FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:

DAVID C. KOLBE LYLE R. HARDMAN

David C. Kolbe, P.C. Hunt Suedhoff Kalamaros, LLP

Warsaw, Indiana South Bend, Indiana

IN THE

COURT OF APPEALS OF INDIANA

THE ESTATE OF DONALD )

EUGENE SMITH, )

)

Appellant, )

)

vs. ) No. 43A01-1103-PL-136

)

JOSHUA STUTZMAN d/b/a )

KEYSTONE BUILDERS, )

)

Appellee. )

APPEAL FROM THE KOSCIUSKO SUPERIOR COURT

The Honorable Duane G. Huffer, Judge

Cause No. 43D01-1010-PL-198 

March 23, 2012

OPINION - FOR PUBLICATION

BROWN, Judge
2

The Estate of Donald Smith (the “Estate”) appeals from the trial court’s dismissal 

of its lawsuit against Joshua Stutzman d/b/a Keystone Builders (“Stutzman”). The Estate 

raises two issues, which we revise and restate as whether the trial court properly granted 

Stutzman’s motion to set aside default judgment and motion to dismiss and dismissed the 

Estate’s action. We affirm. 

The relevant facts follow. Smith worked for Stutzman. Stutzman filed a report of 

employee injury/illness with the Indiana Worker’s Compensation Board (the “Board”) 

prepared on June 8, 2010, which indicated that on March 26, 2010, Smith suffered a 

“[b]roken neck” and was “on a ladder [and] fell 20 feet and died.” Appellee’s 

Supplemental Appendix at 1. A Settlement Agreement and Petition for Approval (the 

“Settlement Agreement”) was entered into by Donald Smith, deceased, by his widow 

Carol Smith, Stutzman, and Travelers Casualty Insurance Company of America 

(“Travelers”), and the Settlement Agreement was filed with the Board on June 22, 2010. 

The parties to the Settlement Agreement agreed that Smith’s worker’s compensation 

claim would be settled for a lump sum payment of $100,000, payable to his sole 

presumptive dependent, Carol Smith. On June 28, 2010, the Board entered an order 

approving the Settlement Agreement and directing payment of $100,000.1 

On October 21, 2010, the Estate filed a complaint for damages against Stutzman in 

the Kosciusko Superior Court alleging in part that while working for Stutzman as an 

 

1 The June 28, 2010 order directed that the payment be made by Stutzman as the named defendant 

in the worker’s compensation action to Donald Smith, deceased, by his widow Carol Smith, as the named 

plaintiff in the worker’s compensation action, and the Settlement Agreement provided that Travelers was 

making payment in settlement of the claim. 
3

independent contractor on March 26, 2010, Smith fell from a roof resulting in his death 

and that Stutzman was negligent in maintaining safe work premises which was the direct 

and proximate cause of Smith’s death. On December 27, 2010, the Estate filed a motion 

for judgment by default and an affidavit in support of its motion. On December 28, 2010, 

the court entered an entry of default against Stutzman. 

On February 1, 2011, Stutzman filed a Motion to Set Aside Default Judgment and 

Motion to Dismiss together with a memorandum of law. In its motion and memorandum, 

Stutzman cited to Ind. Trial Rules 60(B) and 12(B)(1) and argued that the December 28, 

2010 entry of default was void in part because the Board has exclusive jurisdiction over 

the claim, Stutzman is immune from suit and damages in a state court proceeding, and the 

Estate is estopped from asserting that Smith was an independent contractor. On February 

18, 2011, the Estate filed a response to Stutzman’s motion to dismiss, and on February 

22, 2011, Stutzman filed a reply. 

On March 4, 2011, the court held a hearing on Stutzman’s February 1, 2011 

motion and entered an order which found that the Board “has exclusive jurisdiction of 

this matter,” granted Stutzman’s motion, and ordered that the case be dismissed. 

Appellant’s Appendix at 5. 

