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653 N.E.2d 89 <br />Page 1 <br />(Cite as: 653 N.E.2d 89) <br />N <br />Court of Appeals of Indiana. <br />TERRA-PRODUCTS, INC., Appellant-Plaintiff, <br />v. <br />KRAFT' GENERAL FOODS, INC. and Duracell <br />International Inc., Successors to P.R. <br />Mallory, Inc., Appellees-Defendants. <br />131 Damages f}15 <br />115k15 <br />Aim in awarding damages is to fairly and adequately <br />compensate injured party for his or her loss. <br />141 Damages C^~ 110 <br />IISkl10 <br />N o. 54 A 01-94 0 9-C V -313. <br />June 20, 1995. <br />Transfer Denied Oct. 25, 1995. <br />Landowner brought action seeking to recover <br />damages from source of PCB contamination after <br />source of PCBs completed voluntary remediation of <br />property, and source of PCBs counterclaimed for <br />unjust enrichment. The Circuit Court, Montgomery <br />County, Thomas K. Milligan, J., entered summary <br />judgment denying any recovery. Landowner <br />appealed. The Court of Appeals, Najam, ]., held <br />that: (1) as matter of fast impression, landowner <br />could recover damages for any proven reduction in <br />fav market value of property remaining after <br />remediation of environmental contamination; (2) <br />Comprehensive Environmental Response, <br />Compensation and Liability Act (CERCLA) did not <br />exclude other remedies available to injured <br />landowner, and (3) remediation fully compensated <br />landowner for its loss absent evidence of any <br />permanent remaining loss. <br />Judgment affumed. <br />West Headnotes <br />111 Damages fr 110 <br />115k110 <br />Injury to unimproved land generally is permanent if <br />cost of restoration exceeds market value prior [o <br />injury, and measure of damages for permanent injury <br />is limited to difference between fair market value of <br />property before and after injury, in view of economic <br />waste that would result if restoration costs exceed <br />econormc benefit. <br />121 Damages f°r~109 <br />115k109 <br />Appropriate measure of damages for temporary injury <br />to real property is cost of restoration. <br />In context of environmental contannation of land, <br />landowner may be entitled to recover as damages any <br />proven reduction in fair market value of real property <br />remaining after remediation of contamination. <br />151 Health and Environment C°r 25.5(5.5) <br />199k25.5(5.5) <br />CERCLA serves essential purposes of providing swift <br />and effective response [o hazardous waste sites, and <br />of placing cost of that response on those responsible <br />for creating or maintaining hazardous condition, but <br />CERCLA is not intended [o exclude other remedies <br />available to injured landowner, restoration under <br />CERCLA is not exclusive remedy for damage to land <br />from envuonrrtental contamination. Comprehensive <br />Envromnental Response, Compensation, and <br />Liability Act of 1980, §§ 114(a), 302(d), 42 U.S.C.A. <br />161 Health and Environment fr~25.5(5.5) <br />199k25.5(5.5) <br />Landowner established only temporary injury to land <br />from PCB contamination and, thus, remediation of <br />property fully compensated landowner for its injury, <br />absent any proven petmanent remaining loss based on <br />evidence of difference between value of land before <br />discovery of contamination and value of land after <br />remediation; auction sale of property and bank's <br />reluctance to extend loan due to environmental <br />concerns occurred before remediation, appraisal of <br />uncontaminated property covered additional parcel, <br />and any impact on value of property from <br />contamination of bordering creek was unlmown. <br />'90 Gregory H. Miller, Wemle, Risline & Ayers, <br />Crawfordsville, for appellant. <br />Laurence A. McHugh, Joseph R. Fullenkamp, <br />Kimberly D. Finlaw, Barnes & Thornburg, South <br />Bend, for appellees. <br />OPINION <br />Copr. ©West 2001 No Claim to Orig. U.S. Govt. Works <br />