Attorney for Appellant
Patricia Polis McCrory
Angela L. Hamm
Lisa Tuytschaevers
Harrison & Moberly, LLP
Indianapolis, IN
Attorneys for Appellee
Donald G. Orzeske
Andrew S. peacock
Goodin, Orzeske & Stevens, P.C.
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
BOURBON MINI-MART, INC. and
ROBERT E. WANEMACHER,
Appellants,
v.
GAST FUEL AND SERVICES, INC., and
JACK BOARDMAN, d/b/a BOARDMAN
CHEVROLET
Appellees
)
) Supreme Court No.
) 50S03-0106-CV-287
)
) Court of Appeals No.
) 50A03-9912-CV-476
)
)
)
)
)
APPEAL FROM THE MARSHALL CIRCUIT COURT
The Honorable Douglas B. Morton, Special Judge
Cause No. 50C01-9106-CP-107
ON PETITION TO TRANSFER
February 14, 2003
SULLIVAN, Justice.
Bourbon Mini-Mart seeks indemnification for and contribution to its
costs of cleaning up petroleum contamination from leaking underground
storage tanks from one of its suppliers and an automobile dealership.
Because Mini-Mart was found at least partially responsible for the
contamination in prior litigation, it is not entitled to indemnification.
However, Indiana's underground storage tank legislation authorizes Mini-
Mart to seek contribution from its supplier under the facts of this case.
Background
The principal actors in this decade-old environmental drama are:
Bourbon Mini-Mart, a gas station and convenience store, and its owner,
Robert Wanemacher (collectively, “Mini-Mart”); Gast Fuel and Services,
Inc., Mini-Mart’s sole supplier of gasoline and other petroleum products
(“Supplier”); Boardman Chevrolet, an automobile dealership near Mini-Mart
that stores gasoline, oil, and other chemicals removed from motor vehicles
in an underground storage tank (“Dealership”); the Workmans and the Duffs,
two families whose homes were adjacent to Mini-Mart (the “Homeowners”); and
the Indiana Department of Environmental management (“IDEM”). Mini-Mart
stored gasoline in underground storage tanks (“USTs”). In 1990, the
Homeowners complained to IDEM of fumes in their homes. After an
investigation, IDEM found that the land, groundwater, and homes adjacent to
Mini-Mart were contaminated with solvents including petroleum. Concluding
that the petroleum contamination originated from Mini-Mart, IDEM informed
Mini-Mart of the contamination and indicated that IDEM would clean up the
site and attempt to recover its costs from Mini-Mart unless Mini-Mart acted
on its own.
After Mini-Mart failed to initiate clean up of the contamination,
IDEM began to clean up the site. The case that is the subject of this
appeal began on June, 28, 1991, when IDEM sued Mini-Mart for reimbursement
for its remediation expenses. (We will refer to this case from time to
time in this opinion as the “IDEM Litigation” to distinguish it from the
“Homeowner Litigation” described below.) In December, 1997, Mini-Mart
filed a third party complaint against Supplier, and amended the complaint
in January, 1999, to add Dealership. The third party complaint alleged
that Supplier and Dealership caused the contamination and sought payment
from them for any sums that IDEM recovered from Mini-Mart for IDEM’s
remediation expenses.
During the time between the commencement of IDEM’s case against Mini-
Mart and the addition of Supplier and Dealership in Mini-Mart’s third party
complaints, the Homeowners sued Mini-Mart for nuisance, trespass, and
negligence alleging Mini-Mart caused the contamination (the “Homeowner
Litigation”). The Homeowner Litigation was a completely separate lawsuit
from the IDEM Litigation and Mini-Mart did not attempt any cross-claim
against the Supplier or Dealership in that case. The Homeowner Litigation
concluded in 1996 when a jury found Mini-Mart liable and awarded the
Homeowners $530,000.
The rulings in the IDEM Litigation that are the subject of this
appeal were issued in November, 1999, when the trial court granted summary
judgment in favor of Supplier and Dealership. In December, 2000, the Court
of Appeals affirmed in part and reversed in part. Commissioner, Ind. Dep’t
of Envtl. Mgt. v. Bourbon Mini-Mart, 741 N.E.2d 361 (Ind. Ct. App. 2000).
