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Glotzbach v. Froman5/11/2005
FOR PUBLICATION
Joseph Glotzbach, as receiver for Midwest Material Services, Inc. ("Midwest"), brings this interlocutory appeal from the Lake Superior Court's denial of summary judgment on Jacqueline Froman's ("Froman") complaint for spoliation of evidence and punitive damages. Concluding that the trial court properly denied summary judgment, we affirm.
Facts and Procedural History
The facts most favorable to Froman as the non-moving party indicate that Midwest, an Indiana corporation, provided environmental waste services for its customers, including the handling and transfer of environmentally hazardous materials. Midwest had a long-standing relationship with National Industrial Maintenance, Inc. ("National") in which National would furnish workers to serve under Midwest's supervision.
In April 2000, Midwest contracted with Ashland Chemical Inc. ("Ashland") to transfer brake part cleaner from a large holding tank into 55-gallon drums and then clean the tank. Midwest contacted National, who assigned its employee Drew Froman ("Drew") to the job . On May 5, 2000, Drew accompanied William Darling ("Darling"), one of Midwest's owners, to the Ashland premises in South Bend. The two began emptying the highly flammable liquid from the holding tank by using a 110-volt electric pump and hoses that Darling brought to the site. Darling handled a hose from the pump to fill the 55-gallon drums, while Drew knelt outside the holding tank and held both the pump and the hose leading into the tank.
As the two were filling the eighth and final drum, Darling noticed some air bubbles in the hose line and directed Drew to shut off the pump. Drew switched the pump off and set it down. A large explosion occurred and Drew was engulfed by flames. Darling and Ashland employees smothered the fire and removed Drew's clothing. Darling and Drew were taken by ambulance to medical facilities in South Bend. Drew was later transferred to a Chicago hospital, where he died the following morning as a result of his injuries. Darling suffered minor burns to his hands and was released the same day.
After his release, Darling returned to the Ashland site, where the South Bend Police and Fire Departments were investigating the cause of the explosion. Darling was interviewed by both the South Bend Police and Fire Departments at the site. Darling informed the South Bend Police that he did not know the brand of the pump, but that it was "explosion-proof." At Ashland's request, Darling removed Midwest's equipment at the scene, along with debris from the explosion, including the 110-volt electric pump and Drew's clothing and wallet.
On May 8, 2000, three days after the explosion, Indiana Occupational Safety and Health Administration ("IOSHA") Compliance Officer Debbie Rauen ("Rauen") contacted Darling and asked if he had any of the equipment or debris from the explosion in his possession. Darling confirmed that he did, and Rauen advised him not to dispose of any of the items. Yet four days later, on May 12, 2000, when South Bend Fire Department officials and Rauen interviewed Darling, he informed the interviewers that everything he had collected was now in the Mokena, Illinois landfill.
On December 12, 2000, Froman, as personal representative of the estate of Drew Froman, filed a complaint against Midwest in Lake Superior Court. Count I of Froman's complaint against Midwest alleged wrongful death. Count II of Froman's complaint was against "John Doe Company" as designer, manufacturer, and distributor of the pump. Midwest moved to dismiss the complaint against it for lack of subject matter jurisdiction under Trial Rule 12(B)(1), asserting that the action wa
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