Florian v. Gatx Rail Corp.

• Decision Date: 19 July 2010
• Docket Number: No. 91A04-1002-PL-77.,91A04-1002-PL-77.
• Citation: 930 N.E.2d 1190
• Parties: Isaac FLORIAN and Jeffrey Florian, as Limited Guardian of Isaac Florian, an adult, Appellants,v.GATX RAIL CORPORATION, Appellee.
• Court: Indiana Appellate Court

930 N.E.2d 1190

Isaac FLORIAN and Jeffrey Florian, as Limited Guardian of Isaac Florian, an adult, Appellants,v.GATX RAIL CORPORATION, Appellee.

No. 91A04-1002-PL-77.

Court of Appeals of Indiana.

July 19, 2010.

COPYRIGHT MATERIAL OMITTED

Daniel J. Harrigan, Bayliff, Harrigan, Cord, Maugans & Cox, P.C., Kokomo, IN, William T. Sammons, Randle & Sammons, Rensselaer, IN, Attorneys for Appellant.

Thom W. Kramer, Buoscio, Pera & Kramer, Merrillville, IN, Attorney for Appellee.

OPINION

MATHIAS, Judge.

Isaac Florian and Jeffrey Florian, as the limited guardian of Isaac Florian, (“Florian”) appeal the White Circuit Court's entry of summary judgment in favor of defendant GATX Rail Corporation (“GATX”) in an action resulting from an accident involving a motor vehicle operated by Florian. On appeal, Florian presents six issues, which we renumber and restate as the following:

I. Whether the trial court erred in concluding that GATX was in compliance with the applicable federal safety regulations;

II. Whether the trial court erred in concluding that Florian's common-law negligence claim was preempted by federal law; and

III. Whether the trial court erred in concluding that Florian's product liability claim is precluded by the applicable statute of repose.

We affirm.

Facts and Procedural History

On the evening of January 6, 2006, Florian was driving south on County Road 1100 West near the town of Wolcott in White County, Indiana. This road intersected a railroad track at a single rail grade crossing. At the same time, a thirty-car train operated by the Toledo, Peoria, & Western Railway Co. (“TP & W”) was moving slowly across the tracks at the crossing. Trains regularly backed over the railroad crossing while conducting switching operations to pick up and drop off cars on a side track located to the west of County Road 1100 West. The TP & W train was stopped or had slowed down to prepare for a switching operation on the night in question. Included in the TP & W train was a tank car that was manufactured, owned, and maintained by GATX. The GATX tank car was manufactured in 1975 and was painted black. Florian's vehicle collided with the GATX tank car, trapping Florian underneath the car, resulting in serious injuries.

On November 21, 2007, Florian filed a complaint against TP & W, certain TP & W employees, and GATX. This complaint alleged that GATX was negligent: (1) for failing to apply retro-reflective sheeting to its tank car “per 49 C.F.R. 224.1 through 224.111,” and (2) for otherwise “fail[ing] to enhance the detectability of its tank car by motorists when approaching a grade crossing at night.” Appellant's App. p. 60.

On September 19, 2008, GATX filed a motion for summary judgment, to which Florian responded on November 3, 2008. A hearing on this motion was held on December 9, 2008. Florian then settled his claims against TP & W and its employees, and the claims against these defendants were subsequently dismissed with prejudice. On January 29, 2009, after Florian had settled his claims against TP & W and its employees, he filed an amended complaint naming GATX as the sole defendant and adding an additional claim of products liability. ¹ On February 17, 2009, the trial court denied GATX's motion for summary judgment.

On July 20, 2009, GATX filed a second motion for summary judgment, to which Florian responded on July 23, 2008. After various filings by both parties, the trial court eventually held a hearing on the second motion for summary judgment on September 4, 2009.

On December 17, 2009, GATX filed a praecipe to withdraw the case from the trial court judge, claiming that the judge had not promptly ruled on its second motion for summary judgment.² The clerk of the White Circuit Court then certified GATX's praecipe to the Indiana Supreme Court. However, the trial court had already issued an order on December 16, 2009, granting GATX's second motion for summary judgment, but the order was not filed with the trial court clerk until December 21, 2009. When GATX learned of the ruling in its favor, it filed a motion to withdraw its praecipe. Florian filed an objection to the withdrawal and a motion to correct error on December 23, 2009. On January 21, 2010, our supreme court issued an order remanding jurisdiction of the case to the trial court judge. And on February 2, 2010, the trial court judge issued an order resuming jurisdiction, confirming its earlier grant of summary judgment in favor of GATX, and denying Florian's motion to correct error. Florian now appeals.

