Massengill v. Indiana Nat. Bank
| Decision Date | 15 February 1990 |
| Docket Number | No. 32A01-8910-CV-392,32A01-8910-CV-392 |
| Citation | 550 N.E.2d 97 |
| Parties | Raymond E. MASSENGILL, Sr. and J. Joan Massengill, Appellants (Plaintiffs Below), v. INDIANA NATIONAL BANK, Appellee (Defendant Below). |
| Court | Indiana Appellate Court |
Charles P. Gaddy, Gaddy & Gaddy, Indianapolis, for appellants.
Mary Jo Hunter Wedding, Norris Choplin & Johnson, Indianapolis, for appellee.
The plaintiffs-appellants Massengills appeal from the trial court's granting a summary judgment in favor of the defendant-appellee Indiana National Bank (INB).
The facts show that the Massengills obtained a loan from INB using a van as collateral. Towards the end of the loan, the Massengills were notified by certified mail that they were delinquent in the last two payments. Mrs. Massengill, by way of a Saturday telephone call, notified an INB agent that she did not agree with the amount which INB said was due. Mr. Massengill was supposed to go in the first thing the following Monday and take care of the matter.
INB had arranged with American Lenders Service Company, who was primarily engaged in repossessing motor vehicles, to repossess Massengills' van. At 1:30 A.M. on Sunday morning, American Lenders' unmarked tow truck, operated by Jacobs and Hammons, entered the Massengills' driveway and hooked up to the van. Mr. Massengill thought the van was being stolen and went outside to intervene, which he did vociferously. During the course of events, Massengill became entangled in machinery at the rear of the tow truck and was dragged down the street and then run over by his towed van. American Lenders' employees in the tow truck were aware of Massengill's plight but sped away.
The Massengills filed suit for his injuries. INB filed a motion for summary judgment which was granted. The legal theory of INB's motion was that American Lenders was acting in the capacity of an independent contractor and that no liability can attach to INB for American Lenders' negligence.
Massengills state the issues as being:
1. Does Indiana National Bank and their relationship with American Lenders fall within the exceptions to the independent contractor rule thus making them jointly and severally liable for the actions and/or omissions of American Lenders?
2. Were Indiana National Bank's actions such that a question of fact exists as to whether or not they can be held liable based on their own negligence?
Initially, we note that it appears that there is no controversy that American Lenders was an independent contractor. Additionally, we believe that there is no serious question that INB could rightfully repossess the van.
Hale v. Peabody Coal Company (1976), 168 Ind.App. 336, 343 N.E.2d 316 catalogs five exceptions to the independent contractor rule. Massengills argue that three of those exceptions apply to the facts of this case. Because we reverse we need to discuss only that exception which deals with a party who is charged by law with a specific duty.
In considering the Massengills' argument, we regard IND. CODE 26-1-9-503 as relevant. It states in part Unless otherwise agreed, a secured party has on default the right to take possession of the collateral. In taking possession, a secured party may proceed without judicial process if this can be done without breach of the peace.... (Emphasis added.)
The facts of this case, as they relate to the actual repossession, bear a striking similarity to those in Nicholson's Mobile Home Sales v. Schramm (1975), 164 Ind.App. 598, 330 N.E.2d 785. In Nicholson's the conduct of the repossessor amounted to a breach of the peace. Additionally, an examination of Census Federal Credit Union v. Wann (1980), Ind.App., 403 N.E.2d 348, reveals:
Analysis of the above authorities reveals no substantial conflict. They reveal to us, in regard to the right of a secured party to repossess a chattel upon default without resort to judicial process pursuant to ...
To continue reading
Request your trial
-
Ford Motor Credit Co. v. Ryan
...property in a peaceable manner is specifically imposed on a ‘secured party’ by the uniform commercial code”); Massengill v. Indiana Natl. Bank (Ind.App.1990), 550 N.E.2d 97, 99 (the Indiana reiteration of former U.C.C. 9–503 and common law “make it clear that repossession of a secured chatt......
-
MBank El Paso, N.A. v. Sanchez
...Fin. Corp. v. Smith, 505 So.2d at 1048; Sammons v. Broward Bank, 599 So.2d 1018, 1021 (Fla.Dist.Ct.App.1992); Massengill v. Indiana Nat'l Bank, 550 N.E.2d 97, 99 (Ind.Ct.App.1990); Nichols v. Metropolitan Bank, 435 N.W.2d at 640; McCall v. Owens, 820 S.W.2d 748, 751-52 (Tenn.Ct.App.), appea......
-
Rand v. Porsche Fin. Servs., 216 Ariz. 42
...[independent contractor] its liability for the wrongful manner in which the repossession was accomplished"); Massengill v. Ind. Nat'l Bank, 550 N.E.2d 97, 99 (Ind. Ct. App. 1990) (finding that "[state] case and statutory law make it clear that repossession of a secured chattel must be accom......
-
Fresh Cut, Inc. v. Fazli
...owner.2 See, e.g., Perryman v. Huber, Hunt & Nichols, Inc. (1994), Ind.App., 628 N.E.2d 1240, trans. denied; Massengill v. Indiana Nat'l Bank (1990), Ind.App., 550 N.E.2d 97, 99; Stevens v. Thompson (1988), Ind.App., 525 N.E.2d 353.3 E.g., certain indemnification clauses in construction con......