                                                                                FILED
                                                                            Jul 24 2019, 5:38 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Cameron A. Morgan                                           BANE-WELKER EQUIPMENT,
Michelle A. Cobourn-Baurley                                 LLC
McNeely Stephenson                                          Daniel W. Glavin
Shelbyville, Indiana                                        Kathleen M. Erickson
                                                            O’Neill McFadden & Willett LLP
                                                            Schererville, Indiana
                                                            ATTORNEYS FOR APPELLEE CNH
                                                            INDUSTRIAL AMERICA, LLC
                                                            Nicholas C. Pappas
                                                            Maggie L. Smith
                                                            Jessica Williams Schnelker
                                                            Frost Brown Todd LLC
                                                            Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

Indiana Farm Bureau as                                      July 24, 2019
Subrogee of Chester Lemler,                                 Court of Appeals Case No.
Garry Lemler, and Zak Lemler,                               18A-PL-2368
Appellant-Plaintiff,                                        Appeal from the
                                                            Marshall Circuit Court
        v.                                                  The Honorable
                                                            Curtis D. Palmer, Judge
CNH Industrial America, LLC                                 Trial Court Cause No.
and Bane-Welker Equipment,                                  50C01-1710-PL-48
LLC,
Appellees-Defendants.




Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019                                   Page 1 of 25
      Kirsch, Judge.


[1]   Indiana Farm Bureau Insurance (“Farm Bureau”) appeals the trial court’s grant

      of summary judgment in favor of CNH Industrial America, LLC (“CNH

      Industrial”) and Bane-Welker Equipment, LLC (“Bane-Welker”) in Farm

      Bureau’s action seeking subrogation from CNH Industrial and Bane-Welker for

      payment Farm Bureau paid to its insureds for damages to farm equipment. On

      appeal, Farm Bureau contends that the trial court erred in granting summary

      judgment in favor of Bane-Welker and CNH Industrial, specifically raising the

      following issues:


              I.       Whether Bane-Welker effectively disclaimed the implied
                       warranty of merchantability by the language used in the
                       documents signed at the time of purchase;


              II.      Whether the Corn Head is considered “other property”
                       under Indiana law such that tort recovery for damages to
                       the Corn Head is barred by the economic loss doctrine;
                       and


              III.     Whether Farm Bureau’s claim for negligent service of the
                       Combine is barred by the economic loss doctrine.


[2]   We affirm.




      Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019           Page 2 of 25
                                  Facts and Procedural History1
[3]   Tri L Farms (“the Farm”) was formed in 1985 and operates as a commercial

      farm, growing, harvesting, and selling corn and soybeans. Appellant’s App. Vol.

      3 at 73-75, 100. The Farm is owned and operated by Garry Lemler (“Garry”)

      and Zak Lemler (“Zak”) in equal partnership with their father, Chester Lemler.

      Id. at 73-74, 99-100. In its operation as a commercial farm, the Farm uses a

      combine to harvest its corn and soybean crops. Id. at 81. A combine is “a

      harvesting machine that heads, threshes, and cleans grain while moving over a

      field.” https://www.merriam-webster.com/dictionary/combine (last visited

      May 30, 2019). When harvesting crops, a combine must have a “head”

      attached to the front of the combine, which feeds the crop into the combine so

      that the combine can process and harvest the crop. Appellant’s App. Vol. 3 at 81-

      82. When the Farm harvests its corn crops, it uses a “corn head” attached to

      the combine, and without the corn head attached, a combine cannot harvest

      corn. Id. at 81-82, 91-92.


[4]   The Farm likes to replace its combines and corn heads every two or three years,

      and, in preparation for the 2015 harvest season, the Farm decided to trade in its

      existing combine and corn head and purchase updated models. Id. at 101-02.

      At that time, Garry was a salesman for Bane-Walker, in addition to owning and

      operating the Farm. Id. at 77. Prior to the beginning of the 2015 harvest




      1
       Oral argument was heard on this case on May 16, 2019 in the Indiana Court of Appeals courtroom in
      Indianapolis, Indiana. We commend counsel on the quality of their written and oral advocacy.

      Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019                           Page 3 of 25
      season, Garry arranged for the Farm to purchase from Bane-Welker a used

      Case IH 8230 combine (“the Combine”) in January 2015 and a used Case IH

      4412F-30 corn head (“the Corn Head”) in August 2015. Id. at 84; Appellant’s

      App. Vol. 4 at 70. Both the Combine and the Corn Head had been

      manufactured by CNH Industrial. Appellant’s App. Vol. 2 at 20. CNH Industrial

      had no involvement in the 2015 retail transactions between Bane-Welker and

      the Farm.


