                                                                            FILED
                                                                       Sep 28 2018, 8:40 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEES
David T. Schaefer                                          Scott A. Benkie
Anthony M. Zelli                                           Benkie & Crawford
Dinsmore & Shohl LLP                                       Indianapolis, Indiana
Louisville, Kentucky
                                                           Rodney V. Taylor
                                                           Hilary A. Barnes
                                                           Christopher & Taylor
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Kenworth of Indianapolis, Inc.,                            September 28, 2018
Kenworth of Indianapolis, Inc.                             Court of Appeals Case No.
d/b/a ITC Acceptance                                       49A02-1710-PL-2502
Company, and Paccar Inc.,                                  Interlocutory Appeal from the
Appellants-Defendants,                                     Marion Superior Court
                                                           The Honorable Cynthia J. Ayers,
        v.                                                 Judge
                                                           Trial Court Cause No.
Seventy-Seven Limited, Convey                              49D04-1010-PL-43362
All, LLC, Keller Trucking, Inc.,
K&K Aggregate, Inc., Huber
Transport, LLC, Triple H
Trucking, LLC, and Custom
Hauling, Inc.,
Appellees-Plaintiffs



Crone, Judge.

Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018                   Page 1 of 34
                                               Case Summary
[1]   Kenworth of Indianapolis, Inc., et al. (collectively “the Defendants”),1

      manufactured and sold to Seventy-Seven Limited, et al. (collectively “the

      Plaintiffs”),2 a fleet of dump trucks that vibrated excessively while idling or at

      specific RPMs. The Defendants were unable to correct the problem within the

      one-year/100,000-mile basic vehicle warranty period specified in the parties’

      warranty agreement, and they extended the warranty period to four

      years/250,000 miles. More than four years after the trucks were delivered, the

      Plaintiffs filed a complaint against the Defendants asserting claims for breach of

      warranty and breach of contract. The Defendants filed a motion for summary

      judgment asserting that the Plaintiffs’ causes of action accrued when the trucks

      were delivered and thus were barred by the warranty agreement’s one-year time

      limit for commencing legal action. The trial court denied the Defendants’

      motion. In this interlocutory appeal, the Defendants argue that the trial court

      erred. We disagree and therefore affirm.




      1
        Defendant Paccar Inc. is the parent company of Kenworth Truck Company and manufactures/assembles
      trucks under the latter name. Paccar sold its trucks through its dealer, Kenworth of Indianapolis, Inc., a
      separate and independent legal entity. ITC Acceptance Company is the dealer’s financing company.
      2
        The Plaintiffs (Seventy-Seven Limited, Convey All, LLC, Keller Trucking, Inc., K&K Aggregate, Inc.,
      Huber Transport, LLC, Triple H Trucking, LLC, and Custom Hauling) were among a group of thirteen
      trucking companies that together ordered forty-nine identically configured Kenworth trucks from Kenworth
      of Indianapolis. These companies had independently been buying Kenworth trucks for years, but decided to
      coordinate truck orders to obtain discount pricing.

      Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018                   Page 2 of 34
                                   Facts and Procedural History3
[2]   Paccar Inc. manufactured a fleet of dump trucks that Kenworth of Indianapolis,

      Inc. (“the Dealership”), sold to the Plaintiffs, who took delivery of the trucks

      from November 2005 through January 2006. For each truck, the respective

      buyer signed a warranty agreement that reads in pertinent part as follows:


               This is a legal contract between you, Kenworth Truck Company
               and the selling Kenworth dealer.

               Kenworth Truck Company warrants directly to you that the
               Kenworth vehicle identified below, except for [certain parts and
               part assemblies warranted by their respective manufacturers,
               including engines and automatic transmissions], and except for
               trade accessories, will be free from defects in materials and
               workmanship during the time and mileage periods set forth in the
               Warranty Schedule and appearing under normal use and service.
               This warranty extends only to you, the First Purchaser and
               applies only to those items which were installed by the Kenworth
               plant at the time of manufacture as listed.

               Your sole and exclusive remedy against Kenworth Truck
               Company and the selling Kenworth Dealer, arising from your
               purchase and use of this vehicle, is limited to the repair or
               replacement of defective materials or workmanship at US and
               Canadian Authorized Kenworth Class 8 Dealers to the extent of
               Kenworth Truck Company’s obligations under the Warranty
               Schedule on the reverse side of this Agreement. ….

               WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY



      3
       We held oral argument on June 28, 2018, at the Krannert School for Executive Management at Purdue
      University. We thank the students, faculty, and staff for their hospitality, and we thank counsel for their
      advocacy.

      Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018                      Page 3 of 34
              Except for the above warranty, Kenworth Truck Company and
              the selling Kenworth Dealer make no other warranties, express
              or implied, and make NO WARRANTY OF
              MERCHANTABILITY OR FITNESS FOR A PARTICULAR
              PURPOSE.

              It is agreed that Kenworth Truck Company and the selling
              Kenworth Dealer shall not be liable for incidental or
              consequential damages including, but not limited to: loss of
              income, damage to vehicle, attachments, trailers and cargo;
              towing expenses; attorney’s fees and any liability you may have
              in respect to any other people.

              TIME LIMIT ON COMMENCING LEGAL ACTION

              It is agreed that you have one year from the accrual of the cause
              of action to commence any legal action arising from the purchase
              or use of the vehicle, or be barred forever.


      Appellants’ App. Vol. 3 at 13 (underlined emphasis replaced by bold emphasis).

      Pursuant to the warranty schedule, the Defendants agreed to “provide 100%

      parts & labor for defective material or workmanship” related to the basic

      vehicle (with certain exceptions) for twelve months or 100,000 miles,

      “whichever shall occur first.” Id. at 14.


[3]   Each buyer also signed a buyer’s order form with a disclaimer of warranties

      provision that states,


              The seller [i.e., the Dealership] hereby expressly disclaims all
              warranties, either expressed or implied, including any implied
              warranty of merchantability or fitness for a particular purpose
              unless otherwise stated in this document. Seller neither assumes

      Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018   Page 4 of 34
              nor authorizes any other person to assume for it any liability in
              connection with the sale of the item/items.


      Id. at 148 (capitalization altered). The form indicates that the truck was sold

      “with manufacturer[’]s standard new truck warranty” and that the purchaser

      “hereby acknowledges the purchase of this truck as is, with all faults knowingly

      accepted and without any warranties express or implied, other than as indicated

      above ….” Id. (capitalization altered).


[4]   “Immediately after delivery of the first set of trucks, several of the buyers

      complained to [the Dealership] that the trucks vibrated excessively while idling”

      or at specific RPMs. Kenworth of Indianapolis, Inc. v. Seventy-Seven Ltd., 49A02-

      1504-PL-249, slip op. at *1 (Ind. Ct. App. Mar. 24, 2016) (“Kenworth 1”), trans.

      denied. The Dealership “contacted Paccar, who then consulted with the

      manufacturers of the engine, transmission, and engine mounts, to resolve the

      vibration problem.” Id. “In September 2006 the decision was made to install

      modified engine mounts. The new mounts initially reduced the vibration to

      acceptable levels, but the problem reoccurred in 2007.” Id. In March 2008,

      Paccar agreed to extend the “basic vehicle warranty” to four years/250,000

      miles. Appellees’ App. Vol. 3 at 64; Appellants’ App. Vol. 3 at 11. This

      warranty extension is documented in Paccar interoffice emails, which contain

      no further details regarding the extension.


