Estate of Williams v. Borgwarner Morse Tec Inc.
Citation | 110 N.E.3d 1148 |
Decision Date | 28 August 2018 |
Docket Number | Court of Appeals Case No. 49A02-1710-PL-2224 |
Parties | ESTATE OF Walter E. WILLIAMS, Appellant (Third-Party Plaintiff), v. BORGWARNER MORSE TEC INC., et al., Appellees (Third-Party Defendants). Chuck Markey, Markey's Audio Visual, Inc., and D & E Enterprises, Plaintiffs, v. George F. Kopetsky, Patricia A. Kopetsky, George F. Kopetsky Realty Corp., Walter E. Williams, Edward F. Frazier, John Bartkiewicz, Richard Clapper, and Ted Pollard, Defendants. |
Court | Court of Appeals of Indiana |
Attorneys for Appellant: Donn H. Wray, Glenn D. Bowman, Marc A. Menkveld, Stoll Keenon Ogden PLLC, Indianapolis, Indiana
Attorneys for Appellee, BorgWarner Morse Tec Inc.: Richard S. VanRheenen, Tabitha L. Balzer, Lewis Kappes, P.C., Indianapolis, Indiana
[1] The Estate of Walter E. Williams (the "Estate") appeals the trial court's entry of summary judgment in favor of BorgWarner Morse TEC, Inc. ("Morse TEC").1 The Estate raises one issue which we revise and restate as whether the court erred in entering summary judgment in favor of Morse TEC. We affirm.
[2] This case involves an Environmental Legal Action ("ELA") under Ind. Code §§ 13-30-9. In the 1960s, George Kopetsky constructed a building to house a laundromat and dry cleaning operation on property he owned at 2915 South Meridian Street, Indianapolis, Indiana (the "Site"). Kopetsky purchased coin-operated washing and dry cleaning machines and named the location Norge Laundry & Dry Cleaning Village ("Norge Village"). Kopetsky operated Norge Village until 1967 when he leased it to Edward Frazier, who operated it until September 29, 1969, when Williams purchased the Site and assumed Kopetsky's mortgage.
[3] Williams operated Norge Village until May 1, 1974. He leased the Site to others, including John Bartkiewicz and Richard Clapper, who continued to operate Norge Village pursuant to a lease agreement. At some point, Clapper withdrew from the lease arrangement. In 1981, Norge Village ceased operation at the Site and the machines were removed. On August 25, 1995, Williams sold the Site to D & E Enterprises.
[4] On July 12, 2006, Chuck Markey, Markey's Audio Visual, Inc., and D & E Enterprises, Inc., filed a complaint against Williams and others for environmental response costs, attorney fees, and damages under Ind. Code §§ 13-30-9 to recover the costs of remedial action involving hazardous substances released into the soil and groundwater. The complaint alleged that Markey was the owner of Markey's Audio Visual, Inc., and D & E Enterprises, Inc., and that D & E Enterprises, Inc., was the current owner of the Site.
[5] On April 30, 2008, Williams filed a third-party complaint against "Borg-Warner Morse TEC Corporation." Appellee's Appendix Volume 2 at 37. On March 25, 2010, Williams amended its complaint, naming the defendants as "BorgWarner Corporation," "Borg-Warner Corporation, as successor in interest to Norge Corporation," Morse TEC, and Burns International Services Company, LLC, ("Burns"). Id. at 44. The amended complaint stated in part:
[6] Morse TEC and Burns filed separate motions for summary judgment on Williams's amended third-party complaint.2
On August 28, 2013, the court granted Burns's motion, denied Morse TEC's motion, and found, with respect to Burns, that Williams lacked standing to assert a contract claim against Burns, that no corporate successor liability had been created "by the ELA that would transfer financial responsibilities from the Norge Division to Burns," and that there was no other basis for imposing successor liability on Burns. Appellant's Appendix Volume 2 at 71.
[7] With respect to Williams, the court found the costs incurred to date by him were "costs of removal and remedial action," he is a real party in interest to pursue his third-party ELA claim against Morse TEC, and that the fact that Williams's insurer, rather than Williams himself, paid the remedial and removal costs incurred to date does not diminish or destroy his standing to bring an ELA claim against Morse TEC. Id. at 72. In also concluding that an ELA defendant may bring a third-party ELA claim against other potentially responsible parties, the court stated:
Williams can maintain an ELA claim against Morse TEC, but there is still a genuine issue of material fact as to whether Morse TEC is liable. This Court concludes that Williams has properly asserted a third-party claim against Morse TEC, and Morse TEC potentially may be allocated its share of responsibility according to the purpose and plain language of the ELA.
[8] On January 9, 2017, Morse TEC filed a second motion for summary judgment.3 Its accompanying memorandum in support of the motion stated in relevant part:
[9] On April 3, 2017, Williams filed a memorandum in opposition to the second motion for summary judgment, which argued in relevant part that discovery to date showed that Morse TEC was liable "because the Norge dry cleaning system, as designed and described in Norge Operating Manuals, provided for the dry cleaning machine's water/PCE separator to be plumbed directly to drains." Id. at 180.
[10] On April 17, 2017, Morse TEC filed its reply and, on May 1, 2017, the court held a hearing. On August 23, 2017, the court granted Morse TEC's motion for summary judgment in an order which stated in relevant part:
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Davis v. Scott
...specific findings of fact and conclusions of law assist our review, they are not binding upon us." Est. of Williams v. BorgWarner Morse TEC Inc. , 110 N.E.3d 1148, 1154 (Ind. Ct. App. 2018). We may affirm on any basis supported by the designated evidence. Id.[10] Courts rarely resolve undue......