Whittaker v. Federal Cartridge Corp.

• Decision Date: 31 July 1984
• Docket Number: No. 3-583A128,3-583A128
• Citation: 466 N.E.2d 480
• Parties: Patti WHITTAKER and Delbert Whittaker, Appellants (Plaintiffs Below), v. FEDERAL CARTRIDGE CORPORATION and The Marlin Firearms Company, Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 480

466 N.E.2d 480

Patti WHITTAKER and Delbert Whittaker, Appellants (Plaintiffs Below), v. FEDERAL CARTRIDGE CORPORATION and The Marlin Firearms Company, Appellees (Defendants Below).

No. 3-583A128.

Court of Appeals of Indiana,

Third District.

July 31, 1984.

Fred R. Jones, Goodrich, Jones & Huff, Plymouth, for appellants.

P. Gregory Cross, Cross, Marshall, Schuck, Deweese & Cross Professional Corporation, Muncie, for amicus curiae Indiana Trial Lawyers Ass'n.

Edward N. Kalamaros, Michael J. Anderson, Edward N. Kalamaros & Associates, Professional Corporation, South Bend, for appellees.

STATON, Presiding Judge.

Patty Whittaker was injured while using a rifle which was manufactured by Marlin Firearms (Marlin) and which was loaded with ammunition manufactured by Federal Cartridge (Federal). She and her husband brought a products liability action against Marlin and Federal. ¹ The trial court granted summary judgment against the Whittakers on the grounds that their action was barred by the statute of limitations in IC 33-1-1.5-5. The Whittakers' appeal raises the following issue:

Whether the trial court erred in holding that the statute of limitations for products liability actions begins to run when the manufacturer sells the product to the next entity in the chain of distribution rather than upon delivery of the product to an actual user or consumer.

We reverse. ²

IC 33-1-1.5-5 provides in part:

"[A]ny product liability action 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."

The Whittakers' complaint was filed in August of 1982. The undisputed evidence before the trial court was that Marlin manufactured the rifle in 1947 and sold it to "jobbers and retailers" in 1948. Delbert Whittaker's mother purchased the rifle in 1977 or 1978 from an estate. Federal manufactured the ammunition in 1968 and sold it to retailers in 1969. Delbert Whittaker purchased the ammunition from a retailer in 1973.

The trial court ruled that the ten year statute of limitations began to run when Marlin and Federal delivered the rifle and ammunition to retailers, which is thirty-four years and thirteen years, respectively, before the Whittakers filed their complaint. We disagree with the court's interpretation that the language in IC 33-1-1.5-5, "within ten (10) years after the delivery of the product to the initial user or consumer," refers to delivery of the product to any purchaser from the manufacturer regardless of whether that purchaser is a retailer dealer, or any other intermediary along the chain of distribution.

IC 33-1-1.5-3 provides:

"(a) One who sells any product in a defective condition unreasonably dangerous to any user or consumer or to his property is subject to liability for physical harm thereby caused to the user or consumer or to his property if that user or consumer is in the class of persons that the seller should reasonably foresee as being subject to the harm caused by the defective condition, and if:

(1) the seller is engaged in the business of selling such a product, and

(2) the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(b) The rule stated in Subsection (a) applies although

(1) the seller has exercised all possible care in the preparation and sale of this product, and

(2) the user or consumer has not bought the product from or entered into any contractual relation with the seller."

IC 33-1-1.5-2 provides the following definitions:

" 'Seller' includes a manufacturer, a wholesaler, a retail dealer or a distributor.

'User or consumer' shall include: a purchaser; any individual who uses or consumes the product; or any other person who, while acting for or on behalf of the injured party, was in possession and control of the product in question."

Again, IC 33-1-1.5-5 provides in part:

"[A]ny product liability action 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."

The plain meaning of the statute is that the period of limitations commences at the time the product is delivered from the manufacturer, wholesaler, retailer, or distributor to the first consuming entity. It is clear from the statutory language and definitions that the term "seller", which "includes a manufacturer, a wholesaler, a retail dealer, or a distributor", and the term "user or consumer" are mutually exclusive. Marlin and Federal would have us believe, as did the trial court, that the term "initial user or consumer" in IC 33-1-1.5-5 includes those retailers and other intermediaries. Again, we need only look to the definitions provided in IC 33-1-1.5-2 to dismiss this contention. The term "seller" encompasses not only manufacturers but also the intermediaries. "User or consumer" does not.

Indiana's Product Liability statute is a codification of the common law of products liability which had been adopted in this state. See, IC 33-1-1.5-3; Cornette v. Searjeant Metal Products, Inc., (1970), 147 Ind.App. 46, 258 N.E.2d 652. The common law was essentially an adoption of the Restatement 2d of Torts Sec. 402A to which an explanatory comment provides in part:

"1. User or consumer. In order for the rule stated in this Section to apply, it is not necessary that the ultimate user or consumer have acquired the product directly from the seller, although the rule applies equally if he does so. He may have acquired it through one or more intermediate dealers." (Emphasis added.)

Restatement 2d of Torts Sec. 402A, comment 1. It is clear that the authors of Sec. 402A did not contemplate intermediate dealers to be within the scope of the definition of "user or consumer".

In Cornette, supra, our Court adopted Sec. 402A and quoted from it as follows:

"On whatever theory, the justification for the strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products."

Cornette, supra, 258 N.E.2d at 656 quoting R. 2d Torts Sec. 402A, comment c. This enunciation of the policy behind strict products liability reveals again the juxtaposition in products liability law between the using and consuming public on the one hand, and all those entities who have marketed the product, manufacturers and otherwise, on the other hand.

Marlin and Federal rely primarily for their interpretation of the statute on the inclusion of the word "purchaser" under the definition "user or consumer." They contend that this "purchaser" refers to any intermediary who purchases the product from the manufacturer, so that the statute of limitations would begin to run upon delivery to that intermediary. Again, our plain reading of the statute and of Indiana common law on products liability prohibits that interpretation. We agree with the Whittakers that the separation of the term "purchaser" from the phrase "any individual who uses or consumes the product" in the definition of "user and consumer" was most likely intended to reflect the breadth of the class of plaintiffs as described in comment 1 to Sec. 402A.

"It is not even necessary that the consumer have purchased the product at all. He may be...