[5]   Also in 2008, “the Defendants installed a different engine mount that they

      believed would be more durable. Again, the vibration was initially reduced to

      acceptable levels.” Kenworth 1, slip op. at *1. By November 2008, however, the
      Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018   Page 5 of 34
      vibration problem was reoccurring in several of the trucks. At that point,

      Paccar agreed to provide free engine mount replacements for as long as the

      Plaintiffs owned the trucks. Around this time, one of the Plaintiffs, Seventy-

      Seven Limited, returned eight of the trucks to the Dealership and stopped

      making payments on them.


[6]   In September 2010, the Dealership, through its financing company, ITC

      Acceptance Company, filed a replevin action against two of the Plaintiffs based

      on their default on loans obtained to purchase the trucks. On October 4, 2010,

      the Plaintiffs filed this action against the Defendants, asserting claims for breach

      of express and implied warranties, breach of contract, constructive fraud, and

      rescission.4 In March 2011, the Plaintiffs amended their complaint to add a

      claim of estoppel and a claim of nonconforming goods under the Uniform

      Commercial Code (“UCC”). An additional amended complaint was filed in

      2013.5 In their answers to the complaints, the Defendants asserted as an

      affirmative defense that the Plaintiffs’ claims were time-barred.


[7]   The Defendants filed a motion for summary judgment arguing that the

      Plaintiffs’ claims were barred by the warranty agreement’s one-year time limit

      for commencing legal action and by Indiana Code Section 26-1-2-725 (“Section




      4
       Pursuant to an agreement between the parties, the replevin action was consolidated with this action and is
      now deemed a counterclaim.
      5
       Only the original complaint and the March 2011 amended complaint (entitled “Second Amended
      Complaint”) appear in the record before us.

      Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018                    Page 6 of 34
      2-725”), which is part of Indiana’s codification of the UCC. Section 2-725 is

      entitled “Statute of limitations in contracts for sale” and reads in relevant part

      as follows:


              (1) An action for breach of any contract for sale must be
              commenced within four (4) years after the cause of action has
              accrued. By the original agreement the parties may reduce the
              period of limitation to not less than one (1) year, but may not
              extend it.

              (2) A cause of action accrues when the breach occurs, regardless
              of the aggrieved party’s lack of knowledge of the breach. A
              breach of warranty occurs when tender of delivery is made,
              except that where a warranty explicitly extends to future
              performance of the goods and discovery of the breach must await
              the time of such performance, the cause of action accrues when
              the breach is or should have been discovered.

              ….

              (4) This section does not alter the law on tolling of the statute of
              limitations nor does it apply to causes of action which have
              accrued before IC 26-1 becomes effective.


      The Defendants argued that the Plaintiffs’ causes of action accrued at tender of

      delivery and that their complaint was filed long after the one-year limitation

      period expired.


[8]   The Plaintiffs asked the trial court to deny the summary judgment motion,

      asserting that the Defendants had waived their timeliness argument by failing to

      raise it in response to a purported cross-motion for summary judgment. The

      trial court agreed with the Plaintiffs. On appeal, another panel of this Court

      Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018   Page 7 of 34
       determined that the Defendants had not waived their timeliness argument and

       reversed and remanded for further proceedings. Kenworth 1, slip op. at *10.


[9]    On remand, the Defendants filed a renewed motion for summary judgment

       asserting that the Plaintiffs’ complaint was untimely filed. In September 2017,

       after a hearing, the trial court issued an order denying the motion.6 This

       interlocutory appeal ensued.


                                         Discussion & Decision
[10]   The Defendants argue that the trial court erred in denying their summary

       judgment motion. “The purpose of summary judgment is to terminate

       litigation about which there can be no factual dispute and which can be

       determined as a matter of law.” Lamb v. Mid Indiana Serv. Co., 19 N.E.3d 792,

       793 (Ind. Ct. App. 2014). “The party moving for summary judgment has the

       burden of making a prima facie showing that there is no genuine issue of

       material fact and that it is entitled to judgment as a matter of law.” Mint Mgmt.,

       LLC v. City of Richmond, 69 N.E.3d 561, 564 (Ind. Ct. App. 2017). If the

       moving party meets its burden, “the burden then shifts to the nonmoving party

       whose response must set forth specific facts indicating that there is an issue of

       material fact.” Venture Enter., Inc. v. Ardsley Distrib., Inc., 669 N.E.2d 1029, 1032

       (Ind. Ct. App. 1996). “The nonmovant may not rest upon bare allegations




       6
         The Plaintiffs included a copy of the hearing transcript in their appendix in contravention of Indiana
       Appellate Rule 50(F), which states, “Because the Transcript is transmitted to the Court on Appeal pursuant
       to Rule 12(B), parties should not reproduce any portion of the Transcript in the Appendix.”

       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018                   Page 8 of 34
       made in the pleadings, but must respond with affidavits or other evidence

       setting forth specific facts showing there is a genuine issue in dispute.” Id. Any

       doubts as to any facts or inferences to be drawn from those facts must be

       resolved in favor of the nonmoving party. Mint Mgmt., 69 N.E.3d at 564.


[11]   “We review a summary judgment ruling de novo.” Pelliccia v. Anthem Ins. Cos.,

       90 N.E.3d 1226, 1230 (Ind. Ct. App. 2018). A trial court’s findings and

       conclusions offer insight into the rationale for the court’s judgment and

       facilitate appellate review but are not binding on this Court. Henderson v. Reid

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

       (2015). We are not constrained to the claims and arguments presented to the

       trial court, and we may affirm a summary judgment ruling on any theory

       supported by the designated evidence. Manley v. Sherer, 992 N.E.2d 670, 673

       (Ind. 2013). The party that lost in the trial court has the burden of persuading

       us that the trial court erred. Estate of Hofgesang v. Hansford, 714 N.E.2d 1213,

       1216 (Ind. Ct. App. 1999).


[12]   The overarching question in this appeal is whether the Defendants have

       established as a matter of law that the Plaintiffs’ complaint was untimely filed.

       To answer this question, we must determine whether the Defendants have

       established that there are no genuine issues of material fact regarding when the




       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018   Page 9 of 34
       Plaintiffs’ causes of action accrued.7 “The determination of when a cause of

       action accrues is generally a question of law.” Imbody v. Fifth Third Bank, 12

       N.E.3d 943, 945 (Ind. Ct. App. 2014). But when there is a factual issue

       concerning the date on which a cause of action accrues, the question is

       generally one for the finder of fact. Monsanto Co. v. Miller, 455 N.E.2d 392, 395

       (Ind. Ct. App. 1983). Citing Ludwig v. Ford Motor Co., 510 N.E.2d 691 (Ind. Ct.

