Joan Tutino v. Rohr-Indy Motors Inc d/b/a Bob Rohrman's Indy Honda and Bob Rohrman Honda Dealership, Service Department d/b/a Bob Rohrman Honda Service Department

FILED
Jun 18 2019, 6:29 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Irving Marshall Pinkus Maggie L. Smith
Pinkus & Pinkus Randall R. Riggs
Indianapolis, Indiana Jeffrey J. Mortier
Blake N. Shelby
Frost Brown Todd LLC
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Joan Tutino, June 18, 2019
Appellant-Plaintiff, Court of Appeals Case No.
18A-CT-2435
v. Appeal from the Marion Superior
Court
Rohr-Indy Motors Inc d/b/a The Honorable John F. Hanley,
Bob Rohrman’s Indy Honda and Judge
Bob Rohrman Honda Trial Court Cause No.
Dealership, Service Department 49D11-1707-CT-26766
d/b/a Bob Rohrman Honda
Service Department,
Appellees-Defendants.

Robb, Judge.

Court of Appeals of Indiana | Opinion 18A-CT-2435 | June 18, 2019 Page 1 of 18
 Case Summary and Issue
[1] In January 2015, Joan Tutino’s 2004 Honda CR-V was serviced by Bob

Rohrman Indy Honda for a recall related to the vehicle’s airbag. In July 2015,

Tutino was injured in a four-car crash in which her driver’s side airbag failed to

deploy. Tutino filed a complaint for damages against Rohr-Motors, Inc. d/b/a

Bob Rohrman’s Indy Honda, and Bob Rohrman Honda Dealership Service

Department d/b/a Bob Rohrman Honda Service Department (collectively,

“Rohrman”) alleging that Rohrman negligently serviced her vehicle resulting in

the airbag failing to deploy and that Rohrman failed to notify her the airbag was

defective prior to the accident. The trial court granted Rohrman’s motion for

summary judgment. Tutino now appeals the trial court’s grant of Rohrman’s

motion for summary judgment, raising the following issue for our review:

whether the designated evidence created a genuine issue of material fact that

precluded judgment as a matter of law for Rohrman. Concluding any issues of

fact are not material to the resolution of this case and that Rohrman was

entitled to summary judgment, we affirm.

Facts and Procedural History
[2] In September 2014, Honda Motor Company by its United States agent

American Honda Motor Co., Inc. (collectively, “American Honda”), issued a

recall notice and service bulletin regarding airbags manufactured by Takata and

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installed as replacement parts in Honda vehicles.1 The recall notice informed

Honda owners of the following:

What is the reason for this notice?
Honda has decided that a defect related to motor vehicle safety
exists in certain . . . 2002-2004 CR-V vehicles. In some vehicles,
the driver’s airbag inflator could produce excessive internal
pressure. If an affected airbag deploys, the increased internal
pressure may cause the inflator to rupture. Metal fragments
could pass through the airbag cushion material possibly causing
injury or fatality to vehicle occupants.

What should you do?
Call any authorized Honda dealer and make an appointment to
have your vehicle inspected. The dealer will inspect and, if
necessary, replace the driver’s airbag inflator.

Appellant’s Appendix, Volume 2 at 175 (example of customer letter). The

service bulletin informed authorized dealers that “[a] small number of airbag

modules with defective inflators were sold as replacement parts to replace

deployed or damaged airbags.” Id. at 169 (Honda Service Bulletin 10-039 dated

September 12, 2014). Authorized dealers were advised that “[a]ll the vehicles

involved in this campaign require inspection. However, only a very small

number of these vehicles require replacement of the airbag inflator compared to

the large number of vehicles that will require an inspection.” Id. at 170. The

1
As noted by Rohrman’s expert, this recall was “part of the largest recall in history, known collectively as the
‘Takata recalls.’ Takata was a restraint system manufacturer and supplier to Honda.” Appellant’s Appendix,
Volume 2 at 78.

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 instructions were to first inspect the driver’s airbag for unusual markings that

might indicate it was the wrong airbag for the vehicle or that it was counterfeit.

