Dague v. Piper Aircraft Corp., No. S 79-293.

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Writing for the CourtALLEN SHARP
Citation513 F. Supp. 19
Docket NumberNo. S 79-293.
Decision Date27 May 1980
PartiesKathy DAGUE, individually and as Special Administratrix of the Estate of John R. Dague, Deceased, Plaintiff, v. PIPER AIRCRAFT CORPORATION, Defendant.

513 F. Supp. 19

Kathy DAGUE, individually and as Special Administratrix of the Estate of John R. Dague, Deceased, Plaintiff,
v.
PIPER AIRCRAFT CORPORATION, Defendant.

No. S 79-293.

United States District Court, N. D. Indiana, South Bend Division.

May 27, 1980.


513 F. Supp. 20

Frank E. Tolbert, Logansport, Ind., John E. Doran, South Bend, Ind. for plaintiff.

Aribert L. Young, Indianapolis, Ind., Timothy W. Woods, South Bend, Ind., for defendant.

MEMORANDUM AND ORDER

ALLEN SHARP, District Judge.

The salient facts that are necessary to determine the defendant's Motion for Summary Judgment are simple and straightforward.

513 F. Supp. 21
The plaintiff's decedent was severely injured when a Piper Pawnee PA 25-235, serial number 25-3263 and FAA identification number N 7317Z crashed near Logansport, Indiana on July 7, 1978. As a direct result of injuries sustained in that crash John R. Dague died on September 5, 1978. This lawsuit was filed to recovery damages for his wrongful death by the administratrix of his estate on October 31, 1979. It is also undisputed that the manufacturer of the airplane above described was the defendant Piper Aircraft Corporation. The aircraft is alleged to be defective, which defect was the cause of the injuries sustained by John R. Dague. It is also undisputed that this aircraft was manufactured by Piper in the year 1965 and was placed in the stream of commerce by that manufacturer about the 26th day of March, 1965

I.

In its motion for summary judgment the defendant, Piper Aircraft Corporation, contends that this case is barred by Section 5 of the recently enacted Indiana Product Liability Act, IC 34-4-20A-5 (1979 Supp.) which provides:

"This section applies to all persons regardless of minority or legal disability. Notwithstanding IC 34-1-2-5, any product liability action must be commenced within two 2 years after the cause of action accrues or within ten 10 years after the delivery of the product to the initial user or consumer; except that, if the cause of action accrues more than eight 8 years but not more than ten 10 years after that initial delivery, the action may be commenced at any time within two 2 years after the cause of action accrues. IC 33-1-1.5-5, as added by Acts 1978, P.L. 141, § 28, p. 1298."

In this regard there is at present only one decided case which mentions this statute. In Amermac, Inc. v. Gordon, Ind.App., 394 N.E.2d 946 (1979), at page 948, there is footnote 4 which states:

"Although not deciding the issue, we note that Indiana's recently enacted Products Liability Act, Ind.Code (1978 Supp.) 33-1-1.5-1 to -8 (Acts 1978, P.L. 141, Sec. 28), may shed light upon the Legislature's intentions as to the applicable statute of limitations in these situations. First, although somewhat confusingly drafted, see Vargo, Survey of Recent Developments in Products Liability, 12 Ind.L.Rev. 227, 249 (1979), the Legislature clearly intended to place an absolute time limit on liability for a product's defects, including actions in negligence. Ind.Code (1978 Supp.) 33-1-1.5-1. This policy would be defeated by applying a tort limitation which would not begin to run until after an injury, no matter when that injury occurred. Second, the Legislature specifically differentiated between actions in tort (negligence and strict liability) and warranty actions. Ind.Code (1978 Supp.) 33-1-1.5-1. This, too, would seem to indicate that a contract statute of limitations would apply in actions for personal injuries due to a breach of implied warranty."

While that footnote is dicta in the Amermac case, it is of very considerable significance. It also cites approvingly the article authored by John S. Vargo and Jordan H. Leidman in 12 Ind.L.Rev. 227-250 (1979). Significantly, that article states:

"Reference to House Bill No. 1258 reveals language similar to the enacted bill, with the exception that the two limitation provisions are joined with the word `and' rather than `or.' Although the legislature in conference committee might have chosen a completely opposite course to that introduced in the House, such an analysis would find the clause following, `initial user or consumer,' to be mere surplusage. This clause states: `Except that, if the cause of action accrues more than eight (8) years but not more than ten (10) years after that initial delivery, the action may be commenced at any time within two (2) years after the cause of action accrues.' Unless the ten-year period was intended to be an outer cutoff, there would be no need to state again that the plaintiff has two years in which
513 F. Supp. 22
to bring his action if his injury occurs during the ninth or tenth year of the life of the product. The purpose of this clause is clearly to insure that all plaintiffs injured within ten years of delivery will, nevertheless, have a full two years to file a claim."

