Court of Appeals of Indiana | Opinion 45A04-1709-CT-2091 | April 17, 2018 Page 1 of 15

ATTORNEY FOR APPELLANTS

Philip E. Kalamaros

Hunt Suedhoff Kalamaros LLP

Saint Joseph, Michigan

ATTORNEY FOR APPELLEE

Trent A. McCain

McCain Law Offices, P.C.

Merrillville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Family Christian World, Inc. 

d/b/a Family Christian Center, 

Stephan “Steve” Munsey, 

Melodye J. Munsey, and Darryl 

Anthony Smith, 

Appellants-Defendants,

v.

Vicki Olds,

Appellee-Plaintiff.

April 17, 2018

Court of Appeals Case No.

45A04-1709-CT-2091

Appeal from the Lake Superior 

Court

The Honorable John R. Pera, 

Judge

Trial Court Cause No.

45D10-1611-CT-191

Najam, Judge.

Statement of the Case

[1] Family Christian World, Inc., d/b/a Family Christian Center (“FCC”), 

Stephen Munsey, and Melodye Munsey (“the Munseys”) appeal the trial 

court’s denial of their motion to dismiss Vicki Olds’ complaint seeking damages 
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for the alleged wrongful death of her daughter, Dominique Olds (“Nikki”). 

FCC and the Munseys present a single issue for our review, namely, whether 

the trial court erred when it denied their motion to dismiss, in which they

alleged that Nikki was their employee and, thus, that the Worker’s 

Compensation Act provides the exclusive remedy for any claim arising from 

her death. We affirm.

Facts and Procedural History

[2] FCC is a church in Munster, and the Munseys are employed by the church as 

Senior Pastors. Nikki, a full-time student at Valparaiso University, was a 

member of FCC’s congregation. In April and May 2015, FCC hired Nikki “as 

a babysitter, under the direct supervision of the Munseys.”

1

 Appellants’ App. 

Vol. II at 16. Nikki filled out an IRS Form W-9

2 when she was hired. Nikki 

babysat for FCC on five occasions between April 1 and May 20, 2015,

3 both at 

the FCC church and at the Munseys’ private residence, and FCC paid Nikki on 

each occasion. Nikki did not have a set work schedule with FCC, but she 

 

1

 In their brief on appeal, FCC and the Munseys allege that both “FCC and the Munseys were employers of 

[Nikki] at the time of [her death].” Appellants’ Br. at 9. However, in an affidavit, Melodye states that she 

and Stephen were employed by FCC as senior pastors, which suggests that when they supervised Nikki they 

were acting as agents of FCC. There is no evidence that the Munseys hired Nikki on their own account. 

Nevertheless, “[w]here 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 Co. v. Magness, 744 N.E.2d 397, 402 (Ind. 2001) (quoting U.S. Metalsource Corp. v. Simpson, 649 N.E.2d 

682, 685 (Ind. Ct. App. 1995)).

2

 A Form W-9 provides information about an independent contractor necessary for the hiring party to report

at a later date on a Form 1099-MISC for payments made.

3

 Nikki babysat for FCC on April 1, April 18, twice on April 28, and on May 20.
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accepted babysitting jobs with FCC if those jobs did not conflict either with her

job in the dining hall at Valparaiso University or her classes there.

[3] On May 29, 2015, Nikki was babysitting the Munseys’ granddaughter at the 

Munseys’ residence in Schererville. At approximately 3:00 p.m., someone 

found Nikki “floating face down” and “unresponsive” in the Munseys’ 

swimming pool. Id. at 17. Nikki was transported by ambulance to a hospital, 

but efforts to resuscitate her were unsuccessful, and she died on June 1.

[4] On November 17, 2016, Olds filed a complaint alleging in relevant part that 

FCC and the Munseys were liable for Nikki’s wrongful death.4 On December 

16, FCC and the Munseys filed a motion to dismiss for lack of subject matter 

jurisdiction under Indiana Trial Rule 12(B)(1).5 In particular, they alleged that 

Nikki was their employee and, as such, that Olds could only bring a claim

against them under the Worker’s Compensation Act (“the Act”). The trial 

court denied that motion following a hearing. This certified interlocutory 

appeal ensued.

