McIntosh v. Melroe Co.

ATTORNEYS FOR APPELLANTS

Jerry J. Phillips

Knoxville, Tennessee

Roger L. Pardieck

Seymour, Indiana

John F. Vargo

Janet O. Vargo

Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE

Indiana Trial Lawyers Association

Edgar W. Bayliff

P. Gregory Cross

Thomas C. Doehrman

Robert L. Justice

Henry J. Price

Mary Beth Ramey

Indianapolis, Indiana

ATTORNEY FOR APPELLEES

Robert G. Zeigler

Indianapolis, Indiana

ATTORNEYS FOR AMICI CURIAE

Indiana Defense Lawyers Association

John D. Nell

Julie L. Michaelis

Joseph R. Alberts

Indianapolis, Indiana

Product Liability Advisory Counsel, Inc.

Hugh F. Young, Jr.

Reston, Virginia

Lloyd H. Milliken, Jr.

Todd J. Kaiser

Nelson D. Alexander

T. Joseph Wendt

Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

JAMES E. MCINTOSH and )

SONDRA MCINTOSH, )

)

Appellants (Plaintiffs Below), ) Indiana Supreme Court

) Cause No. 71S03-9805-CV-297

v. )

)

MELROE COMPANY, a Division of ) Indiana Court of Appeals

CLARK EQUIPMENT CO., INC., a ) Cause No. 71A03-9609-CV-320

Delaware corporation, and RUXER )

FARMS, INC., an Indiana Corporation, )

)

Appellees (Defendants Below). )

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT

The Honorable Jeanne Jourdan, Judge

Cause No. 71D07-9506-CT-00229

ON PETITION TO TRANSFER

May 26, 2000

BOEHM, Justice.

This case deals with the validity of the provision in the Product

Liability Act that bars product liability claims for injuries sustained

more than ten years after the product is delivered to its “initial user or

consumer.” The plaintiffs argue that this provision violates their

constitutional right under Article I, Section 12 of the Indiana

Constitution to a remedy by due course of law. They also contend that it

violates Article I, Section 23 which prohibits the grant of privileges and

immunities not equally applicable to all. We hold that the provision is a

permissible legislative decision to limit the liability of manufacturers of

goods over ten years old and does not violate either constitutional

guarantee.

Factual and Procedural Background

The facts of this case are not in dispute. On June 9, 1993, James

McIntosh was injured in an accident involving a Clark Bobcat skid steer

loader manufactured by Melroe. McIntosh and his wife filed suit alleging

that his injuries and her resulting loss of companionship were caused by a

defect in the loader. Melroe responded with a motion for summary judgment

based on the ten-year statute of repose, codified at Indiana Code ' 34-20-3-

1(b).[1] That section provides that “a product liability action must be

commenced . . . within ten (10) years after the delivery of the product to

the initial user or consumer.” Melroe designated evidence establishing

that the loader had been delivered to its initial user on September 9,

1980, almost thirteen years before the accident. The McIntoshes did not

dispute this evidence, but replied that the statute of repose violated

their rights under Article I, Sections 12 and 23 of the Indiana

Constitution. The trial court granted Melroe=s motion and the Court of

Appeals affirmed. Because the material facts are not in dispute, the

appeal presents only an issue of law. We granted the McIntoshes’ petition

to transfer and now hold that the statute of repose is constitutional.

I. Article I, Section 12

Article I, Section 12 of the Indiana Constitution provides, in

relevant part: “All courts shall be open; and every person, for injury

done to him in his person, property, or reputation, shall have remedy by

due course of law.” The McIntoshes argue that the statute of repose

violates Section 12 because it “abrogates all of the tort protections

provided by common law,” and these are claimed to be guaranteed by the “due

course of law” provision of Section 12.

Melroe contends that this case is governed by our decision in Dague v.

Piper Aircraft

Corp., 275 Ind. 520, 530, 418 N.E.2d 207, 213 (1981), which held that the

statute of repose does not violate Article I, Section 12. The McIntoshes

assert that Dague addressed only the provision in Section 12 that “all

courts shall be open” and did not deal with the provision that “every

person, for injury done to him in his person . . . shall have remedy by due

course of law.” Although Dague itself did not explicitly limit its holding

to the “open courts” provision, at least two members of this Court

suggested a decade ago that Dague did not fully address the

constitutionality of the statute of repose under Section 12. See Covalt v.

Carey Canada, Inc., 543 N.E.2d 382, 387-90 (Ind. 1989) (dissenting opinions

of Shepard, C.J., and Dickson, J., stating that the statute of repose “is

still susceptible to challenges under Article 1, Sections 12 and 23”). The

McIntoshes now squarely raise this issue.

A. Methodology

We agree with the dissent that the various frequently invoked

constitutional talismansBconstitutional text, history of the times, intent

of the framers, etc.Bare proper keys to the interpretation of Article I,

Section 12. See Ajabu v. State, 693 N.E.2d 921, 928-29 (Ind. 1998) (“In

construing the Indiana Constitution . . . [we] look to ‘the language of the

text in the context of the history surrounding its drafting and

ratification, the purpose and structure of our constitution, and case law

interpreting the specific provisions.’”) (quoting Boehm v. Town of St.

John, 675 N.E.2d 318, 321 (Ind. 1996)); Collins v. Day, 644 N.E.2d 72, 75-

76 (Ind. 1994). But apart from the text itself, precedents of this Court,

and precedents from other states with similar provisions, we find no

relevant guideposts on this point. In particular, there appears to be no

unique Indiana history surrounding the adoption of this Clause in 1816 or

its redrafting in 1851. Cf. Journal-Gazette Co. v. Bandido=s, Inc., 712

N.E.2d 446, 484 (Ind. 1999) (Dickson, J., dissenting).

B. The Branches of Federal Due Process and State Article I, Section 12

Doctrine

By 1986, this Court could correctly observe that there was a

“substantial line of cases treating the ‘due process’ clause of the federal

constitution and the ‘due course’ clause of the Indiana Constitution as

interchangeable.” White v. State, 497 N.E.2d 893, 897 n.4 (Ind. 1986).

White addressed claims of violation of state and federal constitutional

rights in accepting a guilty plea to a criminal charge. For the quoted

proposition, White cited three cases that addressed federal due process and

state Article I, Section 12 claims as if there were no difference between

them. The first was a case striking down a zoning restriction against

gasoline stations in areas that permitted other commercial uses on the

ground that the restriction constituted a taking that was not justified by

safety concerns and therefore violated both constitutions. See Board of

Zoning Appeals v. La Dow, 238 Ind. 673, 676-78, 153 N.E.2d 599, 601 (1958).

The second, Dean v. State ex rel. Board of Medical Registration &

Examination, 233 Ind. 25, 30-31, 116 N.E.2d 503, 506 (1954), dealt with a

claim that legislative regulation of the medical profession was

“unconstitutional” and held that the regulatory program in question “did

not violate the Due Process Clause of either the federal or state

constitutions.” The third, Paul v. Walkerton Woodlawn Cemetery Ass’n, 204

Ind. 693, 699-701, 184 N.E. 537, 540 (1933), upheld assessments by the

managers of a cemetery association as justified by the articles and bylaws,

and therefore not a violation of the due process rights of the member lot

holders. Consistent with this precedent, this Court recently noted that,

“[t]he same analysis is applicable to both” the federal Due Process Clause

and the state Due Course of Law Clause. Indiana High Sch. Athletic Ass’n

v. Carlberg, 694 N.E.2d 222, 241 (Ind. 1997) (considering claims that the

IHSAA’s procedures for addressing student-athlete eligibility were

constitutionally defective).

The two constitutional provisions do share certain commonalities.

Both prohibit state action that deprives a person of a protectable interest

without a fair proceeding. See id. Both also require, as a threshold

matter, that the claimant have a “protectable interest.” See id. (citing

Board of Regents v. Roth, 408 U.S. 564, 570-71 (1972)); see also Sidle v.

Majors, 264 Ind. 206, 223, 341 N.E.2d 763, 773-74 (1976) (“‘The inquiry, in

every case, must be directed to the nature of the right alleged to have

been infringed upon.’”).

This is not to say, however, that the “open courts” or “remedies”

clause of Article I, Section 12 is in all applications to be equated with

the due process provisions of the Fifth and Fourteenth Amendments. In

broad brush, the federal provisions guarantee procedural and substantive

due process rights. Procedural rights ensure, for example, that a party

will be given “the opportunity to be heard ‘at a meaningful time and in a

meaningful manner.’” Matthews v. Eldridge, 424 U.S. 319, 333 (1976).

Procedural rights are found in both the civil context, where due process

imposes requirements of notice, a right to a hearing, etc., as well as the

criminal context, where it is the source of an array of criminal procedural

rights, either directly through the Due Process Clause of the Fifth

Amendment or via the Due Process Clause of the Fourteenth Amendment.

The “substantive” due process strain declares some actions so

outlandish that they cannot be accomplished by any procedure. In earlier

times, this took the form of preservation of property and contractual

rights. See, e.g., Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). It

reached a highwater mark in cases invalidating progressive era and New Deal

legislation, most notably the now discredited, Lochner v. New York, 198

U.S. 45 (1905), which struck down a state law limiting the work week to

sixty hours. This doctrine remains today as a constitutional bar to

actions that “shock the conscience,” see County of Sacramento v. Lewis, 523

U.S. 833, 846 (1998), despite the recognition that “guideposts for

responsible decisionmaking in this uncharted area are scarce and open-

ended,” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992).

Article I, Section 12 of our State Constitution also has multiple

strains, but they are not the same as the federal pair. The first sentence

of Article I, Section 12, the remedies clause of our State Constitution,

prescribes procedural fairness. It guarantees a “remedy by due course of

law” for injuries to “person, property, or reputation.” By its terms, this

provision applies only in the civil context.[2] It omits any reference to

deprivation of “life, liberty, or property,” which is the trigger of due

process requirements in the criminal context. Article I, Section 12 also

differs from the due process clauses by providing that the courts “shall be

open,” a requirement that seems meaningful only to civil litigants.