Finding none, the airbag was to be removed to determine whether the airbag

was made by Takata or another manufacturer. If it was made by a

manufacturer other than Takata, the airbag was not defective and was to be

reinstalled. If the airbag was made by Takata, the airbag serial number and the

vehicle identification number (“VIN”) were to be entered into a database that

would indicate whether the airbag was okay and could be reinstalled or whether

it needed to be replaced. See id. at 170-72.

[3] Upon receiving the recall notice for her 2004 CR-V in late 2014, Tutino looked

online to find the nearest authorized Honda dealership and made an

appointment with Rohrman to have her vehicle serviced for the recall. Douglas

Michael Thayer, a master technician at Rohrman, completed the service on

Tutino’s CR-V on January 17, 2015. He removed the driver’s airbag and

entered the serial number into Honda’s database. “The database indicated that

the airbag was not subject to the recall and that it was to be reinstalled.” Id. at

83. Thayer reinstalled the airbag, verifying that it was properly installed, and

that the SRS warning light was not continuously displayed on the dashboard.2

2
SRS stands for “Supplemental Restraint System,” the proper name for the airbag system in a vehicle. The
SRS consists of the airbags, seat belt tensioners, sensors, and an electronic control unit (“ECU”) that
monitors and records information about the system. When the SRS is working properly, the SRS warning
light briefly illuminates on the dashboard when the vehicle is started and then fades away after a few seconds.
If the SRS warning light does not come on when the vehicle is started, remains illuminated, or comes on at
any time other than upon ignition, the SRS is disabled and requires service. 2004 CR-V Online Reference

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 Tutino confirmed the SRS light was not abnormally illuminated at any time

after the recall service. Tutino seemed to question whether Rohrman actually

did any work on her vehicle; in her deposition, she testified that after

approximately two hours, “I walked out there and saw my car sitting in the

very same spot where they had put it in the back, and I thought . . . they would

be – at least started on it by now.” Id. at 103. Tutino asked someone in the

service area when her car would be ready and was told it was done and given

her keys. Tutino noted that when she took her car in, she was embarrassed

because it had dust on the dashboard, but she had decided not to clean it off

since it was going to be worked on. When she retrieved her car, “there was not

even a single fingerprint mark on it, nothing. It just looked undisturbed.” Id. at

104.

[4] On July 14, 2015, Tutino was the second car in the left turn lane on southbound

State Road 37 waiting to turn onto East Harding Street in Indianapolis. She

was wearing her seat belt. Tutino was hit from behind “very hard” by a 2008

Ford Fusion, which pushed her car into the 2006 Chevy Cobalt in front of her

“so hard” that the Cobalt was pushed into the intersection. Id. at 48. Tutino’s

driver’s airbag did not deploy and her seat belt did not lock up. She suffered

serious injuries as a result of the crash.

Owner’s Manual, Driver and Passenger Safety at 5-29,
http://techinfo.honda.com/rjanisis/pubs/OM/AH/ACR0404OM/enu/CR0404OM.PDF.

Court of Appeals of Indiana | Opinion 18A-CT-2435 | June 18, 2019 Page 5 of 18
[5] Approximately two weeks after this accident, Tutino received another notice of

recall from American Honda that stated, “Even if your vehicle was previously

repaired, your vehicle is still covered by this recall and will need to be repaired

again.” Id. at 178. The notice was related to a May 2015 update to Service

Bulletin 10-039 that superseded previous service bulletins. The updated service

bulletin indicated that the “inspection procedure for Takata driver’s airbags was

removed [from the previous bulletins] because all Takata driver’s airbag

inflators installed in the recall vehicle population are being replaced.” Id. at

153. Tutino returned to Rohrman for service related to this recall in October

2015.

[6] Tutino filed her complaint against Rohrman on July 10, 2017, alleging that

Rohrman failed to properly perform the recall service on January 17, 2015, and

failed to inform Tutino of the May 2015 recall until after her accident in July

2015. Rohrman filed a motion for summary judgment, designating an expert

opinion in support. Tutino responded, designating her own expert opinion.

Following a hearing, the trial court granted summary judgment to Rohrman.

Tutino now appeals. Additional facts will be provided as necessary.

