author: BRADFORD, Judge.

text:
    Donovan JOHNSON and Aileen Johnson, Appellants-Plaintiffs, v. POINDEXTER TRANSPORT, INC. AND CRANE SERVICE, Appellee-Defendant.
    No. 49A02-1212-CT-1027.
    Court of Appeals of Indiana.
    Sept. 11, 2013.

      John P. Daly, Jr., Golitko & Daly PC, Indianapolis, IN, Attorney for Appellants.
    John C. Trimble, Stephanie L. Cassman, Brandon W. Ehrie, Lewis Wagner, LLP, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

On December 10, 2009, Appellant-Plaintiff Donovan Johnson was injured while working on a construction project in West Lafayette when a wooden form broke apart and fell from a crane that was being operated by an employee of Appellee-De-fendant Poindexter Transport Inc. and Crane Service (“Poindexter”). On August 20, 2010, Donovan and his wife Aileen (collectively, “the Johnsons”) filed suit against Poindexter, alleging that Donovan was injured as a result of Poindexter’s negligence. Poindexter subsequently filed a motion to dismiss pursuant to Indiana Trial Rule 12(B)(1), alleging that the trial court lacked subject matter jurisdiction because .the Johnsons’ exclusive remedy was to pursue a claim for benefits under the Indiana Worker’s Compensation Act (the “Worker’s Compensation Act”).

On November 23, 2012, the trial court granted Poindexter’s motion to dismiss. The Johnsons appealed the trial court’s order. Upon review, we conclude that the trial court lacked subject matter jurisdiction to hear the Johnsons’ claims because, under the provisions set forth in the Worker’s Compensation Act, at the time of the accident, Donovan and the crane operator were co-employees. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

Poindexter is in the business of providing crane services, including machine rental and licensed crane operators, to construction contractors. R.L. Turner was the general contractor on a construction project located in West Lafayette known as the Gatewood Project. R.L. Turner subcontracted with Poindexter for the necessary crane operations for the Gatewood Project. As a result of the agreement between R.L. Turner and Poindexter, David Creel, a certified crane operator employed by Poindexter, was assigned to operate a crane for the Gatewood Project.

Creel worked at the Gatewood Project jobsite for a period of several weeks. While working on the Gatewood Project, Creel worked at the direction of R.L. Turner and its employees. R.L. Turner instructed Creel on what materials to move. R.L. Turner also instructed Creel on when and where to move the materials. R.L. Turner provided the rigging and straps used to attach the necessary materials to the crane. At the end of each day, R.L. Turner approved the hours worked by Creel before turning Creel’s timesheet over to Poindexter.

On December 10, 2009, Creel and employees of R.L. Turner were moving wooden block forms that were to be used in the construction of concrete walls. Employees of R.L. Turner (1) built the wooden block forms; (2) attached the forms to the rigging and straps, which were connected to the crane hook; (3) acted as signal men directing Creel’s operation of the crane, instructing him when to lift and lower the crane’s hook; and (4) were responsible for bracing and removing the forms from the rigging and straps. At some point, as Creel began to lower a form, again “at the direction of the R.L. Turner signalman,” the form came apart. Appellant’s .App. p. 34. The top board of the form remained attached to the rigging, while the remainder of the form detached from the top board and fell. Donovan, an employee of R.L. Turner, was injured when he was struck by a piece of the falling form.

On August 20, 2010, the Johnsons filed an action against Poindexter. In this action, Donovan claimed to have been injured as a result of Poindexter’s “negligent acts.” Appellant’s App. p. 30. Aileen claimed to have suffered loss of consortium as a result of Donovan’s injuries.

On June 12, 2012, Poindexter filed a motion to dismiss for lack of subject matter jurisdiction under Indiana Trial Rule 12(B)(1). In this motion, Poindexter alleged that the trial court lacked subject matter jurisdiction because, at the time of the incident, Donovan and Creel were co-employees and, as a result, the Johnsons’ exclusive remedy was to pursue a claim for benefits under the Worker’s Compensation Act. Poindexter filed an accompanying brief in support of its motion, to which it attached a copy of the Johnsons’ complaint and the affidavit of Creel. The Johnsons filed a response in opposition to Poindex-ter’s motion to dismiss on August 24, 2012. In support of this filing, the Johnsons designated Creel’s affidavit and excerpts from Creel’s deposition. Shortly thereafter, Po-indexter filed a reply to the Johnsons’ August 24, 2012 response.

On October 22, 2012, the trial court conducted a hearing at which it heard arguments from the parties both in support of and in opposition to Poindexter’s motion to dismiss. The parties did not submit additional evidence to the trial court during this hearing. On November 23, 2012, the trial court, ruling on the paper record submitted by the parties, issued an order granting Poindexter’s motion to dismiss. This appeal follows.

DISCUSSION AND DECISION

The Johnsons contend that the trial court erred in granting Poindexter’s motion to dismiss under Trial Rule 12(B)(1).

I. Standard of Review

It is well-settled that when an employer defends against an individual’s negligence claim on the basis that the individual’s exclusive remedy is to pursue a claim for benefits under the Worker’s Compensation Act, the defense is properly advanced through a motion to dismiss for lack of subject matter jurisdiction under Trial Rule 12(B)(1). GKN Co. v. Magness, 744 N.E.2d 397, 400 (Ind.2001) (citing Foshee v. Shoney’s Inc., 637 N.E.2d 1277, 1280 (Ind.1994)). “When a trial court is confronted with a motion to dismiss based on Trial Rule 12(B)(1), the trial court is required to determine whether it has the power to adjudicate the action.” MHC Surgical Ctr. Assocs., Inc. v. State Office of Medicaid Policy and Planning, 699 N.E.2d 306, 308 (Ind.Ct.App.1998). “In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial court may consider not only the complaint and motion but also any affidavits or evidence submitted in support.” Id. “In addition, the trial court may weigh the evidence to determine the existence of the requisite jurisdictional facts.”

In [G22V], our supreme court clarified the standard for appellate review of a trial court’s grant or denial of such a motion. [744 N.E.2d at 400.] The standard of review for [Trial Rule] 12(B)(1) motions to dismiss is dependent upon what occurred in the trial court, i.e., whether the trial court resolved disputed facts; and, if the trial court resolved disputed facts, whether it conducted an evidentiary hearing or ruled on a “paper record.” Id. at 401.
If the facts before the trial court are not in dispute, then the question of subject matter jurisdiction is purely one of law. Id. Under those circumstances, no deference is afforded to the trial court’s conclusion because “appellate courts independently, and without the slightest deference to the trial court’s determinations, evaluate those issues they deem to be questions of law.” Id. (quoting Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind.2000)). Thus, we review de novo a trial court’s ruling on a motion to dismiss where the facts before the trial court are undisputed. See id.
If the facts before the trial court are in dispute, then our standard of review focuses on whether the trial court conducted an evidentiary hearing. If an evidentiary hearing took place, we will give the trial court’s factual findings and judgment deference. See id. (quoting Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind.2000)). In reviewing the trial court’s factual findings and judgment, we will only reverse if they are clearly erroneous. Id.
However, where the facts are in dispute but the trial court rules on a paper record without conducting an evidentia-ry hearing, then no deference is afforded to the trial court’s factual findings or judgment because, under those circumstances, a court of review is “in as good a position as the trial court to determine whether the court has subject matter jurisdiction.” Id. Thus, we review de novo a trial court’s ruling on a motion to dismiss where the facts before the court are disputed and the trial court rules on a paper record.

Argabright v. R.H. Marlin, Inc., 804 N.E.2d 1161, 1165 (Ind.Ct.App.2004), trans. denied. “As a general proposition, the party challenging subject matter jurisdiction carries the burden of establishing that jurisdiction does not exist.” GKN, 744 N.E.2d at 404.

In the present case, the John-sons claim that several facts before the trial court were in dispute, while Poindex-ter claims that the facts before the trial court were not in dispute. However, regardless of whether there were facts in dispute before the trial court, our review on appeal is de novo because the trial court did not conduct an evidentiary hearing, but, rather, ruled on a paper record. In conducting our review de novo, we will affirm the judgment of the trial court on any legal theory the evidence of record supports. Argabright, 804 N.E.2d at 1165. 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 the evidence is tipped against the trial court’s determination. Id.

II. Employer-Employee Relationship Under the Worker’s Compensation Act

The Worker’s Compensation Act “provides the exclusive remedy for recovery of personal injuries arising out of and in the course of employment.” Id. at 1166 (citing Ind.Code § 22-3-2-6). Although the Worker’s Compensation Act bars a court from hearing any common law claim brought against an employer for an on-the-job injury, it does permit an action for injury against a third-party tortfeasor provided the third-party is neither the plaintiffs employer nor a fellow employee. Id. (citing Ind.Code § 22-8-2-13). “A person may have more than one employer at any given time for purposes of the Worker’s Compensation Act when one employer has loaned his employee to another employer.” Verma v. D.T. Carpentry, LLC, 805 N.E.2d 430, 433 (Ind.Ct.App.2004). “Where two employers ‘so associate themselves together that both are in direct control of the employee and he is made accountable to both, he will be considered an employee of both employers....’ ” GKN, 744 N.E.2d at 402 (quoting U.S. Metalsource Corp. v. Simpson, 649 N.E.2d 682, 685 (Ind.Ct.App.1995)).

In the instant matter, the Johnsons contend that they are entitled to recover against Poindexter because Creel was employed by Poindexter, not R.L. Turner, at the time Donovan was injured, and thus, Donovan was not a co-employee of Creel. Poindexter, for its part, contends that R.L. Turner had associated itself in such a manner that an employer-employee relationship existed, between R.L. Turner and Creel. As such, Poindexter claims that the Worker’s Compensation Act bars the Johnsons’ claims against Poindexter.

The determination of whether an employer-employee relationship exists ultimately is a question of fact. Arga-bright, 804 N.E.2d at 1166. “In making this determination, the fact-finder must weigh a number of factors, none of which is dispositive.” Id. In Hale v. Kemp, 579 N.E.2d 63, 67 (Ind.1991), the Indiana Supreme Court identified these factors as: (1) the right to discharge; (2) mode of payment; (3) supplying tools or equipment; (4) belief of the parties in the existence of an employer-employee relationship; (5) control over the means used in the results reached; (6) length of employment; and (7) establishment of the work boundaries. Upon review, these factors must be weighed against each other as part of a balancing test as opposed to a mathematical formula where the majority wins. See GKN, 744 N.E.2d at 402. When applying this balancing test, the greatest weight should be given to the right of the employer to exercise control over the employee. Argabright, 804 N.E.2d at 1166 (citing GKN, 744 N.E.2d at 405-06).

