                                                                        FILED
                                                                    Jun 18 2019, 6:29 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
Irving Marshall Pinkus                                     Maggie L. Smith
Pinkus & Pinkus                                            Randall R. Riggs
Indianapolis, Indiana                                      Jeffrey J. Mortier
                                                           Blake N. Shelby
                                                           Frost Brown Todd LLC
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Joan Tutino,                                               June 18, 2019
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           18A-CT-2435
        v.                                                 Appeal from the Marion Superior
                                                           Court
Rohr-Indy Motors Inc d/b/a                                 The Honorable John F. Hanley,
Bob Rohrman’s Indy Honda and                               Judge
Bob Rohrman Honda                                          Trial Court Cause No.
Dealership, Service Department                             49D11-1707-CT-26766
d/b/a Bob Rohrman Honda
Service Department,
Appellees-Defendants.



Robb, Judge.




Court of Appeals of Indiana | Opinion 18A-CT-2435 | June 18, 2019                           Page 1 of 18
                                 Case Summary and Issue
[1]   In January 2015, Joan Tutino’s 2004 Honda CR-V was serviced by Bob

      Rohrman Indy Honda for a recall related to the vehicle’s airbag. In July 2015,

      Tutino was injured in a four-car crash in which her driver’s side airbag failed to

      deploy. Tutino filed a complaint for damages against Rohr-Motors, Inc. d/b/a

      Bob Rohrman’s Indy Honda, and Bob Rohrman Honda Dealership Service

      Department d/b/a Bob Rohrman Honda Service Department (collectively,

      “Rohrman”) alleging that Rohrman negligently serviced her vehicle resulting in

      the airbag failing to deploy and that Rohrman failed to notify her the airbag was

      defective prior to the accident. The trial court granted Rohrman’s motion for

      summary judgment. Tutino now appeals the trial court’s grant of Rohrman’s

      motion for summary judgment, raising the following issue for our review:

      whether the designated evidence created a genuine issue of material fact that

      precluded judgment as a matter of law for Rohrman. Concluding any issues of

      fact are not material to the resolution of this case and that Rohrman was

      entitled to summary judgment, we affirm.



                             Facts and Procedural History
[2]   In September 2014, Honda Motor Company by its United States agent

      American Honda Motor Co., Inc. (collectively, “American Honda”), issued a

      recall notice and service bulletin regarding airbags manufactured by Takata and




      Court of Appeals of Indiana | Opinion 18A-CT-2435 | June 18, 2019        Page 2 of 18
installed as replacement parts in Honda vehicles.1 The recall notice informed

Honda owners of the following:


         What is the reason for this notice?
         Honda has decided that a defect related to motor vehicle safety
         exists in certain . . . 2002-2004 CR-V vehicles. In some vehicles,
         the driver’s airbag inflator could produce excessive internal
         pressure. If an affected airbag deploys, the increased internal
         pressure may cause the inflator to rupture. Metal fragments
         could pass through the airbag cushion material possibly causing
         injury or fatality to vehicle occupants.


         What should you do?
         Call any authorized Honda dealer and make an appointment to
         have your vehicle inspected. The dealer will inspect and, if
         necessary, replace the driver’s airbag inflator.


Appellant’s Appendix, Volume 2 at 175 (example of customer letter). The

service bulletin informed authorized dealers that “[a] small number of airbag

modules with defective inflators were sold as replacement parts to replace

deployed or damaged airbags.” Id. at 169 (Honda Service Bulletin 10-039 dated

September 12, 2014). Authorized dealers were advised that “[a]ll the vehicles

involved in this campaign require inspection. However, only a very small

number of these vehicles require replacement of the airbag inflator compared to

the large number of vehicles that will require an inspection.” Id. at 170. The




1
  As noted by Rohrman’s expert, this recall was “part of the largest recall in history, known collectively as the
‘Takata recalls.’ Takata was a restraint system manufacturer and supplier to Honda.” Appellant’s Appendix,
Volume 2 at 78.

