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Tutino v. Rohr-Indy Motors Inc.

Court of Appeals of Indiana

June 18, 2019

Joan Tutino, Appellant-Plaintiff,
Rohr-Indy Motors Inc d/b/a Bob Rohrman's Indy Honda and Bob Rohrman Honda Dealership, Service Department d/b/a Bob Rohrman Honda Service Department, Appellees-Defendants.

          Appeal from the Marion Superior Court The Honorable John F. Hanley, Judge Trial Court Cause No. 49D11-1707-CT-26766

          ATTORNEY FOR APPELLANT Irving Marshall Pinkus Pinkus & Pinkus Indianapolis, Indiana

          ATTORNEYS FOR APPELLEES Maggie L. Smith Randall R. Riggs Jeffrey J. Mortier Blake N. Shelby Frost Brown Todd LLC Indianapolis, Indiana

          ROBB, JUDGE.

         Case Summary and Issue

         [¶1] In January 2015, Joan Tutino's 2004 Honda CR-V was serviced by Bob Rohrman Indy Honda for a recall related to the vehicle's airbag. In July 2015, Tutino was injured in a four-car crash in which her driver's side airbag failed to deploy. Tutino filed a complaint for damages against Rohr-Motors, Inc. d/b/a Bob Rohrman's Indy Honda, and Bob Rohrman Honda Dealership Service Department d/b/a Bob Rohrman Honda Service Department (collectively, "Rohrman") alleging that Rohrman negligently serviced her vehicle resulting in the airbag failing to deploy and that Rohrman failed to notify her the airbag was defective prior to the accident. The trial court granted Rohrman's motion for summary judgment. Tutino now appeals the trial court's grant of Rohrman's motion for summary judgment, raising the following issue for our review: whether the designated evidence created a genuine issue of material fact that precluded judgment as a matter of law for Rohrman. Concluding any issues of fact are not material to the resolution of this case and that Rohrman was entitled to summary judgment, we affirm.

         Facts and Procedural History

         [¶2] In September 2014, Honda Motor Company by its United States agent American Honda Motor Co., Inc. (collectively, "American Honda"), issued a recall notice and service bulletin regarding airbags manufactured by Takata and installed as replacement parts in Honda vehicles.[1] The recall notice informed Honda owners of the following:

What is the reason for this notice?
Honda has decided that a defect related to motor vehicle safety exists in certain . . . 2002-2004 CR-V vehicles. In some vehicles, the driver's airbag inflator could produce excessive internal pressure. If an affected airbag deploys, the increased internal pressure may cause the inflator to rupture. Metal fragments could pass through the airbag cushion material possibly causing injury or fatality to vehicle occupants.
What should you do?
Call any authorized Honda dealer and make an appointment to have your vehicle inspected. The dealer will inspect and, if necessary, replace the driver's airbag inflator.

         Appellant's Appendix, Volume 2 at 175 (example of customer letter). The service bulletin informed authorized dealers that "[a] small number of airbag modules with defective inflators were sold as replacement parts to replace deployed or damaged airbags." Id. at 169 (Honda Service Bulletin 10-039 dated September 12, 2014). Authorized dealers were advised that "[a]ll the vehicles involved in this campaign require inspection. However, only a very small number of these vehicles require replacement of the airbag inflator compared to the large number of vehicles that will require an inspection." Id. at 170. The instructions were to first inspect the driver's airbag for unusual markings that might indicate it was the wrong airbag for the vehicle or that it was counterfeit. Finding none, the airbag was to be removed to determine whether the airbag was made by Takata or another manufacturer. If it was made by a manufacturer other than Takata, the airbag was not defective and was to be reinstalled. If the airbag was made by Takata, the airbag serial number and the vehicle identification number ("VIN") were to be entered into a database that would indicate whether the airbag was okay and could be reinstalled or whether it needed to be replaced. See id. at 170-72.

         [¶3] Upon receiving the recall notice for her 2004 CR-V in late 2014, Tutino looked online to find the nearest authorized Honda dealership and made an appointment with Rohrman to have her vehicle serviced for the recall. Douglas Michael Thayer, a master technician at Rohrman, completed the service on Tutino's CR-V on January 17, 2015. He removed the driver's airbag and entered the serial number into Honda's database. "The database indicated that the airbag was not subject to the recall and that it was to be reinstalled." Id. at 83. Thayer reinstalled the airbag, verifying that it was properly installed, and that the SRS warning light was not continuously displayed on the dashboard.[2] Tutino confirmed the SRS light was not abnormally illuminated at any time after the recall service. Tutino seemed to question whether Rohrman actually did any work on her vehicle; in her deposition, she testified that after approximately two hours, "I walked out there and saw my car sitting in the very same spot where they had put it in the back, and I thought . . . they would be - at least started on it by now." Id. at 103. Tutino asked someone in the service area when her car would be ready and was told it was done and given her keys. Tutino noted that when she took her car in, she was embarrassed because it had dust on the dashboard, but she had decided not to clean it off since it was going to be worked on. When she retrieved her car, "there was not even a single fingerprint mark on it, nothing. It just looked undisturbed." Id. at 104.

         [¶4] On July 14, 2015, Tutino was the second car in the left turn lane on southbound State Road 37 waiting to turn onto East Harding Street in Indianapolis. She was wearing her seat belt. Tutino was hit from behind "very hard" by a 2008 Ford Fusion, which pushed her car into the 2006 Chevy Cobalt in front of her "so hard" that the Cobalt was pushed into the intersection. Id. at 48. Tutino's driver's airbag did not deploy and her seat belt did not lock up. She suffered serious injuries as a result of the crash.

         [¶5] Approximately two weeks after this accident, Tutino received another notice of recall from American Honda that stated, "Even if your vehicle was previously repaired, your vehicle is still covered by this recall and will need to be repaired again." Id. at 178. The notice was related to a May 2015 update to Service Bulletin 10-039 that superseded previous service bulletins. The updated service bulletin indicated that the "inspection procedure for Takata driver's airbags was removed [from the previous bulletins] because all Takata driver's airbag inflators installed ...

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