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Year In Review (Nov. 29)


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Select environmental cases from 2010 presented at Year in Review CLE.

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Year In Review (Nov. 29)

  1. 1. YEAR IN REVIEW 2009-10: Environmental Law <ul><li>Frank Deveau, Esq. </li></ul><ul><li>Brad Sugarman, Esq. </li></ul>
  2. 2. Deveau Outline <ul><ul><li>Racketeer Influenced and Corrupt Organizations Act (RICO) </li></ul></ul><ul><ul><li>Indiana’s Underground Storage Tank Act </li></ul></ul><ul><ul><li>Evansville Greenway litigation </li></ul></ul>
  3. 3. Racketeer Influenced and Corrupt Organizations Act <ul><li>Fresh Meadow Food Serv., LLC v. RB 175Corp. , </li></ul><ul><li>282 Fed.Appx. 94 (2nd Cir. 2008) </li></ul><ul><li>Justice Sotomayor </li></ul>
  4. 4. RICO: Fresh Meadows <ul><ul><li>Defendant purchased former gas station/Quick Lube property in 1988. Zoning variance had expired. In 1991, Defendant falsely told zoning authority that Quick Lube had removed USTs under supervision of fire department. </li></ul></ul><ul><ul><li>Defendant allegedly forged an affidavit of Consultant A stating (1) USTs had been removed and (2) soil samples had been taken. </li></ul></ul><ul><ul><li>He faxed the affidavit to an Environmental Consultant B to obtain a UST Closure Report. </li></ul></ul>
  5. 5. RICO: Fresh Meadows <ul><ul><li>Defendant next had environmental Consultant B conduct soil sampling in the wrong area of the Site. </li></ul></ul><ul><ul><li>Defendant obtained the Tank Closure Report from Consultant B saying USTs had been removed and no contamination remained. </li></ul></ul><ul><ul><li>Defendant offered to lease the property to Plaintiff and provided the Tank Closure Report as proof it was clean. </li></ul></ul><ul><ul><li>Defendant mailed the drafts of the lease to Plaintiff. </li></ul></ul><ul><ul><li>Plaintiff demolished building and found 7 USTs and contaminated soil. </li></ul></ul>
  6. 6. RICO: Fresh Meadows <ul><ul><li>Plaintiff sued in federal court under RICO. </li></ul></ul><ul><ul><li>District Court granted Defendant’s motion to dismiss because: </li></ul></ul><ul><li>Plaintiff’s claim failed to adequately allege a pattern of racketeering activity because the acts did not amount to or pose a threat of continued criminal activity </li></ul><ul><ul><li>Predicate acts: </li></ul></ul><ul><li>(1) wire fraud…faxing false affidavit re UST removal and sampling; </li></ul><ul><li>(2) mail fraud…mailing draft lease </li></ul>
  7. 7. RICO: Fresh Meadows <ul><li>Defendant claimed: </li></ul><ul><li>(1) No continued pattern of criminal activity alleged; and </li></ul><ul><li>(2) To allow Plaintiff’s complaint to proceed would amount to creating a RICO claim (including treble damages and attorney fees) out of every business dispute </li></ul>
  8. 8. RICO: Fresh Meadows <ul><li>The Court disagreed: </li></ul><ul><li>“ [Defendant's] alleged pattern of racketeering activity was not directed solely at plaintiffs. Rather, the allegedly fabricated affidavit underlying the 1997 wire fraud predicate was integral to an alleged scheme to defraud any potential purchaser or lessee of the Property by concealing the potentially hazardous USTs. Moreover, that alleged fraud was perpetrated against [Environmental Consultant B], who prepared the tank closure report.” </li></ul>
  9. 9. RICO: Fresh Meadows <ul><li>The Court continued: </li></ul><ul><li>“ And because that is the same harm allegedly inflicted by the fraudulent inducement of [Plaintiff] into executing the lease, plaintiffs' allegations, which must be accepted as true, preclude a determination as a matter of law that the predicate acts constitute only isolated, sporadic criminal activity.” </li></ul>
  10. 10. RICO: Fresh Meadows <ul><li>Possible Implications: </li></ul><ul><li>(1) A new cause of action for disgruntled buyers of contaminated property? Breach of contract and RICO? </li></ul><ul><li>(2) What about owners of former dry cleaners, gas stations, etc.? Currently, USTA, ELA…now RICO? </li></ul>
