DONN H. WRAY, EQUITY SHAREHOLDER, ANNOUNCES THE INDIANA SUPREME COURT MADE CLEAR IN A RULING LAST WEEK THAT VICTIMS OF OLD POLLUTION WHO HAVE EXPENDED FUNDS FOR CLEAN-UP CAN SEEK CONTRIBUTION FROM POLLUTERS

DONN H. WRAY, EQUITY  SHAREHOLDER, ANNOUNCES THE INDIANA  SUPREME COURT MADE CLEAR IN A RULING LAST WEEK THAT VICTIMS OF OLD POLLUTION  WHO HAVE EXPENDED FUNDS FOR CLEAN-UP CAN SEEK CONTRIBUTION FROM POLLUTERS

In the case of Pflanz v. Foster, et  al., a complaint was filed seeking, among other relief, contribution for  cleanup costs pursuant to Indiana’s  Underground Storage Tank Act, post-clean-up damages for stigma to real estate, and  declaratory relief for future anticipated cleanup costs.  The trial court dismissed under the theory  that because the Pflanzes, who had owned the property since the mid-1980s,  “knew or should have known” of the contamination on their property for over ten  years, the statute of limitations barred their claim.  The Indiana Supreme Court reversed the trial  court’s order of dismissal and remanded the case for further proceedings.

According to Donn  H. Wray, attorney for the Pflanzes:  “This  significant ruling will help businesses of all sizes that clean up old  pollution left behind by others.  Many  small business owners have former service stations, dry cleaners, machine  shops, or other types of property where pollutants were released in the  past.  This ruling gives them a chance to  recover clean up expenditures.”  Wray  added:  “The ruling holds that  irrespective of how long ago the pollution occurred, well-settled law on  contribution provides that only after payment has been made to clean up  pollution does the ten year statute of limitations begin to run.”

Even after a clean up is complete, the  value of a property that has been polluted may be reduced due to concerns that  pollutants may remain.  The Court held  that the statute of limitations for claiming such “stigma damages” does not  begin to run until the clean up process is sufficiently far along to make such  damages ascertainable.  Wray  observed:  “Common sense suggests that  the shot clock for filing a claim should not begin to run until after the claim  is no longer speculative in nature.   That’s exactly what the Court held.”

The twenty-first century Hoosiers who  undertake the expense of remediating pollution left behind from Indiana’s industrial and  commercial past are all winners under this decision.  If they still exist and can be located, those  responsible for leaving the mess will have to contribute to the cost of  cleaning it up.

Pflanz v. Foster, et al. (June 19, 2008)  36S01-0710-CV-425. 

For  more information, please contact Donn Wray at Stewart & Irwin, P.C., 251 East Ohio Street, Suite 1100, Indianapolis, IN 46204, 317-639-5454 or dwray@silegal.com.