Estate of Walter E. Williams v. BorgWarner Morse TEC Inc., Chuck Markey, Markey's Audio Visual, Inc., and D&E Enterprises v. George F. Kopetsky , 110 N.E.3d 1148 ( 2018 )


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  • 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