Grain Dealers Mut. Ins. Co. v. CHIEF INDUSTRIES, L 84-123.

• Court: United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
• Writing for the Court: Larry R. Fisher, Lafayette, Ind., Charles W. Ewing, Columbus, Ohio, for defendants
• Citation: 612 F. Supp. 1179
• Parties: GRAIN DEALERS MUTUAL INSURANCE COMPANY, INC., an Indiana corporation, as subrogee of Jasper County Farm Bureau Co-Operative Association, Inc., an Indiana corporation, Plaintiffs, v. CHIEF INDUSTRIES, INC., a Nebraska corporation, and Riggs Drying and Storage Equipment Company, a sole proprietorship (upon information and belief), located in Ohio, Defendants.
• Docket Number: No. L 84-123.,L 84-123.
• Decision Date: 13 July 1985

612 F. Supp. 1179

GRAIN DEALERS MUTUAL INSURANCE COMPANY, INC., an Indiana corporation, as subrogee of Jasper County Farm Bureau Co-Operative Association, Inc., an Indiana corporation, Plaintiffs,
v.
CHIEF INDUSTRIES, INC., a Nebraska corporation, and Riggs Drying and Storage Equipment Company, a sole proprietorship (upon information and belief), located in Ohio, Defendants.

No. L 84-123.

United States District Court, N.D. Indiana, Hammond Division.

July 13, 1985.

David B. McAfee, Michael W. Duffy, Chicago, Ill., William M. Bache, Lafayette, Ind., for plaintiffs.

Larry R. Fisher, Lafayette, Ind., Charles W. Ewing, Columbus, Ohio, for defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

I.

This cause is before the court on the motion for summary judgment of defendant, Chief Industries, Inc. (Chief Industries). Plaintiff, Grain Dealers Mutual Insurance Company, Inc., commenced this action by filing a complaint in the Lafayette Division of this court on August 31, 1984. The complaint alleges that on April 6, 1979, Chief Industries designed, manufactured, distributed and assembled large capacity, all-steel grain storage bins and tanks. Defendant, Riggs Drying and Storage Equipment Company (Riggs), was in the business of installation, construction, assembly and erection of such grain storage bins and tanks. In this case, Chief Industries manufactured, fabricated and assembled an all steel storage bin, designated as Model 18-20, on the premises of Jasper County Farm Bureau Co-Operative Association, Inc. in Fowler, Indiana. Riggs allegedly established, assembled, and/or erected the model 18-20 grain bin.

In this complaint, Chief Industries, is charged with the following negligent acts and omissions: (1) negligent design, fabrication, manufacture and/or assembly of the model 18-20 grain bin so that it was incapable of withstanding lateral wind loading under normal conditions to this area; (2) negligent design, fabrication manufacture and/or assembly of the anchoring system in the model 18-20 grain bin; (3) negligent preparation of the instructions for the erection, installation, and/or assembly of the model 18-20 grain bin; (4) negligent design, fabrication, manufacture and/or assembly of the model 18-20 grain bin roof to sidewall corrections; (5) negligent design, fabrication, manufacture and/or assembly

612 F. Supp. 1180

of the model 18-20 grain bin in whole as well as component parts in that it failed as a whole after erection and installation to comply with recommended and accepted engineering codes as well as accepted engineering principles as to lateral wind loadings; (6) negligent selection of materials of adequate strength for the model 18-20 grain bin; (7) negligent design, fabrication, manufacture and assembly of the roof to sidewall stiffners; (8) negligent selection of materials of adequate strength for the roof to sidewall connection bolts, nuts and washers, anchor bolts, nuts and washers and anchor angles and sidewall stiffness

It is further alleged that as a result of such negligence, the roof to sidewall connections and anchor system became detached causing the grain bin to become dislodged and deformed. This, in turn, caused damage to the connected loading and unloading augers and drying fans.

Chief Industries filed a motion for summary judgment on April 1, 1985. This court heard oral argument on the motion June 14, 1985, in Lafayette, Indiana. At that time a schedule for supplemental briefing was set. Such schedule has been met and this motion is now ripe for ruling. Jurisdiction of this court is predicated upon 28 U.S.C. § 1332. The substantive law of Indiana applies.

II.

A.

Chief Industries argues that this complaint is time barred by Ind.Code § 33-1-1.5-5 which provides that "any product liability action in which the theory of liability is negligence or strict liability in tort 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." Chief Industries contends that since plaintiff's action against it is a "product liability action" based on a negligence theory, plaintiff's claim is barred by the above statute's provision that such actions must be brought within two (2) years after the cause of action accrues. In support of its argument, Chief Industries relies upon Monsanto Company v. Miller, Ind.App., 455 N.E.2d 392, 394 (1983), and Dague v. Piper Aircraft Corp., 275 Ind. 520, 418 N.E.2d 207 (1981), a case emanating from this court. See Dague v. Piper Aircraft Corp., 513 F.Supp. 19 (N.D.Ind.1980).

Plaintiff contends that the applicable statute of limitations is Ind.Code § 34-4-20-1, the Indiana improvement to realty statute. The statute provides that an action can be brought for damages to real and personal property arising out of the design, planning, supervision or construction of an improvement to real property within ten (10) years of the date of substantial completion. Plaintiff argues that this case was filed well within the parameters of this statute. It is beyond dispute that these issues can be properly raised by a motion for summary judgment under Fed. R.Civ.P. 56.

The key case on the issue of whether the Indiana improvement to realty statute or the Indiana products liability statute applies in a factual context as is here presented is Dodd v. Kiefer, Ind.App., 416 N.E.2d 463 (1981). In Dodd, an electrician installed a certain electrical system in a residential home. After the installation, a fire occurred causing damage to the home. The electrical contractor moved for summary judgment on the basis of Ind.Code § 34-4-20-2 which bars recovery for deficiencies to improvements to real property brought more than ten years after date of substantial completion of the improvement. The trial court denied the motion and Dodd, the electrical contractor, appealed. The Court of Appeals affirmed the trial court's ruling.

The plaintiff homeowner raised a cross-error on appeal regarding the trial court's ruling that the ten year statute of limitations for real estate improvements applied to the product liability count of the complaint. The plaintiff argued that the six and two year accrual statutes for injuries to real (Ind.Code § 34-1-2-1) and personal (I.C. § 34-1-2-2) property should apply.

612 F. Supp. 1181

Immediately after restating the plaintiff's argument, the Court of...