Attorney for Appellant
Patricia Polis McCrory
Angela L. Hamm
Harrison & Moberly, LLP
Attorneys for Appellee
Donald G. Orzeske
Andrew S. peacock
Goodin, Orzeske & Stevens, P.C.
INDIANA SUPREME COURT
BOURBON MINI-MART, INC. and
ROBERT E. WANEMACHER,
GAST FUEL AND SERVICES, INC., and
JACK BOARDMAN, d/b/a BOARDMAN
) Supreme Court No.
) Court of Appeals No.
APPEAL FROM THE MARSHALL CIRCUIT COURT
The Honorable Douglas B. Morton, Special Judge
Cause No. 50C01-9106-CP-107
ON PETITION TO TRANSFER
February 14, 2003
Bourbon Mini-Mart seeks indemnification for and contribution to its costs of cleaning up
petroleum contamination from leaking underground storage tanks from one of its suppliers and
an automobile dealership. Because Mini-Mart was found at least partially responsible for
the contamination in prior litigation, it is not entitled to indemnification. However, Indiana's
underground storage tank legislation authorizes Mini-Mart to seek contribution from its supplier under
the facts of this case.
The principal actors in this decade-old environmental drama are: Bourbon Mini-Mart, a gas
station and convenience store, and its owner, Robert Wanemacher (collectively, Mini-Mart); Gast Fuel
and Services, Inc., Mini-Marts sole supplier of gasoline and other petroleum products (Supplier);
Boardman Chevrolet, an automobile dealership near Mini-Mart that stores gasoline, oil, and other
chemicals removed from motor vehicles in an underground storage tank (Dealership); the Workmans
and the Duffs, two families whose homes were adjacent to Mini-Mart (the Homeowners);
and the Indiana Department of Environmental management (IDEM). Mini-Mart stored gasoline in
underground storage tanks (USTs). In 1990, the Homeowners complained to IDEM of
fumes in their homes. After an investigation, IDEM found that the land,
groundwater, and homes adjacent to Mini-Mart were contaminated with solvents including petroleum.
Concluding that the petroleum contamination originated from Mini-Mart, IDEM informed Mini-Mart of the
contamination and indicated that IDEM would clean up the site and attempt to
recover its costs from Mini-Mart unless Mini-Mart acted on its own.
After Mini-Mart failed to initiate clean up of the contamination, IDEM began to
clean up the site. The case that is the subject of this
appeal began on June, 28, 1991, when IDEM sued Mini-Mart for reimbursement for
its remediation expenses. (We will refer to this case from time to
time in this opinion as the IDEM Litigation to distinguish it from the
Homeowner Litigation described below.) In December, 1997, Mini-Mart filed a third party
complaint against Supplier, and amended the complaint in January, 1999, to add Dealership.
The third party complaint alleged that Supplier and Dealership caused the contamination
and sought payment from them for any sums that IDEM recovered from Mini-Mart
for IDEMs remediation expenses.
During the time between the commencement of IDEMs case against Mini-Mart and the
addition of Supplier and Dealership in Mini-Marts third party complaints, the Homeowners sued
Mini-Mart for nuisance, trespass, and negligence alleging Mini-Mart caused the contamination (the Homeowner
Litigation). The Homeowner Litigation was a completely separate lawsuit from the IDEM
Litigation and Mini-Mart did not attempt any cross-claim against the Supplier or Dealership
in that case. The Homeowner Litigation concluded in 1996 when a jury
found Mini-Mart liable and awarded the Homeowners $530,000.
The rulings in the IDEM Litigation that are the subject of this appeal
were issued in November, 1999, when the trial court granted summary judgment in
favor of Supplier and Dealership. In December, 2000, the Court of Appeals
affirmed in part and reversed in part. Commissioner, Ind. Dept of Envtl.
Mgt. v. Bourbon Mini-Mart, 741 N.E.2d 361 (Ind. Ct. App. 2000). As
to Supplier, the Court of Appeals found that summary judgment in its favor
was proper with respect to remediation costs incurred prior to July 1, 1991,
but not after that date. Id. at 371-372. As to Dealership,
the Court of Appeals affirmed the grant of summary judgment in its favor.