       App. 1987), trans. denied (1988), and Section 2-725, the Defendants argue that

       the Plaintiffs’ causes of action accrued at tender of delivery as a matter of law.


[13]   In Ludwig, the plaintiff purchased five Ford trucks with General Motors

       (“GM”) engines that were delivered in May 1979. The truck bodies were

       subject to a limited manufacturer’s warranty for which “repair or replacement

       of parts [was] the only remedy.” Ludwig, 510 N.E.2d at 694. The engines were

       subject to a separate limited warranty pursuant to which GM promised to repair

       “any defective or malfunctioning parts” up to twenty-four months or 200,000

       miles. Id. Immediately after delivery, the trucks experienced repeated

       mechanical breakdowns, and eventually all five engines blew up, rendering the

       trucks inoperable. When the engines began failing, Ludwig was assured that

       the situation would be resolved. Two of the engines were repaired, but only




       7
         We respectfully disagree with portions of the trial court’s analysis, which apparently was adopted from a
       proposed order submitted by the Plaintiffs. Rather than respond to the Defendants’ arguments challenging
       that analysis, we elect to start from scratch for clarity’s sake.

       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018                   Page 10 of 34
       temporarily. Further repairs to the five trucks were not made because the

       manufacturers claimed that the warranties had expired.


[14]   In August 1983, more than four years after the trucks were delivered, Ludwig

       sued Ford and GM, asserting breach of express and implied warranties and

       other claims. Ford and GM asserted that Ludwig’s breach of warranty claims

       were barred by Section 2-725’s four-year limitation period, and the trial court

       granted summary judgment in their favor. In response to Ludwig’s argument

       on appeal that the trial court erred, another panel of this Court simply quoted

       Section 2-725(1) and -(2) and stated, “Thus, an action for breach of warranty

       must be commenced within four years after tender of delivery.” Id. at 696. In

       other words, Ludwig’s breach of warranty claims accrued when tender of

       delivery was made, and those claims were “barred by the statute of limitations”

       because he “did not file his complaint within the required four year period ….”

       Id.


[15]   The Defendants contend that “Ludwig is binding, on point, and should be

       followed.” Appellants’ Br. at 24. We disagree, for two reasons. First, this

       Court does not recognize horizontal stare decisis; “each panel of this Court has

       coequal authority on an issue[,]” and although we are respectful of other panels’

       decisions, we are not bound by them. In re F.S., 53 N.E.3d 582, 596 (Ind. Ct.

       App. 2016) (quoting In re C.F., 911 N.E.2d 657, 658 (Ind. Ct. App. 2009)). “In

       short, we write upon a clean slate.” Id.




       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018   Page 11 of 34
[16]   Second, and more important, we conclude that the Ludwig panel erred in

       treating the manufacturers’ promise to repair defective parts as a warranty

       under the UCC and therefore erred in determining when Ludwig’s claims

       accrued under Section 2-725. Our conclusion is based on the persuasive

       analysis of the Supreme Court of Illinois in Mydlach v. DaimlerChrysler Corp., 875

       N.E.2d 1047 (Ill. 2007), which involved a similar promise to repair, as well as

       our reading of the parties’ warranty agreement and the relevant UCC statutes.

       Issues of contract interpretation and statutory construction are pure questions of

       law, which we review de novo. Estate of Ecker v. Estate of Samson, 59 N.E.3d

       282, 284 (Ind. Ct. App. 2016). We “must examine the plain language of the

       contract, read it in context and, whenever possible, construe it so as to render

       every word, phrase, and term meaningful, unambiguous, and harmonious with

       the whole.” Layne v. Layne, 77 N.E.3d 1254, 1265 (Ind. Ct. App. 2017), trans.

       denied. “If contract language is unambiguous, [we] may not look to extrinsic

       evidence to expand, vary, or explain the instrument but must determine the

       parties’ intent from the four corners of the instrument.” Id. “[T]he primary

       goal in interpreting a statute is to fulfill the legislature’s intent and, if that

       language is clear and unambiguous, we simply apply its plain and ordinary

       meaning, heeding both what it says and what it does not say.” In re Adoption of

       D.M., 82 N.E.3d 354, 360 (Ind. Ct. App. 2017). “We presume the legislature

       intended logical application of the language used in the statute so as to avoid

       unjust or absurd results.” Id. “[S]tatutes concerning the same subject matter

       must be read together in an attempt to harmonize and give effect to each.”


       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018   Page 12 of 34
       Peoples State Bank v. Benton Twp. of Monroe Cty., 28 N.E.3d 317, 323 (Ind. Ct.

       App. 2015).


[17]   A detailed review of the Mydlach decision provides a well-reasoned perspective

       on promises to repair and their interplay with Section 2-725 and other relevant

       provisions of the UCC. In June 1998, Mydlach purchased a 1996

       DaimlerChrysler Dodge Neon with approximately one year and 10,000 miles

       remaining on a three-year/36,000-mile warranty that covered “the cost of all

       parts and labor needed to repair any item on [her] vehicle [with certain

       exceptions] that’s defective in material, workmanship, or factory preparation.”

       Mydlach, 875 N.E.2d at 1051. Beginning in July 1998, Mydlach brought the car

       to two dealerships “several times for a variety of problems, including a

       recurring fluid leak.” Id. She “claimed that the dealerships’ repair attempts

       were unsuccessful and, as a result, she could not use the vehicle as intended.”

       Id.


[18]   In May 2001, Mydlach sued DaimlerChrysler in state court under the federal

       Magnuson-Moss Warranty Act (“the Act”) for breach of written warranty,

       breach of the implied warranty of merchantability, and revocation of

       acceptance. DaimlerChrysler argued that Mydlach’s breach of warranty claims

       were time-barred because they were subject to Illinois’ Section 2-725’s four-year

       limitation period, which purportedly “commenced upon ‘tender of delivery’ of




       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018   Page 13 of 34
       the vehicle to its original purchaser in June 1996” pursuant to Section 2-725(2).8

       Id. at 1052. The trial court agreed and entered summary judgment for

       DaimlerChrylser on all three counts. The appellate court reversed as to the first

       and third counts, and DaimlerChrylser appealed that ruling to the supreme

       court.


[19]   Because the Act does not contain a limitations provision for a breach of

       warranty action, the court sought to apply the “most closely analogous statute

       of limitations under state law.” Id. at 1055 (quoting DelCostello v. Int’l Bhd. of

       Teamsters, 462 U.S. 151, 158 (1983)). The court looked to Article 2 of the UCC,

       which applies to “transactions in goods[,]” to “determine the timeliness” of

       Mydlach’s complaint. Id. at 1056.9 The court quoted Section 2-725(1) and -(2)

       and noted that Section 2-725(2)’s “future-performance exception” was not at

       issue because a repair or replacement provision


                  “has nothing to do [with the future performance of the goods].
                  Cosman [v. Ford Motor Co., 674 N.E.2d 61, 68 (Ill. App Ct. 1996),
                  appeal denied (1997))10]. See also C. Reitz, Manufacturers’
                  Warranties of Consumer Goods, 75 Wash. U. L.Q. 357, 364 n.24
                  (1997) (“Promises to repair or replace refer to future performance
                  of sellers, not to future performance of goods”); L. Lawrence,
                  Lawrence’s Anderson on the Uniform Commercial Code § 2-625:129, at




       8
           Illinois’ Section 2-725 is practically identical to Indiana’s, so we refer to them interchangeably.
       9
           In Indiana, Article 2 of the UCC is codified in Indiana Code Chapter 26-1-2.
       10
         The Cosman court also stated that a repair or replacement provision “has nothing to do with the inherent
       quality of the goods” for purposes of Section 2-313 of the UCC, which is addressed more fully below. 674
       N.E.2d at 68.

