                                                                  FILED
                                                             Aug 04 2016, 8:21 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
David L. Hatchett                                          Frank J. Deveau
Michael J. Reeder                                          Melissa A. Gardner
Indianapolis, Indiana                                      Indianapolis, Indiana

                                                           Todd J. Janzen
                                                           Brianna J. Schroeder
                                                           Indianapolis, Indiana

                                                           Dale W. Eikenberry
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Schuchman/Samberg                                          August 4, 2016
Investments, Inc.,                                         Court of Appeals Case No.
Appellant-Defendant,                                       49A02-1508-MI-1051
                                                           Appeal from the Marion Superior
        v.                                                 Court
                                                           The Honorable Timothy W.
Hoosier Penn Oil Co. Inc., et al.,                         Oakes, Judge
Appellee-Plaintiff.                                        Trial Court Cause No.
                                                           49D02-0911-MI-51276



Altice, Judge.




Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016              Page 1 of 24
                                                 Case Summary

[1]   In this certified interlocutory appeal, Schuchman/Samberg Investments (SSI)

      appeals the trial court’s order granting summary judgment in favor of

      defendants Hoosier Penn Oil Company, Inc., Union Oil Company of

      California, and BP Corporation North America, Inc. (collectively, the Former

      Operators) on SSI’s claims under Indiana’s Environmental Legal Actions

      Statute (ELA) and Petroleum Releases Statute (PRS). Specifically, the trial

      court ruled that the ELA claim was time-barred and that SSI had not

      established that it had a right to recover under the PRS. SSI raises the following

      restated issues on appeal:


      1. Did the trial court err in concluding that the ELA claim was subject
      to the six-year statute of limitation applicable to claims for damage to
      real property?


      2. Did the trial court err in concluding that the statute of limitation
      applicable to the ELA claim had expired?


      3. Did the trial court err in concluding that the PRS did not permit SSI
      to recover investigation and remediation costs from the Former
      Operators under the circumstances of this case?


      We affirm.1




      1
       We held oral argument in this matter on June 3, 2016. We commend counsel on the quality of their written
      and oral advocacy.

      Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016                    Page 2 of 24
                                             Facts & Procedural History

[2]   This case revolves around a piece of environmentally contaminated industrial

      property located at 850 South Keystone Avenue in Indianapolis (the Site).

      Historically, the Site has been used for bulk storage of oil and other petroleum

      products in underground storage tanks (USTs) and aboveground storage tanks

      (ASTs). Standard Oil owned and operated the Site from the 1920s until 1941,

      at which time Union Oil took ownership. Union Oil operated the Site until

      1975, at which time it was purchased by Carl and Florence Hulen/Hulen Real

      Estate, LLC (collectively, Hulen). From 1975 until 1978, Hulen leased the

      property to Univar USA, Inc., which operated a chemical distribution facility

      and stored large volumes of industrial solvents on the Site. From 1979 until

      1995, Hulen leased the Site to Hoosier Penn Oil, which used it to operate a

      lubricant oil and antifreeze distribution center. In 1995, Hulen sold the

      property to Wilcher Trucking, Inc. (Wilcher) on contract,2 and SSI3 leased the

      Site from Wilcher. SSI used the Site to operate a metal scrapyard and a diesel

      fuel storage tank. SSI purchased the Site from Wilcher in 1998.


[3]   In 1994, while the Site was owned by Hulen and being leased by Hoosier Penn,

      Keramida Environmental conducted testing of the soil and groundwater at the

      Site as part of ongoing negotiations concerning Hoosier Penn’s potential



      2
          Wilcher obtained title to the Site in 1997.
      3
       It was actually SSI’s predecessor, Surplus Acquisition and Recycling Consultants of America Inc., d/b/a
      SARCO, that leased the site. SARCO became SSI around 2004. In the interest of clarity, SSI and SARCO
      will both be referred to as SSI.

      Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016                     Page 3 of 24
      purchase of the Site. Although Keramida did not conduct a full investigation of

      the Site, it nevertheless discovered contamination in multiple areas of the Site

      that met or exceeded state and federal standards in effect at the time that would

      have required remediation. Keramida provided a Corrective Action Plan (the

      Keramida CAP) to Hoosier Penn, Hulen, and Hulen’s attorneys in which it set

      forth its findings and recommended extensive soil and groundwater testing and

      remediation. In light of the extent of the contamination and potential

      investigation and remediation costs identified in the Keramida CAP, Hoosier

      Penn offered to purchase the property from Hulen for $1, with the

      understanding that Hoosier Penn would undertake the remedial actions set

      forth in the Keramida CAP. Hulen refused the offer, and Hoosier Penn

      relocated its business. In June 1994, Hulen’s attorney reviewed the Keramida

      CAP and sent Hulen a letter setting forth his opinion that no regulatory

      authority would reasonably require further investigation or corrective action at

      the Site. No remediation was conducted at that time.