Id. at 369. Both Mini-Mart and Supplier sought and this Court
granted transfer. Commissioner, Ind. Dept of Envtl. Mgt. v. Bourbon Mini-Mart, 753
N.E.2d 17 (Ind. 2001) (table).
Briefly stated, this appeal requires that we decide whether Mini-Mart is entitled to
proceed to trial against either or both of Supplier and Dealership based on
Mini-Marts claims that they caused in whole or in part the patroleum contamination
described in Background, supra. The trial court held that Mini-Marts claims against
both Supplier and Dealership were barred by application of the doctrine of collateral
estoppel and by the statute of limitations for damage to real property.
It also held that Mini-Marts claim against Dealership was additionally barred by application
of the doctrine of laches.
As mentioned in Background, supra, the Court of Appeals affirmed in part and
reversed in part.
First, it affirmed the trial courts ruling that Mini-Marts claim against Dealership was
barred by application of the doctrine of collateral estoppel.
Bourbon Mini-Mart, 741
N.E.2d at 369. On this issue, we summarily affirm the opinion of
the Court of Appeals pursuant to Indiana Appellate Rule 58(A).
Second, it reversed the trial courts ruling that Mini-Marts claims against Supplier were
subject to the statute of limitations for damage to real property, Ind. Code
Bourbon Mini-Mart, 741 N.E.2d at 371-72. On this issue,
we also summarily affirm the opinion of the Court of Appeals pursuant to
Indiana Appellate Rule 58(A).
Third, it affirmed the trial courts ruling that Mini-Marts claim against Supplier with
respect to remediation costs incurred prior to July 1, 1991, was barred by
the statute of limitations, but held that Mini-Marts claims against Supplier with respect
to remediation costs incurred after that date could proceed. Bourbon Mini-Mart, 741
N.E.2d at 369-71. We conclude, however, that Mini-Mart may proceed against Supplier
with respect to remediation costs incurred both prior to July 1, 1991, and
We mentioned in Background, supra, that Mini-Mart had been found in the Homeowner
Litigation to be liable for the petroleum contamination at issue here. Collateral
estoppel or issue preclusion bars subsequent litigation of an issue necessarily adjudicated in
a former suit if the same issue is presented in the subsequent suit.
See Shell Oil Company v. Meyer, 705 N.E.2d 962, 968 (Ind. 1998).
In the litigation between the Homeowners and Mini-Mart, the jury found Mini-Mart
liable for negligence, nuisance, and trespass.
While Mini-Mart argues to the contrary,
we agree with the trial court
and the Court of Appeals
jurys determination established that Mini-Mart was not without fault with respect to the
petroleum contamination and that collateral estoppel bars re-litigation of that issue in this
As noted briefly in footnote 2,
supra, Mini-Mart sought recovery from Supplier on
two separate theories indemnification and statutory contribution. The indemnification claim seeks
payment from Supplier on the basis that the petroleum contamination at was the
sole fault of Supplier and others, i.e., Mini-Mart itself was without fault.
See Third-Party Pl.s Am. Third-Party Compl. ¶ 9, R. at 690-91. Indeed,
Indiana law provides that in an action for indemnification, the party seeking indemnification
will only prevail if it is without fault. Indianapolis Power & Light
Co. v. Brad Snodgrass, Inc., 578 N.E.2d 669, 671 (Ind. 1991). For
Mini-Mart to avoid summary judgment on its indemnification claim, there would need to
be a genuine issue of material fact that it was not liable for
any of the petroleum contamination. We agree with the trial court and
Court of Appeals that Mini-Mart cannot make such a showing because its liability
for at least some contamination was established in the Homeowner Litigation. Subsequent
re-litigation of the issue is barred by collateral estoppel.
However, collateral estoppel does not dispose of Mini-Marts statutory contrib
ution claim against Supplier.
Under applicable environmental statutes to be discussed in detail infra, a party
held liable for environmental contamination can seek contribution from others partially liable for
the same contamination in certain circumstances. We agree with the Court of
Appeals and Mini-Mart that the verdict in the Homeowner Litigation, while establishing for
purposes of collateral estoppel that Mini-Mart was not without fault with respect to
the petroleum contamination, did not establish that Mini-Mart was solely responsible therefor.