Court of Appeals of Indiana | Opinion 18A-CT-2435 | June 18, 2019                                   Page 3 of 18
      instructions were to first inspect the driver’s airbag for unusual markings that

      might indicate it was the wrong airbag for the vehicle or that it was counterfeit.

      Finding none, the airbag was to be removed to determine whether the airbag

      was made by Takata or another manufacturer. If it was made by a

      manufacturer other than Takata, the airbag was not defective and was to be

      reinstalled. If the airbag was made by Takata, the airbag serial number and the

      vehicle identification number (“VIN”) were to be entered into a database that

      would indicate whether the airbag was okay and could be reinstalled or whether

      it needed to be replaced. See id. at 170-72.


[3]   Upon receiving the recall notice for her 2004 CR-V in late 2014, Tutino looked

      online to find the nearest authorized Honda dealership and made an

      appointment with Rohrman to have her vehicle serviced for the recall. Douglas

      Michael Thayer, a master technician at Rohrman, completed the service on

      Tutino’s CR-V on January 17, 2015. He removed the driver’s airbag and

      entered the serial number into Honda’s database. “The database indicated that

      the airbag was not subject to the recall and that it was to be reinstalled.” Id. at

      83. Thayer reinstalled the airbag, verifying that it was properly installed, and

      that the SRS warning light was not continuously displayed on the dashboard.2




      2
        SRS stands for “Supplemental Restraint System,” the proper name for the airbag system in a vehicle. The
      SRS consists of the airbags, seat belt tensioners, sensors, and an electronic control unit (“ECU”) that
      monitors and records information about the system. When the SRS is working properly, the SRS warning
      light briefly illuminates on the dashboard when the vehicle is started and then fades away after a few seconds.
      If the SRS warning light does not come on when the vehicle is started, remains illuminated, or comes on at
      any time other than upon ignition, the SRS is disabled and requires service. 2004 CR-V Online Reference

      Court of Appeals of Indiana | Opinion 18A-CT-2435 | June 18, 2019                                 Page 4 of 18
      Tutino confirmed the SRS light was not abnormally illuminated at any time

      after the recall service. Tutino seemed to question whether Rohrman actually

      did any work on her vehicle; in her deposition, she testified that after

      approximately two hours, “I walked out there and saw my car sitting in the

      very same spot where they had put it in the back, and I thought . . . they would

      be – at least started on it by now.” Id. at 103. Tutino asked someone in the

      service area when her car would be ready and was told it was done and given

      her keys. Tutino noted that when she took her car in, she was embarrassed

      because it had dust on the dashboard, but she had decided not to clean it off

      since it was going to be worked on. When she retrieved her car, “there was not

      even a single fingerprint mark on it, nothing. It just looked undisturbed.” Id. at

      104.


[4]   On July 14, 2015, Tutino was the second car in the left turn lane on southbound

      State Road 37 waiting to turn onto East Harding Street in Indianapolis. She

      was wearing her seat belt. Tutino was hit from behind “very hard” by a 2008

      Ford Fusion, which pushed her car into the 2006 Chevy Cobalt in front of her

      “so hard” that the Cobalt was pushed into the intersection. Id. at 48. Tutino’s

      driver’s airbag did not deploy and her seat belt did not lock up. She suffered

      serious injuries as a result of the crash.




      Owner’s Manual, Driver and Passenger Safety at 5-29,
      http://techinfo.honda.com/rjanisis/pubs/OM/AH/ACR0404OM/enu/CR0404OM.PDF.

      Court of Appeals of Indiana | Opinion 18A-CT-2435 | June 18, 2019           Page 5 of 18
[5]   Approximately two weeks after this accident, Tutino received another notice of

      recall from American Honda that stated, “Even if your vehicle was previously

      repaired, your vehicle is still covered by this recall and will need to be repaired

      again.” Id. at 178. The notice was related to a May 2015 update to Service

      Bulletin 10-039 that superseded previous service bulletins. The updated service

      bulletin indicated that the “inspection procedure for Takata driver’s airbags was

      removed [from the previous bulletins] because all Takata driver’s airbag

      inflators installed in the recall vehicle population are being replaced.” Id. at

      153. Tutino returned to Rohrman for service related to this recall in October

      2015.