In the context of a procedural right to “remedy by due course of law”

in a civil proceeding, as IHSAA held, the Indiana Constitution has

developed a body of law essentially identical to federal due process

doctrine. The same is not true in the criminal context. To be sure, we

find occasional references to the nonexistent “due process clause of the

state constitution,” and some broad statements such as the quoted footnote

from White, supra. It is nevertheless very clear that Indiana

constitutional law dealing with criminal procedural guarantees varies from

the federal constitutional law embodied in the Bill of Rights and now for

the most part “incorporated” by the Fourteenth Amendment Due Process

Clause.[3] Indeed, state criminal procedural doctrines have almost

uniformly developed, not by reference to Article I, Section 12, but rather

under the various other more specific provisions that make up our state

Constitution=s counterpart to the Bill of Rights. Finally, there is a

strain of Article I, Section 12 doctrine that is analogous to federal

substantive due process. As elaborated below, in general this doctrine

imposes the requirement that legislation interfering with a right bear a

rational relationship to a legitimate legislative goal, but does not

preserve any particular remedy from legislative repeal.

To presage and capsulize our conclusions under these differing lines

of Section 12 doctrine, the Product Liability Act statute of repose is

consistent with each. In terms of pure civil procedural due process

analysis, there is no issue. The bar of the statute of repose in the

Product Liability Act does not purport to regulate the procedure in the

courts. Nor is the open courts requirement violated because, as Dague

held, it remains the province of the General Assembly to identify legally

cognizable claims for relief. If the law provides no remedy, denying a

remedy is consistent with due course of law. Finally, there is no state

constitutional “substantive” due course of law violation because this

legislation has been held to be, and we again hold it to be, rationally

related to a legitimate legislative objective. It is debatable whether the

Product Liability Act eliminated a common law remedy, but even if it did,

there is no substantive constitutional requirement that bars a statute from

accomplishing that.

C. The Constitution Did Not Freeze the Common Law

The McIntoshes argue that they have a constitutional right to a

remedy for their injuries because the framers of the 1851 Constitution

“decided not to give the General Assembly broad powers to abolish the

common law.” From this they suggest that they have a protectable

constitutional right to the remedy provided by the common law for product

liability injuries. This amounts to a claim that common law remedies may

not be abolished. It is fundamentally a claim that these remedies

constitute a protected species similar to the rights thought embedded in

the constitution by substantive due process. Although Dague did not

address this contention in the context of upholding the Product Liability

Act=s statute of repose, precedent strongly rejects it. This Court has

long recognized the ability of the General Assembly to modify or abrogate

the common law. See Martin v. Richey, 711 N.E.2d 1273, 1282-83 (Ind.

1999); Dague, 275 Ind. at 529, 418 N.E.2d at 213; Sidle, 264 Ind. at 226,

341 N.E.2d at 775; Pennington v. Stewart, 212 Ind. 553, 559, 10 N.E.2d 619,

622 (1937) (abolishing the common law tort of alienation of affections);

cf. May v. State, 133 Ind. 567, 570, 33 N.E. 352, 353-54 (1893) (“We think

it quite clear that there may be a claim or demand without any right to sue

for its recovery.”).[4] “Indiana courts have uniformly held that in cases

involving injury to person or property, Article I, ' 12 does not prevent

the legislature from modifying or restricting common law rights and

remedies.” State v. Rendleman, 603 N.E.2d 1333, 1336 (Ind. 1992)

(upholding the Tort Claims Act); accord Jamerson v. Anderson Newspapers,

Inc., 469 N.E.2d 1243, 1249-50 (Ind. Ct. App. 1984) (upholding shield law

protecting news media from revealing their sources), overruled on other

grounds by Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). In sum, the

courts of this State, like those of most others, “generally agree that the

constitutional assurance of a remedy for injury does not create any new

substantive rights to recover for particular harms. Rather, the clause

promises that, for injuries recognized elsewhere in the law, the courts

will be open for meaningful redress.” Jennifer Friesen, State

Constitutional Law ' 6-2(c) (2d ed. 1996).

Although there is a significant split in other states[5] as to whether

provisions similar to our “remedy by due course” provision permit the

legislature to impose a statute of repose in product liability cases, we

agree with the Supreme Court of Oregon that “[t]he legislature has the

authority to determine what constitutes a legally cognizable injury.”

Sealey v. Hicks, 788 P.2d 435, 439 (Or. 1990). Indeed, we believe that

there is a very powerful reason that the General Assembly must have the

authority to determine what injuries are legally cognizable, i.e., which

injuries are wrongs for which there is a legal remedy. A contrary view

implies a static common law that is inconsistent with the evolution of

legal doctrine before and after 1851. Perhaps equally important, if we are

to find some remedies chiseled in constitutional stone, we wander into the

area of “scarce and open-ended” guideposts for identifying which remedies

are of constitutional dimension, and which are not.

Presumably for these reasons, we have long held that the General

Assembly has the authority to modify the common law and that there is no

“fundamental right” to bring a particular cause of action to remedy an

asserted wrong. Rohrabaugh v. Wagoner, 274 Ind. 661, 664-65, 413 N.E.2d

891, 893 (1980). Rather, because individuals have “no vested or property

right in any rule of common law,” the General Assembly can make substantial

changes to the existing law without infringing on citizen rights. Dague,

275 Ind. at 529, 418 N.E.2d at 213; accord Johnson v. St. Vincent Hosp.,

Inc., 273 Ind. 374, 386, 404 N.E.2d 585, 593-94 (1980); Lamb v. Wedgewood

South Corp., 302 S.E.2d 868, 880 (N.C. 1983) (“‘The Legislature is entirely

at liberty to create new rights or abolish old ones as long as no vested

right is disturbed.’”); Freezer Storage, Inc. v. Armstrong Cork Co., 382

A.2d 715, 720 (Pa. 1978) (“[N]o one ‘has a vested right in the continued

existence of an immutable body of negligence law.’”); Gibson v. West

Virginia Dep’t of Highways, 406 S.E.2d 440, 451 (W. Va. 1991) (statute of

repose does not violate the remedy by due course of law provision because

no cause of action had accrued, and therefore no right had vested at time

the statute of repose ended). Because no citizen has a protectable

interest in the state of product liability law as it existed before the

Product Liability Act, the General Assembly’s abrogation of the common law

of product liability through the statute of repose does not run afoul of

the “substantive” due course of law provision of Article I, Section 12.

D. If “Due Course of Law” Provides No Remedy, None Is Required by the

Constitution

In this case, the General Assembly has determined that injuries

occurring ten years after the product was delivered to a user are not

legally cognizable claims for relief. Accordingly, the McIntoshes are not

entitled to a “remedy” under Section 12. See Shook Heavy & Envtl. Constr.

Group v. Kokomo, 632 N.E.2d 355, 362 (Ind. 1994) (“Because [plaintiff] does

not have a property interest in the award of the contract . . . article I,

section 12, of our constitution does not provide plaintiff with a cause of

action . . . .”). Thus, the statute of repose “‘does not bar a cause of

action; its effect, rather, is to prevent what might otherwise be a cause

of action from ever arising . . . . The injured party literally has no

cause of action. The harm that has been done is damnum absque injuria B a

wrong for which the law affords no redress.’” Lamb, 302 S.E.2d at 880

(quoting Rosenberg v. Town of North Bergen, 293 A.2d 662, 667 (N.J. 1972));

accord Sealey, 788 P.2d at 439; Freezer Storage, Inc., 382 A.2d at 720;

Gibson, 406 S.E.2d at 451.

Martin v. Richey, decided last year by this Court, does not affect

this analysis. See 711 N.E.2d at 1273. In that case, the plaintiff had a

cause of action that accrued before the applicable statutory period had run

but did not discover that she had it, and in the exercise of reasonable

care could not have discovered it. We held that the application of the

statute of limitations to cut off her accrued claim before it reasonably

could be brought was an unreasonable and unconstitutional impairment of an

existing and recognized remedy. See id. at 1284-85. Here, however, the

statute extinguished any cause of action before the plaintiffs= claim

accrued. Unlike the Medical Malpractice Act as applied in Martin, under

the Product Liability Act as applied here, no one with an accrued claim is

in the position of having the claim but no practical means of asserting it.

The legislature has provided that after the product is in use for ten

years, no further claims accrue. That is not an unreasonable exercise of

legislative power. It is further ameliorated by the provision that claims

accruing in the last two years of the ten-year period may be brought within

two years after accrual.[6]

Procedure must be according to “due course of law” and courts must be

open to entertain claims based on rules of law. Those rules of law, in

turn, can be derived either from the common law or prescribed by statute.

Thus, although the state constitution requires courts to be open to provide

remedy by due course of law, legislation by rational classification to

abolish a remedy is consonant with due course of law. If the law provides

no remedy, Section 12 does not require that there be one.

Finally, the dissent concludes that Article I, Section 12 guarantees

to each citizen “a substantive right to remedy for injuries suffered.” ___

N.E.2d at ___. We think this confuses “injury” with “wrong.” There is not

and never has been a right to redress for every injury, as victims of

natural disasters or faultless accidents can attest. Nor is there any

constitutional right to any particular remedy. Indeed, as we have pointed

out, some forms of “wrong” recognized at common law have long since been

abolished by the legislature without conflict with the Indiana

Constitution. See, e.g., Sidle, 264 Ind. at 206, 341 N.E.2d at 763

(upholding guest statute). Ironically, the wrong the dissent contends in

this case to be preserved by the constitution against legislative

interference, strict liability for product flaws, did not exist in 1851; it

was adopted as part of the Product Liability Act in 1978. See Hoffman v.

E.W. Bliss Co., 448 N.E.2d 277, 281 (Ind. 1983) (noting that “the Indiana

Legislature has codified the basic principles of ' 402A products liability

into law,” including strict liability). It is true, as the dissent notes,

that the concept of strict liability did not originate with the Product

Liability Act. Although strict liability did not exist in 1851, by the

1970s, it had become a recognized theory of recovery. See Ayr-Way Stores,

Inc. v. Chitwood, 261 Ind. 86, 92-93, 300 N.E.2d 335, 339-40 (1973);

Galbreath v. Engineering Construction Corp., 149 Ind. App. 347, 356-57, 273

N.E.2d 121, 126-27 (1971) (recognizing Indiana’s adoption of absolute

liability for manufacturers and adoption of ' 402A of the Restatement of

Torts). This further underscores the point that the common law was not

frozen in 1851 and is not chiseled in stone today. The dissent would imply

that any judicially created tort remedy, even if non-existent until over

100 years after the adoption of the Indiana Constitution, cannot be

abolished. Under this view, the door swings only one way: causes of

action may be created at common law and by statute, but no cause of action,

once it is created, may be eliminated.