While collateral estoppel does not bar Mini-Mart from seeking contribution from Supplier, it
remains to be seen whether applicable law permits it to do so.
It is to that que
stion we now turn.
Indianas UST laws are modeled after the federal Comprehensive Environmental Response Compensation and
Liability Act (CERCLA), 42 U.S.C. § 9601 to § 9675. Federal CERCLA
law is directed at the cleanup of certain hazardous substances but excludes petroleum.
To deal with the cleanup of petroleum, Indianas Legislature enacted UST laws
to provide for the regulation of underground storage tanks and the prevention and
remediation of pollution from the tanks. As our Court has previously noted,
the provisions of Indianas UST laws are similar to corresponding provisions of federal
CERCLA law, see Shell Oil Co. v. Meyer, 705 N.E.2d 962, 967 (Ind.
1998), and they follow the same remedial principles. See Western Ohio Pizza,
Inc. v. Clark Oil & Refining Corp., 704 N.E.2d 1086, 1090 (Ind. Ct.
App. 1999), transfer denied, 714 N.E.2d 176 (table); The Pantry, Inc. v. Stop-N-Go
Foods, Inc., 777 F.Supp. 713, 720 (S.D. Ind. 1991).
CERCLA authorizes the federal government to clean up hazardous substances and then seek
reimbursement from responsible parties. 42 U.S.C. § 9607. This section of
CERCLA also provides certain defenses that bar the government from seeking reimbursement:
There shall be no liability ... for a person ... who can establish
by a preponderance of the evidence that the release or threat of release
of a hazardous substance and the damages resulting therefrom were caused solely by:
(1) an act of God; (2) an act of war; (3) an
act or omission of a third party .
42 U.S.C. § 9607(b).
The remedial section of Indianas UST laws also encourages cleanup of contaminated sites
by authorizing the State to seek reimbursement for its clean-up costs. Similar
to the federal CERCLA statute, Indianas UST statute exempts certain parties from liability.
At issue in this appeal is which of two versions of Indianas
statute governs the IDEM Litigation.
As originally enacted effective April 16, 1987, Ind. Code § 13-7-20-21 stated:
(a) Except where an owner or operator can prove that a release from
an underground storage tank was caused solely by: (1) an act of
God; (2) an act of war; (3) negligence on the part of the
state or the United States government; (4) an act or omission of a
third party; or (5) any combination of the causes set forth in subdivisions
(1) through (4); the owner or operator of an underground storage tank is
liable to the state for the actual costs of any corrective action.
(b) Notwithstanding subsection (a)(4), if the owner or operator of an underground storage
tank alleges that a release from the tank was caused solely by an
act or omission of a third party, the owner or operator shall pay
to the state the amount of the costs described in subsection (a).
The owner or operator is entitled by subrogation to all rights of the
state to recover from the third party the amount of the costs described
in subsection (a) and paid to the state or incurred by the owner
or operator in an action brought in the circuit or superior court of
the county in which the release occurred.
Ind. Code § 13-7-20-21(b) (1988)
(emphases added). We will refer to
this provision as the Original Statute. Under it, the State was authorized
to clean up a contaminated site and then obtain reimbursement for the remediation
costs. And it provided a subrogation right to an owner or operator
of a contaminated site that could prove that the contamination was caused solely
by another party. An owner or operator not at fault would still
be required to reimburse the State but could then seek reimbursement from the
responsible third party. This subrogation right, however, was only available to owners
and operators that could prove that the contamination was caused solely by the
act or omission of a third party.
