IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

THE CINCINNATI )

INSURANCE COMPANY )

a/s/o JASON and )

MICHELLE HOWARD, )

)

Plaintiff, )

) CAUSE NO. 3:14-CV-1731

vs. )

)

LENNOX INDUSTRIES, )

INC., )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on Lennox Industries Inc.’s

Motion to Certify Opinion and Order for Interlocutory Review, filed

by Defendant, Lennox Industries Inc., on May 13, 2016 (DE #50). 

For the reasons set forth below, the motion (DE #50) is DENIED. 

BACKGROUND

Plaintiff, the Cincinnati Insurance Company (“CIC”), filed its

complaint in state court on June 23, 2014 (DE #5). The case was

removed to this Court in July, 2014. On August 6, 2015, Defendant,

Lennox Industries Inc. (“Lennox”), filed a motion for summary

judgment, requesting summary judgment against CIC (DE #30). On

February 9, 2016, this Court entered its opinion and order on

Lennox’s motion for summary judgment, granting in part and denying
in part Lennox’s motion for summary judgment (DE #45). The Court

granted summary judgment in favor of Lennox on the claims for

design defect and failure to warn, but denied summary judgment on

CIC’s claims for manufacturing defect (Count II), and noted that

its claims for breach of warranty (Count III) survived as well. 

Lennox filed a motion to reconsider this Court’s February 9,

2016 (DE #45) order, arguing that summary judgment should have been

granted on all of CIC’s claims (including the claims for breach of

warranty and manufacturing defect). (DE #46.) On April 25, 2016,

this Court granted the motion to reconsider as to Count III, which

was dismissed, but denied the motion as to Count II for strict

products liability, which remains pending. (DE #49.)

Lennox filed the instant motion to certify this Court’s April

25, 2016 opinion and order (DE #49) for interlocutory review. The

Plaintiff did not file anything in response; therefore, the motion

is ripe for adjudication. 

DISCUSSION

Interlocutory appeals are governed by Title 28 U.S.C. section

1292(b), which provides:

When a district judge, in making in a civil

action an order not otherwise appealable under

this section, shall be of the opinion that

such order involves a controlling question of

law as to which there is substantial ground

for difference of opinion and that an

immediate appeal from the order may materially

advance the ultimate termination of the

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litigation, he shall so state in writing in

such order.

An interlocutory appeal is available only when: “(1) the

appeal presents a question of law; (2) it is controlling; (3) it is

contestable; (4) its resolution will expedite the resolution of the

litigation; and (5) the petition to appeal is filed in the district

court within a reasonable amount of time after entry of the order

sought to be appealed.” Boim v. Quranic Literacy Inst., 291 F.3d

1000, 1007 (7th Cir. 2002).

Certificates of appealability under this section are generally

disfavored because they "frequently cause unnecessary delays in

lower court proceedings and waste the resources of an already

overburdened judicial system." Herdrich v. Pegram, 154 F.3d 362,

368 (7th Cir. 1998), rev’d on other grounds, 530 U.S. 211 (2000). 

Thus, the party seeking an interlocutory appeal must show that

“exceptional circumstances justify the departure from the basic

policy of postponing appellate review until after the entry of a

final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 475

(1978). Therefore, “the preferred practice is to defer appellate

review until the entry of a final judgment. . ..” Herdrich, 154

F.3d at 368.

Lennox claims the denial of its motion for summary judgment on

its manufacturing defect claim is appropriate for interlocutory

review because: 

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While Whitted and Reed permit a plaintiff to

introduce inferential evidence of a manufacturing

defect by negating other possible causes of the

incident, neither case remotely suggests that a

plaintiff can utilize this method of proof when

their own proffered expert witness unambiguously

testifies that a manufacturing defect, as defined

by the IPLA, does not exist in the product at

issue.

(Br. In Support of Mot. To Certify, at 2 (emphasis added).) 

This Court agrees that its April 25, 2016 Order involves a

question of law, that the question is controlling, and that, if the

desired interlocutory appeal was decided in Lennox’s favor, this

case would be terminated. The Court disagrees, however, with

Lennox’s contention that there is a substantial ground for

difference of opinion as to the question of law. 

