Whitaker v. T.J. Snow Co., Inc., 3:95-CV-752RP.

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Citation953 F.Supp. 1034
Docket NumberNo. 3:95-CV-752RP.,3:95-CV-752RP.
PartiesNaomi WHITAKER, Plaintiff, v. T.J. SNOW CO., INC., et al., Defendants.
Decision Date10 February 1997

Dale J. Starkes of Starkes Law Offices in Winamac, IN, and Edward L. Murphy, Jr., of Miller, Carson, Boxberger and Murphy, Fort Wayne, IN, for Plaintiff.

John E. Doran of Doran, Blackmond, Ready, Hamilton and Williams, South Bend, IN, for T.J. Snow Company, Inc.


PIERCE, United States Magistrate Judge.

Plaintiff Naomi Whitaker was employed by Walker Manufacturing Company ("Walker"). On September 18, 1993, she was injured while operating a seam welder which had been manufactured and sold to Walker by defendant RWC, Inc. ("RWC") and later serviced by defendant T.J. Snow Company, Inc. ("Snow"). Whitaker commenced the present action on September 14, 1995, asserting strict liability and implied warranty claims arising out of the remanufacture and sale of the welder to her employer. On July 2, 1996, the court granted a motion for summary judgment by RWC. This case is now before the court on a motion for summary judgment by Snow. For the reasons which follow, Snow's motion will be granted.

Summary Judgment Standard

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the initial responsibility of informing the court of the basis for the motion, and identifying "those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'" Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Rule 56 imposes no requirement on the moving party to "support its motion with affidavits or other similar materials negating the opponent's claim." Id. at 323, 106 S.Ct. at 2553; John Hancock Mut. Life Ins. Co. v. Weisman, 27 F.3d 500, 503 (10th Cir.1994); Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir.1994).

Once a properly supported motion for summary judgment is made, the party that bears the burden of proof on a particular issue at trial cannot resist the motion by merely resting on its pleadings. Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir.1994). Rather, as Fed.R.Civ.P. 56(e) makes clear, "[T]he adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir. 1994). "[T]he plain language of Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552; Jean v. Dugan, 20 F.3d 255, 260 (7th Cir.1994). The nonmoving party must do more than demonstrate "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "If the evidence is merely colorable, ... or is not significantly probative, ... summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted); Griffin v. Air Line Pilots Ass'n, Int'l, 32 F.3d 1079, 1084 (7th Cir.1994); Bostic v. City of Chicago, 981 F.2d 965, 969 (7th Cir.1992).

In determining whether there is a genuine issue of material fact, the court must construe all facts in the light most favorable to the party opposing the motion and draw all inferences in favor of that party. NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 234 (7th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 2249, 132 L.Ed.2d 257 (1995); Beraha v. Baxter Health Care Corp., 956 F.2d 1436, 1440 (7th Cir.1992). Not every factual dispute creates a barrier to summary judgment. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Derrico v. Bungee Int'l Mfg. Co., 989 F.2d 247, 250 (7th Cir.1993). Moreover, "[a] genuine issue for trial only exists where there is sufficient evidence favoring the nonmovant for a jury to return a verdict for that party." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511; Unterreiner v. Volkswagen of America, 8 F.3d 1206, 1210 (7th Cir.1993). The inquiry involved in ruling on the motion for summary judgment implicates the substantive evidentiary standard of proof that would apply at trial. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512; Jean, 20 F.3d at 263.


In 1978, RWC received an order (RWC's order number 5725) from Walker for an item of machinery described as an A.C. Seam Welder. (Perlberg Aff. ¶¶ 4, 5 and attachment.) On February 16, 1979, RWC shipped the seam welder bearing serial number 5725 to Walker. (Id.) Snow had no input or involvement in the original design of the seam welder or in the additional devices added thereto which controlled the welder's mechanical activity. (Pepping Aff. at 2.)