As to Supplier, the Court of Appeals found that summary judgment in its
favor was proper with respect to remediation costs incurred prior to July
1, 1991, but not after that date. Id. at 371-372. As to Dealership, the
Court of Appeals affirmed the grant of summary judgment in its favor. Id.
at 369. Both Mini-Mart and Supplier sought and this Court granted
transfer. Commissioner, Ind. Dep’t of Envtl. Mgt. v. Bourbon Mini-Mart,
753 N.E.2d 17 (Ind. 2001) (table).
Discussion
Briefly stated, this appeal requires that we decide whether Mini-Mart
is entitled to proceed to trial against either or both of Supplier and
Dealership based on Mini-Mart’s claims that they caused in whole or in part
the patroleum contamination described in Background, supra. The trial
court held that Mini-Mart’s claims against both Supplier and Dealership
were barred by application of the doctrine of collateral estoppel and by
the statute of limitations for damage to real property. It also held that
Mini-Mart’s claim against Dealership was additionally barred by application
of the doctrine of laches.
As mentioned in Background, supra, the Court of Appeals affirmed in
part and reversed in part.
First, it affirmed the trial court’s ruling that Mini-Mart’s claim
against Dealership was barred by application of the doctrine of collateral
estoppel.[1] Bourbon Mini-Mart, 741 N.E.2d at 369. On this issue, we
summarily affirm the opinion of the Court of Appeals pursuant to Indiana
Appellate Rule 58(A).[2]
Second, it reversed the trial court’s ruling that Mini-Mart’s claims
against Supplier were subject to the statute of limitations for damage to
real property, Ind. Code § 34-11-2-7. Bourbon Mini-Mart, 741 N.E.2d at 371-
72. On this issue, we also summarily affirm the opinion of the Court of
Appeals pursuant to Indiana Appellate Rule 58(A).
Third, it affirmed the trial court’s ruling that Mini-Mart’s claim
against Supplier with respect to remediation costs incurred prior to July
1, 1991, was barred by the statute of limitations, but held that Mini-
Mart’s claims against Supplier with respect to remediation costs incurred
after that date could proceed. Bourbon Mini-Mart, 741 N.E.2d at 369-71.
We conclude, however, that Mini-Mart may proceed against Supplier with
respect to remediation costs incurred both prior to July 1, 1991, and
after.
I
We mentioned in Background, supra, that Mini-Mart had been found in
the Homeowner Litigation to be liable for the petroleum contamination at
issue here. “Collateral estoppel or issue preclusion bars subsequent
litigation of an issue necessarily adjudicated in a former suit if the same
issue is presented in the subsequent suit.” See Shell Oil Company v.
Meyer, 705 N.E.2d 962, 968 (Ind. 1998). In the litigation between the
Homeowners and Mini-Mart, the jury found Mini-Mart liable for negligence,
nuisance, and trespass.[3] While Mini-Mart argues to the contrary, we
agree with the trial court[4] and the Court of Appeals[5] that the jury’s
determination established that Mini-Mart was not without fault with respect
to the petroleum contamination and that collateral estoppel bars re-
litigation of that issue in this case.
As noted briefly in footnote 2, supra, Mini-Mart sought recovery from
Supplier on two separate theories – indemnification and statutory
contribution. The indemnification claim seeks payment from Supplier on the
basis that the petroleum contamination at was the sole fault of Supplier
and others, i.e., Mini-Mart itself was without fault. See Third-Party
Pl.’s Am. Third-Party Compl. ¶ 9, R. at 690-91. Indeed, Indiana law
provides that in an action for indemnification, the party seeking
indemnification will only prevail if it is without fault. Indianapolis
Power & Light Co. v. Brad Snodgrass, Inc., 578 N.E.2d 669, 671 (Ind. 1991).
For Mini-Mart to avoid summary judgment on its indemnification claim,
there would need to be a genuine issue of material fact that it was not
liable for any of the petroleum contamination. We agree with the trial
court and Court of Appeals that Mini-Mart cannot make such a showing
because its liability for at least some contamination was established in
the Homeowner Litigation. Subsequent re-litigation of the issue is barred
by collateral estoppel.