  11. 11. Indiana’s Underground Storage Tank Act (USTA)
  12. 12. USTA: Wickens v. Shell Oil Co. <ul><li>Wickens v. Shell Oil Co. , 620 F.3d 747 (7th Cir. 2010) </li></ul><ul><ul><li>USTA allows for the recovery of investigation and remediation costs PLUS “reasonable attorney fees.” </li></ul></ul><ul><ul><li>Issue: What attorney fees are recoverable under the USTA? </li></ul></ul>
  13. 13. USTA: Wickens <ul><ul><li>Wickens were owners of a shoe store in Anderson that had formerly been a Shell gas station. </li></ul></ul><ul><ul><li>Wickens sued Shell under common law tort counts and USTA for cleanup and damages. </li></ul></ul><ul><ul><li>After years of litigation, settlement was reached on all matters except for attorney fees and past cleanup costs. </li></ul></ul><ul><ul><li>Trial court held that a USTA plaintiff was: </li></ul></ul><ul><li>(1) only entitled to fees relating to recovery under USTA (not common law torts); and </li></ul><ul><li>(2) the right to attorney’s fees ends after the statutory purpose is satisfied. </li></ul>
  14. 14. USTA: Wickens <ul><ul><li>Shell settled by agreeing to be liable for plaintiffs’ recoverable past costs; attorneys’ fees; and by agreeing to be responsible for all future cleanup costs. </li></ul></ul><ul><ul><li>The parties agreed that the trial court would decide the recoverable amount of past corrective action costs and attorneys’ fees </li></ul></ul><ul><ul><li>Both Shell and plaintiff appealed the District Court’s award of $391,307.83 in attorneys' fees and $116,511.27 for corrective action costs. </li></ul></ul>
  15. 15. USTA: Wickens <ul><li>Million Dollar Question: </li></ul><ul><li>At what point does plaintiffs’ right to recover fees end? </li></ul><ul><li>“ [T]he statutory purpose [of USTA] is satisfied ‘once a defendant accepts its legal obligation and agrees to assume responsibility for remediating the site.” </li></ul><ul><li>Wickens, 569 F.Supp.2d at 791. </li></ul>
  16. 16. USTA: Wickens <ul><ul><li>District Court’s decision that “statutory purpose” was satisfied after Shell agreed to do future cleanup and pay for past costs. </li></ul></ul><ul><ul><li>7 th Circuit upheld District Court’s selection of cut-off date. </li></ul></ul><ul><ul><li>Likely not a hard and fast rule but will depend on the facts of each case ( i.e ., the court was faced with several competing cut-off dates). </li></ul></ul>
  17. 17. Evansville Greenway : Common Interest Privilege and CERCLA Liability
  18. 18. Evansville Greenway : Two Orders <ul><li>Evansville Greenway & Remediation Trust v. </li></ul><ul><li>S. Ind. Gas & Elec. Co. </li></ul><ul><li>(1) Order Overruling Objections to Magistrate’s Ruling on Motion to Compel, 2010 WL 1737875 (S.D.Ind. 2010); and </li></ul><ul><li>(2) Summary Judgment Order, 661 F.Supp.2d 989 (S.D.Ind. 2009). </li></ul>
  19. 19. Evansville Greenway : Facts <ul><ul><li>General Facts: </li></ul></ul><ul><ul><li>Case involved two waste yards in Evansville that the City sought to acquire and clean up as part of its “greenway” project. </li></ul></ul><ul><ul><li>The City pressured the owner of the yards, General Waste Products (GWP), to remediate the property. GWP sued its insurers to finance remediation. The settlement of this suit created a trust of $3.5 million to cleanup property. </li></ul></ul><ul><ul><li>When the Trust’s funds ran dry, the Trust sued SIGECO and others whom the Trust claimed dumped lead and PCBs at the Sites. </li></ul></ul>
  20. 20. Evansville Greenway : Two significant orders <ul><ul><li>Two key decisions addressing: </li></ul></ul><ul><ul><ul><li>The extent of the Common Interest Privilege; and </li></ul></ul></ul><ul><ul><ul><li>Joint and Several Liability under the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended (CERCLA or Superfund) </li></ul></ul></ul>
  21. 21. Evansville Greenway : Common Interest Ruling <ul><li>SIGECO sought to discover documents exchanged between GWP, GWP’s insurers, the City, and the Trust regarding the settlement and the formation of the trust. </li></ul><ul><li>Judge Barker held that the “common interest” privilege applied to communications between GWP, GWP’s insurers, the City, and the Trust (after it was created) because those parties shared the common interests of remediating the sites and in pursuing other potentially responsible parties. </li></ul><ul><li>Court rejected the argument that the privilege could not apply because the parties may become adverse. </li></ul>
