United States District Court, N.D. Indiana, Hammond Division
MEMBER SELECT INSURANCE COMPANY AAA a/s/o MICHAEL AND JUDY BOOMSMA, Plaintiff,
PENNINGA SALES AND SERVICE, INC., Defendant.
OPINION AND ORDER
T. MOODY JUDGE
matter is before the court on defendant's motion for
summary judgment. (DE # 65.) For the reasons stated below,
the motion will be granted.
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.)
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.)
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.)
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.
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
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).
Statue of Limitations
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
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 ...