ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
KENNEDY TANK & MFG. CO., INC.                              John R. Maley
Craig J. Helmreich                                         T. Joseph Wendt
Brandon K. Wiseman                                         Barnes & Thornburg LLP
Scopelitis, Garvin, Light, Hanson, &                       Indianapolis, Indiana
Feary, P.C.
Indianapolis, Indiana
                                                                                   FILED
ATTORNEYS FOR APPELLANT HEMLOCK                                               Apr 22 2016, 8:37 am
SEMICONDUCTOR CORPORATION AND                                                      CLERK
HEMLOCK SEMICONDUCTOR, LLC                                                     Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court
A. Richard M. Blaiklock
Charles R. Whybrew
Edward D. Thomas
Lewis Wagner, LLP
Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Kennedy Tank & Mfg. Co., Inc.,                             April 22, 2016
Appellant-Defendant/Third-Party                            Court of Appeals Case No.
                                                           49A02-1507-CT-934
Plaintiff,                                                 Appeal from the Marion Superior
                                                           Court
and
                                                           The Honorable Heather A. Welch,
Hemlock Semiconductor Corp.,                               Judge
and Hemlock Semiconductor,                                 Trial Court Cause No.
LLC,                                                       49D01-1501-CT-2052
Appellant-Third-Party Defendants,




Court of Appeals of Indiana | Opinion 49A02-1507-CT-934 | April 22, 2016                   Page 1 of 16
               v.

      Emmert Industrial Corporation,
      d/b/a Emmert International,
      Appellee-Plaintiff.




      May, Judge.


[1]   Kennedy Tank and Manufacturing Company appeals the denial of its motion to

      dismiss a lawsuit Emmert International brought against Kennedy. The Indiana

      statute of limitation on which the trial court appears to have relied 1 is

      preempted by a federal statute establishing a shorter limitations period. As

      Emmert did not bring its lawsuit within that period, Kennedy’s motion should

      have been granted, and we must therefore reverse. 2




      1
        The trial court’s judgment refers to a “10 year (120 months [sic]) Indiana statute of limitations,”
      (Appellant’s App. at 8), but never explicitly says which statute that is. The parties appear to agree that the
      applicable statute is Ind. Code § 34-11-2-11 (an action on certain contracts in writing must be commenced
      within ten years after the cause of action accrues).
      2
        Emmert also asserts dismissal was precluded by fact questions concerning whether Kennedy was estopped
      from asserting Emmert’s action was untimely. Emmert says it raised in the trial court that “if federal law
      were to apply, factual issues exist as to whether Kennedy is estopped under federal law from asserting
      untimeliness in filing the action.” (Br. of Appellee at 24.) The trial court did not address estoppel in its
      judgment.
      Emmert asserts 1) Kennedy has waived the issue on appeal because it did not respond to the estoppel
      argument; 2) Hemlock raises the issue for the first time on appeal, which it cannot do; and 3) Hemlock
      erroneously relies on Indiana, rather than federal precedent. Therefore, Emmert asserts, “the case must
      proceed below for consideration of federal estoppel principles.” (Id. at 26.)

      Court of Appeals of Indiana | Opinion 49A02-1507-CT-934 | April 22, 2016                            Page 2 of 16
                                    Facts and Procedural History
[2]   In April 2011, Kennedy hired Emmert International to transport a piece of

      commercial equipment 280 feet long and weighing 360,000 pounds from

      Indiana to Tennessee. It agreed to pay Emmert about $200,000 plus additional

      expenses Emmert might incur during the move. Emmert encountered a

      number of unforeseeable problems that caused delays and additional expenses

      of almost $700,000.