The issue is whether the trial court properly granted Stutzman’s February 1, 2011 

motion to set aside default judgment and motion to dismiss. The Estate acknowledges 

that in Indiana if the Worker’s Compensation Act applies to an injury then all other 

remedies are excluded. However, the Estate argues that “no concession was made by 

[Stutzman] and no contention was asserted by the Estate that [] Smith was an employee,” 
4

that “the sole argument [Stutzman] can make is that the [Settlement Agreement], by its 

very existence, invokes exclusivity barring subsequent civil suit,” and that “while the 

settlement was made pursuant to Section 15 under the Worker’s Compensation Code, the 

issue of employment remained outside the Act and its status remained unresolved.” 

Appellant’s Brief at 5-6. The Estate “concedes that it could never reopen an action under 

the [Act] for further benefits from Travelers by virtue of the [Settlement Agreement]” but 

maintains that “there is nothing in the statute which prohibits a civil claim on the 

remaining disputed issue, the question of employment” and that the Settlement 

Agreement “specifically left this issue unresolved.” Id. at 7. The Estate asserts that “the 

parties clearly did not intend to resolve all issues,” that “[t]he issue of employment 

remained on the table,” and that “[i]ndeed, that issue was left completely unresolved for 

possible resolution in a civil court of law.” Id. 

Stutzman maintains that the court correctly determined that the Estate admitted 

that Smith was an employee of Stutzman by invoking the jurisdiction of the Board and 

receiving worker’s compensation benefits. Specifically, Stutzman argues that the parties 

stipulated in the Settlement Agreement that the Board had subject matter jurisdiction over 

the claim and that “[i]t is axiomatic that, for the Board to have subject matter jurisdiction, 

Smith was [Stutzman’s] employee, acting within the scope and course of his 

employment.” Appellee’s Brief at 9. Stutzman further argues that “[t]he very act of 

seeking (and accepting) worker’s compensation benefits constitutes an admission by the 

Estate that Smith was an employee acting within the scope and course of his 

employment.” Id. Stutzman also argues that the Estate is judicially estopped from 
5

claiming that Smith was an independent contractor. Stutzman asserts that the trial court 

did not have subject matter jurisdiction over the Estate’s action, that thus the court’s entry 

of default judgment was void, and that the court correctly vacated the entry of default 

judgment and dismissed the case. 

The Indiana Worker’s Compensation Act provides for compensation of injury or 

death by accident arising out of and in the course of employment. Ind. Code § 22-3-2-2; 

Wright Tree Serv. v. Hernandez, 907 N.E.2d 183, 186 (Ind. Ct. App. 2009), trans. denied. 

Ind. Code § 22-3-2-6, the exclusivity provision of the Act, provides:

The rights and remedies granted to an employee subject to IC 22-3-2 

through IC 22-3-6 on account of personal injury or death by accident shall 

exclude all other rights and remedies of such employee, the employee’s 

personal representatives, dependents, or next of kin, at common law or 

otherwise, on account of such injury or death, except for remedies available 

under IC 5-2-6.1.[2]

This court has stated that the Worker’s Compensation Act is designed to grant 

compensation to injured employees without regard to fault. Waldridge v. Futurex Indus., 

Inc., 714 N.E.2d 783, 785 (Ind. Ct. App. 1999) (citation omitted), reh’g denied, trans.

denied. “Once an injured employee accepts or receives compensation under the Act, she 

concedes that the injury was accidental in nature and that it arose out of and in the course 

of employment.” Id. (emphasis added). “Accordingly, the employee may not later sue 

her employer in tort based on the same work-related injury.” Id. 

This court has further stated: 

[B]y electing to come under the [Worker’s] Compensation Act, an 

employer and employee accept the procedure provided by that act for the 

adjudication of claims for compensation, and they waive the right of a trial 

 

2

Ind. Code § 5-2-6.1 governs compensation for victims of violent crimes. 
6

by jury. An agreement, when filed with and approved by the [Worker’s 

Compensation] Board has the force and effect of an award, and adjudicates 

the facts involved therein . . . . 

Where there is no fraud on the part of the employer or an attempt to take 

advantage of the employee, the fact that the employee is ignorant of the 

provisions of [the Act] at the time he accepts compensation from his 

employer with full knowledge of all the facts does not defeat the effect of 

such acceptance as an election to take the compensation.

Williams v. Delta Steel Corp., 695 N.E.2d 633, 635 (Ind. Ct. App. 1998) (citing Ind.