However, collateral estoppel does not dispose of Mini-Mart’s
statutory contribution claim against Supplier. Under applicable
environmental statutes to be discussed in detail infra, a party held liable
for environmental contamination can seek contribution from others partially
liable for the same contamination in certain circumstances. We agree with
the Court of Appeals and Mini-Mart that the verdict in the Homeowner
Litigation, while establishing for purposes of collateral estoppel that
Mini-Mart was not without fault with respect to the petroleum
contamination, did not establish that Mini-Mart was solely responsible
therefor.
While collateral estoppel does not bar Mini-Mart from seeking
contribution from Supplier, it remains to be seen whether applicable law
permits it to do so. It is to that question we now turn.[6]
II
A
Indiana’s UST laws are modeled after the federal Comprehensive
Environmental Response Compensation and Liability Act (“CERCLA”), 42 U.S.C.
§ 9601 to § 9675. Federal CERCLA law is directed at the cleanup of certain
hazardous substances but excludes petroleum. To deal with the cleanup of
petroleum, Indiana’s Legislature enacted UST laws to provide for the
regulation of underground storage tanks and the prevention and remediation
of pollution from the tanks. As our Court has previously noted, the
provisions of Indiana’s UST laws are similar to corresponding provisions of
federal CERCLA law, see Shell Oil Co. v. Meyer, 705 N.E.2d 962, 967 (Ind.
1998), and they follow the same remedial principles. See Western Ohio
Pizza, Inc. v. Clark Oil & Refining Corp., 704 N.E.2d 1086, 1090 (Ind. Ct.
App. 1999), transfer denied, 714 N.E.2d 176 (table); The Pantry, Inc. v.
Stop-N-Go Foods, Inc., 777 F.Supp. 713, 720 (S.D. Ind. 1991).
CERCLA authorizes the federal government to clean up hazardous
substances and then seek reimbursement from responsible parties. 42 U.S.C.
§ 9607. This section of CERCLA also provides certain defenses that bar the
government from seeking reimbursement: “There shall be no liability ...
for a person ... who can establish by a preponderance of the evidence that
the release or threat of release of a hazardous substance and the damages
resulting therefrom were caused solely by: (1) an act of God; (2) an act
of war; (3) an act or omission of a third party .…” 42 U.S.C. § 9607(b).
The remedial section of Indiana’s UST laws also encourages cleanup of
contaminated sites by authorizing the State to seek reimbursement for its
clean-up costs. Similar to the federal CERCLA statute, Indiana’s UST
statute exempts certain parties from liability. At issue in this appeal is
which of two versions of Indiana’s statute governs the IDEM Litigation.
As originally enacted effective April 16, 1987, Ind. Code § 13-7-20-21
stated:
(a) Except where an owner or operator can prove that a release
from an underground storage tank was caused solely by: (1) an act of
God; (2) an act of war; (3) negligence on the part of the state or the
United States government; (4) an act or omission of a third party; or
(5) any combination of the causes set forth in subdivisions (1)
through (4); the owner or operator of an underground storage tank is
liable to the state for the actual costs of any corrective action.…
(b) Notwithstanding subsection (a)(4), if the owner or operator
of an underground storage tank alleges that a release from the tank
was caused solely by an act or omission of a third party, the owner or
operator shall pay to the state the amount of the costs described in
subsection (a). The owner or operator is entitled by subrogation to
all rights of the state to recover from the third party the amount of
the costs described in subsection (a) and paid to the state or
incurred by the owner or operator in an action brought in the circuit
or superior court of the county in which the release occurred.
Ind. Code § 13-7-20-21(b) (1988)[7] (emphases added). We will refer to
this provision as the “Original Statute.” Under it, the State was
authorized to clean up a contaminated site and then obtain reimbursement
for the remediation costs. And it provided a subrogation right to an owner
or operator of a contaminated site that could prove that the contamination
was caused solely by another party. An owner or operator not at fault
would still be required to reimburse the State but could then seek
reimbursement from the responsible third party. This subrogation right,
however, was only available to owners and operators that could prove that
the contamination was caused solely by the act or omission of a third
party.
