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653 N.E.2d 89 <br />(Cite as: 653 N.E.2d 89, *90) <br />NAJAM, Judge. <br />STATEMENT OF THE CASE <br />Terra-Products, inc. ("Terra") appeals from the trial <br />court's grant of a motion for summary judgment filed <br />by Kraft General Foods, Inc. and Duracell <br />International, Inc.,•successors to P.R. Mallory, Inc. <br />(collectively "Kraft"). Terra brought an action against <br />Kraft in which it alleged damages resulting from PCB <br />contamination of two tracts of land owned by Terra. <br />Terra's complaint asserted claims under four theories: <br />(1) strict liability, (2) negligence and negligence per <br />se, (3) nuisance and (4) trespass. Kraft denied <br />liability and asserted a counterclaim against Terra for <br />unjust enrichment. Kraft moved for sunvnary <br />judgment on ali counts of Terra's complaint and on its <br />counterclaim. Terra filed a cross-motion for <br />summary judgment on Kraft's counterclaim. The <br />trial court granted both motions. <br />W e affirm [FN 1 ] <br />FNI. We held oral argumrnt at Eastern High School <br />in Grerne County an May 10, 1995. <br />ISSUE <br />Terra presents two issues on appeal. Because we <br />conclude one issue is dispositive, we address only the <br />following question: whether Terra has designated <br />evidence which tends to establish that after <br />remediation of PCB contaminating i[ incurred <br />damages for a remaining loss in the fair market value <br />of its property. <br />FACTS <br />Terra is an Indiana corporation that produces and <br />sells liquid handling products for industry and <br />agriculture. From the 1960's until June of 1992, <br />Terra conducted business on a tract of land known as <br />"Terra Site" in Montgomery County. Between 1957 <br />and 1969, P.R. Mallory, Inc. had owned property <br />adjacent to Terra Site, known as "Mallory Site," <br />where Mallory operated a battery manufacturing <br />facility. The batteries made by Mallory at that <br />location contained polychlorinated biphenyls <br />("PCBs"). In 1969, the Mallory facility was <br />destroyed by fire and was never rebuilt. <br />Sometime after 1969, P.R. Mallory was purchased by <br />Kraft and renamed Duracell International, Inc. Terra <br />then purchased Mallory Si[e from Kraft in 1975. <br />Page 2 <br />More than ten years later, in June of 1986, the <br />Indiana Department of Envtronmental Management <br />("IDEM") and the United States Environmental <br />Protection Agency ("EPA") detemrined Utere was <br />PCB contamination at Mallory Si[e which violated <br />state and federal regulations. The EPA issued an <br />administrative order to both Terra and Kraft, as <br />Potentially Responsible Parties under the <br />Comprehensive Environmental Response, <br />Compensation, and Liability Act ("CERCLA"), and <br />requued *91 them to implement a cleanup plan. <br />Thereafter, Kraft agreed to be responsible for the <br />cleanup and to pay for the entire cost of remediation. <br />In 1988, during the cleanup of Mallory Site, Kraft's <br />contractor discovered that Terra Site was also <br />contaminated by the migration of PCBs from Mallory <br />Site. Kraft agreed to perform and pay for the <br />cleanup of Terra Site as well. In June of 1992, Terra <br />sold both Teaa Site and Mallory Site at public <br />auction. <br />Tetra then filed this action against Kraft and sought <br />damages for loss of value to its real property in the <br />amount of $830,000.00. Tetra claimed damages <br />based on an appraised value of $ I.I million for both <br />sites, assuming no contaminarion, minus the auction <br />sale price of $270,000.00. Terra also claimed <br />additional damages of more than $3 million, plus [he <br />cost of a two-week shutdown when, according to its <br />complaint, Terra was required to move its business to <br />a new location because of the contamination. Kraft <br />filed a counterclaim against Terra and alleged unjust <br />enrichment of approximately $12.5 milling half of <br />the $25 million Kraft paid for the cleanup. Kraft <br />completed the cleanup of both sites in August of <br />1993, after Terra had initiated this action. <br />Both parties filed motions for summary judgment, <br />and the trial court granted Kraft's motion on all <br />counts of Terra's complaint. The court also entered <br />summary judgment for Terra on Kraft's counterclaim <br />for unjust enrichment, fording that the entry of <br />judgment for Kraft rendered its counterclaim moot. <br />[FN2] <br />FN2. Terra does not challrnge the trial court's <br />determination that its claim for damages to Mallory <br />Sile was barred under the six-year statute of <br />limitations for injury to real property and, therefore, <br />"Terra is only seeking relief with regard to Terra <br />Site" for purposes of this appeal. Brief of Appellant <br />at 4. <br />DISCUSSION AND DECISION <br />Copr. O West 2001 No Claim to Orig. U.S. Govt. Works <br />