Terra-Products, Inc. v. Kraft General Foods, Inc.

• Decision Date: 20 June 1995
• Docket Number: INC,No. 54A01-9409-CV-313,TERRA-PRODUCT,54A01-9409-CV-313
• Citation: 653 N.E.2d 89
• Parties: , Appellant-Plaintiff, v. KRAFT GENERAL FOODS, INC. and Duracell International Inc., Successors to P.R. Mallory, Inc., Appellees-Defendants.
• Court: Indiana Appellate Court

Page 89

653 N.E.2d 89

TERRA-PRODUCTS, INC., Appellant-Plaintiff, v. KRAFT GENERAL FOODS, INC. and Duracell International Inc Successors to P.R. Mallory, Inc., Appellees-Defendants.

No. 54A01-9409-CV-313.

Court of Appeals of Indiana.

June 20, 1995.

Transfer Denied Oct. 25, 1995.

Gregory H. Miller, Wernle, Ristine & Ayers, Crawfordsville, for appellant.

Laurence A. McHugh, Joseph R. Fullenkamp, Kimberly D. Finlaw, Barnes & Thornburg, South Bend, for appellees.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Terra-Products, Inc. ("Terra") appeals from the trial court's grant of a motion for summary judgment filed by Kraft General Foods, Inc. and Duracell International, Inc., successors to P.R. Mallory, Inc. (collectively "Kraft"). Terra brought an action against Kraft in which it alleged damages resulting from PCB contamination of two tracts of land owned by Terra. Terra's complaint asserted claims under four theories: (1) strict liability, (2) negligence and negligence per se, (3) nuisance and (4) trespass. Kraft denied liability and asserted a counterclaim against Terra for unjust enrichment. Kraft moved for summary judgment on all counts of Terra's complaint and on its counterclaim. Terra filed a cross-motion for summary judgment on Kraft's counterclaim. The trial court granted both motions.

We affirm. ¹

ISSUE

Terra presents two issues on appeal. Because we conclude one issue is dispositive, we address only the following question: whether Terra has designated evidence which tends to establish that after remediation of PCB contamination, it incurred damages for a remaining loss in the fair market value of its property.

FACTS

Terra is an Indiana corporation that produces and sells liquid handling products for industry and agriculture. From the 1960's until June of 1992, Terra conducted business on a tract of land known as "Terra Site" in Montgomery County. Between 1957 and 1969, P.R. Mallory, Inc. had owned property adjacent to Terra Site, known as "Mallory Site," where Mallory operated a battery manufacturing facility. The batteries made by Mallory at that location contained polychlorinated biphenyls ("PCBs"). In 1969, the Mallory facility was destroyed by fire and was never rebuilt.

Sometime after 1969, P.R. Mallory was purchased by Kraft and renamed Duracell International, Inc. Terra then purchased Mallory Site from Kraft in 1975. More than ten years later, in June of 1986, the Indiana Department of Environmental Management ("IDEM") and the United States Environmental Protection Agency ("EPA") determined there was PCB contamination at Mallory Site which violated state and federal regulations. The EPA issued an administrative order to both Terra and Kraft, as Potentially Responsible Parties under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), and required them to implement a cleanup plan. Thereafter, Kraft agreed to be responsible for the cleanup and to pay for the entire cost of remediation.

In 1988, during the cleanup of Mallory Site, Kraft's contractor discovered that Terra Site was also contaminated by the migration of PCBs from Mallory Site. Kraft agreed to perform and pay for the cleanup of Terra Site as well. In June of 1992, Terra sold both Terra Site and Mallory Site at public auction.

Terra then filed this action against Kraft and sought damages for loss of value to its real property in the amount of $830,000.00. Terra claimed damages based on an appraised value of $1.1 million for both sites, assuming no contamination, minus the auction sale price of $270,000.00. Terra also claimed additional damages of more than $3 million, plus the cost of a two-week shutdown when, according to its complaint, Terra was required to move its business to a new location because of the contamination. Kraft filed a counterclaim against Terra and alleged unjust enrichment of approximately $12.5 million, half of the $25 million Kraft paid for the cleanup. Kraft completed the cleanup of both sites in August of 1993, after Terra had initiated this action.

