Court of Appeals of Indiana | Opinion 49A02-1710-PL-2224 | August 28, 2018 Page 1 of 16

ATTORNEYS FOR APPELLANT

Donn H. Wray

Glenn D. Bowman

Marc A. Menkveld

Stoll Keenon Ogden PLLC

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

BORGWARNER MORSE TEC INC.

Richard S. VanRheenen

Tabitha L. Balzer

Lewis Kappes, P.C.

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Estate of Walter E. Williams,

Appellant (Third-Party Plaintiff),

v.

BorgWarner Morse TEC Inc., et 

al.,

Appellees (Third-Party Defendants).

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.

August 28, 2018

Court of Appeals Case No.

49A02-1710-PL-2224

Appeal from the Marion Superior 

Court 

The Honorable Timothy W. Oakes, 

Judge

Trial Court Cause No.

49D02-0607-PL-28561

Brown, Judge.
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[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 coinoperated 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. 
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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 “BorgWarner 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.
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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 BorgWarner 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 BorgWarner 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. 
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[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. 
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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. 
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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 
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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.”

* * * * *
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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 sitespecific 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 
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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 
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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 
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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. 
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[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 
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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 
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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 nonmovant, 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. 
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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.