Discussion and Decision

[5] FCC and the Munseys contend that Nikki was their employee and that the Act 

provides the exclusive remedy for her death, which, they maintain, arose out of 

 

4

 Pursuant to Indiana Code Section 34-23-2-1(c)(1), Mother named Nikki’s father, Darryl Anthony Smith, as 

a codefendant in the complaint, but he did not appear and does not participate in this appeal.

5

 They also moved to dismiss the complaint under Trial Rule 12(B)(6), but they do not raise that issue on 

appeal.
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and in the course of her employment. Thus, they assert that the trial court is 

without subject matter jurisdiction to hear Olds’ complaint.

[6] The Act is the exclusive means by which an employee, her personal 

representatives, dependents, or next of kin, at common law or otherwise, can 

pursue compensation for an employee’s injury or death arising out of and in the 

course of her employment. See Ind. Code § 22-3-2-6 (2018). A defense against 

a negligence claim on the basis that the plaintiff’s exclusive remedy is to pursue 

a claim for benefits under the Act is properly advanced through a motion to 

dismiss for lack of subject matter jurisdiction under Indiana Trial Rule 12(B)(1). 

See Wishard Memorial Hosp. v. Kerr, 846 N.E.2d 1083, 1087 (Ind. Ct. App. 2006). 

“‘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. (quoting GKN Co. v. Magness, 

744 N.E.2d 397, 400 (Ind. 2001)). The trial court may weigh the evidence to 

resolve the jurisdictional issue. Id.

[7] The standard of appellate review for a Trial Rule 12(B)(1) motion to dismiss is 

dependent upon what occurred in the trial court, that is: (i) whether the trial 

court resolved disputed facts; and (ii) if the trial court resolved disputed facts, 

whether it conducted an evidentiary hearing or ruled on a paper record. Id. 

Here, the trial court ruled entirely on a paper record. We review de novo a trial 

court’s ruling on a motion to dismiss where the facts before the trial court are 

disputed and the trial court rules on a paper record. Id.
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[8] When challenging the trial court’s jurisdiction, the purported employer bears 

the burden of proving that an alleged employee’s claim falls within the scope of 

the Act unless the complaint demonstrates the existence of an employment 

relationship. Id. at 1088. Olds’ complaint does not state whether Nikki was an 

employee or independent contractor. Therefore, FCC and the Munseys bore 

the burden of demonstrating a lack of subject matter jurisdiction based on their

claim that Nikki was their employee and Olds’ exclusive remedy fell under the 

Act.6 See id. 

[9] In Moberly v. Day, 757 N.E.2d 1007, 1010-11 (Ind. 2001), our Supreme Court 

set out a ten-factor analysis to distinguish employees from independent 

contractors. Those factors are:

(a) the extent of control which, by the agreement, the master may 

exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct 

occupation or business;

(c) the kind of occupation, with reference to whether, in the 

locality, the work is usually done under the direction of the 

employer or by a specialist without supervision;

 

6

 The negative judgment standard of review does not apply here. A negative judgment occurs when a 

decision is made against the party who bore the burden of proving facts to a fact-finder at an evidentiary 

hearing. See, e.g., Romine v. Gagle, 782 N.E.2d 369, 376 (Ind. Ct. App. 2003), trans. denied. Such decisions 

may not be challenged on appeal on the grounds that they are not supported by sufficient evidence; rather, 

they may be challenged only on the grounds that they are contrary to law. 2 Ind. L. Encyc. Appeals § 337 

(Supp. Jan. 2018). Here, the trial court did not hold an evidentiary hearing to determine facts, and we are in 

just as good a position on appeal as the trial court was to determine the issues raised. Thus, our standard of 

review is de novo.
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(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the 

instrumentalities, tools, and the place of work for the person 

doing the work;

(f) the length of time for which the person is employed;

(g) the method of payment, whether by the time or by the job;

(h) whether or not the work is a part of the regular business of the 

employer;

(i) whether or not the parties believe they are creating the relation 

of master and servant; and

(j) whether the principal is or is not in business.