[4]   Shortly thereafter, Hulen sold the property to Wilcher. As part of the

      transaction, Hulen and Wilcher executed and recorded an “Environmental

      Disclosure Document for Transfer of Real Property” (the Disclosure

      Document), as was required by applicable law at that time. Appellant’s Appendix

      at 325. The Disclosure Document makes repeated reference to an

      environmental report prepared by Patriot Engineering (the Patriot Report). The

      Disclosure Document indicated that the transferor had conducted operations on

      the Site involving hazardous substances, petroleum, and hazardous waste, and


      Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016   Page 4 of 24
      that there were ASTs, USTs, and container storage areas on the Site. The

      Disclosure Document further indicated that hazardous substances or petroleum

      had come into contact with the ground at the Site and that soil testing and

      groundwater monitoring had been conducted at the Site as a result. The

      Disclosure Document indicated that there were no other environmental defects

      on the Site, but there was an asterisk next to this representation directing the

      reader to “see reported soil and groundwater contamination as described in the

      aforementioned Patriot Report.” Id. at 333. The drafter of the Disclosure

      Document answered several questions on the form in the negative, but added

      language directing the reader to review the Patriot Report. The Disclosure

      Document, but not the Patriot Report, was incorporated into the deed record

      available to the public prior to SSI’s purchase of the Site. The Disclosure

      Document indicates that a copy of the Patriot Report is available upon request

      from Hulen, but the Patriot Report was not designated in this case, and it

      appears that the parties have been unable to locate it.


[5]   On May 8, 1996, an employee of the Marion County Health Department

      conducted a field inspection at the Site and spoke to Barry Schuchman, one of

      SSI’s principals. In his inspection notes, the investigator noted that removal of

      an old AST basin and metal tanks had exposed “highly contaminated

      soil/some pools of fluid on water.” Id. at 167. The inspection notes indicate

      that Schuchman informed the investigator that Hoosier Penn would be

      performing remediation in the area. No such remediation occurred.




      Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016   Page 5 of 24
[6]   Shortly after entering into the lease with Wilcher, SSI entered into negotiations

      to purchase the Site. Schuchman testified that during those negotiations,

      Wilcher provided SSI with a copy of a Phase I environmental report that had

      been prepared in conjunction with Wilcher’s purchase of the Site from Hulen

      (the Wilcher Phase I). According to Schuchman, the Wilcher Phase I was a

      one-page document that “said the property was clean and there was no problem

      with the property.” Appellant’s Appendix at 339. The Wilcher Phase I has not

      been produced in this litigation or designated as evidence.


[7]   Schuchman testified further that in 1997, prior to SSI’s purchase of the Site, he

      personally observed stained soil around the former ASTs and that SSI

      consequently had the top two feet of soil in that area excavated and removed.

      No testing was done to ascertain the extent of the contamination or to confirm

      that the excavation was sufficient remediation, and neither SSI nor Wilcher

      obtained a determination from the Indiana Department of Environmental

      Management (IDEM) that no further action was necessary.


[8]   In June 1998, shortly after purchasing the Site, SSI received a copy of another

      Phase I environmental report (the 1998 Phase I). The 1998 Phase I provided

      that the assessment had “revealed no evidence of recognized environmental

      conditions in connection with the property except for” the Site’s historical use as

      a “bulk oil storage area with eight [USTs] and thirteen [ASTs].” Id. at 183

      (emphasis supplied). The 1998 Phase I further indicated that an environmental

      assessment had been performed on the Site around 1995, but that the report

      from that assessment was unavailable at that time. Schuchman testified that

      Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016   Page 6 of 24
       upon receiving the 1998 Phase I, he believed that SSI was “stuck” with a

       potentially contaminated property. Id. at 163.


[9]    Another Phase I Environmental Site Assessment was conducted in 2003 (the

       2003 Phase I) in conjunction with a possible sale of the Site. The 2003 Phase I

       noted multiple recognized environmental conditions on the Site, and as a result

       of the 2003 Phase I and a subsequent Phase II, the potential buyer delayed and

       ultimately declined to purchase the Site. Subsequent investigations confirmed

       the presence of extensive environmental contamination at the Site.


