Cincinnati Insurance Company v. Lennox Industries Inc
Filing
52
OPINION AND ORDER Lennox Industries Inc.'s 50 Motion to Certify 49 Opinion and Order for Interlocutory Review is DENIED. Signed by Judge Rudy Lozano on 7/19/16. (kjp)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
THE CINCINNATI
INSURANCE COMPANY
a/s/o JASON and
MICHELLE HOWARD,
Plaintiff,
vs.
LENNOX INDUSTRIES,
INC.,
Defendant.
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CAUSE NO. 3:14-CV-1731
OPINION AND ORDER
This matter is before the Court on Lennox Industries Inc.’s
Motion to Certify Opinion and Order for Interlocutory Review, filed
by Defendant, Lennox Industries Inc., on May 13, 2016 (DE #50).
For the reasons set forth below, the motion (DE #50) is DENIED.
BACKGROUND
Plaintiff, the Cincinnati Insurance Company (“CIC”), filed its
complaint in state court on June 23, 2014 (DE #5).
The case was
removed to this Court in July, 2014. On August 6, 2015, Defendant,
Lennox Industries Inc. (“Lennox”), filed a motion for summary
judgment, requesting summary judgment against CIC (DE #30).
On
February 9, 2016, this Court entered its opinion and order on
Lennox’s motion for summary judgment, granting in part and denying
in part Lennox’s motion for summary judgment (DE #45).
The Court
granted summary judgment in favor of Lennox on the claims for
design defect and failure to warn, but denied summary judgment on
CIC’s claims for manufacturing defect (Count II), and noted that
its claims for breach of warranty (Count III) survived as well.
Lennox filed a motion to reconsider this Court’s February 9,
2016 (DE #45) order, arguing that summary judgment should have been
granted on all of CIC’s claims (including the claims for breach of
warranty and manufacturing defect).
(DE #46.)
On April 25, 2016,
this Court granted the motion to reconsider as to Count III, which
was dismissed, but denied the motion as to Count II for strict
products liability, which remains pending.
(DE #49.)
Lennox filed the instant motion to certify this Court’s April
25, 2016 opinion and order (DE #49) for interlocutory review.
The
Plaintiff did not file anything in response; therefore, the motion
is ripe for adjudication.
DISCUSSION
Interlocutory appeals are governed by Title 28 U.S.C. section
1292(b), which provides:
When a district judge, in making in a civil
action an order not otherwise appealable under
this section, shall be of the opinion that
such order involves a controlling question of
law as to which there is substantial ground
for difference of opinion and that an
immediate appeal from the order may materially
advance the ultimate termination of the
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litigation, he shall so state in writing in
such order.
An interlocutory appeal is available only when: “(1) the
appeal presents a question of law; (2) it is controlling; (3) it is
contestable; (4) its resolution will expedite the resolution of the
litigation; and (5) the petition to appeal is filed in the district
court within a reasonable amount of time after entry of the order
sought to be appealed.”
Boim v. Quranic Literacy Inst., 291 F.3d
1000, 1007 (7th Cir. 2002).
Certificates of appealability under this section are generally
disfavored because they "frequently cause unnecessary delays in
lower court proceedings and waste the resources of an already
overburdened judicial system."
Herdrich v. Pegram, 154 F.3d 362,
368 (7th Cir. 1998), rev’d on other grounds, 530 U.S. 211 (2000).
Thus, the party seeking an interlocutory appeal must show that
“exceptional circumstances justify the departure from the basic
policy of postponing appellate review until after the entry of a
final judgment."
(1978).
Coopers & Lybrand v. Livesay, 437 U.S. 463, 475
Therefore, “the preferred practice is to defer appellate
review until the entry of a final judgment. . ..” Herdrich, 154
F.3d at 368.
Lennox claims the denial of its motion for summary judgment on
its manufacturing defect claim is appropriate for interlocutory
review because:
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While Whitted and Reed permit a plaintiff to
introduce inferential evidence of a manufacturing
defect by negating other possible causes of the
incident, neither case remotely suggests that a
plaintiff can utilize this method of proof when
their own proffered expert witness unambiguously
testifies that a manufacturing defect, as defined
by the IPLA, does not exist in the product at
issue.
(Br. In Support of Mot. To Certify, at 2 (emphasis added).)
This Court agrees that its April 25, 2016 Order involves a
question of law, that the question is controlling, and that, if the
desired interlocutory appeal was decided in Lennox’s favor, this
case would be terminated.
Lennox’s
contention
that
The Court disagrees, however, with
there
is
a
substantial
ground
for
difference of opinion as to the question of law.
