North Central Cooperative, Inc. v. John R. Garrison

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
Apr 07 2014, 9:14 am
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
STEPHEN A. SEMOTUK CARA C. PUTMAN
Nationwide Mutual Insurance Company Bennett Boehning & Clary LLP
Carmel, Indiana Lafayette, Indiana
ROBERT B. SUTHERLAND
Nationwide Mutual Insurance Company
Akron, Ohio
IN THE
COURT OF APPEALS OF INDIANA
NORTH CENTRAL COOPERATIVE, INC., )
)
Appellant, )
)
vs. ) No. 08A02-1304-CT-345
)
JOHN R. GARRISON, )
)
Appellee. )
APPEAL FROM THE CARROLL CIRCUIT COURT
The Honorable Benjamin A. Diener, Judge
Cause No. 08C01-1110-CT-13
April 7, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
North Central Cooperative, Inc., (the “Cooperative”) appeals the trial court’s order
granting John R. Garrison’s motion to amend his complaint. The Cooperative raises
three issues, which we consolidate and restate as whether the court abused its discretion
in granting Garrison’s motion. We affirm.
PROCEDURAL HISTORY
On October 3, 2011, Garrison filed a complaint against the Cooperative in which
he alleged in part that the Cooperative was in the business of packaging, selling,
delivering and providing to agricultural customers, at retail, anhydrous ammonia, a toxic
chemical fertilizer, and that the Cooperative, on or about October 27, 2010, delivered and
provided the anhydrous ammonia to him for application and use in fertilizing an
agricultural field. Under Count I of the complaint, Garrison alleged that the Cooperative
“negligently, carelessly and or recklessly packaged, put into the stream of commerce,
provided, and/or delivered said anhydrous ammonia to [him] in a defective and/or
dangerous condition,” that as a direct and proximate result he “was made to come into
contact with, be exposed to, and be made to inhale into his lungs anhydrous ammonia,”
and that “[a]s a direct and proximate result of the said negligence, recklessness and/or
carelessness of the [Cooperative], [he] received serious personal injuries, some or all of
which are permanent, suffered and continues to suffer continuous physical pain and
mental distress, permanent disability, medical expenses which will continue into the
future, lost income and other damages.” Appellant’s Appendix at A5. Under Count II of
the complaint, Garrison alleged that the “anhydrous ammonia tank and/or delivery system
and/or component parts, were defective and in a dangerous condition with regard to
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design, manufacture, packaging, and warning, or any of these elements, thus causing
failure of one or more of the component parts, and making the tank and/or its component
parts unsafe for their intended use,” that the Cooperative was the manufacturer of the
“packaged product” sold to him on or about October 27, 2010, that “[t]he packaged
product was expected to, and did reach [him] without substantial alteration of the
condition in which [the Cooperative] sold said packaged product,” and that the
Cooperative “due to and as a result of the defective and faulty condition of the packaged
product which it sold to [him] and placed into the stream of commerce was the
responsible and proximate cause of physical harm and damages to [him] . . . .” Id. at A6-
A7.
On August 24, 2012, the trial court held a telephonic pretrial conference and
ordered that dispositive motions be filed no later than December 3, 2012, the parties file
their lists of witnesses and exhibits no later than January 11, 2013, the parties complete
discovery on or before February 11, 2013, a final pretrial conference be held on January
28, 2013, and that a jury trial be set for March 4, 2013.
On December 3, 2012, the Cooperative filed a motion for summary judgment
together with its designation of evidence and brief in support of the motion.1 Garrison
filed a motion for continuance on December 27, 2012, and a motion for enlargement of
time to respond to the Cooperative’s summary judgment motion on December 28, 2012.
1
The copies of these documents included in the record are not file-stamped. Garrison agrees with
the statement of the case set forth in the Cooperative’s appellant’s brief. We also note that the appellant’s
appendices do not include a copy of the trial court’s chronological case summary (“CCS”), and we
remind counsel that Ind. Appellate Rule 50(A)(2) provides that “[t]he appellant’s Appendix shall contain
a table of contents and copies of the following documents, if they exist: . . . the chronological case
summary for the trial court . . . .”
