Angela Brewer, Individually and as Personal Representative of the Estate of Rickey A. Brewer, Deceased, Appellants,
PACCAR, Inc. d/b/a PETERBILT MOTORS CO., Appellee.
from the Morgan Circuit Court The Honorable Matthew G.
Hanson, Judge Trial Court Cause No. 55C01-1605-CT-691
Attorney for Appellant John P. Daly, Jr. Jared Harts Golitko
& Daly, P.C. Indianapolis, Indiana
Attorneys for Appellee Jeffrey J. Mortier Maggie L. Smith
Blake N. Shelby Frost Brown Todd, LLC Indianapolis, Indiana
Angela Brewer, individually and as personal representative of
the Estate of Rickey Brewer, appeals the grant of summary
judgment in favor of PACCAR, Inc., d/b/a Peterbilt Motors
Company ("PACCAR"). She also appeals the denial of
her motion for partial summary judgment. We reverse and
The primary issue before us is whether, as a matter of law,
PACCAR cannot be held liable for providing parts of a
semi-tractor that lacked allegedly necessary safety features,
where the semi-tractor ultimately was assembled by another
company and the semi-tractor caused Rickey's death.
W&W Transport ("W&W") is an Ohio-based
trucking company that owns and operates a number of
semi-tractors and trailers. Rather than purchase whole,
newly-constructed semi-tractors, W&W often elects instead
to assemble its own vehicles. It does so by combining
pre-existing engines, transmissions, and exhaust systems with
a "glider kit" manufactured by PACCAR. A glider kit
generally consists of a semi-tractor cab and chassis but no
powertrain. PACCAR also constructs entirely new
semi-tractors, complete with engines and transmissions.
In February 2015, W&W ordered a Peterbilt (PACCAR) glider
kit from a Peterbilt dealer in Ohio, using specifications
similar to other glider kits W&W had purchased in the
past. PACCAR then constructed the glider kit according to
those specifications. This glider kit consisted of a cab,
chassis, wiring, drive axles, suspension system, and partial
braking and steering systems. The cab did not have a rear
window; W&W could have requested PACCAR include such a
window as an optional feature but it was not a standard
feature. W&W subsequently added a "headache
rack" to the rear of the cab, which is a bulkhead
intended to prevent any cargo behind the cab from crashing
into the cab in the event of an accident. PACCAR contends
this "headache rack" would have obscured a rear
window in the cab if one had been installed. The glider kit
also did not come with a backup alarm; again, W&W could
have ordered such an alarm as an optional feature, but it was
not standard on PACCAR glider kits. W&W did request that
the glider kit have wiring to install a beacon/strobe light,
but it ultimately did not install such a light when it
assembled the semi-tractor. PACCAR did not offer rearview
cameras as either a standard or optional feature on its
glider kits. Such cameras could have been installed
after-market if a customer ordered a "SmartNav"
dash screen display from PACCAR, but the "SmartNav"
system was not compatible with the older engine W&W
intended to use with the glider kit that it ordered. The
glider kit also did not come with any warning labels
regarding the danger of backing up the semi-tractor.
When PACCAR delivered the glider kit to W&W, it also sent
a standard "Information Letter, " explaining that
the glider kit was not a complete motor vehicle and that
whoever added a powertrain to the glider kit was
"responsible for understanding and ensuring the
completed vehicle is in compliance with regulations regarding
certification, VIN assignment, and registration before
placing the vehicle in service." App. Vol. II p. 168.
The letter also stated that the glider kit was in conformance
with certain federal motor vehicle safety standards,
including those governing rearview mirrors. It also stated
that the glider kit was not in conformance with certain other
safety standards and that the final vehicle assembler was
responsible for ensuring compliance with those standards.
None of the mentioned standards appear to govern the safety
of backing up a semi-tractor without a trailer attached.
W&W combined the glider kit with an engine, transmission,
and exhaust system. The engine and transmission had been
salvaged from an older semi-tractor. W&W then obtained a
certificate of title for the semi-tractor from the Ohio State
Highway Patrol so it could be placed into operation.
On March 2, 2016, Rickey was working for his employer,
Chicago Bridge & Iron, as a construction foreman at an
Indianapolis Power & Light ("IPL") plant that
was under construction in Martinsville. W&W employee
Raymond Miller was onsite making a delivery, operating the
semi-tractor W&W had constructed using the PACCAR glider
kit. Rickey was standing behind the semi-tractor, which did
not have a trailer attached at the time, when Miller began to
back up. Miller did not see Rickey, and Rickey was pinned
between the semi-tractor and a detached trailer, killing him.
Miller later stated that the semi-tractor had a forty-foot
blind spot behind it. After the accident, W&W began
installing backup alarms on all its semi-tractors and was
researching how to install rearview cameras on them as well.
Angela, Rickey's widow, sued IPL, W&W, Miller, and
PACCAR for wrongful death. She subsequently reached
settlements with W&W and Miller, and they were dismissed
from the case. IPL also was granted summary judgment without
opposition from Angela, leaving PACCAR as the only remaining
defendant. The complaint as to PACCAR alleged that the glider
kit it provided W&W was unreasonably dangerous and
defective because it lacked safety features for backing up
the completed semi-tractor.