[5]   As part of the purchase of both the Combine and the Corn Head, the Farm

      executed, in January 2015, a Retail Purchase Order and Security Agreement

      (“the Purchase Order”) and a Retail Installment Sale Contract and Security

      Agreement (“the Sale Contract”) for the Combine and, in August 2015, a Retail

      Purchase Order and Security Agreement (“the Purchase Order”) and a Retail

      Installment Sale Contract and Security Agreement (“the Sale Contract”) for the

      Corn Head. Appellant’s App. Vol. 3 at 56-58, 118-20; Appellant’s App. Vol. 4 at 70-

      71, 73-75. Garry completed these forms on behalf of Bane-Welker, as the

      salesperson on the transactions, and Zak signed the documents on behalf of the

      Farm. Appellant’s App. Vol. 3 at 86-87, 105-06.


[6]   The Purchase Order for the Combine contained the following provisions,

      informing the Farm that it must: “1. Read this contract before you sign it;” and

      “4. The additional terms and conditions set forth on the reverse side are a part of

      this contract and are incorporated herein by reference.” Id. at 56 (emphasis

      added). On the reverse side of the Purchase Order in the center of the page,

      under the headings, “WARRANTY” and “USED EQUIPMENT,” which

      Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019          Page 4 of 25
      were in all caps and bold typeface, the following language appeared: “USED

      EQUIPMENT covered by this Purchase Order is sold AS-IS, WHERE IS,

      WITH NO REPRESENTATIONS OR WARRANTIES, other than those

      stated on the reverse side for equipment 5 years old or newer.” Id. at 58. The

      Purchase Order for the Corn Head contained identical language. Appellant’s

      App. Vol. 4 at 70-71. Garry and Zak testified they received these terms and

      conditions on behalf of the Farm when they received the Purchase Order and

      that they understood the terms and conditions associated with the “USED

      EQUIPMENT” warranty provisions applied to their purchase. Appellant’s App.

      Vol. 3 at 87-88, 107-08. Both Garry and Zak also stated that they were aware

      and understood that the Combine, because it was used, did not come with any

      warranties. Id. at 80-81, 104-05.


[7]   In addition to the Purchase Orders, the Farm also executed the Sale Contracts

      as part of its purchase of the Combine and the Corn Head. Id. at 118-20;

      Appellant’s App. Vol. 4 at 73-75. Each of the Sale Contracts spelled out the

      financial terms and secured the financial consideration of the transaction.

      Appellant’s App. Vol. 3 at 66. The first page of the Sale Contract for the Combine

      provided, just above the signature lines, “DO NOT SIGN THIS BEFORE

      YOU READ THE TERMS ON THE THREE AGREEMENT PAGES (PLUS

      ANY ADDENDUMS), EVEN IF OTHERWISE ADVISED.” Id. at 118. At

      the top of the second page of the Sale Contract, it specifically stated in all

      capital letters “NO WARRANTY.” Id. at 119. It further stated, “THE

      EQUIPMENT IS SOLD AS IS AND WITH ALL FAULTS . . . . NEITHER

      Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019          Page 5 of 25
      SELLER NOR MANUFACTURER MAKE ANY OTHER

      REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AND

      SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF

      MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.”

      Id. The Sale Contract for the Corn Head contained identical language.

      Appellant’s App. Vol. 4 at 73-74. Garry and Zak acknowledged receiving all three

      pages of the Sale Contract. Appellant’s App. Vol. 3 at 89, 110-11.


[8]   On October 29, 2016, the Combine and the attached Corn Head were being

      used to harvest the Farm’s corn crops when the Combine caught fire, which

      resulted in complete destruction of the Combine and the Corn Head, allegedly

      causing damage in the amount of $357,699. Appellant’s App. Vol. 2 at 21. At the

      time of this property damage, the Combine and the Corn Head were insured

      under a single Farmowners Policy issued by Farm Bureau. Appellant’s App. Vol.

      4 at 7. Farm Bureau provided payment to the Farm for the property damage to

      the Combine and the Corn Head and then filed a complaint, as subrogee of the

      Lemlers, against CNH Industrial and Bane-Welker to recover that payment.

      Appellant’s App. Vol. 2 at 19-25.