       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018                             Page 14 of 34
                332 (3d ed. 2001) (discussing difference between a warranty of
                future performance and a covenant to repair or replace).[11]


       Id. at 1056.


[20]   The court then turned its “attention to the balance of [Section 2-725] and the

       parties’ arguments relative thereto.” Id. The court acknowledged that

       “[a]lthough courts generally consider article 2 of the UCC to be the statute most

       closely analogous to [the Act], the two enactments are not identical.” Id. at

       1057. For example, the “the Act speaks of implied warranties and written

       warranties, the latter of which may be either full or limited. In contrast, the

       UCC speaks of express warranties (which may be oral or written), implied

       warranties, and warranty of title.” Id. (citations omitted). The parties agreed

       that DaimlerChrysler’s repair warranty was a “written warranty” under the Act

       but disagreed regarding whether it was an “express warranty” under the UCC;

       DaimlerChrysler argued that “the repair warranty [qualified] as an express




       11
         See also Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 323-24 (1st Cir. 2008) (“This type of
       repair promise warrants the future performance of the warrantor, not the goods. The warrantor has not
       guaranteed that the goods will not malfunction in the future, but rather that the warrantor will remedy any
       problems that arise in a particular way for a limited period of time.”) (citation omitted), cert. denied; Ontario
       Hydro v. Zallea Syst., Inc., 569 F. Supp. 1261, 1266 (D. Del. 1983) (“[A] repair or replacement warranty does
       not warrant how the goods will perform in the future. Rather, such a warranty simply provides that if a
       product fails or becomes defective, the seller will replace or repair within a stated period.”); Flagg Energy Dev.
       Corp. v. Gen’l Motors Corp., 709 A.2d 1075, 1086 (Conn. 1998) (“[A] promise to repair or replace, unless it
       contains express language to the contrary, is not a promise of future performance with response to [Section
       725(2)].”), overruled on other grounds by Ulbrich v. Groth, 78 A.3d 76 (Conn. 2013); Nebraska Popcorn, Inc. v.
       Wing, 602 N.W.2d 18, 24 (Neb. 1999) (“A warranty to repair or replace does not guarantee future
       performance. Rather, it anticipates potential defects and specifies the buyer’s remedy during the stated
       period.”); contra Krieger v. Nick Alexander Imports, Inc., 285 Cal. Rptr. 717, 724 (Cal. Ct. App. 1991) (“A
       promise to repair defects that occur during a future period is the very definition of express warranty of future
       performance ….”). We agree with the Mydlach court on this point.

       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018                        Page 15 of 34
       warranty and that [Mydlach’s] claim [was] therefore governed by the tender-of-

       delivery rule in [Section 2-725(2),]” whereas Mydlach argued that it did “not

       qualify as an express warranty and that her claim is not subject to the tender-of-

       delivery rule.” Id.


[21]   The court then stated,


               Section 2–313 of the UCC explains how express warranties are
               created.


                        “Express warranties by the seller are created as
                        follows:

                        (a) Any affirmation of fact or promise made by the
                        seller to the buyer which relates to the goods and
                        becomes part of the basis of the bargain creates an
                        express warranty that the goods shall conform to the
                        affirmation or promise.

                        (b) Any description of the goods which is made part
                        of the basis of the bargain creates an express warranty
                        that the goods shall conform to the description.

                        (c) Any sample or model which is made part of the
                        basis of the bargain creates an express warranty that
                        the whole of the goods shall conform to the sample or
                        model.” 810 ILCS 5/2-313(1) (West 2006).




       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018   Page 16 of 34
           The UCC makes plain that an express warranty is related to the
           quality or description of the goods.[12]


           In other words, an express warranty, for purposes of the UCC,
           obligates the seller to deliver goods that conform to the
           affirmation, promise, description, sample or model. If a seller
           delivers conforming goods, the warranty is satisfied. If the seller
           delivers nonconforming goods, the warranty is breached at that
           time. Even if the buyer is unaware that the goods, as delivered,
           do not conform to the seller’s affirmation, promise, description,
           sample or model, the warranty has been breached. Under this
           scenario, the statutory pronouncement that “[a] breach of
           warranty occurs when tender of delivery is made” makes perfect
           sense, and the four-year limitations period commences at that
           time. See M. Klinger, The Concept of Warranty Duration: A
           Tangled Web, 89 Dick. L. Rev. 935, 939 (1985) (“Section 2-725(2)
           presumes that all warranties, expressed or implied, relate only to
           the condition of the goods at the time of sale” and “[a]s a result,
           the period of limitations begins to run at that time”); L. Garvin,
           Uncertainty and Error in the Law of Sales: The Article Two Statute of
           Limitations, 83 B.U. L. Rev. 345, 379 (2003) (“Article Two
           defines a range of express and implied warranties” which “[a]ll
           go to the quality of the goods at tender”).

           The warranty in the present case, however, is not related to the
           quality or description of the goods at tender. It does not warrant
           that the vehicle will conform to some affirmation, promise,




12
     The Act defines “written warranty” as

         any undertaking in writing in connection with the sale by a supplier of a consumer product to
         refund, repair, replace, or take other remedial action with respect to such product in the event
         that such product fails to meet the specifications set forth in the undertaking, which written
         affirmation, promise, or undertaking becomes part of the basis of the bargain between a supplier
         and a buyer for purposes other than resale of such product.
15 U.S.C. § 2301(6)(B). This definition is obviously different from that of “express warranty” in Section 2-
313, in that it specifically includes promises to repair.

Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018                     Page 17 of 34
           description, sample or model. Rather, the warranty promises
           only that the manufacturer will repair or replace defective parts
           during the warranty period.…

           Although defendant’s warranty qualifies as a “written warranty”
           under the Act, it is not an “express warranty” under the UCC,
           and is thus not the type of warranty that can be breached on
           “tender of delivery”.[13] Accordingly, we reject defendant’s
           argument that the four-year limitations period for breach of the
           repair warranty commenced upon delivery of the Dodge Neon in
           1996 …..