[6]   Tutino filed her complaint against Rohrman on July 10, 2017, alleging that

      Rohrman failed to properly perform the recall service on January 17, 2015, and

      failed to inform Tutino of the May 2015 recall until after her accident in July

      2015. Rohrman filed a motion for summary judgment, designating an expert

      opinion in support. Tutino responded, designating her own expert opinion.

      Following a hearing, the trial court granted summary judgment to Rohrman.

      Tutino now appeals. Additional facts will be provided as necessary.



                                 Discussion and Decision
                                      I. Standard of Review
[7]   When reviewing the grant or denial of summary judgment, we apply the same

      test as the trial court: summary judgment is appropriate only if the designated

      evidence shows there is no genuine issue of material fact and the moving party
      Court of Appeals of Indiana | Opinion 18A-CT-2435 | June 18, 2019          Page 6 of 18
      is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Sedam v. 2JR

      Pizza Enters., LLC, 84 N.E.3d 1174, 1176 (Ind. 2017). “A fact is ‘material’ if its

      resolution would affect the outcome of the case, and an issue is ‘genuine’ if a

      trier of fact is required to resolve the parties’ differing accounts of the truth, or if

      the undisputed material facts support conflicting reasonable inferences.”

      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Thus, if Rohrman

      “demonstrate[d] the absence of any genuine issue of fact as to a determinative

      issue,” it is entitled to summary judgment unless Tutino came forward with

      contrary evidence showing a triable issue. Jarboe v. Landmark Cmty. Newspapers

      of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994).


[8]   Our review is limited to those facts designated to the trial court, T.R. 56(H),

      and we construe all facts and reasonable inferences drawn from those facts in

      favor of the non-moving party, Meredith v. Pence, 984 N.E.2d 1213, 1218 (Ind.

      2013). On appeal, the non-moving party carries the burden of persuading us the

      grant of summary judgment was erroneous. Hughley, 15 N.E.3d at 1003. A

      grant of summary judgment will be affirmed if it is sustainable upon any theory

      supported by the designated evidence. Miller v. Danz, 36 N.E.3d 455, 456 (Ind.

      2015).


                 II. Designated Summary Judgment Evidence
[9]   In support of its motion for summary judgment, Rohrman designated, among

      other things, the affidavit of its expert, James R. Chinni, President and

      Principal Engineer of Engineering Answers, LLC. Chinni incorporated into his


      Court of Appeals of Indiana | Opinion 18A-CT-2435 | June 18, 2019             Page 7 of 18
affidavit a report he prepared regarding this incident. Chinni summarized the

findings from his report in his affidavit:


        a. The subject 2004 Honda CRV is equipped with a SRS system
        that is designed to deploy during moderate to severe frontal
        collisions. The National Highway Transportation Safety
        Administration defines moderate to severe frontal crashes as
        equivalent to flat barrier impacts at a NO-FIRE speed change of
        8 mph and MUST-FIRE speed change of 14 mph or higher.


        b. The subject 2004 Honda CRV includes an SRS electronic
        control unit with dual thresholds. If the driver’s seat belt is
        latched, airbags deploy at a slightly higher crash severity
        threshold.


        c. In the subject incident, the impact of the 2008 Ford Fusion
        into the rear of the subject 2004 Honda CRV would not result in
        a frontal airbag deployment in the CRV, regardless of severity.


        d. The frontal airbags in the subject Honda CRV could
        potentially deploy due to the subsequent collision into the rear of
        the 2006 Chevy Cobalt. The CRV’s airbags would not deploy if
        the 2008 Ford Fusion impacted the rear of the CRV at speeds less
        than 29.5 mph. The CRV’s airbags would be expected to deploy
        if the 2008 Ford Fusion impacted the rear of the CRV at speeds
        greater than 35.7 mph.


        e. The post-impact damage to the subject 2004 Honda CRV is
        not consistent with damage that would be expected from a crash
        that would deploy frontal airbags. The post-impact damage and
        repairs are consistent with low speed bumper impact tests of
        similar Honda CRV’s [sic] conducted by the Insurance Institute
        for Highway Safety.