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The court granted Garrison’s motion for enlargement of time and gave him until February
15, 2013, to file a responsive pleading. According to the court’s January 4, 2013 CCS
entry, a hearing was scheduled on the Cooperative’s summary judgment motion for
March 7, 2013; the court granted Garrison’s motion for continuance of the trial date, re-
scheduling same for August 12, 2013; and the court ordered that dispositive motions be
filed no later than May 13, 2013, the parties file their lists of witnesses and exhibits by
June 21, 2013, and that discovery be completed by July 22, 2013.
On January 28, 2013, Garrison filed a “Motion to Amend Pleadings Herein To
Add Count III-General Negligence.” Id. at E1. In the motion, he asserted that, during the
course of discovery, he determined the need to amend the complaint to add the additional
count. The count alleged that the Cooperative “had a duty to [Garrison] to use reasonable
care in connection with the sale and transfer of the anhydrous ammonia to [him],
including, but not limited to, the proper inspection of equipment provided by [the
Cooperative] to ensure all is in good working order prior to [his] receipt and use of said
equipment, and to provide warnings and instructions pertaining to the proper operation of
the equipment.” Id. at E6. He further alleged that the Cooperative “negligently failed to
use reasonable care in connection with this sale and transfer of the anhydrous ammonia to
[him], including but not limited to, performing proper inspections and/or safety checks to
determine that the anhydrous was safely contained and that the equipment provided by
the [Cooperative] to deliver said anhydrous ammonia was in a reasonably safe
condition.” Id. Additionally he alleged that the Cooperative “negligently failed to warn
and instruct [him] regarding the proper use of their equipment and the danger associated
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with purchasing anhydrous unsafely packaged, sold and delivered by [the Cooperative].”
Id. at E7. Garrison argued that the Cooperative would not sustain any undue prejudice by
granting the amendment as it was in possession of all facts and that there was no undue
delay, dilatory motive or bad faith on the part of Garrison in his request for the
amendment.
On February 4, 2013, the Cooperative filed an objection to Garrison’s January 28,
2013 motion to amend pleadings in which it argued in part that “[t]he new claim []
Garrison wishes to advance by amendment to his complaint is futile and without merit,”
that Garrison “now proposes, as an alternative to his substantively and, as to strict
liability, procedurally flawed product liability claims that the [Cooperative] failed to
exercise reasonable care,” that “[h]is deposition testimony and the unchallenged opinion
of [the Cooperative’s] expert reveals the total absence of evidence to support this ‘general
negligence’ claim,” and that “[t]o permit this new claim to proceed against the evidence
that has been developed over the past one year and four months, all of which reveals that
[] Garrison’s claims are unsupported, would prove wasteful of the Court’s time and
resources, and, moreover, would subject the [Cooperative] to the time and expense of
further litigation of claims that have no evidentiary basis.” Id. at F5-F6. On February 15,
2013, Garrison filed a reply to the Cooperative’s objection.
On February 15, 2013, the court entered an order granting Garrison’s motion to
amend the complaint for the purpose of adding Count III. In its order, the court found
that “[n]o new facts gave rise to the necessity of Amending [Garrison’s] complaint and
[he] should have included the sought after Count III in its original complaint,” that
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“TR(8)(F) states that, ‘All pleadings shall be so construed as to do substantial justice,
lead to disposition on the merits, and avoid litigation of procedural point,’” that “Indiana
is a notice pleading rather than theory pleading state,” that the Cooperative “will not be
unduly prejudiced,” that “[t]he trial of the issues will not be unduly delayed,” and that the
Cooperative “shall be entitled to a continuance, if requested, to adequately defend against
the amended complaint.” Id. at D2. The court further ordered that “[p]ursuant to
TR(15)(C), the amendment relates back to the date of the original pleading,” the
Cooperative had twenty days from service of the amended complaint to file a responsive
pleading, and the previously-scheduled hearing on the Cooperative’s summary judgment
motion remained set for March 7, 2013. Id. Garrison filed his amended complaint on
February 21, 2013, and the Cooperative filed an answer on March 4, 2013.
