Court of Appeals of Indiana | Opinion 49A02-1508-MI-1051 | August 4, 2016 Page 1 of 24

ATTORNEYS FOR APPELLANT

David L. Hatchett

Michael J. Reeder

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Frank J. Deveau

Melissa A. Gardner

Indianapolis, Indiana

Todd J. Janzen

Brianna J. Schroeder

Indianapolis, Indiana

Dale W. Eikenberry

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Schuchman/Samberg 

Investments, Inc.,

Appellant-Defendant,

v.

Hoosier Penn Oil Co. Inc., et al.,

Appellee-Plaintiff.

August 4, 2016

Court of Appeals Case No.

49A02-1508-MI-1051

Appeal from the Marion Superior 

Court

The Honorable Timothy W. 

Oakes, Judge

Trial Court Cause No.

49D02-0911-MI-51276

Altice, Judge.
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Case Summary

[1] In this certified interlocutory appeal, Schuchman/Samberg Investments (SSI) 

appeals the trial court’s order granting summary judgment in favor of 

defendants Hoosier Penn Oil Company, Inc., Union Oil Company of 

California, and BP Corporation North America, Inc. (collectively, the Former 

Operators) on SSI’s claims under Indiana’s Environmental Legal Actions 

Statute (ELA) and Petroleum Releases Statute (PRS). Specifically, the trial 

court ruled that the ELA claim was time-barred and that SSI had not 

established that it had a right to recover under the PRS. SSI raises the following 

restated issues on appeal:

1. Did the trial court err in concluding that the ELA claim was subject 

to the six-year statute of limitation applicable to claims for damage to 

real property?

2. Did the trial court err in concluding that the statute of limitation 

applicable to the ELA claim had expired? 

3. Did the trial court err in concluding that the PRS did not permit SSI 

to recover investigation and remediation costs from the Former 

Operators under the circumstances of this case?

We affirm.1

 

1 We held oral argument in this matter on June 3, 2016. We commend counsel on the quality of their written 

and oral advocacy.
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Facts & Procedural History

[2] This case revolves around a piece of environmentally contaminated industrial 

property located at 850 South Keystone Avenue in Indianapolis (the Site). 

Historically, the Site has been used for bulk storage of oil and other petroleum 

products in underground storage tanks (USTs) and aboveground storage tanks 

(ASTs). Standard Oil owned and operated the Site from the 1920s until 1941, 

at which time Union Oil took ownership. Union Oil operated the Site until 

1975, at which time it was purchased by Carl and Florence Hulen/Hulen Real 

Estate, LLC (collectively, Hulen). From 1975 until 1978, Hulen leased the 

property to Univar USA, Inc., which operated a chemical distribution facility 

and stored large volumes of industrial solvents on the Site. From 1979 until 

1995, Hulen leased the Site to Hoosier Penn Oil, which used it to operate a 

lubricant oil and antifreeze distribution center. In 1995, Hulen sold the 

property to Wilcher Trucking, Inc. (Wilcher) on contract,2 and SSI3leased the 

Site from Wilcher. SSI used the Site to operate a metal scrapyard and a diesel 

fuel storage tank. SSI purchased the Site from Wilcher in 1998. 

[3] In 1994, while the Site was owned by Hulen and being leased by Hoosier Penn, 

Keramida Environmental conducted testing of the soil and groundwater at the 

Site as part of ongoing negotiations concerning Hoosier Penn’s potential 

 

2 Wilcher obtained title to the Site in 1997.

3

It was actually SSI’s predecessor, Surplus Acquisition and Recycling Consultants of America Inc., d/b/a 