As noted supra, the IDEM Litigation was commenced by IDEM filing suit against
Mini-Mart on June 28, 1991. Three days later, on July 1, 1991,
Ind. Acts 129, § 8, took effect. It amended the Original Statute
to read as follows:
(a) Except where an owner or operator can prove that a release from
an underground storage tank was caused solely by: (1) an act of God;
(2) an act of war; (3) negligence on the part of the state
or the United States government; or (4) any combination of the causes set
forth in subdivisions (1) through (3); the owner or operator of an underground
storage tank is liable to the state for the actual costs of any
(b) A person who: (1) pays to the state the costs described under
subsection (a); or (2) undertakes corrective action resulting from a release from an
underground storage tank, regardless of whether the corrective action is undertaken voluntarily or
under an order issued under section 19 or 26 of this chapter; shall
receive a contribution from a person who owned or operated the underground storage
tank at the time the release occurred. ...
Ind. Code § 13-7-20-21 (1991). We will refer to this provision as
the Amended Statute.
We note two aspects of the Amended Statute. First, the amendment allowed
a party to clean up a site voluntarily and then seek reimbursement for
the cost of the corrective action. The original statute referred only to
the state taking corrective action or ordering the owner or operator to do
Second, of central importance here, the amendment allowed a party that reimburses the
State or voluntarily undertakes corrective action to seek contribution from any other owner
or operator regardless of the latters degree of fault. Under the Original
Statute, an owner or operator forced to reimburse the State for remediation costs
was entitled to recover from a third party only if the third party
was solely liable for the contamination. The crucial distinction is that under
the Amended Statute, an owner or operator that paid remediation costs to the
State was no longer required to be completely without fault in order to
obtain reimbursement from a third party, i.e., to receive reimbursement for response costs
paid, the law no longer required the contamination be caused solely by a
This case presents two issues regarding the retroactive application of Indianas UST laws.
First, do the remedial provisions of Indianas UST laws in general and
the Amended Statute in particular apply to contamination that occurred prior to its
enactment? Second, is a party such as Mini-Mart entitled to use the
contribution provisions of the Amended Statute to recover from third parties clean-up costs
that were incurred prior to the amendment?
The general rule is that unless there are strong and compelling reasons, statutes
will not be applied retroactively. Martin v. State, 774 N.E.2d 43, 44
(Ind. 2002) (citing Metro Holding Co. v. Mitchell, 589 N.E.2d 217, 219 (Ind.
1992)); Indiana Dept of Envtl. Mgmt. v. Medical Disposal Serv., Inc., 729 N.E.2d
577, 581 (Ind. 2000); Chadwick v. City of Crawfordsville, 216 Ind. 399, 413-14,
24 N.E.2d 937, 944 (1940). An exception to this general rule exists
for remedial statutes, i.e. statutes intended to cure a defect or mischief that
existed in a prior statute. Martin, 774 N.E.2d at 44 (citing Bryarly
v. State, 232 Ind. 47, 111 N.E.2d 277, 278-79 (1953); Ind. Dep't of
State Revenue v. Estate of Riggs, 735 N.E.2d 340, 344 (Ind. Tax Ct.
2000). Ultimately, however, whether or not a statute applies retroactively depends on
the Legislatures intent. That is, when a remedial statute is involved, a
court must construe it to "effect the evident purpose for which it was
enacted[.]" Martin, 774 N.E.2d at 44 (citing Connecticut Mut. Life Ins. Co.
v. Talbot, 113 Ind. 373, 14 N.E. 586, 589 (1887)). Accordingly, remedial statutes
will be applied retroactively to carry out their legislative purpose unless to do
so violates a vested right or constitutional guaranty. Martin, 774 N.E.2d at
As we have stated, the corrective action provisions of Indianas UST laws are
similar to corresponding provisions of federal CERCLA law and follow the same remedial
principles. It is well established that CERCLA applies to releases that occurred
prior to its enactment. Even though there is no language in CERCLA
that explicitly provides that it operates retrospectively, it has been understood to apply
to emissions of hazardous waste that predated CERCLAs enactment. See United States
v. Northeastern Pharm. 7 Chem. Co., Inc., 810 F.2d 726, 732-33 (8th Cir.
1986) (Although CERCLA does not expressly provide for retroactivity, it is manifestly clear
that Congress intended CERCLA to have retroactive effect.); The Pantry, 777 F.Supp. at
720 (Although CERCLA provisions contain no explicit statement providing retroactive application, it is
clearly the rule in federal courts that congress intended CERCLA to apply retroactively.).