[9]   In the complaint, Farm Bureau asserted a product liability claim, seeking tort

      damages against CNH Industrial and Bane-Welker for the damage to the

      Combine and the Corn Head. Id. Farm Bureau also asserted a breach of

      implied warranty of merchantability against Bane-Welker and a separate

      negligence claim against Bane-Welker for improperly servicing the Combine

      after purchase. Id. CNH Industrial and Bane-Welker sought summary

      Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019       Page 6 of 25
       judgment on the product liability claim, arguing the tort claim for property

       damage to the Combine and the Corn Head was barred by the economic loss

       doctrine. Appellant’s App. Vol. 3 at 27-29; Appellant’s App. Vol. 4 at 97-100. In

       response, Farm Bureau conceded that the economic loss doctrine barred any

       tort claim for property damage to the Combine but asserted that its claim for

       damage to the Corn Head was not barred by the economic loss doctrine

       because the Corn Head is considered “other property,” which is not precluded

       from recovery of damages. Appellant’s App. Vol. 3 at 157-160. Bane-Welker also

       sought summary judgment against the breach of warranty and negligence

       claims asserted by Farm Bureau, arguing that all implied warranties had been

       disclaimed and that the negligence claim against it was barred by the economic

       loss doctrine. Id. at 15-37; Appellant’s App. Vol. 4 at 96-108. The trial court

       granted summary judgment in favor of CNH Industrial and Bane-Welker as to

       all of Farm Bureau’s claims. Appellant’s App. Vol. 2 at 17. Farm Bureau now

       appeals.


                                        Discussion and Decision
[10]   When reviewing the grant of summary judgment, our standard of review is the

       same as that of the trial court. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d

       1167, 1173 (Ind. Ct. App. 2012) (citing Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of

       Ind., Inc., 832 N.E.2d 559, 562 (Ind. Ct. App. 2005)), trans. denied. We stand in

       the shoes of the trial court and apply a de novo standard of review. Id. (citing

       Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind. Ct. App. 2006)). Our

       review of a summary judgment motion is limited to those materials designated

       Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019          Page 7 of 25
       to the trial court. Ind. Trial Rule 56(H); Thornton v. Pietrzak, 120 N.E.3d 1139,

       1142 (Ind. Ct. App. 2019), trans. denied. Summary judgment is appropriate only

       where the designated evidence shows there are no genuine issues of material

       fact and the moving party is entitled to judgment as a matter of law. T.R.

       56(C). For summary judgment purposes, a fact is “material” if it bears on the

       ultimate resolution of relevant issues. FLM, 973 N.E.2d at 1173. We view the

       pleadings and designated materials in the light most favorable to the non-

       moving party. Id. Additionally, all facts and reasonable inferences from those

       facts are construed in favor of the non-moving party. Id. (citing Troxel Equip.

       Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct. App. 2005), trans.

       denied). The initial burden is on the moving party to demonstrate the absence of

       any genuine issue of fact as to a determinative issue, at which point the burden

       shifts to the non-movant to come forward with contrary evidence showing an

       issue for the trier of fact. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


[11]   A trial court’s grant of summary judgment is clothed with a presumption of

       validity, and the party who lost in the trial court has the burden of

       demonstrating that the grant of summary judgment was erroneous. Henderson v.

       Reid Hosp. and Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans.

       denied. We will affirm upon any theory or basis supported by the designated

       materials. Id. When a trial court grants summary judgment, we carefully

       scrutinize that determination to ensure that a party was not improperly

       prevented from having his or her day in court. Id.



       Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019         Page 8 of 25
                          I.       Implied Warranty of Merchantability
[12]   Indiana’s version of the Uniform Commercial Code provides:


               Where the seller at the time of contracting has reason to know
               any particular purpose for which the goods are required and that
               the buyer is relying on the seller’s skill or judgment to select or
               furnish suitable goods, there is, unless excluded or modified
               under IC 26-1-2-316, an implied warranty that the goods shall be
               fit for such purpose.


       Ind. Code § 26-1-2-315. The implied warranty of merchantability is imposed by

       operation of law for the protection of the buyer, and it must be liberally

       construed in favor of the buyer. Gared Holdings, LLC v. Best Bolt Products, Inc.,

       991 N.E.2d 1005, 1013 (Ind. Ct. App. 2013) (citing Woodruff v. Clark Cty. Farm

       Bureau Coop. Ass’n, 153 Ind. App. 31, 43, 286 N.E.2d 188, 194-95 (1972)), trans.

       denied. Indiana Code section 26-1-2-316 addresses the exclusion or

       modification of warranties and states in pertinent part:


               (2) Subject to subsection (3), to exclude or modify the implied
               warranty of merchantability or any part of it the language must
               mention merchantability and in case of a writing must be
               conspicuous, and to exclude or modify any implied warranty of
               fitness the exclusion must be by a writing and conspicuous.
               Language to exclude all implied warranties of fitness is sufficient
               if it states, for example, that “There are no warranties which
               extend beyond the description on the face hereof.”