  22. 22. Evansville Greenway : CERCLA Ruling <ul><ul><li>Liability under CERCLA § 107(a) is joint and several, strict and retroactive. </li></ul></ul><ul><ul><li>The Trust sought summary judgment against other potentially responsible parties, including SIGECO, to establish joint and several liability for all past and future costs. </li></ul></ul><ul><ul><li>Before the United States Supreme Court’s decision in Burlington N. & Santé Fe Ry. Co. v. United States, -- U.S. --, 129 S.Ct. 1870 (2009), SIGECO would have been found jointly and severally liable. HOWEVER . . . </li></ul></ul>
  23. 23. Evansville Greenway : CERCLA Ruling <ul><ul><li>The court found that “ Burlington Northern reflects a significant change in the law governing apportionment of CERCLA responsibility.” 661 F.Supp.2d at 1011. </li></ul></ul><ul><ul><li>Held SIGECO liable as generator under CERCLA, for past and future costs -- but refused to find SIGECO jointly and severally liable. Id . at 1013. </li></ul></ul><ul><ul><li>Instead, the Court announced it would hold a trial to develop evidence of apportionment. </li></ul></ul><ul><ul><li>Case settled. See Order Granting Joint Motion to Approve Settlement, 2010 WL 3781565 (S.D. Ind. 2010). </li></ul></ul>
  24. 24. Sugarman Outline <ul><ul><li>Sierra Club’s “Citizen Suits” under the Clean Air Act </li></ul></ul><ul><ul><li>Toxic Tort Litigation </li></ul></ul><ul><ul><li>Environmental Insurance </li></ul></ul><ul><ul><li>Liability under CERCLA and Indiana’s Environmental Legal Action Statute </li></ul></ul>
  25. 25. Clean Air Act: The Sierra Club Agenda
  26. 26. Clean Air Act: Prevention of Significant Deterioration <ul><li>The Clean Air Act’s PSD (Prevention of Significant Deterioration) Program is designed to prevent national air quality from declining. </li></ul><ul><li>Under the PSD Program, you need a pre-construction permit: </li></ul><ul><ul><ul><li>Before constructing a new “major” source. A “major” source emits more than 250 TPY of a “regulated” pollutant or 100 TPY of regulated pollutant if it falls within a listed “source category” </li></ul></ul></ul><ul><ul><ul><li>Before undertaking a “major modification” of an existing major source in an area that attains NAAQS (National Ambient Air Quality Standards) </li></ul></ul></ul><ul><li>Permits require BACT (Best Available Control Technology) = Expensive. </li></ul>
  27. 27. Seventh Circuit Court of Appeals
  28. 28. Clean Air Act: Indiana v. Wisconsin
  29. 29. Clean Air Act: Sierra Club Citizen’s Suits <ul><li>Sierra Club brought CAA citizen suits in Indiana and Wisconsin. </li></ul><ul><li>Both suits allege that coal-fired power plants made “major modifications” without obtaining PSD permits. </li></ul><ul><li>Most of alleged modifications were made in the 1990’s . </li></ul><ul><li>Sierra Club asked for civil penalties and injunctive relief requiring installation of BACT. </li></ul>
  30. 30. Clean Air Act: Sierra Club Citizen’s Suits <ul><li>Issue: </li></ul><ul><ul><ul><li>Did the 5-year statute of limitations bar Sierra Club’s claims for civil penalties and injunctive relief? </li></ul></ul></ul><ul><ul><ul><li>To determine, district courts considered whether the alleged PSD violations were one-time events or continuing violations . </li></ul></ul></ul><ul><ul><ul><li>Did the “concurrent remedy” doctrine bar claims for injunctive relief. </li></ul></ul></ul>
  31. 31. Clean Air Act: Sierra Club v. Duke Energy Ind. <ul><li>Edwardsport Station </li></ul><ul><ul><li>Originally built in 1918 with additional generating units added between 1944 and 1951. </li></ul></ul><ul><ul><li>Currently building a state-of-the-art “Integrated Gasification Combined Cycle” Plant. Will be one of the cleanest in the world. </li></ul></ul>
  32. 32. Clean Air Act: Sierra Club v. Duke Energy Ind.
