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Brewer v. Paccar, Inc.

Court of Appeals of Indiana

March 27, 2018

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.

          Appeal 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

          Barnes, Judge.

         Case Summary

         [¶1] 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 remand.


         [¶2] 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.


         [¶3] 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.

         [¶4] 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.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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.

         [¶9] 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.[1] 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.

         [¶10] 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.


         [¶11] 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.[2]

         [¶12] 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.

         I. Summary Judgment

         [¶13] 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.

         [¶14] 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).

         [¶15] 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 (Ind. 2007).

         [¶16] 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 ...

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