ATTORNEYS FOR APPELLANT                             ATTORNEYS FOR APPELLEE
Donn H. Wray                                        BORGWARNER MORSE TEC INC.
Glenn D. Bowman                                     Richard S. VanRheenen                 FILED
Marc A. Menkveld                                    Tabitha L. Balzer
Stoll Keenon Ogden PLLC
                                                                                     Aug 28 2018, 8:47 am
                                                    Lewis Kappes, P.C.
Indianapolis, Indiana                               Indianapolis, Indiana                 CLERK
                                                                                      Indiana Supreme Court
                                                                                         Court of Appeals
                                                                                           and Tax Court




                                             IN THE
     COURT OF APPEALS OF INDIANA

Estate of Walter E. Williams,                           August 28, 2018
Appellant (Third-Party Plaintiff),                      Court of Appeals Case No.
                                                        49A02-1710-PL-2224
        v.
                                                        Appeal from the Marion Superior
BorgWarner Morse TEC Inc., et                           Court
al.,                                                    The Honorable Timothy W. Oakes,
Appellees (Third-Party Defendants).                     Judge
                                                        Trial Court Cause No.
                                                        49D02-0607-PL-28561
Chuck Markey, Markey’s Audio
Visual, Inc., and D&E
Enterprises,
Plaintiffs,
        v.
George F. Kopetsky, Patricia A.
Kopetsky, George F. Kopetsky
Realty Corp., Walter E.
Williams, Edward F. Frazier,
John Bartkiewicz, Richard
Clapper, and Ted Pollard,
Defendants.



Brown, Judge.

Court of Appeals of Indiana | Opinion 49A02-1710-PL-2224 | August 28, 2018          Page 1 of 16
[1]   The Estate of Walter E. Williams (the “Estate”) appeals the trial court’s entry of

      summary judgment in favor of BorgWarner Morse TEC, Inc. (“Morse TEC”).1

      The Estate raises one issue which we revise and restate as whether the court

      erred in entering summary judgment in favor of Morse TEC. We affirm.


                                       Facts and Procedural History

[2]   This case involves an Environmental Legal Action (“ELA”) under Ind. Code §§

      13-30-9. In the 1960s, George Kopetsky constructed a building to house a

      laundromat and dry cleaning operation on property he owned at 2915 South

      Meridian Street, Indianapolis, Indiana (the “Site”). Kopetsky purchased coin-

      operated washing and dry cleaning machines and named the location Norge

      Laundry & Dry Cleaning Village (“Norge Village”). Kopetsky operated Norge

      Village until 1967 when he leased it to Edward Frazier, who operated it until

      September 29, 1969, when Williams purchased the Site and assumed

      Kopetsky’s mortgage.


[3]   Williams operated Norge Village until May 1, 1974. He leased the Site to

      others, including John Bartkiewicz and Richard Clapper, who continued to

      operate Norge Village pursuant to a lease agreement. At some point, Clapper

      withdrew from the lease arrangement. In 1981, Norge Village ceased operation




      1
       The chronological case summary (“CCS”) contains an entry, dated April 27, 2017, which states that the
      “Estate of Walter E. Williams shall be substituted for Defendant Walter E. Williams.” Appellant’s Appendix
      Volume 2 at 59.

      Court of Appeals of Indiana | Opinion 49A02-1710-PL-2224 | August 28, 2018                    Page 2 of 16
      at the Site and the machines were removed. On August 25, 1995, Williams

      sold the Site to D&E Enterprises.


[4]   On July 12, 2006, Chuck Markey, Markey’s Audio Visual, Inc., and D&E

      Enterprises, Inc., filed a complaint against Williams and others for

      environmental response costs, attorney fees, and damages under Ind. Code §§

      13-30-9 to recover the costs of remedial action involving hazardous substances

      released into the soil and groundwater. The complaint alleged that Markey was

      the owner of Markey’s Audio Visual, Inc., and D&E Enterprises, Inc., and that

      D&E Enterprises, Inc., was the current owner of the Site.


[5]   On April 30, 2008, Williams filed a third-party complaint against “Borg-Warner

      Morse TEC Corporation.” Appellee’s Appendix Volume 2 at 37. On March

      25, 2010, Williams amended its complaint, naming the defendants as “Borg-

      Warner Corporation,” “Borg-Warner Corporation, as successor in interest to

      Norge Corporation,” Morse TEC, and Burns International Services Company,

      LLC, (“Burns”). Id. at 44. The amended complaint stated in part:


              3. . . . Norge Corporation is a corporation that does or has
              existed, and conducted business in Indiana relating to its sale and
              installation of dry cleaning equipment.