As we observed in another context, the power to create is the power

to destroy. See State v. Monfort, 723 N.E.2d 407, 410 (Ind. 2000). There

is a fundamental difference between finding in the Indiana Constitution a

requirement to preserve a specific substantive rule of law (which is the

net effect of the dissent’s position), and requiring that our courts be

open to entertain claims based on established rules of law. The holding in

Martin v. Richey is that a claim that exists cannot be barred before it is

knowable. Here, we are dealing with a rule of law that says, in effect,

that products that produce no injury for ten years are no longer subject to

claims under the Product Liability Act. Whatever the wisdom of such a

rule, in our view it is a matter well within the legislature’s ability to

regulate.

E. The Statute Is A Rational Means of Achieving a Legitimate

Legislative Goal

Although we reject the McIntoshes’ argument that the constitution

precludes the General Assembly from modifying or eliminating a common law

tort, the legislature’s authority is not without limits. Section 12

requires that legislation that deprives a person of a complete tort remedy

must be a rational means to achieve a legitimate legislative goal. As

elaborated in Johnson, 273 Ind. at 396, 404 N.E.2d at 599, “[T]he

limitation upon patient recoveries is not arbitrary and irrational, but

furthers the public purposes of the Act . . . .” In Martin, we also found

a requirement that, as applied to the individual case, the limitation must

not be an unreasonable impediment to the exercise of an otherwise valid

claim. This requirement is a variation on the substantive due process

theme and imposes an overall test of rationality very similar to the

requirement of a rational relationship under Section 23 discussed below.

The Product Liability Act meets both tests. The statute of repose

represents a determination by the General Assembly that an injury occurring

ten years after the product had been in use is not a legally cognizable

“injury” that is to be remedied by the courts. This decision was based on

its apparent conclusion that after a decade of use, product failures are

“due to reasons not fairly laid at the manufacturer’s door.” Estate of

Shebel v. Yaskawa Elec. Am., Inc., 713 N.E.2d 275, 278 (Ind. 1999). The

statute also serves the public policy concerns of reliability and

availability of evidence after long periods of time, and the ability of

manufacturers to plan their affairs without the potential for unknown

liability. Id. The statute of repose is rationally related to meeting

these legitimate legislative goals. It provides certainty and finality

with a bright line bar to liability ten years after a product’s first use.

It is also rationally related to the General Assembly’s reasonable

determination that, in the vast majority of cases, failure of products over

ten years old is due to wear and tear or other causes not the fault of the

manufacturer, and the substantial interests already identified warrant

establishing a bright line after which no claim is created.

In sum, the McIntoshes do not have a vested interest in the state of

the common law as it existed before the Product Liability Act was passed.

The General Assembly has made the permissible legislative choice to limit

product liability actions to the first ten years of a product’s use.

Accordingly, the McIntoshes’ injuries, which occurred after the ten-year

statute of repose ended, were not legally cognizable injuries for which a

remedy exists and the statute of repose does not violate Section 12.

II. Article I, Section 23

Article I, Section 23 provides: “The General Assembly shall not grant

to any citizen, or class of citizens, privileges or immunities which, upon

the same terms, shall not equally belong to all citizens.” The McIntoshes

argue that the statute creates an impermissible distinction between tort

victims injured by products more than ten years old and those injured by

products less than ten years old. They also argue that the statute

impermissibly grants a privilege to manufacturers of durable goods that is

not available to manufacturers of non-durable goods.[7] These two

classifications are based on the same distinction: injury by a product in

use for more than ten years.

It is worth observing at the outset that some forms of legislative

“classification” by their terms identify the class of persons to whom the

legislation applies, and impose burdens upon or grant benefits to those

persons. The hypothetical statute the dissent describes, limiting

educational opportunities to persons under thirty years of age, is of that

sort. All citizens are either over thirty or they are not. Age is an

inherent characteristic in the sense of “innate,” and no one over thirty

will ever again fall into the class of persons under thirty. The

differentiation of persons based on innate characteristics such as age

raises a host of issues not relevant here, most obviously federal equal

protection considerations. Most “classifications,” however, do not define

a group of persons by some innate characteristic. Rather, they attach

consequences to specified sequences of events that could touch anyone. The

Product Liability Act statute of repose is of that ilk.

In Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994), this Court announced

a two-part test for determining a statute’s validity under Section 23.

First, the disparate treatment must be reasonably related to inherent

characteristics that distinguish the unequally treated classes and second,

preferential treatment must be uniformly applicable and equally available

to all similarly situated persons. Id.; see also Martin v. Richey, 711

N.E.2d 1273, 1280 (Ind. 1999) (quoting Collins). As explained in Martin,

even if the statute is valid under the first prong of Collins, it may be

invalid under the second prong if, as applied to a subset of a facially

homogeneous class, it confers a different privilege or harm. 711 N.E.2d at

1281-82. Although Collins itself uses the word “inherent” to describe the

characteristic that defines the class, this cannot be equated with “innate”

characteristics of members of the class. The worker’s compensation scheme,

like the Product Liability Act, turns on the characteristics of the

employers, not the injured workers. Similarly, under the Product Liability

Act, everyone may potentially recover for an injury from a product not yet

ten years old, and everyone injured from an older product is barred. It is

the claim, not any innate characteristic of the person, that defines the

class.

The first inquiry under Article I, Section 23 is whether the statute

of repose is reasonably related to the inherent characteristics that define

the distinction. In this case the distinction is the age of the product

that allegedly injured the claimant. Contrary to the suggestion of the

dissent, there is no statutory classification of claimants. Anyone can

present a claim and anyone can be barred by the statute, depending on what

product is the source of the claim. As explained in Part I, the statute of

repose reflects the legislative determination that product failures

occurring more than ten years after delivery to the first user are not

fairly laid at the door of the manufacturer. It also promotes certainty

and finality by limiting the exposure of manufacturers to ten years after a

product is first used. The distinction that follows between persons

injured by products less than ten years old and those injured by products

more than ten years old is rationally related to serving these legislative

goals and is a permissible balancing of the competing interests involved.

See Collins, 644 N.E.2d at 79-80 (citing Johnson v. St. Vincent Hosp.,

Inc., 273 Ind. 374, 404-05, 404 N.E.2d 585, 604 (1980)) (“[T]he courts must

accord considerable deference to the manner in which the legislature has

balanced the competing interests involved.”).

The dissent contends that the statute violates Article I, Section 23

because it classifies “people” arbitrarily, even if it classifies products

rationally. This has a nice ring to it, but it proves far too much.

Virtually every legislative classification is based on some measure other

than the people whom the legislation affects. Worker’s compensation grants

benefits and confers immunities based on whether an accident occurs in the

workplace or not. Surely under a host of precedents the entire worker=s

compensation scheme is not unconstitutional because it treats people

differently even though they suffer the same injury. Yet this is the

conclusion to which the dissent leads us. See ___ N.E.2d at ___ (“The

parties who are injured by defective products more than ten years old do

not necessarily differ from the parties who are injured by such products

that are only nine years old.”). Indeed, the very authority cited by the

dissent as establishing this doctrine in fact rejects it. Collins v. Day

held that the statutory exemption from worker=s compensation coverage for

agricultural employees does not violate Article I, Section 23 of the

Indiana Constitution. See 644 N.E.2d at 81-82. Nonetheless, it is obvious

that agricultural workers can incur injuries that, as the dissent puts it,

“do not necessarily differ” from those a worker might incur in another

occupation, or in no occupation. Collins itself demonstrates this. The

injury was a broken leg from an unspecified accident that occurred in the

course of agricultural employment. No doubt many industrial accidents have

produced identical results that were covered by worker’s compensation

benefits. The same is of course true of accidents in a number of other

settings involving no employment relationship at all and therefore falling

completely outside of the restraints and benefits of worker’s compensation.

More broadly, the dissent contends that legislative classifications

are to be invalidated under Article I, Section 23 if they permit remedies

for some losses but not for other similar losses. This is a truly

startling proposition. It would invalidate a host of regulatory statutes

that hinge their jurisdiction on the characteristics of the supplier or the

product and not on the impact on a consumer or other person coming into

contact with a product. We have a statute prohibiting the unauthorized use

of a watercraft as a plug to make a mold to duplicate the watercraft. See

Ind. Code ' 24-4-8-5 (1998). A civil treble damage remedy is provided by

Indiana Code ' 24-4-8-6 (a)(3). The Cigarette Fair Trade Act, Ind. Code ''

24-3-2-1 to 24-3-2-13, provides a number of remedies for economic injury in

cigarette distribution that presumably could be incurred in any number of

industries. The dissent would imply that these statutes, and presumably

innumerable others, are unconstitutional because they apply only to

watercraft or cigarettes, but the designer-manufacturer of, say, an

aircraft, or the distributor of candy might suffer the same injury and have

no compensable remedy.

The general business corporation law provides appraisal rights to

dissenting shareholders who believe a merger does not adequately value

their shares as long as the shares are not listed on a national exchange or

traded on NASDAQ. See Ind. Code ' 23-1-44-8 (1998). Similarly, the

dissent would render this unconstitutional because the holder of a listed

security could suffer the same injury and not be able to invoke this

remedy. Yet these and similar statutory provisions have been upheld as

reasonable exercises of legislative judgment based on the classification of

the supplier. See, e.g., Johnson, 273 Ind. at 393, 397-99, 404 N.E.2d at

597, 600-01 (concluding that the medical malpractice statute does not

violate Article I, Section 23, either by requiring malpractice claims to

first be reviewed by a medical panel or by capping damages at $500,000);

Sidle v. Majors, 264 Ind. 206, 210-11, 341 N.E.2d 763, 767 (1976)

(upholding guest statute even though it results in “two classifications of

passengersBguests and non-guests, who are treated vastly differently under

circumstances that are otherwise identical”). Cf. Indiana Farm Bureau

Cooperative Ass’n v. AgMax, Inc., 622 N.E.2d 206, 211 (Ind. Ct. App. 1993)

(agricultural cooperatives are not entitled to dissenters’ rights under

Business Corporation Law because they are governed by the Indiana

Agricultural Cooperative Act, which does not provide for these rights).