Id. at 1010 (quoting Restatement (Second) of Agency § 220(2)). No single 

factor is dispositive. Id. We consider each factor in turn.

Extent of Control Over Details of the Work

[10] In support of their motion to dismiss, FCC and the Munseys submitted to the 

trial court Melodye Munsey’s affidavit, which provided in relevant part that the 

Munseys were employed as Senior Pastors at FCC and that they had: “direct 

authority” over Nikki in her work for FCC; the “power and right to direct and 

control the means, manner[,] and method” of Nikki’s work for FCC; and the 
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right to discharge Nikki.7 Appellants’ App. Vol. II at 63. In addition, the 

affidavit stated that, “[t]o the extent that things were needed by [Nikki] to 

perform her work for [FCC], we provided them, but did not provide a cell 

phone or a car.” Id. And the affidavit stated that the Munseys “established 

[Nikki’s] work boundaries, determining where and when she would work for 

[FCC].” Id. In light of that evidence, FCC and the Munseys contend that “this 

factor weighs heavily in favor” of concluding that Nikki was an employee. 

Appellants’ Br. at 11.

[11] In Moberly, our Supreme Court set out the test on the control factor as follows: 

the Restatement (Second) of Agency § 220(1)

defines a servant (i.e. employee) as one “employed to perform 

services in the affairs of another and who with respect to the 

physical conduct in the performance of the services is subject to 

the other’s control or right to control.” Comment d. to 

subsection (1) further describes control or right to control as 

“important and in many situations . . . determinative.”

757 N.E.2d at 1010. While the Restatement (Second) of Agency § 220(1) 

clearly states that an employee is one who is “subject to the other’s control or 

right to control,” our case law emphasizes evidence of the actual control an 

 

7

 While FCC and the Munseys contend that their right to discharge Nikki at any time bears on the control 

factor, we cannot agree. The right to discharge is one of seven factors our courts consider to determine the 

existence of an employer-employee relationship under the borrowed servant doctrine, see Hale v. Kemp, 579 

N.E.2d 63, 67 (Ind. 1991), which is not at issue in this appeal. The ten-factor test in Moberly, which FCC and 

the Munseys concede applies here, does not include a “right to discharge” factor. 757 N.E.2d at 1010 n.3.
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alleged employer exercised in the course of the working relationship. 

(Emphasis added.)

[12] For example, in Moberly, William Day, a farmer, hired Jay Moberly and Joe 

Hendershot to repair drainage tile in a field, and Moberly was injured when 

Hendershot negligently operated a backhoe in the course of fixing the drainage 

tile on Day’s farm. Id. at 1008. The trial court concluded that Day was not 

liable for Moberly’s injury because Hendershot was an independent contractor. 

Id. at 1013. 

[13] In its analysis of the control factor, our Supreme Court observed that “the 

record d[id] not indicate any formal agreement about the extent of control Day 

exercised over Hendershot’s work,” but the record did “describe the working 

arrangement.” 757 N.E.2d at 1010. In particular, the evidence showed that 

Day had told Hendershot and Moberly “what he wanted done and [they] 

would do it.” Id. Day testified that he had told Moberly “to dig the holes up 

and fill in the tile, fix the tile.” Id. at 1011. Day did not “specifically tell him 

each step,” and he did not tell him “to operate the equipment or to dig the hole 

or to do the back-filling.” Id. The Court held that the “evidence offered 

indicates that Hendershot was answerable to Day for results only, not the 

particulars of how he went about accomplishing assigned tasks.” Id. Therefore,

it held that “this important factor tilts the scale toward an independent 

contractor conclusion.” Id.
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[14] In Vinup v. Joe’s Construction, LLC, 64 N.E.3d 885 (Ind. Ct. App. 2016), this 

court also looked to the evidence of actual control exercised in the course of the 

parties’ relationship to determine this factor. In Vinup, Joe Getz ran a company 

called Joe’s Construction and hired Mark Vinup. After Vinup was injured on 

the job, he sued Joe’s Construction. The trial court granted Joe’s 

Construction’s summary judgment motion, which alleged that Vinup was an 

employee and was, therefore, limited to damages under the Act. On appeal, 

this court considered evidence of the control factor as follows:

