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FOR PUBLICATION

ATTORNEYS FOR APPELLANT, 7-Eleven, Inc.: MICHAEL J. WALL Rothschild Barry & Myers Chicago, Illinois JAMES V. WOODSMALL Warrick & Boyn, LLP Elkhart, Indiana ATTORNEY FOR APPELLANT, ENSR, Corporation: DAVID L. HATCHETT Hatchett & Hauck, LLP Indianapolis, Indiana ATTORNEY FOR APPELLANTS, MDK Corporation and C&J Realty, LP: MICHAEL A. BIANCO Newby Lewis Kaminski & Jones, LLP LaPorte, Indiana

ATTORNEYS FOR APPELLEES: THOMAS A. BARNARD RODNEY L. MICHAEL, JR. Sommer Barnard, P.C. Indianapolis, Indiana JOHN D. ULMER Yoder Ainlay Ulmer Goshen, Indiana

IN THE COURT OF APPEALS OF INDIANA
7-ELEVEN, INC., MDK CORPORATION, ) C & J REALTY, LP, and ENSR CORPORATION, ) ) Appellants-Defendants, ) ) vs. ) ) LARRY BOWENS, and KATHY BOWENS, et al., ) ) Appellees-Plaintiffs. )

No. 20A03-0505-CV-201

APPEAL FROM THE ELKHART SUPERIOR COURT The Honorable George W. Biddlecome, Judge Cause No. 20D03-0209-CT-48

November 27, 2006

OPINION - FOR PUBLICATION BARNES, Judge

Case Summary 1 7-Eleven, Inc., and ENSR Corporation and MDK Corporation and C&J Realty, L.P., (collectively "the Defendants") 2 appeal the trial court's certification of a class as defined by Larry Bowens, et al., ("the Plaintiffs"). We affirm. Issues We consolidate, reorder, and restate the issues raised by the Defendants as: I. whether the trial court properly limited the certification of the class to issues of liability and general causation; whether the trial court properly concluded that the Plaintiffs satisfied the requirements of Indiana Trial Rule 23(A); and

II.

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We held oral argument on September 5, 2006. We commend counsel for their advocacy.

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7-Eleven and ENSR filed a joint appellants' brief and MDK and C & J filed a joint appellants' brief. We recognize, however, that the various defendants may have differing involvement and potential liability in this action. For purposes of their arguments on appeal where they are similar or overlap, we will address them as "the Defendants."

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III.

whether the trial court properly concluded that the Plaintiffs satisfied the requirements of Indiana Trial Rule 23(B). Facts 3

The Plaintiffs own, occupy, or have occupied homes in a several-block area ("the Jackson Street Neighborhood") near what is currently a 7-Eleven gas station ("the Station") in Goshen. MDK owned the Station until May 12, 1998, when the Station was sold to Southland on August 4, 1998. Southland changed its name to 7-Eleven on April 20, 1999. MDK and 7-Eleven stored gasoline in underground storage tanks ("USTs") at the Station. On September 26, 1996, 4 a release of gasoline occurred from the USTs at the Station. MDK, the owner at the time, filed a report with the Indiana Department of Environmental Management ("IDEM"). On March 31, 1998, MDK's environmental consultant, Alt & Witzig Engineering, submitted a letter to IDEM requesting more time to determine the extent of the contamination from the 1996 release. Alt & Witzig installed several groundwater-monitoring wells at the Station. In 1999, after 7-Eleven purchased the station, ENSR, an environmental consultant acting on behalf of 7-Eleven, installed additional wells and began collecting results from various groundwater-monitoring wells placed throughout the Jackson Street

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As evidenced by the twenty-four volumes of appendices filed by the parties, this case has produced a tremendous amount of litigation. Our restatement of the procedural history is limited to that which is necessary to resolve the issues raised in this appeal. 4 In their brief, the Plaintiffs describe a 1991 release of kerosene by MDK, and the Defendants do not appear to dispute that this release occurred. The Plaintiffs' third amended complaint, however, is not based on the 1991 release and focuses on contamination from gasoline, not kerosene.

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Neighborhood. Samples from the wells showed the presence of benzene, toluene, ethyl benzenes, total xylenes, and methyl tertiary-butyl ether. On January 16, 2001, 7-Eleven and ENSR filed a report with IDEM indicating that another unspecified amount of gasoline had been released from a failed UST. It appears that in 2003, 7-Eleven and ENSR began remediation of the contaminated areas. The Plaintiffs allege that they were never informed of the releases or the potential health risks associated with exposure to the chemicals found in groundwater or indoor air. On September 25, 2002, the Plaintiffs filed their first complaint for damages and injunctive relief against 7-Eleven and MDK. On January 28, 2003, the Plaintiffs filed a motion for leave to file a second amended complaint for damages and injunctive relief. On May 23, 2003, the Plaintiffs filed a motion for class certification for all persons in the Jackson Street Neighborhood who have owned, rented, or occupied property allegedly impacted by the contamination. On October 28, 2003, the Plaintiffs filed a motion for leave to file a third amended complaint, which the trial court granted. Against MDK and 7-Eleven, the complaint alleged trespass, UST corrective action, illegal dumping, and strict liability. Against ENSR, the complaint sought relief for an environmental legal action. Against all defendants, the complaint alleged

nuisance, negligence, criminal trespass, negligent infliction of emotional distress, and punitive damages. On March 17, 2004, the trial court held an evidentiary hearing on the Plaintiffs' motion to certify the class. After the hearing, the trial court allowed the parties to