              4. . . . Borg-Warner is a Delaware corporation that conducted
              business in Indiana at all times relevant to this Complaint
              through the sale of Norge brand dry cleaning equipment by its
              Norge Division.

              5. . . . Borg-Warner is a successor in interest to the Norge entity
              that conducted business in Indiana relating to the sale and
              installation of Norge brand dry cleaning equipment.

      Court of Appeals of Indiana | Opinion 49A02-1710-PL-2224 | August 28, 2018    Page 3 of 16
        6. . . . Morse TEC[] . . . conducted business at all times relevant
        to this Third-Party Complaint through the sale of Norge brand
        dry cleaning equipment by its Norge Division.

                                               *****

        10. . . . [George and Patricia Kopetsky] purchased Norge dry
        cleaning equipment and other cleaning equipment
        (“Equipment”) in the mid- to late- 1960s.

        11. . . . [R]epresentatives of Norge installed some or all of the
        equipment.

        12. . . . Borg-Warner owned and operated the Norge division
        from approximately 1929 until selling the Norge division . . . on
        July 1, 1968.

        13. . . . Morse TEC is the corporate successor in interest to Borg-
        Warner that formerly owned and operated the Norge division,
        including but not limited to the manufacture and installation of
        [the Norge dry cleaning equipment and other equipment].


                                               *****

        22. It is also believed that release of chlorinated solvents
        occurred when used or spent chlorinated solvents were
        discharged to the public sewers as arranged and directed by Borg-
        Warner and Morse TEC.

                                               *****

        32. To the extent this Court, pursuant to I.C. 13-30-9-3, in
        resolving this environmental legal action, allocates the cost of
        removal or remedial action in proportion to the acts or omissions
        of each party, Williams alleges that Morse TEC is wholly liable
        for the release of chlorinated solvents at the Site.

Id. at 45-46, 48-49.


Court of Appeals of Indiana | Opinion 49A02-1710-PL-2224 | August 28, 2018    Page 4 of 16
[6]   Morse TEC and Burns filed separate motions for summary judgment on

      Williams’s amended third-party complaint.2 On August 28, 2013, the court

      granted Burns’s motion, denied Morse TEC’s motion, and found, with respect

      to Burns, that Williams lacked standing to assert a contract claim against Burns,

      that no corporate successor liability had been created “by the ELA that would

      transfer financial responsibilities from the Norge Division to Burns,” and that

      there was no other basis for imposing successor liability on Burns. Appellant’s

      Appendix Volume 2 at 71.


[7]   With respect to Williams, the court found the costs incurred to date by him

      were “costs of removal and remedial action,” he is a real party in interest to

      pursue his third-party ELA claim against Morse TEC, and that the fact that

      Williams’s insurer, rather than Williams himself, paid the remedial and

      removal costs incurred to date does not diminish or destroy his standing to

      bring an ELA claim against Morse TEC. Id. at 72. In also concluding that an

      ELA defendant may bring a third-party ELA claim against other potentially

      responsible parties, the court stated:


              Williams can maintain an ELA claim against Morse TEC, but
              there is still a genuine issue of material fact as to whether Morse
              TEC is liable. This Court concludes that Williams has properly



      2
       The record includes copies of Morse TEC’s October 13, 2011 motion for leave to file a summary judgment
      motion on Williams’s amended third-party complaint, the accompanying motion for summary judgment,
      and the court’s December 1, 2011 order granting Morse TEC’s motion for leave to file its summary judgment
      motion. While the record does not appear to include a copy of Burns’s motion for summary judgment, the
      CCS contains an entry, dated September 29, 2011, which is titled “Motion for summary judgment against
      [Williams’s] third party claims, filed by [Burns].” Appellant’s Appendix Volume 2 at 22-23.

      Court of Appeals of Indiana | Opinion 49A02-1710-PL-2224 | August 28, 2018                   Page 5 of 16
              asserted a third-party claim against Morse TEC, and Morse TEC
              potentially may be allocated its share of responsibility according
              to the purpose and plain language of the ELA.

      Id. at 74.