[3]   Kennedy would not pay Emmert the additional amounts. Between June and

      August of 2013 the parties discussed submitting the dispute to arbitration, and




      We decline to so hold. Emmert asserts on appeal there are fact questions as to federal estoppel principles, but
      does not indicate what those questions are or offer any argument why they preclude dismissal. Ind.
      Appellate Rule 46(A)(8)(a) requires that “[t]he argument must contain the contentions of the appellant on the
      issues presented, supported by cogent reasoning. Each contention must be supported by citations to the
      authorities, statutes, and the Appendix or parts of the Record on Appeal relied on.” Loomis v. Ameritech Corp.,
      764 N.E.2d 658, 668 (Ind. Ct. App. 2002), reh’g denied, trans. denied. An allegation of error is waived on
      appeal if an argument does not meet that standard. See In re K.B., 793 N.E.2d 1191, 1198 n.4 (Ind. Ct. App.
      2003) (appellant “failed to present cogent argument with regard to the juvenile court’s denial of its October
      22, 2002 Motion to Dismiss, as required by App. R. 46(A)(8)(a). Consequently, we find the issue waived.”).
      While Emmert does not articulate in its appellate brief the fact questions it asserts require the case to proceed
      below, it directs us to two pages in the appendix where it says such questions were raised: “Emmert’s
      opposition to dismissal was clear in asserting that if a federal limitations were applied, then under federal
      estoppel law, factual issues exist precluding dismissal. [A301-302] Emmert properly cited to Seventh Circuit
      estoppel authority.” (Br. of Appellee at 26) (emphasis and bracketed material in original).
      We have often stated that on review, we will not search the record to find a basis for a party’s argument,
      Young v. Butts, 685 N.E.2d 147, 151 (Ind. Ct. App. 1997), and we decline to do so here. In Oxley v. Lenn, 819
N.E.2d 851 (Ind. Ct. App. 2004), to support his claim that his failure to tender the summons with the
      complaint did not constitute legal malpractice “Lenn ‘direct[s] this Court’s attention’ to the argument section
      of his summary judgment brief submitted to the trial court and asks us to incorporate by reference said
      argument. We refuse to do so.” Id. at 855 n.2. We noted Ind. Appellate Rule 46(B)(2) provides that
      argument contained in an appellee’s brief “shall address the contentions raised in the appellant’s argument,”
      and that “Lenn may not evade this requirement by referring us to arguments found in a brief filed at some
      earlier point in the case.” Id. And see Greg Allen Const. Co., Inc. v. Estelle, 762 N.E.2d 760, 778-79 (Ind. Ct.
      App. 2002) (appellant waived an issue for appellate review where it presented no argument but instead
      merely asked appellate court to incorporate by reference its argument to the trial court), aff'd in relevant part,
      vacated in part on other grounds.

      Court of Appeals of Indiana | Opinion 49A02-1507-CT-934 | April 22, 2016                             Page 3 of 16
      on January 22, 2015, Emmert sued Kennedy for breach of contract, or in the

      alternative, unjust enrichment. On February 13, 2015, Kennedy moved to

      dismiss 3 on the ground Emmert did not bring the action within the eighteen-

      month limitations period set forth in 49 U.S.C. § 14705(a), which Kennedy

      asserts preempts Indiana’s ten-year limitation period. The trial court denied the

      motion to dismiss. It determined the ten-year Indiana limitations period

      applied.


                                       Discussion and Decision
[4]   Kennedy moved to dismiss Emmert’s complaint pursuant to Ind. Trial Rules

      12(B)(1) (lack of subject matter jurisdiction) and 12(B)(6) (failure to state a

      claim upon which relief can be granted).


[5]   Our standard of review of a grant or denial of a motion to dismiss pursuant to

      Trial Rule 12(B)(1) is a function of what occurred in the trial court. GKN Co. v.

      Magness, 744 N.E.2d 397, 401 (Ind. 2001). It depends on: (1) whether the trial

      court resolved disputed facts; and (2) if it did, whether it conducted an

      evidentiary hearing or ruled on a paper record. Id. If the facts before the trial

      court are not in dispute, then the question of subject matter jurisdiction is purely

      one of law and no deference is afforded to the trial court’s conclusion. Id. In




      3
         The motion to dismiss before us was Kennedy’s. Hemlock was the consignee of the shipment at issue and
      is a party to this appeal because Kennedy impleaded it, alleging Hemlock might be responsible for some or all
      of the shipping charges Emmert demanded. Hemlock participated in this appeal, submitting briefs and an
      appendix.

      Court of Appeals of Indiana | Opinion 49A02-1507-CT-934 | April 22, 2016                        Page 4 of 16
      that case, review is de novo. Id. Likewise, when reviewing a final judgment, we

      review all conclusions of law de novo. Ind. Dep’t of Ins. v. Everhart, 960 N.E.2d
129, 133 (Ind. 2012). As the facts here are not in dispute, we review de novo the

      trial court’s judgment.


[6]   A motion to dismiss under Trial Rule 12(B)(6) tests the legal sufficiency of a

      complaint -- that is, whether the allegations in the complaint establish any

      circumstances under which a plaintiff would be entitled to relief. Lockhart v.