It is simply not the case, as the dissent puts it, that “inherent

characteristics of the people” differentiate the statutory treatments. It

is the characteristic, inherent or not, of the underlying products with

which the “people” come into contact that produce the differentiated

result. To take Collins as an example, an agricultural worker and an

industrial worker have no inherent characteristics. The industry in which

they are employed is the basis of the distinction. An analogous

relationship is true of the cigarette distributors, watercraft

manufacturers, and shareholders in listed companies.

Section 23 also requires that the preferential treatment provided by

the statute of repose be uniformly applicable to all similarly situated

persons. Martin, 711 N.E.2d at 1280; Collins, 644 N.E.2d at 80. As

explained in Martin, this second prong is aimed at discovering whether the

statute is unconstitutional as applied to the particular plaintiff. See

711 N.E.2d at 1281-82. In this case, the statute of repose bars any claim

for injury that occurs more than ten years after delivery to an initial

user or consumer. Unlike the plaintiff in Martin who had an otherwise

valid tort claim but was unable to discover it within the statute of

limitations, the McIntoshes have never had a legally cognizable injury. On

its face the statute applies to everyone. All citizens are prevented from

accruing claims based on products in use longer than a decade. The

McIntoshes belong to no subset of that class. They are treated no

differently from any other person injured more than ten years after a

product is first used or consumed.

The dissent asserts that deference to legislative judgment is required

only as to whether the legislative action is reasonably related to the

inherent characteristics of the deferential class. Without any citation to

authority for this proposition, the dissent says the courts are to cut the

legislature no slack in their judgment as to which characteristics justify

different treatment. See ___ N.E.2d at ___. This claim swims upstream

against a host of precedent. See Indiana Dep’t of Envtl. Management v.

Chemical Waste Management, Inc., 643 N.E.2d 331, 338 (Ind. 1994); Johnson,

273 Ind. at 391-92, 404 N.E.2d at 596-97; Indiana Aeronautics Comm’n v.

Ambassadair, Inc., 267 Ind. 137, 149, 368 N.E.2d 1340, 1347 (1977) (“We

conclude that the great deference given to tax legislation and the

classifications they may employ by the Fourteenth Amendment and Article I,

Section 23 of the Indiana Constitution dictates that this statute is not

constitutionally invalid . . . .”). Indeed, just last year, citing

Collins, we reaffirmed as constitutional the legislative scheme

distinguishing between medical malpractice claimants and non-medical

malpractice claimants as reasonably related to the goal of maintaining

adequate medical treatment and containing medical malpractice insurance

costs. See Martin, 711 N.E.2d at 1280-81. Even the entire structure of

state government has been justified on the basis of classification of

cities and towns that are obviously arbitrary in the sense that they draw

lines at specified points along a spectrum. Yet these laws have been

upheld under Article I, Section 23 and against other constitutional

challenges. See, e.g., Dortch v. Lugar, 255 Ind. 545, 266 N.E.2d 25 (1971)

(upholding as constitutional “Unigov” legislation reorganizing local

municipal and county government for counties with cities of the first

class, i.e., for Marion County).

Finally, Collins v. Day says, on this subject:

Article I, Section 23 of the Indiana Constitution imposes two

requirements upon statutes that grant unequal privileges or immunities

to differing classes of persons. First, the disparate treatment

accorded by the legislation must be reasonably related to inherent

characteristics which distinguish the unequally treated classes.

Second, the preferential treatment must be uniformly applicable and

equally available to all persons similarly situated. Finally, in

determining whether a statute complies with or violates Section 23,

courts must exercise substantial deference to legislative discretion.

644 N.E.2d at 80. This language contains no caveat that deference is due

legislative judgments only as to the first of these. As we are often

reminded, in constitutional interpretation we look to the understanding of

the ratifiers. See Richardson v. State, 717 N.E.2d 32, 38 (Ind. 1999);

Ratliff v. Cohn, 693 N.E.2d 530, 534 (Ind. 1998); Boehm v. Town of St.

John, 675 N.E.2d 318, 321 (Ind. 1996); State v. Hoovler, 668 N.E.2d 1229,

1233 (Ind. 1996) (“In interpreting a particular provision of the Indiana

Constitution, we seek ‘the common understanding of both those who framed it

and those who ratified it.’”); Collins, 644 N.E.2d at 75-76. We take this

to mean that the actual language is important because it tells us how the

voters who approved the Constitution understood it, whatever the expressed

intent of the framers in debates or other clues. So, too, we take Collins

at its word. Our reading of Collins on this point, has been, so far as we

can determine, universally adopted by the courts citing that case. See

Cohn v. Strawhorn, 721 N.E.2d 342, 350-51 (Ind. Ct. App. 1999)

(“Legislative classification becomes a judicial question only where the

lines drawn appear arbitrary or manifestly unreasonable.”); Fleming v.

International Pizza Supply Corp., 707 N.E.2d 1033, 1037-38 (Ind. Ct. App.

1999) (same); Person v. State, 661 N.E.2d 587, 593 (Ind. Ct. App. 1996)

(same) (all citing Collins for this proposition).

In sum, because the disparate treatment imposed by the statute of

repose is reasonably related to the inherent characteristics of the class

and does not distinguish among members of the class, the statute does not

violate Article I, Section 23.

Conclusion

The trial court’s grant of summary judgment for Melroe is affirmed.

SHEPARD, C.J., concurs.

SULLIVAN, J., concurs in part and concurs in result with separate

opinion.

DICKSON, J., dissents with separate opinion in which RUCKER, J.,

concurs.

Attorneys for Appellant Attorney for Appellees

Jerry J. Phillips Robert G. Ziegler

Knoxville, Tennessee Indianapolis, Indiana

Roger L. Pardieck Attorney for Amici

Curiae, Indiana

Seymour, Indiana Defense Lawyers Association

John F. Vargo John D. Nell

Janet O. Vargo Julie L. Michaelis

Indianapolis, Indiana Joseph R. Alberts

Indianapolis, Indiana

Attorneys for Amicus Curiae, Indiana

Trial Lawyers Association Attorney for Amicus Curiae,

Product

Liability Advisory Counsel, Inc.

Edgar W. Bayliff

P. Gregory Cross Hugh F. Young, Jr.

Thomas C. Doehrman Reston, Virginia

Robert L. Justice

Henry J. Price Lloyd H. Milliken, Jr.

Mary Beth Ramey Todd. J. Kaiser

Indianapolis, Indiana Nelson D. Alexander

T. Joseph Wendt

Indianapolis, Indiana

IN THE

INDIANA SUPREME COURT

JAMES E. McINTOSH and

SONDRA McINTOSH,

Appellants (Plaintiffs below)

v.

MELROE COMPANY, a Division of CLARK EQUIPMENT CO., INC., a Delaware

Corporation, and RUXER FARMS, INC., an Indiana Corporation,

Appellees (Defendants below).

)

) Supreme Court No.

) 71S03-9805-CV-297

)

)

)

)

)

)

)

)

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT

The Honorable Jeanne Jourdan, Judge

Cause No. 71D07-9506-CT-229

ON PETITION TO TRANSFER

May 26, 2000

SULLIVAN, Justice, concurring in part and concurring in result.

I agree that the ten-year statute of repose in the Indiana Product

Liability Act does not violate either art. I, § 12, or art. I, § 23, of the

Indiana Constitution.

In my view, the constitutionality of the Product Liability Act

statute of repose under art. I, § 12, was established in Dague v. Piper

Aircraft Corp., 275 Ind. 520, 418 N.E.2d 207 (1981). While it is true that

Chief Justice Shepard and Justice Dickson suggested in their dissents in

Covalt v. Carey Canada, Inc., 543 N.E.2d 382, 387-90 (Ind. 1989), that

Dague did not fully address the constitutionality of the statute of repose

under section 12, we have subsequently cited Dague approvingly for

precisely that proposition. State v. Rendleman, 603 N.E.2d 1333, 1336-37

(Ind. 1992).

While the constitutionality of the Product Liability Act statute of

repose under art. I, § 23, has not been squarely addressed, I find Beecher

v. White, 447 N.E.2d 622, 627 (Ind.Ct.App. 1983), transfer denied, to be

precedent. Beecher upheld the constitutionality under art. I, § 23, of a

ten-year statute of repose for claims arising from architectural

deficiencies.

Although the Dague and Beecher precedents have not been explicitly

overruled or disapproved, the question remains whether recent changes in

our section 12 or section 23 jurisprudence would produce a different result

today. Specifically, do our three decisions last year — Martin v. Richey,

711 N.E.2d 1273 (Ind. 1999), and two related cases, Harris v. Raymond, 715

N.E.2d 388 (Ind. 1999); Van Dusen v. Stotts, 712 N.E.2d 491 (Ind. 1999) —

holding the Medical Malpractice Act statute of limitations unconstitutional

as applied require that the statute of repose be invalidated in this case?

In Martin, we held that section 12

preclude[s] the application of a two-year medical malpractice statute

of limitations when a plaintiff has no meaningful opportunity to file

an otherwise valid tort claim within the specified statutory time

period because, given the nature of the asserted malpractice and the

resulting injury or medical condition, plaintiff is unable to discover

that she has a cause of action. Stated another way, the medical

malpractice statute of limitations is unconstitutional as applied when

plaintiff did not know or, in the exercise of reasonable diligence,

could not have discovered that she had sustained an injury as a result

of malpractice, because in such a case the statute of limitations

would impose an impossible condition on plaintiff's access to courts

and ability to pursue an otherwise valid tort claim.

