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Ball v. Versar, Inc.

Citation: 33 ELR 20046
No. No. IP01-0531-C-H/K, (S.D. Ind., 09/06/2002)

The court dismisses several tort and contract claims that a hazardous waste site remediation company brought against the trustees of an Indiana Superfund site and two companies that performed environmental services at the site, but allows the remediation company to continue with its unjust enrichment action against the trustees. The court first holds that under the contract between the trustees and the remediation company for the cleanup of the site, the law of Indiana applies to all contract claims. Likewise, under a choice of law analysis the law of Indiana applies to all tort claims brought by the remediation company against the trustees and the environmental services companies because the basis of any of the tort claims is the Indiana site or the contract between the remediation company and the trustees, which is governed by Indiana law. Thus, Indiana has the most compelling interest in the remediation company's claims in both contract and tort. The court next holds, however, that applying Indiana law, the remediation company's negligent misrepresentation claims against the trustee must be dismissed. Indiana does not recognize a cause of action for negligent misrepresentation, and the claims cannot be construed as fraud claims because there has been no alleged affirmed misrepresentation of fact and the trustees had no duty to disclose. Similarly, the remediation company's duty of good-faith and fair dealing claims against the trustees must be dismissed. To argue that a duty of good faith exists, the existence of a valid contract must be established. Here, a valid contract exists between the trustees and the remediation company. The contract, however, is governed by Indiana law, and Indiana law does not recognize a claim for breach of duty of good faith or fair dealing and such a duty cannot be implied due to alleged fraud. The court goes on to hold that the remediation company can continue with its unjust enrichment claim against the trustees because if the remediation company were to successfully prove lack of a contract--an as yet unresolved issue--then it could claim unjust enrichment by the trustees. The court further holds that the remediation company's negligent misrepresentation claims against the environmental services companies must be dismissed because Indiana law does not recognize such claims. Similarly, the remediation company's indemnification and contribution claims against the companies are dismissed because no contractual or implied right to indemnity or contribution exists. In addition, the remediation company's motion to compel discovery is granted in part with respect to certain data documents for the site.

Counsel for Plaintiffs
Alan H. Goldstein
Ice Miller
One American Square
P.O. Box 82001, Indianapolis IN 46282
(317) 236-2100

Counsel for Defendants
Bruce Degrazia
Versar, Inc.
6850 Versar Ctr., Springfield VA 22151
(703) 941-4728