III. Balancing the Hale Factors

We next turn our attention to the Hale factors to determine whether Poin-dexter carried its burden of establishing that the Johnsons’ claims lay within the jurisdiction of the Worker’s Compensation Act. Stated differently, we examine whether Poindexter established that the trial court lacked jurisdiction to adjudicate the Johnsons’ claims. See GKN, 744 N.E.2d at 404.

1. Right to Discharge

Both the Indiana Supreme Court and this court have found that the right to discharge factor can be established where the special employer did not have the power to terminate the borrowed employee’s employment with the general employer, but could terminate the borrowed employee’s employment with the special employer. See id. at 404-05 (finding that the right of discharge factor weighed in favor of a conclusion that the employee was an employee of the special employer because, although the special employer did not have the authority to terminate the employee’s employment with the general employer, the special employer did have the authority to terminate the employee’s employment with the special employer); Vemna, 805 N.E.2d at 434 (providing the right of discharge factor weighed in favor of a conclusion that an employer-employee relationship existed because the crane supplier provided sufficient evidence to establish that the special employer had the authority to indirectly discharge the employee from his employment with the special employer); Argabright, 804 N.E.2d at 1166 (providing the right of discharge factor weighed in favor of a conclusion that an employer-employee relationship existed because, while the special employer did not have the authority to terminate the employee’s employment with the general employer, it could effectively terminate the employee’s employment with the special employer); U.S. Metalsource, 649 N.E.2d at 685 (providing that the right of discharge factor weighed in favor of a conclusion that an employer-employee relationship existed because, while the special employer did not have the power to terminate the employee’s employment with the general employer, the special employer did have the power to terminate the employees employment with the special employer).

In the instant matter, nothing in the record indicates that R.L. Turner had the power to terminate Creel from his employment at Poindexter. However, in his affidavit, Creel averred that R.L. Turner had the right to discharge him from working at the Gatewood Project jobsite at any time. We conclude that R.L. Turner had a right to indirectly discharge Creel from his employment with R.L. Turner. As such, we conclude that this factor weighs in favor of a conclusion that Creel was a borrowed employee of R.L. Turner.

2.Mode of Payment

It is undisputed in this ease that Poin-dexter paid Creel. Each day, Creel turned his timesheet into R.L. Turner who, after verifying the time listed, sent the timesheet to Poindexter. Poindexter would then pay Creel. Inasmuch as R.L. Turner did not pay Creel, directly or indirectly, this factor weighs against a conclusion that Creel was a borrowed employee of R.L. Turner.

3.Supplying Tools or Equipment

In Argabright, we concluded that the supplying tools or equipment factor was met when most of the equipment used by the employee was supplied by the special employer. 804 N.E.2d at 1167. The undisputed evidence presented in Argabright established that while the service crane was owned by the general employer and operated exclusively by the employee, the special employer provided some of the rigging used on the service crane, the materials that needed to be moved by the crane on the jobsite, and some of the mats used to move the service crane around the job-site. Id.

In the instant matter, Poindexter provided the crane. Creel operated the crane. Employees of R.L. Turner constructed the forms that were being attached to the crane and moved on December 10, 2009. R.L. Turner also provided the equipment used for lifting the block forms, including rigging and straps. Like in Argabright, we conclude that since R.L. Turner supplied the equipment used to move the forms, including the rigging and straps, this factor weighs in favor of a conclusion that Creel was a borrowed employee of R.L. Turner.

4.Belief of the Parties in the Existence of an Employer-Employee Relationship

While an employee’s belief that no employment relationship exists does not necessarily defeat the existence of an employer-employee relationship, see U.S. Me-talsource, 649 N.E.2d at 686, the Indiana Supreme Court has declined to find in favor of an employer-employee relationship where neither party believed such a relationship existed. See GKN, 744 N.E.2d at 405. In the instant matter, there is no direct evidence as to whether R.L. Turner believed that an employer-employee relationship existed between itself and Creel. Creel did not specifically state whether he believed that an employer-employee relationship existed between he and R.L. Turner, but his deposition testimony suggests that Creel did not believe that such a relationship existed. During his deposition, Creel indicated that he was an employee of Poindexter. Creel stated that through his employment at Po-indexter, he had previously worked on projects for R.L. Turner, but that he did not always work on projects for R.L. Turner. Inasmuch as the record does not indicate that either R.L. Turner or Creel believed that they had an employer-employee relationship, this factor weighs against a conclusion that Creel was a borrowed employee of R.L. Turner.

5.Control over the Means Used in the Results Reached

As we stated above, while “ ‘not disposi-tive, control is the most important factor when determining whether an employer-employee ■ relationship exists.’ ” Argabright, 804 N.E.2d at 1167 (quoting GKN, 744 N.E.2d at 405-06). We have previously found sufficient control to demonstrate an employment relationship when the employees of a crane lessee directed the crane operator and determined which loads he lifted and how he lifted them, despite the fact the crane operator retained the right to refuse to perform a task if he deemed said task to be unsafe. Id. (citing Davis v. Central Rent-A-Crane, 663 N.E.2d 1177, 1179 (Ind.Ct.App.1996), disapproved of on other grounds by GKN, 744 N.E.2d at 402 n. 1); Verma, 805 N.E.2d at 434.

In the instant matter, although Creel maintained the ability to refuse to make a lift if he felt the conditions rendered the lift unsafe, Creel was supervised by and worked at the sole direction of employees of R.L. Turner. Employees of R.L. Turner told Creel what work needed to be done and how they wanted the job to proceed. Employees of R.L. Turner constructed the forms and provided the rigging and straps for lifting the forms. Employees of R.L. Turner attached the rigging to the crane hook and attached the forms to the rigging and straps. An employee of R.L. Turner used hand signals to direct the necessary movement of the crane. Other employees of R.L. Turner braced, landed, and unloaded the forms from the crane. In short, R.L. Turner controlled Creel almost completely throughout each day that he worked at the construction site. This factor clearly falls in favor of finding that Creel was a borrowed employee of R.L. Turner.

6.Length of the Employment

The “longer the length of employment, the more indicative it is of an employer/employee relationship.” GKN, 744 N.E.2d at 406. In GKN, the Indiana Supreme Court found that a three-month term of employment “was so abbreviated that it shed[] little light one way or the other” as to whether the employee was an employee of the special • employer. 744 N.E.2d at 406. As such, the Indiana Supreme Court concluded that the length of employment presented in GKN could not be said to weigh in favor of finding an employment relationship between the employee and the special employer. Id.

In the instant matter, Creel worked at the Gatewood Project jobsite under the direction of R.L. Turner for “several weeks.” .Appellant’s App. p. 34. Similar to the Indiana Supreme Court’s finding in GKN, we find that this term of employment was so abbreviated that it shed little light one way or the other as to whether an employer-employee relationship existed between R.L. Turner and Creel. Accordingly, we conclude that this factor cannot be said to weigh in favor of a conclusion that Creel was a borrowed employee of R.L. Turner.

7.Establishment of Work Boundaries

The evidence designated before the trial court clearly establishes that R.L. Turner set the boundaries within which Creel worked. The Gatewood Project jobsite was supervised by émployees of R.L. Turner. The hours Creel worked at the job-site were determined by employees of R.L. Turner. Creel operated the crane at the direction of employees of R.L. Turner. He received instructions from R.L. Turner regai’ding which items to lift with the crane and where to place the items. This factor weighs in favor of a conclusion that Creel was a borrowed employee of R.L. Turner. See generally Verma, 805 N.E.2d at 435 (providing that the establishment of the work boundaries factor weighed in favor of a conclusion that the crane operator was a borrowed employee when the special employer set the boundaries within which the crane operator worked and instructed the crane operator with regard to completing the required lifts).

8.Balancing the Seven Factors

Balancing the Hale factors and giving considerable weight to the element of control, we conclude that there was sufficient evidence before the trial court to conclude that Creel was a borrowed employee of R.L. Turner. Accordingly, we conclude that the Johnsons are barred from bringing a claim for damages against Poindex-ter because their exclusive remedy is to pursue a claim for benefits under the Worker’s Compensation Act. See Arga-

bright, 804 N.E.2d at 1168-69 (citing Ind. Code § 22-3-2-13). Consequently, we further conclude that the trial court properly granted Poindexter’s motion to dismiss pursuant to Trial Rule 12(B)(1), as it lacked subject matter jurisdiction to hear the case.

The judgment of the trial court is affirmed.

BAILEY, J., and MAY, J., concur.

      . Again, the parties presented argument at the October 22, 2012 hearing but did not present any evidence in addition to the parties' previously submitted designated materials.


source: Caselaw Access Project

author: KIRSCH, Judge.

license: Public Domain

text:
    VON TOBEL CORPORATION, Individually, and d/b/a Von Tobel Lumber & Hardware; and Von Tobel Lumber & Home Center, Inc., Appellants-Plaintiffs, v. CHI-TEC CONSTRUCTION & REMODELING, INC.; John F. Ziola, Jr.; and Margaret Lynn West, as Trustee for the Margaret Lynn West Trust, Appellees-Defendants.
    No. 46A03-1301-MI-18.
    Court of Appeals of Indiana.
    Sept. 13, 2013.
    Rehearing Denied Dec. 10, 2013.

      Brian J. Hurley, Timothy C. Krsak, Douglas Koeppen & Hurley, Valparaiso, IN, Attorneys for Appellants.
    John F. Lake, Lake & Lake, Michigan City, IN, Attorney for Appellees.
   OPINION

KIRSCH, Judge.

Von Tobel Corporation, Individually, and d/b/a Von Tobel Lumber & Hardware, and Von Tobel Lumber & Home Center, Inc. appeal the trial court’s grant of summary judgment in favor of the Margaret Lynn West Trust (“the Trust”). The appellants contend that summary judgment in favor of the Trust was erroneous, and that the trial court should have granted the Plaintiffs’ request for summary judgment.

We reverse and remand.

