Lawson v. Valve-Trol Co.

• Decision Date: 13 February 1991
• Docket Number: No. 14746,VALVE-TROL,14746
• Citation: 610 N.E.2d 425,81 Ohio App.3d 1
• Parties: LAWSON et al., Appellants, v.COMPANY et al., Appellees. *
• Court: Ohio Court of Appeals

Page 1

81 Ohio App.3d 1

610 N.E.2d 425

LAWSON et al., Appellants, v. VALVE-TROL COMPANY et al., Appellees. ^*

No. 14746.

Court of Appeals of Ohio, Ninth District, Summit County.

Decided Feb. 13, 1991.

Peter H. Weinberger and Kevin T. Roberts, Cleveland, for appellants.

Thomas M. Parker and Lori L. Von Aschen, Akron, for appellees.

CACIOPPO, Judge.

Craig Lawson, an Indiana resident employed as a press operator for the Western Rubber Company ("Western") at Goshen, Indiana, suffered severe injuries on July 14, 1986, when a heated portion of the press fell and trapped his arms. The press was manufactured by the French Oil Mill Machinery Company ("French Oil"), an Ohio corporation, and delivered to Western in 1974.

Lawson received Indiana workers' compensation benefits for medical expenses and permanent disability. On November 18, 1987, Lawson and his wife filed a products liability action against French Oil and another Ohio corporation, the Valve-Trol Company, ("Valve-Trol"). After considerable discovery, French Oil moved the trial court on December 12, 1989 for summary judgment on its behalf, claiming that it had manufactured only a component, non-operating press which had been augmented, completed and installed by Western. The Lawsons vigorously opposed French Oil's motion through continuing discovery. The trial court, by journal entry dated June 11, 1990, found issues of material fact remaining to be resolved and denied French Oil's motion. Valve-Trol's motion for summary judgment was similarly denied. The court had by prior order set trial for July 16, 1990.

On June 27, 1990, French Oil sought leave to file, and filed thereafter its second motion for summary judgment and supporting materials. French Oil argued that it had recently discovered a choice-of-law issue that it believed would resolve the case through summary judgment, claiming that Indiana's substantive law applied to absolutely prohibit the Lawsons' claims in products liability. The Lawsons opposed French Oil's leave to file the motion, and opposed the motion itself by memorandum.

The trial court granted leave to French Oil to move for summary judgment, and denied the same to Valve-Trol, finding that the Lawsons had asserted a separate negligence claim against Valve-Trol. On July 25, 1990, the trial court granted summary judgment against the Lawsons on their products liability claim against French Oil, denied summary judgment for Valve-Trol, and found no just cause for delay pursuant to Civ.R. 54(B). The Lawsons appeal, asserting two assignments of error:

"I. The trial court erred in granting summary judgment on the basis of a foreign statute of limitations where defendant-appellee had waived the defense of statute of limitations by failing to plead it, or to give notice of its intention to rely on foreign law.

"II. The trial court's application of IC 33-1-1.5-5 was clearly erroneous because IC 33-1-1.5-5 did not both create and limit plaintiffs-appellants' product liability causes of action."

The Lawsons initially argue that by failing to plead, or to seek leave to plead, a statute of limitations defense, or give notice of its intent to rely upon Indiana law, French Oil waived its right to claim that the Lawsons' suit was barred by Ind.Code 33-1-1.5-5. The Lawsons assert that the trial court erred by even "considering the waived/unnoticed defense of Statute of Limitations[.]" This argument is, however, wide of the mark.

The Lawsons characterize Ind.Code 33-1-1.5-5 as a statute of limitations. Indeed, if one were to categorize and apply statutes only through referencing their titles, the Lawsons might have an argument, as Ind.Code 33-1-1.5-5 is in fact titled "Statute of Limitations." The Lawsons cite as authority the decision in Kovach v. Newbury Indus., Inc. (Dec. 9, 1983), Geauga App. No. 1105, unreported, 1983 WL 6002, which in fact held that Ind.Code 33-1-1.5-5 "is merely a statute of limitations." Later decisions by Indiana courts, as well as an Ohio federal district court have, however, found otherwise, seriously limiting the applicability and authority of that case to the instant matter.

In choice-of-law situations, the procedural laws of the forum state, including applicable statutes of limitations, are generally applied. See Barile v. Univ. of Virginia (1986), 30 Ohio App.3d 190, 194, 30 OBR 333, 336, 507 N.E.2d 448, 451; Howard v. Allen (1972), 30 Ohio St.2d 130, 59 O.O.2d 148, 283 N.E.2d 167. An Ohio forum court must, however, give effect to the substantive law of the state with the most significant contacts to the case. In Morgan v. Biro Mfg. Co. (1984), 15 Ohio St.3d 339, 342, 15 OBR 463, 465-466, 474 N.E.2d 286, 289, the Supreme Court set forth the following:

"When confronted with a choice-of-law issue in a tort action under the Restatement of the Law of Conflicts view, analysis must begin with Section 146. Pursuant to this section, a presumption is created that the law of the place of the injury controls unless another jurisdiction has a more significant relationship to the lawsuit. To determine the state with the most significant relationship, a court must then proceed to consider the general principles set forth in Section 145. The factors within this section are: (1) the place of the injury; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation, and place of business of the parties; (4) the place where the relationship between the parties, if any, is located; and (5) any factors under Section 6 which the court may deem relevant to the litigation. All of these factors are to be evaluated according to the relative importance to the case." (Footnotes omitted.)

Both parties agree that the plaintiffs are Indiana residents, that Craig Lawson was injured at his workplace in Indiana, that the press causing his injuries was shipped to Western's Goshen, Indiana factory in 1974, and that Craig Lawson received Indiana workers' compensation benefits. The trial court made a factual determination that Indiana substantive law applied because the action and the parties had the most significant relationship to Indiana, pursuant to Morgan v. Biro, supra. The Lawsons do not seriously challenge this determination.

Ind.Code 33-1-1.5-5 provides:

"Sec. 5. (a) This section applies to all persons regardless of minority or legal disability. Notwithstanding IC 34-1-2-5, it applies in any product liability action in which the theory of liability is negligence or strict liability in tort.

"(b) Except as provided in section 5.5 of this chapter, a product liability action must be commenced within two (2) years after the cause of action accrues or within ten (10) years after delivery of the product to the initial user or consumer. However, if the cause of action accrues at least eight (8) years but less 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."

If the statute applies, it will bar the Lawsons' claims because French Oil delivered the press to Western, Craig Lawson's employer, nearly twelve years prior to his injury. The Lawsons maintain that the statute is procedural, and thus does not apply to their cause.

The Indiana courts have, however, determined that statutes of repose are substantive. Berns Constr. Co. v. Miller (Ind.App.1986), 491 N.E.2d 565, 570, affirmed (Ind.1987), 516 N.E.2d 1053; see Covalt v. Carey Canada, Inc. (Ind.1989), 543 N.E.2d 382, 385. The Supreme Court of Ohio has reached the same conclusion:

"Unlike a true statute of limitations, which limits the time in which a plaintiff may bring suit after the cause of action accrues, a statute of repose * * * potentially bars a plaintiff's suit before the cause of action arises." (Emphasis sic.) Sedar v. Knowlton Constr. Co. (1990), 49 Ohio St.3d 193, 195, 551 N.E.2d 938, 941.

Ind.Code 33-1-1.5-5 does precisely this when applied to the facts of the matter...