Appellant-defendant B & B Paint Corporation appeals the trial court's denial of its motion for summary judgment.
The facts relevant to this appeal disclose that prior to August 14, 1984, Shrock purchased paint from B & B for use at its plant in Elkhart County, Indiana. Shrock experienced minor trash container fires several times after discarding paint filters saturated with the paint sold by B & B. After contacting B & B, representatives of Shrock were told that the fires were not caused by the paint. On August 14, 1984, a fire started in a paint booth at the factory. Shrock's factory, inventory, and personal property were damaged in the fire. Shrock also lost substantial income until the factory could be restored.
(On December 17, 1987, Shrock filed a complaint against B & B alleging a breach of implied warranty of merchantability and fitness for a particular purpose. On May 12, 1989, B & B filed a motion for summary judgment alleging that Shrock's action was a product liability action which should be governed by the two-year statute of limitations provided under the Product Liability Act. IND.CODE § 88-1-1.5-5 (1990 Supp.). The trial court denied B & B's motion holding that Shrock's complaint was timely filed under the four-year statute of limitations provided in the Uniform Commercial Code, IND.CODE § 26-1-2-725 (1988 Ed.). The trial court granted B & B's motion for certification to file an interlocutory appeal.
One issue is dispositive of this appeal: whether Shrock's complaint alleging breach of implied warranty of merchantability and fitness for a particular purpose should be governed by the four-year statute of limitations provided in the Uniform Commercial Code, IND.CODE § 26-1-2-725, or by the two-year statute of limitations provided in the Product Liability Act, IND.CODE § 838-1-1.5-5.
B & B believes that Shrock characterized its claim as a breach of warranty action in an attempt to cireumvent the two-year statute of limitations in the Product Liability Act, IND.CODE § 88-1-1.5-5. (Shrock's complaint was filed almost three and a half years after the cause of action acerued.) B & B asserts that Shrock's complaint is actually one based on negligence or strict liability and as such is governed by the Product Liability Act.
B & B cites the Product Liability Act's statute of limitations which explicitly states that it governs "any product liability action in which the theory of liability is negligence or strict liability in tort." Id. B & B also looks to Dague v. Piper Aircraft Corp. (1981),
This Court agrees that the Prod-uet Liability Act does govern actions in which the theory of liability is negligence or strict liability in tort. However, just because a case could have been brought under the Product Liability Act does not
This Court does not quarrel with the cases cited by B & B which hold that "it is the nature or substance of the cause of action, rather than the form of the action, which determines the applicability of the statute of limitations." Shideler v. Dwyer (1981),
Shrock is alleging breach of implied warranty of merchantability under IND. CODE § 26-1-2-814 (1988 Ed.) and breach of implied warranty of fitness for a particular purpose under IND.CODE § 26-1-2-815 (1988 Ed.). For a cause of action to be successful under either of those two sections, the plaintiff must show privity of contract. Lane v. Barringer (1980), Ind.App.,
As Shrock notes, much of the decline in breach of warranty cases under the UCC can be attributed to the fact that in many cases it is easier for a plaintiff to bring a cause of action against a manufacturer under the more recent Product Liability Act since privity of contract and notice to the manufacturer of the breach need not be shown. The scope of plaintiff's damages may also be restricted in the UCC's provisions for damages for a breach of contract, IND.CODE § 26-1-2-714 (1988 Ed.), and for incidental and consequential damages, IND.CODE § 26-1-2-715 (1988 Ed.). (Consequential damages include injury to property proximately resulting from the breach of warranty.) However, even though bringing a cause of action under the Product Liability Act may be more attractive to plaintiffs, this certainly does not prevent a plaintiff from choosing to bring an action under the UCC if he or she is able to do so.
A breach of warranty claim should be treated as a contractual claim when it is not merely an incorrectly labeled strict product liability claim.
O'Halloran v. Toledo Seale Co. (1987),
See also Victorson v. Bock Laundry Machine Co. (1975),
Martin v. Julius Dierck Equipment Co. (1978),
As has been stated:
"The fact that a strict products liability cause of action is now recognized does not mean that breach of warranty under the Uniform Commercial Code no longer exists. The breach of warranty causes of action under the code are primarily related to the sales contract and are subject to all the limitations and requirements imposed by the code, and they areseparate and distinct from a strict products liability cause of action for injury to person or property arising out of tortious conduct on the part of the manufacturer."
Ribley v. Harsco Corp. (1977),57 A.D.2d 234 ,394 N.Y.S.2d 741 .
The UCC and the Product Liability Act provide alternative remedies. The adoption of the Product Liability Act did not vitiate the provisions of the UCC. Therefore, Shrock was entitled to bring a cause of action based on breach of implied warranty under the UCC.
B & B argues that when two or more statutes of limitation deal with the same subject matter, the statute which is more recent and specific will prevail over the older and more general one. See Ferguson v. Modern Farm Systems, Inc. (1990), Ind.App.,
The trial court's denial of summary judgment to B & B is affirmed.
Affirmed.