[8]   On January 9, 2017, Morse TEC filed a second motion for summary judgment.3

      Its accompanying memorandum in support of the motion stated in relevant

      part:


              Cases interpreting the ELA have construed the “caused or
              contributed to the release” element of the statute to require a
              defendant’s active involvement in releasing or spreading
              hazardous substances at a site or, in the limited case of a landlord
              with actual knowledge of a release of hazardous substances,
              having sufficient control over the site to halt or remediate the
              release, yet failing to act. It is undisputed that Norge never
              released or spread PCE at the [S]ite. [Norge] never handled PCE
              at the Site or operated the dry cleaning machines at the Site. It
              was Williams (and others) who handled PCE at the Site and
              operated the dry cleaning machines. Furthermore, Norge never
              owned the Site, and therefore was never a landlord with
              knowledge of a release at the Site and control over the Site.
              Thus, Williams’ allegations that Norge manufactured and
              installed dry cleaning machines at the Site are insufficient as a
              matter of law to support ELA liability. Additionally, even if
              installation of the dry cleaning machines could support ELA
              liability (and it cannot), there is no evidence that Norge installed
              the dry cleaning machines. . . .




      3
       The record does not contain a copy of Morse TEC’s motion, but does contain copies of both the
      accompanying memorandum in support of the motion and the designation of evidence that were filed on the
      same day as the motion.

      Court of Appeals of Indiana | Opinion 49A02-1710-PL-2224 | August 28, 2018                  Page 6 of 16
               Finally, Williams’ ELA claim, brought against a manufacturer
               for property damage, is a products liability claim in disguise, and
               is barred by the applicable Indiana Products Liability Act statute
               of limitations.


       Id. at 149-150.


[9]    On April 3, 2017, Williams filed a memorandum in opposition to the second

       motion for summary judgment, which argued in relevant part that discovery to

       date showed that Morse TEC was liable “because the Norge dry cleaning

       system, as designed and described in Norge Operating Manuals, provided for

       the dry cleaning machine’s water/PCE separator to be plumbed directly to

       drains.” Id. at 180.


[10]   On April 17, 2017, Morse TEC filed its reply and, on May 1, 2017, the court

       held a hearing. On August 23, 2017, the court granted Morse TEC’s motion for

       summary judgment in an order which stated in relevant part:

                                                   Facts

                                                 *****

               The machines sat along the north and east wall of the building on
               a floor that was recessed between 4.5 and 5 inches. The Norge
               service instructions recommended all the dry cleaners be set upon
               a 4” high concrete “dike” to entrap solvent that might escape
               from the system.

                        The ‘diked’ area should be connected to a floor
                        drain in which the cleaning solvent can flow to an
                        underground storage tank. In cases where a major
                        solvent leak may occur, the solvent may be
                        pumped from the underground storage tank back

       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2224 | August 28, 2018   Page 7 of 16
                 into the Dry Cleaning System after the leak has
                 been corrected.

        The manual also provided, “The successful operation of the
        Norge Automatic Dry Cleaning Equipment is directly influenced
        by the type of installation.”

        The dry cleaning equipment always used PCE as a solvent to
        clean the clothing, “NorgClor, which was a PCE-based solvent
        made to Norge’s specifications by the Dow Chemical Company
        and distributed by Norge’s exclusive distributors.” The Norg-Clor
        PCE solvent was reclaimed from each dry cleaning load’s cycle.
        “Part of the solvent reclamation process involved an oil-water
        separator in which the solvent was separated from water. The
        water was discharged to a sanitary sewer and the reclaimed
        solvent was diverted back into the solvent tank. The water
        discharge contained ‘10 or 20 drops’ of solvent per load.” The
        Norge coin operated dry cleaning machine manual
        recommended that wastewater from operation of the equipment
        go into a sewer line. Along with the 10-20 drops of PCE per dry
        cleaning load, some amount of dissolved PCE was present in the
        machine wastewater and went into the sewer. This wastewater
        caused sewer trench contamination on the Property. Feenstra,
        who also prepared a designated expert report, opined the PCE
        released to the sewer was insufficient to explain the PCE found
        in the soil outside of the sewer area.

        There were also releases in the area under the machines, as
        evidenced by high PCE concentrations in the soil under the
        concrete. Other possible releases of PCE could be, “spills or
        leaks to the ground during delivery; leakage through the concrete
        floor of the recessed area around the dry cleaning machines;
        leakage from waste materials disposed to the dumpster; or
        leakage from the possible underground concrete tank reported to
        have been located along the north side of the building.”