On March 7, 2013, the court held a hearing on the Cooperative’s motion for
summary judgment. At the hearing, Garrison’s counsel noted that Count III had been
filed, the Cooperative’s summary judgment motion related to Counts I and II of his
complaint only, and that Garrison stipulated to the granting of the summary judgment
motion. The trial court stated “and as far as the Motion for Summary Judgment it is
defense counsel’s understanding that Counts 1 and 2 will be resolved with summary
judgment,” and counsel for the Cooperative stated “That is my understanding. I’m most
grateful.” Transcript at 3-4. The trial court asked the Cooperative’s counsel to prepare
the order, and after discussion, the Cooperative’s counsel stated “I will file an appropriate
Order that would designate dismissal or judgment on Counts 1 and 2 only, 3 to remain.”
Id. at 4. The court then stated that “any future endeavors in this case we will handle by
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appropriate motion and hearings if necessary.” Id. That same day, the court entered an
order granting the Cooperative’s motion for summary judgment on Counts I and II of
Garrison’s complaint and stating that Garrison’s “Count III shall remain pending.”
Appellant’s Appendix at G1.
On March 15, 2013, the Cooperative filed a motion to reconsider the court’s order
granting Garrison’s motion to amend pleadings to add Count III or, in the alternative, for
certification of the court’s interlocutory order dated February 15, 2013, for appeal. The
trial court certified the February 15, 2013 interlocutory order for appeal, and this court
accepted jurisdiction.
DISCUSSION
The issue is whether the trial court abused its discretion in granting Garrison’s
motion to amend his complaint. The Cooperative asserts that the court permitted
Garrison to amend his complaint after undue delay and subjected it to undue prejudice. It
argues that Garrison waited approximately two years and four months after the accident,
four months after the expiration of the statute of limitations, and two months after it filed
a summary judgment motion to request the amendment. The Cooperative contends that it
will have to conduct new discovery, re-depose witnesses, and present new defenses to
claims that should have been brought in 2011. It also claims that the amendment is only
properly adjudicated under the Indiana Products Liability Act (the “IPLA”), that it should
have been included in the original filing, and that had the amended provisions been
included in the original filing they would have been subject to the court’s ruling on its
motion for summary judgment.
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Garrison maintains that the court did not abuse its discretion in granting his
motion to amend his complaint. He argues in part that Indiana is a notice pleading state
and does not require litigation of the issues in the complaint, that during discovery the
claim of general negligence was explored, and that there is a question of whether the
Cooperative’s employees were negligent in their maintenance of the tank. He contends
that whether the Cooperative believes Count III could survive summary judgment is
irrelevant and that it can make the argument on remand but that it has no bearing on
whether the court abused its broad discretion in permitting the complaint to be amended.
Garrison further maintains that the Cooperative was not unduly prejudiced by the
amendment because the court agreed to grant additional time for discovery and because
the Cooperative was already on notice that his claim was based upon negligence as the
parties addressed general negligence throughout the course of discovery. He notes that
his motion to amend pleadings was filed fifteen months after the original complaint, a
much shorter time period than the three or four years found to be undue delay in other
cases, and that the report of the Cooperative’s expert alerted him to an additional cause of
action. Garrison also argues that general negligence can exist separate and distinct from
products liability, that the products liability statute prevents a separate negligence action
only in limited circumstances which do not exist here, and that Count III does not relate
to defects in the product but rather to whether the Cooperative used reasonable care in
preparing, inspecting and transferring the anhydrous ammonia in its tank. He further
asserts that failure to properly fill, secure, inspect, check and deliver the product have
nothing to do with a flawed design or product, and that the relation back doctrine is
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applicable because Count III arose from the same conduct, transaction, or occurrence as
the original two counts. In its reply brief, the Cooperative argues that the original
complaint failed to put it on notice as to a general negligence claim and that the amended
complaint failed to comply with the statute of limitations and does not relate back to the
original date of filing.
Indiana Trial Rule 15(A) provides that “[a] party may amend his pleading once as
a matter of course” and thereafter “a party may amend his pleading only by leave of court
or by written consent of the adverse party” and “leave shall be given when justice so
requires.” Amendments should be liberally allowed under Trial Rule 15(A), while giving
proper regard for any prejudice to the nonmoving party. United of Omaha v. Hieber, 653
N.E.2d 83, 87 (Ind. Ct. App. 1995) (citing Templin v. Fobes 617 N.E.2d 541, 543 (Ind.
