Mаrk E. McDILLON, Appellant (Counter Plaintiff below), v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee (Counter Defendant below).
No. 45S04-0412-CV-528
Supreme Court of Indiana.
Feb. 8, 2006.
777 N.E.2d at 1127-28. In my view, the Court of Appeals is exactly right.
Just like the worker‘s spouse in Stegemoller and the maintenance worker in Butler, Vaughn, as an installer of the product in this case, should be entitled to present a strict liability claim under the Product Liability Act. The coal sump manufacturer, Daniels, obviously knew thаt its product had to be installed and that the installation workers would be exposed to any product defects creating dangers in the installation process. I cannot join the Court in adopting a rule that protects manufacturers from full strict liability accountability under the Act for injuries caused by their defеctive and unreasonably dangerous products and sustained by the workers who install them.
I also disagree with the majority‘s conclusion finding Solar not liable despite the fact that Solar was charged with specific duties to provide certain railings under the Federal Mine Safety and Health Act of 1977.
For these rеasons, I dissent and believe that this Court should reverse in all respects the trial court‘s grant of summary judgment to Daniels and Solar.
RUCKER, J., concurs.
Edward P. Grimmer, Edward P. Grimmer, P.C., Crown Point, for Appellee.
DICKSON, Justice.
We granted transfer in this case to address the application of
In this damage action by Northern Indiana Public Service Company (NIPSCO) against the defendant Mark E. McDillon, whose automobile collided with a utility pole, the trial court initially entered a default judgment for NIPSCO, but later granted McDillon‘s motion to set aside the default. A jury trial ensued, resulting in a verdict and judgment in favor of NIPSCO for $12,440.29. McDillon appealed, and NIPSCO raised issues on cross-appeal. Finding error in the jury instructions, thе Court of Appeals reversed and remanded. As to the issues other than
In its order of May 15, 2001, granting McDillon‘s motion to set aside the default judgment, the trial court did not specify any date by which McDillon was to file an answer or other responsive pleading. Appellant‘s Supplemental App‘x at 11.
The Court of Appeals also concluded that the jury demand was timely, but did so by applying
We granted transfer, however, tо resolve an apparent conflict among Indiana cases regarding the application of
Whenever a party has the right or is required to do some act or take some proceеdings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period.
The question is whether the rule properly applies to extend the commencement of deadlines following all court orders, including those deadlines triggered by the entry of an order or happening of an event, or only by those deadlines that are triggered by service of a court order.
In Lincoln v. Bd. of Comm‘rs of Tippecanoe County, 510 N.E.2d 716, 724 (Ind.Ct.App.1987), trans. not sought, the rule was applied to add three additional days to the period prescribed by
In contrast, several cases have explicitly limited the application of
Ind. Trial Rule 6(C) (responsive pleading required to be served “within 20 days after the service of thе prior pleading“);Ind. Trial Rule 33(C) (responses to interrogatories due “not less than thirty (30) days after service thereof“);Ind. Trial Rule 56(C) (adverse party has “thirty days after service of the motion to serve a response and any opposing affidavits“).
Upon further analysis, this understanding is consistent with the actual holdings in several of the cases noted above as generally applying
We hold that, consistent with Carter-McMahon, Jennings, and Annon, the application of
As noted above, the trial сourt‘s determination that the jury trial demand was timely did not involve application of a three-day extension under
NIPSCO‘s arguments on cross-appeal challenge the timeliness of McDillon‘s jury trial demand not as measured from the date of the trial court‘s ruling setting aside the default, but from the date of the filing of the original complaint before the default judgment was taken. NIPSCO argues that, based on the date he was served with the summons and complaint, McDillon‘s answer or responsive pleading was due by October 23, 2000, and any jury trial demand was thus required by November 7, 2000. NIPSCO alternatively argues that, because the issues are deemed сlosed upon the entry of a default, which occurred here on November 2, 2002, McDillon‘s ten-day period to demand a jury trial expired on November 12, 2000. Appellee‘s Br. at 30. McDillon‘s jury trial request was not filed by either November 7 or November 12. NIPSCO argues that because the right to jury trial had not been timely exercised, it could not be revived by the setting aside of the default judgment. Id. at 31.