      State, 38 N.E.3d 215, 217 (Ind. Ct. App. 2015). When evaluating the grant or

      denial of a Trial Rule 12(B)(6) motion, we accept as true the facts alleged in the

      complaint, consider the pleadings in the light most favorable to the plaintiff,

      and draw every reasonable inference in favor of the non-moving party. Id.


[7]   Because federal law is the supreme law of the land under the Supremacy Clause

      of the United States Constitution, state laws that interfere with or are contrary

      to federal law are invalidated under the preemption doctrine. In re Beck’s

      Superior Hybrids, Inc., 940 N.E.2d 352, 356 (Ind. Ct. App. 2011). When

      conducting a preemption analysis we start with a presumption that Congress

      did not intend to supplant state law. Id.


[8]   49 U.S.C. § 14705(a) provides: “A carrier providing transportation or service

      subject to jurisdiction under chapter 135 must begin a civil action to recover

      charges for transportation or service provided by the carrier within 18 months

      after the claim accrues.” The best evidence of preemptive intent is an express

      preemption clause. Basileh v. Alghusain, 912 N.E.2d 814, 818 (Ind. 2009). None


      Court of Appeals of Indiana | Opinion 49A02-1507-CT-934 | April 22, 2016   Page 5 of 16
       of the parties argue 49 U.S.C. § 14705 expressly preempts the Indiana statute,

       but at least one court has suggested it does expressly preempt state statutes of

       limitation. In Arctic Exp., Inc. v. Del Monte Fresh Produce NA, Inc., 366 B.R. 786,

       793 (S.D. Ohio 2007), the court first noted determination of the meaning of a

       statute begins with the plain language of the statute itself, and found that with

       regard to 49 U.S.C. § 14705, “this is also where the inquiry should end.” Id.


[9]    It determined the statutory language

                expresses Congress’ intent that the eighteen-month statute of
                limitations shall apply to all carriers who bring civil actions to
                recover charges for transportation of interstate goods.


                Arctic is a motor carrier and all deliveries at issue were interstate.
                Therefore, the plain meaning of the statute states that Arctic must
                bring its claims to recover Freight Charges within eighteen
                months of the claims’ accrual (i.e., within eighteen months of
                delivery or tender of delivery).


       Id.


[10]   In the absence of explicit preemption language, we examine the structure and

       purpose of the federal statute for implicit preemptory intent. Basileh, 912
N.E.2d at 818. Preemptive intent may be inferred if the scope of the statute

       indicates that Congress intended federal law to occupy the legislative field 4



       4
         Field preemption occurs when a pervasive scheme of federal regulation makes it reasonable to infer that
       Congress intended exclusive federal regulation of the area. Basileh, 912 N.E.2d at 818. The Interstate
       Commerce Act, as originally enacted, was a wide-ranging act that heavily regulated the transportation of
       goods and people between the states. Arctic Exp., 366 B.R. at 790 (citing Verizon Commc’ns, Inc. v. F.C.C., 535

       Court of Appeals of Indiana | Opinion 49A02-1507-CT-934 | April 22, 2016                           Page 6 of 16
       (“field preemption”), or if there is an actual conflict between state and federal

       law so that it is impossible to comply with both (“conflict preemption”). Id.


       It does not appear our Indiana appellate courts have addressed the preemptive

       effect of 49 U.S.C. § 14705. A number of other courts have, though. As best

       we can determine, the other courts have all held state statutes of limitation that

       establish periods longer than the federal statute are preempted. We are

       persuaded by those decisions.


[11]   A Georgia appellate court surveyed decisions addressing this question in Exel

       Transp. Servs., Inc. v. Sigma Vita, Inc., 654 S.E.2d 665, 669 (Ga. Ct. App. 2007).

       It held 49 U.S.C. § 14705(a) “necessarily preempts any state law providing for a

       longer limitations period.” Id. (citing Emmert Indus. Corp. v. Artisan Assocs., Inc.,