Discussion and Decision
I. Standard of Review
[7] When reviewing the grant or denial of summary judgment, we apply the same

test as the trial court: summary judgment is appropriate only if the designated

evidence shows there is no genuine issue of material fact and the moving party
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 is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Sedam v. 2JR

Pizza Enters., LLC, 84 N.E.3d 1174, 1176 (Ind. 2017). “A fact is ‘material’ if its

resolution would affect the outcome of the case, and an issue is ‘genuine’ if a

trier of fact is required to resolve the parties’ differing accounts of the truth, or if

the undisputed material facts support conflicting reasonable inferences.”

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Thus, if Rohrman

“demonstrate[d] the absence of any genuine issue of fact as to a determinative

issue,” it is entitled to summary judgment unless Tutino came forward with

contrary evidence showing a triable issue. Jarboe v. Landmark Cmty. Newspapers

of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994).

[8] Our review is limited to those facts designated to the trial court, T.R. 56(H),

and we construe all facts and reasonable inferences drawn from those facts in

favor of the non-moving party, Meredith v. Pence, 984 N.E.2d 1213, 1218 (Ind.

2013). On appeal, the non-moving party carries the burden of persuading us the

grant of summary judgment was erroneous. Hughley, 15 N.E.3d at 1003. A

grant of summary judgment will be affirmed if it is sustainable upon any theory

supported by the designated evidence. Miller v. Danz, 36 N.E.3d 455, 456 (Ind.

2015).

II. Designated Summary Judgment Evidence
[9] In support of its motion for summary judgment, Rohrman designated, among

other things, the affidavit of its expert, James R. Chinni, President and

Principal Engineer of Engineering Answers, LLC. Chinni incorporated into his

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affidavit a report he prepared regarding this incident. Chinni summarized the

findings from his report in his affidavit:

a. The subject 2004 Honda CRV is equipped with a SRS system
that is designed to deploy during moderate to severe frontal
collisions. The National Highway Transportation Safety
Administration defines moderate to severe frontal crashes as
equivalent to flat barrier impacts at a NO-FIRE speed change of
8 mph and MUST-FIRE speed change of 14 mph or higher.

b. The subject 2004 Honda CRV includes an SRS electronic
control unit with dual thresholds. If the driver’s seat belt is
latched, airbags deploy at a slightly higher crash severity
threshold.

c. In the subject incident, the impact of the 2008 Ford Fusion
into the rear of the subject 2004 Honda CRV would not result in
a frontal airbag deployment in the CRV, regardless of severity.

d. The frontal airbags in the subject Honda CRV could
potentially deploy due to the subsequent collision into the rear of
the 2006 Chevy Cobalt. The CRV’s airbags would not deploy if
the 2008 Ford Fusion impacted the rear of the CRV at speeds less
than 29.5 mph. The CRV’s airbags would be expected to deploy
if the 2008 Ford Fusion impacted the rear of the CRV at speeds
greater than 35.7 mph.

e. The post-impact damage to the subject 2004 Honda CRV is
not consistent with damage that would be expected from a crash
that would deploy frontal airbags. The post-impact damage and
repairs are consistent with low speed bumper impact tests of
similar Honda CRV’s [sic] conducted by the Insurance Institute
for Highway Safety.

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 f. Inspection of the Supplemental Restraint System Electronic
Control Unit ([“]SRS ECU”) in the subject Honda CRV
indicated that it never experienced a frontal collision above the
NO-FIRE threshold in the entire time it has been installed.

g. Vehicle manufacturers like Honda are required to notify
owners of recalls that may affect their vehicles. Vehicle
manufacturers also determine the actions required to remedy the
condition. Dealerships implement remedies to recalls but are not
responsible for initiating recalls or notifying owners of the recalls.

h. No recalls applicable to the Honda CRV affect whether the
SRS ECU deploys airbags during a crash. Specifically, the Takata
recalls do not affect whether airbags should or should not deploy
during a crash.

i. All records indicate that Bob Rohrman Indy Honda completed
all driver airbag related service to the Honda CRV in accordance
with service bulletins provided by Honda.

j. The subject accident on July 14, 2015 was not severe enough to
deploy the frontal airbags in the Honda CRV.

