Riley, Judge.
Appellants-Plaintiffs, Lora and Shawn Brenner (collectively the Brenners), pursue this interlocutory appeal from the trial court’s dismissal of their claims against Appellees-Defendants, Ignacio Chavez (Ignacio) and Chavez Real Estate.
We reverse and remand for further proceedings.
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Lora was an employee of All Steel Carports, Inc., and All Steel Carports and Buildings, LLC, (collectively All Steel), whose business premises was located in Munice, Indiana. All Steel’s business premises had been owned by Ignacio, but ownership of the real estate was transferred to Chavez Real Estate at some point prior to the instant litigation. Ignacio had been the president of All Steel Carports, Inc., since 2006 and of All Steel Carports and Buildings, LLC, since 2009. Lora was terminated from All Steel in July 2016.
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On December 22, 2017, the Brenners filed their Second Amended Complaint against the Defendants… The Brenners further alleged that others employed by All Steel had become ill, Lora had ordered an environmental inspection of the All Steel business premises, and that All Steel had terminated her for allowing the inspection to take place. The Brenners also alleged that All Steel did not maintain worker’s compensation insurance for Lora. The Brenners re-asserted their claims of negligence, gross negligence, and loss of consortium as to all the Defendants and re-asserted their claim of wrongful termination only as to All Steel. The Brenners sought the costs of Lora’s medical treatment, lost wages, lost earning capacity, and punitive damages.
On February 7, 2018, All Steel and Ignacio filed a motion to dismiss with an accompanying memorandum, seeking the dismissal of all of the Brenners’ claims, except that for wrongful termination, based on the previously-raised affirmative defenses. … On April 4, 2018, Chavez Real Estate filed a response to the Brenners asserting that the Brenners were precluded from pursuing any third-party tort claims without first seeking relief under the [Worker’s Compensation Act (WCA)]. On April 23, 2018, the trial court entered its Order granting the Defendants’ motion to dismiss the Brenners’ negligence, gross negligence, and loss of consortium claims. The trial court entered no findings of fact or conclusions of law.
On May 21, 2018, the Brenners sought leave of the trial court to pursue an interlocutory appeal of the trial court’s Order dismissing their claims. On May 22, 2018, the trial court granted the Brenners’ request. This court accepted jurisdiction over the Brenners’ appeal on July 18, 2018.
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I. The WCA
The WCA provides compensation to employees for accidental injuries which arise out of, and in the course of, employment. … if an employee is injured in an accident arising out of, and in the course of, employment, he is entitled to compensation under the WCA, and the exclusive remedy provision precludes a trial court from hearing a common law action brought by the employee for the same injuries. Campbell, 670 N.E.2d at 930. It is the employer-employee relationship that defines the parameters of the immunity granted by the WCA’s exclusive remedy provision. Ross v. Schubert, 180 Ind. App. 402, 407, 388 N.E.2d 623, 627 (Inc. Ct. App. 1979), trans. denied, superseded by statute on other grounds. … The right of an employee to pursue remedies in tort against a third party is embodied in Indiana Code section 22-3-2-13… With this provision the WCA creates an exception to the exclusive remedy provision for actions to be brought against third parties, namely someone other than the employer or a fellow employee, in which legal liability was created by a WCA-compensable injury.
II. Ignacio
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Here, the undisputed evidence before the trial court was that Ignacio was the president of All Steel Carports, Inc. Following Jackson and Rodgers, and in light of section 22-3-6-1(b)(1), we conclude that Ignacio was an employee of All Steel Carports, Inc. Accordingly, as to All Steel Carports, Inc., Ignacio was not a third party for purposes of section 22-3-2-13.
However, our inquiry does not end there. The Brenners also brought suit against All Steel Carports and Buildings, LLC, of which Ignacio was also president. All Steel Carports and Buildings is a limited liability company, not a corporation, and so Ignacio was not an employee of that entity by virtue of section 22-3-6-1(b)(1). The challenger of subject matter jurisdiction has the burden of establishing lack of jurisdiction. GKN, 744 N.E.2d at 404. Thus, following Jackson, Ignacio had the burden to produce some evidence that he acted as employee of All Steel Carports and Buildings, LLC, in order to be shielded by the immunity provided in sections 22-3-2-13 and 22-3-2-5. When a trial court relies solely on the pleadings in ruling on a motion to dismiss, we generally presume that the trial court was correct. Jennings v. St. Vincent Hosp. & Health Care Center, 832 N.E.2d 1044, 1050 (Ind. Ct. App. 2005), trans. denied. However, nothing in the pleadings filed in the trial court established that Ignacio acted as an employee for All Steel Carports and Buildings, LLC, in addition to holding the title of president of that entity.