Getz solely determined and assigned what tasks were to be done 

by workers of Joe’s Construction. That is, Getz determined the 

location where the work was to be done, in this case, where on 

the Aberdeen Project they would be working. He determined the 

workers’ schedules, including work hours and breaks, and he had the 

power to remove anyone from his employment.[8]Joe’s 

Construction provided the tools and equipment, including safety 

vests, and he determined when those were to be worn. Vinup did 

not use any of his own tools in the performance of his work for 

Joe’s Construction. Contrary to Vinup’s assertion, we find that 

the “control” factor weighs in favor of employee status.

Id. at 891 (emphasis added).

[15] Here, while Melodye’s affidavit states that the Munseys in their positions as 

Senior Pastors for FCC had the right to control “the means, manner and 

 

8

 Again, there is no “right to discharge” factor in the Moberly ten-factor test, and we disagree with the court 

in Vinup that it has any bearing on the control factor under the Moberly test. The “right to discharge” is 

relevant to the seven-factor Hale test because it bears on which of two employers has control over an 

employee.
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method” of Nikki’s work for FCC, Appellants’ App. Vol. II at 63, there is no 

evidence that the Munseys exercised actual control over Nikki when she 

babysat for FCC. As we observed in Vinup, an employer determines an 

employee’s work schedule, including work hours. 64 N.E.3d at 891. But here

the evidence shows that, while the Munseys would direct where she would 

babysit, Nikki controlled when she would babysit. Nikki had discretion in 

whether she would take a babysitting job when it was offered, and, moreover,

no one was supervising or directing Nikki’s work at the time of her death.

[16] Without evidence that Nikki had an agreement with FCC concerning the 

means, manner, or method by which she would discharge her babysitting 

duties, and without evidence that the Munseys exercised actual control over the 

means, manner, or method by which Nikki discharged her babysitting duties, 

we cannot say that this factor weighs in favor of a determination that Nikki was 

an employee.9 We hold that this factor is neutral.

Distinct Occupation

[17] The second factor considers whether the one employed is engaged in a distinct 

business or occupation. Walker v. Martin, 887 N.E.2d 125, 132 (Ind. Ct. App. 

2008), trans. denied. In Walker, “the evidence demonstrated that Martin was 

 

9

 FCC and the Munseys point out that, in her brief to the trial court, Olds conceded that this factor weighed 

in favor of employee status. But on appeal, Olds contends that this factor weighs in favor of independent 

contractor status. Regardless, Olds’ concession to the trial court was not dispositive, and it is not dispositive 

here. Rather, we review de novo the complaint and evidence presented to the trial court relevant to each 

factor.
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engaged in his own hauling business and did not work exclusively for” another 

entity. Id. Accordingly, we held that this factor “weigh[ed] in favor of Martin 

as an independent contractor.” Id. Here, the evidence shows that Nikki was a 

full-time college student, worked part-time for Valparaiso University, and took 

babysitting jobs for FCC if she “did not have another commitment or a school

obligation.” Appellants’ App. Vol. II at 47. Because Nikki was a full-time 

college student and did not work exclusively for FCC, this factor weighs

significantly in favor of Nikki as an independent contractor.

Kind of Occupation

[18] In Moberly, our Supreme Court’s analysis of this factor was as follows: 

“Unsupervised specialists commonly perform this type of heavy-equipment 

repair, although employers do sometimes direct such work. This factor is 

therefore not particularly meaningful in this case.” 757 N.E.2d at 1011. 

Depending on the nature of the job, a babysitter may be hired independently to 

supervise children in the stead of a parent or guardian, or she may, for example,

be hired as an employee of a daycare business and work under direct 

supervision. Under the evidence presented here, this factor is neutral.

Skill Required

[19] Babysitting does not require special skills, so this factor weighs moderately in 

favor of finding employee status.
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Supplier of Equipment and Work Location

[20] The evidence shows that Nikki babysat either at FCC’s church or the Munseys’ 

residence. This factor weighs moderately in favor of finding employee status.

