Bernstein v. Bankert et. al.
(United States District Court, Southern District of Indiana, March 16, 2010)
Plaintiffs’, as Trustees of a pollution site, sought to recover environmental response costs from defendants under CERCLA and sought declaration against various insurance companies regarding coverage under their policies. One of the insurers moved for summary judgment contending that plaintiffs’ claim are time barred by Indiana Code 23-1-45-7, as the action was not filed within two years after the dissolution of the company causing the release. Thus, the insurer claimed it had no coverage obligations because there was no longer any liability based on the expiration of the statute of limitations. The insurer also contended that its insurance coverage for the site had already been conclusively determined in previous litigation which barred the litigation res judicata.
The court held that the polluting company was not voluntarily dissolved under the code but administratively dissolved under a different statutory provision. Thus, the court determined that the company was not entitled to the benefit of the two-year statute of limitations set forth in the code because no notice of its dissolution was given to its creditors. The court also held that an issue of fact remained as to the scope of the prior judgments obtained in the prior action and thus the court was unable to find whether res judicata applies.
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Paul Steck and Tom Segalla