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FOR PUBLICATION

ATTORNEY FOR APPELLANTS: DAVID J. BURTON Burton & Simkin Richmond, Indiana

ATTORNEY FOR APPELLEES: JOSEPH M. DIETZ Meils Thompson Dietz & Berish Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
KEITH A. MORGAN and TRICIA L. MORGAN, ) ) Appellants-Plaintiffs, ) ) vs. ) ) COLUMBUS McKINNON CORPORATION and ) HORNER ELECTRIC, INC., ) ) Appellees-Defendants. )

No. 89A05-0505-CV-270

APPEAL FROM THE WAYNE SUPERIOR COURT The Honorable P. Thomas Snow, Judge Cause No. 89D01-0305-CT-016

November 21, 2005 OPINION - FOR PUBLICATION

BAKER, Judge

Appellants-plaintiffs Keith A. Morgan (Morgan) and Tricia L. Morgan appeal the trial court's order granting summary judgment in favor of appellee-plaintiff Horner Electric, Inc.1 Specifically, the Morgans assert that the trial court erred in finding that the statute of limitations had run on the Morgans' claim against Horner alleging negligence and loss of consortium. Finding that Morgan's symptoms were of a kind that would cause a person of reasonable diligence to take action that would lead to the discovery of his cause of action, we affirm the judgment of the trial court. FACTS On May 24, 2001, Morgan was operating an electric chain hoist at his place of employment, Johns Manville Corporation (Manville), in Richmond when he sustained an electrical shock of approximately 277 volts. The hoist was manufactured by Columbus McKinnon Corporation (Columbus). Columbus had sold the hoist to Horner on June 24, 2000. Horner, in turn, sold the hoist to Ferguson Enterprises, Inc., on February 20, 2001. At Ferguson's request, Horner modified the hoist to have a fifty-foot lifting capacity, which required Horner to replace the existing chain, control cord, and some wiring. The hoist was then delivered to Manville several days later. It was later determined that the electrical shock occurred because the control cord on the hoist was not properly grounded. On May 24, 2001, Morgan reported the incident to Manville, and he was referred to the plant physician, Dr. Mahendra K. Kalra. Dr. Kalra saw Morgan the next day. Morgan reported to Dr. Kalra that he had been feeling nervous and experiencing an aching in his left arm and on the left side of his neck. Dr. Kalra performed a physical examination and an
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Columbus McKinnon Corporation was not a party to 2 the motion for summary judgment.

EKG test on Morgan, which was normal. Dr. Kalra advised Morgan to take Advil for the aching and to let him know if he had any ongoing symptoms. Morgan continued to work in his regular capacity and sought no further medical treatment until October 30, 2001, when he returned to Dr. Kalra. Morgan reported that since sustaining the electrical shock, he had felt nervous, panicky, dizzy, and light-headed several times per day. Morgan also complained of a skin rash on his face that "came on a week after the electric shock and he relates this to the shock." Appellant's App. p. 117. Morgan also complained of difficulty sleeping and of pain in his right shoulder. On that date, Dr. Kalra diagnosed Morgan with anxiety disorder and referred him to a specialist for a neurological consultation. On November 1, 2001, Morgan was evaluated by neurologist Dr. Kelly Parnell. Dr. Parnell diagnosed Morgan with "[s]pells following an electrocution: I suspect that he had actually developed an anxiety disorder with panic attacks as opposed to any true neurologic condition." Appellant's App. p. 119. On August 27, 2003, Morgan underwent a

neuropsychological evaluation with Dr. Lance Trexler of the Rehabilitation Hospital of Indiana. Dr. Trexler diagnosed Morgan with mild cognitive impairment and clinical anxiety disorder. On May 13, 2003, the Morgans filed a complaint against Columbus, Ferguson, and an unknown party, alleging product liability, negligence, and loss of consortium. On June 12, 2003, Ferguson filed a notice of removal to federal court. On September 8, 2003, the Morgans moved to remand the action to state court and to amend his complaint to add Horner

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as a defendant. On March 11, 2004, the Federal District Court granted both of the Morgans' motions, and on March 19, 2004, the Morgans filed their amended complaint. On April 29, 2004, Horner filed a motion for summary judgment, arguing that the Morgans' claims against Horner were barred by the statute of limitations. On March 23, 2005, the trial court granted summary judgment in Horner's favor, concluding that from either May 24 or 25, 2001, Morgan "was aware of his injury and the instrumentality which caused the same." Appellant's App. p. 186. Therefore, the two-year statute of limitations began running no later than May 25, 2001, and the Morgans' claim against Horner was barred because it was untimely. The Morgans now appeal. DISCUSSION AND DECISION The Morgans argue that the trial court erred in granting summary judgment to Horner. Specifically, they contend that the statute of limitations did not begin to run until, at the earliest, October 30, 2001, when Dr. Kalra diagnosed him with anxiety disorder. When reviewing the grant of summary judgment, we use the same standard as the trial court. Summary judgment is only appropriate if the designated evidence demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fraternal Order of Police, Lodge No. 73 v. City of Evansville, 829 N.E.2d 494 (Ind. 2005). All facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party. We will carefully review decisions on summary judgment motions to ensure that the parties were not improperly denied their day in court. Id.

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Indiana Code section 34-20-3-1 provides that any product liability action based on negligence or strict liability must be commenced within two years after the cause of action accrues. The "discovery rule" states that the statute of limitations begins "`to run from the date the plaintiff knew or should have discovered that she suffered an injury or impingement, and that it was caused by the product or act of another.'" Degusa Corp. v. Mullens, 744 N.E.2d 407, 410 (Ind. 2001) (quoting Barnes v. A.H. Robins Co., 476 N.E.2d 84, 87-88 (Ind. Ct. App. 1985)). In support of their argument, the Morgans direct us to Dorman v. Osmose, Inc., 782 N.E.2d 463 (Ind. Ct. App. 2003). Dorman involved a products liability action against the seller of wood treated with chromated copper arsenate (CCA) on which Dorman had accidentally struck his right shin on June 23, 1996. Dorman wiped blood from the injured area and removed several splinters but kept 2w ainst the

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