As noted supra, the IDEM Litigation was commenced by IDEM filing suit
against Mini-Mart on June 28, 1991. Three days later, on July 1, 1991,
Ind. Acts 129, § 8, took effect. It amended the Original Statute to read
as follows:
(a) Except where an owner or operator can prove that a release
from an underground storage tank was caused solely by: (1) an act of
God; (2) an act of war; (3) negligence on the part of the state or the
United States government; or (4) any combination of the causes set
forth in subdivisions (1) through (3); the owner or operator of an
underground storage tank is liable to the state for the actual costs
of any corrective action.…
(b) A person who: (1) pays to the state the costs described
under subsection (a); or (2) undertakes corrective action resulting
from a release from an underground storage tank, regardless of whether
the corrective action is undertaken voluntarily or under an order
issued under section 19 or 26 of this chapter; shall receive a
contribution from a person who owned or operated the underground
storage tank at the time the release occurred. ...
Ind. Code § 13-7-20-21 (1991). We will refer to this provision as the
“Amended Statute.”
We note two aspects of the Amended Statute. First, the amendment
allowed a party to clean up a site voluntarily and then seek reimbursement
for the cost of the corrective action. The original statute referred only
to the state taking corrective action or ordering the owner or operator to
do so.
Second, of central importance here, the amendment allowed a party that
reimburses the State or voluntarily undertakes corrective action to seek
contribution from any other owner or operator regardless of the latter’s
degree of fault. Under the Original Statute, an owner or operator forced
to reimburse the State for remediation costs was entitled to recover from a
third party only if the third party was solely liable for the
contamination. The crucial distinction is that under the Amended Statute,
an owner or operator that paid remediation costs to the State was no longer
required to be completely without fault in order to obtain reimbursement
from a third party, i.e., to receive reimbursement for response costs paid,
the law no longer required the contamination be caused solely by a third
party.
B
This case presents two issues regarding the retroactive application
of Indiana’s UST laws. First, do the remedial provisions of Indiana’s UST
laws in general and the Amended Statute in particular apply to
contamination that occurred prior to its enactment? Second, is a party
such as Mini-Mart entitled to use the contribution provisions of the
Amended Statute to recover from third parties clean-up costs that were
incurred prior to the amendment?
B-1
The general rule is that unless there are strong and compelling
reasons, statutes will not be applied retroactively. Martin v. State, 774
N.E.2d 43, 44 (Ind. 2002) (citing Metro Holding Co. v. Mitchell, 589 N.E.2d
217, 219 (Ind. 1992)); Indiana Dep’t of Envtl. Mgmt. v. Medical Disposal
Serv., Inc., 729 N.E.2d 577, 581 (Ind. 2000); Chadwick v. City of
Crawfordsville, 216 Ind. 399, 413-14, 24 N.E.2d 937, 944 (1940). An
exception to this general rule exists for remedial statutes, i.e. statutes
intended to cure a defect or mischief that existed in a prior statute.
Martin, 774 N.E.2d at 44 (citing Bryarly v. State, 232 Ind. 47, 111 N.E.2d
277, 278-79 (1953); Ind. Dep't of State Revenue v. Estate of Riggs, 735
N.E.2d 340, 344 (Ind. Tax Ct. 2000). Ultimately, however, whether or not a
statute applies retroactively depends on the Legislature’s intent. That
is, when a remedial statute is involved, a court must construe it to
"effect the evident purpose for which it was enacted[.]" Martin, 774
N.E.2d at 44 (citing Connecticut Mut. Life Ins. Co. v. Talbot, 113 Ind.
373, 14 N.E. 586, 589 (1887)). Accordingly, remedial statutes will be
applied retroactively to carry out their legislative purpose unless to do
so violates a vested right or constitutional guaranty. Martin, 774 N.E.2d
at 44.
As we have stated, the corrective action provisions of Indiana’s UST
laws are similar to corresponding provisions of federal CERCLA law and
follow the same remedial principles. It is well established that CERCLA
applies to releases that occurred prior to its enactment. Even though
there is no language in CERCLA that explicitly provides that it operates
retrospectively, it has been understood to apply to emissions of hazardous
waste that predated CERCLA’s enactment. See United States v. Northeastern
Pharm. 7 Chem. Co., Inc., 810 F.2d 726, 732-33 (8th Cir. 1986) (“Although
CERCLA does not expressly provide for retroactivity, it is manifestly clear
that Congress intended CERCLA to have retroactive effect.”); The Pantry,
777 F.Supp. at 720 (“Although CERCLA provisions contain no explicit
statement providing retroactive application, it is clearly the rule in
federal courts that congress intended CERCLA to apply retroactively.”).
