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ATTORNEYS FOR APPELLANT Mark E. Shere Indianapolis, Indiana Dale E. Stephenson Allen A. Kacenjar Squire, Sanders & Dempsey L.L.P. Cleveland, Ohio Mary Rose Alexander Thomas Heiden Latham & Watkins, LLP Chicago, Illinois Vicki Wright Libby Mote Krieg Devault, LLP Indianapolis, Indiana ATTORNEY FOR HARTFORD ACCIDENT AND INDEMNITY COMPANY Knight Anderson Indianapolis, Indiana ATTORNEYS FOR CONTINENTAL INSURANCE COMPANY Mary Reeder Elizabeth Green Indianapolis, Indiana ATTORNEY FOR LEXINGTON INSURANCE COMPANY David Temple Indianapolis, Indiana ATTORNEYS FOR INDIANA ASSOCIATION OF CITIES AND TOWNS Donald Snemis Brent Huber Freedom Smith Indianapolis, Indiana

ATTORNEYS FOR APPELLEE George M. Plews Jeffrey D. Featherstun Tina M. Richards Plews Shadley Racher & Braun Indianapolis, Indiana Cheryl A. Greene South Bend, Indiana Michael Keele Indianapolis, Indiana ATTORNEY FOR ZURICH AMERICAN INSURANCE COMPANY Stephen Peters Indianapolis, Indiana ATTORNEY FOR CERTAIN UNDERWRITERS AT LLOYDS OF LONDON Bruce Kamplain Indianapolis, Indiana ATTORNEY FOR COMMERCIAL LOGISTICS CORPORATION Peter Rusthoven Indianapolis, Indiana ATTORNEY FOR ACF INDUSTRIES, LLC Geoffrey Slaughter Indianapolis, Indiana ATTORNEYS FOR INDIANA LEGAL FOUNDATION Bryan Babb Matthew Klein Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

Jan 22 2009, 3:19 pm

CLERK

In the

Indiana Supreme Court
_________________________________ No. 49S04-0711-CV-541 COOPER INDUSTRIES, LLC, et al.,

Appellant (Plaintiff below), v.
The CITY OF SOUTH BEND, INDIANA, et al., Appellees (Defendants below). _________________________________ Appeal from the Marion Superior Court, No. 49F12-0303-PL-752 The Honorable Michael D. Keele, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 49A04-0511-CV-637 _________________________________ January 22, 2009

Shepard, Chief Justice. The City of South Bend now owns much of the land where Studebaker Corp. once manufactured automobiles. It has sued Cooper Industries, LLC and others for environmental damage done to the site. In this appeal, the questions are whether the applicable statute of

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limitation bars these claims and whether appellant Cooper Industries is the corporate successor to Studebaker such that it may be liable on these environmental claims.

We hold that the statute of limitation bars the Citys common law claims, that its claim under the Environmental Legal Action statute accrued at the time the statute became effective and thus is not barred, and that Cooper is the corporate successor to Studebaker for these purposes.

Facts and Procedural History

From before the Civil War, Studebaker operated manufacturing facilities in the City of South Bend, eventually occupying more than a hundred acres. During the Twentieth Century, the plant produced primarily automobiles, until 1963, when Studebaker moved these operations to a Canadian subsidiary and disposed of its South Bend facilities. It later became apparent that significant soil and groundwater contamination had likely occurred during Studebakers occupation of the land and buildings.

Most of the Studebaker assets and the assets of Worthington Corporation were combined in 1967 to form Studebaker-Worthington Corporation. Studebaker officially dissolved as a corporate entity on November 30, 1967. In 1979, McGraw-Edison Company acquired all of

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Studebaker-Worthingtons shares. Industries, LLC ("Cooper").

In 2004, McGraw-Edison merged into appellant Cooper

Meanwhile, the City of South Bend began acquiring parcels of the former Studebaker property during the mid-1980s. Suspecting the presence of environmental contamination, the City hired two environmental consultants to conduct testing and report on their findings. On September 30, 1988, the first consultant reported that "a source of hydrocarbons may exist below the site or that the ground water may be transporting contaminants under the site." (Appellants App. at 497.) On November 25, 1988, the second consultant reported "[volatile organic

compound] contamination in the groundwater sample from each boring" and "heavy metal contamination in the groundwater sample from each boring" exceeding the EPAs national drinking water standards. (Id. at 513-15.) In 1990, the South Bend Redevelopment Commission formally declared the Studebaker property a redevelopment area. Over the next several years, the City continued to acquire property and evaluate the contamination. By 2002, the City owned a significant fraction of former Studebaker land.

On March 19, 2003, the City of South Bend and the South Bend Redevelopment Commission (collectively "South Bend") sued McGraw, contending that it was a successor to the liability of Studebaker. It pleaded negligence, private nuisance, trespass, public nuisance,

statutory illegal dumping, and an environmental legal action (ELA) under Ind. Code

Download Cooper Industries, et al v. City of South Bend, et al.pdf

Indiana Law