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Elkhart Foundry & Machine Co., Inc. v. City of Elkhart Redevelopment Commission for City of Elkhart

Court of Appeals of Indiana

October 3, 2018

Elkhart Foundry & Machine Co., Inc., Appellant-Defendant,
v.
City of Elkhart Redevelopment Commission for the City of Elkhart, Appellee-Plaintiff

          Appeal from the Elkhart Superior Court The Honorable Stephen R. Bowers, Judge Trial Court Cause No. 20D02-1602-CT-50

          ATTORNEYS FOR APPELLANT Erik S. Mroz David A. Temple Sean T. Devenney Drewry Simmons Vornehm, LLP Carmel, Indiana

          ATTORNEYS FOR APPELLEE Brent W. Huber Derek R. Molter Kaitlyn J. Marschke Ice Miller LLP Indianapolis, Indiana

          Vaidik, Chief Judge.

         Case Summary

         [¶1] This case concerns the efforts of the City of Elkhart and its Redevelopment Commission ("the City") to rehabilitate a former industrial site situated along the Elkhart River in the city's downtown. The City has sued Elkhart Foundry & Machine Co. ("the Foundry"), which operated on the site until 2004. One of the statutes relied upon by the City is Indiana Code section 13-30-9-2, which took effect in 1998 and which, generally stated, provides that a person who cleans up a contaminated site can bring an "environmental legal action" (ELA) for the recovery of cleanup costs against a person who contributed to the contamination.

         [¶2] At issue in this appeal is the meaning of a related statute, Indiana Code section 34-11-2-11.5, which took effect in 2011 and provides that the plaintiff in an ELA can seek to recover "[t]he costs incurred not more than ten (10) years before the date the action is brought, even if the person or any other person also incurred costs more than ten (10) years before the date the action is brought." The City contends that this is a statute of limitation requiring that an ELA be filed within ten years of the incurrence of the cost(s) sought to be recovered and that its ELA was timely under this provision. The Foundry, on the other hand, argues that Section 34-11-2-11.5 is merely a cap on the damages recoverable in an ELA. According to the Foundry, an ELA is subject to the six-year limitation period established by Indiana Code section 34-11-2-7(3) for "[a]ctions for injuries to property other than personal property," and the City's ELA is untimely under this provision. The trial court, in an excellent, 23-page order, agreed with the City that Section 34-11-2-11.5 is a statute of limitation and that its ELA was timely filed. We affirm the trial court in this and all other respects.

         Facts and Procedural History

         [¶3] The site at issue is located at 318 S. Elkhart Avenue in Elkhart. Beginning in the early 1900s, the Foundry operated an iron foundry on the site. The Foundry went out of business in 2004. In 2007, the Foundry voluntarily dissolved as an Indiana corporation, and a subsidiary of one of the Foundry's creditors took ownership of the site through a court-appointed receiver. The same year, the City began looking into purchasing the site and learned that it was contaminated. (The record reflects some uncertainty as to when various city agencies learned about the contamination, but for purposes of this appeal the parties proceed as though the City learned in 2007.) In 2010, the City purchased the site for $1, 000, 000 and began remediation work.

         [¶4] In February 2016, the City filed suit against the Foundry. The City alleged that the Foundry caused the contamination and asserted: (1) an ELA under Indiana Code section 13-30-9-2; (2) claims under Indiana Code chapter 13-25-4, which the parties refer to as "mini-CERCLA" because of its relationship to the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675; and (3) a nuisance claim. The Foundry filed a motion for summary judgment on all the City's claims. After a hearing, the trial court granted the Foundry's motion as to the City's mini-CERCLA and nuisance claims but denied it as to the ELA.

         [¶5] The Foundry now appeals the denial of its motion as to the ELA, and the City cross-appeals the grant of the motion on its other claims.

         Discussion and Decision

         [¶6] We review motions for summary judgment de novo. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

         I. ELA

         [¶7] The Foundry contends that the trial court should have granted it summary judgment on the City's ELA. The filing of an ELA is allowed by Indiana Code section 13-30-9-2, which provides:

A person may, regardless of whether the person caused or contributed to the release of a hazardous substance or petroleum into the surface or subsurface soil or groundwater that poses a risk to human health and the environment, bring an environmental legal action against a person that caused or contributed to the release to recover reasonable costs of a removal or remedial action involving the hazardous substances or petroleum.

         Our Supreme Court has explained that the "overall purpose" of the legislation that authorized ELAs (Public Law 59-1997) was the rescue and redevelopment of "brownfields"-inactive or underused parcels of industrial or commercial real estate that are, or are perceived to be, contaminated. Cooper Indus., LLC v. ...


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