SARCO, that leased the site. SARCO became SSI around 2004. In the interest of clarity, SSI and SARCO 

will both be referred to as SSI.
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purchase of the Site. Although Keramida did not conduct a full investigation of 

the Site, it nevertheless discovered contamination in multiple areas of the Site 

that met or exceeded state and federal standards in effect at the time that would 

have required remediation. Keramida provided a Corrective Action Plan (the 

Keramida CAP) to Hoosier Penn, Hulen, and Hulen’s attorneys in which it set 

forth its findings and recommended extensive soil and groundwater testing and 

remediation. In light of the extent of the contamination and potential 

investigation and remediation costs identified in the Keramida CAP, Hoosier 

Penn offered to purchase the property from Hulen for $1, with the 

understanding that Hoosier Penn would undertake the remedial actions set 

forth in the Keramida CAP. Hulen refused the offer, and Hoosier Penn 

relocated its business. In June 1994, Hulen’s attorney reviewed the Keramida 

CAP and sent Hulen a letter setting forth his opinion that no regulatory 

authority would reasonably require further investigation or corrective action at 

the Site. No remediation was conducted at that time.

[4] Shortly thereafter, Hulen sold the property to Wilcher. As part of the 

transaction, Hulen and Wilcher executed and recorded an “Environmental 

Disclosure Document for Transfer of Real Property” (the Disclosure 

Document), as was required by applicable law at that time. Appellant’s Appendix

at 325. The Disclosure Document makes repeated reference to an 

environmental report prepared by Patriot Engineering (the Patriot Report). The 

Disclosure Document indicated that the transferor had conducted operations on 

the Site involving hazardous substances, petroleum, and hazardous waste, and 
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that there were ASTs, USTs, and container storage areas on the Site. The 

Disclosure Document further indicated that hazardous substances or petroleum 

had come into contact with the ground at the Site and that soil testing and 

groundwater monitoring had been conducted at the Site as a result. The 

Disclosure Document indicated that there were no other environmental defects 

on the Site, but there was an asterisk next to this representation directing the 

reader to “see reported soil and groundwater contamination as described in the 

aforementioned Patriot Report.” Id. at 333. The drafter of the Disclosure 

Document answered several questions on the form in the negative, but added 

language directing the reader to review the Patriot Report. The Disclosure 

Document, but not the Patriot Report, was incorporated into the deed record 

available to the public prior to SSI’s purchase of the Site. The Disclosure 

Document indicates that a copy of the Patriot Report is available upon request 

from Hulen, but the Patriot Report was not designated in this case, and it 

appears that the parties have been unable to locate it. 

[5] On May 8, 1996, an employee of the Marion County Health Department 

conducted a field inspection at the Site and spoke to Barry Schuchman, one of 

SSI’s principals. In his inspection notes, the investigator noted that removal of 

an old AST basin and metal tanks had exposed “highly contaminated 

soil/some pools of fluid on water.” Id. at 167. The inspection notes indicate 

that Schuchman informed the investigator that Hoosier Penn would be 

performing remediation in the area. No such remediation occurred.
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[6] Shortly after entering into the lease with Wilcher, SSI entered into negotiations 

to purchase the Site. Schuchman testified that during those negotiations, 

Wilcher provided SSI with a copy of a Phase I environmental report that had 

been prepared in conjunction with Wilcher’s purchase of the Site from Hulen 

(the Wilcher Phase I). According to Schuchman, the Wilcher Phase I was a 

one-page document that “said the property was clean and there was no problem 

with the property.” Appellant’s Appendix at 339. The Wilcher Phase I has not 

been produced in this litigation or designated as evidence. 

[7] Schuchman testified further that in 1997, prior to SSI’s purchase of the Site, he 

personally observed stained soil around the former ASTs and that SSI 

consequently had the top two feet of soil in that area excavated and removed. 

No testing was done to ascertain the extent of the contamination or to confirm 

that the excavation was sufficient remediation, and neither SSI nor Wilcher 

obtained a determination from the Indiana Department of Environmental 

Management (IDEM) that no further action was necessary. 