[10]   On December 20, 2006, IDEM sent SSI a letter directing SSI to conduct an

       investigation to determine the nature and extent of the contamination and

       create a report pursuant to Ind. Code § 13-24-1-6. After receiving two

       investigative reports from SSI, IDEM sent SSI another letter, dated December

       16, 2010, instructing SSI to submit a remediation work plan. On December 30,

       2011, IDEM approved SSI’s remediation work plan and directed SSI to

       implement the plan. SSI is currently in the process of conducting the work set

       forth in the plan and has incurred extensive remediation costs.


[11]   On November 9, 2009, SSI filed a complaint against Hoosier Penn, Union Oil,

       BP, and Univar seeking reimbursement for costs incurred and to be incurred in

       the future by SSI in investigating and remediating the contamination.

       Specifically, SSI asserted claims under the ELA, the Indiana Underground

       Storage Tank Act (USTA), and the PRS. On July 3, 2014, the Former




       Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016   Page 7 of 24
       Operators4 filed a joint motion for partial summary judgment on SSI’s claims

       under the ELA and the PRS. On May 15, 2015, the trial court entered its order

       granting the Former Operators’ motion for partial summary judgment,

       concluding that SSI’s ELA claim was untimely and that the PRS does not

       provide SSI with a right to recover from the Former Operators under the

       circumstances of this case. SSI filed a motion to certify the order for

       interlocutory appeal, which the trial court granted on July 8, 2015. This court

       accepted jurisdiction on September 4, 2015, and this appeal ensued.


                                            Discussion & Decision


[12]   The standard of review applicable to appeals from summary judgment is well

       settled:


       We review an order for summary judgment de novo, which is the same
       standard of review applied by the trial court. The moving party must
       “affirmatively negate an opponent’s claim” by demonstrating that the
       designated evidence raises no genuine issue of material fact and that the
       moving party is entitled to judgment as a matter of law. The burden
       then shifts to the nonmoving party to demonstrate a genuine issue of
       material fact. In reviewing the record, we construe all reasonable
       inferences in favor of the nonmoving party. Summary judgment is
       inappropriate when genuine factual issues persist—that is, when the
       designated evidence “support[s] conflicting reasonable inferences.”




       4
        Univar did not join in the motion for summary judgment and is not included in the term “Former
       Operators” for the purposes of this opinion.

       Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016                    Page 8 of 24
       Ind. Restorative Dentistry, P.C. v. Lavens Ins. Agency, Inc., 27 N.E.3d 260, 264 (Ind.

       2015) (citations omitted).


[13]   The trial court in this case entered extensive findings and conclusions in its

       summary judgment order. Although we are not bound by such findings and

       conclusions, they aid our review by providing reasons for the trial court’s

       decision. Allen Gray Ltd. P’ship IV v. Mumford, 44 N.E.3d 1255, 1256 (Ind. Ct.

       App. 2015). We will affirm the trial court’s order granting summary judgment

       on any theory or basis supported by the record. Id.


                       1. The Statute of Limitation Applicable to the ELA Claim


[14]   The ELA does not include an express statute of limitation.5 Thus, the threshold

       issue in this case is what statute of limitation applies to SSI’s ELA claim. The




       5
           In 2011, the General Assembly enacted I.C. § 34-11-2-11.5, which provides in pertinent part that:

                (b) Subject to subsections (c), (d), and (e), a person may seek to recover the following in an
                action brought on or after the effective date of this section under IC 13-30-9-2 or IC 13-23-13-
                8(b) to recover costs incurred for a removal action, a remedial action, or a corrective action:
                  (1) The costs incurred not more than ten (10) years before the date the action is brought, even
                  if the person or any other person also incurred costs more than ten (10) years before the date
                  the action is brought.
                  (2) The costs incurred on or after the date the action is brought.
       In Bernstein v. Bankert, 733 F.3d 190, 217 n.16, 219 (7th Cir. 2012), the Seventh Circuit refers to I.C. § 34-11-
       2-11.5 as a statute of limitation. Although this provision appears in a chapter of the Indiana Code titled
       “Specific Statutes of Limitation,” I.C. § 34-11-2-11.5 does not fit that description. See Ind. Code § 1-1-1-5(f)
       (providing that “[t]he headings of titles, articles, and chapters as they appear in the Indiana Code . . . are not
       part of the law . . . and are not intended to affect the meaning, application or construction of the statute they
       precede”). I.C. § 34-11-2-11.5 says nothing of the time frame within which an ELA claim must be brought or
       the events that trigger the running of that period. Instead, it imposes a limitation on the types of damages
       recoverable in an ELA claim in the form of a ten-year look-back period. In any event, the parties do not
       dispute that I.C. § 34-11-2-11.5 is inapplicable in this case because SSI’s action was commenced prior to its
       enactment.

       Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016                             Page 9 of 24
       Former Operators argue that the six-year statute of limitation applicable to

       claims for damage to real property set forth in Ind. Code § 34-11-2-7 applies.

       SSI argues that their ELA claim is one for contribution rather than property

       damage and, therefore, the ten-year catch-all statute of limitation set forth in

       I.C. § 34-11-1-2 applies. Finding this court’s decision in Peniel Group, Inc. v.

       Bannon, 973 N.E.2d 575 (Ind. Ct. App. 2012), trans. denied, controlling, the trial

       court concluded that the six-year statute of limitation applies to SSI’s ELA

       claim. On appeal, SSI argues that Peniel is distinguishable and therefore not

       controlling and that Bernstein v. Bankert, 733 F.3d 190 (7th Cir. 2012), in which

       the Seventh Circuit distinguished Peniel and applied the general, ten-year statute

       of limitation to an ELA claim, is analogous and persuasive.


[15]   The ELA provides that:

       A person may, regardless of whether the person caused or contributed
       to the release of a hazardous substance or petroleum into the surface or
       subsurface soil or groundwater that poses a risk to human health and
       the environment, bring an environmental legal action against a person
       that caused or contributed to the release to recover reasonable costs of a
       removal or remedial action involving the hazardous substances or
       petroleum.


       Ind. Code § 13-30-9-2.


[16]   In Peniel, another panel of this court considered whether the six-year or ten-year

       statute of limitation applied to an ELA claim. The Peniel plaintiffs owned and

       operated a piece of property that had previously been operated as a dry-cleaning

       business, and they brought an ELA claim against the former owners and

       Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016   Page 10 of 24
       operators seeking to recover costs relating to investigation and remediation of

       contamination on the property. The defendants filed a motion for summary

       judgment asserting that the ELA claim was barred by the six-year statute of

       limitation. The plaintiffs filed a response arguing that their claim was one for

       contribution rather than property damage and, consequently, the general ten-

       year statute of limitation applied. Peniel, 973 N.E.2d at 576-78.


[17]   In reaching the conclusion that the plaintiffs’ claim was for property damage as

       opposed to contribution, the court explained that “[c]ontribution involves the

       partial reimbursement of one who has discharged a common liability.” Id. at

       581. The court noted that there was no Indiana case law addressing the

       applicable statute of limitation under the ELA and looked to a federal district

       court decision, Taylor Farm Ltd. Liab. Co. v. Viacom, Inc., 234 F. Supp. 2d 950

       (S.D. Ind. 2002), for guidance. In that case, the plaintiffs filed an ELA claim

       against Viacom, which had entered into a comprehensive settlement agreement

       with the EPA requiring it to clean up hazardous waste at a former landfill. The

       Taylor court addressed whether the ELA claim was barred by the

       Comprehensive Environmental Response, Compensation, and Liability Act’s

       “contribution bar,” which provides that individuals who have resolved their

       liability to the United States via a judicially-approved settlement shall not be

       liable for contribution claims regarding matters addressed in the settlement.

       The district court concluded that the ELA “is not, on its face, a contribution

       scheme” because it “permits ‘any person’ to sue to ‘recover the reasonable costs

       of a removal or remedial action.’” Id. at 962. The district court explained,


       Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016   Page 11 of 24
       “[u]nder the common law of contribution, only a defendant in a lawsuit, or a

       party who has already been found liable in a previous action may bring a claim

       for contribution.” Id. at 972.


[18]   Relying on Taylor, the Peniel court concluded that claims brought under the

       ELA were not contribution claims:


       We cannot say that a claim brought under the ELA is a claim for
       contribution where it allows a plaintiff who is neither liable for the
       release of a hazardous substance nor has been found liable, to recover
       the costs of remediation from another party “without regard to the
       plaintiff’s part in causation of the damage.” Accordingly, we find that
       the ELA is subject to the six-year statute of limitations pursuant to
       Indiana Code section 34-11-2-7(3) (providing that actions for injuries to
       real property must be commenced within six years after the cause of
       action accrues).


       Peniel, 973 N.E.2d at 582 (footnote and citation omitted).