           Our conclusion that the repair warranty is not a UCC express
           warranty, and thus not subject to the tender-of-delivery rule set
           forth in the second sentence of [Section 2-725(2), does not render
           [Section 2-725(2)] irrelevant for purposes of determining when
           the limitations period began on plaintiff’s claim under [the Act].
           The first sentence of [Section 2-725(2)] remains applicable. The
           first sentence states: “[a] cause of action accrues when the breach
           occurs, regardless of the aggrieved party’s lack of knowledge of
           the breach.” (Emphasis added.) Although the UCC does not
           expressly state when the breach of a repair promise occurs, we
           may refer to the law that exists outside of the UCC. See 810
           ILCS 5/1-103 (West 2006) (“Unless displaced by the particular
           provisions of this Act, the principles of law and equity shall
           supplement its provisions”);[14] L. Lawrence, Lawrence’s Anderson



13
  Contra Carpetland U.S.A. v. Payne, 536 N.E.2d 306, 308 (Ind. Ct. App. 1989) (concluding that salesman’s
verbal promise to replace carpet if “anything went wrong” within one year was “sufficient to create an
express warranty” under Section 2-313). We respectfully disagree with the Carpetland court’s analysis
because it fails to account for the plain language of Section 2-313, i.e., a carpet cannot “conform” to a
promise to replace it.
14
     Indiana Code Section 26-1-1-103 provides,
         Unless displaced by the particular provisions of IC 26-1, the principles of law and equity,
         including the law merchant and the law relative to capacity to contract, principal and agent,
         estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or
         invalidating cause, shall supplement the provisions of IC 26-1.

Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018                      Page 18 of 34
         on the Uniform Commercial Code § 2-725:99, at 301 (3d ed. 2001)
         (because the UCC provides no assistance as to when a
         nonwarranty breach of contract “occurs” for purposes of
         computing the limitations period, “it is necessary to resort to the
         general non-Code law of contracts,” which “has not been
         displaced by the Code and therefore continues in force”).

         Generally, “[w]hen performance of a duty under a contract is due
         any non-performance is a breach.” Restatement (Second) of
         Contracts § 235, at 211 (1979). Performance under a vehicle
         manufacturer’s promise to repair or replace defective parts is due
         not at tender of delivery, but only when, and if, a covered defect
         arises and repairs are required. In that event, if the promised
         repairs are refused or unsuccessful, the repair warranty is
         breached and the cause of action accrues, triggering the four-year
         limitations period. See [line of Illinois cases]. See also Monticello
         v. Winnebago Industries, Inc., 369 F. Supp. 2d 1350, 1356-57 (N.
         D. Ga. 2005) (under Georgia law, a written warranty that
         provides for repair or replacement of parts is breached when the
         purchaser returns the product to the dealer for repair and repair is
         refused or unsuccessful); Poli [v. DaimlerChrysler Corp., 793 A.2d
         104, 110-11 (N.J. Super. Ct. 2002)] (under New Jersey law, cause
         of action for breach of seven-year/70,000-mile power-train
         warranty would not have accrued when the car was delivered,
         but rather when persistent problems appeared or when
         DaimlerChrysler was unable to repair the defect); Long Island
         Lighting Co. v. Imo Industries Inc., 6 F.3d 876, 889-90 (2d Cir.
         1993) (under New York law, cause of action for breach of a
         repair promise accrued when the generator malfunctioned and
         the seller refused to make the necessary repairs).[15]



15
   See also Brown v. Gen’l Motors Corp., 14 So. 3d 104, 108-13 (Ala. 2009) (concluding that promise to repair is
not express warranty under UCC and that cause of action for breach accrues when manufacturer fails or
refuses to repair ); Grosse Pointe Law Firm, P.C. v. Jaguar Land Rover N. Am. LLC, 894 N.W.2d 700, 703-07
(Mich. Ct. App. 2016) (same), appeal denied (2017); Jacqueline R. Kanovitz, The Seller Fiddles and the Clock
Ticks: Seller’s Cure and the U.C.C. Statute of Limitations, 60 NOTRE DAME L. REV. 318, 329-30 (1985) (same).

Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018                      Page 19 of 34
        This is the approach advocated by some commentators. For
        example, in his discussion of the appropriate treatment of a
        manufacturer’s express warranty to repair or replace defective
        parts, Professor Lawrence states:


                 “The sounder approach is to recognize that the
                 failure to repair or replace is merely a breach of
                 contract and not a breach of warranty, and therefore
                 no cause of action arises until the seller has refused to
                 repair or replace the goods. This is because until the
                 seller has failed or refused to make the repairs or
                 provide a replacement, the buyer, not being entitled
                 to such a remedy, has no right to commence an
                 action for damages. As a result, the action is timely if
                 brought within four years of the seller’s failure or
                 refusal.” L. Lawrence, Lawrence’s Anderson on the
                 Uniform Commercial Code § 2-725:101, at 303 (3d ed.
                 2001).


        Accord L. Garvin, Uncertainty and Error in the Law of Sales: The
        Article Two Statute of Limitations, 83 B.U. L. Rev. 345, 381 (2003).

        The correctness of this approach is manifest when we consider
        consumer claims for breach of repair warranties that run for
        periods longer than the three years/36,000 miles at issue here.
        For example, consider the case of a consumer who purchases a
        vehicle carrying a five-year/50,000-mile repair warranty. If the
        four-year limitations period commences at “tender of delivery,”
        the limitations period for a breach of the repair promise occurring
        in year five will expire before the breach even occurs, thus
        rendering the repair warranty unenforceable during its final year.
        Statutes of limitations, however, are intended to prevent stale
        claims, not to preclude claims before they are ripe for
        adjudication. Even a four-year warranty could be rendered
        unenforceable if breach of the repair promise occurred near the

Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018   Page 20 of 34
               end of the warranty period. In that case, the buyer would have
               only the briefest of periods in which to file suit.


               ….

               We recognize, of course, that a fact question may arise as to the
               date on which a repair warranty was breached which, in turn,
               would create some uncertainty as to when the four-year
               limitations period should commence. Fact questions of this
               nature, however, frequently arise in cases where the statute of
               limitations has been pled in defense. Resolution of this type of
               uncertainty is a classic function of the trier of fact. We therefore
               reject defendant’s argument that commencing the limitations
               period when the warrantor fails or refuses to repair the defect—
               rather than at tender of delivery—will create unacceptable
               uncertainty in the limitations period.

               Turning to the facts of this case, the record indicates that plaintiff
               brought her vehicle to [the dealers] on several occasions
               beginning in July 1998. At that point, assuming the alleged
               defects were covered defects, defendant was obligated (through
               its authorized dealer) to make good on its repair promise.
               Plaintiff’s lawsuit, filed in May 2001, is therefore timely.


       Id. at 1057-61 (citations and quotation marks omitted).


