## Facts

- An employee, Michael S. Marino, driving a vehicle owned by his employer, Merrillville Toyota, was injured in a collision with a semi-tractor trailer driven by Charles E. Morton during Morton’s employment with Steel & Machinery Transport, Inc.
- Marino’s injuries prevented him from resuming his normal duties for Merrillville Toyota.
- Merrillville Toyota sued Morton and Steel & Machinery seeking (1) damages for loss of Marino’s services and related lost profits and (2) damages for the employer’s vehicle.
- Only the employer’s loss-of-services/lost-profits claim was at issue on appeal.

## Issues

1. Whether Indiana law permits an employer to recover, from an allegedly negligent third party, damages for loss of an employee’s services and related lost profits caused by the employee’s injury.
2. Whether the employer’s claimed damages were too speculative to be recoverable.

## Decision

- The court reversed the trial court’s denial of the defendants’ Trial Rule 12(B)(6) motion as to the loss-of-services/lost-profits claim.
- The court held Indiana does not recognize an employer’s independent cause of action for loss of an employee’s services and resulting lost profits due to a third party’s negligent injury to the employee.
- The case was remanded with instructions to grant the motion to dismiss that claim.
- Because the first issue was dispositive, the court did not decide whether the claimed damages were speculative.

## Legal Principles

- On a Rule 12(B)(6) motion, the complaint is viewed in the light most favorable to the plaintiff, with all reasonable inferences drawn in the plaintiff’s favor.
- Indiana law does not provide an employer a freestanding tort claim against a negligent third party for loss of an employee’s services or associated lost profits.
- The historic common-law action for loss of a servant’s services (*per quod servitium amisit*) rests on an obsolete master–servant concept and is not extended to modern employer–employee relationships absent legislative action.
- Recognizing such employer claims would create derivative liability and risk expansive, difficult-to-measure economic-loss claims that complicate the structure of personal-injury litigation.

## Conclusion

The court rejected an employer’s attempt to recover lost employee services and related profits from an alleged tortfeasor, ruling that Indiana does not recognize such an independent claim and ordering dismissal of that portion of the lawsuit.


Morton v. Merrillville Toyota, Inc., 562 N.E.2d 781 (Ind. Ct. App. 1990)