  33. 33. Clean Air Act: Sierra Club v. Duke Energy Ind. <ul><li>Indiana </li></ul><ul><li>Sierra Club v. Duke Energy Ind. , 2010 WL 3667002 (S.D.Ind. 2010). </li></ul><ul><li>District Judge Sarah Evans Barker </li></ul><ul><li>Summary judgment order issued on September 14, 2010 (amended September 20, 2010). </li></ul>
  34. 34. Clean Air Act: Sierra Club v. Duke Energy Ind. <ul><li>Issue #1: One-Time or Continuing Violation ? </li></ul><ul><li>“ We . . . hold that violations of the CAA’s PSD requirements are discrete infractions governed by the five-year limitations period, and are not continuing violations.” </li></ul><ul><li>“ [W]e hold that if the Defendants violated any of the . . . PSD requirements by failing to obtain a PSD permit, apply BACT limits, or conduct a source impact analysis, any such violation was by law a one-time infraction that accrued at the time of construction or modification of the Edwardsport plant.” </li></ul>
  35. 35. Clean Air Act: Sierra Club v. Duke Energy Ind. <ul><li>Issue # 2: Concurrent Remedy Doctrine applies to bar Sierra Club’s equitable claims. </li></ul><ul><li>“ Under Seventh Circuit law, where ‘the sole remedy is not in equity and an action at law can be brought on the same facts, the remedies are concurrent for the purposes of the [concurrent remedy doctrine] even though more effective relief would be available in equity.” </li></ul><ul><li>“ [B]ecause the Plaintiff’s claims for civil penalties are barred by the applicable statute of limitations, we hold that the concurrent remedy doctrine serves as a bar to Plaintiff’s equitable claims brought on the same facts.” </li></ul><ul><li>Judge Barker stayed entry of final judgment until the Seventh Circuit ruled in the Cinergy appeal. </li></ul>
  36. 36. Clean Air Act: Sierra Club v. Dairyland Power
  37. 37. Clean Air Act: Sierra Club v. Dairyland Power <ul><li>Sierra Club v. Dairyland Power Coop. , 2010 U.S. Dist. Lexis 112817 (W.D.Wis. 2010). </li></ul><ul><li>Procedurally distinct from Duke case? Issued on Defendant’s motion to dismiss, not on summary judgment. </li></ul><ul><li>District Judge Barbara Crabb issued her opinion on October 22, 2010, after Judge Barker’s but failed to acknowledge her ruling. </li></ul>
  38. 38. Clean Air Act: Sierra Club v. Dairyland Power <ul><li>Issue # 1: One-Time or Continuing Violation ? </li></ul><ul><li>“ I am persuaded by those cases that have found that violations of the Clean Air Act’s PSD requirements constitute a series of discrete infractions occurring at the commencement of construction and continuing until the defendant obtains a permit and comes into compliance with PSD obligations.” </li></ul>
  39. 39. Clean Air Act: Sierra Club v. Dairyland Power <ul><li>Issue # 2: Concurrent Remedy Doctrine? </li></ul><ul><li>PUNT. </li></ul><ul><li>“ Because I have not concluded that plaintiff’s claims for civil penalties are barred by the statute of limitations, I need not decide at this time whether the concurrent remedy bars plaintiff’s claims for declaratory and equitable relief.” </li></ul>
  40. 40. Clean Air Act: Sierra Club v. Dairyland Power <ul><li>Well reasoned? You be the judge. </li></ul><ul><ul><li>Discusses continuing violation despite basing her ruling on the “discovery rule”. </li></ul></ul><ul><ul><li>Acknowledges the inconsistency with her prior ruling in United States v. Murphy Oil USA, Inc. , 143 F.Supp.2d 1054 (W.D. Wis. 2001). </li></ul></ul><ul><ul><li>Acknowledges the 6 th , 8 th and 11 th Circuits have found PSD violations to be one-time violations. </li></ul></ul><ul><ul><li>Acknowledges that “[d]istrict courts in at least seven circuits have ruled that PSD violations are one-time violations for statute of limitations purposes.” </li></ul></ul><ul><ul><li>Acknowledges that: “A number of district courts in this circuit, including this court , have found that PSD violations are not continuing in nature and accrue no later than the time at which construction is completed.” </li></ul></ul>