FACTS AND PROCEDURAL HISTORY

Margaret Lynn West is the Trustee of the Trust which owns a parcel of real estate on Lake Michigan. On November 21, 2006, the Trust entered into an agreement with Chi-Tec Construction & Remodeling, Inc. (“Chi-Tec”), owned by John F. Ziola, Jr. (“Ziola”), for the construction of a house on the property. Chi-Tec began building the house in December of 2006. Chi-Tec had previously entered into a credit agreement with Von Tobel Corporation, allowing Chi-Tec to make purchases from any of its wholly owned subsidiaries, including Von Tobel Home Center. During the construction process on the Trust property, Chi-Tec purchased goods and materials on credit from Von Tobel Home Center.

Pursuant to the credit agreement, Von Tobel Home Center made its first delivery on January 8, 2007. Nine days later, on January 17, 2007, Von Tobel Home Center took steps to secure rights to a mechanic’s lien by tendering pre-lien notice (“Pre-lien Notice”) to the Trust and recording that notice in the Office of the Recorder of LaPorte County. The instrument identified Von Tobel Home Center, Inc. as lien-holder. Von Tobel Corporation did not file a separate pre-lien notice. Thereafter, Von Tobel Home Center continued to supply materials to Chi-Tec, and made its last delivery on June 16, 2008. All invoices bore the heading, “Von Tobel Lumber & Hardware.” The Trust paid invoices directly to Chi-Tec, but Chi-Tec failed to pay the Plaintiffs the sums that it owed for materials. Von Tobel Corporation recorded notice of a mechanic’s lien-(“Lien Notice”) against the property on July 15, 2008.

Von Tobel Corporation initiated a lawsuit on June 23, 2009, seeking foreclosure of its mechanic’s lien as well as damages against Chi-Tec, Ziola, and the Trust. The Trust filed its Answer and Affirmative Defenses challenging the validity of Von Tobel Corporation’s mechanic’s lien. Ziola and Chi-Tee both filed for Chapter 7 Bankruptcy in June, 2012.

Von Tobel Corporation moved for summary judgment and the Trust filed its response and a cross motion for summary judgment. Following a hearing on both motions, the trial court entered summary judgment in favor of the' Trust holding that Von Tobel Corporation’s mechanic’s lien was invalid because of “the designation of the wrong claimant on the pre-lien notice....” Appellants’ App. at 658-61. The Plaintiffs now appeal.

DISCUSSION AND DECISION

Summary judgment is appropriate only if the pleadings and designated evidence show “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Ind. Trial Rule 56(C). Even if the’ facts are undisputed, summary judgment is not proper if those undisputed facts give rise to conflicting inferences that are material. Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d 1228, 1231 (Ind.1994). The party seeking summary judgment must demonstrate the absence of any genuine issue of fact as to a determinative issue, and only then is the non-movant required to come forward with contrary evidence. Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind.1994). However, the party appealing from the grant of summary judgment has the burden of persuading the court that the grarit of summary judgment was erroneous. Winkler, 638 N.E.2d at 1231.

The statute governing Pre-lien Notice, in pertinent part, provides that:

A person, firm, partnership, limited liability company, or corporation that sells or furnishes on credit material ... for the original construction of a single or double family dwelling for the intended occupancy of the owner upon whose real estate the construction takes place to a contractor, subcontractor, mechanic, or anyone other than the owner or. the owner’s legal representatives must:
(1) furnish the owner of the real estate ... with a written notice of the delivery or labor and the existence of lien rights not later than sixty (60) days after the date of the first delivery or labor performed; and
(2) file a copy of the written notice in the recorder’s office of the county not later than sixty (60) days after the date of the first delivery or labor performed. The furnishing and filing of the notice is a condition precedent to the right of acquiring a lien upon the real estate or upon the improvement constructed on the real estate.

Ind.Code § 32-28-8-1®. As this Pre-lien Notice statute indicates, filing of such notice “is a condition precedent to the right of acquiring a lien....” Id. To acquire a lien, however, further steps must be taken, pursuant to the Lien Notice statute, which provides in pertinent part:

The statement and notice of intention to hold a lien may be verified and filed on behalf of a client by an attorney registered with the clerk of the supreme court as an attorney in good standing under the requirements of the supreme court.
(c) A statement and notice of intention to hold a lien filed under this section must specifically set forth:
(1) the amount claimed;
(2) the name and address of the claimant;
(3) the owner’s:
(A) name; and
(B) latest address as shown on the property tax records of the county; and
(4) the:
(A) legal description; and
(B) street and number, if any;
of the lot or land on which the house, mill, manufactory or other buildings, bridge, reservoir, system of waterworks, or other structure may stand or be connected with or to which it may be removed.

Ind.Code § 32-28-3-3.

The Plaintiffs argue that these statutes do not expressly require that a Lien Notice be filed in the identical corporation name as set forth in the Pre-lien Notice, that the Pre-lien Notice bearing the name “Von Tobel Lumber & Home Center, Inc.” was sufficient to inform the Trust that a claim for materials furnished in the construction of the residence was being asserted by “Von Tobel Corporation,” and that the Trust was not prejudiced. We agree.

In interpreting a statute, our goal is to determine and give effect to the intent of the legislature. State v. Int’l Bus. Machs. Corp., 964 N.E.2d 206, 209 (Ind.2012). In determining legislative intent, we consider the objects and purposes of the statute as well as the effects and repercussions of our interpretation. Id. “The legislative intent as ascertained from the provision as a whole prevails over the strict literal meaning of any word or term.” Id. (quoting Bushong v. Williamson, 790 N.E.2d 467, 471 (Ind.2003)). Indeed, “[t]hese precepts have guided us in statutory interpretation for over a century.” Id. (noting Parvin v. Wimberg, 130 Ind. 561, 571, 30 N.E. 790, 793 (1892) and observing that when legislative intent is ascertained, “it will prevail over the literal import and the strict letter of the statute.”). Where meaning is uncertain, “the courts will look also to the situation and circumstances under which [the statute] was enacted, to other statutes, if there are any upon the same subject, whether passed before or after the statute under consideration, whether in force or not, as well as to the history of the country, and will carefully consider in this connection the purpose sought to be accomplished.” Id.; cf. D & M Healthcare, Inc. v. Hernan, 800 N.E.2d 898, 911 (Ind.2003) (rejecting literal construction of Indiana Constitutional provision in light of history of the provision and subsequent practice).

Long ago, our Supreme Court set forth the purpose of our mechanics’ lien legislation:

The mechanics’ lien laws of America, -in general, reveal the underlying motive of justice and equity in dedicating, primarily, buildings and the land on which they are erected to the payment of the labor and materials incorporated, and which have given to them an increased value. The purpose is to promote justice and honesty, and to prevent the inequity of an owner enjoying the fruits of the labor and material furnished by others, without recompense.

Moore-Mansfield Constr. Co. v. Indianapolis New Castle & Toledo Ry. Co., 179 Ind. 356, 372, 101 N.E. 296, 302 (1913).

In Beneficial Finance Co. v. Wegmiller Bender Lumber Co., Inc., we expressly “rejected] the idea that our entire mechanics’ lien statute must be strictly construed with such hypertechnicality so as to frustrate the remedial purpose of the legislation.” 402 N.E.2d 41, 45 (Ind.Ct.App.1980). There, we further determined that:

The perfection and enforcement provisions of the statute should be fairly and reasonably construed and applied so as to afford - materialmen and laborers the security intended upon substantial compliance with statutory requirements, keeping in mind the need to afford reasonable protection to the rights of other parties who may have acquired an interest in the party.

Id. Ultimately, we determined that we must assess whether there has been substantial compliance by the lien claimant. Id. In determining whether a lien claimant has substantially complied, we assess three factors: (1) “the degree of non-compliance with the letter of the statute,” (2) “the policy which underlies the particular statutory provision in question,” and (3) “the prejudice which may have resulted to either the owner of the property or other third parties who have an interest in the real estate.” Id.

Here, the degree of non-compliance with the letter of the statute is minimal. Indeed, the statute does not require the filing of a Lien Notice in the identical name as the corporation that filed a Prelien Notice. See Ind.Code §§ 32 — 28—3—1(i), 32-28-3-3. Under comparable facts, in Waverly Co. v. Moran Electric Service Inc., we long ago declined a similarly narrow reading of the mechanic’s lien statutes. There, we determined that a Lien Notice claiming an amount was due and owing to “Moran Electric Service Company” was sufficient when the corporation that furnished the labor and materials was actually named “Moran Electric Service, Inc.” 108 Ind.App. 75, 81, 26 N.E.2d 55, 57 (1940). We reasoned that although the two names were “not strictly idem sonans ... they [were] of sufficient similarity as to have substantially the same meaning.” Id. See also Kendall Lumber & Coal Co. v. Roman, 120 Ind.App. 368, 374, 91 N.E.2d 187, 190 (1950) (rejecting the notion that “the statutory notice of the lien was fatally defective because it was signed ‘Kendall Lumber and Coal Company’ instead of ‘Kendall Lumber and Coal Company, Inc.’”); cf. Talbott v. Hale, 72 Ind. 1, 4 (1880) (determining that “Cincinnati, Peru and Chicago Railway Co.” and “Chicago Railroad Company” were “the equivalents, each of the other, and had reference to, and were intended to designate the same corporation.”).

In Logansport Equip. Rental, Inc. v. Transco, Inc., 755 N.E.2d 1135, 1137 (Ind.Ct.App.2001), we reiterated the policy that underlies the statutory notice provision discussed in Waverly and Beneficial Fin., stating: “The filing requirements for a mechanic’s lien serve two policy objectives: (1) to provide the record titleholder of the property with notice that a mechanic’s lien has been placed upon the real estate; and (2) to put third party purchasers and money lenders on notice of the same fact.”

Here, there are no potentially prejudiced third parties, and the only question is whether the notice to the Trust was sufficient. The Trust received the Pre-lien Notice from “Von Tobel Lumber & Home Center, Inc.” and the Lien Notice from “Von Tobel Corporation.” The Trust does not contend that it was misled or confused by the discrepancy. Further, when the Trust received its Pre-lien Notice, the Trust made an inquiry of Chi-Tec about it, demonstrating that the policy objectives of the statute were fulfilled. Finally, the Trust did not designate any evidence to the trial court of prejudice.