The Eighth Circuit found CERCLA’s “statutory scheme itself [to be]
overwhelmingly remedial and retroactive.” Northeastern Pharm. 7 Chem. Co.,
Inc., 810 F.2d at 733.
Following this precedent, the U.S. District Court for the Southern
District of Indiana and the Indiana Court of Appeals have both held that
Indiana’s UST statute, including the Amended Statute, should be applied
retroactively to contamination that occurred prior to enactment. See The
Pantry, 777 F.Supp. at 721 (“Whether the clean-up is initiated by the state
or a private party, the UST laws apply retroactively to releases occurring
prior to the effective date of the statute or the amendment,
respectively.”); Bourbon Mini-Mart, 741 N.E.2d at 370. We agree.
B-2
The question that remains is whether the Amended Statute also applies
to pre-enactment response costs. That is, may Mini Mart seek contribution
from Supplier for payments Mini-Mart made to IDEM for cleanup where those
payments were made prior to the enactment of the amendment? The Court of
Appeals held that Mini-Mart could not. In its decision, the court relied
on The Pantry, in which the federal court held that the Legislature
intended to limit recovery to response costs that were incurred after its
enactment.
The federal court reasoned that the purpose of the Amended Statute
“was to encourage private parties to remediate environmental hazards
voluntarily.” It found that this limited purpose was not served by
construing the Amended Statute to allow recovery of pre-enactment response
costs. The Pantry, 777 F.Supp at 721. “Instead of promoting environmental
clean-up,” the court reasoned that “such a construction would merely
provide a windfall recovery for parties who voluntarily effected
remediation prior to the amendment.” Id.
In summary, the federal court in The Pantry and the Court of Appeals
in this case both held that the Amended Statute applies retroactively for
the purpose of allowing an owner or organizer to obtain contribution from
responsible owners and operators for the costs of remediating pre-enactment
environmental contamination so long as those costs were not incurred prior
to the effective date of the Amended Statute. As such, the Court of
Appeals allowed Mini-Mart to seek contribution from supplier for the cost
of remediating the petroleum contamination, even contamination that
occurred prior to the effective date of the Amended Statute. However, the
Court of Appeals did not permit Mini-Mart to seek contribution from
supplier for such cost incurred prior to the effective date of the Amended
Statute.
We disagree with the federal court and the Court of Appeals and hold
instead that the Legislature intended that an owner or operator be able to
seek contribution from responsible owners and operators for the costs of
remediation incurred prior to the effective date of the Amended Statute.
The Original Statute contained no explicit reference to voluntary
remediation on the part of an owner or operator of an UST. The Original
Statute seems to contemplate that either IDEM would take “corrective
action” itself or order the owner or operator to do so. See Ind. Code § 13-
7-20-21(a) (1988). As discussed supra, one of the changes brought about by
the Amended Statute was an explicit recognition than an owner or operator
might voluntarily undertaken corrective action. See Ind. Code § 13-7-20-
21(b)(2) (1991). Finding that the Legislature’s sole intent in adopting
the Amended Statute was to encourage voluntary corrective action, the
federal court in The Pantry case found no support for the proposition that
the Legislature also intended that an owner or operator be entitled to
expanded (i.e., retroactive) recovery rights. See The Pantry, 777 F.Supp
at 721.
There is no doubt that the Legislature intended to encourage owners
and operators voluntarily to remediate contaminated sites. And we find,
for three principal reasons, that the Legislature also intended the
contribution provision to apply to pre-enactment response costs.
First, the language of the Amended Statute indicates that the
Legislature intended to do more than just encourage voluntary remediation.
The Original Statute allowed an owner or operator of an UST to recover from
third parties amounts paid to the state or that the owner or operator
itself incurred for corrective action where the environmental contamination
“was caused solely by an act or omission of [the] third party.” The
Amended Statute allowed an owner or operator of an UST to recover from
third parties amounts paid to the state or that the owner or operator
itself incurred for corrective action (whether the corrective action was
ordered by IDEM or undertaken voluntarily) from any “person who owned or
operated the underground storage tank at the time the release occurred,”
not just those solely responsible for the contamination. Thus, while the
Amended Statute expanded the class of corrective action for which owners
and operators could seek recovery to include the costs of voluntary
remediation, it also expanded the class of third persons from whom recovery
could be sought.