  41. 41. Clean Air Act: United States v. Cinergy <ul><li>Cinergy’s (Duke Energy) Wabash River Station </li></ul>
  42. 42. Clean Air Act: United States v. Cinergy
  43. 43. Clean Air Act: United States v. Cinergy Corp. <ul><li>United States of America, et al., v. Cinergy Corp., et al., </li></ul><ul><li>623 F.3d 455 (7 th Cir. 2010) </li></ul><ul><li>Decided on October 12, 2010. Judge Posner (author), Chief Judge Easterbrook and Judge Rovner. </li></ul><ul><li>This case involved Cinergy’s appeal of a jury verdict finding that Cinergy had violated the CAA’s PSD provisions by modifying its Wabash River Station on four occasions between 1989 and 1992. The jury found that these modifications resulted in increased emissions of Sulfur Dioxide (SO 2 ) and Nitrogen Oxide (NO x ), and thus required a permit. </li></ul><ul><li>Judge Barker believed that the 7 th Circuit would address statute of limitations arguments, but it did not. </li></ul>
  44. 44. Clean Air Act: United States v. Cinergy Corp. <ul><li>Instead, the 7 th Circuit looked at two issues. </li></ul><ul><ul><ul><li>What state regulations controlled the calculation of increased SO 2 emissions. </li></ul></ul></ul><ul><ul><ul><li>Whether the government’s expert testimony regarding increase NO x emissions was admissible. </li></ul></ul></ul>
  45. 45. Clean Air Act: United States v. Cinergy Corp. <ul><li>SO 2 : hourly v. annual </li></ul><ul><ul><li>Court determined that the Indiana SIP (State Implementation Plan) in place at the time of the modifications contained the hourly provision, while the federal regulations contained annual. </li></ul></ul><ul><ul><li>Noted that Indiana had agreed to change its SIP to match the federal annual requirement. However, this was not done until after the modifications at issue. </li></ul></ul><ul><ul><li>“ The blunder was unfortunate but the agency must live with it.” </li></ul></ul>
  46. 46. Clean Air Act: United States v. Cinergy Corp. <ul><ul><ul><ul><ul><li>NO x : Admissibility of Expert Testimony </li></ul></ul></ul></ul></ul><ul><li>District Court allowed the Government’s expert to testify that the modifications would result in an annual increase in NO x emissions. </li></ul><ul><li>“ And there’s the rub.” </li></ul><ul><li>7 th Circuit found that this was an error because the Government’s expert used a formula for “base load” power plants ( i.e. one that is operated continuously), and the Wabash plant was a “cycling facility” ( i.e. one that is run on a regular or fairly regular basis, but not continuously because of the high operation costs) </li></ul>
  47. 47. Toxic Tort Litigation <ul><li>Masterwear : One site, five lawsuits </li></ul><ul><li>1. United States v. Masterwear Corp. , Case No. 1:05-cv-373 (S.D. Ind.) </li></ul><ul><li>2. City of Martinsville v. Masterwear Corp., et al ., Case No. 1:04-cv-1994 (S.D. Ind.) </li></ul><ul><li>3. Billy J. Cunningham, et al. v. Masterwear Corp., et al., Case No. 1:04-cv-1616 (S.D. Ind.) </li></ul><ul><li>4. Ohio Casualty Ins. Co. v. James Reed, et al., Case No. 1:04-cv-2027 (S.D. Ind.) </li></ul><ul><li>5. Samuel Neal, et al. v. William J. Cure , Cause No. 49F12-0610-PL-42308 (Marion Superior Court) </li></ul><ul><li>Cedar Park : One site, two lawsuits </li></ul><ul><li>Brian Kremer, et al. v. Rockville TBD Corp., et al. , Cause No. 49F12-0510-CT-040041 (Marion Superior Court) </li></ul><ul><li>KB Home Indiana Inc. v. Rockville TBD Corp., et al., Cause No. 49F12-0706-CT-027065 (Marion Superior Court) </li></ul>
  48. 48. Toxic Torts: Samuel Neal v. William J. Cure
  49. 49. Toxic Torts: Neal v. Cure <ul><li>Samuel Neal , et al. v. William J. Cure, et al., </li></ul><ul><li>– N.E.2d – (Ind. Ct. App. Nov. 24, 2010) </li></ul><ul><li>Examines a landlord’s liabilities for the tenant’s release of hazardous substances. </li></ul><ul><li>Generally, Indiana law DOES NOT hold a landlord liable for the tenant’s torts unless the landlord has “actual knowledge” of the conduct and consents to or participates in the conduct. </li></ul>