Court of Appeals of Indiana | Opinion 18A-CT-2435 | June 18, 2019         Page 8 of 18
        f. Inspection of the Supplemental Restraint System Electronic
        Control Unit ([“]SRS ECU”) in the subject Honda CRV
        indicated that it never experienced a frontal collision above the
        NO-FIRE threshold in the entire time it has been installed.


        g. Vehicle manufacturers like Honda are required to notify
        owners of recalls that may affect their vehicles. Vehicle
        manufacturers also determine the actions required to remedy the
        condition. Dealerships implement remedies to recalls but are not
        responsible for initiating recalls or notifying owners of the recalls.


        h. No recalls applicable to the Honda CRV affect whether the
        SRS ECU deploys airbags during a crash. Specifically, the Takata
        recalls do not affect whether airbags should or should not deploy
        during a crash.


        i. All records indicate that Bob Rohrman Indy Honda completed
        all driver airbag related service to the Honda CRV in accordance
        with service bulletins provided by Honda.


        j. The subject accident on July 14, 2015 was not severe enough to
        deploy the frontal airbags in the Honda CRV.


Appellant’s App., Vol. 2 at 59-61. Accordingly, Rohrman moved for summary

judgment on the basis that it is “not responsible for recall notifications, the

recall at issue did not involve non-deployment concerns, [] the undisputed

evidence shows that [Rohrman] properly performed all recall work . . . [and]

the Honda CRV’s airbags did not deploy during the subject accident because

the accident did not involve sufficient force to trigger airbag deployment . . . .”

Id. at 15.



Court of Appeals of Indiana | Opinion 18A-CT-2435 | June 18, 2019            Page 9 of 18
[10]   In her response to the motion for summary judgment, Tutino stated that she

       sued Rohrman “because its’ [sic] service department failed to follow Honda’s

       instructions as set out in [service bulletin 10-039], negligently servic[ed]

       [Tutino’s] vehicle, fail[ed] to repair and or replace the vehicle’s airbag system,

       misrepresent[ed] to [Tutino] that the repair work had been done when in fact it

       had not been done; putting [Tutino] in danger of being seriously injured or even

       killed in an auto accident.” Id. at 84-85. Tutino designated the affidavit and

       accompanying report of her expert, Tony Passwater, founding partner of

       Quality Assurance Systems International, LLC and president of AEII

       Consulting Services, LLC. Passwater’s report concluded:


               [I]n my opinion, [Rohrman] did not perform the work properly
               as outlined in the Honda Service Bulletin 10-039 on January 17,
               2015, but did later replace the defective driver’s side inflator unit
               after the accident on October 17, 2015.


               There were extensive repairs made to the floor and other inner
               structural panels along with other sufficient damages consistent
               with normal frontal airbag deployments.


               I also believe Mrs. Tutino’s vehicle was traveling at sufficient
               speed and have [sic] enough deceleration from impact into [the
               vehicle in front] that the frontal airbag would normally deploy.


       Id. at 133. With respect to the conclusion that Rohrman did not properly

       perform the recall work, Passwater’s report specifically refers to Rohrman’s

       failure to make a punch mark under the fifth character of the VIN to indicate

       that the recall inspection had been done. See id. at 131. And, although he

       Court of Appeals of Indiana | Opinion 18A-CT-2435 | June 18, 2019           Page 10 of 18
       acknowledges the proper procedure was to enter a Takata airbag’s serial

       number and the vehicle’s VIN into the Honda database “to determine if the air

       bag should be replaced[,]” he summarily concluded the air bag inflator should

       have been replaced because “it was part of the recall[.]” Id. (emphasis added).