The Eighth Circuit found CERCLAs statutory scheme itself [to be] overwhelmingly remedial
and retroactive. Northeastern Pharm. 7 Chem. Co., Inc., 810 F.2d at 733.
Following this precedent, the U.S. District Court for the Southern District of Indiana
and the Indiana Court of Appeals have both held that Indianas UST statute,
including the Amended Statute, should be applied retroactively to contamination that occurred prior
to enactment. See The Pantry, 777 F.Supp. at 721 (Whether the clean-up
is initiated by the state or a private party, the UST laws apply
retroactively to releases occurring prior to the effective date of the statute or
the amendment, respectively.); Bourbon Mini-Mart, 741 N.E.2d at 370. We agree.
The question that remains is whether the Amended Statute also applies to pre-enactment
response costs. That is, may Mini Mart seek contribution from Supplier for
payments Mini-Mart made to IDEM for cleanup where those payments were made prior
to the enactment of the amendment? The Court of Appeals held that
Mini-Mart could not. In its decision, the court relied on The Pantry,
in which the federal court held that the Legislature intended to limit recovery
to response costs that were incurred after its enactment.
The federal court reasoned that the purpose of the Amended Statute was to
encourage private parties to remediate environmental hazards voluntarily. It found that this
limited purpose was not served by construing the Amended Statute to allow recovery
of pre-enactment response costs. The Pantry, 777 F.Supp at 721. Instead
of promoting environmental clean-up, the court reasoned that such a construction would merely
provide a windfall recovery for parties who voluntarily effected remediation prior to the
In summary, the federal court in The Pantry and the Court of Appeals
in this case both held that the Amended Statute applies retroactively for the
purpose of allowing an owner or organizer to obtain contribution from responsible owners
and operators for the costs of remediating pre-enactment environmental contamination so long as
those costs were not incurred prior to the effective date of the Amended
Statute. As such, the Court of Appeals allowed Mini-Mart to seek contribution
from supplier for the cost of remediating the petroleum contamination, even contamination that
occurred prior to the effective date of the Amended Statute. However, the
Court of Appeals did not permit Mini-Mart to seek contribution from supplier for
such cost incurred prior to the effective date of the Amended Statute.
We disagree with the federal court and the Court of Appeals and hold
instead that the Legislature intended that an owner or operator be able to
seek contribution from responsible owners and operators for the costs of remediation incurred
prior to the effective date of the Amended Statute.
The Original Statute contained no explicit reference to voluntary remediation on the part
of an owner or operator of an UST. The Original Statute seems
to contemplate that either IDEM would take corrective action itself or order the
owner or operator to do so. See Ind. Code § 13-7-20-21(a) (1988).
As discussed supra, one of the changes brought about by the Amended
Statute was an explicit recognition than an owner or operator might voluntarily undertaken
corrective action. See Ind. Code § 13-7-20-21(b)(2) (1991). Finding that the
Legislatures sole intent in adopting the Amended Statute was to encourage voluntary corrective
action, the federal court in The Pantry case found no support for the
proposition that the Legislature also intended that an owner or operator be entitled
to expanded (i.e., retroactive) recovery rights. See The Pantry, 777 F.Supp at
There is no doubt that the Legislature intended to encourage owners and operators
voluntarily to remediate contaminated sites. And we find, for three principal reasons,
that the Legislature also intended the contribution provision to apply to pre-enactment response
First, the language of the Amended Statute indicates that the Legislature intended to
do more than just encourage voluntary remediation. The Original Statute allowed an
owner or operator of an UST to recover from third parties amounts paid
to the state or that the owner or operator itself incurred for corrective
action where the environmental contamination was caused solely by an act or omission
of [the] third party. The Amended Statute allowed an owner or operator
of an UST to recover from third parties amounts paid to the state
or that the owner or operator itself incurred for corrective action (whether the
corrective action was ordered by IDEM or undertaken voluntarily) from any person who
owned or operated the underground storage tank at the time the release occurred,
not just those solely responsible for the contamination. Thus, while the Amended
Statute expanded the class of corrective action for which owners and operators could
seek recovery to include the costs of voluntary remediation, it also expanded the
class of third persons from whom recovery could be sought.