1993)), reh’g denied, trans. denied. Although amendments to pleadings are to be
liberally allowed, the trial court retains broad discretion in granting or denying
amendments to pleadings. Hilliard v. Jacobs, 927 N.E.2d 393, 398 (Ind. Ct. App. 2010),
trans. denied. We will reverse only upon a showing of an abuse of that discretion. Id.An abuse of discretion may occur if the trial court’s decision is clearly against the logic
and effect of the facts and circumstances before the court, or if the court has
misinterpreted the law. Id. We consider whether a trial court’s ruling on a motion to
amend is an abuse of discretion by evaluating a number of factors, including “undue
delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure
deficiency by amendment previously allowed, undue prejudice to the opposing party by
virtue of the amendment, and futility of the amendment.” Id. (quoting Palacios v. Kline,
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566 N.E.2d 573, 575 (Ind. Ct. App. 1991)). In reviewing a discretionary motion, we
generally affirm if there is any rational basis for the trial court action. Palacios, 566
N.E.2d at 575. Trial court discretion is permitted because of the court’s strategic
advantage in balancing considerations for trial. Id.The Cooperative does not point to the record to show the factors of bad faith,
dilatory motive, or repeated failure to cure deficiency by amendment previously allowed.
With respect to undue delay, the record shows that Garrison initiated the lawsuit against
the Cooperative on October 3, 2011, and that he filed his motion to amend the complaint
to add Count III approximately fifteen months later on January 28, 2013. According to
the court’s January 4, 2013 CCS entry, at the time of Garrison’s motion to amend, the
cause was set for trial on August 12, 2013, dispositive motions were to be filed by May
13, 2013, the parties were to file their lists of witnesses and exhibits by June 21, 2013,
and discovery was to be completed by July 22, 2013. Garrison moved to amend his
complaint well before these scheduled deadlines. We agree with the trial court that the
trial of the issues will not be unduly delayed.
With respect to prejudice, as noted above the court granted Garrison’s motion well
before the scheduled deadlines for the parties to complete discovery or to submit lists of
witnesses and exhibits. The parties’ appendices include portions of depositions taken in
connection with the lawsuit, and the dates of the depositions show that a number of them
were conducted after the filing of the amended complaint. In addition, the trial court
specifically noted in its February 15, 2013 order that the Cooperative would be entitled to
a continuance if requested to adequately defend against the amended complaint. The
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Cooperative was on notice of the lawsuit against it and the nature of the action, had
obtained a report dated October 25, 2012, of a mechanical engineer investigating the
incident resulting in Garrison’s injuries, and had taken Garrison’s deposition on
November 27, 2010. We agree with the trial court that permitting the filing of Garrison’s
amended complaint does not unduly prejudice the Cooperative.
Moreover, we note the distinctive timing of the Cooperative’s motion for
reconsideration which would have had, if successful, the practical effect of a dismissal of
Garrison’s claim under Count III. Garrison requested the trial court’s approval to add
Count III on January 28, 2013, which the court granted on February 15, 2013, all of
which was prior to the March 7, 2013 hearing on the Cooperative’s summary judgment
motion related to Counts I and II and well before the scheduled deadline to complete
discovery in July 2013. At the summary judgment hearing, Garrison’s counsel and
counsel for the Cooperative indicated that the parties had agreed and Garrison had
stipulated to the granting of summary judgment with respect to Counts I and II but that
the lawsuit would proceed with respect to the claim under Count III. The trial court’s
subsequent order, which according to the hearing transcript was prepared by the
Cooperative’s counsel, stated that Count III would remain pending. It was only after it
had secured a favorable summary judgment order on Counts I and II, by the consent and
stipulation of Garrison whose understanding was that Count III would remain pending,
that the Cooperative challenged the trial court’s previous decision to permit Garrison to
amend his complaint to add Count III. If successful, the Cooperative would have as a
practical matter disposed of Garrison’s claim under Count III without the necessity of
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pursuing a motion to dismiss or for summary judgment or proceeding to trial. This order
of events also favors the conclusion that the trial court’s order granting Garrison leave to
file his amended complaint should not be disturbed.