       Passwater included no information in his report demonstrating that the airbag

       was a Takata replacement airbag – the only airbags subject to the recall at the

       time – or that the serial number placed it in the category of airbags that needed

       to have the inflator replaced.


[11]   Following Tutino’s submission, Rohrman deposed her expert and then filed a

       reply brief in support of its motion for summary judgment, designating parts of

       Passwater’s deposition as additional evidence. In his deposition, Passwater

       stated:


                  Q: . . . Do you have anything to indicate that this recall had
                  anything to do with non-deployment?
                  A: No.
                  Q: Because it didn’t did it?
                  A: This recall, no.
                  Q: [T]he replacement of this igniter[3] A, the original one . . .,
                  and igniter B, the replacement one through the recall, has no
                  bearing on deployment or non-deployment, does it?
                  A: No.
                  ***
                  Q: Now, we’ve established that the . . . recall didn’t change
                  anything with respect to whether the airbag should or shouldn’t
                  deploy; right?



       3
           The parties use “inflator” and “igniter” interchangeably.


       Court of Appeals of Indiana | Opinion 18A-CT-2435 | June 18, 2019               Page 11 of 18
               A: Correct.
               Q: So replacing the airbag in 2015 would have changed nothing
               with respect to triggering deployment here?
               A: That is not – you can’t say yes or no. Most likely because of
               the recall had nothing to do with it, yes, but I can’t say 100
               percent that it would.
               Q: But most likely replacing that inflator would not have
               changed anything with respect to deployment; right?
               A: Correct.
               Q: And we know the SRS light was not on after the dealership
               performed the January 2015 recall work; right?
               A: Correct.
               Q: So we know the airbag installed by whomever was installed
               correctly; right?
               A: Yes.


       Id. at 213, 216.


                III. Failure to Properly Perform Recall Service
[12]   Tutino claimed that Rohrman is responsible for her driver’s airbag failing to

       deploy in the collision due to the work Rohrman did (or did not) perform

       pursuant to the American Honda recall. The designated evidence shows that

       both parties’ experts agreed that front airbags are not designed to deploy during

       a rear-end collision but they disagreed about whether the force of the front-end

       collision when Tutino’s car struck the car in front of her was sufficient to meet

       the deployment threshold for the front airbags. They also disagreed about

       whether Rohrman properly performed the recall work in January 2015. But

       these disagreements do not create a genuine issue of material fact because they

       do not bear on the ultimate resolution of the determinative issue. The


       Court of Appeals of Indiana | Opinion 18A-CT-2435 | June 18, 2019        Page 12 of 18
       determinative issue is whether Rohrman is responsible for the airbag failing to

       deploy in Tutino’s collision. Given Passwater’s deposition testimony, there is

       no genuine issue about that material fact. Rohrman was tasked with

       performing recall work that was intended to address issues that could occur

       when an airbag deployed but did not involve anything that would impact

       whether the airbag should have deployed. See id. at 169 (Service Bulletin 10-

       039 stating that “[i]f an affected airbag deploys,” the inflator could rupture

       (emphasis added)).


[13]   Tutino argues that a jury must decide whether Rohrman is responsible for the

       airbag failing to deploy because there is conflicting evidence on whether the

       recall work was properly done and whether the airbag should have deployed in

       this particular collision. Even if we accept Tutino’s position that Rohrman

       either did not perform the recall work in January at all or did not perform it

       correctly because it did not replace the airbag inflator, and even if we accept her