                                          *****


Court of Appeals of Indiana | Opinion 49A02-1710-PL-2224 | August 28, 2018   Page 8 of 16
                                      DISCUSSION

                                          *****

        The Court FINDS Morse TEC’S involvement with the Property
        does not meet the criteria of active engagement contemplated by
        the ELA statute for “caused or contributed.” Williams alleges
        that Kopetsky purchased dry cleaning equipment designed and
        manufactured by Norge. Williams also alleges that Norge
        assisted in the installation of the equipment. As the non-moving
        party, the Court construes all inferences in Williams’s favor.
        These allegations of design, product manufacture and product
        installation, even if true, would not be sufficient to impose
        liability under the ELA against Morse TEC.

                                          *****

        The parties have not cited to the Court any ELA case where an
        off-site manufacturer is alleged to be liable under the ELA.
        Liability in all ELA cases cited by the parties, was based on facts
        that included alleged site-specific acts of spilling, dumping,
        disposing or otherwise releasing hazardous substances either at
        the site in question or at an adjacent site from whence they
        migrated to the site in question.

        The Court notes the installation manual itself shows that site-
        specific decisions relating to installation of the machines,
        including wastewater connections, were in the hands of others.
        The installation manual recommends connecting the wastewater
        discharge to a drain but also includes the phrase “per local
        building code.” Thus, according to the designated documents[,]
        others, not Norge, were responsible for waste disposal. In sum,
        the lack of any site[-]specific acts by Norge which “caused or
        contributed to the release of a hazardous substance” excludes
        Norge from liability under the ELA. This is especially true given
        that any acts resulting in the dry cleaning machines being
        connected to the sanitary sewer at the Property were in the hands
        of others. As stated by the Norge manual, “[t]he successful

Court of Appeals of Indiana | Opinion 49A02-1710-PL-2224 | August 28, 2018   Page 9 of 16
               operation of the Norge Automatic Dry Cleaning Equipment is
               directly influenced by the type of installation.”

       Id. at 81-86 (some internal citations omitted).


                                                     Discussion

[11]   The issue is whether the trial court erred in entering summary judgment in

       favor of Morse TEC. We review an order for summary judgment de novo,

       applying the same standard as the trial court. AM Gen. LLC v. Armour, 46

       N.E.3d 436, 439 (Ind. 2015). The moving party bears the initial burden of

       making a prima facie showing that there are no genuine issues of material fact

       and that it is entitled to judgment as a matter of law. Manley v. Sherer, 992

       N.E.2d 670, 673 (Ind. 2013).


[12]   “A fact is ‘material’ if its resolution would affect the outcome of the case, and

       an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing

       accounts of the truth . . . or if the undisputed material facts support conflicting

       reasonable inferences.” Celebration Worship Ctr., Inc. v. Tucker, 35 N.E.3d 251,

       253 (Ind. 2015) (quoting Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009)

       (internal citations omitted)). If the moving party affirmatively shows that there

       are no genuine issues of material fact with regard to a particular issue or claim,

       the non-moving party then bears the burden of coming forward with designated

       evidence showing the existence of a genuine issue of material fact. Holiday

       Hosp. Franchising, Inc. v. AMCO Ins. Co., 983 N.E.2d 574, 577 (Ind. 2013) (citing

       Ind. Trial Rule 56(C); Town of Avon v. W. Cent. Conservancy Dist., 957 N.E.2d

       598, 602 (Ind. 2011)). The reviewing court construes all factual inferences in

       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2224 | August 28, 2018    Page 10 of 16
       the non-moving party’s favor and resolves all doubts as to the existence of a

       material issue against the moving party. Dreaded, Inc. v. St. Paul Guardian Ins.

       Co., 904 N.E.2d 1267, 1270 (Ind. 2009) (citing N. Ind. Pub. Serv. Co. v. Bloom,

       847 N.E.2d 175, 180 (Ind. 2006)). Where the relevant facts are not in dispute

       and the interpretation of a statute is at issue, such statutory interpretation

       presents a pure question of law for which summary judgment disposition is

       appropriate. Boots v. D. Young Chevrolet, LLC, 93 N.E.3d 793, 797 (Ind. Ct. App.

       2018) (citing Clem v. Watts, 27 N.E.3d 789, 791 (Ind. Ct. App. 2015)), trans.

       denied.


