petition for Judicial Review” reversing the ALJ’s order and remanding for entry of judgment in favor of SCCC and the DNR.

Musgrave now appeals. Additional facts will be supplied as necessary.

Discussion and Decision

The Trial Court’s Jurisdiction

We first address Musgrave’s argument that the trial court should have dismissed Musgrave’s petition because it lacked jurisdiction to review the ALJ’s order. Specifically, Musgrave maintains that SCCC committed certain errors in petitioning for judicial relief, namely that it did not serve summonses upon the Commission, the DNR, and the Indiana Attorney General with its petition; did not name the DNR and Attorney General as parties on the summons it served upon Musgrave; and did not pay a filing fee in Marion County Court. According to Musgrave, as a result of these alleged errors, SCCC’s petition for judicial review was untimely and thus the trial court should have dismissed SCCC’s petition.

Decisions concerning surface coal mining and reclamation under Indiana Code article 14-34 are subject to judicial review under the Indiana Administrative Orders and Procedures Act (AOPA). Ind.Code § 14-34-17-1. AOPA “establishes the exclusive means for judicial review of an agency action.” LC. § 4-21.5-5-1. Judicial review of an administrative order is initiated by filing a petition for review in the appropriate court. I.C. § 4-21.5-5-2. A person is entitled to judicial review only if that person has standing, has exhausted administrative remedies, files a petition for review within thirty (30) days after the date that notice of the agency action is served, and timely transmits the agency record. I.C. § 4-21.5-5-2(b). The petition must be filed with the clerk of the court, be verified, and contain certain information. I.C. § 4-21.5-5-7. In addition:

A petitioner for judicial review shall serve a copy of the petition for judicial review upon:
(1) the ultimate authority issuing the order;
(2) the ultimate authority for each other agency exercising administrative review of the order;
(3) the attorney general, and
(4) each party to the proceeding before an agency;
in the manner provided by the rules of procedure governing civil actions in the courts.

I.C. § 4-21.5-5-8.

We first turn to Musgrave’s argument that the summons he received was defective and that SCCC did not send summonses to the DNR, Attorney General, or the Commission. The parties dispute the meaning of AOPA’s directive to serve the petition for judicial review “in the manner provided by the rules of procedure governing civil actions.” I.C. § 4-21.5-5-8. Musgrave argues that it refers to the Indiana Trial Rules’ requirements governing process and service for the commencement of a new civil action which require a summons along with the complaint. Under Indiana Trial Rule 3, a party commences a civil action by filing the complaint or equivalent pleading specified by statute, paying a prescribed filing fee, and, where service of process is required, furnishing the clerk with as many copies of the complaint and summons as is necessary. Trial Rule 4, entitled “Process”, addresses the various requirements of the form and content of a summons. Trial Rules 4.1 through 4.17 govern how that process (the summons and complaint) is served, depending on the type of party to be served or the method by which service is to be effected.

SCCC, on the other hand, argues that it needed only to serve the petition for judicial review and did not need to include a summons. Working from the position that judicial review of an administrative order is merely the continuation of an ongoing dispute, SCCC argues that AOPA’s reference to the trial rules means rules governing actions already commenced. Trial Rule 5 governs the service of subsequent pleadings and papers, such as written motions, pleadings subsequent to the original complaint, written motions, briefs, documents related to discovery, and other written notices.

Both parties attempt to support their position here by directing us to our opinion in Lindsey v. De Groot Dairy LLC, 867 N.E.2d 602 (Ind.Ct.App.2007), trans. denied. In that case, we addressed whether the service of a summons and the petition for judicial review on a party’s attorney, rather than the party himself, met the service requirements of AOPA. We concluded that it did, and wrote that “service pursuant to Trial Rule 5 satisfies Indiana Code Section 4-21.5-5-8” and that “[i]f the General Assembly would prefer service be achieved under Trial Rule 4, it should so specify.” Id. at 605.

Musgrave, however, presents a slightly different issue here in that his challenge is one of insufficiency of process, not insufficiency of service of process. A claim of insufficiency of process is a challenge to the content of a summons, whereas a challenge of insufficiency of service of process challenges the manner or method of service. Cotton v. Cotton, 942 N.E.2d 161, 164 (Ind.Ct.App.2011). Musgrave does not argue that SCCC sent its petition to the wrong person. Nor does he argue that SCCC incorrectly sent the petition or otherwise deficiently served the petition. Rather, Musgrave takes issue with the content of his summons and the fact that no summons was sent to DNR, the Commission, and the Attorney General.

AOPA states that a party shall serve “a copy of the petition for judicial review” and says nothing of a summons. The petition is therefore the only process required by AOPA. Just like Trial Rule 4, Indiana Code Section 4-21.5-5-7 lists the content requirements of the process (the petition) necessary under AOPA. Service of this process is then to be achieved in the manner provided for under the trial rule relevant to the particular party to be served, be it on an individual, organization, the Attorney General, or through a party’s attorney. See De Groot, 867 N.E.2d at 605.

Here, the ALJ issued her order on December 28, 2009. SCCC filed its Verified Motion for Judicial Review in Marion Superior Court less than thirty days later on January 22, 2010. That same day, SCCC sent a copy of its petition to Musgrave, the Indiana Attorney General, the DNR, and the Commission. SCCC’s process and service thereof was sufficient.