       position that her collision should have caused the airbag to deploy,4 her claim

       still fails. Rohrman designated evidence that the recall work was performed




       4
         This is a questionable proposition given that Tutino’s expert agreed in his deposition that the seat belt
       pretensioner activation threshold is lower than the airbag deployment threshold and that the seat belt
       pretensioners did not activate in this collision per the information available from the SRS ECU which records
       all incidents. When seat belt pretensioners activate, they lock up the seat belt to restrain the wearer and once
       they have been activated, the seat belts must be replaced. See, e.g., id. at 215 (Passwater stating that the seat
       belt pretensioner threshold is lower than the airbag deployment threshold; that once fired, seat belts have to
       be replaced; and that the pretensioner was never replaced in Tutino’s vehicle). Tutino herself stated in her
       deposition that the seat belts did not lock up and that they have never been replaced. See, e.g., id. at 107, 122.
       Regardless, we can accept Tutino’s position that the airbag should have deployed and still affirm summary
       judgment for Rohrman because the determinative issue is whether Rohrman’s service work affected whether
       the airbag would deploy.

       Court of Appeals of Indiana | Opinion 18A-CT-2435 | June 18, 2019                                   Page 13 of 18
and performed correctly and that the threshold for deploying the airbag was not

reached in this collision, but more relevantly, Rohrman also designated

evidence that “[n]o recalls applicable to the Honda CRV affect whether the SRS

ECU deploys airbags during a crash. Specifically, the . . . recalls do not affect

whether airbags should or should not deploy during a crash.” Id. at 60 (emphasis

added). In turn, Tutino designated evidence that the threshold for deploying

the airbag was reached, creating an issue of fact, but when it came to tying the

recall work to the airbag deployment, her expert essentially aligned with

Rohrman’s, agreeing that the recall did not have anything to do with airbag

deployment and that he had no evidence to indicate otherwise. See id. at 213.5

Thus, there is no issue as to the material fact of whether the recall work

Rohrman performed could be responsible for the failure of the airbag to deploy

in Tutino’s accident. See Romero v. Brady, 5 N.E.3d 1166, 1170 (Ind. Ct. App.

2014) (noting that the genuine issues of material fact identified by the




5
 Tutino points to the following exchange from Passwater’s deposition as evidence he did not agree that
Rohrman’s failure to replace the airbag inflator had no bearing on whether the airbag should have deployed:

         Q: And we know, had they done the work even as you claim they should and replaced
         the airbag inflator, it doesn’t change anything, does it?
         A: I didn’t say that. I said that, according to the recall, it wouldn’t change anything.


Appellant’s App., Vol. 3 at 50. First, as Rohrman points out, the deposition page on which this passage
appears (in addition to several other pages of deposition testimony included in Volume 3 of the Appellant’s
Appendix) does not seem to have been designated to the trial court by any party but instead added to the
appendix for purposes of this appeal. This passage is therefore not properly citable to this court. See Scribner
v. Gibbs, 953 N.E.2d 475, 486 (Ind. Ct. App. 2011) (“We cannot consider evidence not designated to the trial
court in reviewing its summary judgment ruling.”). Second, this seems to us to be a distinction without a
difference, and regardless, Tutino did not provide any evidence tying replacement of the airbag inflator to
proper deployment.

Court of Appeals of Indiana | Opinion 18A-CT-2435 | June 18, 2019                                   Page 14 of 18
       nonmovant “are not material questions of fact because they do not bear on the

       ultimate resolution of a relevant issue” and thus, even if the facts are as the

       nonmovant alleges, the nonmovant failed to show that those facts impact

       potential liability), trans. denied.


[14]   We acknowledge Tutino’s legal argument that based upon Hughley, “there is a

       very, very, low threshold for an individual . . . to escape a Summary Judgment

       Motion and there’s an extremely high threshold for the movant . . . .”

       Transcript, Volume II at 17; see also Appellant’s Brief at 8. That Hughley sets a

       high bar for a summary judgment movant is undeniably true, as is the fact that

       Hughley determined even a “perfunctory and self-serving” affidavit was

       sufficient to defeat summary judgment. 15 N.E.3d at 1004. But Hughley does

       not eliminate summary judgment in favor of letting every case in which the

       summary judgment opponent designates any evidence go to trial; it simply

       reiterates that Indiana has a heightened standard for granting summary

       judgment that can be defeated on “thin” evidence as long as the evidence raises

       a factual issue. Id. at 1005. Here, Passwater’s affidavit, as supplemented by his

       deposition that elaborated on and clarified his conclusions, did not raise a

       genuine issue of material fact about whether the work Rohrman performed or

       did not perform on Tutino’s vehicle affected whether her airbag would deploy

       in a front-end crash. We note, however, that Rohrman’s characterizes Tutino’s

       argument as “simply to state, ‘Jury. Jury. Jury. Hughley. Hughley. Hughley.’”




