ILNews

Court rules on environmental cleanup case

Jennifer Nelson
January 1, 2008
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The Indiana Supreme Court ruled yesterday that the statute of limitations on a claim for contribution toward cleanup costs doesn't begin until the owner is ordered to clean up the property, regardless of whether the owner should have known about the contamination earlier.

The issue in Richard U. Pflanz and Delores J. Pflanz v. Merrill Foster, individually, Merrill Foster d/b/a/ Friendly Foster's Service, and Sunoco Inc. (R&M),  No. 36S01-0710-CV-425, is when the 10-year statute of limitations began on a claim for contribution toward environmental cleanup costs.

Richard and Delores Pflanz bought a former service station from Merrill Foster, who told them there were underground storage tanks of petroleum, but they were not in use and were closed. The Pflanzes opened a tire shop, but later sold the business and leased the property to a third-party.

The Pflanzes discovered in 2001 the tanks remained open and were leaking petroleum and spent more than $100,000 in cleanup costs. They filed a complaint in December 2004 against Foster and Sunoco seeking a determination of liability relating to the environmental contamination, damages under theories of waste, negligence, and stigma, contribution for cleanup costs pursuant to the Underground Storage Tanks Act (USTA), and declaratory relief from future anticipated cleanup costs.

Foster moved to dismiss the claim on the grounds the complaint was barred by the statute of limitations; the trial court dismissed the claim as well as another filed by the Pflanzes on similar grounds.

The Indiana Court of Appeals affirmed, finding the Pflanzes should have tested the property for contamination once Indiana enacted the USTA in 1987 and amended it in 1991, so the statute of limitations began in 1991.

The Indiana Supreme Court decided the statute of limitations on the contribution claim didn't begin to accrue until after the Pflanzes were ordered to clean up the property. Parties who bring contribution claims must wait until the obligation to pay is incurred or otherwise the claim lacks the essential damage element, wrote Chief Justice Randall T. Shepard. As such, when IDEM ordered the Pflanzes to clean up the land in 2001, the claim was within the 10-year statute of limitation.

The statute of limitations of stigma damage claims cannot start until after the claimant has incurred real damage - diminution in property value despite cleanup because future buyers will worry about future cleanup costs. The claim for stigma damages also fell within the statute of limitations, wrote the chief justice.

On the Pflanzes waste and negligence claims, which are governed by a six-year statute of limitations, the Indiana Supreme Court remanded the issue for further examination to determine when the Pflanzes should have known about the environmental issues. The Pflanzes filed these claims, saying they were injured when they purchased the property because Foster fraudulently misrepresented the land; Foster argued the Pflanzes should have investigated the property after the adoption of the USTA legislation.

"We cannot accept the trial court's holding that, as a matter of law, the passage of the USTA automatically put landowners on notice that they should inspect and monitor any underground storage tanks on their property even if, taking the Pflanzes' allegations as true, the former property owners had assured them the tanks were closed and not in use," wrote Chief Justice Shepard.
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  1. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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