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. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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