Similarly, we find no error in the trial court’s refusal to dismiss SCCC’s petition even though it did not pay a filing fee. AOPA makes no mention of a filing fee. Even if we were to accept Mus-grave’s interpretation of AOPA’s language, Trial Rule 3 merely requires that a party pay the “prescribed filing fee.” The Marion Superior Court prescribed no filing fee in this case and SCCC should not be penalized for not paying a filing fee that it was never required to pay. The trial court did not err by refusing to dismiss.

Issue Preclusion

Both SCCC and the DNR argue that Musgrave is collaterally estopped from challenging the bond release on Permit S-008 because he challenged the bond release on another permit, S-009, raising the same legal issues. In general, collateral estoppel, or issue preclusion, bars subsequent litigation of a fact or issue that was necessarily adjudicated in a former suit if the same fact or issue is presented in a subsequent lawsuit. Indianapolis Downs, LLC v. Herr, 834 N.E.2d 699, 704 (Ind.Ct.App.2005), trans. denied. Where issue preclusion is applicable, the former adjudication will be conclusive in the subsequent action even if the two actions are different claims. Id. However, the former adjudication will only be conclusive as to those issues that were actually litigated and determined therein. Id. Issue preclusion does not extend to matters that were not expressly adjudicated and can be inferred only by argument. Id.

In order for a matter to have been “necessarily adjudicated” such that issue preclusion applies, the determination must have been essential to the decision. Watson Rural Water Co. v. Indiana Cities Water Corp., 540 N.E.2d 131, 137 (Ind.Ct.App.1989), trans. denied. Moreover:

If a judgment of a court of first instance is based on determinations of two issues, either of which standing independently would be sufficient to support the result, the judgment is not conclusive with respect to either issue standing alone ... [A] determination in the alternative may not have been as carefully or rigorously considered as it would have if it had been necessary to the result, and in that sense it has some of the characteristics of dicta ...
There may be cases where, despite these considerations, the balance tips in favor of preclusion because of the fullness with which the issue was litigated and decided in the first action. But since the question of preclusion will almost always be a close one if each case is to rest on its own particular facts, it is in the interest of predictability and simplicity for the result of nonpreclusion to be uniform.

Restatement (Second) Judgments § 27, cmt. i.

The ALJ wrote the following in dismissing the Musgraves’ challenge to the release of the bond on Permit S-009:

30. However, the Musgraves [sic] complaint focuses on matters that are either outside the scope of the bond release relating to Squaw Creek’s Permit# S-009 or are outside the control or jurisdiction of the Department, the Commission or the administrative law judge.
⅝ ⅜ ⅜ ⅜: ⅜ ⅜
37. Therefore, the Department is without authority to deny bond release on Permit# S-009 as a result of activities that allegedly occurred within the permit area covered by Permit# S-008 or for the purpose of facilitating the remediation of contamination resulting from activities that allegedly occurred within the permit area covered by Permit# S-008.
38. In the event it were appropriate for the Department to deny any bond release relating to the Musgraves’ complaint of toxic dumping and the resulting contamination it would have to be the bond related to Permit# S-008, not the bond posted on Permit# S-009.
⅜ Hi ⅜ ⅜ ⅜ ⅜
47. The Musgraves’ complaint fails to state a claim upon which relief may be granted for two reasons. First, the complaint relates to activities within the permit area of Permit# S-008, which is not the subject of bond release at issue in this proceeding. Second, the relief sought is the remediation of contamination resulting from alleged past toxic dumping, which is not within the jurisdiction of the Department, the Commission or the administrative law judge.

DNR App. 1-6.

The ALJ’s decision was clearly based upon two separate but individually sufficient grounds. The first was that the complaint challenged the release of the bond on Permit S-009 based on activities within the area covered by Permit S-008. The ALJ could have dismissed the Musgraves’ action without more. However, it went on to state that neither the DNR nor the Commission had jurisdiction to grant the requested relief over the waste that was dumped. This, too, could have independently supported dismissal. Because the jurisdictional question was one of two separate but independently sufficient grounds for dismissal, we cannot conclude that it was necessarily adjudicated in the prior proceeding. Consequently, it cannot be the basis of issue preclusion, and the trial court was correct to conclude that Mus-grave is not collaterally estopped from challenging the release of the bond on Permit S-008.

Release of the Bond

Standard of Review

We now turn to the trial court’s order on SCCC’s judicial review petition. When we review the decision of an administrative agency, we are bound by the same standard as the trial court. Indiana Dep’t of Natural Res. v. Hoosier Envtl. Council, Inc., 831 N.E.2d 804, 808 (Ind.Ct.App.2005). We do not try the case de novo and do not substitute our judgment for that of the agency. Id. Pursuant to AOPA, we will reverse the administrative decision only if it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to a constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; or (5) unsupported by substantial evidence. I.C. § 4-21.5-5-14; also Hoosier Envtl. Council, Inc., 831 N.E.2d at 808. While an appellate court grants deference to an administrative agency’s findings of fact, no such deference is accorded to its conclusions of law. LTV Steel Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind.2000). The burden of demonstrating the invalidity of the agency action is on the party who asserts the invalidity. Dep’t of Natural Res. v. Peabody Coal Co., 740 N.E.2d 129, 134 (Ind.Ct.App.2000).

The ALJ’s order was entered on cross motions for summary judgment. In an administrative proceeding, a party may, at any time after the matter has been assigned to an administrative law judge, move for a summary judgment in the party’s favor as to all or any part of the issues in the proceeding. I.C. § 4-21.5-3-23. When a party files a summary judgment motion, the administrative law judge considers the motion as a court would if considering a motion for summary judgment filed under Trial Rule 56.

