205 F.3d 1007 (7th Cir. 2000)
NRC CORPORATION,    Plaintiff-Appellee, Cross-Appellant,v.AMOCO OIL COMPANY,    Defendant-Appellant, Cross-Appellee.
Nos. 98-2162 and 98-2314
In the  United States Court of Appeals  For the Seventh Circuit
Argued April 13, 1999Decided March 9, 2000

Appeals from the United States District Court   for the Southern District of Indiana, Indianapolis Division.  No. 93 C 1448--V. Sue Shields, Magistrate Judge. [Copyrighted Material Omitted]
Before KANNE, ROVNER and DIANE P. WOOD, Circuit  Judges.
ILANA DIAMOND ROVNER, Circuit Judge.


1
For approximately thirty  years, Amoco leased land from NRC for a gasoline  service station. Near the end of the lease  period, the parties discovered that underground  storage tanks installed by Amoco had leaked,  contaminating the property. Amoco ultimately  agreed to remediate the property. NRC sued Amoco  for damages, and after a bench trial, the court  entered judgment for NRC and against Amoco.1  The court ordered Amoco to pay $528,000.81 for  NRC's loss of use of the property, $13,000 for  NRC's environmental response costs, and NRC's  costs of the suit. The court declined to award  attorney's fees to NRC. Amoco appeals the amount  of the award and NRC cross-appeals the amount of  loss of use damages, the attorney's fees ruling,  and the court's refusal to grant punitive  damages.

I.

2
NRC owns 35 acres in Hamilton County, Indiana,  at the northwest corner of 96th and Meridian  Streets. In 1959, Amoco leased the very tip of  that large corner property, a .75 acre patch of  land, in order to operate a gasoline service  station. Because of two separate highway projects  completed by the State of Indiana during the  lease period, the parcel was twice reduced in  size through condemnation proceedings, first to  .36 acres and then to .327 acres. Amoco renewed  the lease several times over the years, with the  final lease period ending on March 31, 1989.  Amoco ultimately refused to renew the lease  because it wanted a larger parcel of land on the  same corner so that it could build and operate a  more modern service station. NRC refused to lease  additional land because it had a master plan for  the entire 35 acre parcel that did not include a  service station at that location. Up until that  time, the rest of the 35 acres was not developed  and was used for farming only.


3
The lease permitted Amoco to install underground  storage tanks, and Amoco made use of such tanks  throughout the lease period. In December 1986,  thirty gallons of gasoline spilled onto the  property when the tanks were being filled. Amoco  cleaned the spill and reported it to the Indiana  Department of Environmental Management ("IDEM").  Shortly thereafter, Amoco installed monitoring  wells on the property, and although hydrocarbon  odors and gasoline smells were reported at two of  the wells, Amoco did not further investigate  until approximately two years later. In November  1988, well sampling revealed gasoline odors in  one well and three to four inches of "free  product" in two other wells.2 Testing done on  the well samples was completed in March 1989, and  revealed gasoline constituents in four of the six  wells. Amoco reported these results to IDEM that  same month. A hydrogeologist subsequently  recommended that Amoco remove the underground  storage tanks and that Amoco subject the property  to remediation, a process that would take a  minimum of one to three years.


4
Amoco hired Soil Exploration Services ("SES") to  remove six underground storage tanks from the  property, five used to store gasoline and one  used to store waste oil. SES reported that there  was significant free product floating on the  water in the tank pit area and removed about 50  gallons from the site at that time. Amoco  installed pumps in the tank pit area to remove  hydrocarbons once a week. The company also  installed more monitoring wells to determine the  extent of the hydrocarbon contamination. The  contamination detected in these wells was  reported to IDEM. In June 1989, NRC asked Amoco  to enter into a written agreement to remediate  the property, and Amoco did not respond. More  wells and additional testing revealed more  contamination in October 1989. The Indiana  Department of Transportation then asked Amoco to  remediate the property and Amoco agreed to do so.  In March 1990, Amoco discharged SES from the  project and hired Groundwater Technology, Inc.  ("GTI") to study the problem. GTI continued the  testing that SES had begun and tried to determine  the outer boundaries of the contamination. In  November 1990, NRC again sought a formal  commitment from Amoco to remediate the property,  and Amoco again failed to respond.