[8] In June 1998, shortly after purchasing the Site, SSI received a copy of another 

Phase I environmental report (the 1998 Phase I). The 1998 Phase I provided 

that the assessment had “revealed no evidence of recognized environmental 

conditions in connection with the property except for” the Site’s historical use as 

a “bulk oil storage area with eight [USTs] and thirteen [ASTs].” Id. at 183 

(emphasis supplied). The 1998 Phase I further indicated that an environmental 

assessment had been performed on the Site around 1995, but that the report 

from that assessment was unavailable at that time. Schuchman testified that 
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upon receiving the 1998 Phase I, he believed that SSI was “stuck” with a 

potentially contaminated property. Id. at 163.

[9] Another Phase I Environmental Site Assessment was conducted in 2003 (the 

2003 Phase I) in conjunction with a possible sale of the Site. The 2003 Phase I 

noted multiple recognized environmental conditions on the Site, and as a result 

of the 2003 Phase I and a subsequent Phase II, the potential buyer delayed and 

ultimately declined to purchase the Site. Subsequent investigations confirmed 

the presence of extensive environmental contamination at the Site. 

[10] On December 20, 2006, IDEM sent SSI a letter directing SSI to conduct an 

investigation to determine the nature and extent of the contamination and 

create a report pursuant to Ind. Code § 13-24-1-6. After receiving two 

investigative reports from SSI, IDEM sent SSI another letter, dated December 

16, 2010, instructing SSI to submit a remediation work plan. On December 30, 

2011, IDEM approved SSI’s remediation work plan and directed SSI to 

implement the plan. SSI is currently in the process of conducting the work set 

forth in the plan and has incurred extensive remediation costs. 

[11] On November 9, 2009, SSI filed a complaint against Hoosier Penn, Union Oil, 

BP, and Univar seeking reimbursement for costs incurred and to be incurred in 

the future by SSI in investigating and remediating the contamination. 

Specifically, SSI asserted claims under the ELA, the Indiana Underground 

Storage Tank Act (USTA), and the PRS. On July 3, 2014, the Former 
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Operators4filed a joint motion for partial summary judgment on SSI’s claims 

under the ELA and the PRS. On May 15, 2015, the trial court entered its order 

granting the Former Operators’ motion for partial summary judgment, 

concluding that SSI’s ELA claim was untimely and that the PRS does not 

provide SSI with a right to recover from the Former Operators under the 

circumstances of this case. SSI filed a motion to certify the order for 

interlocutory appeal, which the trial court granted on July 8, 2015. This court 

accepted jurisdiction on September 4, 2015, and this appeal ensued. 

Discussion & Decision

[12] The standard of review applicable to appeals from summary judgment is well 

settled:

We review an order for summary judgment de novo, which is the same 

standard of review applied by the trial court. The moving party must 

“affirmatively negate an opponent’s claim” by demonstrating that the 

designated evidence raises no genuine issue of material fact and that the 

moving party is entitled to judgment as a matter of law. The burden 

then shifts to the nonmoving party to demonstrate a genuine issue of 

material fact. In reviewing the record, we construe all reasonable 

inferences in favor of the nonmoving party. Summary judgment is 

inappropriate when genuine factual issues persist—that is, when the 

designated evidence “support[s] conflicting reasonable inferences.” 

 

4 Univar did not join in the motion for summary judgment and is not included in the term “Former 

Operators” for the purposes of this opinion.
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Ind. Restorative Dentistry, P.C. v. Lavens Ins. Agency, Inc., 27 N.E.3d 260, 264 (Ind. 

2015) (citations omitted).

[13] The trial court in this case entered extensive findings and conclusions in its 

summary judgment order. Although we are not bound by such findings and 

conclusions, they aid our review by providing reasons for the trial court’s 

decision. Allen Gray Ltd. P’ship IV v. Mumford, 44 N.E.3d 1255, 1256 (Ind. Ct. 

App. 2015). We will affirm the trial court’s order granting summary judgment 

on any theory or basis supported by the record. Id. 