Pursuant to Indiana Trial Rule 56(C), summary judgment is appropriate when there are no genuine issues of material fact and when the moving party is entitled to judgment as a matter of law. “A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed facts are capable of supporting conflicting inferences on such an issue.” Mahan v. American Standard Ins. Co., 862 N.E.2d 669, 675 (Ind.Ct.App.2007) (quoting Scott v. Bodor, Inc., 571 N.E.2d 313, 318 (Ind.Ct.App.1991)), trans. denied. The party moving for summary judgment bears the burden of making a prima facie showing that there is no genuine issue of material fact and that he or she is entitled to a judgment as a matter of law. Indiana-Kentucky Elec. Corp. v. Comm’r, Ind. Dep’t of Envtl. Mgmt., 820 N.E.2d 771, 776 (Ind.Ct.App.2005). Once the moving party meets these two requirements, the burden shifts to the non-moving party to show the existence of a genuine issue of material fact by setting forth specifically designated facts. Id.

The fact that the parties made cross-motions for summary judgment does not alter our standard of review. Mahan, 862 N.E.2d at 676. Instead, we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id.

Indiana Surface Mining Control and Reclamation Act

The United States Congress has acknowledged that coal mining operations contribute significantly to the energy requirements of the United States, and that surface coal mining is an appropriate method of obtaining the natural resource. Natural Resources Comm’n of Ind. v. AMAX Coal Co., 638 N.E.2d 418, 419 (Ind.1994). However, recognizing the negative environmental impacts and the public health and safety hazards associated with surface mining operations, Congress adopted the federal Surface Mining Control and Reclamation Act of 1977. Id. Indiana’s counterpart to F-SMCRA, the Indiana Surface Mining Control and Reclamation Act (I-SMCRA), similarly recognizes the need to protect society and the environment and assure the rights of surface land owners and others by preventing and minimizing the adverse effects of surface mining operations. Id.

I-SMCRA is codified at Indiana Code Article 14-34. Pursuant to I-SMCRA, a person may not open, develop, or operate a new or previously mined or abandoned site for surface coal mining in Indiana without holding a valid surface coal mining and reclamation permit. I.C. § 14-34-3-1. The permit application must contain, among other things, a reclamation plan. I.C. § 14-34-3-3(17). Each reclamation plan must include a proposed use of the land following reclamation, and a description of the various steps necessary to achieve that proposed use. I.C. § 14-34-3-12.

After the mining and reclamation permit is approved but before it is issued, the applicant must file a bond for performance payable to the state and conditional upon faithful performance of all the requirements of the Indiana Code and the permit. I.C. § 14-34-6-1. In order to secure release of the bond, the operator must notify certain parties, including adjoining property owners, and run a public notice advertising that the operator has applied for release of the bond. I.C. § 14-34-6-7. Within thirty days of receipt of a bond release application, the DNR must conduct an inspection and evaluation of the reclamation work involved. I.C. § 14-34-6-9. That evaluation must include:

(1) The degree of difficulty to complete a remaining reclamation.
(2) Whether pollution of surface and subsurface water is occurring.
(3) The probability of continuance or future occurrence of the pollution.
(4) The estimated cost of abating the pollution.

Id.

A person with a legal interest affected by the bond may file written objections and request a public hearing within thirty days. I.C. § 14-34-6-10. If the DNR is satisfied that the reclamation covered by the bond has been accomplished, then it may release the bond in three phases. I.C. § 14-34-6-13. Sixty percent of the bond may be released in phase I when the permittee completes backfilling, regrading, and drainage control in accordance with the reclamation plan. I.C. § 14-34-6-13. After revegetation has occurred, the director may release phase II of the bond. The final portion of the bond, phase III, may only be released when the permittee has “successfully completed all surface coal mining activities” and “all reclamation requirements of [I-SMCRA] are fully met.” I.C. § 14-34-6-13. One of these duties is to ensure that:

All debris, acid-forming materials, toxic materials, or materials constituting a fire hazard are treated, buried, and compacted or otherwise disposed of in a manner designed to prevent contamination of ground or surface water.

I.C. § 14-34-10-2(b)(17)(A).

Another requirement is to:

Minimize disturbances to the prevailing hydrologic balance at the mine site and associated offsite areas and to the quality and quantity of water in surface and ground water systems during and after surface coal mining and reclamation operations by doing the following:
(A) avoiding acid or other toxic mine drainage by measures such as the following:
(i) Preventing or removing water from contact with toxic-producing deposits.
(ii) Treating drainage to reduce toxic content that adversely affects downstream water upon being released to watercourses.
(iii) Casing, sealing, or otherwise managing boreholes, shafts, and wells and keep acid or other toxic drainage from entering ground and surface water.

I.C. § 14 — 34—10—2(b)(13).

Phase III Release

The parties dispute the meaning of several of I-SMCRA’s reclamation terms, specifically, the “pollution” the DNR must evaluate, I.C. § 14-34-6-9, the “toxic materials” of which SCCC must properly dispose, I.C. § 14-34-10-2(b)(17), and the “toxic mine drainage” that SCCC must avoid, I.C. § 14 — 34—10—2(b)(13). Musgrave argues that these terms do not have causal requirements, and therefore any material that could reasonably fall within the meanings of the words — in this case Alcoa’s waste — must be evaluated by the DNR and remediated by SCCC, regardless of whether SCCC caused the pollution or not. SCCC and the DNR maintain that Alcoa’s hazardous waste and any migration thereof falls within IDEM’s jurisdiction.