       Court of Appeals of Indiana | Opinion 18A-CT-2435 | June 18, 2019         Page 15 of 18
       Brief of Appellees at 35.6 This response unnecessarily minimizes Tutino’s

       reliance on a legitimate part of Indiana’s summary judgment practice –

       emphasizing Indiana’s unique standard. That we ultimately agree with

       Rohrman that Hughley does not preclude summary judgment in this case should

       not be taken to mean that we agree with Rohrman’s dismissive manner of

       making its argument.


                                           IV. Failure to Warn
[15]   Tutino also claimed that Rohrman, in agreeing to service her vehicle on

       January 17, 2015, assumed a duty to warn her that her airbag was defective.

       Tutino’s argument about this claim is not well-developed enough for us to

       discern the particular argument she is making – it could be that she claims

       Rohrman failed to tell her on January 17, 2015 that her airbag was defective or

       failed to tell her of the later-issued recall in a timely fashion or both. As to the

       first interpretation, there is no designated evidence that the airbag was defective

       pursuant to the terms of the September 2014 service bulletin. As to the second,

       Rohrman designated on summary judgment the opinion of its expert that


                  Vehicle manufacturers like Honda are required to notify owners
                  of recalls that may affect their vehicles. Vehicle manufacturers
                  also determine the actions required to remedy the condition.
                  Dealerships implement remedies to recalls but are not responsible
                  for initiating recalls or notifying owners of the recalls.




       6
           Rohrman repeated this phrase in its Motion for Oral Argument.


       Court of Appeals of Indiana | Opinion 18A-CT-2435 | June 18, 2019          Page 16 of 18
       Appellant’s App., Vol. 2 at 60. Tutino designated no evidence to oppose this.7

       In fact, 49 U.S.C. §§ 30118 and 30119 squarely place the onus on a vehicle

       manufacturer to notify both the National Highway Traffic Safety

       Administration and owners, purchasers, and dealers when the manufacturer

       learns one of its vehicles contains a safety-related defect and to remedy that

       defect without charge. See U.S. v. Gen. Motors Corp., 656 F. Supp. 1555, 1558

       (D.D.C. 1987). The law places that responsibility on manufacturers, and

       Tutino offered no evidence that any individual at Rohrman undertook an

       ongoing duty to keep her apprised of future recalls. As there is no genuine issue

       of material fact as to who had the duty to notify Tutino of defects in her vehicle,

       the trial court properly granted summary judgment to Rohrman on this claim.



                                                  Conclusion
[16]   As Rohrman demonstrated the absence of a genuine issue of fact as to a

       determinative issue and Tutino failed to come forward with contrary evidence

       showing an issue remained for trial, the trial court properly granted summary

       judgment to Rohrman. The judgment of the trial court is affirmed.


[17]   Affirmed.




       7
         Tutino states in her brief that Rohrman “failed to warn [her] of the subsequent recall for the same airbag
       that it ‘serviced’ on January 17, 2015 until after her accident.” Appellant’s Br. at 14. However, there seems
       to be no dispute that Rohrman never informed her of the subsequent recall as it was not obligated to do so.
       Instead, Tutino received notice of the subsequent recall from American Honda.

       Court of Appeals of Indiana | Opinion 18A-CT-2435 | June 18, 2019                                Page 17 of 18
Baker, J., and Najam, J., concur.




Court of Appeals of Indiana | Opinion 18A-CT-2435 | June 18, 2019   Page 18 of 18