If the sole purpose of the Amended Statute was to encourage voluntary action,
it would have been unnecessary there would have been no reason for the
Legislature to expand the class of third persons from whom recovery could be
sought. Nevertheless, the Legislature expanded the class of eliminated the limitation to
those solely responsible for the contamination from those third persons from whom recovery
could be sought from those solely responsible for the contamination to include and
allowed instead recovery from any other person who owned or operated an UST
at the time the release occurred. While this by itself does not
demonstrate that the Legislature meant for recovery to be retroactive, we believe that
it shows it does demonstrate that the Legislature intended more than simply to
encourage voluntary remediation.
Second, the Legislature enacted the Amended Statutes contribution provision against the backdrop of
the general retrospective application of federal CERCLA law and Indianas UST laws. As
previously discussed, the federal CERCLA and Indianas UST laws have generally been held
to reach back into the past to address contamination by responsible parties.
The remedial powers of CERCLA have been understood to be broad, and the
statute is generally said to embody principles of equity. See United States
v. Alcan Aluminum Corp., 990 F2d 711, 724 (2nd Cir. 1993) (citing ONeil
v. Picillo, 883 F2d 176 (1st Cir. 1989)); United States v. Conservation Chem.
Co., 628 F. Supp. 391, 401-02 (W.D. Mo. 1985) (...the Court reads the
legislative history of CERCLA to impose upon the judiciary an obligation to apportion
responsibility in a fair and equitable manner.). We believe it more consistent
with this general retroactive philosophy to hold that the Amended Statute applies to
both pre-enactment environmental contamination and pre-enactment incurred remediation costs rather than to only
Third, because Indianas UST laws follow the general scheme of federal CERCLA laws,
it is useful to consider contribution in the federal context. The treatment
ution in federal CERCLA legislation also suggests that pre-enactment response costs are
intended to fall within the reach of the statute. The original CERCLA
legislation, like our original UST laws, did not mention contribution. Federal courts,
however, found a right to contribution in CERLA. In 1985, the District
Court for the Western District of Missouri applied principles of contribution to CERCLA
even though the legislation did not mention contribution as a possible remedy.
See Conservation Chem. Co., 628 F.Supp 391. In that CERCLA action, the
District Court employed contribution as it was applied in the 1977 Uniform Comparative
Fault Act. It stated, contribution is a remedy that developed in equity
and ... the Court reads the legislative history of CERCLA to impose upon
the judiciary an obligation to apportion responsibility in a fair and equitable manner.
Conservation Chem. Co., 628 F.Supp at 401.
In 1986, Congress amended CERCLA, explicitly allowing for contribution. 42 U.S.C. 9613(f)(1)
states: Any person may seek contribution from any other person who is liable
or potentially liable .
In resolving contribution claims, the court may allocate
response costs among liable parties using such equitable factors as the court determines
are appropriate. In enacting the amendment, Congress acknowledged that contribution had already
been a recognized remedy under CERCLA:
It has been held that, when joint and several liability is imposed under
section 106 or 107 of the Act, a concomitant right of contribution exists
under CERCLA. ... This section clarifies and confirms the right of
a person held jointly and severally liable under CERCLA to seek contribution from
other potentially liable parties, when the person believes that it has assumed a
share of the cleanup or cost that may be greater than its equitable
share under the circumstances.
See H.R.Rep no. 99-253(I), 99th Cong., 2d Sess. 79, reprinted in 1986 U.S.C.C.A.N.
2835, 2861 (citations omitted) (emphasis added).
In a case similar to ours, the Second Circuit Court of Appeals considered
ution as it applied before and after the 1986 amendment to CERCLA.