5
In July 1992, after discussions between Amoco  and IDEM, and following assorted delays caused by  road construction, Amoco provided NRC with a  corrective action plan that it had submitted to  IDEM nearly a year earlier. Amoco and NRC  subsequently reached an agreement to give Amoco  access to the property to complete the  remediation, and Amoco hired GTI to complete the  task. Because of the delays, though, IDEM  withdrew its support for the corrective action  plan, fined Amoco and required it to submit an  updated plan. GTI developed another corrective  action plan which IDEM approved in December 1993.  After additional testing, Amoco submitted  revisions to the plan, and IDEM approved the  final corrective action plan in March 1994. The  remediation system was installed that same month  and at the time of the district court's opinion  in April 1998, the system was still operating.  Amoco ultimately concluded through testing that  the contamination was confined to the leased  premises and had not spread to adjacent land or  groundwater.


6
NRC sued Amoco for the loss of the use of the  property during the remediation process. After a  bench trial, the district court found that the  property would not attain its full fair rental  value until the cleanup was complete, which was  projected at the time of trial to occur in March  2000. The court found that buyers and renters  alike had difficulty measuring the risk  associated with contaminated property and  therefore avoided it. Lenders are similarly  loathe to deal with the uncertainties posed by  contaminated property, making a sale during  remediation even less likely than a lease. The  court thus ruled that the property was  unmarketable until IDEM approved the corrective  action plan, and remediation had actually begun.  During the remediation period, the court found,  the market demanded a full indemnification  agreement, and as of the time of trial no such  agreement had been reached between Amoco and NRC,  rendering the property unmarketable during that  time as well. The highest and best use of the  property was as part of a multi-acre tract,  according to the district court's findings:


7
A reasonably sized area that would bear the brunt  of the stigma of possible contamination is an  area, including the Property, of approximately  two acres. Further, even without the threat of  contamination outside the Property, a prospective  buyer, tenant, or lender would not consider a  two-acre tract that did not include the Property,  because it is the Property's corner location with  access onto both U.S. 31 and 96th Street that  will dictate the highest and best use if rezoning  is allowed. Thus, NRC has and will continue to  suffer loss of marketability of the two-acre  tract until the Property is remediated within  approved limits.


8
NRC Corp. v. Amoco Oil Co., No. IP 93-1448-C,  slip op. at 18 (S.D. Ind. April 7, 1998)  (internal cite omitted). The court calculated the  lease price of the two-acre parcel, and  determined that between March 1989 (when the  lease terminated) and March 2000 (when  remediation was projected to be complete), NRC  lost $528,000.81 in rent. Because Amoco agreed in  the lease to fully indemnify NRC for any and all  damages caused by the operation of the gas  station at the site, the court held Amoco liable  for that entire amount. The court also held Amoco  liable for $13,000 in "response costs," the  amount NRC paid to monitor Amoco's compliance  with the corrective action plan. After allowing  NRC to recover its court costs as well, the trial  court declined to award NRC attorneys' fees  incurred in the action or punitive damages. Both  parties appeal from the district court's  judgment.

II.

9
Amoco challenges the district court's finding  that NRC was due damages on any land other than  the leased premises. Amoco contends that the  district court should have limited the damages to  the .327 acre leased parcel because the  contamination did not spread beyond that area.  Amoco also disputes the award of damages for loss  of use, faulting NRC for voluntarily declining to  use the property. According to Amoco, the  property could have been used for a number of  purposes during remediation, and NRC would have  recovered significant rent during that period.  Finally, Amoco claims the district court erred in  awarding damages for the period of time between  March 1994 and March 2000, positing that no  damages should be awarded once the remediation  had begun. NRC cross-appeals the amount of the  damage award, contending that the district court  undervalued the property in light of the  substantial probability that the land would be  rezoned to a higher use. NRC also appeals the  district court's refusal to grant punitive  damages and attorneys' fees.

A.

