The Indiana Court of Appeals affirmed on rehearing a decision that the Allen County Public Library could pursue damages against contractors resulting from a diesel spill during a building project. A panel rejected arguments from defendants that it said violated a “cardinal rule” because they were raised for the first time on rehearing.
Judge Michael Barnes wrote for the panel 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, that reaffirmed its October ruling. The panel initially ruled that the library could pursue damages of more than $490,000 to property outside the library project.
Barnes wrote that defendants sought to argue for the first time on rehearing that no property outside the project had been contaminated and that caselaw upon which the defense argued its case was wrongly decided. He wrote that the issue of pollution outside the site could be litigated on remand, but the library is not barred by a subrogation clause from pursuing damages caused by contamination outside the project.