Ignacio argues that the Brenners essentially invoke the “dual-capacity” doctrine, under which a plaintiff seeks to sue an employer on a theory outside of the employer-employee relationship. Ignacio correctly points out that Indiana has rejected this doctrine. See Procare Rehab Servs. of Community Hosp. v. Vitatoe, 888 N.E.2d 349, 355 (Ind. Ct. App. 2008). However, because we have determined that it was not established that Ignacio was acting as an employee of All Steel Carports and Buildings, LLC, this is not a “dual-capacity” scenario as to the limited liability company. All Steel Carports and Buildings, LLC, did not own the business premises, and Lora is suing Ignacio as the former landowner. Thus, in this case, there are two different entities. We conclude that Ignacio’s status as president of All Steel Carports and Buildings, LLC, did not shield him from direct suit and that the Brenners are permitted to proceed against him as a third party under section 22-3-2-13.
II. Chavez Real Estate
A. Employer-Employee Relationship
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Inasmuch as Chavez Real Estate argues that Lora was employed by both it and All Steel, under the WCA, it is possible for an employee to simultaneously have two employers. See I.C. § 22-3-3-31. For purposes of the WCA, an employee is every person, including a minor, in the service of another, under any contract of hire or apprenticeship, written or implied, except one whose employment is both casual and not in the usual course of the trade, business, occupation, or profession of the employer. I.C. § 22-3-6-1(b). In addition, this court uses the seven-factor test set forth by our supreme court in Hale v. Kemp, 579 N.E.2d 63 (Ind. 1991), to determine if an employer-employee relationship has been established. See Jennings, 832 N.E.2d at 1050-51 (applying the Hale factors). The Hale factors are:
(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.
Id.
Here, there was no evidence contained in the relevant pleadings as to any of these factors which would establish that Lora was also employed by Chavez Real Estate. We conclude that Chavez Real Estate did not carry its burden to show that it was shielded from suit by the exclusive remedy provision of the WCA.
B. WCA Claim as Co-requisite to Third-Party Suit
Lastly, in what appears to be a novel legal argument, Chavez Real Estate contends that the Brenners were required to pursue a WCA claim against her employer “in concert” with any third-party suit. (Chavez Real Estate’s Br. p. 15). …
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As noted above, section 22-3-2-13, authorizes an employee to pursue a direct suit against a third-party tortfeasor. It also contains elaborate subrogation procedures applicable in the event that an employer or its insurance carrier has paid for or is liable for payment for an injury. Neither party directs us to any express language in the statute that supports its position, and our examination of the WCA as a whole, and section 22-3-2-13 in particular, does not reveal that the statute has any express provisions on the subject of whether an employee must pursue a WCA claim against her employer prior to bringing suit against a third party.
Neither the Brenners nor Chavez Real Estate argues that section 22-3-2-13 is ambiguous. However, we find that section 22-3-2-13’s provision that an employee may bring suit against a third-party tortfeasor “[w]henever an injury or death, for which compensation is payable under chapters 2 through 6 of this article, shall have been sustained” is ambiguous… Given the lack of express terms in the statute on the subject, the ambiguity present in the statute’s wording, and our obligation to construe the WCA strictly against limitations on a claimant’s right to bring suit, we hold that an employee is not required to file a WCA claim against her employer prior to pursuing litigation against a third-party tortfeasor. As such, the Brenners were not precluded from initiating suit against Chavez Real Estate by their failure to first file a WCA claim against All Steel.
Conclusion
Based on the foregoing, we conclude that Ignacio and Chavez Real Estate failed to established lack of subject matter jurisdiction, and, therefore, the trial court improperly dismissed the Brenners’ claims against Ignacio and Chavez Real Estate.
Reversed and remanded for further proceedings.
Bailey, J. and Pyle, J. concur