               (3) Notwithstanding subsection (2):


               (a) unless the circumstances indicate otherwise, all implied
               warranties are excluded by expressions like “as is,” “with all
       Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019            Page 9 of 25
                  faults,” or other language which in common understanding calls
                  the buyer’s attention to the exclusion of warranties and makes
                  plain that there is no implied warranty.


       Ind. Code § 26-1-2-316(2), (3)(a).


[13]   Farm Bureau argues that the implied warranty of merchantability was not

       disclaimed by the documents signed by the Farm at the time of purchase of the

       Combine and the Corn Head. Specifically, Farm Bureau contends that the “as

       is” language utilized by Bane-Welker was not sufficient to disclaim the implied

       warranty of merchantability because it did not include the word

       “merchantability,” which is required under Indiana Code section 26-1-2-316(2)

       and that the word “merchantability” must be used in the disclaimer to be

       effective. Farm Bureau further asserts that Bane-Welker’s attempted disclaimer

       was not conspicuous because it did not bring the buyer’s attention to the

       language purporting to disclaim the implied warranty of merchantability.

       Therefore, Farm Bureau maintains that attempted disclaimers used by Bane-

       Welker did not effectively disclaim the implied warranty of merchantability.


[14]   Initially, we note that Farm Bureau also argues that the Sale Contracts, through

       which the Combine and the Corn Head were financed through CNH Industrial

       Capital,2 and the language contained within that purports to disclaim the

       implied warranty of merchantability, have no impact on the breach of implied




       2
           Appellee CNH Industrial America, LLC is an entity separate from CNH Industrial Capital.


       Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019                             Page 10 of 25
       warranty of merchantability claim because its claim is against Bane-Welker and

       not CNH Industrial Capital and there is no agency relationship between Bane-

       Welker and CNH Industrial Capital. Farm Bureau presents no authority for its

       contention that an agency relationship between Bane-Welker and CNH

       Industrial Capital must exist in order for the Sale Contracts to be used to prove

       disclaimer. However, even assuming, without deciding, that the Sale Contract

       cannot be used to determine if the implied warranty of merchantability has been

       disclaimed, we conclude that the language contained in the Purchase Order was

       sufficient to disclaim the implied warranty.


[15]   Contrary to Farm Bureau’s assertions, Indiana Code section 26-1-2-316 does

       not require the inclusion of the word “merchantability” to make a disclaimer of

       the implied warranty of merchantability effective. Although subsection (2) of

       the statute states that in order “to exclude or modify the implied warranty of

       merchantability or any part of it[,] the language must mention

       merchantability,” it also provides that the subsection is, “[s]ubject to subsection

       (3).” Ind. Code § 26-1-2-316(2). Subsection (3) states in pertinent part,

       “Notwithstanding subsection (2): (a) unless the circumstances indicate

       otherwise, all implied warranties are excluded by expressions like ‘as is,’ ‘with

       all faults,’ or other language that in common understanding calls the buyer’s




       Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019        Page 11 of 25
       attention to the exclusion of warranties and makes plain that there is no implied

       warranty.” Ind. Code § 26-1-2-316(3)(a).3


[16]   Here, the Purchase Order contained the following provisions, informing the

       Farm that it must: “1. Read this contract before you sign it;” and “4. The

       additional terms and conditions set forth on the reverse side are a part of this

       contract and are incorporated herein by reference.” Appellant’s App. Vol. 3 at 56

       (emphasis added). On the reverse side of the Purchase Order, under the

       headings, “WARRANTY” and “USED EQUIPMENT,” which were in all

       caps and bold typeface, the following language appeared: “USED

       EQUIPMENT covered by this Purchase Order is sold AS-IS, WHERE IS,

       WITH NO REPRESENTATIONS OR WARRANTIES, other than those

       stated on the reverse side for equipment 5 years old or newer.” Id. at 58. The

       Purchase Order for the Corn Head contained identical language. Appellant’s

       App. Vol. 4 at 70-71. Under subsection (3) of the statute, this language was

       sufficient to disclaim the implied warranty of merchantability.


[17]   Farm Bureau cites to Woodruff v. Clark County Farm Bureau Cooperative

       Association, Inc., 153 Ind. App. 31, 286 N.E.2d 188 (Ind. Ct. App. 1972) to

       support its assertion that the word “merchantability” must be used in order for a

       disclaimer to be effective. In that case, the seller was found not to have

       effectively disclaimed the implied warranty of merchantability. Id. at 198.