10
Both sides agree that Indiana law governs this  dispute. After a bench trial, we review the  district court's fact findings with great  deference, reversing only for clear error. See  Fed. R. Civ. Pro. 52(a); Petrilli v. Drechsel, 94  F.3d 325, 329 (7th Cir. 1996). We review  conclusions of law de novo. Petrilli, 94 F.3d at  329. The district court ruled that damages were  due for a two-acre parcel encompassing the .327  acres leased, on the theory quoted above, that  two acres was the smallest parcel that would bear  the brunt of the stigma of contamination, and  that no one would lease those two acres without  the .327 acre leased parcel which was situated on  the very corner of the property. Thus the  district court held Amoco liable for damages  beyond the leased premises. Amoco characterizes  this ruling as both factually and legally  incorrect. It is factually incorrect, according  to Amoco, because the record was insufficient to  support the view that such a two-acre parcel  existed and that NRC ever tried to market such a  parcel. It is legally incorrect, according to  Amoco, because, under Indiana law, stigma damages  are limited to the area leased. We will address  these claims together because the district court  relied on a legal theory that encompasses the  alleged factual deficiency.


11
Amoco asks this Court to rely on the general  rule in Indiana that the proper measure of  damages for loss of use of property is the fair  rental value of that property during the time of  the injury. However, the parties bargained for a  different measure of damages when they entered  into a lease agreement with a broad  indemnification clause that held Amoco liable for  any damages to NRC arising from the operation of  the service station. The district court found  that Amoco is liable to NRC for all the damages  NRC incurred as a result of the contamination of  the site based on an indemnity clause in the  lease. The court did not simply rely on the  "unitary" nature of the property in awarding  damages; nor did the court rely on a theory of  stigma created by the contamination. The parties  vigorously contest the appropriateness of the  application of the unitary property theory or the  stigma theory to this case, but the district  court relied on something much simpler and more  straightforward. The lease contained an  indemnification clause that required Amoco to  indemnify and "save harmless the Lessor [NRC]  from all claims, mechanic liens, damages,  demands, actions, costs and charges arising out  of or by reason of the . . . operation of the  business herein authorized on the premises . . .  during the term of this lease." The court found  that the plain language of this clause required  Amoco to reimburse NRC for any damages caused by  the operation of the gas station. The court  concluded that "[t]here is no dispute that the  operation of the Amoco station caused  contamination on the site, and to the extent that  the presence of that contamination caused damages  to NRC, Amoco is liable for that damage." NRC  Corp., slip op. at 19-20. Nothing in this  provision limited Amoco's liability to harm to  the leased premises, and the court therefore  charged Amoco with liability for all the damage  suffered by NRC due to the contamination.


12
Two of NRC's experts testified that the highest  and best use of the leased land was as part of a  two-acre parcel on the corner. The .327 leased  land provided the only entrance to those 1.673  acres and according to one appraisal expert, "The  Amoco site in itself, whatever remains of it, is  only important to the appraisal problem in my  view because of the fact that it's an integral  part of a two-acre site that would be demanded in  the market place. It provides the only legal and  physical access that we would have to a corner  location there off of Meridian and 96th Street."  Tr. at 634. As the district court noted, the  contamination of the leased parcel affected the  surrounding 1.673 acres because no one would  lease that space without the road access and  visibility provided by the corner-location leased  parcel. Thus, when Amoco rendered the leased  parcel temporarily unusable, it also eliminated  NRC's opportunity to lease or sell the  surrounding 1.673 acres. Although the court  borrowed language from the unitary theory, a  legal theory, in reaching this conclusion, this  was really a factual conclusion that Amoco  damaged NRC by reducing its opportunities to sell  or lease not only the .327 acre leased parcel but  also the immediately contiguous land. See United  States v. 105.40 Acres of Land, More or Less, in  Porter County, Indiana, 471 F.2d 207 (7th Cir.  1972) (applying the unitary theory in the eminent  domain context); City of Indianapolis v. Heeter,  355 N.E.2d 429 (Ind. Ct. App. 1976) (same). In  those cases, in order to value the condemned  property, the courts allowed the land owners to  show that the highest and best use of the land  was in combination with contiguous and non-  contiguous parcels. The courts held that the  market value of the condemned parcels should be  set by considering the effects of the surrounding  land on potential uses. Here, in a mirror-image  scenario, the court found that contamination on  the leased parcel affected the owner's ability to  market surrounding land.


