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.