The variance between the name set out in the Pre-lien notice and that contained in the Lien Notice was minimal, did not undermine the statutory policy concerns regarding notice, and did not cause prejudice to the property owner or any third party.

Indiana’s mechanic’s lien legislation has a “remedial purpose.” Beneficial Fin., 402 N.E.2d at 45. It is structured to give the affected homeowner notice of a potential lien early in the construction process, so the party may take measures and direct funds accordingly. See Ind.Code § 32 — 28—3—1(i). Here, the property owner had notice of the potential lien early in the construction process, but failed to take appropriate measures to see that funds were properly directed.

We reverse the summary judgment entered in favor of the trust and remand with instructions to enter summary judgment in favor of Von Tobel Corporation.

Reversed and remanded.

ROBB, C.J., and RILEY, J., concur.


author: BARNES, Judge.

text:
    Brenda HALL, Appellant, v. DALLMAN CONTRACTORS, LLC Shook, LLC and, AT & T Services, Inc., Appellees.
    No. 49A02-1210-CT-806.
    Court of Appeals of Indiana.
    Sept. 18, 2013.

      David B. Wilson, Indianapolis, IN, Attorney for Appellant.
    Brandon Kroft, Angela M. Meyers, Cas-siday Schade, LLP, Crown Point, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Brenda Hall appeals the grant of summary judgment in favor of AT & T Services, Inc., (“AT & T Services”). We reverse and remand.

Issue

The dispositive issue is whether the designated evidence establishes that Hall’s negligence claim against AT & T Services is barred by the exclusive remedy provision of the Worker’s Compensation Act (“the Act”).

Facts

In 2007, Hall was an employee of “AT & T.” App. p. 96. Hall worked in the executive appeals office at the AT & T Building in downtown Indianapolis. On December 5, 2007, while walking to work, Hall tripped over the snow-covered legs of a construction sign placed on the sidewalk near the building and injured her arm.

On June 8, 2008, Hall filed for worker’s compensation benefits. On September 21, 2009, Hall entered into a stipulation of facts with “AT & T fik/a Ameritech Home Services” in which she agreed she was employed by “AT & T fik/a Ameritech Home Services,” and a findings of award (both documents are collectively referred to as “Settlement Agreement”) was issued by the Worker’s Compensation Board awarding Hall compensation from “AT & T f/k/a Ameritech Home Services” for her injury.

In the meantime, on February 25, 2008, Hall filed a negligence complaint against Dallman Contractors, LLC, (“Dallman”) regarding the placement of the construction sign. Dallman then identified AT & T as a non-party. On February 29, 2009, Hall moved to amend her complaint by adding Shook, LLC, a general contractor, and “American Telephone and Telegraph Company fik/a AT & T, Inc. d/b/a AT & T Property Management” (“AT & T Property Management”) as defendants. Id. at 31. Hall alleged that AT & T Property Management was responsible for keeping the sidewalks and adjacent areas of the AT & T Building free of snow, ice, and debris.

AT & T Property Management moved to substitute AT & T Services as the real party in interest. AT & T Property Management asserted that it was responsible for the administrative management of AT & T properties and that AT <& T Services was responsible for snow and ice removal. On October 20, 2009, the trial court granted this motion.

On January 30, 2012, AT & T Services moved for summary judgment on the basis that Hall had already received worker’s compensation benefits, her exclusive remedy. In support of its motion, AT & T Services designated portions of Hall’s deposition in which she referred to her employer as “AT & T” and the Settlement Agreement. Id. at 96. AT & T Services later moved to supplement its motion with the affidavits of Steven Threlkeld and Lina Loncar. In his affidavit, Threlkeld stated in relevant part:

2. I am an Executive Director, Accounting, for AT & T, Services, Inc. As such, I am familiar with the relationship within the AT & T corporate structure and family of companies.
3. For the period from January 1, 2007 through December 13, 2011, Ameritech Services, Inc. was a part-owner of AT & T Services, Inc., the named Defendant in the current litigation.
4. Ameritech Services, Inc. owned 8.15% of AT & T Services, Inc. for that period.

Id. at 112. Lina Loncar stated in relevant part:

2.I am a Lead Risk Specialist, employed by AT & T, Services, Inc. As such, I am familiar with the payments of workers compensation to Ameritech Services, Inc. employees. I also am aware that AT & T Services, Inc. and Ameri-tech Services, Inc. are affiliated companies.
3. I attest that Ameritech Services, Inc., paid the Plaintiff in this matter, Brenda Hall, a compromised workers compensation settlement of $20,532.50, for compensation of the injuries she suffered on December 5, 2007.
4. These December 5, 2007 injuries for which Ms. Hall received a compromised workers compensation settlement are the same injuries for which Ms. Hall is now seeking compensation in this current litigation.
5. As such, AT & T Services, Inc., through its affiliated company, has already compensated Ms. Hall for the injuries for which she is claiming damages in the current litigation.

Id. at 114-15.

Hall responded by arguing that, because AT & T Services was not a joint employer with “Ameritech Services, Inc.,” under the Act, it cannot rely on the exclusive remedy provision of the Act. On June 4, 2012, the trial court granted AT & T Services’s motion for summary judgment and dismissed the claims against AT & T Services with prejudice. On July 3, 2012, Hall moved to have the grant of summary judgment entered as a final judgment, which the trial court granted.

Hall filed a motion to correct er-. ror, AT & T Services responded, and Hall replied. On September 27, 2012, after a hearing, the trial court denied the motion to correct error. In its order, the trial

court concluded that AT & T Services was not a subsidiary of “Ameritech Services, Inc.,” at the time of Hall’s injury and could not be considered a joint employer. The trial court went on to conclude, however, that Hall “filed the WCA claim against the Defendants as ‘AT & T f/k/a AMERI-TECH HOME SERVICES’ and considered AT & T and Ameritech as one entity and as her employer for purposes of the WCA claim.” Id. at 230. According to the trial court, “even if Defendant Ameritech Services, Inc. and Defendant AT & T Services, Inc. were subject to separate claims under the WCA, Plaintiff is still only entitled to one recovery for her December 5, 2007 injury pursuant to the ‘Exclusive remedies’ provision of the WCA under IC 22-3-2-6.” Id. at 231. Hall now appeals, and AT & T Services cross-appeals.

Analysis

Hall argues that the trial court improperly granted AT & T Services’s motion for summary judgment. ‘We review an appeal of a trial court’s ruling on a motion for summary judgment using the same standard applicable to the trial court.” Perdue v. Gargano, 964 N.E.2d 825, 831 (Ind.2012). “Therefore, summary judgment is appropriate only if the designated evidence reveals ‘no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting Ind. Trial Rule 56(C)). Our review of summary judgment is limited to evidence designated to the trial court. Id. (citing T.R. 56(H)). All facts and reasonable inferences drawn from the evidence designated by the parties is construed in a light most favorable to the non-moving party, and we do not defer to the trial court’s legal determinations. Id.

The Act provides the exclusive remedy for recovery of personal injuries arising out of and in the course of employment. GKN Co. v. Magness, 744 N.E.2d 397, 401-02 (Ind.2001) (citing Ind.Code § 22-3-2-6). “Although the Act bars a court from hearing any common law claim brought against an employer for an on-the-job injury, it does permit an action for injury against a third-party tortfeasor provided the third-party is neither the plaintiffs employer nor a fellow employee.” Id. at 402 (citing I.C. § 22-3-2-13).

I. AT&T Services as Hall’s Employer

On appeal, AT & T Services asserts that summary judgment was proper “because the uncontroverted evidence presented by AT & T Services shows that Hall was employed by AT & T which includes defendant AT & T Services, Inc. and ‘AT & T iyk/a Ameritech Services’.” Appellee’s Br. p. 11. This argument oversimplifies the complex corporate structure before us. Although Hall stated in her deposition that she was employed by “AT & T,” she did not describe any specific corporate entity. App. p. 96. The pleadings and designated evidence in this case include references to AT & T, AT & T Property Management, AT & T Services, “Ameritech Home Services,” and “Ameritech Services, Inc.” The designated evidence, however, does not establish that these are interchangeable or colloquial names for the same corporate entity. As evidenced by AT & T Property Management’s motion to substitute the real party in interest, AT & T Services, and Threlkeld’s affidavit stating that “Am-eritech Services, Inc.,” owned 8.15% of AT & T Services, it is clear that there are distinct legal entities in play here.

The designated evidence shows that the captioned party in the Settlement Agreement was “AT & T f/k/a Ameritech Home Services.” The Settlement Agreement does not refer to AT & T Services, establish that AT & T Services was Hall’s employer, or show that AT & T Services actually contributed toward the payment that Hall received.

Further, Threlkeld’s and Loncar’s affidavits refer to “Ameritech Services, Inc.,” not “Ameritech Home Services,” the party named in the caption of the Settlement Agreement. Although this distinction might be attributable to inartful drafting, without more, we are not convinced that “Ameritech Services, Inc.,” and “Ameri-tech Home Services” are the same legal entity, whose names are used interchangeably.

Even if we were to make such an assumption, Loncar’s affidavit establishes only that AT & T Services and “Ameritech Services, Inc.,” are “affiliated companies” and that “Ameritech Services, Inc.,” paid Hall’s worker’s compensation settlement. App. p. 114. Further, Threlkeld’s affidavit does not establish that “Ameritech Services, Inc.,” and AT & T Services are one and the same or predecessors in interest. In fact, Threlkeld’s affidavit establishes that “Ameritech Services, Inc.,” was an 8.15% owner of AT & T Services from 2007 through 2011. Nothing in the affidavits suggests that AT & T Services was Hall’s employer. Thus, even if “Ameritech Services, Inc.,” was a party to the Settlement Agreement and is affiliated, with AT & T Services, the designated evidence does not establish that AT & T Services was Hall’s employer.

AT & T Services also argués that, because Hall broadly identified her employer as “AT & T f/k/a Ameritech Home Services” in the worker’s compensation proceeding, she is judicially estopped from now asserting that this description is too vague to properly identify her employer.