13
Under the indemnification clause, the court  found that Amoco was liable for all damages  caused by Amoco's use of the leased land as a  service station, not just the damages to the  leased parcel itself. Again, although the court  used the word "stigma" in finding that the  contamination affected the contiguous parcel, the  court did not find that the damages were based on  stigma, and the stigma cases are thus  inapplicable. See Adams v. Star Enterprise, 51  F.3d 417 (4th Cir. 1995) (land owners could not  recover under Virginia law under nuisance or  negligence theories for stigma caused by  underground oil spill without showing physical  impact on owner's property or physical injury);  Berry v. Armstrong Rubber Co., 989 F.2d 822 (5th  Cir. 1993), cert. denied, 510 U.S. 1117 (1994)  (property owners could not establish nuisance,  trespass, or stigma action under Mississippi law  without evidence of physical damage to the  owner's land). The fact that NRC could not prove  contamination beyond the boundaries of the leased  parcel was irrelevant to the district court's  finding that the contamination on that parcel  eliminated NRC's ability to sell or lease the  surrounding property. The court relied on the  indemnification clause and Amoco did not  challenge that reliance on appeal. Amoco thus  waived any challenge to that theory of damages,  and we affirm on that ground alone. United States  v. Neely, 980 F.2d 1074, 1082 (7th Cir. 1992) (to  preserve an issue for appellate review, a party  must alert the district court to the specific  grounds for the party's argument).

B.

14
Amoco also challenges the award of damages  because NRC could have been using the property  during remediation for any number of uses. Amoco  faults NRC for voluntarily declining to market  the property. For example, Amoco itself wanted to  lease the property to build and run a larger,  more modern service station. Amoco also argues  that the property could have been used as a  parking lot or landscaping while remediation went  on just below the surface. The district court  took a different view of the evidence, and we  reverse the district court's fact findings for  clear error only. Petrilli, 94 F.3d at 329.  According to the district court's findings,  before the corrective action plan was approved,  it was impossible for potential buyers, lessees,  and lenders to assess the risks associated with  the contamination, and thus the property was  unmarketable until that time. Even after a  corrective action plan is approved and  remediation has begun, the district court found  that "the market demands a full indemnification  agreement in order to make contaminated property  marketable." NRC Corp., slip op. at 16. Because  the parties had not entered into a formal  indemnification agreement (for the post-lease  period), the property was unmarketable until  remediation was complete. Amoco contends that  there is no support in the record for the  proposition that the market demands a full  indemnification agreement.


15
NRC counters with substantial evidence  supporting the decreased value of contaminated  property, both before and during remediation. For  example, Amoco's appraiser agreed that  contamination blocks marketability, and that  prospective purchasers, developers and lenders  will require evidence that the remediation has  been completed and approved by IDEM. Experts  testified consistently that until the corrective  action plan was approved in March 1994, the  property was unmarketable. After that time, while  the property was undergoing remediation,  uncertainty remained. Testimony demonstrated that  lenders would be reluctant to get behind the  property without guarantees that remediation was  working. During the remediation, the progress  reports Amoco submitted to IDEM showed  fluctuations in contaminant levels. Sometimes  levels were lower, but sometimes they were  higher, so that during the process there was  uncertainty as to the effectiveness of the  remediation. The district court did not stretch  far in inferring that the market would demand  indemnity during this period in order to make the  property marketable. Because the district court's  finding is supported by the evidence, we find no  error.

C.

16
We now turn to NRC's cross-appeal. NRC  complains that the district court undervalued the  two-acre parcel. The district court projected  revenue for the parcel, setting the value at  $3.95 per square foot in 1989, and increasing  that amount 5% per year. The court agreed with  one expert that the fair market value of a two-  acre tract would have been $12.54 per square foot  as of March 1989 had there been a change in  zoning for the property. The court further found  that a "change in zoning is highly probable, and  this probability enhances the square foot value  of the Property by 20%." NRC Corp., slip op. at  18. NRC urges us to find that if the chance of  rezoning was "highly probable," then the court  should have valued the land at $12.54 per square  foot as of March 1989, with a 5% increase for  each subsequent year.


17
NRC's reasoning is faulty, however. In order  for the district court to grant full value for  the rezoning, the probability would have to be  100% that the land would be rezoned. Clearly, the  court did not agree with this assessment, finding  that the high probability was approximately 20%.  A "high probability" does not mean 100% or even  more than 50%. It is a subjective term that the  district court rendered objective by assigning it  a value of 20% under the facts of this case. This  is a fact finding, and we reverse the district  court's findings of fact for clear error only.  NRC fails to convince us that the district court  erred in finding that there was less than a 100%  probability that the land would be rezoned. We  reject NRC's claim for damages for lost  opportunity cost for the same reason. The  district court's decision was based on fact  findings, and lost opportunity cost is an  inherently speculative amount that the district  court was well within its discretion to reject as  an element of damages on these facts.