It is basic that all statutes should be read where possible to give effect to the intent of the legislature. In Loza v. State, 263 Ind. 124, 325 N.E.2d 173, 176 (1975), the Supreme Court of Indiana stated:

"This statute has not been previously interpreted by our courts, and our research discloses no interpretation of any similar statute by any sister state. We are controlled, therefore, by the express language of the statute itself and applicable rules of statutory construction, the objective of such rules being to determine and effect the intent of the Legislature. (citations omitted) However, in so doing, we are also required to prevent absurdity and hardship and to favor public convenience." (citation omitted)

In the same vein see Thompson v. Thompson, 259 Ind. 266, 286 N.E.2d 657 (1972); Allen County Department of Public Welfare v. Ball Memorial Hospital Ass'n., 253 Ind. 179, 252 N.E.2d 424 (1969); Town of Argos v. Ritz Craft Realty, Inc., 250 Ind. 562, 238 N.E.2d 14 (1968); and Combs v. Cook, 238 Ind. 392, 151 N.E.2d 144 (1958).

The issues involved with regard to the application of this particular statute of limitations and other related issues have been thoroughly and completely briefed by very able counsel on both sides and have been the subject of extensive oral argument which occurred on April 25, 1980 and supplement briefing since that time.

For convenience this Court is attaching hereto and incorporating herein as Appendix A the full text of the recently enacted Indiana Product Liability Act which became effective on the 1st day of June, 1978.

It is beyond dispute that the substantive law of Indiana applies to this case which is based on diversity of citizenship under Title 28, United States Code, Section 1332, and under the teaching of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). This includes any applicable statute of limitation. It is also beyond dispute that the statute of limitations can be raised appropriately under a Rule 56 Motion for Summary Judgment. See Horvath v. Davidson, 148 Ind.App. 203, 264 N.E.2d 328 (1970), and the cases therein cited.

In an action based on diversity jurisdiction a United States District Court is generally required to apply the substantive law, including the statute of limitations, of that state where that court sits. Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); Kalmich v. Bruno, 553 F.2d 549 (7th Cir. 1977), cert. den., 434 U.S. 940, 98 S.Ct. 432, 54 L.Ed.2d 300.

In examining the Indiana Product Liability Act and particularly Section 5 thereof, this Court is limited to the language of the Act itself. There have been presented to the Court certain minutes of certain meetings held by a select committee of the Indiana Legislative Counsel held at the request of the Indiana General Assembly. While these may be interesting they are not legitimate and bona fide legislative history materials. Generally, and unfortunately, the kind of legislative materials including the record of debates and committee reports which are generally available to this Court in regard to enactments by the Congress of the United States are not generally available with reference to enactments by the General Assembly of Indiana. Thus, the Court must look to the language of the total statute itself.

This Court is most familiar with the common law development of so-called products liability law in Indiana. See Cornette v. Searjeant Metal Products, Inc., 147 Ind. App. 46, 258 N.E.2d 652 (1970), and Perfection Paint & Color Co. v. Konduris, 147 Ind.App. 106, 258 N.E.2d 681 (1970).

Certainly the whole of the Indiana Product Liability Act should be examined in the light of the Indiana common law background in order to determine the basic legislative

513 F. Supp. 23
intent of the total enactment. It is certainly clear that the Indiana General Assembly intended more than a mere codification of prior products liability law in Indiana

The aircraft here in question had been undisputedly in the stream of commerce more than 13 years on July 7, 1978. The only reasonable interpretation that this Court can place on this statute is that the intended ten year period as applied to the facts of this case was intended to be an outer cutoff. A product liability claim does not exist if it did not arise within this ten year period.

The plaintiff's argument in brief deals extensively with the interpretation of the words "and" and "or". Interpreting the statute as the plaintiff here urges would require this Court to treat the last clause of Section 5 of the Indiana Product Liability Act as mere surplusage and to construe the law as not changing previous Indiana statutory and case law whatsoever. It was the clear intent of the Indiana General Assembly to limit in some particular way the effect and scope of the prior Indiana law. It is not for this Court to determine or judge whether that effort was wise. It is for this Court to be bound by that effort as long as this Court can determine the intent of the Indiana General Assembly. To interpret Section 5 as the...