[22]   In our view, the Mydlach court’s determination that a promise to repair or

       replace is not an express warranty and that a cause of action for the breach of

       that contractual obligation does not accrue until the promisor refuses or fails to

       repair or replace is the only sensible interpretation of such an obligation with




       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018   Page 21 of 34
respect to Sections 2-313 and 2-725 of the UCC. 16 The Defendants have

consistently maintained that the Plaintiffs’ causes of action accrued at tender of

delivery and thus have failed to specifically designate any evidence or make any

legal argument regarding whether and when an action for breach of the

contractual promise to repair or replace accrued.17




16
   Amendments to the UCC proposed in 2003 defined a promise to repair or replace goods “upon the
happening of a specific event” as a “remedial promise,” U.C.C. § 2-103(n), and provided that “[f]or breach of
a remedial promise, a right of action accrues when the remedial promise is not performed when performance
is due.” Id. § 2-725(2)(c). The official comment regarding Section 2-103(n) stated in pertinent part,
       The distinction between a remedial promise and a warranty that is made in this Article resolves
       a statute-of-limitations problem. Under original Section 2-725, a right of action for breach of an
       express warranty accrued at the time the goods were tendered unless the warranty explicitly
       extended to the future performance of the goods. In that case, the statute of limitations began to
       run at the time of the discovery of the breach. By contrast, a right of action for breach of an
       ordinary (non-warranty) promise accrued when the promise was breached. A number of courts
       held that commitments by sellers to take remedial action in the event the goods proved to be
       defective during a specified period of time constituted a warranty, and in these cases the courts
       determined that the statute of limitations began to run at the time that the goods were tendered.
       Other courts used strained reasoning that allowed them to apply the discovery rule even though
       the promise referred to the future performance of the seller and not the future performance of
       the goods.

       Under this Article, a promise by the seller to take remedial action is not a warranty at all and
       therefore the statute of limitations for a breach of a remedial promise does not begin to run at
       either the time the goods are tendered or at the time the breach is discovered. Section 2-
       725(2)(c) separately addresses the accrual of a right of action for a remedial promise.
In Grosse Pointe, the Court of Appeals of Michigan used the phrase “remedial promise” to describe the seller’s
promise to repair or replace. 894 N.W.2d at 707. The proposed amendments were withdrawn in 2011, but
that does not diminish the persuasiveness of Grosse Pointe (or Mydlach) with respect to the existing wording of
the UCC.
17
   In support of their summary judgment motion, the Defendants designated two depositions in their entirety
(totaling over 400 pages), which is insufficiently specific for purposes of Indiana Trial Rule 56(C). See Filip v.
Block, 879 N.E.2d 1076, 1081 (Ind. 2008) (noting that Trial Rule 56(C) compels “parties to identify the ‘parts’
of any document upon which they rely. The Rule thus requires sufficient specificity to identify the relevant
portions of a document, and so, for example, the designation of an entire deposition is inadequate.”). The
Defendants’ summary judgment memorandum states that the individual Plaintiffs returned or stopped using
their trucks at different times, Appellees’ App. Vol. 2 at 6, which suggests that extended factual development
may be required to establish the accrual date for each Plaintiff. The mere fact that the Plaintiffs returned or
stopped using the trucks is not dispositive of whether the Defendants breached their contractual promise to
repair or replace.

Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018                       Page 22 of 34
[23]   One significant factual difference between Mydlach and this case is that in

       addition to promising to repair or replace defective materials or workmanship,

       the Defendants promised that the trucks would be “free from defects in

       materials and workmanship during the time and mileage periods set forth in the

       Warranty Schedule ….” Appellants’ App. Vol. 3 at 13. This “affirmation of

       fact or promise” relating to the trucks is an express warranty pursuant to

       Section 2-313 that arguably was breached upon delivery, as the trucks vibrated

       excessively from the outset. The Defendants attempted to remedy that breach

       by replacing the engine mounts, which turned out to be only a temporary fix.


[24]   Indiana Code Section 26-1-2-719(2) provides that “[w]here circumstances cause

       an exclusive or limited remedy” – such as the remedy of repair or replacement

       in this case – “to fail of its essential purpose, remedy may be had as provided in

       IC 26-1.”18 At the very least, genuine issues of material fact exist regarding

       whether and when the exclusive remedy in this case failed of its essential

       purpose19 and the Plaintiffs’ cause of action for breach of warranty accrued. See

       Perry v. Gulf Stream Coach, Inc., 814 N.E.2d 634, 644 (Ind. Ct. App. 2004)

       (finding genuine issue of material fact regarding whether “exclusive remedy of

       repair and replacement of defective parts or components fail[ed] of its essential




       18
          This issue is raised in paragraph 28 of the Plaintiffs’ second amended complaint. Appellants’ App. Vol. 2
       at 87.
       19
          By way of example, one court has said that “[a] manufacturer does not have an unlimited time or an
       unlimited number of attempts to repair an automobile; rather, the limited warranty is breached and/or fails
       of its essential purpose if successful repairs are not made within a reasonable time or within a reasonable
       number of attempts.” Dewan v. Ford Motor Co., 842 N.E.2d 756, 762 (Ill. App. Ct. 2005), appeal denied (2006).

       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018                   Page 23 of 34
purpose such that [plaintiffs could] seek other remedies” under UCC, where

parties disputed whether motor home’s steering issues had been fixed), trans.

denied (2005); see also Mississippi Chem. Corp. v. Dresser-Rand Co., 287 F.3d 359,

366 (5th Cir. 2002) (distinguishing express warranty that product would be free

of defects from promise to repair or replace product as remedy for breach of that

warranty, and holding that plaintiff’s warranty action “did not accrue for the

purpose of Section 725, until the promise to repair or replace the [product]

failed its essential purpose.”); Fid. & Cas. Co. of New York v. Jasper Furniture Co.,

186 Ind. 566, 568, 117 N.E. 258, 258 (1917) (“A cause of action accrues, so that

limitations begin to run, at the moment its owner has a legal right to sue on it,

except where extrinsic facts, postponing the operation of the statute [of

limitations], are interposed.”); Jacqueline R. Kanovitz, The Seller Fiddles and the

Clock Ticks: Seller’s Cure and the U.C.C. Statute of Limitations, 60 NOTRE DAME L.

REV. 318, 330 (1985) (“Under settled principles of limitations act interpretation,

an exclusive repair remedy should suspend the running of limitations on the

underlying warranty claim until ‘failure of essential purpose’ activates the

buyer’s right to seek a judicial remedy.”).20




20
     According to Professor Kanovitz, a “standard new equipment warranty” like the one at issue in this case

         embodies two distinct legal obligations: (1) a warranty that the goods are free from defects in
         material and workmanship; and (2) a promise to repair part failures. The second promise
         represents an ordinary contractual commitment and not a warranty. If the goods malfunction
         during the promised repair period and the seller cannot correct the problem, the seller has now
         committed two breaches: initially a breach of warranty and later a breach of an ordinary
         contractual promise. Furthermore, the exclusive repair remedy has failed of its essential
         purpose; this remedial failure entitles the buyer, for the first time, to litigate the claim.
60 NOTRE DAME L. REV. at 329-30 (footnote omitted).

Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018                      Page 24 of 34
[25]   Of course, the viability of any warranty claim hinges on the duration of the

       warranty; in other words, a cause of action for breach of warranty must accrue

       during the warranty period. The Defendants insist that their extension of the

       original basic vehicle warranty period from one year/100,000 miles to four

       years/250,000 miles was merely a goodwill gesture with no legal ramifications.