       497 F.3d 982, 989-90 (9th Cir. 2007)). The Exel court also pointed to J.F. Barton

       Contracting Co. v. Southern R. Co., 380 S.E.2d 724 (Ga. Ct. App. 1989) (holding




       U.S. 467, 478 n.3 (2002)). The intensive federal regulation of interstate transport largely came to an end in
       1995, when Congress passed the Interstate Commerce Commission Termination Act, 49 U.S.C. ch. 137.1.
       Id. The ICCTA deregulated most sectors of road transport and relieved road carriers from having to file
       tariffs describing their rates in detail. Id.
       Emmert argues the deregulation reflects Congress’ intent to no longer occupy the legislative field. As to the
       statute of limitations, however, the Arctic Express court found otherwise, noting when Congress passed the
       ICCTA, it retained the Interstate Commerce Act’s statute of limitations applicable to claims brought by
       carriers against shippers:
              If Congress had intended to eliminate the statute of limitations when it deregulated the industry
              in 1995, it could have done so. When Congress amends one portion of a statute, leaving
              another portion unchanged, it can be inferred that the decision not to alter the latter portion was
              just as intentional as the decision to alter the former. Dep’t of Hous. & Urban Dev. v. Rucker, 535
U.S. 125, 122 S. Ct. 1230, 152 L. Ed. 2d 258 (2002). As twelve years have elapsed since
              deregulation, Congress has had ample time to amend the law and remove the statute of
              limitations.
       Id. at 793.

       Court of Appeals of Indiana | Opinion 49A02-1507-CT-934 | April 22, 2016                            Page 7 of 16
       that former 49 U.S.C. § 11706 (1993), predecessor to 49 U.S.C. § 14705(a),

       preempted Georgia’s renewal statute), cert. denied:


               Moreover, “nothing in the text or context of § 14705(a) indicates
               that the eighteen-month limitations period is restricted to claims .
               . . arising under federal law.” Emmert Indus. Corp., 497 F.3d at
               988. See also CGH Transport v. Quebecor World, Case No. 05–209–
               JBC, 2006 WL 1117659, *2 (E.D. Ky. April 24, 2006) (“That [a
               party’s] claims are not preempted by federal law does not
               preclude the defendants from relying on federal law to provide an
               affirmative defense.”) [aff’d, 261 Fed. Appx. 817 (6th Cir. 2008)].
               Accordingly, Sigma’s state law claims for breach of contract and
               recovery on an open account are nonetheless subject to the
               federal statute of limitation affirmative defense.


       Id.


[12]   The court in Arctic Express also surveyed a number of federal decisions, all of

       which found preemption:


               This Court is persuaded by the logic in the recent case of CGH
               Transp. Inc. v. Quebecor World Logistics, Inc., 2006 WL 1117659,
               2006 U.S. Dist. LEXIS 22657 (E.D. Ky. Apr. 24, 2006) [aff’d,
               261 Fed. Appx. 817 (6th Cir. 2008)]. In CGH Transport, the
               Eastern District of Kentucky was faced with precisely the same
               facts present in the instant case: the carrier claimed that the
               shipper had not paid its bills for freight charges, and the shipper
               sought to defend itself under the eighteen-month statute of
               limitations in 49 U.S.C. § 14705(a). The carrier argued that
               under Central Transport [Int’l v. Sterling Seating, Inc., 356 F. Supp.
2d 786 (E.D. Mich. 2005)] and Transit Homes [of Am., Div. of
               Morgan Drive Away, Inc. v. Homes of Legend, Inc., 173 F. Supp. 2d
1185 (N.D. Ala. 2001)] its state law claims were not preempted
               by federal law, and therefore, the eighteen-month statute of

       Court of Appeals of Indiana | Opinion 49A02-1507-CT-934 | April 22, 2016         Page 8 of 16
               limitations did not apply. Id., 2001 WL 1464152, *2, at *4. The
               court found that while the carrier could bring state-based causes
               of actions, it had to do so within the federal statute of limitations:


                      Central Transport and Transit Homes considered
                      whether the Interstate Commerce Commission
                      Termination Act (“ICCTA”) gave rise to a cause of
                      action for unpaid shipping charges for the purposes of
                      establishing federal question jurisdiction. However,
                      as neither case discussed the applicable statute of
                      limitations, they are distinguishable from the instant
                      case. That [the carrier’s state law] claims are not
                      preempted by federal law does not preclude the
                      defendants from relying on federal law to provide an
                      affirmative defense. [The carrier here] states that its
                      claims are based on breach of contract; unjust
                      enrichment/quantum meruit; conversion; a
                      constructive trust theory; and fraud. Even so styled,
                      as these causes of action attempt to recover charges
                      for interstate transportation and services, they are
                      subject to the eighteen-month statute of limitations.
                      Artful pleading will not cloak a plaintiff's claim from
                      the otherwise applicable law.


