ILNews

Court overturns breach-of-contract ruling

Jennifer Nelson
January 1, 2007
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The Indiana Court of Appeals reversed a Marion Superior Court decision granting partial summary judgment in favor of the defendant on an issue of breach of contract, ruling a state agency couldn't approve a cleanup that didn't comply to federal standards.

In Indiana Department of Environmental Management v. Raybestos Products Co., No. 49A02-0609-CV-782, IDEM appealed the trial court's grant of partial summary judgment to Raybestos on the issue of a breeched agreed order and a judgment of more than $16 million to Raybestos after a bench trial.

Raybestos - which makes car brakes and clutches - is located next to Shelly Ditch, an open earthen drain pool that empties into Sugar Creek. IDEM tested the water in Shelly Ditch in 1995 and found polychlorinated biphenyls (PCBs) in the water downstream from the plant. IDEM sent Raybestos a notice of potential liability, and the two parties entered into an "agreed order" in which Raybestos would prepare a risk assessment subject to the approval of IDEM. IDEM approved a plan submitted by Raybestos that would clean the water to contain no more than 238 parts per million of PCB in certain "hot spots."

Following personnel changes, IDEM decided to disapprove the cleanup proposal, fearing it would set a bad precedent, and withdrew its approval of the risk assessment.

An administrative law judge reviewed IDEM's actions and determined Raybestos waived its right to seek review based upon the terms of the agreed order. Raybestos sought judicial review of the administrative law judge's ruling. The Marion Circuit judge determined Raybestos did not waive its right and IDEM had no authority to withdraw its approval; the judge order IDEM to re-approve the risk assessment and cleanup. Instead of appealing, IDEM contacted the Environmental Protection Agency to get involved. The EPA issued a unilateral administrative order requiring Raybestos to clean up the PCB levels to no greater than 10 parts per million, as is required by federal regulation.

Raybestos filed a complaint in Marion Superior Court of breach of contract against IDEM and sought damages for the more costly EPA-ordered cleanup. The trial court granted partial summary judgment to Raybestos on the breach issue and entered judgment of more than $16 million in damages and attorney fees.

The Court of Appeals determined the 238 parts per million cleanup proposed by Raybestos and based on the approved risk assessment by IDEM did not meet applicable federal standards. In the agreement order between the two parties, it stated in cases of conflict in applicable laws, rules, or ordinances that the most stringent standard would apply - the 10 parts per million of PCB in the water. An agreement that would permit cleanup levels more than 20 times that of the applicable federal regulations would be contrary to public policy and Raybestos can't rely on that agreement to recover for any breach by IDEM, wrote Judge Paul Mathias.
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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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