1. The Statute of Limitation Applicable to the ELA Claim

[14] The ELA does not include an express statute of limitation.5 Thus, the threshold 

issue in this case is what statute of limitation applies to SSI’s ELA claim. The 

 

5

In 2011, the General Assembly enacted I.C. § 34-11-2-11.5, which provides in pertinent part that:

(b) Subject to subsections (c), (d), and (e), a person may seek to recover the following in an 

action brought on or after the effective date of this section under IC 13-30-9-2 or IC 13-23-13-

8(b) to recover costs incurred for a removal action, a remedial action, or a corrective action:

(1) The costs incurred not more than ten (10) years before the date the action is brought, even 

if the person or any other person also incurred costs more than ten (10) years before the date 

the action is brought.

(2) The costs incurred on or after the date the action is brought.

In Bernstein v. Bankert, 733 F.3d 190, 217 n.16, 219 (7th Cir. 2012), the Seventh Circuit refers to I.C. § 34-11-

2-11.5 as a statute of limitation. Although this provision appears in a chapter of the Indiana Code titled 

“Specific Statutes of Limitation,” I.C. § 34-11-2-11.5 does not fit that description. See Ind. Code § 1-1-1-5(f) 

(providing that “[t]he headings of titles, articles, and chapters as they appear in the Indiana Code . . . are not 

part of the law . . . and are not intended to affect the meaning, application or construction of the statute they 

precede”). I.C. § 34-11-2-11.5 says nothing of the time frame within which an ELA claim must be brought or 

the events that trigger the running of that period. Instead, it imposes a limitation on the types of damages 

recoverable in an ELA claim in the form of a ten-year look-back period. In any event, the parties do not 

dispute that I.C. § 34-11-2-11.5 is inapplicable in this case because SSI’s action was commenced prior to its 

enactment.
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Former Operators argue that the six-year statute of limitation applicable to 

claims for damage to real property set forth in Ind. Code § 34-11-2-7 applies. 

SSI argues that their ELA claim is one for contribution rather than property 

damage and, therefore, the ten-year catch-all statute of limitation set forth in 

I.C. § 34-11-1-2 applies. Finding this court’s decision in Peniel Group, Inc. v. 

Bannon, 973 N.E.2d 575 (Ind. Ct. App. 2012), trans. denied, controlling, the trial 

court concluded that the six-year statute of limitation applies to SSI’s ELA 

claim. On appeal, SSI argues that Peniel is distinguishable and therefore not 

controlling and that Bernstein v. Bankert, 733 F.3d 190 (7th Cir. 2012), in which 

the Seventh Circuit distinguished Peniel and applied the general, ten-year statute 

of limitation to an ELA claim, is analogous and persuasive. 

[15] The ELA provides that:

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.

Ind. Code § 13-30-9-2.

[16] In Peniel, another panel of this court considered whether the six-year or ten-year 

statute of limitation applied to an ELA claim. The Peniel plaintiffs owned and 

operated a piece of property that had previously been operated as a dry-cleaning 

business, and they brought an ELA claim against the former owners and 
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operators seeking to recover costs relating to investigation and remediation of 

contamination on the property. The defendants filed a motion for summary 

judgment asserting that the ELA claim was barred by the six-year statute of 

limitation. The plaintiffs filed a response arguing that their claim was one for 

contribution rather than property damage and, consequently, the general tenyear statute of limitation applied. Peniel, 973 N.E.2d at 576-78. 

[17] In reaching the conclusion that the plaintiffs’ claim was for property damage as 

opposed to contribution, the court explained that “[c]ontribution involves the 

partial reimbursement of one who has discharged a common liability.” Id. at 

581. The court noted that there was no Indiana case law addressing the 

applicable statute of limitation under the ELA and looked to a federal district

court decision, Taylor Farm Ltd. Liab. Co. v. Viacom, Inc., 234 F. Supp. 2d 950 

(S.D. Ind. 2002), for guidance. In that case, the plaintiffs filed an ELA claim 

against Viacom, which had entered into a comprehensive settlement agreement 

with the EPA requiring it to clean up hazardous waste at a former landfill. The 

Taylor court addressed whether the ELA claim was barred by the 

Comprehensive Environmental Response, Compensation, and Liability Act’s 

“contribution bar,” which provides that individuals who have resolved their 

liability to the United States via a judicially-approved settlement shall not be 

liable for contribution claims regarding matters addressed in the settlement. 