Appellant’s App., Vol. 2 at 59-61. Accordingly, Rohrman moved for summary

judgment on the basis that it is “not responsible for recall notifications, the

recall at issue did not involve non-deployment concerns, [] the undisputed

evidence shows that [Rohrman] properly performed all recall work . . . [and]

the Honda CRV’s airbags did not deploy during the subject accident because

the accident did not involve sufficient force to trigger airbag deployment . . . .”

Id. at 15.

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[10] In her response to the motion for summary judgment, Tutino stated that she

sued Rohrman “because its’ [sic] service department failed to follow Honda’s

instructions as set out in [service bulletin 10-039], negligently servic[ed]

[Tutino’s] vehicle, fail[ed] to repair and or replace the vehicle’s airbag system,

misrepresent[ed] to [Tutino] that the repair work had been done when in fact it

had not been done; putting [Tutino] in danger of being seriously injured or even

killed in an auto accident.” Id. at 84-85. Tutino designated the affidavit and

accompanying report of her expert, Tony Passwater, founding partner of

Quality Assurance Systems International, LLC and president of AEII

Consulting Services, LLC. Passwater’s report concluded:

[I]n my opinion, [Rohrman] did not perform the work properly
as outlined in the Honda Service Bulletin 10-039 on January 17,
2015, but did later replace the defective driver’s side inflator unit
after the accident on October 17, 2015.

There were extensive repairs made to the floor and other inner
structural panels along with other sufficient damages consistent
with normal frontal airbag deployments.

I also believe Mrs. Tutino’s vehicle was traveling at sufficient
speed and have [sic] enough deceleration from impact into [the
vehicle in front] that the frontal airbag would normally deploy.

Id. at 133. With respect to the conclusion that Rohrman did not properly

perform the recall work, Passwater’s report specifically refers to Rohrman’s

failure to make a punch mark under the fifth character of the VIN to indicate

that the recall inspection had been done. See id. at 131. And, although he

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 acknowledges the proper procedure was to enter a Takata airbag’s serial

number and the vehicle’s VIN into the Honda database “to determine if the air

bag should be replaced[,]” he summarily concluded the air bag inflator should

have been replaced because “it was part of the recall[.]” Id. (emphasis added).

Passwater included no information in his report demonstrating that the airbag

was a Takata replacement airbag – the only airbags subject to the recall at the

time – or that the serial number placed it in the category of airbags that needed

to have the inflator replaced.

[11] Following Tutino’s submission, Rohrman deposed her expert and then filed a

reply brief in support of its motion for summary judgment, designating parts of

Passwater’s deposition as additional evidence. In his deposition, Passwater

stated:

Q: . . . Do you have anything to indicate that this recall had
anything to do with non-deployment?
A: No.
Q: Because it didn’t did it?
A: This recall, no.
Q: [T]he replacement of this igniter[3] A, the original one . . .,
and igniter B, the replacement one through the recall, has no
bearing on deployment or non-deployment, does it?
A: No.
***
Q: Now, we’ve established that the . . . recall didn’t change
anything with respect to whether the airbag should or shouldn’t
deploy; right?

3
The parties use “inflator” and “igniter” interchangeably.

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 A: Correct.
Q: So replacing the airbag in 2015 would have changed nothing
with respect to triggering deployment here?
A: That is not – you can’t say yes or no. Most likely because of
the recall had nothing to do with it, yes, but I can’t say 100
percent that it would.
Q: But most likely replacing that inflator would not have
changed anything with respect to deployment; right?
A: Correct.
Q: And we know the SRS light was not on after the dealership
performed the January 2015 recall work; right?
A: Correct.
Q: So we know the airbag installed by whomever was installed
correctly; right?
A: Yes.

Id. at 213, 216.

