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Library may go after contractors for cleanup costs outside building

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A diesel fuel leak in the basement of the main library branch in Fort Wayne spread to neighboring property, leading to more than $490,000 in cleanup bills. The Court of Appeals ruled Tuesday the library may pursue recovery against contractors it argues are responsible for the leak.

The appeals panel reversed a trial court grant of summary judgment in favor of defendants in Allen County Public Library v. Shambaugh & Son, L.P., Hamilton Hunter Builders, Inc., W.A. Sheets & Sons, Inc., and MSKTD & Associates, Inc., 02A04-1302-PL-78, and remanded for proceedings.

Judge Michael Barnes wrote for a unanimous panel that subrogation provisions in an American Institute of Architects’ construction project contract used in a 2004 library renovation project did not clear defendants from liability in this case, citing Midwestern Indemnity Company v. Systems Builders, Inc., 801 N.E.2d 661 (Ind. Ct. App. 2004), trans. denied.

“We held that the waiver of subrogation provision of the AIA standard contract — section 11.3.7, as here — applied even though construction had already been completed, and also that the waiver applied to negligence claims against the subcontractor,” Barnes wrote for the panel that also included Judges Terry Crone and Rudy R. Pyle III.

“Consistent with our holding in Midwestern, we conclude that the Library is not precluded by Section 11.3.7 of the standard AIA contract from seeking recovery for pollution cleanup costs for property contaminated by the Defendants’ allegedly faulty construction that is outside the scope of ‘the Work’ for which the Defendants were contracted to perform,” Barnes wrote. “Namely, the Defendants may be required to reimburse the Library for cleanup costs of the land outside of the library building itself. We reverse the grant of summary judgment to the Defendants and remand for further proceedings consistent with this opinion.”


 

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  1. Your article is a good intro the recent amendments to Fed.R.Civ.P. For a much longer - though not necessarily better -- summary, counsel might want to read THE CHIEF UMPIRE IS CHANGING THE STRIKE ZONE, which I co-authored and which was just published in the January issue of THE VERDICT (the monthly publication of the Indiana Trial Lawyers Association).

  2. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  3. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

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