Summary Judgment

As set forth by our supreme court in Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184 (Ind.2010):

A party is entitled to summary judgment upon demonstrating the absence of any genuine issue of fact as to a determinative issue unless the non-moving party comes forward with contrary evidence showing an issue of fact for trial. An appellate court reviewing a trial court summary judgment ruling likewise construes all facts and reasonable inferences in favor of the non-moving party and determines whether the moving party has shown from the designated evidentiary matter that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. But a de novo standard of review applies where the dispute is one of law rather than fact.

Id. at 185-86 (citations omitted).

I. GATX's Compliance With Federal Regulations

The trial court granted summary judgment in favor of GATX on Florian's claim that GATX was negligent because it failed to apply retro-reflective sheeting to its tank car pursuant to federal regulations. The federal regulations at issue are found in 49 C.F.R. part 224. Section 107 of this part provides in relevant part:

(a) Railroad freight cars. All railroad freight cars subject to this part must be equipped with retroreflective sheeting conforming to this part by November 28, 2015. If a car already has reflective material applied that does not meet the standards of this part, it is not necessary to remove the material unless its placement interferes with the placement of the sheeting required by this part.

(1) New cars. Retroreflective sheeting conforming to this part must be applied to all cars constructed after January 26, 2006, before the cars are placed in service.

(2) Existing cars without retroreflective sheeting. (i) If, as of October 28, 2005, a car subject to this part is not equipped on each side with at least one square foot of retroreflective sheeting as specified in paragraph (a)(3) of this section, retroreflective sheeting conforming to this part must be applied to the car at the earliest of the following two occasions occurring after November 28, 2005 or in accordance with paragraph (a)(2)(ii) of this section:

(A) When the car is repainted or rebuilt; or

(B) Within nine months (270 calendar days) after the car first undergoes a single car air brake test as prescribed by 49 CFR 232.305.

(ii) A freight rolling stock owner may elect not to follow the schedule in paragraph (a)(2)(i) of this section if, not later than January 26, 2006 the freight rolling stock owner submits to FRA a completed Reflectorization Implementation Compliance Report certifying that the cars in the owner's fleet subject to this part will be equipped with retroreflective sheeting as required by this part in accordance with the schedule specified in Table 3 of this section....

                -------
                |Table 3 Of Subpart B-Alternative Schedule For Application Of Retroreflective |
                |Material To Freight Cars Per § 224.107(A)(2)(ii)                             |
                -------
                

                ---------
                |(A)|(B)|
                ---------
                

                --------------------
                |                                |(percent)|
                |--------|---------|
                |November 28, 2007...............|20       |
                |--------|---------|
                |November 28, 2008...............|30       |
                |--------|---------|
                |November 28, 2009...............|40       |
                |--------|---------|
                |November 28, 2010...............|50       |
                |--------|---------|
                |November 28, 2011...............|60       |
                |--------|---------|
                |November 28, 2012...............|70       |
                |--------|---------|
                |November 28, 2013...............|80       |
                |--------|---------|
                |November 28, 2014...............|90       |
                |--------|---------|
                |November 28, 2015...............|100      |
                --------------------
                

49 C.F.R. § 224.107 (footnote omitted).

Thus, the Federal Railroad Administration has deemed that all railroad freight cars must be equipped with retro-reflective sheeting by November 28, 2015. With regard to new cars, the plan is simple: all cars constructed after January 26, 2006 must have retro-reflective sheeting applied before the cars are placed into service. However, with regard to existing freight cars, the owners of the cars have been given two options for applying the retro-reflective sheeting over time. The first option is set forth in paragraph (a)(2)(i), under which cars must have retro-reflective sheeting applied when the car is (A) repainted or rebuilt, or (B) within 270 days after the car undergoes a single car air brake test, whichever occurs first. The second option is set forth in paragraph (a)(2)(ii), under which the car owner may opt not to follow the first option and instead follow the schedule set forth in the table above.

Florian's complaint alleged that GATX was negligent for failing to comply with this federal regulation because GATX had not yet actually placed any retro-reflective sheeting on the tank car that Florian hit. We agree with the trial court that GATX was entitled to summary judgment with regard to this claim.

On January 26, 2006, GATX elected to use the second option provided for implementation, i.e., twenty percent of its cars were to have the retro-reflective sheeting attached by November 28, 2007, with one-hundred percent by November 28, 2015. On that date, GATX submitted to the FRA its reflectorization implementation compliance report, which was updated on November 28, 2007. This compliance report shows that, as of November 28, 2007, GATX had...