[13]   Our review of a summary judgment motion is limited to those materials

       designated to the trial court. Stockton v. Falls Auctioneers and Realtors, 999

       N.E.2d 959, 963 (Ind. Ct. App. 2013) (citing Mangold ex rel. Mangold v. Ind. Dep’t

       of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001)), trans. denied. In reviewing a

       trial court’s ruling on a motion for summary judgment, we may affirm on any

       grounds supported by the Indiana Trial Rule 56 materials. Id. (citing Catt v. Bd.

       of Commr’s of Knox Cty., 779 N.E.2d 1, 3 (Ind. 2002)). Although the trial court’s

       specific findings of fact and conclusions of law assist our review, they are not

       binding upon us. Evansville Courier & Press v. Vanderburgh Cty. Health Dept., 17

       N.E.3d 922, 927 (Ind. 2014).


[14]   The Estate argues that what is required by the ELA statute is some action or

       inaction to be taken which contributes to a release of contamination, that Morse

       TEC’s actions fall within the meaning of the terms, “cause or contribute,” and

       that there is neither a threshold level of action or inaction nor a particular level

       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2224 | August 28, 2018   Page 11 of 16
       of culpability under the ELA statute. Appellant’s Brief at 11. The Estate

       argues, in essence, that Morse TEC “instructed” the users of its machines to

       discharge chlorinated solvent-contaminated water down the drain, asserts that

       “[e]very expert witness . . . agrees some PCE went down the drain,” and

       contends that Morse TEC had knowledge that chlorinated solvents were used in

       its dry cleaning, manufactured the dry cleaning machines “with the

       understanding that they would be connected to the drain . . . to discharge water

       that had contained chlorinated PCE,” and “did not take any steps to halt the

       use or discharge of chlorinated solvents from its machines.” Id. at 14.


[15]   Morse TEC argues that the court correctly found that its non-site specific acts of

       placing dry cleaning equipment in the stream of commerce, with an instruction

       manual that recommended discharging wastewater to a drain, did not satisfy

       the requirement of active involvement with the release itself and contends that

       its conclusion – that Morse TEC did not cause or contribute to the release – is

       supported by caselaw interpreting two similar federal statutes, the Resource

       Conservation and Recovery Act and the Comprehensive Environmental

       Response, Compensation, and Liability Act. Morse TEC also argues that the

       “limited landlord exception to the ‘active involvement’ requirement” does not

       apply and that, apart from the unique case of JDN Props., LLC v. VanMeter

       Enters., Inc., 17 N.E.3d 357, 360-361 (Ind. Ct. App. 2014), other cases

       discussing landlord liability have held that even with an on-site presence and

       general knowledge of spills, a landlord will not be liable in the absence of

       evidence of active involvement with the release. Appellee’s Brief at 26.


       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2224 | August 28, 2018   Page 12 of 16
[16]   Ind. Code § 13-30-9-2 provides:


               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.


[17]   The phrase “caused or contributed” is not defined by statute and, as such, the

       court is to give the words their plain and ordinary meaning. Reed v. Reid, 980

       N.E.2d 277, 289 (Ind. 2012) (citing 600 Land, Inc. v. Metro. Bd. of Zoning Appeals

       of Marion Cty., 889 N.E.2d 305, 309 (Ind. 2008) (footnote omitted)). Consulting

       English language dictionaries, the Indiana Supreme Court explained in Reed

       that the word “cause” means “a person, thing, fact, or condition that brings

       about an effect or that produces or calls forth a resultant action or state” and the

       word “contribute” means, among other things, “to act as a determining factor;

       share responsibility for something” and concluded that “[e]ach term of the

       phrase ‘caused or contributed’ requires some involvement by the actor which

       produces a result.” Id. at 289, 289 n.10.


[18]   In Reed, the defendant entered into an agreed order with the Indiana

       Department of Environmental Management, acknowledging that it “caused

       and/or allowed the disposal of solid waste in a manner which created a threat

       to human health or the environment, when it disposed of excavated soil mixed

       with mill scale, baghouse dust, refractory brick, and other debris” at the

       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2224 | August 28, 2018   Page 13 of 16
       plaintiff’s property. Id. at 289 (emphasis added). The Indiana Supreme Court

       noted the agreed order before finding that the plaintiff had carried the initial

       burden of demonstrating that the defendant “at least ‘share[d] responsibility

       for’” the release of a hazardous substance and concluding that “[o]n the narrow

       question of whether Forge ‘caused or contributed’ to the release of chromium—

       a hazardous substance—there is no dispute of material fact. The Rule 56

       materials make clear that Forge at least contributed to the release.” Id. at 289-

       290.