III. Failure to Properly Perform Recall Service
[12] Tutino claimed that Rohrman is responsible for her driver’s airbag failing to

deploy in the collision due to the work Rohrman did (or did not) perform

pursuant to the American Honda recall. The designated evidence shows that

both parties’ experts agreed that front airbags are not designed to deploy during

a rear-end collision but they disagreed about whether the force of the front-end

collision when Tutino’s car struck the car in front of her was sufficient to meet

the deployment threshold for the front airbags. They also disagreed about

whether Rohrman properly performed the recall work in January 2015. But

these disagreements do not create a genuine issue of material fact because they

do not bear on the ultimate resolution of the determinative issue. The

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 determinative issue is whether Rohrman is responsible for the airbag failing to

deploy in Tutino’s collision. Given Passwater’s deposition testimony, there is

no genuine issue about that material fact. Rohrman was tasked with

performing recall work that was intended to address issues that could occur

when an airbag deployed but did not involve anything that would impact

whether the airbag should have deployed. See id. at 169 (Service Bulletin 10-

039 stating that “[i]f an affected airbag deploys,” the inflator could rupture

(emphasis added)).

[13] Tutino argues that a jury must decide whether Rohrman is responsible for the

airbag failing to deploy because there is conflicting evidence on whether the

recall work was properly done and whether the airbag should have deployed in

this particular collision. Even if we accept Tutino’s position that Rohrman

either did not perform the recall work in January at all or did not perform it

correctly because it did not replace the airbag inflator, and even if we accept her

position that her collision should have caused the airbag to deploy,4 her claim

still fails. Rohrman designated evidence that the recall work was performed

4
This is a questionable proposition given that Tutino’s expert agreed in his deposition that the seat belt
pretensioner activation threshold is lower than the airbag deployment threshold and that the seat belt
pretensioners did not activate in this collision per the information available from the SRS ECU which records
all incidents. When seat belt pretensioners activate, they lock up the seat belt to restrain the wearer and once
they have been activated, the seat belts must be replaced. See, e.g., id. at 215 (Passwater stating that the seat
belt pretensioner threshold is lower than the airbag deployment threshold; that once fired, seat belts have to
be replaced; and that the pretensioner was never replaced in Tutino’s vehicle). Tutino herself stated in her
deposition that the seat belts did not lock up and that they have never been replaced. See, e.g., id. at 107, 122.
Regardless, we can accept Tutino’s position that the airbag should have deployed and still affirm summary
judgment for Rohrman because the determinative issue is whether Rohrman’s service work affected whether
the airbag would deploy.

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and performed correctly and that the threshold for deploying the airbag was not

reached in this collision, but more relevantly, Rohrman also designated

evidence that “[n]o recalls applicable to the Honda CRV affect whether the SRS

ECU deploys airbags during a crash. Specifically, the . . . recalls do not affect

whether airbags should or should not deploy during a crash.” Id. at 60 (emphasis

added). In turn, Tutino designated evidence that the threshold for deploying

the airbag was reached, creating an issue of fact, but when it came to tying the

recall work to the airbag deployment, her expert essentially aligned with

Rohrman’s, agreeing that the recall did not have anything to do with airbag

deployment and that he had no evidence to indicate otherwise. See id. at 213.5

Thus, there is no issue as to the material fact of whether the recall work

Rohrman performed could be responsible for the failure of the airbag to deploy

in Tutino’s accident. See Romero v. Brady, 5 N.E.3d 1166, 1170 (Ind. Ct. App.

2014) (noting that the genuine issues of material fact identified by the

5
Tutino points to the following exchange from Passwater’s deposition as evidence he did not agree that
Rohrman’s failure to replace the airbag inflator had no bearing on whether the airbag should have deployed:

Q: And we know, had they done the work even as you claim they should and replaced
the airbag inflator, it doesn’t change anything, does it?
A: I didn’t say that. I said that, according to the recall, it wouldn’t change anything.

Appellant’s App., Vol. 3 at 50. First, as Rohrman points out, the deposition page on which this passage
appears (in addition to several other pages of deposition testimony included in Volume 3 of the Appellant’s
Appendix) does not seem to have been designated to the trial court by any party but instead added to the
appendix for purposes of this appeal. This passage is therefore not properly citable to this court. See Scribner
v. Gibbs, 953 N.E.2d 475, 486 (Ind. Ct. App. 2011) (“We cannot consider evidence not designated to the trial
court in reviewing its summary judgment ruling.”). Second, this seems to us to be a distinction without a
difference, and regardless, Tutino did not provide any evidence tying replacement of the airbag inflator to
proper deployment.

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 nonmovant “are not material questions of fact because they do not bear on the

ultimate resolution of a relevant issue” and thus, even if the facts are as the

nonmovant alleges, the nonmovant failed to show that those facts impact

potential liability), trans. denied.

