Hartford Fire Ins. v. Pure Air On Lake Ltd.

Citation859 F. Supp. 1189
Decision Date09 August 1994
Docket NumberNo. 2:93-CV-46.,2:93-CV-46.
PartiesHARTFORD FIRE INSURANCE COMPANY, a Connecticut Corporation, individually and as a representative class member of Industrial Risk Insurers, an unincorporated association, et al., Plaintiffs, v. PURE AIR ON THE LAKE LIMITED PARTNERSHIP, a Delaware limited partnership of Air Products and Chemicals, Inc., a Delaware corporation, et al., Defendants.
CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana

COPYRIGHT MATERIAL OMITTED

Terrance L. Smith, Smith and Debonis, East Chicago, IN, James J. Knibbs, Thomas A. McDonald, Celeste A. Hill, Clausen Miller Gorman Caffrey and Witous, Chicago, IL, Kevin K. McQuillan, Clausen Miller Gorman Caffrey and Witous, Chicago, IL, for Hartford Fire Ins. Co.

James W. Riley, Jr., Laura S. Reed, Mary K. Reeder, Riley Bennett and Egloff, Indianapolis, IN, Mark E. Schmidtke, Hoeppner Wagner and Evans, Valparaiso, IN, for Pure Air on the Lake Ltd. Partnership, Pure Air.

Daniel W. Glavin, Melanie M. Dunajeski, Beckman Kelly and Smith, Hammond, IN, A. Stephens Clay, Roderick C. Dennehy, Jr., Kilpatrick and Cody, Atlanta, GA, William Long, Atlanta, GA, for United Engineers & Constructors, Inc. (Stearns Rogers Div.), United Engineers and Constructors, Inc. (Chicago Div.).

Paul B. Poracky, Spangler Jennings and Dougherty, P.C., Merrillville, IN, Leonard E. Eilbacher, Hunt Suedhoff Borror and Eilbacher, Fort Wayne, IN, Samuel J. Bernardi, Jr., Spangler Jennings and Dougherty, P.C., Valparaiso, IN, Joel J. Sprayregen, Clifford E. Yuknis, Eric A. Freeland, Shefsky and Froelich Ltd., Chicago, IL, for Hunter Corp.

Harold Abrahamson, Michael C. Adley, Abrahamson Reed and Adley, Hammond, IN, C. Roy Peterson, Richard F. Johnson, Kevin C. McCabe, Lord Bissell and Brook, Chicago, IL, for Thatcher Engineering Corp., Pile Dyne, Inc.

James W. Riley, Jr., Laura S. Reed, Riley Bennett and Egloff, Indianapolis, IN, for Pure Air on the Lake (I), Inc., (I), Pure Air on the Lake (II), Inc., (II), Pure Air on the Lake (III), Inc., (III), Pure Air on the Lake (IV), Inc., (IV), First Air Partners, L.P., Pure Air Holdings Corp., Air Products and Chemicals, Inc., Mitsubishi Heavy Industries America, Inc.

John W. Van Buskirk, Robert D. Maas, Richard B. Kaufman, Stark Doninger and Smith, Indianapolis, IN, for American Testing & Engineering Corp.

James H. Pankow, Jones Obenchain Ford Pankow and Lewis, South Bend, IN, Steven P. Handler, Stewart W. Karge, Samuel G. Harrod, McDermott Will and Emery, Chicago, IL, for Sargent & Lundy.

Peter C. Bomberger, Friedrich Bomberger Tweedle and Blackmun, P.C., Highland, IN, Mark E. Christensen, R. Kevin Belt, Christensen and Ehert, Chicago, IL, for Chicago Underwater, Inc.

Joseph Stalmack, Galvin Stalmack and Kirschner, Hammond, IN, Roger B. Harris, James K. Thurston, Altheimer and Gray, Chicago, IL, for Edward Gray Corp.

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on defendant Hunter Corporation's (hereinafter: "Hunter") Motion for Summary Judgment filed against plaintiffs, Hartford Fire Insurance Company and others (hereinafter: "Hartford Fire"). The Motion has been fully briefed and the court conducted a hearing on this matter on July 26, 1994. Therefore, the issue is ripe for decision. For the following reasons, Hunter's Motion for Summary Judgment is denied.

DISCUSSION
Standard for Summary Judgment

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). However, Rule 56(c) is not a requirement that the moving party negate his opponent's claim. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir. 1990). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A scintilla of evidence in support of the non-moving party's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252, 106 S.Ct. at 2512; In Re Matter of Wildman, 859 F.2d 553, 557 (7th Cir.1988); Klein v. Ryan, 847 F.2d 368, 374 (7th Cir.1988); Valentine v. Joliet Township High School District No. 204, 802 F.2d 981, 986 (7th Cir.1986). No genuine issue for trial exists "where the record as a whole could not lead a rational trier of fact to find for the nonmoving party." Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 322 (7th Cir.1992) (quoting Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)).

Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the "pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact, Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Goka v. Bobbitt, 862 F.2d 646, 649 (7th Cir.1988); Guenin v. Sendra Corp., 700 F.Supp. 973, 974 (N.D.Ind.1988); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983).

So that the district court may readily determine whether there are genuine issues of material fact, under Local Rule 56.1, the moving party is obligated to file with the court a "Statement of Material Facts" supported by appropriate citation to the record to which the moving party contends there is no genuine issue. In addition, the non-movant is obligated to file with the court a "Statement of Genuine Issues" supported by appropriate citation to the record all material facts to which the non-movant contends there exists a genuine issue necessary to be litigated. See, Waldridge v. American Hoechst Corp. et al., 24 F.3d 918 (7th Cir.1994). In ruling on a summary judgment motion the court accepts as true the non-moving party's evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 477 U.S. at 249-251, 106 S.Ct. at 2511. Furthermore, in determining the motion for summary judgment, the court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are controverted in the "Statement of Genuine Issues" filed in opposition to the motion. L.R. 56.1

Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue of fact, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th Cir.1988). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512. Finally, the court notes that, "it is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained" and in such cases summary judgment is appropriate. Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir.1983).

Factual background

This cause of action arises out of the collapse of two underground circulating water pipes on July 2, 1991, at Northern Indiana Public Service Company's (hereinafter: "NIPSCO") Bailly power generating station. As a result of the collapse of the pipes, NIPSCO's property insurers, plaintiffs, paid NIPSCO in excess of $47 million dollars for property damage NIPSCO sustained. There were no personal injuries due to the collapse of the pipes. Plaintiffs brought this action in order to recover sums they paid NIPSCO as its insurer from those third parties whose fault caused the collapse.

Prior to the date of the collapse, plaintiffs' subrogor, NIPSCO, entered into an agreement with Pure Air on the Lake Limited Partnership whereby Pure Air on the Lake Limited Partnership would construct a flue gas desulferization (hereinafter: "FGD") facility next to the Bailly station. In turn, Pure Air on the Lake Limited Partnership contracted with Pure Air, a joint venture comprised of Air Products and Chemicals, Inc. and Mitsubishi Heavy Industries America, Inc. to act as turnkey contractor for the design and construction of the FGD facility. Defendant Hunter contracted with defendant Air Products and Chemicals, Inc. for work on the FGD...

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