Words and phrases in Indiana statutes shall be taken in their plain, ordinary, or usual sense, unless the construction is plainly repugnant to the intent of the legislature or of the context of the statute. I.C. § 1 — 1—4—1. However, an interpretation of a statute by an administrative agency charged with the duty of enforcing the statute is entitled to great weight, unless this interpretation would be inconsistent with the statute itself. LTV Steel Co., 730 N.E.2d at 1257. But an administrative agency does not have the power to make decisions properly committed to another agency. Id. An administrative agency has only those powers that the legislature has conferred to it, and unless we find the grant of powers and authority in the statute, we conclude that no power exists. Id.

The Commission and Musgrave broadly interpret the DNR’s requirement to evaluate pollution and toxic waste so as to include Alcoa’s hazardous waste and the effect that SCCC’s mining had thereon, but we think that this reading is in excess of DNR’s powers, and is therefore unreasonable. The Indiana General Assembly has given IDEM, not the DNR, the duty to “regulate and require the proper and safe transportation, treatment, storage, and disposal of hazardous waste that is generated in or transported into Indiana.” I.C. § 13-22-2-1. IDEM is also designated as the state agency to implement and enforce federal laws concerning hazardous waste. For example, IDEM is the solid waste agency for all purposes of the federal Resource Conservation and Recovery Act and is the agency tasked with implementing and enforcing the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). I.C. § 13-13-5-1. Alcoa coordinated its dumping of hazardous waste with IDEM’s predecessor. IDEM continues to work with Alcoa on monitoring the hazardous waste and the potential migration of water with waste constituents.

We therefore conclude that the DNR’s duty under I-SMCRA to evaluate “pollution” and SCCC’s obligation to properly dispose of “toxic materials” refers to those materials that result from surface mining. As for “toxic mine drainage”, the term is defined in the Indiana Administrative Code as “water that is discharged from active or abandoned mines or other areas affected by coal exploration or surface coal mining and reclamation operations that contains a substance that through chemical action or physical effects is likely to kill, injure, or impair biota commonly present in the area that might be exposed to the substance.” 312 IAC § 25-1-155. By its very name and definition, then, toxic mine drainage means water discharged as a result of mining operations. It does not include Alcoa’s waste, which was dumped before SCCC started mining the bonded area at issue here.

The DNR determined that SCCC had completed all the necessary requirements for the phase III release on certain portions of the land. Before reaching this conclusion, the DNR held a public hearing and conducted a field investigation. The field investigation included an evaluation of the hydrological balance and confirmed that the surface water, ground water, and water impoundments were all acceptable. The report also concluded, among other things, that acceptable practices to control and minimize water pollution were implemented, pollution of ground water by drainage from acid and toxic-forming materials was avoided, and the quality of impounded water is suitable for use. The quality in the bonded area had a pH level of between 6.5 and 7, and traces of metals were negligible.

The DNR therefore fully investigated whether pollution or other toxic materials resulting from mining were occurring or will occur in the future. If it is determined in the future that SCCC’s mining spoil within the bonded area or elsewhere is indeed causing the spread of groundwater containing waste constituents, it will be the responsibility of IDEM — the agency tasked with such waste and its migration— to investigate and, if necessary, hold those responsible for remediation of damage. Insofar as the reclamation requirements of I-SMCRA are concerned, however, there is no genuine issue of material fact that they have been satisfied.

Indiana Administrative Code and Reclamation Plan

Musgrave also argues that SCCC’s bond release was premature because it has not satisfied all the requirements of the Indiana Administrative Code. Pursuant to the Administrative Code, the DNR may release phase III of a surface mining reclamation bond only after the “operator has successfully completed all surface coal mining and reclamation activities required in IC 14-34, this article, or the permit.” 312 IAC § 25-5-16 (emphasis supplied). According to Musgrave, the bond release is premature because:

Surface mining activities shall be planned and conducted to minimize changes to the prevailing hydrologic balance in both the permit area and adjacent areas, to prevent material damage to the hydrologic balance outside the permit area, in order to prevent long term adverse changes in that balance which could result from those activities.

312 IAC § 25-6-12.

We are doubtful that the above rule is a reclamation requirement, as it only refers to planning and conducting activities. Even so, the Indiana Administrative Code requires that the operator satisfy the requirements of Indiana Code article 14-34, the Indiana Administrative Code, or the permit. 312 IAC § 25-5-16. As we have already discussed, SCCC met the reclamation requirements of Indiana Code article 14-34 and, as such, release of phase III is in compliance with the Indiana Administrative Code.

Finally, Musgrave contends that SCCC has not met all the requirements of its own reclamation plan. SCCC’s plan states that “[i]n general non-coal waste will be hauled away from the mine by contract trash haulers” and that “[a]ny non-coal waste which remains after reclamation of the final pit will also be removed from the permit area for disposal.” App. 827. “Non-coal wastes” include grease, lubricants, paints, flammable liquids, garbage, abandoned mining machinery, lumber, and other combustibles generated during surface mining activities.” 312 IAC § 25-6-42. The definition of non-coal wastes clearly refers to wastes that were generated during surface mining activities. SCCC began mining the bonded area here after Alcoa finished dumping its waste, and we cannot agree with Musgrave that the reclamation plan’s reference to non-coal wastes includes Alcoa’s hazardous waste. Musgrave presents no error concerning SCCC’s failure to comply with its reclamation plan.

