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COA: negligence claim should go to trial

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The Marion Superior Court was wrong to grant summary judgment for a company in a home builder’s claims of negligence following the discovery of contaminants on lots in a subdivision, the Indiana Court of Appeals ruled.

KB Home Indiana filed suit against Rockville TBD Corp. for damages for negligence, nuisance, and trespass after KB discovered Rockville’s plant years earlier had discharged pollutants into the land that subsequently became a subdivision.

The land used to build the subdivision was farmland owned by George and Patricia Kopetsky. They purchased land next to the predecessor of Rockville, which manufactured airplane parts. The company used chemical solvents, including trichloroethylene, which eventually leached into the ground and surrounding farmland. Use of TCE ended sometime in 1993.

The Kopetskys sold some of their land to Dura Builder to create the Cedar Park residential subdivision. Neither party did an environmental or chemical assessment of the land at that time. In 2001, George Kopetsky learned of the contamination, but didn’t tell Dura or KB, which purchased Dura in 2004, about contamination. After KB learned of the contamination in 2005, it stopped building homes on the land. It then filed its suit in 2007 against Rockville, Kopetsky, and others.

The trial court granted summary judgment to Rockville on all of KB’s claims.

In KB Home Indiana Inc. v. Rockville TBD Corp., No. 49A02-0909-CV-881, the Court of Appeals concluded that the trial court erred in finding the economic loss doctrine precludes KB from pursuing its negligence claim.

Under the economic loss doctrine, a contract is the sole remedy for the failure of a product or service to perform as expected, wrote Chief Judge John Baker. If the plaintiff isn’t seeking damages involving the benefit of the bargain or other matters governed by contract, the economic loss doctrine does not bar a negligence action.

KB didn’t have a contract with Rockville to buy the property, nor did it assert any product liability or comparable claim. Koptesky’s breach of warrant that the land was free of contaminants doesn’t absolve Rockville of responsibility for its negligent conduct that may have caused the contamination, wrote the chief judge.

The appellate court upheld summary judgment for Rockville on KB’s claims of nuisance and trespass. Rockville’s contamination ended in 1993 and it the sold property to a subsequent buyer. Under these circumstance, KB didn’t show that a nuisance existed or was ongoing that could be abated or enjoined. KB also failed to show a departure from the “long-established principle” that a party must possess the land at the time of the activity that causes the alleged trespass, wrote Chief Judge Baker.

The Court of Appeals remanded the cause for trial on KB’s negligence claim.
 

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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