[19]   SSI argues that Peniel is distinguishable and directs our attention to Bernstein,

       733 F.3d 190. Bernstein involved a site that had been formerly operated as a

       waste-handling and disposal facility. The plaintiffs in that action were the

       trustees of a fund created to finance and oversee the cleanup of the property,

       and the defendants were former owners and their insurers, none of whom had

       paid into the trust despite an alleged obligation to do so. Specifically, the

       defendants had entered into Administrative Orders by Consent (AOCs) with

       the EPA in 1999 and 2002 pursuant to which they and other respondents

       agreed to create a trust and fund it to the extent necessary to finance

       remediation efforts and, in exchange, the EPA conditionally agreed not to sue
       Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016   Page 12 of 24
       the defendants in relation to the environmental contamination. When the

       defendants did not fulfill their obligations under the 2002 AOC, the trustees

       sued to recover cleanup costs under the ELA and other statutes. The

       defendants successfully moved for summary judgment on statute of limitation

       grounds, and the trustees appealed.


[20]   As in this case, the trustees in Bernstein argued that the ten-year catch-all statute

       of limitation applied, while the defendants argued that the six-year property

       damage statute of limitation applied. In resolving this issue, the Seventh Circuit

       compared our Supreme Court’s decision in Pflanz v. Foster, 888 N.E.2d 756 (Ind.

       2009), with this court’s decision in Peniel.


[21]   In Pflanz, the purchasers of a parcel of land that had previously been operated as

       a gas station incurred extensive remediation costs after IDEM issued a cleanup

       order related to leaking USTs on the property. The purchasers brought suit

       against the former owners under the USTA, and their complaint was dismissed

       as untimely. Although the parties in Pflanz agreed that the general ten-year

       statute of limitation applied, they disagreed as to what events triggered the

       running of that period. Noting that the issue was not in dispute, the Pflanz court

       applied the ten-year statute of limitation without analysis and instead focused

       its attention on the events triggering the running of the statute of limitation.


[22]   Despite the lack of analysis on the issue in Pflanz, the Bernstein court reasoned

       that application of the ten-year limitation period in that case was decided rather

       than presumed. According to the Bernstein court, “[t]he Indiana Supreme Court


       Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016   Page 13 of 24
       simply would not have applied the ten-year catch-all if it was legally incorrect to

       do so, whether the parties agreed to it or not. Their decision to honor the

       parties’ agreement therefore amounted to a decision that the limitation period

       agreed to was legally correct.” 733 F.3d at 218, n.18. The Bernstein court noted

       further that although Pflanz addressed a USTA claim, the USTA was similar to

       the ELA in that it creates a cause of action for one who has undertaken

       environmental remediation to recover costs from the parties responsible for the

       contamination and does not include its own express statute of limitation. Id. at

       217-18.


[23]   The Bernstein court distinguished Peniel on the basis that the court in that case

       “confronted a different kind of claim” because the plaintiffs in that case “were

       the owners of the real property in question and were not themselves responsible

       in any way for the contamination at the site[.]” Id. at 218. In response to the

       defendants’ argument that the outcome of the case should be controlled by

       Peniel because it addressed an ELA claim, as opposed to Pflanz, which

       addressed a USTA claim, the Bernstein court reasoned as follows:


       [U]nder these circumstances, the statute under which the claim is
       brought does not determine the limitations period. Indeed, it cannot do
       so, because the statute under which the claim was brought did not have
       a limitations period. That is the root of the problem. What Peniel
       shows is that the underlying nature of the claim is what matters, a
       principle which is well-established in Indiana law. Specifically, the
       Peniel court found that a property damage claim brought under the ELA
       . . . was governed by the statute of limitations for property damages.
       That makes sense, given the nature of the claim. But not every ELA
       claim is one for property damages. In this case, for example, the

       Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016   Page 14 of 24
       Trustees have no proprietary interest in [the contaminated site]. The
       [defendants] do. There is no plausible legal theory under which we
       might find that the Trustees are suing the [defendants]—who are the
       only parties with a proprietary interest in [the contaminated site]—for
       damages to the real property at [the contaminated site]. Neither the
       “nature or substance” of this ELA claim shows that it is an action for
       property damages, and the property damages limitations period
       therefore does not apply.


       Id. at 219 (citations omitted). Thus, having found that the specific claim set

       forth by the trustees was not one for property damage, the court determined

       that the claim fell within the ten-year catch-all statute of limitation set forth in

       I.C. § 34-11-1-2 regardless of whether the claim was called “a contribution

       action, or a cost-recovery action, or . . . some other name.” Id.