Conclusion

The trial court had jurisdiction to consider SCCC’s petition for judicial review and did not err by refusing to dismiss it. Musgrave is not collaterally estopped from challenging the DNR’s decision to release the bond on Permit S-008 because the jurisdictional issue regarding Alcoa’s hazardous wastes was not necessarily adjudicated in the prior proceeding. There is no genuine issue of material fact that SCCC met the phase III release requirements of I-SMCRA. SCCC has also satisfied the requirements of the Indiana Administrative Code and its own permit. The trial court’s order reversing the ALJ’s order and remanding for entry of judgment in favor of SCCC and the DNR is affirmed.

Affirmed.

BAKER, J., and DARDEN, J., concur.

      . Overburden is material of any nature except topsoil that overlies a coal deposit. 312 IAC § 25-1-93.

      . As we discuss below, bonds on reclamation permits are released in three phases. Each phase requires satisfaction of certain criteria before it may be released. In its bond release application, SCCC applied for phase I release on some parts of the land, phase II release on other parts, and phase III release on yet other parts. The ALJ affirmed the DNR’s decision to release the bond on the land that SCCC requested phase I and phase II releases. The ALJ vacated the DNR’s approval on the land for which phase III release was requested.

      . In its brief, SCCC explains that the person who assisted in filing the petition saw Mus-grave's name in the caption and, out of familiarity and "perhaps overzealously”, prepared and sent a summons to Musgrave. Appellee's Br. p. 22.

      . This makes sense because AOPA requires service of the petition on the “ultimate authority issuing the order." Practically speaking, there is no need to serve a summons on the AU that contains, among other things, “the time within which these rules require the person to be served to respond, and a clear statement that in case of his failure to do so, judgment by default may be rendered against him for the relief demanded in the complaint.” T.R. 4(C)(5).

      . Both Musgrave and his wife challenged the release of the bond on Permit S-009.

      . Although the DNR supervises the administration and enforcement of I-SMCRA, I.C. § 14-34-2-3, the Commission is the "final authority” for the agency under AOPA except in consolidated proceedings with the Office of Environmental Adjudication and proceedings concerning the approval or disapproval, suspension, or revocation of a surface mining permit (but not reclamation bonds). I.C. § 14-34-2-2.


author: BROWN, Judge.

text:
    The ESTATE OF Donald Eugene SMITH, Appellant, v. Joshua STUTZMAN d/b/a Keystone Builders, Appellee.
    No. 43A01-1103-PL-136.
    Court of Appeals of Indiana.
    March 23, 2012.
    David C. Kolbe, David C. Kolbe, P.C., Warsaw, IN, Attorney for Appellant.
    Lyle R. Hardman, Hunt Suedhoff Kala-maros, LLP, South Bend, IN, Attorney for Appellee.
   OPINION

BROWN, Judge.

The Estate of Donald Smith (the “Estate”) appeals from the trial court’s dismissal of its lawsuit against Joshua Stutzman d/b/a Keystone Builders (“Stutzman”). The Estate raises two issues, which we revise and restate as whether the trial court properly granted Stutzman’s motion to set aside default judgment and motion to dismiss and dismissed the Estate’s action. We affirm.

The relevant facts follow. Smith worked for Stutzman. Stutzman filed a report of employee injury/illness with the Indiana Worker’s Compensation Board (the “Board”) prepared on June 8, 2010, which indicated that on March 26, 2010, Smith suffered a “[b]roken neck” and was “on a ladder [and] fell 20 feet and died.” Appellee’s Supplemental Appendix at 1. A Settlement Agreement and Petition for Approval (the “Settlement Agreement”) was entered into by Donald Smith, deceased, by his widow Carol Smith, Stutz-man, and Travelers Casualty Insurance Company of America (“Travelers”), and the Settlement Agreement was filed with the Board on June 22, 2010. The parties to the Settlement Agreement agreed that Smith’s worker’s compensation claim would be settled for a lump sum payment of $100,000, payable to his sole presumptive dependent, Carol Smith. On June 28, 2010, the Board entered an order approving the Settlement Agreement and directing payment of $100,000.

On October 21, 2010, the Estate filed a complaint for damages against Stutzman in the Kosciusko Superior Court alleging in part that while working for Stutzman as an independent contractor on March 26, 2010, Smith fell from a roof resulting in his death and that Stutzman was negligent in maintaining safe work premises which was the direct and proximate cause of Smith’s death. On December 27, 2010, the Estate filed a motion for judgment by default and an affidavit in support of its motion. On December 28, 2010, the court entered an entry of default against Stutzman.

On February 1, 2011, Stutzman filed a Motion to Set Aside Default Judgment and Motion to Dismiss together with a memorandum of law. In its motion and memorandum, Stutzman cited to Ind. Trial Rules 60(B) and 12(B)(1) and argued that the December 28, 2010 entry of default was void in part because the Board has exclusive jurisdiction over the claim, Stutzman is immune from suit and damages in a state court proceeding, and the Estate is estopped from asserting that Smith was an independent contractor. On February 18, 2011, the Estate filed a response to Stutz-man’s motion to dismiss, and on February 22, 2011, Stutzman filed a reply.