Judicial estoppel is a judicially created doctrine that seeks to prevent a litigant from asserting a position that is inconsistent with one asserted in the same or a previous proceeding. Robson v. Texas E. Corp., 833 N.E.2d 461 (Ind.Ct.App.2005), trans. denied. “Judicial estoppel is .not intended to eliminate all inconsistencies; rather, it is designed to prevent litigants from playing ‘fast and loose’ with the courts. The primary purpose of judicial estoppel is not to protect litigants but to protect the integrity of the judiciary.” Id. at 466 (citations omitted). “The basic principle of judicial estoppel is that, absent a good explanation, a party should not be permitted to gain an advantage by litigating on one theory and then pursue' an incompatible theory in subsequent litigation.” Id. “Judicial estoppel only applies- to intentional misrepresentation, so the disposi-tive issue supporting the application of judicial estoppel is the bad-faith intent of the litigant subject to estoppel.” Id.

Morgan Cnty. Hosp. v. Upham, 884 N.E.2d 275, 280 (Ind.Ct.App.2008), trans. denied.

The doctrine of judicial estoppel does not apply here. First, it is not clear that Hall has asserted inconsistent legal positions. We are not convinced that, by referencing “AT & T f/k/a Ameritech Home Services” in the Settlement Agreement caption, Hall was asserting she was employed by all AT & T entities so as to contradict her current assertion that the designated evidence does not establish she was employed by AT & T Services. Moreover, to the extent the reference to the named defendants in the Settlement Agreement is vague, there is no evidence of intentional misrepresentation or bad faith by Hall in her prosecution of either claim. This argument is unavailing.

Given the various AT & T entities referenced in this litigation, AT & T Services has not established that, -because Hall was employed by an AT & T entity and recovered worker’s compensation benefits from an AT & T entity, the exclusive remedy provision of the Act bars Hall’s negligence claim against AT & T Services.

II. AT & T Services as Hall’s Joint Employer

AT & T Services also argues that summary judgment was proper because it was a joint employer under the Act. The Act defines employer in part as:

the state and any political subdivision, any municipal corporation within the state, any individual or the legal representative of a deceased individual, firm, association, limited liability company, or corporation or the receiver or trustee of the same, using the services of another for pay. A parent corporation and its subsidiaries shall each be considered joint employers of the corporation’s, the parent’s, or the subsidiaries’ employees for pmposes of IC 22-3-2-6 and IC 22-3-3-31. ...

I.C. § 22-3-6-l(a) (emphasis added). The Act does not define subsidiary.

The Indiana Business Corporation Law (“BCL”) definition of subsidiary provides, “[a]s used in this chapter, ‘subsidiary’ of any resident domestic corporation means any other corporation of which a majority of the outstanding voting shares entitled to be cast are owned (directly or indirectly) by the resident domestic corporation.” I.C. § 23-1-43-16. Without providing an alternative definition of subsidiary, AT & T Services argues that we should not look outside the Act for a definition of subsidiary.

AT & T Services argues that, like other provisions of the Act, which specifically reference other statutes, the Legislature could have referenced the BCL definition of subsidiary but chose not to do so. In support of this argument, AT & T Services relies on Kenwal Steel Corp. v. Seyring, 903 N.E.2d 510 (Ind.Ct.App.2009), in which we determined whether a temporary employee was a leased employee under the Act. In determining whether these terms were interchangeable, we rejected the argument that we should define leased employee based on a provision of the Internal Revenue Code that addressed deferred compensation plans, including pensions, profit-sharing, and stock bonus plans. Kenwal, 903 N.E.2d at 514-15. We reasoned that, had .the Legislature intended to define leased employee as such, it could have done so. Id. at 514.

Kenwal is distinguishable, however, because Hall’s proposed definition of subsidiary comes from the Indiana Code, not an unrelated provision of the Internal Revenue Code. Furthermore, we reject AT & T Services’s implication that we can never look outside of the Act when attempting to define its provisions. In fact, in Kenwal, we did just that when we turned to a handbook published by the Worker’s Compensation Board to determine whether a temporary employee was a leased employee. Id. at 515.

AT & T Services also argues that looking to the BCL’s definition of subsidiary contradicts the intent of a 2001 amendment of Indiana Code Section 22-3-6-1 to include the language about parent companies and subsidiaries being joint employers. Even if the 2001 amendment was in response to McQuade v. Draw Tite, Inc., 659 N.E.2d 1016 (Ind.1995), and Ritter v. Stanton, 745 N.E.2d 828 (Ind.Ct.App.2001), trans. denied, in which injured employees of subsidiary corporations were permitted to pursue negligence actions against their employers’ parent companies, there is no indication that, when drafting the amendment, the Legislature considered any and all affiliated entities to be joint employers for purposes of the Act.

We are also not convinced that, by stating “[a]s used in this chapter” as a preface to the BCL’s definition of subsidiary, the Legislature intended to preclude the use of that definition in all other contexts. For these reasons and in the absence of any alternative definitive definition by AT & T Services, we conclude that it is appropriate to use the BCL’s definition of subsidiary here.

When applying this definition, AT & T Services has not established that it was Hall’s joint employer. Threlkeld’s affidavit states that “Ameritech Services, Inc.,” was 8.15% owner of AT & T Services. Thus, even assuming “Ameritech Services, Inc.,” was Hall’s employer, it did not own a majority of the outstanding voting shares of AT & T Services. AT & T Services has not established that it was a subsidiary of “Ameritech Services, Inc.” See I.C. § 23-1-43-16.

AT & T Services also asserts that it and “Ameritech Home Services, Inc. are part of the AT & T corporate structure” and that “these two entities are clearly subsidiaries and joint employers” under the Act. Appellee’s Br. p. 17. The designated evidence does not support this assertion. There is no designated evidence regarding the corporate structure of AT & T and its affiliates or AT & T’s overall relationship to AT & T Services, “Ameritech Home Services,” and “Ameri-tech Services, Inc.” so as to establish a parent/subsidiary relationship between any or all of them. Quite simply, the fact that AT & T Services and “Ameritech Services, Inc.,” are affiliated companies does not establish that they are subsidiaries of AT & T and therefore joint employers for purposes of Indiana Code Section 22-3-6-1. See Wine-Settergren v. Lamey, 716 N.E.2d 381, 388 (Ind.1999) (observing the remedies provided in the Act are in derogation of common law and must be strictly construed against limitations on a claimant’s right to bring suit).

Finally, AT <& T Services argues, it is clear “that AT & T f/k/a Ameritech Home Services’, AT & T’, AT & T Services, Inc.’ and ‘Ameritech Home Services, Inc.’ are all part of the same corporate structure and any deficiency in the record, real or illusory, can be immediately corrected before the trial court as the case has yet to proceed to trial.” Appellee’s Reply Br. p. 7. This argument is flawed for two reasons. First, even if these various entities are part of the same corporate structure, that alone does not establish that that AT & T Services was Hall’s joint employer. Further, in granting summary judgment, the trial court dismissed Hall’s claims against AT & T Services with prejudice and the order was made final on July 3, 2012. Therefore, absent the reversal of summary judgment, there is no basis for immediately correcting any deficiency in the record regardless of whether Hall’s claims against Dallman and Shook have gone to trial.

Conclusion

Because there are genuine issues of material fact regarding whether AT & T Services was Hall’s employer or a joint employer, AT & T Services has not established that Hall’s negligence claim against it was barred by the exclusive remedy provision of the Act. Thus, summary judgment for AT & T Services was improper. We reverse and remand.

Reversed and remanded.

CRONE, J., and PYLE, J., concur.

      . On cross-appeal, AT & T Services argues the trial court improperly determined that AT & T Services was not a joint employer under the Act. We address this issue as it relates to whether summary judgment was proper.

      . Although AT & T is sometimes written as AT & T, we refer to it throughout as AT & T.

      . In its initial grant of summary judgment, the trial court did not provide an explanation for its ruling. In ruling on the motion to correct error, the trial court included detailed findings and conclusions supporting its grant of summary judgment. Accordingly, we treat the trial court’s findings and conclusions in the motion to correct error order as we would a summary judgment order. "A trial court's findings and conclusions supporting its summary judgment order offer insight into the rationale of the trial court’s judgment, but they are not binding upon us.” Winchell v. Guy, 857 N.E.2d 1024, 1027 (Ind.Ct.App.2006).

      . Indiana Code Section 22-3-2-6 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.

      . In her reply brief, Hall asserts that she received workers compensation benefits solely from her employer, "Ameritech Services, Inc." Although the assertion that "Ameritech Services, Inc.," paid Hall’s worker’s compensation claim is supported by Loncar’s affidavit, the Setdement Agreement refers to the defendant, "AT & T f/k/a Ameritech Home Services,” as Hall’s employer and the payor of the worker's compensation claim. To the extent this evidence is inconsistent, it creates an unresolved question of fact.

      . We need not accept Loncar’s legal conclusion that AT & T Services, through its affiliated company, has already compensated Hall for her injuries.

      . As for AT & T Services’s general concerns about the potential for double recovery, it does not acknowledge the availability of statutory and/or common law subrogation rights as discussed in DePuy, Inc. v. Farmer, 847 N.E.2d 160 (Ind.2006).

      . The trial court also relied on the Black's Law Dictionary definition of subsidiary, which is "[a] corporation in which a parent corporation has a controlling share.” Black’s ■ Law Dictionary 345 (7th ed. 1999). This is consistent with the BCL definition.


text:
    In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.P., Minor Child, and her Father, D.P., D.P., Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner, and Child Advocates, Inc., Appellee-Guardian Ad Litem.
    No. 49A02-1303-JT-245.
    Court of Appeals of Indiana.
    Sept. 25, 2013.

      Amy Karozos, Greenwood, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Robert J. Henke, Deputy Attorney General, Patrick M. Rhodes, Department of Child Services, Marion County Office, Indianapolis, IN, Attorneys for Ap-pellee, Department of Child Services.
    Carey Haley Wong, Indianapolis, IN, Attorney for Appellee, Child Advocates, Inc.
   OPINION

BRADFORD, Judge.

CASE SUMMARY

On February 20, 2013, the juvenile court issued an order terminating Appellant-Respondent D.P.’s (“Father”) parental rights to his minor child. The order contained factual findings and conclusions thereon that were recommended to the juvenile court by a magistrate. The magistrate who made and reported the recommended factual findings and conclusions thereon to the juvenile court was not the same magistrate who conducted the evidentiary hearing. The magistrate who conducted the evidentiary hearing resigned from her position as magistrate before making any recommended factual findings or conclusions thereon.