In its original order denying summary judgment on Count II for

strict liability for a manufacturing defect, the Court spent

considerable time analyzing Ford Motor Co. v. Reed, 689 N.E.2d 751

(Ind. Ct. App. 1997); Whitted v. General Motors Corp., 58 F.3d

1200, 1209 (7th Cir. 1995); and Gaskin v. Sharp Electronics Corp.,

No. 2:05-CV-303, 2007 WL 2819660 (N.D. Ind. Sept. 26, 2007). (DE

#45 at 17-21.) Lennox’s sole argument for interlocutory appeal is

that while Whitted and Reed permit a plaintiff to introduce

inferential evidence of a manufacturing defect by negating other

possible causes, those cases do not suggest a plaintiff can use

this method of proof when their expert witness testifies that a

manufacturing defect “does not exist in the product at issue.” (DE

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#51 at 2.) This Court never stated in its opinion, and indeed,

expert O’Neal never testified during his deposition (Brad O’Neal

Dep., pp. 28-29; 140), that there is no manufacturing defect in the

ACU. This Court stated: “O’Neal specifically testified during his

deposition that he is not offering any opinion that the alleged

electrical arcing resulted from a defective or unreasonably

dangerous characteristic of the ACU.” (DE #45 at 5 (emphasis

added).) O’Neal’s testimony that he is not offering any opinion in

regard to a manufacturing defect does not support Lennox’s

illogical jump to the conclusion that O’Neal testified it is his

expert opinion that there was no manufacturing defect in the ACU. 

This case is indeed like Gaskin, in which a fire cause and

origin expert analyzed the scene, eliminated other sources of the

fire, determined that the fire started at the television, but

stated during his deposition that “he is not qualified to render

any opinions about the television, therefore, he does not have any

opinion regarding whether the television was the cause of the

fire.” Gaskin, 2007 WL 2819660, at *3. This Court in Gaskin

concluded that:

Viewing the facts in the light most favorable to

the nonmovant, as this Court must on summary

judgment, it finds that Shand has sufficiently

negated other reasonably possible causes, and

Plaintiffs have satisfied the fourth method of

proving a manufacturing defect as annunciated in

Whitted and Reed. 

Id. at *8. 

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Similarly, in this case, Cooper, an investigator with Unified

Investigations & Sciences, Inc., stated in his report that “[t]he

fire originated at the condensing unit on the west exterior of the

home” (DE #35-2, Cooper’s Report, p. 2); and O’Neal, a forensic

engineer, opined that “[a]rc mapping placed the fire originating

inside the condensing unit, which was also consistent with the fire

investigator’s area of origin.” (DE #35-3, O’Neal Report, p. 7.) 

Both experts investigated other potential causes of the fire and

ruled out other sources. (DE #35-2, p. 4; DE #35-3, p. 7.) O’Neal

ultimately concluded that “[n]o other competent ignition sources

were identified which would cause the damage observed; therefore,

the arcing at the compressor was the fire’s ignition source.” (DE

#35-3, p. 7.) Like Shand in Gaskin, O’Neal offers no opinion

about whether there was a manufacturing defect in the ACU. This is

sanctioned by Reed, which holds that a plaintiff can prove a

product defect by using any of four methods including inferential

evidence by negating other possible causes. Reed, 689 N.E.2d at

753. In sum, this Court’s decision is in line with current case

law and after re-evaluating the pertinent cases and its previous

orders, this Court finds that Lennox has not demonstrated that

there are substantial grounds for differences of opinion as to any

relevant question of law. 

Lennox has also failed to meet its burden of showing that

exceptional circumstances justify departure from this Circuit’s

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general policy of postponing appellate review until after the entry

of final judgment. See Ahrenholz, 219 F.3d at 676 (“Unless all

the[] criteria are satisfied, the district court may not and should

not certify its order to us for an immediate appeal under section

1292(b).”). Accordingly, this Court exercises its discretion to

deny the request for interlocutory appeal. See Swint v. Chambers

County Comm’n, 514 U.S. 35, 47 (1995)(“Congress thus chose to

confer on district courts first line discretion to allow

interlocutory appeals.”); Kuzinski v. Schering Corp., 614 F.Supp.2d

247, 249 (D. Conn. 2009)(“Even where [the criteria for an

interlocutory appeal] are met, the Court retains discretion to deny

permission for interlocutory appeal.”). 

CONCLUSION

For the reasons set forth above, Lennox Industries Inc.’s

Motion to Certify Opinion and Order for Interlocutory Review (DE

#50) is DENIED. 

DATED: July 19, 2016 /s/ RUDY LOZANO, Judge

United States District Court

 

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