Kennedy Tank & Mfg. Co., Inc., Appellant-Defendant, Third-Party Plaintiff,
Emmert Industrial Corporation d/b/a AND Hemlock Semiconductor Operations LLC and Hemlock Semiconductor, LLC, Appellants, Third-Party Defendants, Emmert International, Appellee-Plaintiff
from the Marion Superior Court Civil Division 1, No.
49D01-1501-CT-2052 The Honorable Heather A. Welch, Judge
Petition to Transfer from the Indiana Court of Appeals, No.
Attorneys for Appellant Kennedy Tank & Mfg. Co., Inc.
Craig J. Helmreich Brandon K. Wiseman Scopelitis, Garvin,
Light, Hanson & Feary, P.C.
Attorneys for Appellee John R. Maley Peter J. Rusthoven T.
Joseph Wendt Barnes & Thornburg LLP
Attorneys for Appellants Hemlock Semiconductor Operations LLC
and Hemlock Semiconductor, LLC A. Richard M. Blaiklock
Charles R. Whybrew Edward D. Thomas Lewis Wagner, LLP
Emmert Industrial Corporation ("Emmert")
successfully transported an enormous process tower vessel
from Indiana to Tennessee, the vessel's
manufacturer-Kennedy Tank & Manufacturing Company
("Kennedy")-refused to pay nearly $700, 000 in
unforeseen transportation expenses. Emmert attempted to
collect, but Kennedy still had not paid by the time a federal
statute of limitations expired. Emmert eventually sued for
breach of contract and unjust enrichment, and Kennedy raised
the federal statute of limitations as an affirmative defense,
arguing it preempts Indiana's longer limitations period.
On this issue of first impression, we disagree with Kennedy
and hold that Indiana's ten-year statute of limitations
is not preempted. Emmert's collection claim may therefore
and Procedural History
needed a process tower vessel transported from its
headquarters in Indianapolis, Indiana, to Hemlock
Semiconductor's ("Hemlock") location in
Clarksville, Tennessee. The vessel was massive-about 280 feet
long, 18 feet wide, and 16 feet tall, and weighing about 360,
000 pounds. Kennedy contracted with Emmert, an Oregon-based
heavy-haul transporter, to get it to Clarksville. Their
contract-which specified it should be interpreted under
Indiana law-called for Kennedy to pay $197, 650.00 plus
additional unforeseen costs.
those additional unforeseen costs piled up. The I-64 bridge
between Indiana and Kentucky unexpectedly closed, requiring
an alternate route. This led to additional route surveys and
permit applications in Indiana, Illinois, Missouri, and
Tennessee. Altogether, construction delays, road closures,
permit applications, safety escorts, and bureaucratic delays
cost Emmert an additional $691, 301.03. Despite these
troubles, Emmert delivered the vessel on November 11, 2011.
then tried to collect the additional costs from Kennedy. They
discussed the dispute through January 2013, then considered
arbitration from June to August 2014. But, in September 2014,
Kennedy refused to pay any additional charges, claiming to
owe nothing because of the federal eighteen-month statute of
limitations in 49 U.S.C. section 14705(a). Emmert then sued,
alleging breach of contract and, in the alternative, unjust
moved to dismiss Emmert's complaint under Indiana Trial
Rules 12(B)(1) and 12(B)(6), relying on the eighteen-month
federal statute of limitations. Emmert responded that
dismissal was inappropriate because the federal statute did
not preempt Indiana's ten-year limitations period in
Indiana Code section 34-11-2-11. Emmert also claimed that the
parties' settlement discussions equitably estopped
Kennedy from asserting the federal statute of limitations.
The trial court denied the motion to dismiss, finding no
the denial of its motion, Kennedy brought Hemlock into the
case-alleging Hemlock's responsibility for any additional
charges-and filed this interlocutory appeal. The Court of
Appeals reversed the trial court, finding that Indiana's
statute of limitations was preempted, Kennedy Tank &
Mfg. Co. v. Emmert Indus. Corp., 53 N.E.3d 505, 509-11
(Ind.Ct.App. 2016), and that Emmert waived the equitable
estoppel issue on appeal, id. at 506 n.2. Emmert
sought transfer, which we granted-thus vacating the Court of
Appeals opinion. Ind. Appellate Rule 58(A).
affirm the trial court, agreeing that Indiana's statute
of limitations is not preempted.
review the denial of Kennedy's motion to dismiss de novo.
Teaching Our Posterity Success, Inc. v. Ind. Dept. of
Educ., 20 N.E.3d 149, 151 (Ind. 2014). To determine if
this denial was appropriate, we must first determine whether
Indiana's statute of limitations is preempted-a question
of law, Hardy v. Hardy, 963 N.E.2d 470, 473 (Ind.
2012), abrogated on other grounds by Hillman v.
Maretta, 133 S.Ct. 1943 (2013), that we also review de
novo, see Clippinger v. State, 54 N.E.3d 986, 988
analysis begins with a presumption against preemption, which
Kennedy and Hemlock bear the burden to overcome. Yet here,
Congress has provided no indication that it intended to
impose a uniform national statute of limitations, and breach
of contract collection actions are not an area of federal
regulation. Furthermore, other jurisdictions addressing this
issue provide little guidance and do not compel a different
result. Kennedy and Hemlock thus ...