       3
           We note that subsection (3) also contains (b)-(e), which are not applicable to the present case.


       Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019                                      Page 12 of 25
       However, contrary to Farm Bureau’s assertion that the “Woodruff court

       ultimately found that even though the seller receipt states ‘no warranties,

       express or implied, have been made’ and that acceptance was ‘as is,’ this

       language was insufficient to disclaim the implied warranty of merchantability as

       it failed to mention ‘merchantability’ in the language,” Appellant’s Br. at 14, this

       was not what the Woodruff case held. In that case, the attempted disclaimer did

       not contain the word “merchantability” as required under Indiana Code section

       26-2-1-2-316(2), but it did contain the words “as is,” which is allowed under

       subsection (3). Id. at 196. After determining that the “as is” language was

       contained in the sales receipts given to the buyer, the court went on to ascertain

       whether the conspicuousness requirement from subsection (2) should apply to

       the “as is” language requirement under subsection (3). Id. The court ultimately

       determined that the conspicuousness requirement should apply to subsection (3)

       and found that the language included in the sales receipts was not conspicuous

       and was insufficient as a matter of law to negate any implied warranties. Id. at

       198.


[18]   Farm Bureau also argues that the attempted disclaimer language is not

       conspicuous and, therefore, not effective to disclaim the implied warranty of

       merchantability. We disagree. “Conspicuous” is defined as:


               A term or clause is conspicuous when it is so written that a
               reasonable person against whom it is to operate ought to have
               noticed it. A printed heading in capitals (as:
               NONNEGOTIABLE BILL OF LADING) is conspicuous.
               Language in the body of a form is conspicuous if it is in larger or
               other contrasting type or color.
       Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019         Page 13 of 25
       Ind. Code § 26-1-1-201(10). “Whether the exclusionary language is

       ‘conspicuous’ is a question of law for the court.” Woodruff, 286 N.E.2d at 197.

       The purpose of requiring the exclusionary language to be conspicuous is to

       ensure that the attention of the buyer can reasonably be expected to be brought

       to the language. Id. at 198. In support of its argument, Farm Bureau again

       cites to Woodruff, where the Court held that the language used was not

       conspicuous because it “was not drawn to the attention of Woodruff at the time

       of delivery, and . . . there was nothing contained within the body of the

       purported disclaimers drawing Woodruff’s attention to the exclusionary

       language or making that language conspicuous in and of itself.” Id. Farm

       Bureau also contends that the language used by Bane-Welker in the Purchase

       Order was not conspicuous because it appears on the back side of the Purchase

       Order and Bane-Welker, through its salesman, Garry, did not advise the Farm

       of the language on the back side of the document or inform the Farm of the

       meaning of the language.


[19]   The disclaiming language in the Purchase Order was located on the back side of

       the document, which the Farm signed at the time of purchase. Right above the

       signature line, there was language that informed the buyer that he should read

       this contract before signing it and that there were additional terms and

       conditions set forth on the reverse side that were part of this contract and were

       incorporated by reference. Appellant’s App. Vol. 3 at 56. On the reverse side of

       the Purchase Order in the canter of the page, under the headings,

       “WARRANTY” and “USED EQUIPMENT,” which were in all caps and bold


       Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019          Page 14 of 25
       typeface, the following language appeared: “USED EQUIPMENT covered by

       this Purchase Order is sold AS-IS, WHERE IS, WITH NO

       REPRESENTATIONS OR WARRANTIES, other than those stated on the

       reverse side for equipment 5 years old or newer.” Id. at 58. The pertinent

       words “AS-IS, WHERE IS, WITH NO REPRESENTATIONS OR

       WARRANTIES” were in all caps and larger than the surrounding text and

       appeared under headings which were in all caps and bold typeface. Id. We

       conclude that the disclaimer language used by Bane-Welker in the Purchase

       Order was conspicuous as a matter of law, and the language in the Purchase

       Order effectively disclaimed the implied warranty of merchantability.


            II.      “Other Property” Under the Economic Loss Doctrine
[20]   Under the “economic loss doctrine,” contract is the sole remedy for the failure

       of a product or service to perform as expected. Gunkel v. Renovations, Inc., 822

       N.E.2d 150, 152 (Ind. 2005). Indiana law under the Products Liability Act and

       general negligence law states that where the injury to the plaintiff is from a

       defective product or service, the defendant is liable under a tort theory if the

       defect causes personal injury or damage to property other than the product or

       service itself. Indianapolis-Marion Cty. Pub. Library v. Charlier Clark & Linard,

       P.C., 929 N.E.2d 722, 726 (Ind. 2010) (citing Gunkel, 822 N.E.2d at 153).

