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Estate of Williams v. BorgWarner Morse TEC Inc.,

Court of Appeals of Indiana

August 28, 2018

Estate of Walter E. Williams, Appellant (Third-Party Plaintiff),
v.
BorgWarner Morse TEC Inc., et al., Appellees (Third-Party Defendants). Chuck Markey, Markey's Audio Visual, Inc., and D&E Enterprises, Plaintiffs,
v.
George F. Kopetsky, Patricia A. Kopetsky, George F. Kopetsky Realty Corp., Walter E. Williams, Edward F. Frazier, John Bartkiewicz, Richard Clapper, and Ted Pollard, Defendants.

          Appeal from the Marion Superior Court The Honorable Timothy W. Oakes, Judge Trial Court Cause No. 49D02-0607-PL-28561

          Attorneys for Appellant Donn H. Wray Glenn D. Bowman Marc A. Menkveld Stoll Keenon Ogden PLLC Indianapolis, Indiana

          Attorneys for Appellee BorgWarner Morse TEC Inc. Richard S. VanRheenen Tabitha L. Balzer Lewis Kappes, P.C. Indianapolis, Indiana

          BROWN, JUDGE.

         [¶1] The Estate of Walter E. Williams (the "Estate") appeals the trial court's entry of summary judgment in favor of BorgWarner Morse TEC, Inc. ("Morse TEC").[1]The Estate raises one issue which we revise and restate as whether the court erred in entering summary judgment in favor of Morse TEC. We affirm.

         Facts and Procedural History

         [¶2] This case involves an Environmental Legal Action ("ELA") under Ind. Code §§ 13-30-9. In the 1960s, George Kopetsky constructed a building to house a laundromat and dry cleaning operation on property he owned at 2915 South Meridian Street, Indianapolis, Indiana (the "Site"). Kopetsky purchased coin-operated washing and dry cleaning machines and named the location Norge Laundry & Dry Cleaning Village ("Norge Village"). Kopetsky operated Norge Village until 1967 when he leased it to Edward Frazier, who operated it until September 29, 1969, when Williams purchased the Site and assumed Kopetsky's mortgage.

         [¶3] Williams operated Norge Village until May 1, 1974. He leased the Site to others, including John Bartkiewicz and Richard Clapper, who continued to operate Norge Village pursuant to a lease agreement. At some point, Clapper withdrew from the lease arrangement. In 1981, Norge Village ceased operation at the Site and the machines were removed. On August 25, 1995, Williams sold the Site to D&E Enterprises.

         [¶4] On July 12, 2006, Chuck Markey, Markey's Audio Visual, Inc., and D&E Enterprises, Inc., filed a complaint against Williams and others for environmental response costs, attorney fees, and damages under Ind. Code §§ 13-30-9 to recover the costs of remedial action involving hazardous substances released into the soil and groundwater. The complaint alleged that Markey was the owner of Markey's Audio Visual, Inc., and D&E Enterprises, Inc., and that D&E Enterprises, Inc., was the current owner of the Site.

         [¶5] On April 30, 2008, Williams filed a third-party complaint against "Borg-Warner Morse TEC Corporation." Appellee's Appendix Volume 2 at 37. On March 25, 2010, Williams amended its complaint, naming the defendants as "Borg-Warner Corporation," "Borg-Warner Corporation, as successor in interest to Norge Corporation," Morse TEC, and Burns International Services Company, LLC, ("Burns"). Id. at 44. The amended complaint stated in part:

3. . . . Norge Corporation is a corporation that does or has existed, and conducted business in Indiana relating to its sale and installation of dry cleaning equipment.
4. . . . Borg-Warner is a Delaware corporation that conducted business in Indiana at all times relevant to this Complaint through the sale of Norge brand dry cleaning equipment by its Norge Division.
5. . . . Borg-Warner is a successor in interest to the Norge entity that conducted business in Indiana relating to the sale and installation of Norge brand dry cleaning equipment.
6. . . . Morse TEC[] . . . conducted business at all times relevant to this Third-Party Complaint through the sale of Norge brand dry cleaning equipment by its Norge Division.
** * * *
10. . . . [George and Patricia Kopetsky] purchased Norge dry cleaning equipment and other cleaning equipment ("Equipment") in the mid- to late- 1960s.
11. . . . [R]epresentatives of Norge installed some or all of the equipment.
12. . . . Borg-Warner owned and operated the Norge division from approximately 1929 until selling the Norge division . . . on July 1, 1968.
13. . . . Morse TEC is the corporate successor in interest to Borg-Warner that formerly owned and operated the Norge division, including but not limited to the manufacture and installation of [the ...

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