On appeal, Father contends that the juvenile court erred in terminating his parental rights. In challenging the termination of his parental rights, Father raises numerous issues, one of which we find dispositive. This issue is whether the replacement magistrate could make recommended factual determinations when the replacement magistrate did not hear the evidence or observe the witnesses during the evidentiary hearing. Because we conclude that the replacement magistrate could not make recommended findings of fact and conclusions thereon to the juvenile court, we reverse the judgment of the juvenile court and remand to the juvenile court for a new evidentiary hearing.

FACTS AND PROCEDURAL HISTORY

D.P. was born to Father and P.R.S. (“Mother”) on July 7, 2003. On October 18, 2010, DCS filed a verified petition alleging that D.P. was a child in need of services (“CHINS”). With respect to Mother, the CHINS petition alleged that Mother had failed to provide her with a safe and appropriate living environment free from substance abuse. With respect to Father, the CHINS petition alleged that Father, who was incarcerated, was unable to appropriately parent D.P. On December 7, 2010, following a fact-finding hearing, the juvenile court found D.P. to be a CHINS. The juvenile court issued a dis-positional order and parental participation decree on January 4, 2011, in which it ordered Father to complete certain services.

On June 11, 2012, DCS filed a petition seeking the termination of Father’s parental rights to D.P. On October 24, 2012, Magistrate Julianne Cartmel conducted an evidentiary termination hearing at which Father appeared telephonically and was represented by counsel. During the evi-dentiary hearing, Magistrate Cartmel heard testimony from the Department of Child Services (“DCS”) case worker, Father, and the Guardian Ad Litem (“GAL”). These witnesses provided conflicting testimony regarding whether the reasons for removing the child from Father’s care could be remedied in the future and whether termination of Father’s parental rights was in the child’s best interests. Following the conclusion of the termination hearing, Magistrate Cartmel took the matter under advisement.

At some point before Magistrate Cart-mel reported recommended factual findings and conclusions thereon to the juvenile court, Magistrate Cartmel resigned from her position as a magistrate. The matter was transferred to Magistrate Larry Bradley. Magistrate Bradley reviewed the record created during the evi-dentiary hearing and reported recommended factual findings and conclusions thereon to the juvenile court. Magistrate Bradley did not conduct a new evidentiary hearing before reporting his recommended factual findings and conclusions thereon to the juvenile court. The juvenile court approved Magistrate Bradley’s factual findings and conclusions thereon, and on February 20, 2013, issued an order terminating Father’s parental rights to D.P. Father now appeals.

DISCUSSION AND DECISION

The Fourteenth Amendment to the United States Constitution protects the traditional right of a parent to establish a home and raise his child. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind.2005). Further, we acknowledge that the parent-child relationship is “one of the most valued relationships of our culture.” Id. However, although parental rights are of a constitutional dimension, the law allows for the termination of those rights when a parent is unable or unwilling to meet his responsibility as a parent. In re T.F., 743 N.E.2d 766, 773 (Ind.Ct.App.2001), trans. denied. Therefore, parental rights are not absolute and must be subordinated to the child’s interests in determining the appropriate disposition of a petition to terminate the parent-child relationship. Id.

The purpose of terminating parental rights is not to punish the parent but to protect the child. Id. Termination of parental rights is proper where the child’s emotional and physical development is threatened. Id. The juvenile court need not wait until the child is irreversibly harmed such that his physical, mental, and social development is permanently impaired before terminating the parent-child relationship. Id. In reviewing termination proceedings on appeal, this court will not reweigh-the evidence or assess the credibility of the witnesses. In re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind.Ct.App.2004).

Whether a Magistrate who Did Not Preside over the Evidentiary Hearing Could Report Suggested Findings of Fact and Conclusions Thereon to the Juvenile Court

Father contends that his due process rights were violated because the magistrate who conducted the evidentiary hear-tag was not the same magistrate who made and reported the recommended findings of fact and conclusions thereon to the juvenile court. We agree.

Indiana courts have long held that “[a] party to an action is entitled to a determination of the issues by the jury or judge that heard the evidence, and where a case is tried by the judge, and the issues remain undetermined at the death, resignation, or expiration of the term of such judge, his successor cannot decide, or make findings in the case, without a trial de novo.” Wainwright v. P.H. & F.M. Roots Co., 176 Ind. 682, 698-99, 97 N.E. 8, 14 (1912) (providing that a judge did not have a right to decide the issues presented in a case in which he had not heard the evidence, and, accordingly, the case should have been retried); see also Dawson v. Wright, 234 Ind. 626, 630, 129 N.E.2d 796, 798 (1955); State ex rel. Harp v. Vanderburgh Cir. Ct., 227 Ind. 353, 363, 85 N.E.2d 254, 258 (1949); Bailey v. State, 397 N.E.2d 1024,1027 (Ind.Ct.App.1979). This is because due process requires that the trier of fact hear all of the evidence necessary to make a meaningful evaluation in a case where the resolution of a material issue requires a determination as to the weight and credibility of testimony. Farner v. Farner, 480 N.E.2d 251, 257 (Ind.Ct.App.1985).

“When a successor judge attempts to resolve questions of credibility and weight of evidence without having had an opportunity to hear the evidence and observe the demeanor of witnesses, he is depriving a party of an essential element of the trial process.” Urbanational Devrs., Inc. v. Shamrock Eng’g, Inc., 175 Ind.App. 416, 421, 372 N.E.2d 742, 746 (1978). “Such an undertaking by the successor judge is against the logic and effect of the facts and circumstances before the court and amounts to an abuse of discretion.” Id. “To hold otherwise would be to grant a power of review to the successor judge that is not even claimed by appellate courts.” Id.

The circumstances presented here closely resemble the' case where evidence is heard by a trial judge who thereafter dies or resigns from office before making findings or ruling on the evidence. The record demonstrates that on October 24, 2012, Magistrate Cartmel conducted an ev-identiary hearing on DOS’s petition to terminate Father’s parental rights. During this evidentiary hearing, Magistrate Cart-mel heard the testimony of witnesses and accepted exhibits into the record. The witnesses’ testimony and exhibits required Magistrate Cartmel to weigh the exhibits and judge witness credibility to make a factual determination as to whether termination of Father’s parental rights was warranted. Magistrate Cartmel, however, resigned from her position as magistrate before making and reporting recommended findings and conclusions thereon to the juvenile court. Magistrate Cart-mel’s successor, Magistrate Bradley, reviewed the record, made factual findings and conclusions thereon, and reported these recommended findings and conclusions thereon to the juvenile court. These factual findings and conclusions thereon were ultimately approved by the juvenile court, which subsequently issued an order terminating Father’s parental rights to D.P. Magistrate Bradley did not conduct a new evidentiary hearing before making these factual findings or reporting the recommended findings and conclusions thereon to the juvenile court.

DCS has presented no authority, and we find none, suggesting that a magistrate should be treated any differently from a trial judge in a situation where the magistrate makes factual findings without having had the opportunity to hear the testimony and observe the witnesses. As such, we conclude that Father’s due process rights were violated in the instant matter. Magistrate Bradley could not properly resolve questions of credibility and weight of evidence because he did not have an opportunity to hear the evidence and observe the demeanor of witnesses. See Wainwright, 176 Ind. at 698-99, 97 N.E. at 14; Famer, 480 N.E.2d at 257. Again, to hold otherwise would be to grant a power of review to Magistrate Bradley that is not even claimed by this court on appeal. See Urbanational Devrs., 175 Ind.App. at 421, 372 N.E.2d at 746.

Further, despite DOS’s claim to the contrary, Father did not waive his right to have a factual determination made by Magistrate Cartmel. Like other elements of due process, this right may be waived if the parties stipulate that the substitute judge should determine the case on the record. See Famer, 480 N.E.2d at 257-58. Father did not stipulate that Magistrate Bradley should determine the case on the record. Nothing in the record indicates that Father even knew that Magistrate Bradley had replaced Magistrate Cartmel until the juvenile court issued its order terminating Father’s parental rights. Father challenged Magistrate Bradley’s ability to make the recommended findings and conclusions thereon by way of a timely appeal.

Having concluded that Father’s due process rights were violated in the instant matter because Magistrate Bradley could not properly resolve questions of credibility and weight of evidence because he did not have an opportunity to hear the evidence and observe the demeanor of witnesses, we reverse the judgment of the juvenile court and remand to the juvenile court for a new evidentiary hearing. Any subsequent factual findings and conclusions thereon should be issued in accordance with this opinion.

The judgment of the juvenile court is reversed and the matter remanded for further proceedings.

BAILEY, J., and MAY, J., concur.

      . Indiana law provides that a magistrate may conduct an evidentiary hearing. Ind. Code § 33-23-5-5(11). The magistrate who conducts an evidentiary hearing shall report the magistrate's findings to the court, which shall enter the final order. Ind.Code § 33-23-5-9.

      . The termination of Mother’s parental rights is not at issue in this appeal.


text:
    Steven HARPER and Rose Harper as Co-Personal Representatives of the Estate of Steven Harper, Deceased, Appellants-Plaintiffs-Respondents, v. Gerry HIPPENSTEEL, M.D., Appellee-Defendant-Petitioner.
    No. 42A04-1302-MI-95.
    Court of Appeals of Indiana.
    Sept. 25, 2013.

      John P. Nichols, Anderson & Nichols, Terre Haute, IN, Attorney for Appellants.
    Michele S. Bryant, Crystal Spivey Wildeman, Kahn, Dees, Donovan & Kahn, LLP, Evansville, IN, Attorneys for Appel-lee.
   OPINION

BRADFORD, Judge.

CASE SUMMARY

In October of 2007 and again in April of 2008, Appellee-Defendant-Petitioner Dr. Gerry Hippensteel and Nurse Practitioner Yonetta Vories (“NP Vories”) entered into an Indiana Collaborative Practice Agreement for Prescriptive Authority (“CPA”) in which Dr. Hippensteel agreed to be available to NP Vories for consultation. Steven Harper, Jr. (“Harper, -Jr.”) received medical care and treatment from NP Vories at the Primary Care Clinic in Vincennes prior to and during November of 2008. Harper, Jr. died on November 26, 2008, after suffering an acute pulmonary embolism and deep venous thrombosis.

