Wenger v. Weldy, 43A03-9207-CV-219

• Citation: 605 N.E.2d 796
• Decision Date: 13 January 1993
• Docket Number: No. 43A03-9207-CV-219,43A03-9207-CV-219
• Parties: Robert Bruce WENGER and Sherry Wenger, Appellants-Plaintiffs, v. Lowell WELDY, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 796

605 N.E.2d 796

Robert Bruce WENGER and Sherry Wenger, Appellants-Plaintiffs, v. Lowell WELDY, Appellee-Defendant.

No. 43A03-9207-CV-219.

Court of Appeals of Indiana,

Third District.

Jan. 13, 1993.

Transfer Decided March 24, 1993.

Alexander Lysohir, Thomas H. Singer, Nickle and Piasecki, South Bend, for appellants-plaintiffs.

Mark D. Ulmschneider, Steele, Ulmschneider & Eberhard, Fort Wayne, for appellee-defendant.

HOFFMAN, Judge.

Appellants-plaintiffs Robert Bruce Wenger (Bruce) and Sherry Wenger appeal the trial court's decision awarding summary judgment in favor of appellee-defendant Lowell Weldy in their action for personal injuries sustained by Bruce.

The facts relevant to the appeal disclose that Lowell was a farm implement dealer between 1954 and 1964. When Lowell retired in 1964, he retained from the business inventory a 1964 Oliver hay baler which he used in his farming operations.

Also, during the last eight years that Lowell was a farm equipment dealer, he owned a welding franchise. Lowell learned to weld from a salesman who held a welding class one evening. Additionally, Lowell read some books about welding. Lowell performed welding chores on his own equipment but did not engage in the business of welding for others.

In 1975, the cast iron hitch clevis on the hay baler broke. Lowell welded the hitch and continued to use the baler. In 1981 Lowell leased the baler to his son, Tim. Tim used the baler in his farming operation.

On July 6, 1988, Tim asked Bruce to assist in Tim's hay baling operation the next day. When Bruce arrived the next day, the equipment was already prepared. Bruce and Tim were situated in the wagon behind the baler to load the bales. Lowell drove the tractor to which the baler and wagon were joined. During the baling operation, the hitch separated allowing the baler to detach from the wagon. A shield attached to a rotating piece of equipment spun off and struck Bruce in the head causing severe injuries.

As a result of his injuries, Bruce filed a complaint against Tim and Lowell on June 25, 1990. Bruce alleged that his injuries were proximately caused by the negligence of Tim and Lowell and that "the hitch clevis was defective and unreasonably dangerous for its intended use." Pursuant to Lowell's motion for summary judgment, on April 15, 1992, the trial court determined that no genuine issue of material fact existed and that Bruce could not recover damages from Lowell. Although the court ordered that the action continue as to Tim, the summary judgment as to Lowell was made a final appealable order. This appeal ensued. ¹

The sole issue presented for review is whether the trial court erred in determining that the products liability statute of limitations ² would bar the suit against Lowell.

The statute of limitations in product liability actions, IND.CODE Sec. 33-1-1.5-5 (1989 Supp.), provides:

"(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 that initial delivery, the action may be commenced at any time within two (2) years after the cause of action accrues."

Citing Denu v. Western Gear Corp. (S.D.Ind.1983), 581 F.Supp. 7, 8, the Wengers argue that Lowell's act of welding the broken clevis hitch on the baler in 1975 in essence created a new product which recommenced the ten-year statutory period. Although this Court is not bound by federal court decisions construing Indiana law, where no Indiana cases have addressed the issue, the federal decisions are instructive. In Denu it was determined that Indiana's statute of limitations would not bar an interpretation allowing recommencement of the statute when a product has been reconditioned, altered, or...