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7th Circuit reinstates suit to recoup environmental cleanup costs

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Finding the District Court erred in dismissing several claims made by the trustees of a fund to oversee cleanup of a contaminated site, the 7th Circuit Court of Appeals is allowing the lawsuit to proceed.

Norman W. Bernstein and other trustees of the Third Site Trust Fund sued the former owners of now-closed Enviro-Chem, their corporate entities and their insurers to recoup cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act, the Indiana Environmental Legal Action Statute, and more. None of the parties being sued have paid into the trust set up to finance and oversee cleanup, despite an alleged obligation to do so.

In Norman W. Bernstein, et al. v. Patricia A. Bankert, et al. and Auto Owners Mutual Insurance Co., 11-1501, 11-1523,  Chief Judge Richard Young in the Southern District of Indiana dismissed all claims at the summary judgment stage: Count I, a CERCLA cost-recovery action pursuant to 42 U.S.C. Section 9607(a); Count II, seeking a declaratory judgment under CERCLA of the defendants’ joint and several liability; Count III, a cost-recovery action under the ELA, codified at I.C. 13-30-9-2; Count IV, negligence; Count V, nuisance; and Count VII, seeking a declaratory judgment of coverage against the insurers. The complaint did not include a Count VI. In addition, Auto Owners filed a conditional cross-appeal to try to preserve a favorable outcome in the event of a reversal of the court’s final judgment.

In the 66-page opinion authored by U.S. District Judge Jon E. DeGuilio, of the Northern District of Indiana, sitting by designation, the 7th Circuit reversed the dismissal of counts I, II, III and VII.

“In Count I, the Trustees have made a timely CERCLA claim, under 42 U.S.C. § 9607(a)(4)(B), to recover costs incurred pursuant to the 2002 AOC. The Trustees’ Count II “companion claim” for a declaratory judgment of CERCLA liability is therefore also reinstated. We find that the Indiana ELA claim contained in Count III is timely, and that the declaratory judgment claim contained in Count VII is not moot,” DeGuilio wrote.

“The district court committed no abuse of discretion in its handling of the summary judgment briefing process. Finally, we affirm the district court’s denial of Auto Owners’ motion for summary judgment on preclusion grounds. The trustees’ suit is reinstated and remanded for further proceedings consistent with this opinion.”

 

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  1. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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