In its original order denying summary judgment on Count II for
strict liability for a manufacturing defect, the Court spent
considerable time analyzing Ford Motor Co. v. Reed, 689 N.E.2d 751
(Ind. Ct. App. 1997); Whitted v. General Motors Corp., 58 F.3d
1200, 1209 (7th Cir. 1995); and Gaskin v. Sharp Electronics Corp.,
No. 2:05-CV-303, 2007 WL 2819660 (N.D. Ind. Sept. 26, 2007). (DE
#45 at 17-21.)
that while
Lennox’s sole argument for interlocutory appeal is
Whitted
and
Reed
permit a plaintiff to introduce
inferential evidence of a manufacturing defect by negating other
possible causes, those cases do not suggest a plaintiff can use
this method of proof when their expert witness testifies that a
manufacturing defect “does not exist in the product at issue.” (DE
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#51 at 2.)
This Court never stated in its opinion, and indeed,
expert O’Neal never testified during his deposition (Brad O’Neal
Dep., pp. 28-29; 140), that there is no manufacturing defect in the
ACU.
This Court stated: “O’Neal specifically testified during his
deposition that he is not offering any opinion that the alleged
electrical
arcing
resulted
from
a
defective
dangerous characteristic of the ACU.”
or
unreasonably
(DE #45 at 5 (emphasis
added).) O’Neal’s testimony that he is not offering any opinion in
regard
to
a
manufacturing
defect
does
not
support
Lennox’s
illogical jump to the conclusion that O’Neal testified it is his
expert opinion that there was no manufacturing defect in the ACU.
This case is indeed like Gaskin, in which a fire cause and
origin expert analyzed the scene, eliminated other sources of the
fire, determined that the fire started at the television, but
stated during his deposition that “he is not qualified to render
any opinions about the television, therefore, he does not have any
opinion regarding whether the television was the cause of the
fire.”
Gaskin, 2007 WL 2819660, at *3.
This Court in Gaskin
concluded that:
Viewing the facts in the light most favorable to
the nonmovant, as this Court must on summary
judgment, it finds that Shand has sufficiently
negated other reasonably possible causes, and
Plaintiffs have satisfied the fourth method of
proving a manufacturing defect as annunciated in
Whitted and Reed.
Id. at *8.
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Similarly, in this case, Cooper, an investigator with Unified
Investigations & Sciences, Inc., stated in his report that “[t]he
fire originated at the condensing unit on the west exterior of the
home” (DE #35-2, Cooper’s Report, p. 2); and O’Neal, a forensic
engineer, opined that “[a]rc mapping placed the fire originating
inside the condensing unit, which was also consistent with the fire
investigator’s area of origin.”
(DE #35-3, O’Neal Report, p. 7.)
Both experts investigated other potential causes of the fire and
ruled out other sources.
(DE #35-2, p. 4; DE #35-3, p. 7.)
O’Neal
ultimately concluded that “[n]o other competent ignition sources
were identified which would cause the damage observed; therefore,
the arcing at the compressor was the fire’s ignition source.”
#35-3, p. 7.)
Like Shand in Gaskin, O’Neal
(DE
offers no opinion
about whether there was a manufacturing defect in the ACU. This is
sanctioned by Reed, which holds that a plaintiff can prove a
product defect by using any of four methods including inferential
evidence by negating other possible causes.
753.
Reed, 689 N.E.2d at
In sum, this Court’s decision is in line with current case
law and after re-evaluating the pertinent cases and its previous
orders, this Court finds that Lennox has not demonstrated that
there are substantial grounds for differences of opinion as to any
relevant question of law.
Lennox has also failed to meet its burden of showing that
exceptional circumstances justify departure from this Circuit’s
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general policy of postponing appellate review until after the entry
of final judgment.
See Ahrenholz, 219 F.3d at 676 (“Unless all
the[] criteria are satisfied, the district court may not and should
not certify its order to us for an immediate appeal under section
1292(b).”).
Accordingly, this Court exercises its discretion to
deny the request for interlocutory appeal.
See Swint v. Chambers
County Comm’n, 514 U.S. 35, 47 (1995)(“Congress thus chose to
confer
on
district
courts
first
line
discretion
to
allow
interlocutory appeals.”); Kuzinski v. Schering Corp., 614 F.Supp.2d
247,
249
(D.
Conn.
2009)(“Even
where
[the
criteria
for
an
interlocutory appeal] are met, the Court retains discretion to deny
permission for interlocutory appeal.”).
CONCLUSION
For the reasons set forth above, Lennox Industries Inc.’s
Motion to Certify Opinion and Order for Interlocutory Review (DE
#50) is DENIED.
DATED: July 19, 2016
/s/ RUDY LOZANO, Judge
United States District Court
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