On November 23, 2010, Appetiants-Plaintiffs-Respondents Steven Harper, Sr. and Rose Harper (collectively, “the Har-pers”), acting as co-personal representatives of the estate of Harper, Jr., filed a Proposed Complaint against Dr. Hippen-steel with the Indiana Department of Insurance. In this Proposed Complaint, the Harpers alleged that in 2008, Dr. Hippen-steel was negligent in providing medical care and treatment to Harper, Jr., and that Harper, Jr. died as a result of Dr. Hippensteel’s negligence. Dr. Hippensteel subsequently filed a Petition for Preliminary Determination of Law/Motion for Summary Judgment in the trial court. In this petition/motion, Dr. Hippensteel sought a determination regarding whether he owed a duty to Harper, Jr. despite the fact that he did not treat Harper, Jr. or participate in any way in Harper, Jr.’s care or treatment. The Harpers, for their part, argued that Dr. Hippensteel owed a duty to Harper, Jr. because he entered into a CPA with .the treating nurse practitioner, NP Vories.

Following a hearing, the trial court granted summary judgment in favor of Dr. Hippensteel. On appeal, the Harpers contend that the trial court erred in granting summary judgment in favor of Dr. Hippen-steel. Concluding that the trial court properly granted summary judgment in favor of Dr. Hippensteel because he did not owe a duty to Harper, Jr., we affirm.

FACTS AND PROCEDURAL HISTORY

At all times relevant to this appeal, Dr. Hippensteel was engaged in the private practice of medicine in Vincennes. Aso at all times relevant to this appeal, NP Vories worked as a nurse practitioner at the Primary Care Clinic in Vincennes. In October of 2007 and again in April of 2008, Dr. Hippensteel and NP Vories entered into a CPA in which Dr. Hippensteel agreed to bé available to NP Vories for consultation. The CPA provided that Dr. Hippensteel would review a random 5% sampling of NP Vories’s patient records, including records of 'the medications prescribed by NP Vo-ries. The CPA explicitly stated that it was not intended to serve as a substitute for NP Vories’s independent clinical judgment and did not place increased liability on Dr. Hippensteel for those decisions made by NP Vories.

Harper, Jr. received medical care and treatment from NP Vories at the Primary Care Clinic in Vincennes prior to and during November of 2008. Harper, Jr. died on November 26, 2008, after suffering an acute pulmonary embolism and deep venous thrombosis.

On November 23, 2010, the Harpers, acting as co-personal representatives of the Estate of Harper, Jr., filed a Proposed Complaint against Dr. Hippensteel with the Indiana Department of Insurance. In this Proposed Complaint, the Harpers alleged that in 2008, Dr. Hippensteel was negligent in providing medical care and treatment to Harper, Jr., and that Harper, Jr. died as a result of Dr. Hippensteel’s negligence. The medical review panel of the Indiana Department of Insurance has yet to issue an opinion relating to any alleged negligence on behalf of Dr. Hip-pensteel.

Dr. Hippensteel subsequently filed a Petition for Preliminary Determination of Law/Motion for Summary Judgment in the trial court. In this petition/motion, Dr. Hippensteel sought a determination regarding whether he owed a duty to Harper, Jr. despite the fact that he did not treat Harper, Jr. or participate in any way in Harper, Jr.’s care or treatment. The Harpers, for their part, argued that Dr. Hippensteel owed a duty to Harper, Jr. because he entered into a CPA with the treating nurse practitioner, NP Vories. Following a hearing, the trial court granted summary judgment in favor of Dr. Hip-pensteel, determining that Dr. Hippensteel did not have a physician-patient relationship with Harper, Jr., and did not owe a duty to Harper, Jr. “solely because [he] had executed a[CPA]” with NP Vories. Appellants’ App. p. 5. This appeal follows.

DISCUSSION AND DECISION

Initially, we note that in medical malpractice cases such as the case at bar, a trial court has only limited jurisdiction prior to the submission of an expert opinion by a medical review panel. Dixon v. Siwy, 661 N.E.2d 600, 605 (Ind.Ct.App.1996). This limited jurisdiction includes the jurisdiction to rule upon issues not preserved for the medical review panel which can be preliminarily determined under a Trial Rule 12 motion to dismiss or a Trial Rule 56 motion for summary judgment. Id. at 606. Where, as here, the trial court is asked to determine whether, given a seemingly undisputed set of facts, a physician-patient relationship existed, the question is a legal question for the court and is not reserved for the medical review panel. Id. at 607.

I. Whether the Trial Court Erred in Granting Summary Judgment in Favor of Dr. Hippensteel

The Harpers contend that the trial court erred in granting summary judgment in favor of Dr. Hippensteel because Dr. Hippensteel breached a duty owed to Harper, Jr. In making this claim, the Har-pers concede that Dr. Hippensteel did not provide treatment to or participate in the care or treatment of Harper, Jr. The Har-pers argue, however, that Dr. Hippensteel nevertheless engaged in a physician-patient relationship with Harper, Jr. because he entered into a CPA with NP Vories. Dr. Hippensteel argues on appeal that he had no duty to Harper, Jr. because he did not participate in Harper, Jr.’s care or treatment, and also because the CPA that he entered into with NP Vories did not create a physician-patient relationship between himself and any of NP Vories’s patients.

A. Standard of Review

Summary judgment is appropriate if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In reviewing a motion for summary judgment, this Court stands in the shoes of the trial court. This Court must liberally construe all designated evidentia-ry matter in favor of the non-moving party and resolve any doubt against the moving party. Even if it appears that the non-moving party will not succeed at trial, summary judgment is inappropriate where material facts conflict or undisputed facts lead to conflicting inferences. The existence of a genuine issue of material fact shall not be ground for reversal on appeal unless such fact was designated to the trial court and is included in the record.

Stryczek v. Methodist Hosps., Inc., 656 N.E.2d 553, 554 (Ind.Ct.App.1995).

B. Whether Dr. Hippensteel Owed a Duty to Harper Jr.

The Harpers’ claims against Dr. Hippensteel are premised on a theory of negligence. In order to recover under a theory of negligence, a plaintiff must establish three elements:

(1) a duty on the part of the defendant to conform his conduct to a standard of care arising from his relationship with the plaintiff, (2) a failure of the defendant to conform his conduct to the requisite standard of care required by the relationship, and (3) an injury to the plaintiff proximately caused by the breach.

Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991). In the instant appeal, we need consider only the first element relating to the existence of a duty. The question of whether the defendant owed a duty to another is a question of law. See id.

1. Physician-Patient Relationship

In medical malpractice cases, the duty owed by a physician arises from the physician-patient relationship. •

Thus, a physician-patient relationship is a legal prerequisite to a medical malpractice cause of action. See [Dixon, 661 N.E.2d at 607.] Additionally, that duty arises from the contractual relationship entered into between the doctor and patient. Walker v. Rinek, 604 N.E.2d 591, 594 (Ind.1992). Generally, where a doctor does not treat, see, or in any way participate in the care or diagnosis of the plaintiff-patient ... a doctor-patient relationship will not be found to exist. Dixon, 661 N.E.2d at 607. As noted in Dixon, our research has revealed “no authority for the proposition that a physician-patient relationship may be established without the physician performing some affirmative act with regard to the patient and without the physician’s knowledge.” Id. In the absence of a physician-patient relationship, there can be no liability on the part of the defendant physician, and the entry of summary judgment is appropriate. Id.

Miller v. Martig, 754 N.E.2d 41, 46 (Ind.Ct.App.2001).

With respect to Harper, Jr., Dr. Hippensteel averred that he never saw Harper, Jr. ás a patient, and that he did not ever speák with NP Vories concerning Harper, Jr. Dr. Hippensteel did not review any of Harper, Jr.’s medical records prior to the initiation of the instant action. Dr. Hippensteel averred that he did not make any recommendations to Harper, Jr. or any of his health care providers regarding his condition or any course of treatment. Dr. Hippensteel also averred that he did not participate in any course of Harper, Jr.’s treatment and had no involvement whatsoever with his medical care. Dr. Hip-pensteel further averred that he “had never heard of [Harper, Jr.] until two years after he died when [Dr. Hippensteel] was named as a Defendant in a Proposed Complaint filed with the Indiana Department of Insurance by the Personal Representatives of his Estate.” Appellants’ App. p. 15. The Harpers do not appear to dispute any of these facts. Moreover, NP Vories did not work for Dr. Hippensteel, but rather worked for the Primary Care Clinic which appears to be owned and operated by Good Samaritan Hospital.

Upon review, we conclude that these seemingly undisputed facts demonstrate that, in the traditional sense, Dr. Hippen-steel was not engaged in a physician-patient relationship with Harper Jr., as he did not perform any affirmative act with regard to Harper, Jr. As such, we further conclude that, generally, Dr. Hippensteel did not owe a duty to Harper, Jr. See Miller, 754 N.E.2d at 46; Dixon, 661 N.E.2d at 607. However, we must next turn our attention to the question of whether a physician-patient relationship exists solely because the physician entered into a CPA with the treating nurse practitioner.

a. Overview of the Practice of Advanced Practice Nurses in Indiana

In determining whether Dr. Hippensteel could be found to have engaged in a physician-patient relationship with Harper, Jr. by way of the CPA entered into between Dr. Hippensteel and NP Vories, we find it helpful to provide an overview of Indiana law relating to the practice of advanced practice nurses and nurse practitioners in Indiana.

“Advanced practice nurse” means a registered nurse holding a current license in Indiana who:
(1) has obtained additional knowledge and skill through a formal, organized program of study and clinical experience, or its equivalent, as determined by the board;
(2) functions in an expanded role of nursing at a specialized level through the application of advanced knowledge and skills to provide healthcare to individuals, families, or groups in a variety of settings, including, but not limited to:
(A) homes;
(B) institutions;
(C) offices;
(D) industries;
(E) schools;
(F) community agencies;
(G) private practice;
(H) hospital outpatient clinics; and
(I) health maintenance organizations; and
(3) makes independent decisions about the nursing needs of clients.

848 Ind. Admin. Code 4-l-3(a).

The three (3) categories of advanced practice nurses as defined in IC 25-23-1-1 are as follows:
(1) Nurse practitioner as defined in section 4 of this rule (848 IAC 4-1-4).
(2) Certified nurse-midwife as defined in 848 IAC 8-1.
(3) Clinical nurse specialist as defined in section 5 of this rule (848 IAC 4-1-5).

848 Ind. Admin. Code 4-l~3(b).

In the instant matter, NP Vories was a nurse practitioner.