  50. 50. Toxic Torts: Neal v. Cure <ul><li>Nuisance </li></ul><ul><ul><li>General Rule : Landlord is not liable for the tenant’s nuisance. </li></ul></ul><ul><ul><li>Exceptions: </li></ul></ul><ul><ul><ul><ul><li>Landlord leases property for operating a business that is by its very nature a nuisance. </li></ul></ul></ul></ul><ul><ul><ul><ul><li>Landlord knows that about a tenant’s nuisance and can stop it, but does not. </li></ul></ul></ul></ul><ul><ul><ul><ul><li>Landlord consents to the tenant’s maintenance of a nuisance. </li></ul></ul></ul></ul><ul><ul><li>Neals argued that Indiana should adopt a “should have known” or “reason to know” standard contained in Section 837 of Second Restatement of Torts. </li></ul></ul><ul><ul><li>Court rejected and stated that Indiana law is clear. There must be actual knowledge. Neals had not designated evidence established Cure’s actual knowledge. </li></ul></ul>
  51. 51. Toxic Torts: Neal v. Cure <ul><li>Trespass </li></ul><ul><ul><li>Issue: Whether a landlord can be liable for a tenant’s trespass when the tenant releases a noxious material. </li></ul></ul><ul><ul><li>Indiana law requires the landlord to “authorize” or to “participate” in the trespass before liability will attach. </li></ul></ul><ul><ul><li>The Neals argues that Indiana should adopt an “acquiesced” standard. </li></ul></ul><ul><ul><li>The Court refused to adopt the Neals’ standard and found the designated evidence did not reflect that the Cures intended the pollution. </li></ul></ul>
  52. 52. Toxic Torts: Neal v. Cure <ul><li>Negligence </li></ul><ul><ul><li>Absent contrary stipulations, Indiana law imposes duties only on the tenant, not the landlord, for use of the leased property. See Hirschauer v. C&E Shoe Jobbers, Inc. , 436 N.E.2d 107, 112-13 (Ind. Ct. App. 1982). </li></ul></ul><ul><ul><li>Declined to adopt Restatement § 379(A)’s “knew or had reason to know” standard as it is inconsistent with Indiana law. </li></ul></ul><ul><li>Negligence Per se </li></ul><ul><ul><li>Ind. Code § 13-30-2-1 (prohibits releasing contamination) does not create a private cause of action. </li></ul></ul><ul><ul><li>327 I.A.C. 2-6-2 (Indiana’s “Spill Rule”). </li></ul></ul>
  53. 53. Toxic Torts: Neal v. Cure <ul><li>Indiana’s Environmental Legal Action Statute, Indiana Code § 13-30-9. </li></ul>
  54. 54. Toxic Torts: Neal v. Cure <ul><li>ELA </li></ul><ul><ul><li>At issue was whether the Cures had “contributed to” the presence of contamination at the Masterwear Site. </li></ul></ul><ul><ul><li>Looking to Cooper Industries , the Court found that: “our goal when construing the term ‘contribute’ should be to hold accountable all parties ‘responsible for creating contaminations.” </li></ul></ul><ul><ul><li>The Cures were not involved and did not have any knowledge of the release. Thus, no ELA liability. </li></ul></ul>
  55. 55. Toxic Torts: KB Home
  56. 56. Toxic Torts: KB Home
  57. 57. Toxic Torts: KB Home <ul><li>KB Home Indiana Inc. v. Rockville TBD Corp. , </li></ul><ul><li>928 N.E.2d 297 (Ind. Ct. App. 2010) </li></ul><ul><li>Trespass : Plaintiffs must demonstrate that: </li></ul><ul><li>(1) they possessed the property when trespass occurred; and </li></ul><ul><li>(2) defendant entered the property without legal right to do so. </li></ul><ul><li>Because KB did not possess land when trespass first occurred, no recovery allowed. </li></ul><ul><li>Rejected KB’s “ascertainable damage” argument. </li></ul>
  58. 58. Toxic Torts: KB Home <ul><li>Nuisance </li></ul><ul><li>A nuisance claim must involve an ongoing and continued offensive behavior . Thus, a nuisance plaintiff must prove the nuisance currently exists or is ongoing. Where there is no existing or ongoing nuisance, there is no nuisance to enjoin. </li></ul>
  59. 59. Toxic Torts: KB Home <ul><li>Negligence: The Economic Loss Doctrine </li></ul><ul><li>The economic loss doctrine limits the recovery of negligence damages to personal injuries and physical harm to property. </li></ul><ul><li>However, the doctrine only limits negligence damages if a contractual relationship exists. The contractual relationship must exist between the plaintiff and the defendant. </li></ul><ul><li>KB’s contractual relationship between itself and the developer, Kopetsky, did not preclude a negligence claim against Rockville. </li></ul>