[24]   SSI attempts to distinguish Peniel on appeal. SSI first argues that unlike in this

       case, the plaintiffs in Peniel were fully aware of the contamination before they

       purchased the property. The Former Operators dispute this interpretation of

       Peniel’s facts, but we need not resolve the disagreement as it is irrelevant to the

       question of which statute of limitation applies. The date on which SSI became

       aware of contamination on the Site is pertinent only to the question of when the

       ELA claim accrued, which will be addressed separately below.


[25]   Next, SSI argues that Bernstein and Peniel both found the question of whether

       the plaintiff was alleged to have contributed to the contamination relevant to

       the determination of which statute of limitation applies. Indeed, in discussing

       Peniel, the Bernstein court noted that the Peniel plaintiffs were the owners of the

       property and were not themselves responsible for the contamination. SSI

       Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016   Page 15 of 24
       argues that this case “differs materially from the present case” because the

       Former Operators have alleged that SSI contributed to the contamination.

       Appellant’s Brief at 11.


[26]   The Former Operators respond that “[a]n affirmative defense raising

       comparative fault . . . does not in and of itself change the nature of SSI’s claim

       from a cost recovery/property damage claim into one of contribution.”

       Appellee’s Brief at 14. We agree. Whether the plaintiffs were alleged to have

       contributed to the damage was not the pivotal factor in either Bernstein or

       Peniel—indeed, an apparent similarity between those cases is that in neither case

       were the plaintiffs alleged to have caused any damage to the property, and this

       court’s holding in Peniel was not premised on the plaintiffs’ status as innocent

       purchasers of contaminated property.6 Rather, the crucial distinction between

       those cases is that the Bernstein plaintiffs had never held any proprietary interest

       in the contaminated site, while the Peniel plaintiffs were the owners and

       operators of the property at issue. Because the Bernstein plaintiffs could not

       possibly bring suit for damage to property they did not own, the six-year statute

       of limitation applicable to claims for damage to real property did not apply.

       The Peniel plaintiffs, on the other hand, sought to recover costs relating to the

       remediation of their own property. Regardless of their role, if any, in causing




       6
         The Peniel court did not discuss whether the plaintiffs had contributed to the contamination in its analysis.
       It only generally mentioned an ELA plaintiff’s potential liability or lack thereof in the context of holding that
       ELA claims are not on their face contribution claims because the ELA allows a plaintiff to recover costs of
       remediation without regard to the plaintiff’s part in causing the damage. 973 N.E.2d at 582.

       Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016                          Page 16 of 24
       the damage to the real property at issue, their claim was inescapably one for

       damage to that property.


[27]   The same is true here. SSI is seeking recovery of costs incurred to remediate its

       own property. No amount of careful wording or clever analysis can transform

       what is so plainly a claim for damage to real property into one for contribution.

       We also note the absurdity inherent in the approach SSI proposes—it would

       subject an innocent purchaser of contaminated property to a shorter statute of

       limitation than a property owner who had contributed to the property’s

       damaged condition. Indeed, purchasers could theoretically extend the

       applicable statute of limitation by releasing hazardous substances onto their

       own property. We will not endorse such an illogical result. For all of these

       reasons, we conclude that SSI’s ELA claim is, in substance, a claim for damage

       to real property. See Cooper, 899 N.E.2d at 1284 (noting that “[t]he substance of

       a cause of action, rather than its form, determines the applicability of the statute

       of limitation”). As such, it is subject to the six-year statute of limitation set

       forth in I.C. § 34-11-2-7.


                                        2. Accrual of the ELA Claim


[28]   Having concluded that SSI’s ELA claim is subject to the six-year statute of

       limitation set forth in I.C. § 34-11-2-7, we now turn our attention to the

       question of when the cause of action accrued. As our Supreme Court has

       explained,




       Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016   Page 17 of 24
       [u]nder Indiana’s discovery rule, a cause of action accrues, and the
       limitation period begins to run, when a claimant knows or in the
       exercise of ordinary diligence should have known of the injury. The
       determination of when a cause of action accrues is generally a question
       of law. For an action to accrue, it is not necessary that the full extent of
       the damage be known or even ascertainable, but only that some
       ascertainable damage has occurred.


       Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1280 (Ind. 2009)

       (citations omitted). Moreover, a plaintiff has a duty under the discovery rule to

       exercise reasonable diligence to discover negligent acts or omissions. Bambi’s

       Roofing, Inc. v. Moriarty, 859 N.E.2d 347, 356 (Ind. Ct. App. 2006).

       Accordingly, a claim will accrue “where the acts and circumstances of an injury

       would put a person of common knowledge and experience on notice that some

       right of his has been invaded or that some claim against another party might

       exist.” Id.


