Walling v. Appel Service Co., Inc.

• Decision Date: 19 October 1994
• Docket Number: No. 73A01-9312-CV-416,73A01-9312-CV-416
• Citation: 641 N.E.2d 647
• Parties: Douglas and Barbara WALLING, Individually and as Parents and Next Friends of Adam and Ann Walling, their Minor Children, Appellants-Plaintiffs, v. APPEL SERVICE COMPANY, INC. d/b/a Appel Heating and Air Conditioning Company, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 647

641 N.E.2d 647

Douglas and Barbara WALLING, Individually and as Parents and Next Friends of Adam and Ann Walling, their Minor Children, Appellants-Plaintiffs, v. APPEL SERVICE COMPANY, INC. d/b/a Appel Heating and Air Conditioning Company, Appellee-Defendant.

No. 73A01-9312-CV-416.

Court of Appeals of Indiana First District.

Oct. 19, 1994.

Richard N. Bell, Gregory L. Laker, Cohen & Malad, P.C., Indianapolis, for appellants.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Douglas and Barbara Walling appeal from the trial court's entry of partial summary judgment in favor of Appel Service Company, Inc. Appel pumped over 500 gallons of fuel oil into the basement of the Wallings' home after the driver of its delivery truck mistook the Wallings' home for a residence two streets away which was scheduled to receive the oil. The Wallings filed suit against Appel and, after twice amending their complaint, alleged counts for (1) negligence; (2) criminal trespass; (3) violation of Indiana Code § 13-7-11-6(c); (4) violation of Indiana Code § 13-7-4-1; and (5) criminal conversion. Appel and the Wallings filed cross-motions for summary judgment on Counts III and IV, the statutory environmental claims, and the trial court entered final judgment on those counts for Appel.

We affirm.

ISSUES

We restate the issues presented for review as follows:

1. Whether Appel is liable under Indiana Code § 13-7-11-6(c) for dumping "solid waste" onto the Wallings' property by delivering fuel oil to the wrong residence.

2. Whether the Wallings may recover for personal injury and property damage in a citizen suit under Indiana Code § 13-6-1-1.

FACTS

The facts construed most favorably to the Wallings show that on February 23, 1990, a driver for Appel was instructed to deliver 500 gallons of fuel oil to a residence at 5751 North Delaware Street in the Meridian-Kessler area of Indianapolis. The driver, who was not familiar with the area, instead arrived at 5751 North Central Avenue, the Wallings' residence.

Appel's driver found a fill pipe outside the Wallings' home of the type normally used as a receptacle for a fuel oil tank, and he began pumping fuel oil into the pipe. However, the Wallings' home had been converted many years ago from oil to natural gas heat. Therefore, the fill pipe into which Appel's driver pumped oil did not pour into a storage tank but lead directly into the basement of the Wallings' home. When the Wallings returned, they discovered that Appel's driver had pumped some 580 gallons of fuel oil into their basement.

Thereafter, Appel paid for the removal and clean up of the fuel oil. Because the oil had seeped into cracks and drains in the basement floor, oil penetrated the home's subsoil, and the Marion County Health Department was required to remove part of the basement floor to eliminate the contaminated soil. In addition to incurring property damage, the Walling family experienced headaches and nausea as a result of toxic fumes emitted by the fuel oil.

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. American Family Mut. Ins. Co. v. Dye (1994), Ind.App., 634 N.E.2d 844, 846. 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). All facts and inferences from the designated evidentiary matter must be liberally construed in favor of the non-moving party. Terre Haute First Nat. Bank v. Pacific Employers Ins. Co. (1994), Ind.App., 634 N.E.2d 1336, 1337. Cross-motions for summary judgment on the same issues do not alter our standard of review; rather, our inquiry remains whether a genuine issue of material fact exists which requires a trial on the merits. Fifth Third Bank v. Bentonville Farm Supply, Inc. (1994), Ind.App., 629 N.E.2d 1246, 1248, trans. denied.

Appel has not filed a brief on appeal and, thus, we may reverse the trial court's decision upon a prima facie showing of reversible error. See Head v. State (1994), Ind.App., 632 N.E.2d 749, 750. However, we may in our discretion decide the case on the merits. Id. Because this appeal involves questions of first impression in Indiana, we will address the Wallings' claims on the merits.