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15 practice notes
  • Daily v. New Britain Mach. Co.
    • United States
    • Supreme Court of Connecticut
    • July 22, 1986
    ...e.g., Stutts v. Ford Motor Co., 574 F.Supp. 100, 104-105 (M.D.Tenn.1983) (applying Tennessee law); Dague v. Piper Aircraft Corporation, 513 F.Supp. 19, 25 (N.D.Ind.1980) (applying Indiana law); Purk v. Federal Press Co., 387 So.2d 354, 357-58 (Fla.1980); Costello v. Unarco Industries, Inc.,......
  • Hanson v. Williams County, No. 11066
    • United States
    • United States State Supreme Court of North Dakota
    • June 6, 1986
    ...1231, 104 S.Ct. 2690, 81 L.Ed.2d 884 (1984); Mathis v. Eli Lilly and Co., 719 F.2d 134 (6th Cir.1983); Dague v. Piper Aircraft Corp., 513 F.Supp. 19 (N.D.Ind.1980). Page 337 Applying the intermediate standard of review to 28-01.1-02 is justified under our state constitution because it is in......
  • UNITED BEV. CO. v. INDIANA ALCOHOLIC BEV. COM'N, No. S 82-476.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • June 21, 1983
    ...v. Elkhart General Hospital, 465 F.Supp. 421, 434 (N.D.Ind.1979), aff'd, 603 F.2d 646 (7th Cir. 1979), and Dague v. Piper Aircraft Corp., 513 F.Supp. 19, 28 (N.D.Ind.1980), aff'd., 654 F.2d 727 (7th Cir.1981). It is not for this court to subjectively rewrite the Alcoholic Beverage Regulatio......
  • Tolen v. AH Robins Co., Inc., No. L 81-72.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • September 13, 1983
    ...cites cases from foreign jurisdictions. However, this precise issue was addressed by this court in Dague v. Piper Aircraft Corporation, 513 F.Supp. 19 (N.D. Ind.1980), aff'd by order, 654 F.2d 727 (7th Cir.1981), applying Indiana law in a diversity case. The court ruled in Dague that Ind.Co......
  • Request a trial to view additional results
15 cases
  • Daily v. New Britain Mach. Co.
    • United States
    • Supreme Court of Connecticut
    • July 22, 1986
    ...e.g., Stutts v. Ford Motor Co., 574 F.Supp. 100, 104-105 (M.D.Tenn.1983) (applying Tennessee law); Dague v. Piper Aircraft Corporation, 513 F.Supp. 19, 25 (N.D.Ind.1980) (applying Indiana law); Purk v. Federal Press Co., 387 So.2d 354, 357-58 (Fla.1980); Costello v. Unarco Industries, Inc.,......
  • Hanson v. Williams County, No. 11066
    • United States
    • United States State Supreme Court of North Dakota
    • June 6, 1986
    ...1231, 104 S.Ct. 2690, 81 L.Ed.2d 884 (1984); Mathis v. Eli Lilly and Co., 719 F.2d 134 (6th Cir.1983); Dague v. Piper Aircraft Corp., 513 F.Supp. 19 (N.D.Ind.1980). Page 337 Applying the intermediate standard of review to 28-01.1-02 is justified under our state constitution because it is in......
  • UNITED BEV. CO. v. INDIANA ALCOHOLIC BEV. COM'N, No. S 82-476.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • June 21, 1983
    ...v. Elkhart General Hospital, 465 F.Supp. 421, 434 (N.D.Ind.1979), aff'd, 603 F.2d 646 (7th Cir. 1979), and Dague v. Piper Aircraft Corp., 513 F.Supp. 19, 28 (N.D.Ind.1980), aff'd., 654 F.2d 727 (7th Cir.1981). It is not for this court to subjectively rewrite the Alcoholic Beverage Regulatio......
  • Tolen v. AH Robins Co., Inc., No. L 81-72.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • September 13, 1983
    ...cites cases from foreign jurisdictions. However, this precise issue was addressed by this court in Dague v. Piper Aircraft Corporation, 513 F.Supp. 19 (N.D. Ind.1980), aff'd by order, 654 F.2d 727 (7th Cir.1981), applying Indiana law in a diversity case. The court ruled in Dague that Ind.Co......
  • Request a trial to view additional results

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