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June 19, 2008   Plews Shadley Racher & Braun LLP an Amicus on Winning Side of Indiana Underground Storage Tank Ruling
By Jeffrey D. Featherstun
PDF of Plews Shadley Racher & Braun LLP an Amicus on Winning Side of Indiana Underground Storage Tank Ruling (516k PDF file)

In Pflanz v. Foster, the Indiana Supreme Court ruled that the statute of limitations on contribution claims under the Indiana Underground Storage Tank Act does not begin to run until the government orders a cleanup, regardless of whether an owner earlier knew or should have known about the need for cleanup.   This governmental action is the “incurrence of a monetary obligation that is attributable to the actions of another party.”

Plews Shadley Racher & Braun LLP filed an amicus curiae brief on behalf of the winning side and participated in the oral argument before the Supreme Court.  Excerpts from the decision: 

Shepard, Chief Justice.

 The question here is whether a property owner’s claim for contribution toward environmental cleanup costs is barred by the statute of limitation if the owner should have known about the contamination more than ten years before the complaint was filed. We hold that the statute of limitation does not begin to run until the owner is ordered to cleanup the property, regardless of whether an owner earlier knew or should have known about the need for cleanup.

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I. Statute of Limitation for Contribution and Declaratory Relief

The parties agree that the general ten-year statute of limitation applies to the Pflanzes’ contribution claim. See Ind. Code Ann. § 34-11-1-2(a) (West 2007). Cf., Comm’r, Ind. Dep’t of Envtl. Mgmt. v. Bourbon Mini-Mart, Inc., 741 N.E.2d 361 (Ind. Ct. App. 2000) (applying the ten-year statute of limitation for actions that are not limited by any other statute, rather than the six-year statute for property damage, because the case involved recovery of environmental cleanup costs), summarily aff’d by 783 N.E.2d 253 (Ind. 2003). The resolution of this case turns on when the ten-year limitation began to run.

In the American legal system, demonstrated harm is an indispensable element of virtually every type of civil claim. In cases ranging from contract to tort to medical malpractice, a claimant cannot recover a monetary judgment unless he has suffered actual damage. The law does not usually permit monetary recovery for claims solely involving future damages; rather, some damage must have already begun to occur. This notion that the statute of limitation begins to run when all the elements of a cause of action can be shown (including whether some damages have been felt) is part of how we determine when a cause “accrues.” See Doe v. United Methodist Church, 673 N.E.2d 839, 842 (Ind. Ct. App. 1996) (“For a cause of action to accrue [for limitation purposes], it is not necessary that the full extent of the damage be known or even ascertainable but only that some ascertainable damage has occurred.”)

Under Indiana’s discovery rule, a cause of action accrues, and the statute of limitation begins to run, when a claimant knows or in exercise of ordinary diligence should have known of the injury. Wehling v. Citizens Nat’l Bank, 586 N.E.2d 840, 843 (Ind. 1992).

Foster contends that the statute of limitation began running when the Pflanzes knew or should have known about the contamination. The Pflanzes’ contribution claim, however, is not a claim for damage to the property itself. Rather, they seek to recover for the cleanup costs IDEM required, which resulted from Foster’s use of the land.
In contribution or indemnification cases, the damage that occurs is the incurrence of a monetary obligation that is attributable to the actions of another party. That is why, generally, parties bringing contribution and indemnification claims must wait until after the obligation to pay is incurred, for otherwise the claim would lack the essential damage element. See Bourbon Mini-Mart, 741 N.E.2d at 372 n.9 (“an obligation to indemnify or for contribution does not arise until the party seeking such remedy suffers loss of damages, i.e., at the time of payment of the underlying claim”); TLB Plastics Corp., Inc. v. Proctor & Gamble Paper Prod. Co., 542 N.E.2d 1373, 1376 (Ind. Ct. App. 1989) (obligation to indemnify arises only after one seeking indemnity suffers loss or damages even if indemnity and injured party’s claim are litigated contemporaneously); Estate of Leinbach v. Leinbach, 486 N.E.2d 2, 5 (Ind. Ct. App. 1985) (“to be entitled to contribution, the [claimant] must have first paid the debt”); McLochlin v. Miller, 139 Ind. App. 443, 448, 217 N.E.2d 50, 53 (Ind. Ct. App. 1966) (“payment must be made under compulsion to entitle payor to contribution”).

Because the damage at issue in the Pflanzes’ contribution claim is the cleanup obligation assessed by IDEM that resulted from Foster’s use of the land, the statute of limitation did not begin to accrue until after the Pflanzes were ordered to clean up the property.

Accordingly, because IDEM ordered the Pflanzes to pay for the environmental cleanup costs in 2001, the Pflanzes filed their contribution claim well within the ten-year statute of limitation.

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 Conclusion

For the above reasons, we reverse the trial court’s order of dismissal and remand the case for further proceedings on the merits [on stigma, waste and negligence claims].

Dickson, Sullivan, Boehm, Rucker, JJ., concur.

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