Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Member Select Insurance Co. v. Penninga Sales and Service, Inc.

United States District Court, N.D. Indiana, Hammond Division

December 11, 2017

MEMBER SELECT INSURANCE COMPANY AAA a/s/o MICHAEL AND JUDY BOOMSMA, Plaintiff,
v.
PENNINGA SALES AND SERVICE, INC., Defendant.

          OPINION AND ORDER

          JAMES T. MOODY JUDGE

         This matter is before the court on defendant's motion for summary judgment. (DE # 65.) For the reasons stated below, the motion will be granted.

         I. BACKGROUND

         Plaintiff Member Select Insurance Company is acting as subrogee to Michael and Judith Boomsma (the “Boomsmas”). (DE # 43 ¶ 3.) Plaintiff provided insurance coverage to the Boomsmas for their home and their 2011 GMC Terrain-SLE. (Id.) Plaintiff alleges that, on September 1, 2014, a fire started in the Boomsmas' garage, damaging their home and the 2011 GMC Terrain-SLE. (Id. ¶¶ 20-21.) The fire allegedly originated from the Boomsmas' Cub Cadet LT1042 Tractor (the “tractor”), which was also parked in the garage. (Id. ¶¶ 5, 20-21.) The parties agree that defendant Penninga Sales and Services, Inc. (“Penninga”), performed maintenance on the tractor on June 26, 2013. (DE ## 66 at 9; 70 at 2.)

         Based on this series of events, plaintiff filed a state court complaint on August 26, 2016, in the Circuit Court for Lake County, Indiana. (DE # 1 ¶ 1.) That complaint contained claims against Cub Cadet LLC, Kohler Co., and Don Bales, Inc: parties who allegedly designed or serviced portions of the tractor. (See DE # 3.) The case was removed to this court on October 7, 2016. (See DE # 1.)

         On November 9, 2016, plaintiff moved for leave to file its first amended complaint. (DE # 20.) The motion was granted in part on February 13, 2017 (DE # 42), allowing plaintiff to file an amended complaint, which it did on February 23, 2017 (DE # 43). The amended complaint introduced a claim against Penninga for negligence. (DE # 43 at 17.) Penninga asserts that it first received notice of the suit on March 9, 2017, the date it was served. (DE # 66 at 4.)

         On April 24, 2017, Penninga filed a motion for summary judgment. (DE # 65.) At the time, only limited written discovery had been completed. (DE # 70 at 2.) Since then, all defendants other than Penninga have been dismissed from the case. (See DE ## 43, 72, 76.) Plaintiff has responded to the motion for summary judgment (DE # 70), and Penninga has filed a reply brief in support of the motion (DE # 71). Thus, the motion is now ripe for ruling.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 56 requires the entry of summary judgment, after adequate time for discovery, against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[S]ummary judgment is appropriate-in fact, is mandated-where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (internal citations and quotation marks omitted).

         The moving party bears the initial burden of demonstrating that these requirements have been met. Carmichael v. Village of Palatine, Ill., 605 F.3d 451, 460 (7th Cir. 2010). “[T]he burden on the moving party may be discharged by ‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325. Once the moving party has met its burden, the non-moving party must identify specific facts establishing that there is a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003) (citing Celotex, 477 U.S. at 324). In doing so, the non-moving party cannot rest on the pleadings alone, but must present fresh proof in support of its position. Anderson, 477 U.S. at 248; Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). In viewing the facts presented on a motion for summary judgment, the court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Chmiel v. JC Penney Life Ins. Co., 158 F.3d 966 (7th Cir. 1998).

         III. DISCUSSION

         A. Statue of Limitations

         In its motion, Penninga argues that summary judgment is appropriate in its favor because the statute of limitations expired before plaintiff filed suit against it. (DE # 66 at 2.) Indiana Code § 34-11-2-4 sets forth a two-year statute of limitations period for negligence claims for injury to personal property. The parties agree that this two-year statute of limitations period applies to plaintiff's claim against Penninga. (See DE ## 66 at 6; 70 at 5.)

         Plaintiff asserts that its cause of action accrued on September 1, 2014: the date of the fire. (DE # 70 at 5-6.) While Penninga contends that the cause of action may have accrued earlier, it agrees with plaintiff that it could not have accrued any later than September 1, 2014. (DE # 66 at 9-10.) Thus, the parties agree that the two-year statute of limitations period had expired by September 1, 2016. (DE ## 66 at 10; 70 at 6.) Although plaintiff filed its initial complaint before that date, the claim against Penninga was not raised until after that date, when plaintiff filed its motion ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.