  60. 60. Environmental Insurance <ul><li>West Bend Mut. Ins. Co. v. United States Fid. & Guar. Co., et al. 598 F.3d 918 (7th Cir. 2010) </li></ul><ul><li>Nat’l Union Fire Ins. Co. of Pittsburgh, et al. v. Standard Fusee Corp., CASE CITATION (Ind. Ct. App. 2009), trans. granted. The Indiana Supreme Court heard oral argument on July 29, 2010. </li></ul>
  61. 61. Environmental Insurance: West Bend <ul><li>Issue : Did CGL policies issued by Federated Mutual Insurance Company cover liabilities for petroleum released from a 7-Eleven gas station in Goshen, Indiana? </li></ul><ul><li>Facts : </li></ul><ul><ul><li>Federated’s insured, MDK, owned and operated a gas station. The underground storage tanks and associated piping at the station leaked and contaminated groundwater at the site. The petroleum-contaminated groundwater then migrated underneath a nearby residential neighborhood and vaporized into homes causing property damage and personal injury. </li></ul></ul><ul><ul><li>The neighborhood sued 7-Eleven and MDK. After lengthy litigation, MDK eventually settled for $4 million. West Bend sued Federated (and USF&G) to recover its costs of defending MDK. </li></ul></ul>
  62. 62. Environmental Insurance: West Bend <ul><li>Arguments: </li></ul><ul><ul><li>Federated argued that it owed no duty to defend because it had no duty to indemnify claims arising from petroleum contamination pursuant to the pollution exclusion clause in its policy. </li></ul></ul><ul><ul><li>West Bend countered arguing that the Federated pollution exclusion clause was similar to the exclusion thrown out by the Indiana Supreme Court in Am. States Ins. Co. v. Kiger , 662 N.E.2d 945 (Ind. 1996). </li></ul></ul>
  63. 63. Environmental Insurance: West Bend <ul><li>Holding : </li></ul><ul><ul><li>7th Circuit (Judge Flaum) found that the Federated pollution exclusion clause explicitly excluded “bodily injury” or “property damage” caused by the release pollutants or motor fuels released from USTs and underground piping. While the term “pollutants” did not include gasoline or petroleum, the term “motor fuels” did. </li></ul></ul><ul><ul><li>Moreover, the Court noted that the Federated policy included an Indiana Changes Endorsement which emphasized that the pollution exclusion applied even to “pollutants” that had an ongoing function in the business. </li></ul></ul><ul><li>These facts were sufficient for the Court to conclude that MDK would “know to a certainty” that Federated would not be responsible for damage arising out of gasoline leaks taking place during the covered period after reading these two policy provisions. </li></ul>
  64. 64. Environmental Insurance: West Bend <ul><li>The West Bend decision is one of the only opinions to uphold the denial of coverage for environmental contamination in Indiana. </li></ul><ul><li>However, it underscores that insurers who wish to do so face an uphill battle. </li></ul><ul><ul><li>The Federated policy explicitly excluded the type of pollutant (i.e., petroleum) and the manner in which it was released (i.e., from USTs and associated piping). </li></ul></ul><ul><ul><li>Few CGL policies issued in Indiana are drafted with this degree of specificity. </li></ul></ul><ul><ul><li>Pollution exclusion endorsements added to Indiana CGL policies even after Kiger still contain pollution exclusion clauses that are vague and overly broad. </li></ul></ul>