On March 4, 2011, the court held a hearing on Stutzman’s Fébruary 1, 2011 motion and entered an order which found that the Board “has exclusive jurisdiction of this matter,” granted Stutzman’s motion, and ordered that the case be dismissed. Appellant’s Appendix at 5.

The issue is whether the trial court properly granted Stutzman’s February 1, 2011 motion to set aside default judgment and motion to dismiss. The Estate acknowledges that in Indiana if the Worker’s Compensation Act applies to an injury then all other remedies are excluded. However, the Estate argues that “no concession was made by [Stutzman] and no contention was asserted by the Estate that [ ] Smith was an employee,” that “the sole argument [Stutzman] can make is that the [Settlement Agreement], by its very existence, invokes exclusivity barring subsequent civil suit,” and that “while the settlement was- made pursuant to Section 15 under the Worker’s Compensation Code, the issue of employment remained outside the Act and its status remained unresolved.” Appellant’s Brief at 5-6. The Estate “concedes that it could never reopen an action under the [Act] for further benefits from Travelers by virtue of the [Settlement Agreement]” but maintains that “there is nothing in the statute which prohibits a civil claim on the remaining disputed issue, the question of employment” and that the Settlement Agreement “specifically left this issue unresolved.” Id. at 7. The Estate asserts that “the parties clearly did not intend to resolve all issues,” that “[t]he issue of employment remained on the table,” and that “[i]ndeed, that issue was left completely unresolved for possible resolution in a civil court of law.” Id.

Stutzman maintains that the court correctly determined that the Estate admitted that Smith was an employee of Stutz-man by invoking the jurisdiction of the Board and receiving worker’s compensation benefits. Specifically, Stutzman argues that the parties stipulated in the Settlement Agreement that the Board had subject matter jurisdiction over the claim and that “[i]t is axiomatic that, for the Board to have subject matter jurisdiction, Smith was [Stutzman’s] employee, acting within the scope and course of his employment.” Appellee’s Brief at 9. Stutzman further argues that “[t]he very act of seeking (and accepting) worker’s compensation benefits constitutes an admission by the Estate that Smith was an employee acting within the scope and course of his employment.” Id. Stutzman also argues that the Estate is judicially estopped from claiming that Smith was an independent contractor. Stutzman asserts that the trial court did not have subject matter jurisdiction over the Estate’s action, that thus the court’s entry of default judgment was void, and that the court correctly vacated the entry of default judgment and dismissed the case.

The Indiana Worker’s Compensation Act provides for compensation of injury or death by accident arising out of and in the course of employment. Ind.Code § 22-3-2-2; Wright Tree Serv. v. Hernandez, 907 N.E.2d 183, 186 (Ind.Ct.App.2009). trans. denied. Ind.Code § 22-3-2-6, the exclusivity provision of the Act, provides:

The rights and remedies granted to an employee subject to IC 22-3-2 through IC 22-3-6 on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, the employee’s personal representatives, dependents, or next of kin, at common law or otherwise, on account of such injury or death, except for remedies available under IC 5-2-6.1.

This court has stated that the Worker’s Compensation Act is designed to grant compensation to injured employees without regard to fault. Waldridge v. Futurex Indus., Inc., 714 N.E.2d 783, 785 (Ind.Ct.App.1999) (citation omitted), reh’g denied, trans. denied. “Once an injured employee accepts or receives compensation under the Act, she concedes that the injury was accidental in nature and that it arose out of and in the course of employment.” Id. (emphasis added). “Accordingly, the employee may not later sue her employer in tort based on the same work-related injury.” Id.

This court has further stated:

[B]y electing to come under the [Worker’s] Compensation Act, an employer and employee accept the procedure provided by that act for the adjudication of claims for compensation, and they waive the right of a trial by jury. An agreement, when filed with and approved by the [Worker’s Compensation] Board has the force and effect of an award, and adjudicates the facts involved therein....
Where there is no fraud on the part of the employer or an attempt to take advantage of the employee, the fact that the employee is ignorant of the provisions of [the Act] at the time he accepts compensation from his employer with full knowledge of all the facts does not defeat the effect of such acceptance as an election to take the compensation.

Williams v. Delta Steel Corp., 695 N.E.2d 633, 635 (Ind.Ct.App.1998) (citing Ind. Univ. Hosps. v. Carter, 456 N.E.2d 1051, 1054-1055 (Ind.Ct.App.1983) (citations omitted)), trans. denied. This court noted that “[i]n reaching that conclusion, we reasoned that an employee, by accepting and receiving compensation under the Act, concedes that the injury was accidental in nature and that it arose out of and in the course of employment.’” Id. (citing Univ. Hosps., 456 N.E.2d at 1056 (footnote omitted) (emphasis added)).

Further, the Indiana Supreme Court has stated that “[t]he exclusivity provision [Ind.Code § 22-3-2-6] bars a court from hearing any common law action brought by the employee for the same injuries.” Sims v. U.S. Fidelity & Guar. Co., 782 N.E.2d 345, 349-350 (Ind.2003). The Court further stated:

When an injury to a servant is found to be covered by a workers’ compensation act, it is uniformly held that the statutory compensation is the sole remedy, and that any recovery against the employer at common law is barred. It is recognized that this remedy is in the nature of a compromise, by which the worker is to accept a limited compensation, usually less than the estimate which a jury might place upon his damages, in return for an extended liability of the employer, and an assurance that he will be paid.