       Indiana cases further hold that the defendant is not liable under a tort theory for

       any purely economic loss caused by its negligence (including, in the case of a

       defective product or service, damage to the product or service itself). Id. at 726-

       27. Therefore, the “economic loss doctrine” precludes tort liability for purely

       Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019          Page 15 of 25
       economic loss -- that is, pecuniary loss unaccompanied by any property damage

       or personal injury (other than damage to the product or service itself). Id. The

       doctrine “reflects that the resolution of liability for purely economic loss caused

       by negligence is more appropriately determined by commercial rather than tort

       law.” Id. at 729. As our Supreme Court observed in Gunkel, “The central

       theory underlying ‘economic loss’ is that the law should permit the parties to a

       transaction to allocate the risk that an item sold, or a service performed does

       not live up to expectations.” Gunkel, 822 N.E.2d at 155.


[21]   “[C]ontract law governs damage to the product or service itself and purely

       economic loss arising from the failure of the product or service to perform as

       expected.” Id. at 153. “Indiana law under the Products Liability Act and under

       general negligence law is that damage from a defective product or service may

       be recoverable under a tort theory if the defect causes personal injury or damage

       to other property, but contract law governs damage to the product or service

       itself and purely economic loss arising from the failure of the product or service

       to perform as expected.” Id. (emphasis added). In Gunkel, our Supreme Court

       explored what constitutes “other property” and “aligned [itself] with the courts

       that have concluded that the ‘product’ is the product purchased by the plaintiff,

       not the product furnished by the defendant.” Id. at 154-55.


[22]   Farm Bureau contends that the Corn Head is “other property,” and, therefore,

       the damages to it should be recoverable under a tort theory and not precluded

       under the economic loss doctrine. Because the Corn Head should be

       considered to be “other property,” Farm Bureau asserts that it can pursue a

       Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019        Page 16 of 25
       products liability claim against CNH Industrial, and the trial court erred in

       granting summary judgment on its claim against CNH Industrial. Although

       Indiana courts have not yet determined how the economic loss doctrine and the

       “other property” exception should apply to farm equipment, Farm Bureau

       maintains that the cases in which the courts have applied this area of the law in

       the context of consumer products and buildings provide guidance on how this

       issue of first impression should be determined.


[23]   Farm Bureau relies on two Indiana cases to support its argument, Gunkel and

       Guideone Insurance Co. v. U.S. Water Systems, Inc., 950 N.E.2d 1236 (Ind. Ct.

       App. 2011). In Gunkel, the plaintiffs contracted with Renovations, Inc., for the

       construction of a home, and six months later, the plaintiffs contracted with a

       different company, J&N Stone, to install a stone façade on the home. 822

       N.E.2d at 151. After water entered through gaps in the stone façade, the

       plaintiffs sued J&N for negligence, seeking to recover for damage to walls,

       ceilings, doors, floors, drywall, carpet, and carpet padding caused by the leaking

       façade. Id. J&N sought summary judgment on the ground that the plaintiffs

       sought purely economic damages, which were not available under a negligence

       theory. Id. at 152. The trial court granted summary judgment for J&N. Id. On

       transfer, our Supreme Court concluded that the plaintiffs could not recover in

       tort for damages to the façade itself, but could recover in tort for damage to the

       other parts of the home as damage to “other property,” aligning itself with the

       courts that have concluded that “the ‘product’ is the product purchased by the

       plaintiff, not the product furnished by the defendant.” Id. at 155-57. The


       Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019        Page 17 of 25
       Supreme Court found that the product or service purchased from J&N was the

       stone façade added to the exterior of the plaintiffs’ home and that J&N installed

       the façade under an arrangement with the plaintiffs that was independent of the

       contract with Renovations, Inc. to build the home. Id. at 156.


[24]   In Guideone, the homeowners purchased a water system and had it installed in

       their home. 950 N.E.2d at 1239-40. Shortly after installation, the water system

       leaked and caused water damage to the home, and after compensating the

       homeowners, their insurance company sought subrogation from the retailer and

       the installer of the water system. Id. at 1240. The installer moved to dismiss,

       contending that the economic loss doctrine precluded recovery, which the trial

       court granted. Id. at 1241. A panel of this court found that the trial court erred

       in granting the motion to dismiss because, although the economic loss doctrine

       would preclude recovery for damage to the water system itself, the “other

       property” exception permitted recovery for the flood damage to the home

       because the damaged parts of the home were acquired separately from the water

       system and were separate and distinct items from the water system. Id. at 1245.


