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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  2. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

  5. I have no doubt that the ADA and related laws provide that many disabilities must be addressed. The question, however, is "by whom?" Many people get dealt bad cards by life. Some are deaf. Some are blind. Some are crippled. Why is it the business of the state to "collectivize" these problems and to force those who are NOT so afflicted to pay for those who are? The fact that this litigant was a mere spectator and not a party is chilling. What happens when somebody who speaks only East Bazurkistanish wants a translator so that he can "understand" the proceedings in a case in which he has NO interest? Do I and all other taxpayers have to cough up? It would seem so. ADA should be amended to provide a simple rule: "Your handicap, YOUR problem". This would apply particularly to handicapped parking spaces, where it seems that if the "handicap" is an ingrown toenail, the government comes rushing in to assist the poor downtrodden victim. I would grant wounded vets (IED victims come to mind in particular) a pass on this.. but others? Nope.

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