                                                                     FILED
                                                                Mar 13 2018, 6:42 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Jeffrey J. Stesiak                                        Robert J. Palmer
      Pfeifer, Morgan & Stesiak                                 May Oberfell Lorber
      South Bend, Indiana                                       Mishawaka, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Matthew Davis,                                            March 13, 2018
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                20A03-1710-CT-2435
              v.                                                Appeal from the Elkhart Superior
                                                                Court
      Lippert Components                                        The Honorable David T. Ready,
      Manufacturing, Inc.,                                      Senior Judge
      Appellee-Defendant.                                       Trial Court Cause No.
                                                                20D01-1605-CT-108



      Mathias, Judge.

[1]   Matthew Davis (“Davis”) appeals the Elkhart Superior Court’s grant of

      summary judgment in favor of Lippert Components Manufacturing, Inc.

      (“Lippert”). Specifically, Davis argues the trial court erred as a matter of law

      when it determined that he did not qualify as a “user” or “consumer” under

      Indiana’s Product Liability Act (“IPLA”).



      Court of Appeals of Indiana | Opinion 20A03-1710-CT-2435 | March 13, 2018             Page 1 of 9
[2]   We affirm.


                                         Facts and Procedure
[3]   Evergreen Recreational Vehicles, L.L.C., (“Evergreen”) manufactured towable

      travel trailers in Elkhart, Indiana. Several models of their trailers contained

      areas of additional space containing flooring and furniture, which an owner

      could slide out when parked to provide more interior space in the trailer or in a

      recreational vehicle. These areas are constructed in the form of three-sided

      boxes opening to the interior of the trailer and are called “slide-outs.” Lippert

      manufactures the Schwintek System In-Wall Slide Out (“Schwintek System”)

      which is a mechanism attached to the slide-out box during the manufacturing

      process that allows the box to slide in and out of the trailer or recreational

      vehicle at the direction of its owner.


[4]   Davis worked for Evergreen in its “slide-out department” as a “box installer”

      where his job was to install the box on the trailer. Appellant’s App. pp. 91, 93.

      Davis worked on the outside of the trailer where he would screw down the

      Schwintek System to the box, glue the top rubber corners of the box to prevent

      leaks, complete the wire harness underneath the box, hook up the light, and

      then use an electrical toggle switch to run the box into the trailer. After Davis

      was finished with his duties, the trailer still had to go through three more

      manufacturing departments at Evergreen before it was complete and ready for

      wholesale to dealers.




      Court of Appeals of Indiana | Opinion 20A03-1710-CT-2435 | March 13, 2018   Page 2 of 9
[5]   On June 17, 2014, Davis was attaching the wire harness when the box started to

      move out. He assumed the box would stop moving, but it did not, and it fell out

      of the trailer and onto his lower back. Davis suffered significant injuries,

      including paralysis from the waist down.


[6]   Davis filed a complaint on May 24, 2016, in which he alleged, in part, that

      Lippert was strictly liable for a design defect in the Schwintek System which

      made it “unreasonably dangerous for its reasonably foreseeable uses.” Id. at 20.

      Lippert moved for summary judgment on June 29, in which it argued that

      Davis did not qualify as a “user” or “consumer” under the IPLA, and therefore

      could not state a claim under the Act. On October 10, the trial court agreed and

      granted summary judgment in favor of Lippert.


[7]   Davis now appeals.


                                      Discussion and Decision
[8]   Davis contends that the trial court erred in granting Lippert’s motion for

      summary judgment. When reviewing a summary judgment, we apply the same

      standard as the trial court and draw all reasonable inferences in favor of the

      nonmoving party. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). In

      conducting our review, we consider only those matters that were designated at

      the summary judgment stage. Haegert v. McMullan, 953 N.E.2d 1223, 1229 (Ind.

      Ct. App. 2011). Summary judgment is appropriate if the designated evidence

      shows that there is no genuine issue as to any material fact and that the moving



      Court of Appeals of Indiana | Opinion 20A03-1710-CT-2435 | March 13, 2018   Page 3 of 9
       party is entitled to judgment as a matter of law. Hughley, 15 N.E.3d at 1003;

       Ind. Trial Rule 56(C).


[9]    Here, the trial court determined that Davis was not a “user” or “consumer” as

       those terms are defined in the IPLA, and therefore had no claim under the Act.

       Who qualifies under this statutory definition is a pure question of law, which

       we review de novo. Ballard v. Lewis, 8 N.E.3d 190, 193 (Ind. 2014); Stegemoller v.

       ACandS, Inc., 767 N.E.2d 974, 975 (Ind. 2002).


[10]   Indiana Code section 34-20-1-1 provides:


               This article governs all actions that are:

                        (1) brought by a user or consumer;

                        (2) against a manufacturer or seller; and

                        (3) for physical harm caused by a product;

               regardless of the substantive legal theory or theories upon which
               the action is brought.


[11]   Section 34-20-2-1 then sets forth the requirements of a strict liability claim

       under the IPLA, and it states:

               a person who sells, leases, or otherwise puts into the stream of
               commerce any product in a defective condition unreasonably
               dangerous to any user or consumer or to the user’s or consumer’s
               property is subject to liability for physical harm caused by that
               product to the user or consumer or to the user’s or consumer’s
               property if:




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                        (1) 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;

                        (2) the seller is engaged in the business of selling the
                        product; and

                        (3) the product is expected to and does reach the user or
                        consumer without substantial alteration in the condition in
                        which the product is sold by the person sought to be held
                        liable under this article.