[14] We acknowledge Tutino’s legal argument that based upon Hughley, “there is a

very, very, low threshold for an individual . . . to escape a Summary Judgment

Motion and there’s an extremely high threshold for the movant . . . .”

Transcript, Volume II at 17; see also Appellant’s Brief at 8. That Hughley sets a

high bar for a summary judgment movant is undeniably true, as is the fact that

Hughley determined even a “perfunctory and self-serving” affidavit was

sufficient to defeat summary judgment. 15 N.E.3d at 1004. But Hughley does

not eliminate summary judgment in favor of letting every case in which the

summary judgment opponent designates any evidence go to trial; it simply

reiterates that Indiana has a heightened standard for granting summary

judgment that can be defeated on “thin” evidence as long as the evidence raises

a factual issue. Id. at 1005. Here, Passwater’s affidavit, as supplemented by his

deposition that elaborated on and clarified his conclusions, did not raise a

genuine issue of material fact about whether the work Rohrman performed or

did not perform on Tutino’s vehicle affected whether her airbag would deploy

in a front-end crash. We note, however, that Rohrman’s characterizes Tutino’s

argument as “simply to state, ‘Jury. Jury. Jury. Hughley. Hughley. Hughley.’”

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 Brief of Appellees at 35.6 This response unnecessarily minimizes Tutino’s

reliance on a legitimate part of Indiana’s summary judgment practice –

emphasizing Indiana’s unique standard. That we ultimately agree with

Rohrman that Hughley does not preclude summary judgment in this case should

not be taken to mean that we agree with Rohrman’s dismissive manner of

making its argument.

IV. Failure to Warn
[15] Tutino also claimed that Rohrman, in agreeing to service her vehicle on

January 17, 2015, assumed a duty to warn her that her airbag was defective.

Tutino’s argument about this claim is not well-developed enough for us to

discern the particular argument she is making – it could be that she claims

Rohrman failed to tell her on January 17, 2015 that her airbag was defective or

failed to tell her of the later-issued recall in a timely fashion or both. As to the

first interpretation, there is no designated evidence that the airbag was defective

pursuant to the terms of the September 2014 service bulletin. As to the second,

Rohrman designated on summary judgment the opinion of its expert that

Vehicle manufacturers like Honda are required to notify owners
of recalls that may affect their vehicles. Vehicle manufacturers
also determine the actions required to remedy the condition.
Dealerships implement remedies to recalls but are not responsible
for initiating recalls or notifying owners of the recalls.

6
Rohrman repeated this phrase in its Motion for Oral Argument.

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 Appellant’s App., Vol. 2 at 60. Tutino designated no evidence to oppose this.7

In fact, 49 U.S.C. §§ 30118 and 30119 squarely place the onus on a vehicle

manufacturer to notify both the National Highway Traffic Safety

Administration and owners, purchasers, and dealers when the manufacturer

learns one of its vehicles contains a safety-related defect and to remedy that

defect without charge. See U.S. v. Gen. Motors Corp., 656 F. Supp. 1555, 1558

(D.D.C. 1987). The law places that responsibility on manufacturers, and

Tutino offered no evidence that any individual at Rohrman undertook an

ongoing duty to keep her apprised of future recalls. As there is no genuine issue

of material fact as to who had the duty to notify Tutino of defects in her vehicle,

the trial court properly granted summary judgment to Rohrman on this claim.

Conclusion
[16] As Rohrman demonstrated the absence of a genuine issue of fact as to a

determinative issue and Tutino failed to come forward with contrary evidence

showing an issue remained for trial, the trial court properly granted summary

judgment to Rohrman. The judgment of the trial court is affirmed.

[17] Affirmed.

7
Tutino states in her brief that Rohrman “failed to warn [her] of the subsequent recall for the same airbag
that it ‘serviced’ on January 17, 2015 until after her accident.” Appellant’s Br. at 14. However, there seems
to be no dispute that Rohrman never informed her of the subsequent recall as it was not obligated to do so.
Instead, Tutino received notice of the subsequent recall from American Honda.

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Baker, J., and Najam, J., concur.

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