711 N.E.2d at 1284. Martin requires that the plaintiff have "an otherwise

valid tort claim," as the foregoing quotation makes clear by twice

repeating that expression. Martin also reiterates an important point made

in Rendleman that "the legislature has the authority to modify or abrogate

common law rights provided that such change does not interfere with

constitutional rights." Martin, 711 N.E.2d at 1283 (citing Rendleman, 603

N.E.2d at 1336). The legislature has established the product liability

tort claim only for physical harm which occurs within ten years of the

delivery of the product to the initial user or consumer. Ind. Code § 34-20-

3-1(b) (1998). There is no valid product liability tort claim for physical

harm which occurs outside that ten-year period. Because the harm allegedly

suffered by McIntosh was outside the ten-year period, McIntosh did not have

the "otherwise valid tort claim" required by Martin.

As to section 23, Martin

requires that the statute of limitations be "uniformly applicable" to

all medical malpractice victims, and that, therefore, the statute

could not be applied to preclude a plaintiff from filing a claim

simply because she has a disease which has a long latency period and

which may not manifest significant pain or debilitating symptoms until

several years after the asserted misdiagnosis.

Van Dusen, 712 N.E.2d at 493. Martin clearly recognizes that section 23

allows the legislature to create a statute of limitations in the Medical

Malpractice Act so long as it is uniformly applicable to all medical

malpractice victims. From this I conclude that section 23 is no impediment

to the legislature creating a statute of repose in the Product Liability

Act so long as it is uniformly applicable to all products victims. That is

the case here: there is no claim that McIntosh is treated any differently

under the Product Liability Act than any other product victim whose injury

occurs more than ten years after delivery of the product to an initial user

or consumer.

Because I do not believe that either Martin or its companion cases

altered the established precedents of Dague and Beecher, I conclude that

those precedents dictate that the Product Liability Act's statute of repose

violates neither art. I, § 12, nor art. I, § 23, of the Indiana

Constitution.

In The

INDIANA SUPREME COURT

JAMES E. McINTOSH and )

SONDRA McINTOSH, )

Appellants (Plaintiffs below), )

)

v. ) 71S03-9805-CV-297

)

MELROE COMPANY, a Division of )

CLARK EQUIPMENT CO., INC., a )

Delaware Corporation, and RUXER FARMS, )

INC., an Indiana Corporation, )

Appellees (Defendants below). )

________________________________________________

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT

The Honorable Jeanne Jourdan, Judge

Cause No. 71D07-9506-CT-229

_________________________________________________

On Petition to Transfer

May 26, 2000

DICKSON, Justice, dissenting

This case presented us with an opportunity to restore to Indiana's

jurisprudence important principles of our state constitution. By doing so,

we could have vividly exemplified the Rule of Law notwithstanding the

allure of pragmatic commercial interests. We should hold that the ten-year

statute of repose provision in the Indiana Products Liability Act violates

both the Right to Remedy and the Equal Privileges and Immunities Clauses of

the Indiana Constitution.

Right to Remedy Clause

Within the Bill of Rights of the Indiana Constitution, Section 12

provides in relevant part: "All courts shall be open; and every person,

for injury done to him in his person, property, or reputation, shall have

remedy by due course of law."[8] The majority today holds that the statute

of repose in the Indiana Products Liability Act, which denies remedy to

citizens injured by defective products that happen to be more than ten

years old,[9] does not violate this provision. Noting prior cases that

have considered the Due Course of Law Clause of the Indiana Constitution

analogous to the Due Process of Law Clause of the U.S. Constitution, the

majority correctly acknowledges that the two provisions are not synonymous,

but nevertheless finds the statute of repose provision proper because it

concludes that there is no constitutional right to remedy in Indiana. I

disagree.

Our standard of review of state constitutional claims is well

established. Proper interpretation and application of a particular

provision of the Indiana Constitution requires a search for the common

understanding of both those who framed it and those who ratified it.

Collins v. Day, 644 N.E.2d 72, 75-76 (Ind. 1994); Bayh v. Sonnenburg, 573

N.E.2d 398, 412 (Ind. 1991). Furthermore, "the intent of the framers of

the Constitution is paramount in determining the meaning of a provision."

Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind. 1996); Eakin v. State

ex rel. Capital Improvement Bd. of Managers of Marion County, 474 N.E.2d

62, 64 (Ind. 1985). In order to give life to their intended meaning, we

"examin[e] the language of the text in the context of the history

surrounding its drafting and ratification, the purpose and structure of our

constitution, and case law interpreting the specific provisions." Indiana

Gaming Comm'n v. Moseley, 643 N.E.2d 296, 298 (Ind. 1994). See also Price

v. State, 622 N.E.2d 954, 957 (Ind. 1993); State Election Bd. v. Bayh, 521

N.E.2d 1313 (Ind. 1988). In construing the constitution, we "look to the

history of the times, and examine the state of things existing when the

constitution or any part thereof was framed and adopted, to ascertain the

old law, the mischief, and the remedy." Sonnenburg, 573 N.E.2d at 412

(citing State v. Gibson, 36 Ind. 389, 391 (1871)). The language of each

provision of the Constitution must be treated with particular deference,

"as though every word had been hammered into place." Warren v. Indiana

Tele. Co., 217 Ind. 93, 102, 26 N.E.2d 399, 403 (Ind. 1940).

The framers emphatically declared, and the ratifiers approved, that

"every person for injury done to him in his person, property, or

reputation, shall have remedy by due course of law." Ind. Const. art. I, '

12 (emphasis added). In choosing the language of this provision, they did

not say that every person might have whatever remedy the common law or the

legislature may allow from time to time, nor did they merely reiterate the

language of the then-existing federal Due Process Clause, which states that

"[n]o person shall . . . be deprived of life, liberty, or property, without

due process of law." U.S. Const. amend. V. They did not craft Section 12

merely to provide "due process." Instead, our framers and ratifiers

unequivocally enhanced the protections afforded by our state constitution,

expressly establishing the additional right to remedy for injuries

suffered.

Indiana first adopted a "remedy by due course of law" provision as

part of its original Constitution in 1816.[10] This provision was retained

with only slight modification (replacing "lands, goods" with "property")

when our present Constitution was adopted in 1851. When Section 12 was

adopted in 1851 (and when adopted in its initial form in 1816), the only

source of federal due process protection was that provided in the Fifth

Amendment, which did not contain a right to remedy clause and was not

applicable to the states. From the time of the Declaration of Independence

until after the Civil War, the rights and liberties of citizens were

protected against government infringement only by the declarations of

rights in the individual states. Justice Randy J. Holland, State

Constitutions: Purpose and Function, 69 Temple L. Rev. 989, 998 (1996).

The Fourteenth Amendment to the U.S. Constitution,[11] which includes the

Due Process Clause that is applicable to the states, was not adopted until

1868, and thus could not have served as the model for Article I, Section 12

of Indiana's 1851 Constitution.

When the framers of our constitution adopted Article I, Section 12,

the primary definition of the term "remedy" was "[t]he means employed to

enforce a right or redress an injury."[12] 2 Bouvier's Law Dictionary 436

(14th ed. 1878). Thus, the Right to Remedy Clause does not entitle a

person to automatic reparation or recompense, but rather ensures access to

the courts to seek reparation or recompense for wrongful injury.

Thirty-seven other state constitutions[13] also include a "remedies"

provision.[14] These provisions trace their roots to chapter 40 of the

Magna Carta: "To no one will we sell, to no one will we deny, or delay

right or justice."[15] It is this assurance of access to justice that is

embodied in our Right to Remedy Clause.

The right to remedy for injury has long been important in Indiana and

our nation. Although the historical records from the 1816 and 1851

conventions provide no direct evidence of the intent of the framers

regarding this clause, this Court declared within the first decade

following the adoption of our present Right to Remedy Clause: "'No one,'

says Judge Story, 'will doubt that the Legislature may vary the nature and

extent of remedies, so always that a substantial remedy exists.'" Maynes

v. Moore, 16 Ind. 116, 122 (Ind. 1861) (quoting Story=s Com. § 1379).

Later, this Court reiterated the importance of remedy: "It has always been

a general principle under our legal system that for every wrong there

should be a remedy." State ex rel. Reichert v. Youngblood, 225 Ind. 129,

142, 73 N.E.2d 174, 179 (Ind. 1947). Chief Justice of the United States

John Marshall also stated: "The very essence of civil liberty certainly

consists in the right of every individual to claim the protection of the

laws, whenever he receives an injury. One of the first duties of

government is to afford that protection." Marbury v. Madison, 5 U.S. (1

Cranch) 137, 163, 2 L.Ed. 60, 69 (1803).

Applying our well-established methodology of constitutional

interpretation, I conclude that Section 12 provides separate and distinct

protections and is not coextensive with federal due process jurisprudence.

I am also convinced that Section 12 ensures not only that procedures must

comply with due course of law, but further that both the text and the

history provide strong support for understanding Section 12 of Indiana=s

Bill of Rights to provide a substantive right to remedy for injuries

suffered.

The legislature has the authority to modify or abrogate common law

rights as long as such change does not interfere with constitutional

rights.[16] Martin v. Richey, 711 N.E.2d 1273, 1283 (Ind. 1999); State v.

Rendleman, 603 N.E.2d 1333, 1336 (Ind. 1992). Although constitutional

rights may be subjected to legislative restraints and burdens necessitated

by the State=s exercise of its police power to promote the peace, safety,

and well-being of the public, this police power is not unlimited: "[T]here

is within each provision of our Bill of Rights a cluster of essential

values which the legislature may qualify but not alienate." Price v.

State, 622 N.E.2d 954, 960 (Ind. 1993). "A right is impermissibly

alienated when the State materially burdens one of the core values which it

embodies." Id. The right to remedy for injury is such a core value.

While legislative qualifications of this right may be enacted under

the police power, the total abrogation of an injured person's right to

remedy is an unacceptable material burden.[17] The statute of repose

provision in the Products Liability Act is no mere qualification. It does

not merely limit the time within which to assert a remedy, nor does it

merely modify the procedure for enforcing the remedy. Nor is it a narrow,

limited immunity necessitated by police power. On the contrary, the repose

provision completely bars the courthouse doors to all persons injured by

products over ten years old, even for claims alleging negligence, and even

where the products were designed, built, sold, and purchased with the

expectation of decades of continued use.[18] Although this provision

denies all Indiana citizens access to justice ensured by the Right to

Remedy Clause, it is especially pernicious to those economically

disadvantaged citizens who must rely on older or used products rather than

new ones.