To the extent the Cooperative argues that the IPLA governs Garrison’s allegations
under Count III and thus that those allegations would have been subject to the trial
court’s summary judgment ruling and the amendment would have been futile, we note
that the trial court did not make a determination regarding whether the IPLA or any other
law governs Garrison’s claims and that this court need not make such a determination at
this stage in the proceedings in order to affirm the trial court’s order granting Garrison
leave to file his amended complaint. The trial court’s March 7, 2013 order did not grant
summary judgment in favor of the Cooperative on all of those claims alleged by Garrison
which were or may have been governed by the IPLA. Rather, as specifically stipulated
by the parties, the court’s order granted summary judgment on Counts I and II only and
expressly provided that the allegations set forth under Count III of Garrison’s amended
complaint, without reference to the law which may govern those allegations, remained
pending.
We also note that Count I alleged in part that the Cooperative negligently
packaged, put into the stream of commerce, provided, and/or delivered anhydrous
ammonia to Garrison in a defective and/or dangerous condition, and Count III alleged in
part that the Cooperative had a duty with respect to the proper inspection of equipment to
ensure all was in good working order, that it negligently failed to use reasonable care in
connection with the sale and transfer of the anhydrous ammonia including but not limited
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to performing proper inspections and/or safety checks, and that it negligently failed to
warn and instruct regarding the proper use of the equipment. The Cooperative does not
point to authority, and we are not aware of any, for the proposition that, where a plaintiff
brings multiple negligence claims or multiple claims under the IPLA, a grant of summary
judgment as to one of the claims necessarily means that summary judgment must be
granted as to all of the other claims. The trial court was not required to grant summary
judgment on Count III simply because it granted summary judgment on Count I.
As the Cooperative notes, Ind. Code § 34-20-1-1 provides that “[t]his article
governs all actions that are: (1) brought by a user or consumer; (2) against a manufacturer
or seller; and (3) for physical harm caused by a product; regardless of the substantive
legal theory or theories upon which the action is brought.” Thus, the IPLA may govern
both the strict liability and negligence claims brought by a plaintiff. See Interstate Cold
Storage, Inc. v. General Motors Corp., 720 N.E.2d 727, 730 (Ind. Ct. App. 1999), trans.
denied. However, this does not mean that Garrison may not raise his allegations in Count
III. To the extent the IPLA governs Garrison’s action, the Cooperative argues that “the
cure for an incorrect filing is not to dismiss the claim, but to merge it with the existing
claim to be analyzed under the [IPLA].” Appellant’s Brief at 11. We express no opinion
as to whether the IPLA governs the allegations under Count III or the impact of that
determination as the case proceeds. The Cooperative did not seek and the trial court did
not grant summary judgment with respect to the allegations under Count III. We decline
to find that these allegations were in effect disposed of by summary judgment where the
parties specifically stipulated and the trial court expressly ordered that was not the case.
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Additionally, with respect to the Cooperative’s argument that the amended
complaint failed to comply with the statute of limitations, Ind. Trial Rule 15(C) provides
that “[w]henever the claim or defense asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth or attempted to be set forth in the original
pleading, the amendment relates back to the date of the original pleading.” Here, the
claim under Count III in Garrison’s amended complaint arose out of the conduct,
transaction, or occurrence set forth or attempted to be set forth in his original complaint,
and as found by the trial court the amendment relates back to the date of the original
pleading. See Ind. Farmers Mut. Ins. Co. v. Richie, 707 N.E.2d 992, 996 (Ind. 1999)
(observing that, because the plaintiff’s amended complaint was filed after the statute of
limitations had expired on his tort action, the amended complaint must relate back to the
date of the original filing if it was to survive, holding that the amended complaint did
relate back to the original filing as contemplated by Trial Rule 15 because it arose out of
the conduct, transaction, or occurrence of the original complaint, and noting that the
notice and knowledge test found in Trial Rule 15(C) applies only where the party offers
an amendment changing the party against whom a claim is asserted and that the
plaintiff’s amendment did not seek to add, subtract or otherwise change the party against
whom the claim was asserted).
Based upon the record, we cannot say the trial court abused its discretion in
granting Garrison’s motion to amend his complaint to add Count III. Accordingly, we do
not disturb the trial court’s February 15, 2013 ruling.
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CONCLUSION
For the foregoing reasons, we affirm the trial court’s order granting Garrison’s
motion to amend his complaint.
Affirmed.
ROBB, J., and BARNES, J., concur.
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