       We disagree. It is crystal clear that the Defendants intended to make the

       warranty extension retroactive to the trucks’ delivery dates. See Appellants’

       App. Vol. 3 at 11 (Paccar interoffice communication: “The trucks have an

       original in service date from 11/05 to 01/06. The only option in this is to, in

       reality; give [the Plaintiffs] a 4 year, 250,000 mile base warranty from their

       original DIS.”). Also, “[i]t is well-settled that when a contract is modified, the

       original contract still exists and binds the parties as far as it can be followed,

       and the modifications do not affect the original contract, which still remains in

       force.” Gerdon Auto Sales, Inc. v. John Jones Chrysler Dodge Jeep Ram, 98 N.E.3d

       73, 81 (Ind. Ct. App. 2018), trans. denied.21 Moreover, “[a]n agreement

       modifying a contract within IC 26-1-2 needs no consideration to be binding.”

       Ind. Code § 26-1-2-209(1). Accordingly, we conclude as a matter of law that

       the warranty period at issue is four years/250,000 miles; the question remains




       21
         The Plaintiffs cite no relevant authority for their proposition that the “Defendants did not incorporate the
       original warranty in the new modified warranty” and thus a four-year limitation period should apply to a
       breach of the basic vehicle warranty pursuant to Section 2-725(1). Appellees’ Br. at 25. The warranty
       schedule includes a sixty-month/600,000-mile warranty for cab corrosion, which was still in effect when the
       Defendants extended the basic vehicle warranty; taken to its logical conclusion, the Plaintiffs’ argument
       would result in different limitation periods for different warranty breaches.

       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018                     Page 25 of 34
       whether the Plaintiffs’ cause of action for breach of warranty accrued during

       that period.


[26]   In sum, genuine issues of material fact exist regarding when the foregoing

       causes of action accrued. Thus, the Defendants have failed to establish as a

       matter of law that the Plaintiffs’ complaint was untimely filed.22 Therefore, we

       affirm the trial court’s denial of the Defendants’ summary judgment motion.


[27]   Affirmed.


       Robb, J., concurs.


       Altice, J., dissents with opinion.




       22
         While we acknowledge the potential viability of the Plaintiffs’ tolling and estoppel theories, we need not
       determine whether genuine issues of material fact exist regarding the applicability of those theories. We also
       express no opinion as to the legal effect, if any, of Paccar’s and the Dealership’s warranty disclaimers. The
       Defendants make no detailed arguments regarding when the Plaintiffs’ remaining causes of action accrued
       and thus would not be entitled to summary judgment on them in any event.

       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018                    Page 26 of 34
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Kenworth of Indianapolis, Inc.,                            Court of Appeals Case No.
       Kenworth of Indianapolis, Inc.                             49A02-1710-PL-2502
       d/b/a ITC Acceptance
       Company, and Paccar Inc.,
       Appellants-Defendants,

               v.

       Seventy-Seven Limited, Convey
       All, LLC, Keller Trucking, Inc.,
       K&K Aggregate, Inc., Huber
       Transport, LLC, Triple H
       Trucking, LLC, and Custom
       Hauling, Inc.,
       Appellees-Plaintiffs



       Altice, Judge, dissenting.


[28]   I respectfully dissent. This is a breach of warranty action. Section 2-725(2)

       clearly provides that



       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018          Page 27 of 34
               [a] cause of action accrues when the breach occurs, regardless of
               the aggrieved party’s lack of knowledge of the breach. A breach of
               warranty occurs when tender of delivery is made, except that where a
               warranty explicitly extends to future performance of the goods
               and discovery of the breach must await the time of such
               performance, the cause of action accrues when the breach is or
               should have been discovered.


       (Emphasis supplied). Thus, the general rule is that in a breach of warranty

       action, a cause of action accrues when tender of delivery is made. In drafting

       this provision, the drafters of the UCC focused on the seller’s interest in having

       a clearly defined limit on the period of its potential liability and found such

       interest to outweigh the buyer’s interest in an extended warranty unless such an

       extended warranty was part of a specific bargain. Dart Industries, Inc. v. Adell

       Plastics, Inc., 517 F.Supp. 9, 11 (S.D. Ind. 1980). Indeed, the drafters were fully

       aware of the difficulties faced by a buyer in determining conformity with a

       warranty at the time of delivery, but ultimately did not regard such difficulties

       as controlling. Id.


[29]   The majority sidesteps the general rule found in Section 2-725 by finding that

       the promise to repair or replace is not an express warranty under the UCC and

       thus does not fall within the ambit of Section 2-725. According to the majority,

       the promise to repair or replace created a separate contractual obligation, which

       could not be breached until the Defendants either refused or failed to repair or

       replace the defective trucks.




       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018   Page 28 of 34
[30]   Here, I find, as did the majority, that the warranty agreement at issue contains

       an express warranty23 that the trucks would be “free from defects in materials

       and workmanship.” Appellants’ Appendix Vol. 3 at 13. Section 2-725 clearly

       provides that a cause of action for breach of this express warranty accrues upon

       delivery unless the warranty explicitly extends to future performance. In this

       vein, I agree with the majority insofar as it found that the repair or replace

       provision does not warrant the future performance of the trucks. See Slip op. at

       14-15, n.11.


[31]   Where I part ways with the majority is that I view the repair or replace

       provision of the warranty agreement as a limitation of a seller’s liability, not as

       a separate contractual undertaking. In other words, the repair or replacement

       provision sets forth the exclusive remedy for breach of the express warranty.

       Thus, in my view, the action remains an action for breach of warranty falling

       within the purview of Section 2-725. I would hold that because the future

       performance exception does not apply, the Plaintiffs’ cause of action accrued

       upon delivery of the trucks. I also am not persuaded that the promises and

       efforts to repair the trucks operated to toll the limitation period.


[32]   While the majority rejects the Ludwig decision, I find it to be on point and

       controlling of the outcome in this case. In Ludwig, the court was presented with

       a factual scenario similar to that before us. There, the plaintiff took delivery of



       23
        Indeed, the majority aptly notes that this is a “significant factual difference” between the case before us and
       Mydlach, the case upon which the majority relies. Slip op. at 23.

       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018                     Page 29 of 34
       trucks that immediately proved to be defective. The warranty at issue in Ludwig

       provided for “repair or replacement of parts” as the “only remedy” for breach of

       the warranty. 510 N.E.2d at 694. Further, the plaintiffs were assured that the

       problems would be fixed, but subsequent repair efforts proved unsuccessful.

       Nearly four years and three months after the final trucks were delivered, the

       plaintiff filed a complaint asserting breach of warranty claims. Given that the

       action was for breach of warranty, the Ludwig court looked directly to Section 2-

       725(2) and determined that the plaintiff’s cause of action accrued upon delivery.

       Because the complaint was filed more than four years after delivery of the

       trucks, the Ludwig court held that the plaintiff’s action was barred.


[33]   Numerous other jurisdictions have similarly found that a cause of action for

       breach of warranty accrues upon delivery even where the warranty provides for

       repair or replacement as the exclusive remedy. In each case, the courts found

       that the repair or replacement warranty merely provided a remedy if the

       product became defective. See Joswick v. Chesapeake Mobile Homes, Inc., 747 A.2d

       214 (Md. App. 2000); Nebraska Popcorn, Inc. v. Wing, 602 N.W.2d 18 (Neb.