I would find that the Products Liability Act repose provision, Indiana

Code section 34-20-3-1(b), violates our Right to Remedy Clause, Article I,

Section 12 of the Indiana Constitution.

Equal Privileges and Immunities

Section 23 of the Bill of Rights of the Indiana Constitution declares:

"The General Assembly shall not grant to any citizen, or class of

citizens, privileges or immunities, which, upon the same terms, shall not

equally belong to all citizens." Ind. Const. art. I, § 23. In Collins v.

Day, 644 N.E.2d 72 (Ind. 1994), this Court conducted a comprehensive

analysis of the common understanding of the framers and ratifiers of

Section 23 and the early decisions interpreting and implementing this

provision. We concluded:

To summarize, we hold that Article I, Section 23 of the Indiana

Constitution imposes two requirements upon statutes that grant unequal

privileges or immunities to differing classes of persons. First, the

disparate treatment accorded by the legislation must be reasonably

related to inherent characteristics which distinguish the unequally

treated classes. Second, the preferential treatment must be uniformly

applicable and equally available to all persons similarly situated.

Finally, in determining whether a statute complies with or violates

Section 23, courts must exercise substantial deference to legislative

discretion.

Collins, 644 N.E.2d at 80. As we explained in Collins, the first

requirement actually consists of two sub-elements: (1) "such

classification must be based upon distinctive, inherent characteristics

which rationally distinguish the unequally treated class;"[19] and (2) "the

disparate treatment accorded by the legislation must be reasonably related

to such distinguishing characteristics."[20] 644 N.E.2d at 79.

The Products Liability Act's repose provision states that "a product

liability action must be commenced . . . within ten years after the

delivery of the product to the initial user or consumer."[21] Ind. Code §

34-20-3-1(b). The statute, on its face, distinguishes two classes of

persons for unequal treatment: a user or consumer injured within ten years

after the delivery of the product, and a user or consumer injured more than

ten years after the delivery of the product. By artificially

distinguishing as a separate class those citizens injured by defective

products more than ten years old, and by forbidding them access to legal

recourse for their injuries, this statute violates the Equal Privileges and

Immunities Clause, Section 23 of the Bill of Rights of the Indiana

Constitution. Thus, the first of the two Collins requirements compels our

rejection of the ten-year repose provision.

I believe that the majority's misapplication of Collins begins with

its focus upon unequal treatment of different classes of products, rather

than upon unequally treated classes of people. When a statute is

challenged as violating Section 23, we must evaluate the disparate

treatment afforded to the benefited or burdened class.[22] Products are

not sued; they do not receive immunity from suit under the statute; and

thus, they receive neither a benefit nor a burden. It is people who

receive unequal treatment under the statute.

Perhaps because it focuses upon products rather than people, the

majority bypasses the required threshold question as to whether the

legislative classification is based upon distinctive, inherent

characteristics that rationally distinguish the unequally treated classes.

This is sub-element (1) of the first of the two Collins requirements. The

majority fails to consider this prerequisite question. It is only when the

classification is based upon inherent distinctions that the analysis can

proceed to evaluate whether the disparate treatment is reasonably related

to the characteristics distinguishing the classifications.

Despite the legislature's acknowledged power to properly classify in

order to legislate effectively, the Indiana Constitution demands more than

simply a rational relationship between the legislative goal and the

classification. While we generally do not question the legislature in its

policy-making role, "'[l]egislative classification becomes a judicial

question . . . where the lines drawn appear arbitrary or manifestly

unreasonable.'" Collins, 644 N.E.2d at 80 (quoting Chaffin, 261 Ind. at

701, 310 N.E.2d at 869). A classification "must furnish a reason for and

justify the making of the class; that is, the reason for the classification

must inhere in the subject-matter, and rest upon some reason which is

natural and substantial, and not artificial." Bedford Quarries Co. v.

Bough, 168 Ind. 671, 674, 80 N.E. 529, 529 (1907). Similarly, we have

explained:

[W]hile some classification of the subjects of legislative action is

necessary, and a reasonable classification based upon actual

differences which inhere in the different subjects and embrace all

within the class and the reason for the classification will be upheld,

a classification, to be valid, must be based on substantial

distinctions which make one class so different from another as to

suggest the necessity for different legislation with respect thereto.

An artificial, arbitrary, and unreasonable classification, as by

designating certain individuals by name or description out of a larger

number whose situation and needs do not differ from theirs, is

forbidden by the constitution.

Davis Constr. Co. v. Board of Comm'rs, 192 Ind. 144, 150, 132 N.E. 629, 631

(1921) (emphasis added). See also Sperry & Hutchinson Co. v. State, 188

Ind. 173, 181, 122 N.E. 584, 587 (1919); Railroad Comm'n of Ind. v. Grand

Trunk W. R.R. Co., 179 Ind. 255, 262, 100 N.E. 852, 854 (1913); Bedford

Quarries, 168 Ind. at 674, 80 N.E. at 529-30. It is not sufficient simply

to identify the characteristics of the members of the group that will

receive the benefit:

The law requires something more than a mere designation of

characteristics which will serve to divide into groups. Arbitrary

selection or mere identification cannot be justified by calling it

classification. The characteristics which can serve as a basis of a

valid classification must be such as to show an inherent difference in

situation and subject-matter of the subjects placed in different

classes which peculiarly requires and necessitates different or

exclusive legislation with respect to them.

. . . The Legislature cannot take what might be termed a natural

class of persons, split that class in two, and then arbitrarily

designate the dissevered factions of the original unit as two classes,

and thereupon enact different rules for the government of each.

Fountain Park Co. v. Hensler, 199 Ind. 95, 101-03, 155 N.E. 465, 467 (1927)

(emphasis added) (citations omitted). Thus, a legislative classification

violates Section 23 when it is not based upon substantial distinctions that

make one class so different from another as to necessitate different

legislation with respect thereto or when it simply designates certain

individuals by name or description out of a larger number whose situation

and needs do not differ.

The unequal treatment provided by the repose provision of the Products

Liability Act is wholly unrelated to any distinctive, inherent

characteristics that rationally distinguish the unequally treated classes

of people. In other words, there is nothing that naturally inheres in the

group of people designated for unequal treatment that separates them into

distinctive classes. The parties who are injured by defective products

more than ten years old do not necessarily differ from the parties who are

injured by such products that are only nine years old. The ten-year

product age line does not distinguish classes of people based upon their

inherent characteristics. Using such a line as a basis to treat unequally

different classes of people clearly violates both the language and the

spirit of Section 23.[23] We have said before, "There is no more jealously

guarded principle of constitutional law than that which forbids class

legislation." Dep't of Public Welfare of Allen County v. Potthoff, 220

Ind. 574, 583, 44 N.E.2d 494, 497 (1942).

One further point is significant. Although Collins notes that courts

evaluating a Section 23 claim must exercise deference to legislative

discretion, such deference is relevant only to sub-element (2), not sub-

element (1), of the first requirement of the Collins test.[24]

Consideration of legislative goals and purposes is appropriate when

determining sub-element (2), whether the disparate treatment is reasonably

related to the distinguishing characteristics of each class. But it is not

germane to the initial judicial evaluation under sub-element (1), whether

sufficient distinctive, inherent characteristics exist that rationally

justify the creation of separate classes of people for unequal treatment.

Because it is this first sub-element that is violated by the repose

provision, the issue of the reasonableness of the relationship between the

distinguishing characteristics and the legislature's unequal treatment does

not arise.

When this Court in Collins reviewed the history of Section 23,

synthesizing history and case law, we intended that its protections apply

“fully, equally, and without diminution to prohibit any and all improper

grants of unequal privileges or immunities.” 644 N.E.2d at 80. Our

expectation was, and should still be, "that our independent state

privileges and immunities jurisprudence will evolve in future cases facing

Indiana courts to assure and extend protection to all Indiana citizens . .

. ." Id. at 81.

Indiana Code section 34-20-3-1(b) takes a natural class of persons

(users or consumers of a product), splits that class in two, designates the

dissevered factions of the original unit as two classes (persons injured by

a product within ten years of its delivery and persons injured by products

more than ten years after its delivery), and enacts different rules

unequally governing each. Such discrimination is unconstitutional. See

Fountain Park Co., 199 Ind. at 101-03, 155 N.E. at 467. I would find that

the Products Liability Act repose provision, Indiana Code section 34-20-3-

1(b), violates the Equal Privileges and Immunities Clause, Article I,

Section 23 of the Indiana Constitution.

Conclusion

The Indiana Constitution guarantees that injured citizens have the

right to remedy, and it prohibits the legislature from dividing people into

unequally treated classes that are not based on inherent, natural

distinctions. All people should have equal access to seek remedy for

injuries they suffer, and those responsible should be held accountable.

The interests of justice demand nothing less. This Court should hold that

the repose provision violates the Indiana Constitution.

RUCKER, J., concurs.

-----------------------

[1] At the time this suit was brought, the Product Liability Act appeared

at '' 33-1-1.5-1 to 33-1-1.5-10. It is now codified at '' 34-20-1-1 to 34-

20-9-1. References in this opinion are to the current version.

[2] The second sentence of Article I, Section 12 reads: “Justice shall be

administered freely, and without purchase, completely, and without denial;

speedily, and without delay.” This provision has been the basis of criminal

speedy trial claims. See, e.g., Lee v. State, 684 N.E.2d 1143, 1145-46

(Ind. 1997). No other criminal rights have been derived from Section 12

except by the loosest mention, without analysis, of “due process.” There

are dozens of cases referring to “due process” under the Indiana

Constitution in this manner. See, e.g., Douglas v. State, 490 N.E.2d 270,

272 (Ind. 1986) (“Denial of due process and grounds for reversal arise

under the Indiana Constitution Article I, ' 12 and the Fourteenth Amendment

when the police or the prosecuting lawyers negligently withhold material

evidence.”); Malone v. State, 660 N.E.2d 619, 630 (Ind. Ct. App. 1996) (“As

a person accused of a criminal offense, [defendant] had a constitutional

due process right to a fair trial.”) (citing U.S. Const. amends. V, XIV;

Ind. Const. art. I, '' 12, 13).