[29]   The trial court found that the undisputed facts establish that SSI had actual

       knowledge sufficient to trigger the limitations period in July 1998. We reach

       the same conclusion. The Former Operators designated evidence establishing

       that that in May 1996—well before SSI purchased the property—an inspector

       with the Marion County Health Department observed that removal of an old

       AST basin and metal tanks had exposed “highly contaminated soil/some pools

       of fluid on water.” Appellant’s Appendix at 167. The inspector interviewed

       Schuchman, who stated that Hoosier Penn would be performing remediation in

       the area. Hoosier Penn performed no such remediation. Moreover,

       Schuchman testified in his deposition that he was aware that the property had

       Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016   Page 18 of 24
       been used previously as a storage facility for petroleum products and that he

       had personally observed stained soil in the former AST area before SSI

       purchased the Site. As a result, SSI had the top two feet of soil in that area

       excavated and removed, but no follow-up testing was conducted to determine

       the extent of the remaining contamination, if any. Schuchman testified that

       “[t]esting should have been done,” but that after the soil was excavated, “[i]t

       looked clean. So as far as we were concerned, it was clean.” Id. at 404.

       Schuchman testified further that upon receiving the 1998 Phase I—which

       indicated that the Site’s historical use as a bulk oil storage area with multiple

       USTs and ASTs was a recognized environmental condition—he believed that

       SSI was “stuck” with a potentially contaminated property.


[30]   On appeal, SSI argues that Schuchman’s observation of surface soil staining

       was not sufficient to put SSI on notice of potential contamination because the

       staining was limited to a discrete area that was excavated prior to SSI’s

       purchase of the Site. SSI does not mention, however, Schuchman’s own

       testimony that follow-up testing should have been conducted, but that no such

       testing occurred because the soil “looked clean.” Appellant’s Appendix at 404.

       Even if we accept SSI’s assertion that Schuchman and SSI subjectively believed

       the Site was clean based on the Wilcher Phase I and the excavation of the

       stained soil, we must apply an objective standard in determining the accrual

       date for its claims. See Martin Oil Mktg. Ltd. v. Katzioris, 908 N.E.2d 1183, 1188

       (Ind. Ct. App. 2009) (explaining that “we apply an objective standard to the

       plaintiff’s actions, not a subjective one”). We cannot conclude that a visual


       Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016   Page 19 of 24
       inspection by one of SSI’s principals following the removal of the stained soil

       would satisfy a reasonable person in SSI’s position that any potential

       contamination had been abated. Indeed, even Schuchman admitted that

       “[t]esting should have been done[.]” Appellant’s Appendix at 404. Under these

       facts and circumstances, we conclude that by July 1998 at the latest, SSI had

       knowledge sufficient to trigger its duty to inquire further in order to determine

       whether a legal wrong had occurred. See Martin Oil, 908 N.E.2d at 1188-89.

       Because SSI filed its ELA claim in November 2009, well outside the applicable

       six-year statute of limitation, the claim is time-barred.7


                                           3. Recovery Under the PRS


[31]   The PRS gives IDEM the authority to order a property owner or responsible

       person to undertake remedial action with respect to a release of petroleum at a

       petroleum facility, I.C. § 13-24-1-1(a), and, under certain circumstances, to

       undertake remedial action itself. I.C. § 13-24-1-2. Specifically, Section 2 of the

       PRS provides that IDEM may undertake removal or remedial action if:


       (1) the action is necessary, in the judgment of the commissioner, to
       protect human health and the environment; and




       7
         Because we conclude that the designated evidence establishes that SSI had actual knowledge sufficient to
       trigger the running of the six-year statute of limitation by July 1998 at the latest, we need not consider the
       trial court’s conclusions that SSI also had constructive knowledge of the contamination based on the
       recorded Disclosure Document and that SSI is charged with the knowledge of its predecessors-in-title
       concerning the contents of the Keramida CAP.



       Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016                          Page 20 of 24
       (2) a person cannot be found not later than ninety (90) days after the
       suspected or confirmed release is identified who is:


                        (A) an owner or operator of the petroleum facility or a
                        responsible person; and


                        (B) capable of properly carrying out removal or remedial
                        action with respect to the release.


       Id. Additionally, IDEM may undertake remediation without delay in the event

       of an emergency. I.C. § 13-24-1-2(c).


[32]   Section 4 of the PRS provides that an owner or operator of a petroleum facility

       is liable to the State for the costs of any remedial action taken pursuant to

       section 2. I.C. § 13-24-1-2(a). Section 4 also provides a means by which an

       owner, operator, or responsible party that is liable for the costs of remedial

       action taken by the State may recover those costs from other responsible parties.