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supplement the record. On February 8, 2005, the trial court issued an order certifying the class, which provided in part: 6. . . . . The Plaintiffs in this action, including the members of the proposed class, all own or occupy (or previously owned or occupied) homes or apartment [sic] in the Jackson Street Neighborhood. The Plaintiffs' proposed class consists of the residents of approximately 63 homes. The Plaintiffs have identified at least 234 individuals who have owned or occupied homes within the proposed class area from 19962002. Using the Polk City Directory, the Plaintiffs have approximated the number of residents potentially impacted by the contaminated groundwater between 1996 and 2002. From those documents, it appears the proposed class contains at least 234 members. Based on the foregoing, the Court hereby concludes that the Plaintiffs in this case have satisfied the numerosity requirement. 7. . . . . In the present case, all Plaintiffs allege that, the Defendants contaminated the ground water and soil underlying the Jackson Street Neighborhood; that the Defendants have long delayed cleaning up this contamination and have actively concealed or misrepresented the extent of the contamination; that, the Defendant's actions and inactions have left the Plaintiffs and their families exposed to toxic vapors emitted by gasoline constituents, and that, the value of their real property has been and continues to be adversely impacted by this contamination. Plaintiffs contend that the subject contaminants leaked from three 5,000 gallon underground storage tanks and associated product lines installed at the Station and owned and operated in turn by Defendants MDK and 7-Eleven. These contentions raise issues which are common to each proposed class member. . . . The Court concludes that the Plaintiffs have satisfied the commonality requirement of Rule 23(A)(2). 8. . . . . In this case, the Plaintiffs have alleged wrongful conduct by the Defendants similarly affect them and the proposed class members. The claims of the class representatives and the class members arise from the same events and are based on the same legal theories of recovery. Each class member alleges that he or she has been damaged 5

by the Defendants' alleged releases of gasoline and by the Defendants' alleged repeated failure to remediate this contamination. The Plaintiffs, therefore have met the typicality prerequisite of Rule 23(A)(3). 9. . . . . The Plaintiffs have proposed four class representatives. All four have submitted affidavits which were admitted into evidence on March 17, 2004. Further, the claims of the proposed class representatives include and are consistent with the claims for the proposed class, the class representatives have a sufficient interest in the outcome of this class litigation, and the class representatives do not have antagonistic or conflicting claims with other members of the class. Accordingly, the Court is satisfied that the Proposed Class Representatives understand their obligation to the proposed class. The experience, qualifications, and resources of the proposed class counsel are not challenged by the Defendants. Further, the record shows that counsel have vigorously litigated the matter, and their abilities and adequacy have been demonstrated repeatedly over the course of this litigation and related proceedings. The Court finds the proposed class counsel adequate. 10. . . . . As described above, those bases described in T.R. 23(B)(1)(a) and T.R. 23 (B)(3) have been shown to exist with respect to the instant case. 11. . . . . For the reasons set forth above, the Court concludes that the requirements of Indiana Trial Rule 23(A) and Indiana Trial Rule 23(B) are satisfied, and that this matter should be certified as a class action. The class representatives proposed by Plaintiffs meet the requirements of the law and are acceptable to the Court. Class certification is limited to issues of liability and general causation, not with issues relating to damages to be decided on an individual basis. Appellees' Addend. pp. 6-9. The 7-Eleven and ENSR and MDK and C&J Realty sought to have the class action order certified for interlocutory appeal. The trial court granted the motions, and we accepted jurisdiction of this interlocutory appeal. 6

Analysis The Defendants challenge the trial court's class certification order. Indiana Trial Rule 23 governs class action proceedings. If the Plaintiffs satisfy the four requirements of Indiana Trial Rule 23(A), they must then satisfy at least one of the requirements of Indiana Trial Rule 23(B). See Indiana Bus. Coll. v. Hollowell, 818 N.E.2d 943, 948 (Ind. Ct. App. 2004). Whether an action is maintainable as a class action is committed to the sound discretion of the trial court, and we review a class certification for an abuse of that discretion. Associated Med. Networks, Ltd. v. Lewis, 824 N.E.2d 679, 682 (Ind. 2005). "The trial court's certification determination will be affirmed if supported by substantial evidence." Id. The satisfaction of the requirements for class certification is a question of fact for the trial court. Hollowell, 818 N.E.2d at 949. We neither reweigh the evidence nor judge the credibility of witnesses and affirm if the evidence most favorable to the judgment and all reasonable inferences drawn therefrom support the trial court's decision. Id. I. Indiana Trial Rule 23(C)(4) Before we determine whether Indiana Trial Rule 23(A) and (B) are satisfied, we must decide whether the trial court properly limited the certification of the class action to issues of "liability and general causation." Appellees' Addend. p. 9. Although this limitation may not be the most artfully worded, Indiana Trial Rule 23(C)(4)(a) provides that when appropriate, "an action may be brought or maintained as a class action with respect to particular issues[.]" As we have recognized:

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"The theory of Rule 23(c)(4)(A) is that the advantages and economies of adjudicating issues that are common to the entire class on a representative basis should be secured even though other issues in the case may have to be litigated separately by each class member. Accordingly, even if only one common issue can be identified as appropriate for class action treatment, that is enough to justify the application of the provision as long as the other Rule 23 requirements have been met. As a result, cases have applied subdivision (c)(4)(A) to allow a partial class action to go forward and have left questions of reliance, damages, and other issues to be adjudicated on an individual basis." Bank One Indianapolis, N.A. v. Norton, 557 N.E.2d 1038, 1041 (Ind. Ct. App. 1990) (quoting C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d

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