The district court concluded that the ELA “is not, on its face, a contribution

scheme” because it “permits ‘any person’ to sue to ‘recover the reasonable costs 

of a removal or remedial action.’” Id. at 962. The district court explained, 
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“[u]nder the common law of contribution, only a defendant in a lawsuit, or a 

party who has already been found liable in a previous action may bring a claim 

for contribution.” Id. at 972.

[18] Relying on Taylor, the Peniel court concluded that claims brought under the 

ELA were not contribution claims:

We cannot say that a claim brought under the ELA is a claim for 

contribution where it allows a plaintiff who is neither liable for the 

release of a hazardous substance nor has been found liable, to recover 

the costs of remediation from another party “without regard to the 

plaintiff’s part in causation of the damage.” Accordingly, we find that 

the ELA is subject to the six-year statute of limitations pursuant to 

Indiana Code section 34-11-2-7(3) (providing that actions for injuries to 

real property must be commenced within six years after the cause of 

action accrues).

Peniel, 973 N.E.2d at 582 (footnote and citation omitted). 

[19] SSI argues that Peniel is distinguishable and directs our attention to Bernstein, 

733 F.3d 190. Bernstein involved a site that had been formerly operated as a 

waste-handling and disposal facility. The plaintiffs in that action were the 

trustees of a fund created to finance and oversee the cleanup of the property, 

and the defendants were former owners and their insurers, none of whom had 

paid into the trust despite an alleged obligation to do so. Specifically, the 

defendants had entered into Administrative Orders by Consent (AOCs) with 

the EPA in 1999 and 2002 pursuant to which they and other respondents 

agreed to create a trust and fund it to the extent necessary to finance 

remediation efforts and, in exchange, the EPA conditionally agreed not to sue 
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the defendants in relation to the environmental contamination. When the 

defendants did not fulfill their obligations under the 2002 AOC, the trustees 

sued to recover cleanup costs under the ELA and other statutes. The 

defendants successfully moved for summary judgment on statute of limitation 

grounds, and the trustees appealed. 

[20] As in this case, the trustees in Bernstein argued that the ten-year catch-all statute 

of limitation applied, while the defendants argued that the six-year property 

damage statute of limitation applied. In resolving this issue, the Seventh Circuit 

compared our Supreme Court’s decision in Pflanz v. Foster, 888 N.E.2d 756 (Ind. 

2009), with this court’s decision in Peniel. 

[21] In Pflanz, the purchasers of a parcel of land that had previously been operated as 

a gas station incurred extensive remediation costs after IDEM issued a cleanup 

order related to leaking USTs on the property. The purchasers brought suit 

against the former owners under the USTA, and their complaint was dismissed 

as untimely. Although the parties in Pflanz agreed that the general ten-year 

statute of limitation applied, they disagreed as to what events triggered the 

running of that period. Noting that the issue was not in dispute, the Pflanz court 

applied the ten-year statute of limitation without analysis and instead focused 

its attention on the events triggering the running of the statute of limitation. 

[22] Despite the lack of analysis on the issue in Pflanz, the Bernstein court reasoned 

that application of the ten-year limitation period in that case was decided rather 

than presumed. According to the Bernstein court, “[t]he Indiana Supreme Court 
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simply would not have applied the ten-year catch-all if it was legally incorrect to 

do so, whether the parties agreed to it or not. Their decision to honor the 

parties’ agreement therefore amounted to a decision that the limitation period 

agreed to was legally correct.” 733 F.3d at 218, n.18. The Bernstein court noted 

further that although Pflanz addressed a USTA claim, the USTA was similar to 

the ELA in that it creates a cause of action for one who has undertaken 

environmental remediation to recover costs from the parties responsible for the 

contamination and does not include its own express statute of limitation. Id. at 

217-18. 