[3] See, e.g., Peterson v. State, 674 N.E.2d 528 (Ind. 1996), and Brown v.

State, 653 N.E.2d 77 (Ind. 1995), dealing with differences in the search

and seizure doctrines under due process implementation of federal Fourth

Amendment law compared to Indiana Constitution Article I, Section 11

doctrine. Neither case makes mention of Article I, Section 12.

[4] We agree with the dissent that Pennington is unusual because the common

law tort of alienation of affections depended on the obsolete concept of a

wife as her spouse=s property. Nevertheless, that case stands for the

proposition that the common law was not frozen in 1851 with the adoption of

our constitution, and that the legislature may constitutionally abolish

causes of action that existed at common law. It does not invoke the

federal Equal Protection Clause to override the state law notion of a

spouse as property. Rather, it simply holds that the spouse is not

“property,” despite the common law view to the contrary. As such, it

stands for the proposition that the legislature may abolish a claim for

“injury” to “property” at common law.

[5] State “courts addressing the question have split almost evenly on

whether remedy guarantees impose significant substantive limits on

legislative power to alter common law remedies.” Friesen, supra, ' 6-1.

[6] The statute provides that if a cause of action accrues at least eight

years but less than ten years after the initial delivery a plaintiff may

sue within two years after the cause of action accrues. Ind. Code ' 34-20-

3-1(b) (1998).

[7] Melroe responds that the McIntoshes do not have standing to raise an

argument based on a privilege granted to some manufacturers but not others

because they are not members of the nonprivileged class of manufacturers.

Whether the McIntoshes have standing as non-manufacturers, they clearly

have standing as injured persons. Because the two sets of classifications

are based on the same distinction, standing as to the first is sufficient.

Shifting the focus from the victim to the producer does not require a

separate analysis.

[8] The full provision states: "All courts shall be open; and every

person, for injury done to him in his person, property, or reputation,

shall have remedy by due course of law. Justice shall be administered

freely, and without purchase; completely, and without denial; speedily, and

without delay." Ind. Const. art. I, § 12.

[9] The time limit in the statute of repose is triggered, not by the

actual age of the product, but by the date of delivery to the first user or

consumer.

[10] The provision read: "That all Courts shall be open, and every

person, for an injury done him, in his lands, goods, person, or reputation

shall have remedy by the due course of law; and right and justice

administered without denial or delay." Ind. Const. art. I, § 11 (1816).

[11] The Fourteenth Amendment, under which many of the due process

protections were recognized and applied to the states, was adopted more

than ten years after our state constitution. It provides:

All persons born or naturalized in the United States, and subject to

the jurisdiction thereof, are citizens of the United States and of the

state wherein they reside. No state shall make or enforce any law

which shall abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person of life,

liberty, or property, without due process of law; nor deny any person

within its jurisdiction the equal protection of the laws.

U.S. Const. amend. XIV, § 1.

[12] The term "remedy" continues to mean: "The means by which a

right is enforced or the violation of a right is prevented, redressed, or

compensated. The means employed to enforce a right or redress an injury,

as distinguished from right, which is a well founded or acknowledged

claim." Black's Law Dictionary 1294 (6th ed. 1990) (citations omitted).

See also Ballentine's Law Dictionary 1088 (3d ed. 1969) ("The means

employed to enforce a right or redress an injury. The means or method

whereby a cause of action or corresponding obligation is effectuated and by

which a wrong is redressed and relief obtained. The appropriate legal form

of relief by which remediable right may be enforced.") (citations omitted);

Webster's Third New International Dictionary of the English Language

(Unabridged) 1920 (1966) ("the legal means to recover a right or to prevent

or obtain redress for a wrong: the relief (as damages, restitution,

specific performance, an injunction) that may be given by a court for a

wrong"); West's Legal Thesaurus/Dictionary 647 (1985) ("The means by which

a right is enforced; the steps by which the violation of a right is

prevented, redressed, or compensated . . . .").

[13] The thirty-eight states with some version of a remedies provision

include: Ala. Const. art. I, § 13; Ariz. Const. art. 2, § 11; Ark. Const.

art. 2, § 13; Colo. Const. art. II, § 6; Conn. Const. art. 1, § 10; Del.

Const. art. I, § 9; Fla. Const. art. 1, § 21; Ga. Const. art. 1, § 1, ¶ 12;

Ill. Const. art. 1, § 12; Ind. Const. art. 1, § 12; Ky. Const. Bill of

Rights § 14; La. Const. art. 1, § 22; Me. Const. art. 1, § 19; Md. Const.

art. 19; Mass. Const. art. 11, pt. 1; Minn. Const. art. 1, § 8; Miss.

Const. art. 3, § 24; Mo. Const. art. 1, § 14; Mont. Const. art. II, § 16;

Neb. Const. art. I, § 13; N.H. Const. art. 14, pt. 1; N.C. Const. art. I, §

18; N.D. Const. art. I, § 9; Ohio Const. art. I, § 16; Okla. Const. art. 2,

§ 6; Or. Const. art. 1, § 10; Pa. Const. art. 1, § 11; R.I. Const. art. I,

§ 5; S.C. Const. art. I, § 9; S.D. Const. art. VI, § 20; Tenn. Const. art.

1, § 17; Tex. Const. art. 1, § 13; Utah Const. art. 1, § 11; Vt. Const. Ch.

I, art. 4; Wash. Const. art 1, § 10; W. Va. Const. art. 3, § 17; Wis.

Const. art. 1, § 9; Wyo. Const. art. 1, § 8. See generally John H. Bauman,

Remedies Provisions in State Constitutions and the Proper Role of the State

Courts, 26 Wake Forest L. Rev. 237, 284-88 (1991) (collecting state

constitutional remedies provisions).

[14] Although several of these state constitutions do not include "due

course" language in their remedies provisions, the primary objective of

these provisions is to guarantee access to courts to seek remedy. In

several state constitutions, "remedy" is modified to describe the quantity,

quality, or timeliness of the remedy. See, e.g., Ark. Const. art 2, § 13

("certain remedy"); Colo. Const. art. II, § 6 ("speedy remedy"); Ill.

Const. art I, § 12 ("certain remedy"); La. Const. art. 1, § 22 ("adequate

remedy"); Mass. Const. art. 11, pt. 1 ("certain remedy"); Minn. Const. art.

1, § 8 ("certain remedy"); Mo. Const. art. 1, § 14 ("certain remedy");

Mont. Const. art. II, § 16 ("speedy remedy"); N.H. Const. art. 14, pt. 1

("certain remedy"); Okla. Const. art. 2, § 6 ("speedy and certain remedy");

R.I. Const. art. I, § 5 ("certain remedy"); S.C. Const. art. I, § 9

("speedy remedy"); Vt. Const. Ch. I, art. 4 ("certain remedy"); Wis. Const.

art. 1, § 9 ("certain remedy").

[15] This clause of the Magna Carta is the source of the action for

trespass on the case, as embodied in the statute of Westminster II. The

last section of that statute, chapter 50 provided: "(2) Moreover,

concerning the statutes provided where the Law faileth; and for Remedies,

lest suitors coming to the King=s court should depart from thence without

Remedy, they shall have writs provided in their cases." 13 Edw. 1, c. 24,

cited in Donna B. Haas Powers, State Constitutions' Remedy Guarantee

Provisions Provide More Than Mere "Lip Service" to Rendering Justice, 16

Toledo L. Rev. 585, 585 n.3 (1985).

[16] In asserting that the General Assembly may modify or abrogate the

common law and that some common law remedies have been abolished by the

legislature without conflict with the Indiana Constitution, the majority

places substantial reliance on Pennington v. Stewart, 212 Ind. 553, 10

N.E.2d 619 (1937), and Sidle v. Majors, 264 Ind. 206, 341 N.E.2d 763

(1976). In Pennington, however, this Court upheld the legislation

abolishing alienation of affections because the husband did not have a

property right to the affections of his wife, because a wife was no longer

the "property" of her husband in the eyes of the law, and because the

marital relation was subject to the control of the legislature. Id. at 556-

59, 10 N.E.2d at 621-22. Thus, the statute did not abrogate a remedy for

injury to "person, property, or reputation" as protected by Section 12. In

Sidle, this Court, while upholding legislation burdening, but not

abrogating, a motor vehicle passenger's legal recourse for the injuries

caused by the driver, expressly acknowledged:

"[Article I, Section 12] embraces the principle of natural justice

that in a free government every man should have an adequate legal

remedy for injury done him by another.

The inquiry, in every case, must be directed to the nature of

the right alleged to have been infringed upon. Undoubtedly, arbitrary

and unreasonable abolishment of a right of action to redress injury to

the essential rights of person or property is prohibited. Certainly,

the legislature may not . . . abolish a remedy given by the common law

to essential rights without affording another remedy substantially

adequate."

Sidle, 264 Ind. at 223, 341 N.E.2d at 773-74 (quoting Gallegher v. Davis,

183 A. 620, 624 (Del. Super. Ct. 1936)). To the extent that these and

other cases may be read to provide some support for the legislative

authority to completely abrogate common law remedies, they fail to adhere

to the intended principles of Section 12 and should be superseded.

[17] In asserting that this Court's decision in Martin v. Richey does

not affect its analysis, the majority distinguishes this case and our

decision in Martin, stating that Martin held that "a claim that exists

cannot be barred before it is knowable," whereas here a "rule of law . . .

says, in effect, that products that produce no injury for ten years are no

longer subject to claims under the Product Liability Act." Slip op. at 16.

This strips Martin of its rationale and restricts it to the narrowest

possible holding.

In Martin, we held that the Medical Malpractice Act's statute of

limitations, as applied, was unconstitutional under Article I, Section 12

of our Constitution "because it requires plaintiff to file a claim before

she is able to discover the alleged malpractice and her resulting injury,

and, therefore, it imposes an impossible condition on her access to the

courts and pursuit of her tort remedy." Martin, 711 N.E.2d at 1279. We

concluded that it was "so unreasonable" for the statute of limitation to

"require [the plaintiff] to file a claim before such claim existed" that it

"violate[d] Section 12." Id. at 1285. Similarly, in the present case, the

statute of repose required the plaintiffs to file a claim before they were

able to discover the allegedly negligent conduct and the resulting injury,

and thus before such claim existed, in order for them to receive a remedy

for the injuries caused by the product. The statute of repose, therefore,

imposes an impossible condition on their access to the courts to pursue

their remedy, an otherwise valid tort claim. This too is unreasonable.

