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LLC v. Neth. Ins. Comp.

Court of Appeals of Indiana

April 8, 2015

5200 Keystone Limited Realty, LLC, Appellant-Plaintiff,
v.
Netherlands Insurance Comp., Consolidated Insurance Comp., and Indiana Insurance Comp., Appellees-Defendants

Appeal from the Marion Superior Court. Cause No. 49D03-1309-PL-34315. The Honorable Patrick L. McCarty, Judge.

ATTORNEYS FOR APPELLANT: George M. Plews, George M. Plews, Plews Shadley Racher & Braun, LLP, Indianapolis, Indiana.

ATTORNEY FOR APPELLEE: Ginny L. Peterson, Kightlinger & Gray, LLP, Indianapolis, Indiana.

Barnes, Judge. May, J., and Pyle, J., concur.

OPINION

Page 157

Barnes, Judge.

Case Summary

[¶ 1] 5200 Keystone Limited Realty, LLC (" KLR" ) appeals the trial court's

Page 158

grant of summary judgment in favor of Netherlands Insurance Company (" Netherlands" ), Consolidated Insurance Company (" Consolidated" ), and Indiana Insurance Company (" Indiana" ) (collectively " the Insurers" ). We affirm.

Issue

[¶ 2] KLR raises several issues on appeal. We need only address one issue: whether the common law " known loss" doctrine precludes KLR's action against the Insurers to compel them to provide a defense for KLR in an action brought by the Indiana Department of Environmental Management (" IDEM" ) to remove pollution from land owned by KLR.

Facts

[¶ 3] This suit concerns property located on Keystone Avenue in Indianapolis. In 2002, Apex Mortgage Company (" Apex" ) acquired the property for $240,000 in a foreclosure action against the last property owner, Eric Spicklemire. Spicklemire and his father had operated a film development business at the site, Filmcraft Laboratories, Inc. (" Filmcraft" ), from 1974 to 2001. From 1956 to 1973, a former property owner had operated a dry cleaning facility at the site.

[¶ 4] After the foreclosure, Apex hired a company, KERAMIDA Environmental (" KERAMIDA" ), to evaluate the property for environmental contamination. In 2003, KERAMIDA prepared a report finding extensive soil and water contamination by a variety of chemicals, including chlorinated solvents and petroleum hydrocarbons. The report concluded:

Based upon the results of the investigation, the site soils were found to be contaminated in several areas. Shallow soils were found to be contaminated in several areas. Shallow soils were found to be contaminated above regulatory action levels. . . .
Groundwater samples confirmed contamination above the IDEM action levels from previous historical operations in a shallow perched zone. . . .
. . . . Corrective Action on the Site is necessary due to the exceedances of contaminant concentrations being observed above the IDEM regulatory action levels. KERAMIDA recommends additional site investigation in order to determine the extent and to ...

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