               Id. at *2, at *5 (internal citations omitted) (emphasis added).
               Similarly, in the case at bar, just because Arctic can bring its
               state-law claims, because the parties agree that they are not
               preempted by federal law, it does not follow that a federal-law
               statute of limitations defense is unavailable to Del Monte.
366 B.R. at 791-92.


[13]   The Arctic Express court went on to note that




       Court of Appeals of Indiana | Opinion 49A02-1507-CT-934 | April 22, 2016     Page 9 of 16
               while the state causes of action themselves may not be preempted
               by federal law, the state statute [sic] of limitations are in direct
               conflict with 49 U.S.C. § 14705(a), and would therefore be
               preempted by such time limitation. . . . In this case, the
               Bankruptcy Court, nor any party, has explained why a six-year
               state law statute of limitations does not directly conflict with an
               eighteen-month statute of limitations under federal law. The
               purpose of the Interstate Commerce Act was to provide a
               uniform system of regulations for the transportation of goods and
               people in interstate commerce for the nation, and to do away
               with inconsistent state policies. See S. Pac. Transp. Co. v.
               Commercial Metals Co. 456 U.S. 336, 344, 102 S. Ct. 1815, 72
L. Ed. 2d 114 (1982). Permitting Ohio’s state statute of limitations
               to trump the federal statute of limitations at 49 U.S.C. § 14705(a)
               would certainly “stand as an obstacle” to Congressional intent.
               Therefore, in this case, to the extent that Ohio law provides
               otherwise, Ohio law is preempted by 49 U.S.C. § 14705(a).


       Id. at 792 n.2.


[14]   The trial court in the case before us found no conflict preemption because

       “there is no reason why a shipper would not be able to comply with both

       statutes, at the same time, by bringing a claim prior to the 18 month deadline in

       the ICCTA.” (Appellant’s App. at 10.) It cited to no legal authority to support

       the premise that there is no “conflict” if a party can comply with both statutes

       simply by bringing an action within the shorter limitations period, and in light

       of the Arctic Express reasoning, we decline to so hold. The Indiana statute of

       limitations is preempted by the federal statute.




       Court of Appeals of Indiana | Opinion 49A02-1507-CT-934 | April 22, 2016   Page 10 of 16
                                                   Conclusion
[15]   As Emmert did not bring its action against Kennedy within the applicable

       limitations period, Kennedy’s motion to dismiss should have been granted. We

       must therefore reverse.


[16]   Reversed.


       Najam, J., concurs.


       Riley, J., concurs in part, and dissents in part, with separate opinion.




       Court of Appeals of Indiana | Opinion 49A02-1507-CT-934 | April 22, 2016   Page 11 of 16
                                                    IN THE
           COURT OF APPEALS OF INDIANA

       Kennedy Tank & Mfg. Co., Inc.,                             Court of Appeals Case No.
                                                                  49A02-1507-CT-934
       Appellant-Defendant/Third-Party

       Plaintiff

       and

       Hemlock Semiconductor Corp. and

       Hemlock Semiconductor, LLC,

       Appellants-Third-Party Defendants,

               v.

       Emmert Industrial Corporation
       d/b/a Emmert International,
       Appellee-Plaintiff.




       Riley, Judge concurring and dissenting


[17]   I concur with the majority’s determination that 49 U.S.C. § 14705(a) preempts

       the statute of limitations set forth in Indiana Code section 34-11-2-11; therefore,

       Court of Appeals of Indiana | Opinion 49A02-1507-CT-934 | April 22, 2016               Page 12 of 16
       Emmert failed to bring its action against Kennedy in a timely manner.

       However, I must dissent with respect to the majority’s resolution of Emmert’s

       estoppel claim.


[18]   On appeal, Emmert insists that even if the eighteen-month federal statute of

       limitations applies—as this court holds that it does, its claim should not have

       been dismissed because Kennedy should be estopped from asserting the statute

       of limitations as an affirmative defense. As detailed by the majority in Footnote

       2, Emmert’s argument on this issue is devoid of any cogent reasoning or

       appropriate citations. Ind. Appellate Rule 46(A)(8)(a). Nonetheless,

       notwithstanding that Emmert has technically waived its argument, I find that

       this issue should be determined on its merits.