Building upon its distinction between Martin and this case, the

majority reasons that the legislature may extinguish a cause of action

before a plaintiff's claim accrues and thereby deprive a person of a

remedy, as long as the legislation is a rational means to achieve a

legitimate legislative goal. If the majority is correct on this point, the

legislature, upon establishing a legitimate legislative goal, could

extinguish, for example, medical malpractice causes of action (before any

plaintiff's claim accrues) as long as that legislation is a rational means

to achieve that legitimate legislative goal. Under such legislation, no

party injured by a negligent doctor would ever have a valid claim of

medical malpractice, because no claim would accrue.

We long ago rejected such reasoning:

To construe the medical malpractice statute as a legislative bar on

all malpractice actions under all circumstances unless commenced

within two years from the act complained of (discoverable or

otherwise) would raise substantial questions under the Article 1, § 12

guarantee of open courts and redress for injury to every man, not to

mention the offense to lay concepts of justice.

Chaffin v. Nicosia, 261 Ind. 698, 703-04, 310 N.E.2d 867, 870 (1974)).

Martin demonstrated the Court's continued recognition of these concerns

expressed in Chaffin. Martin, 711 N.E.2d at 1283 (quoting Chaffin). Like

the Court in Martin and Chaffin, I believe that the statute of repose

violates Article 1, Section 12 by precluding all product liability actions

unless commenced within ten years of delivery to the initial user.

[18] The majority asserts that strict liability for product flaws did

not exist in 1851 but was adopted as part of the Product Liability Act in

1978. It is important to note that the Product Liability Act was not the

beginning of claims brought by parties injured by products. The plaintiffs

persuasively argue that the statute of repose abrogates legal protections

and remedies that have been available to persons injured by products for

more than six hundred years of Anglo-American law. Here in Indiana, the

same legal protections and remedies were afforded persons injured by

products, until the statute of repose was adopted. See, e.g., J. I. Case

Co. v. Sandefur, 245 Ind. 213, 197 N.E.2d 519 (1964); Travis v. Rochester

Bridge Co., 188 Ind. 79, 122 N.E.1 (1919); Coca Cola Bottling Works v.

Williams, 111 Ind. App. 502, 37 N.E.2d 702 (1941); Holland Furnace Co. v.

Nauracaj, 105 Ind. App. 574, 14 N.E.2d 339 (1938); Moorman Mfg. Co. v.

Keller, 98 Ind. App. 607, 184 N.E. 913 (1933); Laudeman v. Russell & Co.,

46 Ind. App. 32, 91 N.E. 822 (1910). Furthermore, over a quarter of a

century ago, our common law advanced to permit such claims on a theory of

strict liability in tort. See Ayr-Way Stores, Inc. v. Chitwood, 261 Ind.

86, 92-93, 300 N.E.2d 335, 339-40 (Ind. 1973) (adopting Restatement

(Second) of Torts § 402A, providing for strict liability in product

liability action). See also Galbreath v. Eng'g Constr. Corp., 149 Ind.

App. 347, 273 N.E.2d 121 (1971); Perfection Paint & Color Co. v. Konduris,

147 Ind. App. 106, 258 N.E.2d 681 (1970); Cornette v. Searjeant Metal

Products, Inc., 147 Ind. App. 46, 258 N.E.2d 652 (1970). With the

enactment of the Product Liability Act, the legislature initially entered

the field of product strict liability in tort, but the legislature did not

supersede claims against negligent manufacturers in product negligence

liability cases. See Koske v. Townsend Eng'g Co., 551 N.E.2d 437, 442-43

(Ind. 1990).

The 1978 Product Liability Act contained a statute of repose

provision, requiring any product liability action to be commenced within

ten years after the delivery of the product to the initial user or

consumer. Pub. L. No. 141-1978, § 28 (codified at Ind. Code § 33-1-1.5-5)

(current version at Ind. Code § 34-20-3-1). This provision was amended in

1983, thereby requiring any product liability action "in which the theory

of liability is negligence or strict liability in tort" to be commenced

within ten years after the delivery of the product to the initial user or

consumer. Pub. L. No. 297-1983, § 6 (codified at Ind. Code § 33-1-1.5-5)

(current version at Ind. Code § 34-20-3-1). In 1995, the statute was

amended again, requiring "all actions brought by a user or consumer against

a manufacturer or seller for physical harm caused by a product regardless

of the substantive legal theory or theories upon which the action is

brought." Pub. L. No. 278-1995, § 1 (codified at Ind. Code § 33-1-1.5-1)

(current version at Ind. Code § 34-20-1-1). In 1998, the legislature

amended the Product Liability Act again, making this statute applicable to

"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." Pub. L. No. 1-1998, § 15 (codified at Ind. Code § 34-

20-1-1). The ten-year statute of repose provision governs "in any product

liability action in which the theory of liability is negligence or strict

liability in tort." Pub. L. No. 1-1998, § 15 (codified at Ind. Code § 34-

20-3-1).

As this statute has evolved, it has engulfed all common law tort

claims previously available to those seeking remedy for injuries resulting

from dangerous and defective products. In guaranteeing a substantive right

to remedy for injuries suffered, our Constitution does not necessarily

ensure the right to seek recovery under a theory of strict liability, but

it certainly must embrace the principle that every person should have a

reasonably adequate legal remedy for injury wrongfully done him by another.

[19] In Collins, this Court faced a claim that Section 23 was violated

by the unequal treatment of two classifications: (1) agricultural

employers in contrast to agricultural employees; and (2) agricultural

employers in contrast to employers generally. We acknowledge that certain

language employed in Collins was imprecise and may be read to suggest that

we applied legislative deference to determine whether there were inherent

distinctions between the classifications. Id., 644 N.E.2d at 81 (“Applying

the required deferential standard of review, we find that there are

inherent distinctions between these classifications that are reasonably

related to the exemption.”). When reviewed in the full context of the

discussion, however, it becomes apparent that the focus of our legislative

deference in Collins was not on sub-element (1), the classification into

groups naturally distinguished by inherent distinctions, but rather on sub-

element (2), the reasonable relation of the disparate treatment to the

distinguishing characteristics.

[20] Citing Martin, 711 N.E.2d at 1281-82, the majority explains that,

"even if the statute is valid under the first prong of Collins, it may be

invalid under the second prong if, as applied to a subset of a facially

homogenous class, it confers a different privilege or harm." Slip op. at

19. Martin instructed that, under the second prong, a statute that

provides preferential treatment may be invalid when, on the face of the

statute, the preferential treatment is not uniformly applicable and equally

available to all persons similarly situated or when, as applied to

particular plaintiffs, the preferential treatment is not uniformly

applicable and equally available. See Martin, 711 N.E.2d at 1280-82.

Furthermore, in Martin, we applied Article I, Section 23 of the

Indiana Constitution and held that the plaintiff "cannot be foreclosed from

bringing her malpractice suit when, unlike many other medical malpractice

plaintiffs, she could not reasonably be expected to discover the asserted

malpractice and resulting injury within the two-year period given the

nature of the asserted malpractice and her medical condition." Id. at

1282. As we explained, "Simply put, the statute precludes Melody Martin

from pursuing a claim against her doctor because she has a disease which

has a long latency period and which may not manifest significant pain or

symptoms until several years after the asserted malpractice." Id. at 1279.

Likewise, in the present case, the statute precludes the plaintiffs from

pursuing a claim against the manufacturer because the product did not

manifest its alleged design defects until John McIntosh was injured some

thirteen years after the manufacturer's allegedly negligent conduct, which

happened to fall outside the ten-year statutory period. James and Sondra

McIntosh should not be foreclosed from bringing their product liability

action in this case when, unlike many other plaintiffs injured by defective

products, they could not reasonably be expected to discover the negligent

design and manufacture within the ten-year period given the fact that the

injuries did not occur until after the period expired.

[21] It further provides that "if the cause of action accrues at least

eight years but less than ten years after that initial delivery, the action

may be commenced at any time within two years after the cause of action

accrues." Ind. Code § 34-20-3-1(b).

[22] Section 23 applies to both statutes that create a privilege and

those that impose a burden. "[I]mplicit in an enactment that imposes an

unequal burden is the grant of a special privilege or immunity to persons

or classes exempted from the new burden." Collins, 644 N.E.2d at 77.

[23] To support its conclusion, the majority argues that the statute

of repose, "on its face," applies to everyone, that all citizens are

prevented from accruing claims based on products in use longer than a

decade, and that the plaintiffs belong to no subset of that class. It is

important to the majority that the plaintiffs are treated no differently

from other people injured by a product more than ten years after it is

first used or consumed.

The fallacy of this argument is apparent if we consider a claim

arising under a hypothetical rule declaring, "State universities may only

admit students under the age of thirty years." Stated differently, this

rule permits only persons under the age of thirty to begin their studies at

a state university. Under the majority's construction, the same rule

applies to everyone—no one over the age of thirty can begin a state

university education. If a prospective student begins when under thirty

years of age, there would be no bar. But, if a prospective student

attempts to begin when over thirty years of age, there would be a bar.

Nevertheless, the majority would conclude that no violation of our Equal

Privileges Clause has occurred. What is clear, however, is that, under

this general law, which applies to everyone, a class within the population

(those who are over the age of thirty) is prevented from taking advantage

of the privilege. Such is the case with the repose provision.

[24] The dissent does not share the majority's apprehension that

allowing judicial evaluation of inherent characteristics providing the

basis for unequal treatment would invalidate a host of statutes in which

legislative classifications permit remedies for some losses but not for

others. The scenarios the majority sets forth are ones in which it would

appear that the classification of people may well be based upon inherent

differences and thus that the disparate treatment accorded these

classifications would be entitled to reasonable deference to legislative

discretion.