Issue One: Solid Waste

The Wallings first contend that they have a cause of action against Appel pursuant to Indiana Code § 13-7-11-6(c) (the "landowner recovery statute"), which provides:

A landowner on whose land garbage or other solid waste has been illegally dumped without the landowner's consent may, in addition to any other legal or equitable remedy available to the landowner, recover from the person responsible for the illegal dumping:

(1) reasonable expenses incurred by the landowner in disposing of the garbage or other solid waste; and

(2) reasonable attorney's fees.

(Emphasis added). While the Wallings concede that the fuel oil Appel pumped into their basement is not "garbage," they insist that the fuel oil is classified as "solid waste" under the statute. Solid waste is defined as "garbage, refuse, sludge ... or other discarded material, including solid, liquid, semi-solid...." IND.CODE § 13-7-1-22 (emphases added). Thus, the Wallings maintain that because fuel oil qualifies as "solid waste" in the form of a liquid, Appel is liable under Indiana Code § 13-7-11-6(c). We do not agree.

The crucial part of the definition of "solid waste" at issue in this case is the language "other discarded material." To state a cause of action under Indiana Code § 13-7-11-6(c), the Wallings must designate evidence which demonstrates that Appel "discarded" solid waste onto their property. They contend that an issue of material fact exists whether Appel discarded the fuel oil when it misdelivered the oil to their house.

Plain and Ordinary Meaning

The term "discarded material" is not defined in the definitions section of Title 13, Article 7. Therefore, we apply the general rule of statutory construction that undefined words and phrases in a statute must be given their plain, ordinary and usual meaning. See IND.CODE § 1-1-4-1(1). Words and phrases in a statute are given their plain and ordinary meaning unless they are technical words and phrases having a peculiar and appropriate meaning in the law requiring definition according to their technical import. See id. In order to determine the plain and ordinary meaning of words, courts may properly consult English language dictionaries. Ashlin Transp. Servs., Inc. v. Indiana Unemployment Ins. Bd. (1994), Ind.App., 637 N.E.2d 162, 167.

Here, as the Wallings note, to discard an item implies the "letting go or throwing away of something that becomes useless, or superfluous though often not intrinsically valueless." See Brief of Appellants at 14 (quoting Webster's 9th New Collegiate Dictionary at 360 (1985)). "Discard" is also defined as to "throw away" or "reject." American Heritage Dictionary at 375 (1981). The designated evidence in this case does not support the reasonable inference that Appel was throwing away fuel oil because it was useless or superfluous. Rather, the evidence shows that Appel merely delivered some 580 gallons of fuel oil to the wrong house. Therefore, according to the plain and ordinary meaning of the term discarded, Appel did not dump "solid waste" on the Wallings' property.

Federal Law

We find additional guidance in ascertaining the meaning of "discarded material" from the federal regulatory scheme governing solid waste management. Indiana's solid waste regulations were enacted pursuant to a state solid waste management plan authorized under the Resource Conservation and Recovery Act ("RCRA") and approved by the Environmental Protection Agency ("EPA"). See 42 U.S.C. §§ 6942, 6947. Indiana's solid waste management plan must comply with minimum requirements established under RCRA. See 42 U.S.C. § 6943.

RCRA is a comprehensive environmental statute under which the EPA is granted authority to regulate solid and hazardous wastes. See 42 U.S.C. § 6901 et seq.; American Mining Congress v. United States Envtl. Protection Agency (D.C.Cir.1987), 824 F.2d 1177, 1178. Under RCRA, "solid waste" is defined as:

any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid or contained gaseous material, resulting from industrial, commercial, mining, and agricultural operations, and from community activities....

42 U.S.C. § 6903(27) (emphasis added).

The Court of Appeals for the District of Columbia Circuit addressed the meaning of the language "other discarded material" under RCRA in American Mining Congress. The issue in that case was whether secondary material recycled and reused within an industry's ongoing production process was "solid waste" subject to the EPA's regulatory authority. American Mining Congress, 824 F.2d at 1178. After analyzing both the statutory language at issue and the legislative intent in this area, the court concluded that when Congress used the term "discarded" in the definition of solid waste, it used that term in its ordinary sense to mean "disposed of," "abandoned" or "thrown away." Id. at 1185 and 1193. The court in American Mining Congress held that material which is recycled and reused, but which has not yet become part of the "waste disposal problem" regulated by RCRA, is not solid waste. Id. at 1186.

Thus, in interpreting the RCRA definition of solid waste, which is identical to the Indiana definition of solid waste, a federal court has applied the plain and ordinary meaning of the term "discarded material." "Discarded" solid waste material under RCRA means material which is disposed of, abandoned or thrown away. Id. at 1193. We likewise conclude that these ordinary...