“Nurse practitioner” means an advanced practice nurse who provides advanced levels of nursing client care in a specialty role, who meets the requirements of an advanced practice nurse as outlined in section 3 of this rule (848 IAC 4-1-3), and who has completed any of the following:
(1) A graduate program offered by a college or university accredited by the Commission on Recognition of Postsec-ondary Accreditation which prepares the registered nurse to practice as a nurse practitioner and meets the requirements of section 6 of this rule (848 IAC 4-1-6).
(2) A certificate program offered by a college or university accredited by the Commission on Recognition of Postsec-ondary Accreditation which prepares the registered nurse to practice as a nurse practitioner and meets the requirements of section 6 of this rule (848 IAC 4-1-6). Nurse practitioners who complete a certificate program must be certified and maintain certification as a nurse practitioner by a national organization which requires a national certifying examination.
(3) Prior to the promulgation of this article (848 IAC 4), the following:
(A)A formal organized program of study and clinical experience which pre-
pares the registered nurse to practice as a nurse practitioner.
(B)The required program of study at a time when there was no credentialing or certification process available in the specialty area of the program of study.

848 Ind. Admin. Code 4-l-4(a). “‘NP’ means nurse practitioner and are the designated authorized initials to be used by the nurse practitioner.” 848 Ind. Admin. Code 4-l-4(b).

A nurse practitioner shall perform as an independent and interdependent member of a health team. The following are standards for each nurse practitioner:

(1) Assess clients by using advanced knowledge and skills to:
(A) identify abnormal conditions;
(B) diagnose health problems;
(C) develop and implement nursing treatment plans;
(D) evaluate patient outcomes; and
(E) collaborate with or refer to a practitioner, as defined in IC 25-23-1-19.4, in managing the plan of care.
(2) Use advanced knowledge and skills in teaching and guiding clients and other health team members.
(3) Use appropriate critical thinking skills to make independent decisions, commensurate with-the autonomy, authority, and responsibility of a nurse practitioner.
(4) Function within the legal boundaries of their advanced practice area and shall have and utilize knowledge of the statutes and rules governing their advanced practice area, including the following:
(A) State and federal drug laws and regulations.
(B) State and federal confidentiality-laws and regulations.
(C) State and federal medical records access laws.
(5) Consult and collaborate with other members of the health team as appropriate to provide reasonable client care, both acute and ongoing.
(6) Recognize the limits of individual knowledge and experience, and consult with or refer clients to other health care providers as appropriate.
(7) Retain professional accountability for any delegated intervention, and delegate interventions only as authorized by IC 25-23-1 and this title (848 IAC).
(8) Maintain current knowledge and skills in the nurse practitioner area.
(9) Conduct an assessment of clients and families which may include health history, family history, physical examination, and evaluation of health risk factors.
(10) Assess normal and abnormal findings obtained from the history, physical examination, and laboratory results.
(11) Evaluate clients and families regarding development, coping ability, and emotional and social well-being.
(12) Plan, implement, and evaluate care.
(13) Develop individualized teaching plans with each client based on health needs.
(14) Counsel individuals, families, and groups about health and illness and promote attention to wellness.
(15) Participate in periodic or joint evaluations of service rendered, including, but not limited to, the following:
(A) Chart reviews.
(B) Client evaluations.
(C) Outcome statistics.
(16) Conduct and apply research findings appropriate to the area of practice. (17)Participate, when appropriate, in the joint review of the plan of care.

848 Ind. Admin. Code 4-2-1.

An advanced practice nurse, including a nurse practitioner, may be authorized to prescribe legend drugs, including controlled substances, if the advanced practice nurse completes a number of requirements. 848 Ind. Admin. Code 5-1-1. One of these requirements is that the advanced practice nurse submits proof of collaboration with a licensed practitioner in the form of a written practice agreement that sets forth the manner in which the advanced practice nurse and licensed practitioner will cooperate, coordinate, and consult with each other in the provision of health care to patients. 848 Ind. Admin. Code 5 — 1—1(7). “Practice agreements shall be in writing and shall also set forth provisions for the type of collaboration between the advanced practice nurse and the licensed practitioner and the reasonable and timely review by the licensed practitioner of the prescribing practices of the advanced practice nurse.” 848 Ind. Admin. Code 5-1-1 (7).

Specifically, the written practice agreement shall contain at least the following information:
(A) Complete names, home and business addresses, zip codes, and telephone numbers of the licensed practitioner and the advanced practice nurse.
(B) A list of all other offices or locations besides those listed in clause (A) where the licensed practitioner authorized the advanced practice nurse to prescribe.
(C) All specialty or board certifications of the licensed practitioner and the advanced practice nurse.
(D) The specific manner of collaboration between the licensed practitioner and the advanced practice nurse, including how the licensed practitioner and the advanced practice nurse will:
(i) work together;
(ii) share practice trends and responsibilities;
(iii) maintain geographic proximity; and
(iv) provide coverage during absence, incapacity, infirmity, or emergency by the licensed practitioner.
(E) A description of what limitation, if any, the licensed practitioner has placed on the advanced practice nurse’s prescriptive authority.
(F) A description of the time and manner of the licensed practitioner’s review of the advanced practice nurse’s prescribing practices. The description shall include provisions that the advanced practice nurse must submit documentation of the advanced practice nurse’s prescribing practices to the licensed practitioner within seven (7) days. Documentation of prescribing practices shall include, but not be limited to, at least a five percent (5%) random sampling of the charts and medications prescribed for patients.
(G) A list of all other written practice agreements of the licensed practitioner and the advanced practice nurse.
(H) The duration of the written practice agreement between the licensed practitioner and the advanced practice nurse.

848 Ind. Admin. Code 5 — 1—1(7).

b.Whether Dr. Hippensteel Had a Physician-Patient Relationship with Harper, Jr. by Means of the CPA He Entered into with NP Vories

In the instant matter, Dr. Hippen-steel agreed to enter into a CPA with NP Vories. The CPA read, in relevant part, as follows:

Manner of Collaboration:

a. The [advanced practice nurse] shall be permitted to prescribe legend drugs appropriate for conditions, which the [advanced practice nurse] may treat pursuant to the [advanced practice nurse]’s scope of practice.
b. The [advanced practice nurse] will provide professional services in collaboration with above said physician.
c. The [advanced practice nurse] will work in collaboration and consultation with above said physician as appropriate to provide reasonable patient care. The [advanced practice nurse] may provide the professional services, including but not limited to the following: assess clients by using advanced knowledge and skills; diagnose health problems; develop and implement treatment plans; make independent decisions commensurate with autonomy, authority and responsibility of a nurse practitioner; evaluate clients, plan, implement, and evaluate care; and develop teaching plans.
d. This Agreement shall not be construed as limiting, in any way or to any extent, the scope of practice authority provided to the [advanced practice nurse] pursuant to Ind. Admin. Codes.
e. The [advanced practice nurse] will practice within the same geographic area as the physician and physician shall be available for consultation by telephone.
f. In the event that physician is absent due to incapacity, vacation, infirmity, emergency, etc., physician shall arrange for another qualified physician to collaborate with the [advanced practice nurse] during his absence.
Limitations: Physician has placed no limitations on the [advanced practice nurse] prescriptive authority.
Physician Review: The [advanced practice nurse] will submit documentation of her prescribing practice to physician every seven days. Such documentation shall include, but not be limited to, at least a five (5) percent random sampling of the records and medications prescribed for patients.
Independent Judgment: This Agreement is not intended to serve as a substitute for the independent judgment of the [advanced practice nurse] based on the specific needs of the patient, and this Agreement does not place increased liability on the physician for those decisions made by the [advanced practice nurse].

Appellants’ App. pp. 21-22 (emphases added).

Our review of the CPA indicates that pursuant to the terms of the CPA, Dr. Hippensteel agreed to be available to NP Vories by telephone for consultation, if needed, and NP Vories agreed to submit a random 5% sample of her treatment files to Dr. Hippensteel for review on a weekly basis. NP Vories had the authority to assess clients, diagnose health problems, develop and implement treatment plans, and evaluate care, and the CPA placed no limits on NP Vories’s prescriptive authority. The CPA indicates that it does not serve as a substitute for NP Vories’s independent judgment based on the specific needs of her patients. Importantly, the CPA also explicitly states that the CPA does not place increased liability on Dr. Hippensteel for decisions made by NP Vo-ries.

Because the CPA explicitly states that its terms do not place any increased liability on Dr. Hippensteel for decisions made by NP Vories, and indicates that NP Vo-ries had the independent authority to treat patients as she saw fit, we cannot conclude that Dr. Hippensteel entered into a physician-patient relationship with each of NP Vories’s patients merely because he entered into a CPA with NP Vories. Accordingly, because the CPA did not increase Dr. Hippensteel’s liability, Dr. Hippensteel could only be found to have entered into a physician-patient relationship and, as a result, acquired a duty to NP Vories’s patients, if he performed any affirmative act with regard to the patient. See Miller, 754 N.E.2d at 46; Dixon, 661 N.E.2d at 607. Again, the record in the instant matter indicates that Dr. Hippensteel did not do so with regard to Harper, Jr.

In sum, we conclude that Dr. Hippen-steel did not owe a duty to Harper, Jr. because he did not, at any time, enter into a physician-patient relationship with Harper, Jr. As such, we conclude that Dr. Hippensteel was entitled to summary judgment.

The judgment of the trial court is affirmed.

BAILEY, J, and MAY, J., concur.

      . Issues preserved for the medical review panel include those pertaining to whether the defendant failed to meet the requisite standard of care in treating the patient. See Dixon, 661 N.E.2d at 605.

      . Indiana Code section 25-23-1-1 (b) provides as follows:
      "Advanced practice nurse” means:
      (1) a nurse practitioner;
      (2) a certified nurse midwife; or
      (3) a clinical nurse specialist;
      who is a registered nurse qualified to practice nursing in a specialty role based upon the additional knowledge and skill gained through a formal organized program of study and clinical experience, or the equivalent as determined by the board, which does not limit but extends or expands the function of the nurse which may be initiated by the client or provider in settings that shall include hospital outpatient clinics and health maintenance organizations.

      . " ‘Health team' means a group of health care providers which may, in addition to health care practitioners, include the patient/client, family, and any significant others.” 848 Ind. Admin. Code 2-1-3.