D.

18
The district court granted Amoco's motion for  judgment on the evidence on NRC's claim for  punitive damages at the close of NRC's case-in-  chief. The district court found that, even  accepting as true all of NRC's allegations of  Amoco's conduct, "that still does not rise to the  level of conduct that is necessary for punitive  damages." Tr. at 836. NRC contends that the trial  court relied on USA Life One Ins. Co. of Indiana  v. Nuckolls, 682 N.E.2d 534 (Ind. 1997), which  was inapplicable. Instead, NRC urges us to find  that it should have been allowed to prove  punitive damages under Gray v. Westinghouse  Electric Corp., 624 N.E.2d 49 (Ind. Ct. App.  1993).


19
Under Nuckolls, punitive damages may be awarded  in a contract case only if the plaintiff pleads  and proves an independent tort and only if there  is clear and convincing evidence that the  defendant acted with "malice, fraud, gross  negligence, or oppressiveness which was not the  result of a mistake of fact or law, honest error  or judgment, overzealousness, mere negligence, or  other human failing." 682 N.E.2d at 541. Gray was  a nuisance case, not a contract case, and NRC  thus argues that it is more applicable than  Nuckolls. Under Gray, punitive damages may be  awarded if the plaintiff proves the defendant  acted with a quasi-criminal state of mind or  wilful and wanton misconduct, which under  existing conditions, the defendant knows will  result in injury. "Willful and wanton misconduct  need not include malice or intent to injure.  Further, conduct which is oppressive or amounts  to gross negligence justifies punitive damages."  624 N.E.2d at 54-55. Interestingly, Gray cites a  breach of contract case for the standard for  punitive damages, and we therefore doubt that  Gray is good law after the Indiana Supreme Court  ruled in Nuckolls. In any case, this was a breach  of contract case, and the court awarded damages  under the indemnity clause of the lease contract.  The court specifically stated that Amoco's  conduct did not rise to the level necessary under  Nuckolls, and we will not overturn that finding  unless clearly erroneous. Nothing in the record  suggests error, and so we affirm the district  court's denial of punitive damages.

E.

20
Finally, we address NRC's claim for attorneys'  fees. NRC claims that the same conduct justifying  an award of punitive damages justifies an award  of attorneys' fees under the indemnification  clause. According to NRC, Indiana law allows an  indemnitee to recover from the indemnitor the  costs of prosecuting the indemnity action,  including attorneys' fees. In the district court,  NRC sought attorneys' fees under two statutory  provisions and under the common law. The district  court rejected those theories and NRC does not  challenge those rulings on appeal, instead  relying on the indemnification agreement as the  source of fees. But NRC did not raise that  argument below and therefore waived it. Neely,  980 F.2d at 1082. Even had NRC preserved this  argument, however, the result would be the same.  The indemnity case on which NRC primarily relies  was founded on an agreement containing an express  provision for attorneys' fees. There is no such  express provision in this indemnity agreement,  and thus NRC is not entitled to fees under the  lease. See Zebrowski & Assoc., Inc. v. City of  Indianapolis, 457 N.E.2d 259 (Ind. Ct. App.  1983). We thus affirm the district court's  refusal to grant attorneys' fees to NRC.

III.

21
In sum, the district court did not clearly err  in finding Amoco liable under the lease for all  of the damages caused by contamination of the  leased premises, including damages for NRC's  inability to lease or sell the property  immediately surrounding the leased parcel. Nor  did the district court err in awarding damages  for the period of time after remediation had  begun, while there was still great uncertainty as  to the success of the remediation process. We  also affirm the district court's measure of  damages for the property, which the court  enhanced based on a 20% probability that the land  could be rezoned. Finally, we find that the court  did not err is refusing to award punitive damages  or attorneys' fees.


22
AFFIRMED.



Notes:


1
 The parties consented to a trial before a  magistrate judge pursuant to 28 U.S.C. sec.  636(c).


2
 "Free product" refers to gasoline and its  constituents.