Univ. Hosps. v. Carter, 456 N.E.2d 1051, 1054-1055 (Ind. Ct. App. 1983) (citations 

omitted)), trans. denied. This court noted that “[i]n reaching that conclusion, we 

reasoned that an employee, by accepting and receiving compensation under the Act, 

concedes that the injury was accidental in nature and that it arose out of and in the course 

of employment.” Id. (citing Univ. Hosps., 456 N.E.2d at 1056 (footnote omitted) 

(emphasis added)). 

Further, the Indiana Supreme Court has stated that “[t]he exclusivity provision 

[Ind. Code § 22-3-2-6] bars a court from hearing any common law action brought by the 

employee for the same injuries.” Sims v. U.S. Fidelity & Guar. Co., 782 N.E.2d 345, 

349-350 (Ind. 2003). The Court further stated: 

When an injury to a servant is found to be covered by a workers’

compensation act, it is uniformly held that the statutory compensation is the 

sole remedy, and that any recovery against the employer at common law is 

barred. It is recognized that this remedy is in the nature of a compromise, 

by which the worker is to accept a limited compensation, usually less than 

the estimate which a jury might place upon his damages, in return for an 

extended liability of the employer, and an assurance that he will be paid.

Id. at 351-352 (quoting W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF 

TORTS § 80, at 574 (5th ed. 1984) (footnotes omitted)); see also Christopher R. Brown, 
7

D.D.S., Inc. v. Decatur Cnty. Mem’l Hosp., 892 N.E.2d 642, 649 (Ind. 2008) (noting that 

“the remedies provided in the Worker’s Compensation Act are in derogation of the 

common law” and that “the law in this jurisdiction is settled that if the Worker’s 

Compensation Act applies to an injury, then the rights and remedies granted to an 

employee by the Act exclude all other rights and remedies of such employee . . . .”) 

(internal quotation marks and citations omitted). 

In Ind. Univ. Hosps., the Full Industrial Board approved of an agreement pursuant 

to which an employee would receive certain worker’s compensation benefits. 456 

N.E.2d at 1053. The employee later brought a civil negligence action against her 

employer alleging that the employer failed to maintain a safe place for business invitees. 

Id. The employee argued on appeal that she was not injured in the course of her 

employment but between shifts while she was not on duty. Id. at 1054. This court 

examined the agreement entered into by the parties and found that the intent of the 

agreement was clear on its face and that there was no evidence that the employer 

misguided the employee into signing the agreement. Id. at 1055. The court then held: 

[I]n the present case, the Industrial Board’s approval of the parties’ mutual 

compensation agreement is a determination that the incident did arise out of 

and in the course of her employment. In addition, [the employee] signed 

the agreement and received the benefit payments. She cannot now 

complain that the incident did not occur in the scope of her employment. 

[The employee] made a binding election of remedies, precluding her from 

pursuing another separate remedy. 

Id. at 1056. 

Here, the Settlement Agreement provided in part: 
8

1. The [Board] has jurisdiction of this claim and may take such further 

action as is necessary to carry out the provisions of this Settlement 

Agreement and Petition for Approval at the Indianapolis offices of 

the Board without further notice to the parties hereto, which notice is 

hereby waived by the parties. 

2. On March 26, 2010, Donald E. Smith, Jr. was performing work for 

[Stutzman] when he fell from a roof, sustaining injuries that caused 

his death. 

3. Pursuant to Indiana Code § 22-3-3-18 and § 22-3-3-19, Carol Louise 

Smith is the sole presumptive dependent of Donald E. Smith, Jr.

4. No Application for Adjustment of Claim has been filed by Donald E.

Smith, Jr., or his Estate, or Carol Louise Smith. 

5. There are disputes between the parties as to whether Donald E. 

Smith, Jr. was an employee of [Stutzman], as it is defined by Ind. 

Code § 22-3-6-1. There is also a dispute as to whether [Stutzman] 

had a valid worker’s compensation policy with Travelers in place at 

the time of [] Smith’s injury. 