Length of Employment

[21] Nikki babysat for FCC on six occasions in April and May, 2015. Comment h. 

to the Restatement (Second) of Agency § 220(2) refers to “employment over a 

considerable period of time with regular hours,” and comment a. to § 220(1) 

also describes an employee as “one who performs continuous service for 

another.” Moberly, 757 N.E.2d at 1012. Here, Nikki neither worked regular 

hours for FCC, nor did she perform continuous service for FCC. The 

undisputed evidence shows that Nikki worked intermittently and had discretion 

in whether to take a babysitting job when it was offered. This factor weighs 

significantly in favor of independent contractor status.

Method of Payment

[22] FCC paid Nikki by the job. That is, while she was paid at an hourly rate, FCC 

paid Nikki on each occasion that she babysat. Indeed, Nikki was paid by two 

separate checks for babysitting twice on the same day, April 28, 2015. This 

factor weighs significantly in favor of independent contractor status. See 

Moberly, 757 N.E.2d at 1012.

Regular Business of the Employer

[23] There is no evidence that FCC is in the business of providing babysitting 

services. At most, any babysitting services FCC provides are ancillary to its 
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“business.” This factor weighs significantly in favor of independent contractor 

status.

Belief of the Parties

[24] The IRS requires employers to report wage and salary information for 

employees on a Form W-2. Berry v. Crawford, 990 N.E.2d 410, 428 (Ind. 2013). 

Here, FCC and the Munseys did not present evidence that they had completed 

a Form W-2 for Nikki. Neither did they present evidence that Nikki had filled 

out a Form W-4, which employers use to determine withholding from an 

employee’s wages on a Form W-2. Rather, Nikki filled out and signed a Form 

W-9 when she began babysitting for FCC, and that form is used when hiring 

independent contractors. In addition, FCC’s records describe Nikki as a 

“vendor” in the ledger of payments made to her and show no withholding. 

Appellants’ App. Vol. II at 45. This factor weighs significantly in favor of 

independent contractor status.

Whether the Principal is in Business

[25] FCC is a church, which has certain attributes of a business. As senior pastors of 

FCC, the Munseys manage the “business” of the church, although they are not 

engaged in a for-profit enterprise. This factor weighs in favor of employee 

status, but is not particularly meaningful here, given that FCC is not in the 

babysitting business. See supra.
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Conclusion

[26] In our analysis of whether an employer-employee relationship exists, “the 

factors must be weighed against each other as a part of a balancing test as 

opposed to a mathematical formula where the majority wins.” See GKN, 744 

N.E.2d at 402. Here, FCC and the Munseys presented evidence that the

Munseys had the right to control the “means, manner, and method” of Nikki’s 

babysitting, but they offered no evidence that they exercised control over Nikki 

while she babysat, and she was unsupervised at the time of her death. 

Appellants’ App. Vol. II at 63. We hold that “the leading factor of control” is 

neutral, and we give no weight to this factor under these circumstances. See 

Moberly, 757 N.E.2d at 1013. The distinct occupation, length of employment, 

method of payment, and belief of the parties factors weigh significantly in favor 

of Nikki’s independent contractor status. In particular, Nikki did not work 

exclusively for FCC, but was a full-time student and worked in a dining hall; 

Nikki worked irregular hours over the course of two months and had discretion 

whether to accept or reject babysitting jobs offered by FCC; FCC paid Nikki by 

the job; and the parties’ intent that Nikki was an independent contractor is 

manifested by the fact that Nikki filled out a Form W-9 rather than a Form W4, and there was no withholding. While a few of the factors lean toward 

employee status, those factors are less significant and do not outweigh the other 

factors.

[27] On this thin record, FCC and the Munseys have not sustained their burden to 

show that Nikki was an employee. When considered as a whole, the evidence 
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supports the trial court’s conclusion that Nikki was an independent contractor. 

Thus, we hold that the trial did not err when it denied their motion to dismiss 

for lack of subject matter jurisdiction.

[28] Affirmed.

Robb, J., and Altice, J., concur.