In United States v. Alcan Aluminum Corp., 990 F.2d 711 (2nd Cir. 1993),
the Court considered whether to apply contribution, as provided in the amendment, to
pre-enactment response costs. The Court decided that it was not necessary to
apply the 1986 amendment in order to allow for contribution. Instead the
court found that contribution was a valid remedy under CERCLA even prior to
1986. Alcan Aluminum Corp., 990 F.2d at 724.
We acknowledge that reasoning used in
Alcan does not apply directly to the
present case as this court has never considered whether contribution was a valid
remedy under Indianas UST laws prior to 1991. The Amended Statute, however,
moved Indianas UST laws even closer to federal CERCLA law. Indianas amended
UST statute, in similar language to 42 U.S.C. 9613(f)(1), states, In resolving a
contribution claim, a court may allocate the cost of a corrective action among
the parties to the action using equitable factors that the court determines are
appropriate. Ind. Code § 13-7-20-21 (1991). We believe that the Legislatures
intent here is best achieved by allowing recovery of pre-enactment costs.
Given the equitable principles of CERCLA, the legislatures use of contribution as a
remedy, and the general retrospective nature of CERCLA, we find that the Legislature
intended the amendment to apply to pre-enactment incurred response costs.
We hold that Mini-Mart is entitled to seek contribution under the Amended Statute
from Supplier for Suppliers proportionate share, if any, of the costs of corrective
action paid or undertaken in connection with the petroleum contamination, irrespective of the
date on which such costs were incurred. As such, Supplier was not
entitled to summary judgment on this issue.
Having previously granted transfer pursuant to Ind. Appellate Rule 58(A), we summarily affirm
the portions of the opinion of the Court of Appeals affirming the trial
courts summary judgment in favor of the Dealership and holding Ind. Code §
34-11-1-2 to be the applicable statute of limitations in this case. We
affirm the trial courts summary judgment in favor of Dealership, reverse its summary
judgment in favor of Supplier, and remand to the trial court for further
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
Having affirmed the trial courts summary judgment in favor of Dealership on
the basis of colla
teral estoppel, it was unnecessary to and the Court of
Appeals did not address whether Dealership was entitled to summary judgment by application
of the statute of limitations for damage to real property or doctrine of
We note in this regard that Dealerships position differs from that of
Supplier in that Mini-Mart sought both indemnification and statutory contribution from Supplier but
only indemnification from Dealership.
Compare Third-Party Pl.s Am. Third-Party Compl. ¶¶ 9
& 10, R. at 690-91, with ¶ 15, R. at 691. For
the reason discussed infra, collateral estoppel bars Mini-Mart from seeking indemnification from either
Supplier or Dealership.
Homeowners also named Supplier as a defendant, but Supplier settled out.
Mini-Mart asserted no cross-claims or non-party defense claims.
Footnote: "We don't know exactly what the jury found in that case because
the verdict was a general ve
rdict. They had to have found, however,
that the gasoline that was causing their problems came from the Mini-Mart.
Because of that, the Court believes that this issue can be the subject
of [a] collateral estoppel ruling. ... Litigating it again, under all of the
circumstances described here, simply doesn't make sense." Order Upon Pending Mots. Including
Summ. J. Mots. (R. at 1753; 1755.)
"In the Homeowners suit, Mini-Mart [was] sued for negligence, trespass, and nuisance
because of the petroleum and vapors found in and around the Homeowners' homes.
... jury found Mini-Mart ... liable for the contamination of the Homeowners' property.
Under the doctrine of colla
teral estoppel, Mini-Mart [is] precluded from asserting that
[it was] without fault in the contamination." 741 N.E.2d at 369.
Mini-Mart does not suggest that any theory of no-fault liability was asserted against
The question here is unusual because a separate action for contribution has
become rare. The Co
mparative Fault Act provides that damages are to be
apportioned among responsible parties and the allocation of damages also accounts for nonparties
where a defendant successfully asserts a nonparty defense. See I.C. § 34-51-2-14
(1998); Owens Corning v. Cobb, 754 N.E.2d 905, 911 (Ind. 2001). The
issue of each partys liability is therefore determined in one action. Here,
however, a special environmental statute, Ind. Code § 13-7-20-21, provides a right to
a separate contribution action.
These subsections were first enacted in 1987. 1987 Ind, Acts 172
§ 1, eff. Apr. 16, 1987. They were amended the following year
to read as set forth here. 1988 Acts 69, § 15, eff.
Apr. 1, 1988. The 1988 amendments were not substantive for purposes of