[12]   The IPLA defines a consumer in Section 34-6-2-29 as:


               (1) a purchaser;

               (2) any individual who uses or consumes the product;

               (3) any other person who, while acting for or on behalf of the
               injured party, was in possession and control of the product in
               question; or

               (4) any bystander injured by the product who would reasonably
               be expected to be in the vicinity of the product during its
               reasonably expected use.


       And Section 34-6-2-147 provides that “user” has the same meaning as

       “consumer” for purposes of the IPLA.


[13]   Davis was not the “purchaser” of the Schwintek System, and he was the injured

       party—not someone “acting for or on behalf of the injured party.” I.C. § 34-6-2-

       29. Thus, Davis must be either “an individual who uses or consumes the

       product” under subsection (2) or a bystander reasonably “expected to be in the

       vicinity of the product during its reasonably expected use” under subsection (4).

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[14]   Davis contends that he qualifies as an “individual who uses or consumes the

       product” because Lippert manufactures and sells the Schwintek System in its

       uninstalled and unassembled form, and Davis used it when assembling the box

       for the towable trailer. Davis also maintains that he qualifies under the

       bystander definition because the reasonable expected use of the Schwintek

       System is that those purchasing it will assemble and install the components on a

       trailer, which is what Davis was doing here when he was injured. Lippert

       argues that Davis does not qualify as a “user” or “consumer” under the IPLA

       because his injury occurred before the assembled towable trailer was delivered

       to the initial consumer.


[15]   Both parties cite to our supreme court’s decision in Vaughn v. Daniels Company

       (West Virginia), 841 N.E.2d 1133 (Ind. 2006), to support their opposite

       positions. In that case, Daniels Company contracted with Solar Sources to

       design and build a coal plant on Solar’s premises. As part of the contract,

       Daniels was to design and install a heavy media coal sump. Daniels

       subcontracted with Trimble Engineers and Constructors to construct the plant,

       including assembly and installation of the coal sump. Vaughn, a Trimble

       employee, was injured while assembling the coal sump. He sued, and the trial

       court granted judgment in favor of Daniels and Solar because it determined that

       Vaughn was not a “user” or “consumer” of the coal sump within the meaning

       of the IPLA.


[16]   On appeal, our supreme court upheld the trial court’s grant of summary

       judgment but agreed with Vaughn’s contention that the “use” of a product can,

       Court of Appeals of Indiana | Opinion 20A03-1710-CT-2435 | March 13, 2018   Page 6 of 9
       in certain situations, encompass installation or assembly. Id. at 1139–43. The

       Vaughn court however explained that this is only true “where a manufacturer

       expects a product to reach the ultimate user or consumer in an unassembled or

       uninstalled form.” Id. at 1141. Because Daniels was obligated to assemble and

       install the coal sump at the time Vaughn was injured, “Vaughn could not be a

       ‘user’ or a ‘consumer’ of the yet undelivered product.” Id. at 1142. The court

       also determined Vaughn was not a bystander because “‘use’ of the product

       occurs only after it is delivered in the state contemplated by the arrangement

       between the seller and buyer.” Id. at 1143.


[17]   Here, the slide-out unit, consisting of the Schwintek System at issue, was never

       intended or expected to “reach the ultimate user or consumer in an

       unassembled or uninstalled form.” Id. at 1141. Evergreen produced towable

       trailers, and as part of its assembly, Davis installed the box, which included the

       Schwintek System, to create the slide-out unit. The trailer then needed to go

       through three more departments—trimming, final finish hangs, and a rain

       tunnel to check for leaks—before it was put in the yard and eventually sent to a

       dealer. Appellant’s App. p. 98. Therefore, the user or consumer here would be

       the first consuming entity to obtain possession of the completed product. See

       Thiele v. Faygo Beverage, Inc., 489 N.E.2d 562, 586 (Ind. Ct. App. 1986)

       (explaining that “[i]t appears the legislature intended ‘user or consumer’ to

       characterize those who might foreseeably be harmed by a product at or after its

       retail sale or equivalent transaction with a member of the consuming public.”),

       trans. denied.

       Court of Appeals of Indiana | Opinion 20A03-1710-CT-2435 | March 13, 2018   Page 7 of 9
[18]   We need not reach the question of whether an owner who purchases a system

       such as that at issue here could be considered a user or consumer under the

       IPLA if injured during installation on the owner’s own travel trailer or

       recreational vehicle, as that is not the case before us. Davis’s installation of the

       box and the Schwintek System was part of the assembly and manufacture of the

       trailer before being released into the stream of commerce for public

       consumption. See Estate of Shebel ex. Rel. Shebel v. Yaskawa Elec. America, Inc., 713

       N.E.2d 275 (Ind. 1999) (finding an individual was a user, in part, because it was

       not a case of assembling component parts). As a result, we cannot say that

       Davis was a “consumer” or “user” under Indiana Code section 34-6-2-29.


[19]   To conclude otherwise would controvert the exclusivity of the remedy provided

       to employees like Davis in the Workers Compensation System. See Ind. Code §

       22-3-2-6. It would also place ultimate purchasers of a trailer or recreational

       vehicle in a position where their two-year time statute of limitations period1 to

       bring a claim under the IPLA would be dependent on the delivery date of a

       component part to a manufacturer, and not on the delivery date of the finished

       product to the consumer.




       1
           Ind. Code § 34-20-3-1(b)(1).


       Court of Appeals of Indiana | Opinion 20A03-1710-CT-2435 | March 13, 2018    Page 8 of 9
                                                  Conclusion
[20]   Based on the facts and circumstances before us, Davis does not qualify as a

       “user” or “consumer” under the IPLA. Accordingly, we affirm the trial court’s

       grant of summary judgment.


       Najam, J., and Kirsch, J., concur.




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