As correctly noted by the Court of Appeals, when a default judgment is set aside, to determine the due dates for subsequent pleadings, the complaint is treated as if it had been filed on the date of the order setting aside the default judgment. McDillon, 812 N.E.2d at 158 (citing Wright v. Paraservices, Inc., 726 N.E.2d 1263, 1265 (Ind.Ct.App.2000)). Thus the period within which McDillon could properly file a jury trial demand expired on June 28, 2001, ten days after his responsive pleading was due. By mailing his written demand for jury trial by certified mail on June 28, even though it was not received by the court clerk until the following day, McDillon‘s jury trial request was timely filed.
While we granted transfer to clarify the application of
SHEPARD, C.J., and BOEHM, and RUCKER, JJ., concur.
SULLIVAN, Justice, concurring and dissenting.
I concur in the Court‘s opinion in respect of the application of
The trial in this case was over whether the defendant was liable to the plaintiff for damage as a result of the plaintiff‘s vehicle colliding with the defendant‘s propеrty. The plaintiff‘s defense was that his vehicle had been stolen from a gas station while he was inside buying a cup of coffee. The jury awarded the plaintiff approximately $12,000. The Court of Appeals found reversible error in the trial court‘s instruction on the law of comparative fault.
Indiana comparative fault law permits a defendant to argue that the damages claimed by the plaintiff “were caused in full or in part by a nonparty.”
The part of the instruction the Court of Appeals found erroneous said:
The Defendant claims that his car was stolen and has the burden of proving that by a preponderance of the evidence: the name and identity of that [nonparty], sufficiently so that the person could have been joined as a defendant
If you conclude that there wаs a [nonparty] at fault, you will be requested to identify that person by name on your verdict form, and assign a percentage of fault against that [nonparty]. If the [nonparty] cannot be identified, the jury cannot assign a percentage of fault against the [nonparty].
McDillon v. N. Ind. Pub. Serv. Co., 812 N.E.2d 152, 156 (Ind.Ct.App.2004) (emphasis in original).
It seems to me that the instruction the trial court gave was entirely faithful to the Comparative Fault Act and to Cornell Harbison. The defendant contended that the damages claimed by the plaintiff were caused in full by a nonparty, i.e., the thief, and so was required to name the nonparty specifically. Indeed, the Cornell Harbison case was a lot like this one. There the рlaintiffs sued the defendant for damage as a result of the plaintiffs’ vehicle colliding with the defendant‘s property; the defendant argued that the unknown owner of a dog that had run into plaintiffs’ way caused the damages. 546 N.E.2d at 1186. We said that for the defendant to assert that the dog‘s owner was at fault, the dog‘s owner had tо be named specifically. Id. at 1187. That is what the trial court did here: require that for the defendant to assert that the thief was at fault, the thief had to be named specifically.
The Court of Appeals said the trial court was wrong to give this instruction because the defendant‘s “thief” defense was not a nonparty defense, it was a proximate cause defense. McDillon, 812 N.E.2d at 156. Although the Court of Appeals does not say so, the import of its holding is that if a defendant asserts that the damages claimed by the plaintiff were proximately caused by a person other than the defendant, the defendant is not required to name that оther person specifically. This might well be the sensible rule but it seems to me to lie in highly uneasy tension with the rule of Cornell Harbison, which says, to repeat that if a defendant asserts that the damages claimed by the plaintiff
I think this tension will create great uncertainty for plaintiffs, defendants, and trial court judges.1 For this reason, I think we should not summarily affirm the decision of the Court of Appeals on this point but instead address the merits and explain when a defendant who asserts that a person other than the defendant has caused the plaintiff‘s damages is required to name that other person and when not.
SULLIVAN, J.