[23] The Bernstein court distinguished Peniel on the basis that the court in that case 

“confronted a different kind of claim” because the plaintiffs in that case “were 

the owners of the real property in question and were not themselves responsible 

in any way for the contamination at the site[.]” Id. at 218. In response to the 

defendants’ argument that the outcome of the case should be controlled by 

Peniel because it addressed an ELA claim, as opposed to Pflanz, which 

addressed a USTA claim, the Bernstein court reasoned as follows:

[U]nder these circumstances, the statute under which the claim is 

brought does not determine the limitations period. Indeed, it cannot do 

so, because the statute under which the claim was brought did not have 

a limitations period. That is the root of the problem. What Peniel

shows is that the underlying nature of the claim is what matters, a 

principle which is well-established in Indiana law. Specifically, the 

Peniel court found that a property damage claim brought under the ELA 

. . . was governed by the statute of limitations for property damages. 

That makes sense, given the nature of the claim. But not every ELA 

claim is one for property damages. In this case, for example, the 
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Trustees have no proprietary interest in [the contaminated site]. The 

[defendants] do. There is no plausible legal theory under which we 

might find that the Trustees are suing the [defendants]—who are the 

only parties with a proprietary interest in [the contaminated site]—for 

damages to the real property at [the contaminated site]. Neither the 

“nature or substance” of this ELA claim shows that it is an action for 

property damages, and the property damages limitations period 

therefore does not apply.

Id. at 219 (citations omitted). Thus, having found that the specific claim set 

forth by the trustees was not one for property damage, the court determined 

that the claim fell within the ten-year catch-all statute of limitation set forth in 

I.C. § 34-11-1-2 regardless of whether the claim was called “a contribution 

action, or a cost-recovery action, or . . . some other name.” Id.

[24] SSI attempts to distinguish Peniel on appeal. SSI first argues that unlike in this 

case, the plaintiffs in Peniel were fully aware of the contamination before they 

purchased the property. The Former Operators dispute this interpretation of 

Peniel’s facts, but we need not resolve the disagreement as it is irrelevant to the 

question of which statute of limitation applies. The date on which SSI became 

aware of contamination on the Site is pertinent only to the question of when the 

ELA claim accrued, which will be addressed separately below.

[25] Next, SSI argues that Bernstein and Peniel both found the question of whether 

the plaintiff was alleged to have contributed to the contamination relevant to 

the determination of which statute of limitation applies. Indeed, in discussing 

Peniel, the Bernstein court noted that the Peniel plaintiffs were the owners of the 

property and were not themselves responsible for the contamination. SSI 
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argues that this case “differs materially from the present case” because the 

Former Operators have alleged that SSI contributed to the contamination. 

Appellant’s Brief at 11.

[26] The Former Operators respond that “[a]n affirmative defense raising 

comparative fault . . . does not in and of itself change the nature of SSI’s claim 

from a cost recovery/property damage claim into one of contribution.” 

Appellee’s Brief at 14. We agree. Whether the plaintiffs were alleged to have 

contributed to the damage was not the pivotal factor in either Bernstein or

Peniel—indeed, an apparent similarity between those cases is that in neither case 

were the plaintiffs alleged to have caused any damage to the property, and this 

court’s holding in Peniel was not premised on the plaintiffs’ status as innocent 

purchasers of contaminated property.

6 Rather, the crucial distinction between 

those cases is that the Bernstein plaintiffs had never held any proprietary interest 

in the contaminated site, while the Peniel plaintiffs were the owners and 

operators of the property at issue. Because the Bernstein plaintiffs could not 

possibly bring suit for damage to property they did not own, the six-year statute 

of limitation applicable to claims for damage to real property did not apply. 