[19]   In its Complaint, Emmert asserted that in completing its performance pursuant

       to its contract with Kennedy, it incurred expenses of $691,301.03 in addition to

       the original contract price of $197,650. According to Emmert, after it delivered

       Kennedy’s equipment on November 11, 2011,

               Kennedy paid Emmert $150,000 but refused to pay any
               additional amounts owed Emmert. The parties continued to
               discuss their dispute into January 2013. In June—August 2014,
               the parties even discussed submitting their dispute to arbitration
               for resolution. Then, in September 2014, Kennedy for the first
               time advised Emmert that it refused to pay Emmert anything
               additional, asserting that Emmert’s claim for the owed
               amounts—attributable to the valued service it provided
               Kennedy—was now time-barred pursuant to 49 U.S.C. §
               14705(a).


       Court of Appeals of Indiana | Opinion 49A02-1507-CT-934 | April 22, 2016   Page 13 of 16
       (Appellant’s App. pp. 14-15).


[20]   Subsequently, in response to Kennedy’s motion to dismiss, Emmert filed a

       response arguing that there were factual questions as to whether principles of

       equitable estoppel precluded dismissal. “The federal doctrine of equitable

       estoppel applies to federal statutes of limitation.” F.D.I.C. v. Kime, 12
F. Supp. 3d 1113, 1119 (S.D. Ind. 2014). As the Seventh Circuit Court of

       Appeals has explained, “[e]quitable estoppel suspends the running of the statute

       of limitations during any period in which the defendant took active steps to

       prevent the plaintiff from suing, as by promising the plaintiff not to plead the

       statute of limitations pending settlement talks or by concealing evidence from

       the plaintiff that he needed in order to determine that he had a claim.”

       Singletary v. Cont’l Ill. Nat’l Bank & Trust Co. of Chi., 9 F.3d 1236, 1241 (7th Cir.

       1993). “Equitable estoppel necessarily raises questions of fact.” F.D.I.C., 12
F. Supp. 3d at 1119.


[21]   In this case, Emmert asserted that

               [t]he facts here fit the . . . definition for equitable estoppel
               perfectly. The parties discussed resolution of this dispute for
               months after Kennedy Tank refused to pay Emmert in full. They
               continued to discuss resolution, including the option of
               submitting their dispute to arbitration, even after the [eighteen]-
               month statute of limitations on which Kennedy Tank now relies
               had expired.

               During those months of discussion and potential resolutions,
               Kennedy Tank never mentioned § 14705(a), directly or indirectly.
               Instead, it continued to negotiate with Emmert. Only after

       Court of Appeals of Indiana | Opinion 49A02-1507-CT-934 | April 22, 2016    Page 14 of 16
               Kennedy Tank was certain that the [eighteen]-month statute had
               passed did it refuse Emmert full payment and claim any lawsuit
               to recover the amount it owed Emmert would be time-barred.

               Simply, Kennedy Tank strung Emmert along long enough to
               avoid payment to Emmert. Kennedy Tank “by words, acts, and
               conduct led [Emmert] to believe that it would acknowledge and
               pay the claim, if, after investigation, the claim were found to be
               just, but when, after the time for suit had passed, [it broke] off
               negotiations and denie[d] liability and refuse[d] to pay.” Those
               facts, asserted in Emmert’s complaint, raise a question of fact
               regarding application of equitable estoppel that prevents
               dismissal of Emmert’s claims . . . .


       (Appellant’s App. p. 302) (fifth, sixth, seventh, and eighth alterations in

       original) (quoting Bomba v. W. L. Belvidere, Inc., 579 F.2d 1067, 1071 (7th Cir.

       1978)). In addition, Emmert raised the same equitable estoppel argument

       during the hearing on Kennedy’s motion to dismiss.


[22]   Because the trial court ruled in Emmert’s favor—i.e., it denied Kennedy’s

       motion to dismiss on its finding that 49 U.S.C. § 14705 does not preempt the

       relevant Indiana statute of limitations—the trial court did not address Emmert’s

       estoppel claim in its Order. As there is nearly $700,000 at stake in this case, I

       would remand with instructions for the trial court to conduct further




       Court of Appeals of Indiana | Opinion 49A02-1507-CT-934 | April 22, 2016   Page 15 of 16
proceedings and make a factual determination as to whether Kennedy should

be equitably estopped from asserting a statute of limitations defense. 5




5
  In its reply brief, Kennedy contends that 49 U.S.C. § 14705(a) is a statute of repose rather than a statute of
limitations, and “[t]he Seventh Circuit has held that, where federal statutes of limitations can be equitably
estopped, statutes of repose cannot.” F.D.I.C., 12 F. Supp. 3d at 1119.

Court of Appeals of Indiana | Opinion 49A02-1507-CT-934 | April 22, 2016                           Page 16 of 16