If the sole purpose of the Amended Statute was to encourage voluntary
action, it would have been unnecessary there would have been no reason for
the Legislature to expand the class of third persons from whom recovery
could be sought. Nevertheless, the Legislature expanded the class of
eliminated the limitation to those solely responsible for the contamination
from those third persons from whom recovery could be sought from those
solely responsible for the contamination to include and allowed instead
recovery from any other person who owned or operated an UST at the time the
release occurred. While this by itself does not demonstrate that the
Legislature meant for recovery to be retroactive, we believe that it shows
it does demonstrate that the Legislature intended more than simply to
encourage voluntary remediation.
Second, the Legislature enacted the Amended Statute’s contribution
provision against the backdrop of the general retrospective application of
federal CERCLA law and Indiana’s UST laws. As previously discussed, the
federal CERCLA and Indiana’s UST laws have generally been held to reach
back into the past to address contamination by responsible parties. The
remedial powers of CERCLA have been understood to be broad, and the statute
is generally said to embody principles of equity. See United States v.
Alcan Aluminum Corp., 990 F2d 711, 724 (2nd Cir. 1993) (citing O’Neil v.
Picillo, 883 F2d 176 (1st Cir. 1989)); United States v. Conservation Chem.
Co., 628 F. Supp. 391, 401-02 (W.D. Mo. 1985) (“...the Court reads the
legislative history of CERCLA to impose upon the judiciary an obligation to
apportion responsibility in a fair and equitable manner.”). We believe it
more consistent with this general retroactive philosophy to hold that the
Amended Statute applies to both pre-enactment environmental contamination
and pre-enactment incurred remediation costs rather than to only the
former.
Third, because Indiana’s UST laws follow the general scheme of
federal CERCLA laws, it is useful to consider contribution in the federal
context. The treatment of contribution in federal CERCLA legislation also
suggests that pre-enactment response costs are intended to fall within the
reach of the statute. The original CERCLA legislation, like our original
UST laws, did not mention “contribution.” Federal courts, however, found a
right to contribution in CERLA. In 1985, the District Court for the
Western District of Missouri applied principles of contribution to CERCLA
even though the legislation did not mention contribution as a possible
remedy. See Conservation Chem. Co., 628 F.Supp 391. In that CERCLA
action, the District Court employed contribution as it was applied in the
1977 Uniform Comparative Fault Act. It stated, “contribution is a remedy
that developed in equity and ... the Court reads the legislative history of
CERCLA to impose upon the judiciary an obligation to apportion
responsibility in a fair and equitable manner.” Conservation Chem. Co.,
628 F.Supp at 401.
In 1986, Congress amended CERCLA, explicitly allowing for
contribution. 42 U.S.C. 9613(f)(1) states: “Any person may seek
contribution from any other person who is liable or potentially liable .…
In resolving contribution claims, the court may allocate response costs
among liable parties using such equitable factors as the court determines
are appropriate.” In enacting the amendment, Congress acknowledged that
contribution had already been a recognized remedy under CERCLA:
It has been held that, when joint and several liability is imposed
under section 106 or 107 of the Act, a concomitant right of
contribution exists under CERCLA. ... This section clarifies and
confirms the right of a person held jointly and severally liable under
CERCLA to seek contribution from other potentially liable parties,
when the person believes that it has assumed a share of the cleanup or
cost that may be greater than its equitable share under the
circumstances.
See H.R.Rep no. 99-253(I), 99th Cong., 2d Sess. 79, reprinted in 1986
U.S.C.C.A.N. 2835, 2861 (citations omitted) (emphasis added).
In a case similar to ours, the Second Circuit Court of Appeals
considered contribution as it applied before and after the 1986 amendment
to CERCLA. In United States v. Alcan Aluminum Corp., 990 F.2d 711 (2nd
Cir. 1993), the Court considered whether to apply contribution, as provided
in the amendment, to pre-enactment response costs. The Court decided that
it was not necessary to apply the 1986 amendment in order to allow for
contribution. Instead the court found that contribution was a valid remedy
under CERCLA even prior to 1986. Alcan Aluminum Corp., 990 F.2d at 724.