PACCAR moved for summary judgment, arguing that it did not
manufacture the semi-tractor and that the component part or
parts it made-the glider kit- was not defective or
unreasonably dangerous. In response, Angela designated a
report prepared by and parts of a deposition given by Bryan
Bloch, an expert in motor vehicle safety. Bloch opined that
the Peterbilt 389 model manufactured by PACCAR was defective
in several respects: for not having as standard features a
backup alarm, a rearview camera, a better mirror system,
flashing backup lights, and warning labels regarding the
dangers of backing up the semi-tractor. Moreover, Bloch
believed that the presence of these safety features would
have prevented Rickey's death. Angela also cross-moved
for partial summary judgment on the issue of whether PACCAR
owed a duty to Rickey as a bystander and not as the ultimate
purchaser or consumer of the glider kit.
On September 11, 2017, the trial court granted PACCAR's
motion for summary judgment and denied Angela's motion
for partial summary judgment. On September 15, 2017, Angela
filed a motion to correct error, along with a boilerplate
order for the trial court to sign to set a hearing on the
motion. Instead, the trial court stamped this order
"DENIED" on the same day it was filed. App. Vol. II
p. 19. The trial court did not enter a separate order denying
the motion to correct error, and the CCS only states that it
issued an "Order Denying . . . Setting Hearing
Date." Id. at 15. Angela filed a notice of
appeal on September 20, 2017. On September 28, 2017, the
trial court clerk filed its notice of completion of the
clerk's record for Angela's appeal. On September 29,
2017, PACCAR filed a motion with the trial court reserving
its right to file a response to Angela's motion to
correct error should it become necessary in the future. The
case is now before this court for decision.
Before turning to the merits, we note a procedural issue that
PACCAR hints at but neither party explores. That is, it is
possible that Angela's notice of appeal was prematurely
filed. PACCAR suggests that the trial court's September
15, 2017 order only denied Angela's request for a hearing
on her motion to correct error and was not a ruling on the
merits of that motion; the trial court never clarified
whether its September 15, 2017 order was intended to be a
final ruling on the motion to correct error. The time period
for a deemed denial of the motion to correct error had not
yet passed when Angela filed her notice of appeal on
September 20, 2017.
Our supreme court has made clear that an appellate court
"is not deprived of jurisdiction if the notice is
untimely-meaning belated or premature." In re D.J.
v. Indiana Dep't of Child Servs., 68 N.E.3d 574, 578
(Ind. 2017). The only two requirements for appellate
jurisdiction are "(i) the trial court must have entered
an appealable order, and (ii) the trial clerk must have
entered the notice of completion of clerk's record on the
CCS." Both requirements have been met here. An appellant
who files a premature notice of appeal technically forfeits
his or her right to appeal and it would not be erroneous to
dismiss the appeal, but this court "has jurisdiction to
disregard the forfeiture and resolve the merits."
Id. at 579. At oral argument, counsel for PACCAR
requested that this court resolve this case on the merits. In
light of that request, we will do so.
We review a grant of summary judgment de novo. Hughley v.
State, 15 N.E.3d 1000, 1003 (Ind. 2014). "Drawing
all reasonable inferences in favor of . . . the non-moving
parties, summary judgment is appropriate 'if the
designated evidentiary matter shows that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.'"
Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009)
(quoting T.R. 56(C)). "A fact is 'material' if
its resolution would affect the outcome of the case, and an
issue is 'genuine' if a trier of fact is required to
resolve the parties' differing accounts of the truth, or
if the undisputed material facts support conflicting
reasonable inferences." Id.
A summary judgment movant bears the initial burden of
demonstrating the lack of any genuine issue of fact on a
dispositive issue; if the movant does so, the nonmovant then
must come forward with contrary evidence showing an issue for
trial. Hughley, 15 N.E.3d at 1003. This court must
carefully assess the grant of summary judgment in order to
ensure that Angela was not improperly denied her day in
court. See id. Although summary judgment is
desirable for disposing of cases where only legal issues
exist, it is not the same as a summary trial and it should
not be granted even if it appears the nonmovant is unlikely
to prevail at trial. Id. "Indiana consciously
errs on the side of letting marginal cases proceed to trial
on the merits, rather than risk short-circuiting meritorious
claims." Id. "Summary judgment should not
be granted when it is necessary to weigh the evidence."
Bochnowski v. Peoples Fed. Sav. & Loan
Ass'n, 571 N.E.2d 282, 285 (Ind. 1991).
The Indiana Product Liability Act ("IPLA") governs
all actions brought against a manufacturer or seller of a
product for physical harm caused by the product,
"regardless of the substantive legal theory or theories
upon which the action is brought." Ind. Code
§§ 34-20-1-1; 34-6-2-115. A plaintiff in a strict
product liability case must prove: "(1) the product was
defective and unreasonably dangerous; (2) the defective
condition existed at the time the product left the
defendant's control; and (3) the defective condition was
the proximate cause of the plaintiff's injuries."
Ford Motor Co. v. Rushford, 868 N.E.2d 806, 810
However, Angela does not claim the glider kit was
manufactured in a defective way-i.e., it was constructed
exactly as it was designed and intended to be constructed.
Rather, Angela's claim is that the glider kit was
defectively designed because it lacked a number of safety
features. In such a case, the IPLA specifies that a
negligence standard applies, not a strict liability standard.
TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d
201, 209 n.2 (Ind. 2010). Specifically,
in an action based on an alleged design defect in the product
or based on an alleged failure to provide adequate warnings
or instructions regarding the use of the product, the party
making the claim must establish that the manufacturer or
seller failed to exercise reasonable care under the