Id. at 351-352 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 80, at 574 (5th ed. 1984) (footnotes omitted)); see also Christopher R. Brown, D.D.S., Inc. v. Decatur Cnty. Mem’l Hasp., 892 N.E.2d 642, 649 (Ind.2008) (noting that “the remedies provided in the Worker’s Compensation Act are in derogation of the common law” and that “the law in this jurisdiction is settled that if the Worker’s Compensation Act applies to an injury, then the rights and remedies granted to an employee by the Act exclude all other rights and remedies of such employee....”) (internal quotation marks and citations omitted).

In Ind. Univ. Hosps., the Full Industrial Board approved of an agreement pursuant to which an employee would receive certain worker’s compensation benefits. 456 N.E.2d at 1053. The employee later brought a civil negligence action against her employer alleging that the employer failed to maintain a safe place for business invitees. Id. The employee argued on appeal that she was not injured in the course of her employment but between shifts while she was not on duty. Id. at 1054. This court examined the agreement entered into by the parties and found that the intent of the agreement was clear on its face and that there was no evidence that the employer misguided the employee into signing the agreement. Id. at 1055. The court then held:

[I]n the present case, the Industrial Board’s approval of the parties’ mutual compensation agreement is a determination that the incident did arise out of and in the course of her employment. In addition, [the employee] signed the agreement and i’eceived the benefit payments. She cannot now complain that the incident did not occur in the scope of her employment. [The employee] made a binding election of remedies, precluding her from pursuing another separate remedy.

Id. at 1056.

Here, the Settlement Agreement provided in part:

1.The [Board] has jurisdiction of this claim and may take such further action as is necessary to carry out the provisions of this Settlement Agreement and Petition for Approval at the Indianapolis offices of the Board without further notice to the parties hereto, which notice is hereby waived by the parties.
2. On March 26, 2010, Donald E. Smith, Jr. was performing work for [Stutzman] when he fell from a roof, sustaining injuries that caused his death.
3. Pursuant to Indiana Code § 22-3-3-18 and § 22-3-3-19, Carol Louise Smith is the sole presumptive dependent of Donald E. Smith, Jr.
4. No Application for Adjustment of Claim has been filed by Donald E. Smith, Jr., or his Estate, or Carol Louise Smith.
5. There are disputes between the parties as to whether Donald E. Smith, Jr. was an employee of [Stutzman], as it is defined by Ind. Code § 22-3-6-1. There is also a dispute as to whether [Stutzman] had a valid worker’s compensation policy with Travelers in place at the time of [ ] Smith’s injury.
6. By reason of these disputes and with knowledge of the uncertainty and expense of litigation of this claim, the parties seek to resolve their differences and are willing to give up any rights they may have in connection with this claim under the provisions of the Worker’s Compensation Act. The parties have agreed that [Smith’s] worker’s compensation claim be compromised and settled for the lump sum payment of One Hundred Thousand and 00/100 Dollars ($100,-000.00), payable to his sole presumptive dependent, Carol Louise Smith, which amount includes compensation for any and all medical, funeral and burial expenses of [Smith], including unpaid or outstanding expenses.
7.This settlement is intended to resolve the claims of the employee, Donald E. Smith, Jr. and his dependents against the employer and Travelers, as it relates to worker’s compensation benefits to which [Smith] or his dependents may be entitled. In making this settlement, [Smith], deceased, by his widow Carol Louise Smith, agrees to release and discharge [Stutz-man] and its compensation insurance carrier, Travelers [ ], as well as their agents, assigns, insurers, and legal counsel from any and all manner of actions, causes of action, suits, accounts, contract, debts, attorneys fees, claims and demands whatsoever, at law or in equity, and however arising, that were asserted, or could have been asserted, by her before the [Board], and waives all further rights under the Indiana Worker’s Compensation Act. Travelers specifically retains the right to assert a lien against any third party recovery as set forth in Ind. Code § 22-3-2-13.
8. This settlement is not intended to resolve any claims that may exist as between the employer and Travelers, and those parties specifically retain the right to dispute whether Travelers owes a duty of coverage to [Stutzman] for the claims asserted by [] Smith, or his Estate, or his dependents. Travelers further retains its rights of equitable sub-rogation against [Stutzman] for any payments made under this Settlement Agreement. Further, this settlement does not waive any rights of the parties as to other claims not covered under the Worker’s Compensation Act, Ind. Code § 22-3-2 through Ind.Code § 22-3-6 et seq.
9. The parties understand that upon submission of this Settlement Agreement, and approval of it by the Board, all matters with respect to [Smith’s] injury of March 26, 2010 shall be forever resolved, settled and ended. There shall be no finding of any liability on the part of [Stutzman] with respect to any injury or combination of injuries of [Smith], nor shall this settlement be construed as an admission that [Smith] was an employee of [Stutz-man]. Further, although Travelers is making payment in settlement of this claim, payment shall not be construed as a finding of an admission of liability to provide worker’s compensation coverage to [Stutz-man] for the injuries to [Smith].
10.Carol Louis Smith, acknowledges that she has read this Settlement Agreement, that she has had an opportunity to have it reviewed by an attorney, and that she understands that this agreement represents a full and final settlement of all of [Smith’s] worker’s compensation claim with respect to the alleged injury. She understands that upon approval of this Settlement Agreement by the Board, she will not be entitled to receive from the employer, or its insurance carrier, or from the Second Injury Fund, any additional sum or sums of money on account of [Smith’s] claimed injury for compensation, or for medical, funeral, or burial expenses, regardless of whether there is a change of condition.
11. Pursuant to this Settlement Agreement, [Stutzman] shall have no obligation for past, present, or future medical and hospital bills, funeral and burial expenses, and associated expenses relating to [Smith’s] injury, and the parties state that all unpaid medical provider, funeral and burial bills shall remain the responsibility of Carol Louise Smith. Carol Louise Smith specifically agrees to indemnify and hold harmless [Stutzman] and Travelers from any demands for payment of these bills and expenses by the providers or creditors. Further, Carol Louise Smith specifically agrees to indemnify and hold harmless [Stutzman] and Travelers against any claims which may arise by any persons claiming to be dependents of [Smith],
12. This agreement is entered into by the parties as a compromise settlement agreement in order to gain approval thereof by the Board pursuant to Indiana Code § 22-3-2-15. This agreement and stipulation shall be of no force or effect in the absence of an entry of an order directing such payment by the Defendant [Stutzman] to the Plaintiff [Smith], which order constitutes an approval of the compromise agreement pursuant to Indiana Code § 22-3-2-15.