[19]   Here, unlike in Reed, the designated evidence establishes that Morse TEC has

       not “caused or contributed” to the release of a hazardous substance as

       contemplated by Ind. Code § 13-30-9-2. The designated portions of the Norge

       Service Instructions and Parts Catalog, referenced in Williams’s March 18,

       2011 supplemental responses to Morse TEC’s requests for admission, state in

       part, “NOTE: 1. The following to be Supplied by Others: . . . C. Drain

       Services from Machines,” contain a graphic on the same page with a label

       which states “TO DRAIN (PER LOCAL BUILDING CODE),” and also

       indicate under the “Water and Drain Supply Requirements” section that “Each

       dry cleaning machine must be provided with a separate drain stand for the

       discharge water . . . . Fabrication of the drain and water facilities will be

       accomplished on the site. NOTE: This is not waste water.” Appellee’s

       Appendix Volume 2 at 176, 181. We further observe that the Estate does not

       point to any caselaw for the proposition that a mere manufacturer of equipment

       can be held responsible under Ind. Code § 13-30-9-2. While Williams filed a


       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2224 | August 28, 2018   Page 14 of 16
third-party complaint against Morse TEC alleging that “representatives of

Norge installed some or all of the equipment” and that Morse TEC is the

“corporate successor in interest to Borg-Warner that formerly owned and

operated the Norge division, including but not limited to the manufacture and

installation” of Norge dry cleaning equipment and other cleaning equipment,

the record does not establish Morse TEC was involved in any release.4

Appellant’s Appendix Volume 2 at 142. In his supplemental responses to

Morse TEC’s requests for admission, Williams admitted that, based upon

information and documentation discovered to date, he “had no evidence Norge

owned any PCE or solvent containing PCE that was used at the Site at any

time.” Appellee’s Appendix Volume 2 at 145. While Williams asserted in his

responses to requests for admissions that it was his “understanding that the

building was constructed specifically for the Norge Dry Cleaning System and

that George Kopetsky worked with Norge on the installation of the Norge Dry

Cleaning System,” we observe that his August 26, 2011 deposition reveals that

he was not present at the premises when the building was constructed or when

the machines were installed, that he was not involved in the installation of any



4
 To the extent that Williams argues that Reed’s “some involvement” holding does not “require direct
involvement” with the contaminants at issue, contends that Morse TEC had knowledge of the contaminants
of concern in this case, and likens this case to JDN Props., LLC v. VanMeter Enters., Inc., 17 N.E.3d 357, 360-
363 (Ind. Ct. App. 2014), we observe that the evidence in JDN Properties, taken most favorable to the non-
movant, demonstrated that the landlord defendant “presumably received rents from [the tenant] while being
fully aware that [the tenant’s] use of the property was causing petroleum contamination” and that this Court
held that “a landlord who has knowledge that a tenant’s use of land is causing environmental contamination,
but does nothing to halt or remediate such contamination and goes on to sell that property to a third party
without disclosing the property’s condition, may fairly be said to ‘share responsibility’ for or contribute to
such contamination.” Appellee’s Brief at 12. JDN Props., 17 N.E.3d at 362. We do not find JDN Properties
instructive.

Court of Appeals of Indiana | Opinion 49A02-1710-PL-2224 | August 28, 2018                       Page 15 of 16
       equipment, that at the time he acquired the Site all of the equipment was

       present, that he never had any conversations with Kopetsky at the time of the

       construction or about the equipment installation, and that he had never met,

       received a letter from, written to, or talked with “anyone from Norge.” Id. at

       138, 163-164. We further observe that, to the extent that the Estate argues

       Morse TEC “instructed” the users of its machines to discharge chlorinated

       solvent-contaminated water down the drain, Williams indicated, in his

       supplemental responses to Morse TEC’s interrogatory items thirteen and

       fourteen, that he did not recall the names of any “employees or representatives

       of Norge” with whom he, anyone who owned the Site, operated any dry

       cleaning business at the Site, or was employed by any such business, had

       communicated. Id. at 146. We conclude that the trial court did not err in

       granting summary judgment.5


[20]   For the foregoing reasons, we affirm the entry of summary judgment.


[21]   Affirmed.


       Bailey, J., and Crone, J., concur.




       5
        Because we affirm the trial court’s August 23, 2017 order for the reasons above, we need not discuss either
       Morse TEC’s argument regarding the applicability of the statute of limitations set out in the Indiana Products
       Liability Act or those arguments on cross-appeal regarding the court’s August 28, 2013 order.

       Court of Appeals of Indiana | Opinion 49A02-1710-PL-2224 | August 28, 2018                      Page 16 of 16