       1999); Hull v. Moore’s Mobile Homes Stebra, Inc., 214 A.D.2d 923 (N.Y. App. Div.

       1995); Boyd v. A.O. Smith Harvestore Products, Inc., 776 P.2d 1125 (Colo. Ct. App.

       1989); Carabello v. Crown Controls Corp., 659 F.Supp. 839 (D. Colo. 1987); City of

       Cincinnati, Ohio v. Dorr-Oliver, Inc., 659 F.Supp. 259 (D. Conn. 1986); Ontario

       Hydro v. Zallea Systems, Inc., 569 F.Supp. 1261 (D. Del. 1983); Poppenheimer v.

       Bluff City Motor Homes, Div. of Bluff City Buick Co., 658 S.W.2d 106 (Tenn. Ct.




       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018   Page 30 of 34
       App. 1983); Zahler v. Star Steel Supply Co., 213 N.W.2d 269 (Mich. App. 1973)24.

       In short, in none of these cases did the court consider the repair or replacement

       provision to be a separate contractual undertaking subject to its own, separate

       accrual analysis outside of Section 2-725.


[34]   The Ludwig decision also provides guidance as to how Indiana views promises

       and efforts to replace defective products with regard to tolling the limitation

       period set forth in Section 2-725.25 The Ludwig court noted:


                Some jurisdictions have found that repair promises or efforts will
                toll the statute of limitations. E.g., Louisville Silo and Tank Co. v.
                Thweatt (1927), 174 Ark. 437, 295 S.W. 710 (statute tolled so
                long as vendor insists defect can be repaired and is attempting to
                do so); Southern California Enterprises, Inc. v. D.N. and E. Walter and
                Co. (1947), 78 Cal.App.2d 750, 178 P.2d 785 (limitations statute
                applicable to breach of warranty action tolled while vendor
                claims defect can be cured and is attempting to do same); Gaffney
                v. Unit Crane and Shovel Corp. (1955), 49 Del. 381, 117 A.2d 237
                (recognizing rule that statute is tolled where seller’s promises rise
                to level of an assurance goods will be made to conform to
                warranty). However, other jurisdictions maintain that a seller’s
                assurances that a chattel not in compliance with its warranty will
                be corrected, and his attempts to make such repairs, do not toll
                the statute of limitations applicable to an action for breach of
                warranty. Triangle Underwriters, Inc. v. Honeywell, Inc. (E.D.N.Y.
                1978), 457 F.Supp. 765, 771 (argument of tolling based on repair



       24
         The trial court relied upon the dissent in Zahler in finding that the Defendants’ promises and efforts to
       repair the trucks tolled the running of the statute of limitations.
       25
          The Ludwig court found that the buyer waived the issue of equitable estoppel by failing to present it to the
       trial court in the first instances and that there was no evidence of fraudulent concealment so as to toll the
       limitations period.

       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018                      Page 31 of 34
        “has been rejected by the majority of jurisdictions”), aff’d on this
        holding, rev’d on other grounds (2d Cir. 1979), 604 F.2d 737, 743
        (attempts by seller to remedy defects giving rise to cause of action
        did not toll UCC’s four year period of limitations). See e.g.,
        Hartford Mutual Ins. Co. v. Seibels, Bruce and Co. (D. Md. 1984),
        579 F.Supp. 135, 138 (attempts to repair do not toll statute of
        limitations); Ontario Hydro v. Zallea Systems, Inc. (D.C. Del. 1983),
        569 F.Supp. 1261 (mere attempt by seller to remedy defects
        giving rise to cause of action does not toll statute of limitations);
        Binkley Co. v. Teledyne Mid-America Corp. (E.D. Mo. 1971), 333
        F.Supp. 1183, aff’d (8th Cir.1972), 460 F.2d 276 (seller’s attempts
        to repair did not toll statute of limitations regarding express and
        implied warranties); Tomes v. Chrysler Corp. (1978), 60 Ill.App.3d
        707, 18 Ill. Dec. 71, 377 N.E.2d 224 (efforts to repair do not toll
        the statute); Smith v. Ford Motor Co. (1978), 59 Ohio App.2d 41,
        392 N.E.2d 1287 (mere attempt by seller to remedy defects giving
        rise to cause of action does not toll statute of limitations);
        Poppenheimer v. Bluff City Motor Homes (1983), Tenn.App., 658
        S.W.2d 106 (breach of warranty occurs upon tender of delivery
        and seller’s attempts to cure defects do not toll statute of
        limitations); Bishop-Babcock-Becker Co. v. Jennings (1922), Tex. Civ.
        App., 245 S.W. 104 (statute of limitations not interrupted by
        seller’s assurances or attempts to remedy defects).


Id. at 698-99. In rejecting the plaintiff’s claim that the seller’s assurances and

repair efforts did not toll the limitation period set forth in Section 2-725, the

Ludwig court noted that the plaintiff was aware of the warranty when the trucks

were delivered; that the trucks immediately suffered mechanical problems; that

two engines had been repaired while still under warranty; and that repair

representations had been made long before the limitations period ran. Under

these circumstances, the Ludwig court stated that the owner of the trucking

company could not claim that “the[] repairs lulled him into inaction and

Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018   Page 32 of 34
       delayed his filing of this suit.” Id. The Ludwig court therefore found that the

       trial court did not err in determining that Section 2-725 barred the trucking

       company’s claim for breach of warranty.


[35]   As was the case in Ludwig, the Plaintiffs here were aware of the four-year

       limitation period; discovered the vibration issue immediately after delivery;

       knew that repair efforts had failed or were short-lived; and before the expiration

       of the extended warranty period, were aware that there was no permanent fix. 26

       Under these circumstances, I would conclude that the cause of action accrued

       upon delivery of the trucks and that the Plaintiffs’ complaint filed four years

       and nine months later is barred. This is consistent with the overall purpose of

       the UCC to establish a uniform statute of limitations for sales contracts

       eliminating jurisdictional variations and providing relief for companies doing

       business on a nationwide scale. It is also in line with the UCC’s emphasis on

       the seller’s need to have a clearly defined limit on the period of its potential

       liability over the buyer’s interest in an extended warranty.




       26
          The Plaintiffs do not claim that the Defendants refused to carry out their promise to replace the engine
       mounts for as long as the Plaintiffs owned the trucks. From the record, it can be inferred that such refusal, if
       at all, occurred only after the Plaintiffs filed the instant action.

       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018                      Page 33 of 34
[36]   I thus would hold that the Defendants are entitled to judgment as a matter of

       law. I would reverse the trial court and remand with instructions to grant

       summary judgment in favor of the Defendants.27




       27
         To the extent there may be a factual dispute, such does not affect my determination that the cause of action
       accrued on delivery and that the four-year limitation period had expired before the Plaintiffs filed the instant
       action.

       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2502 | September 28, 2018                     Page 34 of 34