[25]   Our Supreme Court again had an opportunity to decide a case involving the

       economic loss doctrine and the “other property” exception in Indianapolis-

       Marion County Public Library. There, the Library contracted with multiple

       entities to renovate and expand its downtown Indianapolis library facility, and

       after significant construction had occurred, it learned the accompanying

       parking garage contained construction and design defects that cost the Library

       forty to fifty million dollars to cure. 929 N.E.2d at 725. The Library brought a

       Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019       Page 18 of 25
       lawsuit against the various different architects, general contractors, and

       engineers alleging negligence, and the defendants argued the negligence claims

       against them were barred by the economic loss doctrine. Id. at 726. In its

       opinion finding that the economic loss doctrine did apply to bar the claims, our

       Supreme Court recognized that Gunkel agreed with other courts that had

       concluded that the “product” is the product purchased by the plaintiff, not the

       product furnished by the defendant and reasoned:


               “[o]nly the supplier furnishing the defective property or service is
               in a position to bargain with the purchaser for allocation of the
               risk that the product or service will not perform as expected. If a
               component is sold to the first user as a part of the finished
               product, the consequences of its failure are fully within the
               rationale of the economic loss doctrine. It therefore is not ‘other
               property.’”


       Id. at 731 (citing Gunkel, 822 N.E.2d at 154). The Supreme Court found that

       the product purchased by the Library was a complete renovation and expansion

       of all the components of its facility as part of a single, highly-integrated

       transaction. Id. The Court further held that the product “purchased from the

       Defendants was an integral part of the entire library construction project, not

       independent from it. Any damages alleged to have resulted from the

       Defendants’ negligence were to the ‘product’ the Library purchased, not to

       ‘other property.’ The economic loss doctrine applies.” Id. at 732.


[26]   In applying Indiana law regarding the “other property” exception, the question

       is what product was purchased by the Farm. Here, the Farm purchased a


       Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019          Page 19 of 25
Combine and Corn Head to be used to harvest corn. The Farm purchased both

the Combine and the Corn Head from the same seller, and both the Combine

and the Corn Head were manufactured by the same manufacturer. In the

months leading up to the 2015 Harvest Season, the Farm purchased the

Combine in January and the Corn Head in August. Therefore, although the

Combine and the Corn Head were purchased several months apart, the Farm

contracted with the same seller to purchase equipment for the stated purpose of

harvesting corn. Testimony established that without an attached Corn Head,

the Combine cannot harvest corn,4 and although the Combine itself can be

driven without a Corn Head, it is worthless for harvesting corn without a Corn

Head.5 The product purchased by the Farm was a functioning Combine and

the Corn Head was intended to be part of that bargained-for product.




4
 “Q: In particular, if you’re harvesting corn, you’re not going to be able to harvest corn without a corn head?
A: That’s correct.” Appellant’s App. Vol. 3 at 91-92.
5
 Q: In other words, if you drove a combine through a field and it didn’t have a corn head on it in the
cornfield, you couldn’t do anything with it?
A: You’re wasting your time.
Appellant’s App. Vol. 3 at 81-82.
Q: [I]f no implement is attached to the front of that combine, you can drive it around the field, right?
A: Sure.
Q: [But] It’s not going to do anything?
A: It’s not going to do anything.
Q: So you need some sort of implement attached to the front, right?
A: Correct.
Id. at 91-92.

Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019                                  Page 20 of 25
[27]   “The theory underlying the economic loss doctrine is that the failure of a

       product or service to live up to expectations is best relegated to contract law and

       to warranty either express or implied.” Gunkel, 822 N.E.2d at 155. The

       expectation here was that the Farm would obtain a working combine and corn

       head to use to harvest corn for its commercial farm business. It, therefore,

       purchased both the Combine and the Corn Head from Bane-Welker with the

       intent to use them for that purpose. However, the Combine caught fire, and the

       damages incidental to this fire, were a disappointed commercial expectation of

       properly functioning farm equipment. The Corn Head and Combine were thus

       “an integral part” of the harvesting equipment purchased by the Farm. See

       Indianapolis-Marion Cty. Pub. Library, 929 N.E.2d at 732 (finding the product

       “purchased from the Defendants was an integral part of the entire library

       construction project, not independent from it.”). Accordingly, any damages

       alleged to have resulted from the fire “were to the ‘product’ the [Farm]

       purchased, not to ‘other property.’” Id. We, therefore, conclude that the Corn

       Head is not “other property,” and the economic loss doctrine applies, thus

       barring Farm Bureau’s recovery of tort claim damages against CNH Industrial.