Appellant’s Appendix at 20-24 (emphases added).

We observe that although the parties acknowledged the existence of certain disputes, including whether Smith was an employee of Stutzman, the parties expressly agreed to resolve any such differences by entering the Settlement Agreement. Specifically, with respect to the disputes or differences, paragraph 6 of the Settlement Agreement provides in part that “[b]y reason of these disputes and with knowledge of the uncertainty and expense of litigation of this claim, the parties seek to resolve their differences and are willing to give up any rights they may have in connection with this claim under the provisions of the Worker’s Compensation Act.” Id. at 21.

The Estate stipulated that the Board had subject matter jurisdiction over the Estate’s claim, thereby making a judicial admission, the effect of which precluded its claim for recovery in the instant case. Moreover, the implication of the language of the Settlement Agreement above, including the emphasized portions, is that the parties intended for the payment of $100,000 to resolve any claim which Smith, his dependents, or the Estate may have against Stutzman or Travelers in connection with Smith’s injury and that Smith would not be entitled to obtain additional sums of money from Stutzman in connection with the injury. See, e.g., id. at 23 (stating that Carol Smith “will not be entitled to receive from the employer, or its insurance carrier, or from the Second Injury Fund, any additional sum or sums of money on account of [Smith’s] claimed injury for compensation.”) (emphases added).

Finally, as stated in our previous decisions, an employee, by accepting and receiving compensation under the Act, concedes that the injury arose out of and in the course of employment. See Waldridge, 714 N.E.2d at 785, Williams, 695 N.E.2d at 635, and Ind. Univ. Hosps., 456 N.E.2d at 1053-1056. Here, Carol Smith as Donald’s sole presumptive dependent accepted and received compensation of $100,000 under the Act in connection with Smith’s injury and death while working for Stutzman and thus conceded that the injury arose out of and in the course of employment.

Based upon the record, we conclude that compensation was accepted and received under the Act and the Estate may not later claim that Smith’s injuries occurred outside the scope of employment. See Ind. Univ. Hosps., 456 N.E.2d at 1054-1055 (holding that an employee who accepted and received compensation under the Act may not later claim that the injuries occurred outside the scope of employment). Accordingly, the trial court properly granted Stutzman’s motion to set aside default judgment and motion to dismiss.

For the foregoing reasons, the March 4, 2011 order issued by the trial court is affirmed.

Affirmed.

MAY, J., and CRONE, J., concur.

      . The June 28, 2010 order directed that the payment be made by Stutzman as the named defendant in the worker's compensation action to Donald Smith, deceased, by his widow Carol Smith, as the named plaintiff in the worker’s compensation action, and the Settlement Agreement provided that Travelers was making payment in settlement of the claim.

      2. Ind.Code § 5-2-6.1 governs compensation for victims of violent crimes.

      3. Ind.Code § 22-3-2-15 provides:
      (a) No contract, agreement (written or implied), rule, or other device shall, in any manner, operate to relieve any employer in whole or in part of any obligation created by IC 22-3-2 through IC 22-3-6. However, nothing in IC 22-3-2 through IC 22-3-6 shall be construed as preventing the parties to claims under IC 22-3-2 through IC 22-3-6 from entering into voluntary agreements in settlement thereof, but no agreement by an employee or his dependents to waive his rights under IC 22-3-2 through IC 22-3-6 shall be valid nor shall any agreement of settlement or compromise of any dispute or claim for compensation under IC 22-3-2 through IC 22-3-6 be valid until approved by a member of the board, nor shall a member of the worker's compensation board approve any settlement which is not in accordance with the rights of the parties as given in IC 22-3-2 through IC 22-3-6. No such agreement shall be valid unless made after seven (7) days from the date of the injury or death.
      lb) A compromise settlement approved by a member of the worker’s compensation board during the employee's lifetime shall extinguish and bar all claims for compensation for the employee's death if the settlement compromises a dispute on any question or issue other than the extent of disability or the rate of compensation.
      (c) A minor dependent, by parent or legal guardian, may compromise disputes and may enter into a compromise settlement agreement, and upon approval by a member of the worker’s compensation board, the settlement agreement shall have the same force and effect as though the minor had been an adult. The payment of compensation by the employer in accordance with the settlement agreement shall discharge the employer from all further obligation.