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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. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

  2. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

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  4. 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

  5. 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)

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