       Specifically, Subsection 4(b) provides that:

       The owner, operator, or responsible person is entitled to all rights of the
       state to recover from another responsible person all or a part of the costs
       described in subsection (a) incurred or paid to the state by the owner,
       operator, or responsible person in an action brought in a circuit or
       superior court with jurisdiction in the county in which the release
       occurred.


[33]   The trial court concluded that Section 4 did not permit SSI to recover costs

       from the Former Operators pursuant to the PRS in this case because “[t]he

       plain language of the statute limits private recovery to actions taken under

       Section 2 of the statute and does not extend private actions to Section 6 or any
       Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016   Page 21 of 24
       other section of the statute.” Appellant’s Appendix at 35. Thus, the trial court

       concluded that SSI had no private right of action under the PRS because “SSI

       designated no evidence it incurred costs or paid the State for any actions

       undertaken pursuant to [Section 2.]” Id. at 36. In other words, the trial court

       concluded that because it was SSI that undertook remediation at IDEM’s

       direction, as opposed to IDEM carrying out the remediation itself pursuant to

       Section 2 and seeking to recover costs from SSI, the PRS did not permit SSI to

       recover costs from third parties.


[34]   On appeal, SSI does not dispute that its right to recover under Section 4 is

       limited to costs related to action taken under Section 2. However, SSI takes

       issue with the trial court’s interpretation of Section 2(a). 8 SSI argues that “[t]he

       better and more logical reading is that SSI . . . may perform removal and

       remedial action work at a non-emergency site when other responsible parties

       have not stepped up within 90 days, and in that case SSI may via I.C. § 13-24-1-

       4(b) seek reimbursement” just like IDEM. Appellant’s Brief at 27.


[35]   We note, however, that our notions of what is “better” and “more logical” do

       not trump the language of the PRS, which is in this case quite clear. Section

       4(b) provides that an owner, operator, or responsible person is entitled to

       recover from other persons all or part of the costs described in section 4(a).

       Section 4(a) provides that an owner, operator, or responsible party is liable to




       8
           SSI makes no argument that action was taken pursuant to the emergency provision of Section 2(c).


       Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016                       Page 22 of 24
       the state for the costs of remedial action taken under section 2. In turn, section

       2 sets forth the circumstances under which the state may undertake remedial

       action with respect to a petroleum facility release. These sections work together

       to demonstrate that the PRS extends a limited right of recovery to private

       parties. It allows an owner, operator, or responsible party to recover from

       another responsible party where the State has incurred remediation costs

       pursuant to section 2 and passed those costs on to the owner, operator, or

       responsible party seeking recovery. Because IDEM did not incur remedial costs

       pursuant to section 2 of the PRS, and consequently passed no costs on to SSI

       pursuant to section 4(a), SSI cannot recover from other responsible parties

       pursuant to section 4(b).


[36]   Because we find the language of the PRS clear and unambiguous, we may not

       engage in judicial construction. See Siwinski v. Town of Ogden Dunes, 949 N.E.2d

       825, 828 (Ind. 2011) (noting that “[i]f a statute is clear and unambiguous on its

       face, no room exists for judicial construction”). Nevertheless, we note that we

       are unpersuaded by SSI’s argument that a broader construction is necessary to

       prevent the absurdity of “requir[ing] property owners to thumb their noses at

       IDEM upon receipt of a [PRS] demand, lest that property owner get stuck

       holding the bag when it tries to pass on some or all of its costs to ‘another

       responsible person.’” Appellant’s Brief at 28. This argument presumes that the

       PRS is the only means by which property owners may recover remediation

       costs relating to a petroleum facility release from other responsible parties. This

       is simply not the case. The ELA allows an owner of property contaminated by


       Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016   Page 23 of 24
       a petroleum facility release to bring an action to recover remediation costs from

       another person that caused or contributed to the release. See Cooper, 899 N.E.2d

       at 1281 (noting that the ELA “overlaps in some ways” with the USTA and the

       PRS). We are not at liberty to construe the PRS more broadly than its language

       allows so as to relieve SSI of the consequences of its failure to file its ELA claim

       within the applicable limitation period.


                                                    Conclusion


[37]   For all of these reasons, we conclude that the trial court correctly concluded

       that SSI’s ELA claim is time-barred and that the PRS does not provide SSI with

       a right to recover from the Former Operators under the circumstances of this

       case. Accordingly, we affirm the trial court’s partial summary judgment order

       on those claims.


[38]   Judgment affirmed.


[39]   Robb, J. and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016   Page 24 of 24