Both parties filed motions for summary judgment, and the trial court granted Kraft's motion on all counts of Terra's complaint. The court also entered summary judgment for Terra on Kraft's counterclaim for unjust enrichment, finding that the entry of judgment for Kraft rendered its counterclaim moot. ²

DISCUSSION AND DECISION

Standard of Review

In reviewing a ruling on a motion for summary judgment, this court applies the same standard applied by the trial court. Walling v. Appel Service Co. (1994), Ind.App., 641 N.E.2d 647, 648-49; Miller v. Monsanto (1993), Ind.App., 626 N.E.2d 538, 541. Summary judgment is appropriate only if "the designated evidentiary matter shows 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." Ind. Trial Rule 56(C). We resolve any doubt as to a fact, or an inference to be drawn therefrom, in favor of the party opposing summary judgment. ³ Miller, 626 N.E.2d at 541.

The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which can be determined as a matter of law. Beradi v. Hardware Wholesalers, Inc. (1993), Ind.App., 625 N.E.2d 1259, 1261, trans. denied. Even though there may be conflicting facts and inferences regarding certain elements of the claim, we are only concerned with the dispositive or essential facts, and inferences to be drawn therefrom. Citizens Nat. Bank v. Indianapolis Auto Auction (1992), Ind.App., 592 N.E.2d 1256, 1257.

Measure of Damages

In this case of first impression in Indiana, we are asked to consider the proper measure of damages for injury to land contaminated by PCBs. Under Indiana law, the measure of damages in a case of injury to real property depends first upon a determination of whether the injury is "permanent" or "temporary." City of Anderson v. Salling Concrete Corp. (1980), Ind.App., 411 N.E.2d 728, 732, trans. denied (citing General Outdoor Advertising Co. v. LaSalle Realty Corp. (1966), 141 Ind.App. 247, 265, 218 N.E.2d 141, 150, trans. denied ). Permanent injury to unimproved land occurs where "the cost of restoration exceeds the market value ... prior to injury." General Outdoor Advertising, 141 Ind.App. at 267, 218 N.E.2d at 151. If the injury is permanent, the measure of damages is limited to the difference between the fair market value of the property before and after the injury, based on the rationale that "economic waste" results when restoration costs exceed the economic benefit. See Salling, 411 N.E.2d at 734. For a temporary injury the proper measure of damages is the cost of restoration. Id.

It is undisputed that the cost to remediate Terra Site far exceeded the value of the land itself. Applying the common law distinction between permanent and temporary damage to these facts, the damage to Terra Site would be considered permanent and the measure of damages would be the difference between the value of the property before and after the remediation. That is the measure of damages advocated by Terra on appeal.

Kraft maintains that because it has remediated Terra Site at its expense, "Terra is entitled only to what it has already received" and "its damage claims are moot." Brief of Appellees at 11. In other words, Kraft argues and the trial court determined that remediation repaired Terra Site and, thus, that the PCB contamination was temporary damage. The court agreed with Kraft that Terra could not "seek to recover damages allowed for permanent injury and also to keep the rewards allowed under temporary injury that have already been performed." Record at 377.

The trial court's judgment was based on its determination that "[u]nder recent case law and through statements of the EPA and Indiana legislature, PCB contamination has been treated as a temporary injury despite the high cost of repair." Record at 376. The court relied on the federal district court decision in In re Paoli R.R. Yard PCB Litigation (E.D.Pa.1992), 811 F.Supp. 1071, and on Indiana statutes and regulations, and reasoned that those authorities were "contrary to the common law policy of avoiding repair at costs which greatly exceed the value of the land." Record at 376-77; see IND. CODE § 13-7-8.5-5.5; IND. ADMIN. CODE tit. 329, r. 2-6-4. The trial court concluded that "the current policy of the State of Indiana as well as the United States ... preempt[s] the common law doctrine for assessing the appropriate damages to real property and requires PCB contamination to be considered a temporary injury." Record at 377.

We agree with the trial court that in light of the often exorbitant costs of remediation, the traditional common law economic waste analysis is inadequate when measuring damages to land from environmental contamination. Land subject to hazardous waste or PCB contamination is required to be remediated virtually without regard to cost. See, e.g., State of Ohio v. U.S. Dept. of Interior (D.C.Cir.1989), 880 F.2d 432, 446 (under CERCLA, preference is for restoration cost as measure of damage to natural resources, at least where restoration is feasible and can be performed at a cost not grossly disproportionate to use value of resource). PCB contamination, therefore, will generally be considered a temporary injury capable of being remediated or "repaired."

Nevertheless, the Third Circuit Court of Appeals has recognized that the traditional distinction between temporary and permanent injury to real property is ill-suited for determining damages in the context of environmental contamination. In In re Paoli R.R. Yard Litigation (3rd Cir.1994), 35 F.3d 717, the federal court of appeals ⁴ reversed the district court's determination that the plaintiffs were not entitled to damages for diminution in value because PCB contamination of their property was "temporary and remediable." Id. at 795. The court held that a factual question existed as to...