We acknowledge that reasoning used in Alcan does not apply directly
to the present case as this court has never considered whether contribution
was a valid remedy under Indiana’s UST laws prior to 1991. The Amended
Statute, however, moved Indiana’s UST laws even closer to federal CERCLA
law. Indiana’s amended UST statute, in similar language to 42 U.S.C.
9613(f)(1), states, “In resolving a contribution claim, a court may
allocate the cost of a corrective action among the parties to the action
using equitable factors that the court determines are appropriate.” Ind.
Code § 13-7-20-21 (1991). We believe that the Legislature’s intent here is
best achieved by allowing recovery of pre-enactment costs.
Given the equitable principles of CERCLA, the legislature’s use of
contribution as a remedy, and the general retrospective nature of CERCLA,
we find that the Legislature intended the amendment to apply to pre-
enactment incurred response costs.
We hold that Mini-Mart is entitled to seek contribution under the
Amended Statute from Supplier for Supplier’s proportionate share, if any,
of the costs of corrective action paid or undertaken in connection with the
petroleum contamination, irrespective of the date on which such costs were
incurred. As such, Supplier was not entitled to summary judgment on this
issue.
Conclusion
Having previously granted transfer pursuant to Ind. Appellate Rule
58(A), we summarily affirm the portions of the opinion of the Court of
Appeals affirming the trial court’s summary judgment in favor of the
Dealership and holding Ind. Code § 34-11-1-2 to be the applicable statute
of limitations in this case. We affirm the trial court’s summary judgment
in favor of Dealership, reverse its summary judgment in favor of Supplier,
and remand to the trial court for further proceedings.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Having affirmed the trial court’s summary judgment in favor of
Dealership on the basis of collateral estoppel, it was unnecessary to and
the Court of Appeals did not address whether Dealership was entitled to
summary judgment by application of the statute of limitations for damage to
real property or doctrine of laches.
[2] We note in this regard that Dealership’s position differs from that of
Supplier in that Mini-Mart sought both indemnification and statutory
contribution from Supplier but only indemnification from Dealership.
Compare Third-Party Pl.’s Am. Third-Party Compl. ¶¶ 9 & 10, R. at 690-91,
with ¶ 15, R. at 691. For the reason discussed infra, collateral estoppel
bars Mini-Mart from seeking indemnification from either Supplier or
Dealership.
[3] Homeowners also named Supplier as a defendant, but Supplier settled
out. Mini-Mart asserted no cross-claims or non-party defense claims.
[4] "We don't know exactly what the jury found in that case because the
verdict was a general verdict. They had to have found, however, that the
gasoline that was causing their problems came from the Mini-Mart. Because
of that, the Court believes that this issue can be the subject of [a]
collateral estoppel ruling. ... Litigating it again, under all of the
circumstances described here, simply doesn't make sense." Order Upon
Pending Mots. Including Summ. J. Mots. (R. at 1753; 1755.)
[5] "In the Homeowners suit, Mini-Mart [was] sued for negligence, trespass,
and nuisance because of the petroleum and vapors found in and around the
Homeowners' homes. ... jury found Mini-Mart ... liable for the
contamination of the Homeowners' property. Under the doctrine of
collateral estoppel, Mini-Mart [is] precluded from asserting that [it was]
without fault in the contamination." 741 N.E.2d at 369. Mini-Mart does
not suggest that any theory of no-fault liability was asserted against it.
[6] The question here is unusual because a separate action for contribution
has become rare. The Comparative Fault Act provides that damages are to be
apportioned among responsible parties and the allocation of damages also
accounts for nonparties where a defendant successfully asserts a nonparty
defense. See I.C. § 34-51-2-14 (1998); Owens Corning v. Cobb, 754 N.E.2d
905, 911 (Ind. 2001). The issue of each party’s liability is therefore
determined in one action. Here, however, a special environmental statute,
Ind. Code § 13-7-20-21, provides a right to a separate contribution action.
[7] These subsections were first enacted in 1987. 1987 Ind, Acts 172 § 1,
eff. Apr. 16, 1987. They were amended the following year to read as set
forth here. 1988 Acts 69, § 15, eff. Apr. 1, 1988. The 1988 amendments
were not substantive for purposes of this litigation.