  65. 65. Environmental Insurance: Flexdar <ul><li>State Auto. Mut. Ins. Co. v. Flexdar, Inc. , No. 49A02-1002-PL-00111 (Ind. Ct App., Nov. 22, 2010) </li></ul><ul><ul><li>“ We conclude, pursuant to the last fourteen years of precedent, that State Auto’s absolute pollution exclusion is ambiguous, must be construed in favor of the insured, and therefore will not operate to preclude coverage in connection with Flexdar’s TCE leakage. Under Kiger and its progeny -- and consistent with the above-quoted 1997 executive veto -- an insurance policy must be specific if it wishes to except from coverage claims relating to a particular alleged contaminant. It is within the province only of our Supreme Court to decide otherwise.” </li></ul></ul>
  66. 66. CERCLA & ELA: Summary <ul><li>FEDERAL : Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, commonly referred to as CERCLA or SUPERFUND. </li></ul><ul><ul><li>Allows for the RECOVERY of costs associated with the clean-up of contaminated property. LIMITED ATTORNEY FEE RECOVERY. </li></ul></ul><ul><ul><li>Section 107(a) establishes liability for, among others, past and current owners or operators of a FACILITY at the time of a release. </li></ul></ul><ul><ul><li>CERCLA liability is STRICT, JOINT, SEVERAL, and RETROACTIVE. Innocence is, most often, irrelevant </li></ul></ul><ul><li>STATE : Indiana’s Environmental Legal Action Statute, Ind. Code § 13-30-9, commonly referred to as the “ELA.” </li></ul><ul><ul><li>Indiana’s corollary to CERCLA. </li></ul></ul><ul><ul><li>PLUS. Allows for recovery of clean-up costs AND REASONABLE ATTORNEY FEES. </li></ul></ul><ul><ul><li>MINUS. Limited in scope to those who “cause or contribute” to RELEASE of contamination. The ELA requires involvement in the release of the contamination. City of Martinsville v. Masterwear (S.D. Ind. 2006). </li></ul></ul>
  67. 67. CERCLA: Saporito <ul><ul><li>United States v. Saporito , </li></ul></ul><ul><ul><li>684 F.Supp.2d 1043 (N.D. Ill., February 9, 2010) </li></ul></ul><ul><li>FACTS: </li></ul><ul><li>Defendant acquired various pieces of equipment used in company’s plating operations that he then leased back to the plating operation. Releases from this equipment caused contamination at the site. Plating company went out of business. EPA spent more than $1.5 million to remediate the site. </li></ul><ul><li>HOLDING: </li></ul><ul><ul><li>“ The plating line is no less a facility than the land on which it operated . . . . Thus, an owner of equipment necessary to the operation of the plating line is no less an ‘owner’ than a part-owner of land .” </li></ul></ul>
  68. 68. CERCLA/ELA: Shafer <ul><li>City of Gary v. Shafer , </li></ul><ul><li>683 F. Supp.2d 836 (N.D. Ind. 2010) </li></ul><ul><li>FACTS (ownership): The City of Gary has acquired a large area for redevelopment within the “Airport Redevelopment Zone.” This area includes property formerly owned by Shafer that was used as an automobile salvage yard for approximately 40 years. The site was then owned by Waste Management (third-party defendant) before being acquire by the City. </li></ul>
  69. 69. CERCLA/ELA: Shafer <ul><li>FACTS (contamination): </li></ul><ul><ul><li>The site is located adjacent to the now closed municipal landfill. The site was extensively contaminated with lead. </li></ul></ul><ul><ul><li>The evidence demonstrated that the operation of the auto salvage yard had not significantly contaminated the site. (Batteries were removed before the cars were crushed or set on fire.) Rather, the operation of the yard had moved contaminated soil from one portion of the site to another. </li></ul></ul><ul><ul><li>The Court found that leachate -- possibly containing lead -- from the landfill ran directly onto the site frequently. It determined that this runoff was the significant source of lead contamination at the site. </li></ul></ul>
  70. 70. CERCLA/ELA: Shafer <ul><li>Significant Issue : Were Shafer’s actions (moving dirt) enough to hold him liable under CECLA and the ELA? </li></ul><ul><li>Holding : The Court found that Shafer’s actions were enough for liability under CERCLA and the ELA to attach because Shafer “committed disposal by moving (dispersing) a small amount of lead-contaminated soil at the Site.” The Court noted that Shafer’s proportionate share of remediation costs would be minor. </li></ul>
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