Thursday, December 20, 2012

Norman Bernstein v. Patricia Banker

Dec 19: In the U.S. Court of Appeals, Seventh Circuit, Case Nos. 11-1501 & 11-1523. Appealed from the United States District Court for the Southern District of Indiana, Indianapolis Division. The Appeals Court explains that this is the latest chapter in the story of the Environmental Chemical and Conservation Company (Enviro-Chem), a defunct Indiana corporation with an expensive environmental legacy. Enviro-Chem conducted waste-handling and disposal operations at three sites north of Zionsville, Indiana, until it closed its doors in the early 1980s, and it left considerable amounts of pollutants behind.
    The plaintiffs in this action are the trustees of a fund created to finance and oversee the cleanup project at one of those three sites. The defendants are the former owners of the site, their corporate entities (including Enviro-Chem), and their insurers, none of whom have paid into the trust despite an alleged obligation to do so. The plaintiffs sued to recover cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Indiana Environmental Legal Actions Statute (ELA), and more.
    The district court dismissed all claims at the summary judgment stage, and the plaintiffs appealed. In response, one of the insurance companies targeted by the plaintiffs filed a conditional cross-appeal, hoping to preserve a favorable outcome even in the event of a reversal of the district court's final judgment. The Appeals Court said, "Addressing both appeals, we reverse in part and affirm in part. The case is remanded for further proceedings on the reinstated claims."
    In conclusion, the Appeals Court rules, ". . .we reverse the district court's 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 [Administrative Order by Consent]. The Trustees' Count II 'companion claim' for a declaratory judgment of CERCLA liability is therefore also reinstated. We find that the Indiana ELA [Indiana Environmental Legal Actions Statute] claim contained in Count III is timely, and that the declaratory judgment claim contained in Count VII is not moot. 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."
    Access the complete opinion (click here). [#Remed, #CA7]
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