6. By reason of these disputes and with knowledge of the uncertainty 

and expense of litigation of this claim, the parties seek to resolve 

their differences and are willing to give up any rights they may have 

in connection with this claim under the provisions of the Worker’s 

Compensation Act. The parties have agreed that [Smith’s] worker’s 

compensation claim be compromised and settled for the lump sum 

payment of One Hundred Thousand and 00/100 Dollars 

($100,000.00), payable to his sole presumptive dependent, Carol 

Louise Smith, which amount includes compensation for any and all 

medical, funeral and burial expenses of [Smith], including unpaid or 

outstanding expenses. 

7. This settlement is intended to resolve the claims of the employee, 

Donald E. Smith, Jr. and his dependents against the employer and 

Travelers, as it relates to worker’s compensation benefits to which 

[Smith] or his dependents may be entitled. In making this 

settlement, [Smith], deceased, by his widow Carol Louise Smith, 

agrees to release and discharge [Stutzman] and its compensation 

insurance carrier, Travelers [], as well as their agents, assigns, 

insurers, and legal counsel from any and all manner of actions, 

causes of action, suits, accounts, contract, debts, attorneys fees, 
9

claims and demands whatsoever, at law or in equity, and however 

arising, that were asserted, or could have been asserted, by her 

before the [Board], and waives all further rights under the Indiana 

Worker’s Compensation Act. Travelers specifically retains the right 

to assert a lien against any third party recovery as set forth in Ind. 

Code § 22-3-2-13. 

8. This settlement is not intended to resolve any claims that may exist 

as between the employer and Travelers, and those parties 

specifically retain the right to dispute whether Travelers owes a duty 

of coverage to [Stutzman] for the claims asserted by [] Smith, or his 

Estate, or his dependents. Travelers further retains its rights of 

equitable subrogation against [Stutzman] for any payments made 

under this Settlement Agreement. Further, this settlement does not 

waive any rights of the parties as to other claims not covered under 

the Worker’s Compensation Act, Ind. Code § 22-3-2 through Ind. 

Code § 22-3-6 et seq. 

9. The parties understand that upon submission of this Settlement 

Agreement, and approval of it by the Board, all matters with respect 

to [Smith’s] injury of March 26, 2010 shall be forever resolved, 

settled and ended. There shall be no finding of any liability on the 

part of [Stutzman] with respect to any injury or combination of 

injuries of [Smith], nor shall this settlement be construed as an 

admission that [Smith] was an employee of [Stutzman]. Further, 

although Travelers is making payment in settlement of this claim, 

payment shall not be construed as a finding of an admission of 

liability to provide worker’s compensation coverage to [Stutzman] 

for the injuries to [Smith]. 

10. Carol Louis Smith, acknowledges that she has read this Settlement 

Agreement, that she has had an opportunity to have it reviewed by 

an attorney, and that she understands that this agreement represents a 

full and final settlement of all of [Smith’s] worker’s compensation 

claim with respect to the alleged injury. She understands that upon 

approval of this Settlement Agreement by the Board, she will not be 

entitled to receive from the employer, or its insurance carrier, or from

the Second Injury Fund, any additional sum or sums of money on 

account of [Smith’s] claimed injury for compensation, or for 

medical, funeral, or burial expenses, regardless of whether there is a 

change of condition. 
10

11. Pursuant to this Settlement Agreement, [Stutzman] shall have no 

obligation for past, present, or future medical and hospital bills, 

funeral and burial expenses, and associated expenses relating to 

[Smith’s] injury, and the parties state that all unpaid medical 

provider, funeral and burial bills shall remain the responsibility of 

Carol Louise Smith. Carol Louise Smith specifically agrees to 

indemnify and hold harmless [Stutzman] and Travelers from any 

demands for payment of these bills and expenses by the providers or 

creditors. Further, Carol Louise Smith specifically agrees to 

indemnify and hold harmless [Stutzman] and Travelers against any 

claims which may arise by any persons claiming to be dependents of 

[Smith]. 