                                      III. Negligent Service Claim
[28]   Farm Bureau argues that the economic loss doctrine does not apply to its claims

       of negligence against Bane-Welker for the improper service of the Combine.

       Farm Bureau contends that Bane-Welker regularly performed service and

       maintenance on the Combine and was negligent in this service because Bane-

       Welker did not inform the Farm of known problems with the chopper bearings

       Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019        Page 21 of 25
       or recommend additional maintenance to address the problems. Appellant’s Br.

       at 25. Farm Bureau, therefore, argues that its claim against Bane-Welker for

       the negligent servicing of the Combine are separate from its claims under the

       Products Liability Act and not barred from the economic loss doctrine.

       Because this claim is not barred, Farm Bureau alleges that summary judgment

       was not appropriate for this negligence claim because Bane-Welker did not

       present evidence to show that the company met its duty of care and the

       resolution of the negligent servicing claim is a question of fact for the jury.


[29]   “The central theory underlying ‘economic loss’ is that the law should permit the

       parties to a transaction to allocate the risk that an item sold, or a service

       performed does not live up to expectations.” Gunkel, 822 N.E.2d at 155. The

       economic loss doctrine is not limited to the sale of goods. Id. “In general, a

       claim that a product or service did not perform as expected is best left to

       contract law remedies.” Id. Therefore, Indiana law holds that “a defendant is

       not liable under a tort theory for any purely economic loss caused by its

       negligence (including, in the case of a defective product or service, damage to

       the product or service itself).” Indianapolis-Marion Cty. Pub. Library, 929 N.E.2d

       at 726-27.


[30]   Here, Farm Bureau is contending that a service performed by Bane-Welker, the

       maintenance of the Combine, was performed negligently and did not live up to

       expectations. However, “a claim that a product or service did not perform as

       expected is best left to contract law remedies.” Gunkel, 822 N.E.2d at 155. We,



       Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019          Page 22 of 25
       therefore, conclude that Farm Bureau’s claims of negligent servicing are barred

       by the economic loss doctrine.


[31]   In conclusion, after a review of the record and the applicable law, we find that

       Bane-Welker properly disclaimed the implied warranty of merchantability with

       the language used in the Purchase Order. We also conclude that the Corn

       Head is not “other property,” and therefore, the economic loss doctrine applies

       to bar Farm Bureau’s recovery of tort claim damages. Further, Farm Bureau’s

       claim of negligent servicing against Bane-Welker is barred by the economic loss

       doctrine. The trial court did not err in granting summary judgment in favor of

       Bane-Welker and CNH Industrial.


[32]   Affirmed.


       Riley, J., concurs.


       Robb, J., concurs in part and dissents in part with separate opinion.




       Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019       Page 23 of 25
                                                    IN THE
            COURT OF APPEALS OF INDIANA

       Indiana Farm Bureau as Subrogee                             Court of Appeals Case No.
                                                                   18A-PL-2368
       of Chester Lemler, Garry Lemler,
       and Zak Lemler,
       Appellant-Plaintiff,

               v.

       CNH Industrial America, LLC
       and Bane-Welker Equipment,
       LLC,
       Appellees-Defendants,




       Robb, Judge, concurring in part and dissenting in part.

[33]   I concur with the majority in Part I of the opinion, and I believe this case is

       resolved in full by the decision that the implied warranty of merchantability for

       the Combine and Corn Head was effectively disclaimed. See slip op. at ¶ 19.

       Therefore, I would not address the merits of Parts II and III.


[34]   Independent of the fact I do not believe Part II is a live issue, if I were

       compelled to express my opinion, I would disagree with the majority’s

       conclusion that the Corn Head is not “other property.” See slip op. at ¶ 27. The

       Combine and Corn Head were purchased from the same place, but not at the

       same time. They were being used together when the Combine caught fire, but
       Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019                       Page 24 of 25
       they are independent implements: the Combine could be used with other

       headers; the Corn Head could be used with other combines. In other words,

       although neither implement could effectively be used alone to harvest corn,

       they did not have to be used exclusively with each other. For these reasons, if I

       were to consider the economic loss doctrine issue, I would hold the Corn Head

       is “other property” not subject to the economic loss doctrine. See Gunkel, 822

       N.E.2d at 155 (“[P]roperty acquired separately from the defective good or

       service is ‘other property,’ whether or not it is, or is intended to be, incorporated

       into the same physical object.”).


[35]   As for Part III, again, I would not address the issue, but I do not otherwise

       disagree with the majority’s analysis.




       Court of Appeals of Indiana | Opinion 18A-PL-2368 | July 24, 2019         Page 25 of 25