Snow is in the business of servicing, selling, consulting, designing, and building welding equipment and supplies, robots, and automatic arc welders. (Pepping Aff. at 1; Pepping Dep. at 6.) Snow also repairs, reconditions, and refurbishes or remanufacturers existing equipment. (Pepping Dep. at 6-7.) In February or March of 1988, Walker contacted Snow and solicited a bid to upgrade the electrical circuits of two of Walker's catalytic converter seam welders. (Pepping Aff. at 1; Pepping Dep. at 39.) Walker specified all equipment to be installed on the seam welders, including a Gould three axis programming unit with separate servo motors on each axis. (Pepping Aff. at 1, 2 and Exh. A; Pepping Dep., Exh. 2.) Snow was to obtain the Gould units and add their cost to its bid to Walker for the work to be performed. (Pepping Aff. at 1.)

Snow prepared a shop order, dated April 15, 1988, for the retrofitting of the two catalytic converter seam welders, including the one in question which bore serial number 5725. (Pepping Aff., Exhs. B.) The shop order provided that Snow was to add a Gould unit with separate servo motors on each axis to the seam welder; install a new water circuit, air circuit, and a Weltronic WT-900 weld control; design and build a water catch basin/tray with outlet; and clean and paint the machine. (Pepping Aff., Exh. B; Pepping Dep., Exh. 2.) The shop order specifically provided that the seam welder was not to be rebuilt. (Pepping Aff. at 1 and Exh. C.)

Snow obtained the Gould units which Walker had requested and added their cost to the work performed for Walker. (Id.) Snow added component parts to replace parts on the welder which may have been damaged. (Pepping Dep. at 95), and performed design work in order to accommodate some of the component parts specified by Walker. (Pepping Dep. at 96; Pepping Aff. at 2.) In particular, Snow referred to the drawings supplied by Walker to make the changes to the seam welder's electrical circuit which were required in order to accommodate the new Gould replacement unit. (Pepping Aff. at 2.) Snow had no input or involvement in the design of the component parts it added to the seam welder that controlled the welder's mechanical activity. (Pepping Aff. at 2.) Snow did not change the welder's mechanical function because there was only one way in which the welder could work. (Pepping Dep. at 48-49; Snow Dep. at 19-21.)

The work Snow performed on the welder amounted to "refurbishing." (Pepping Dep. at 11.) Refurbishing entails work which is less extensive than reconditioning, which in turn, entails work which is less extensive than remanufacturing. (Pepping Dep. at 10-11.) Normally, a refurbishing is "just an upgrade" of a product, (id. at 11), a very minimal amount of work is performed on equipment that is refurbished. (Pepping Dep. at 16.) In contrast, when a machine is remanufactured, its frame is completely torn down and all of the component parts are removed and inspected individually during reassembly. (Pepping Dep. at 17.)

After Snow installed the electrical circuit on the seam welder, Walker sent a representative, Jim Conier, to Snow's factory to program the new electrical system because Snow was not familiar with the system and had never installed, used, or worked with the Gould units on any prior occasion. (Pepping Aff. at 2; Pepping Dep. at 12-13.) Operation of the seam welders was demonstrated to Walker personnel at Snow's plant after the refurbishing was complete and before the seam welders were shipped to Walker. (Pepping Aff. At 3; Pepping Dep. at 42.)

On May 27, 1988, Snow shipped the seam welder to Walker. (Pepping Aff. at 2 and Exh. C.) Snow returned the welder to Walker in the same configuration as it was when received and, in T.J. Snow's opinion, in the same configuration as originally made by its manufacturer, RWC. (Snow Dep. at 19-21.) The seam welder's mechanical parts remained as they were originally designed. (Id.) Snow did not engineer the seam welder's electrical sequence for controlling the welder's mechanical motions and functions in the automatic mode of operation; Weldmation, Inc., engineered the electrical sequence. (Pepping Aff. at 2.)

It was anticipated that the repair and refurbishing work performed by Snow would lengthen the useful life of the seam welders. (Snow Dep. at 60.) Part of the purpose of...

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