12. This agreement is entered into by the parties as a compromise 

settlement agreement in order to gain approval thereof by the Board 

pursuant to Indiana Code § 22-3-2-15.[3] This agreement and 

stipulation shall be of no force or effect in the absence of an entry of

an order directing such payment by the Defendant [Stutzman] to the 

 

3

Ind. Code § 22-3-2-15 provides: 

(a) No contract, agreement (written or implied), rule, or other device shall, in any 

manner, operate to relieve any employer in whole or in part of any obligation

created by IC 22-3-2 through IC 22-3-6. However, nothing in IC 22-3-2 through 

IC 22-3-6 shall be construed as preventing the parties to claims under IC 22-3-2 

through IC 22-3-6 from entering into voluntary agreements in settlement thereof, 

but no agreement by an employee or his dependents to waive his rights under IC 

22-3-2 through IC 22-3-6 shall be valid nor shall any agreement of settlement or 

compromise of any dispute or claim for compensation under IC 22-3-2 through 

IC 22-3-6 be valid until approved by a member of the board, nor shall a member 

of the worker’s compensation board approve any settlement which is not in 

accordance with the rights of the parties as given in IC 22-3-2 through IC 22-3-6. 

No such agreement shall be valid unless made after seven (7) days from the date

of the injury or death.

(b) A compromise settlement approved by a member of the worker’s compensation 

board during the employee’s lifetime shall extinguish and bar all claims for 

compensation for the employee’s death if the settlement compromises a dispute 

on any question or issue other than the extent of disability or the rate of 

compensation.

(c) A minor dependent, by parent or legal guardian, may compromise disputes and 

may enter into a compromise settlement agreement, and upon approval by a 

member of the worker’s compensation board, the settlement agreement shall 

have the same force and effect as though the minor had been an adult. The 

payment of compensation by the employer in accordance with the settlement 

agreement shall discharge the employer from all further obligation.
11

Plaintiff [Smith], which order constitutes an approval of the 

compromise agreement pursuant to Indiana Code § 22-3-2-15. 

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

We observe that although the parties acknowledged the existence of certain 

disputes, including whether Smith was an employee of Stutzman, the parties expressly 

agreed to resolve any such differences by entering the Settlement Agreement. 

Specifically, with respect to the disputes or differences, paragraph 6 of the Settlement 

Agreement provides in part that “[b]y reason of these disputes and with knowledge of the 

uncertainty and expense of litigation of this claim, the parties seek to resolve their 

differences and are willing to give up any rights they may have in connection with this 

claim under the provisions of the Worker’s Compensation Act.” Id. at 21. 

The Estate stipulated that the Board had subject matter jurisdiction over the 

Estate’s claim, thereby making a judicial admission, the effect of which precluded its 

claim for recovery in the instant case. Moreover, the implication of the language of the 

Settlement Agreement above, including the emphasized portions, is that the parties 

intended for the payment of $100,000 to resolve any claim which Smith, his dependents, 

or the Estate may have against Stutzman or Travelers in connection with Smith’s injury 

and that Smith would not be entitled to obtain additional sums of money from Stutzman 

in connection with the injury. See, e.g., id. at 23 (stating that Carol Smith “will not be 

entitled to receive from the employer, or its insurance carrier, or from the Second Injury 

Fund, any additional sum or sums of money on account of [Smith’s] claimed injury for 

compensation . . . .”) (emphases added). 
12

Finally, as stated in our previous decisions, an employee, by accepting and 

receiving compensation under the Act, concedes that the injury arose out of and in the 

course of employment. See Waldridge, 714 N.E.2d at 785, Williams, 695 N.E.2d at 635, 

and Ind. Univ. Hosps., 456 N.E.2d at 1053-1056. Here, Carol Smith as Donald’s sole 

presumptive dependent accepted and received compensation of $100,000 under the Act in 

connection with Smith’s injury and death while working for Stutzman and thus conceded 

that the injury arose out of and in the course of employment. 

Based upon the record, we conclude that compensation was accepted and received 

under the Act and the Estate may not later claim that Smith’s injuries occurred outside 

the scope of employment. See Ind. Univ. Hosps., 456 N.E.2d at 1054-1055 (holding that 

an employee who accepted and received compensation under the Act may not later claim 

that the injuries occurred outside the scope of employment). Accordingly, the trial court 

properly granted Stutzman’s motion to set aside default judgment and motion to dismiss. 

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

affirmed. 

Affirmed. 

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