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COA: ‘Not advisable’ to file simultaneous motions to correct error, notices of appeal

June 15, 2018

The Indiana Court of Appeals has reaffirmed a March decision that overturned summary judgment for a national motor company after granting a petition for rehearing to address the allegedly common practice of parties simultaneously filing motions to correct error and notices of appeal.

The appellate panel reaffirmed its original March ruling in Angela Brewer, Individually and as Personal Representative of the Estate of Rickey A. Brewer, Deceased, v. PACCAR, Inc., d/b/a PETERBILTS MOTORS CO., 55A05-1709-CT-2168, on Friday.  Angela Brewer sued Peterbilt after her husband, Rickey, was killed while working as a construction foreman in 2016.

Rickey died after being pinned between a trailer and a semi-truck that was partially built from a Peterbilt glider kit. The kit was custom-ordered by W&W Transport, which did not request a rear window or backup camera. The truck was then constructed using the glider kit and existing parts W&W already possessed.

Though the Morgan Circuit Court granted summary judgment to Peterbilt on Brewer’s claims of defective parts, the appellate court reversed, finding that Peterbilt was not absolved of all responsibility for the missing safety features just because W&W did not request them.

“In other words, it should be a question of fact as to whether it was reasonable for PACCAR to put a product into the stream of commerce that lacked one or several or all of those features,” now-retired Judge Michael Barnes wrote in March.

The March decision also noted that Brewer’s notice of appeal may have been prematurely filed, pointing to Peterbilt’s argument that the trial court only denied Brewer’s request for an oral hearing on her motion to correct error at the time she filed her notice of her appeal, but had not issued a ruling on the merits of that motion. But Peterbilt also requested that the case be resolved on the merits, so the panel agreed to decide the case despite the fact that the time period for the trial court to deny Brewer’s motion had not yet passed when she filed a notice of appeal.

In a petition for rehearing, Peterbilt argued that the court should not have said Brewer’s notice of appeal may have been premature because “it is ‘not unusual’ for a party to file both a motion to correct error and a notice of appeal simultaneously, ‘or for the same party to first file a Motion to Correct error, change its mind, and then file a Notice of Appeal before the thirty-day period expires.’” The motor company also noted that Indiana Appellate Rule 37 allows parties on appeal to move to stay appellate proceedings and remand for a ruling on a motion to correct error.

But the panel, which also consisted of Chief Judge Nancy Vaidik and Judge Paul Mathias, said it was unfamiliar with the motions practices Peterbilt described.

“Even if our trial and appellate rules do not expressly forbid the simultaneous filings of motions to correct error and notices of appeal by one party – or the filing of a notice of an appeal before a motion to correct error has been ruled on or deemed denied – we believe it is inadvisable to do so,” now-Senior Judge Barnes wrote Friday. “Or, at the very least, if a party files both a motion to correct error and a notice of appeal but decides to ‘abandon’ the motion to correct error, the party should dismiss the motion to correct error so there is no potential confusion about whether the trial court or this court is being asked to decide the case.”

Turning to the merits of the case, Peterbilt also argued in its rehearing petition that language in the March opinion could be taken to mean its glider kits was defective. Barnes, however, said the March opinion did not find the kit defective as a matter of law but instead left that question open for further litigation.  

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