The Peniel plaintiffs, on the other hand, sought to recover costs relating to the 

remediation of their own property. Regardless of their role, if any, in causing 

 

6 The Peniel court did not discuss whether the plaintiffs had contributed to the contamination in its analysis. 

It only generally mentioned an ELA plaintiff’s potential liability or lack thereof in the context of holding that 

ELA claims are not on their face contribution claims because the ELA allows a plaintiff to recover costs of 

remediation without regard to the plaintiff’s part in causing the damage. 973 N.E.2d at 582.
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the damage to the real property at issue, their claim was inescapably one for 

damage to that property. 

[27] The same is true here. SSI is seeking recovery of costs incurred to remediate its 

own property. No amount of careful wording or clever analysis can transform 

what is so plainly a claim for damage to real property into one for contribution. 

We also note the absurdity inherent in the approach SSI proposes—it would 

subject an innocent purchaser of contaminated property to a shorter statute of 

limitation than a property owner who had contributed to the property’s 

damaged condition. Indeed, purchasers could theoretically extend the 

applicable statute of limitation by releasing hazardous substances onto their 

own property. We will not endorse such an illogical result. For all of these 

reasons, we conclude that SSI’s ELA claim is, in substance, a claim for damage 

to real property. See Cooper, 899 N.E.2d at 1284 (noting that “[t]he substance of 

a cause of action, rather than its form, determines the applicability of the statute 

of limitation”). As such, it is subject to the six-year statute of limitation set 

forth in I.C. § 34-11-2-7.

2. Accrual of the ELA Claim

[28] Having concluded that SSI’s ELA claim is subject to the six-year statute of 

limitation set forth in I.C. § 34-11-2-7, we now turn our attention to the 

question of when the cause of action accrued. As our Supreme Court has 

explained, 
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[u]nder Indiana’s discovery rule, a cause of action accrues, and the 

limitation period begins to run, when a claimant knows or in the 

exercise of ordinary diligence should have known of the injury. The 

determination of when a cause of action accrues is generally a question 

of law. For an action to accrue, it is not necessary that the full extent of 

the damage be known or even ascertainable, but only that some 

ascertainable damage has occurred.

Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1280 (Ind. 2009) 

(citations omitted). Moreover, a plaintiff has a duty under the discovery rule to 

exercise reasonable diligence to discover negligent acts or omissions. Bambi’s 

Roofing, Inc. v. Moriarty, 859 N.E.2d 347, 356 (Ind. Ct. App. 2006). 

Accordingly, a claim will accrue “where the acts and circumstances of an injury 

would put a person of common knowledge and experience on notice that some 

right of his has been invaded or that some claim against another party might 

exist.” Id.

[29] The trial court found that the undisputed facts establish that SSI had actual 

knowledge sufficient to trigger the limitations period in July 1998. We reach 

the same conclusion. The Former Operators designated evidence establishing 

that that in May 1996—well before SSI purchased the property—an inspector 

with the Marion County Health Department observed that removal of an old 

AST basin and metal tanks had exposed “highly contaminated soil/some pools 

of fluid on water.” Appellant’s Appendix at 167. The inspector interviewed 

Schuchman, who stated that Hoosier Penn would be performing remediation in 

the area. Hoosier Penn performed no such remediation. Moreover, 

Schuchman testified in his deposition that he was aware that the property had 
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been used previously as a storage facility for petroleum products and that he 

had personally observed stained soil in the former AST area before SSI 

purchased the Site. As a result, SSI had the top two feet of soil in that area 

excavated and removed, but no follow-up testing was conducted to determine 

the extent of the remaining contamination, if any. Schuchman testified that 

“[t]esting should have been done,” but that after the soil was excavated, “[i]t 

looked clean. So as far as we were concerned, it was clean.” Id. at 404. 

Schuchman testified further that upon receiving the 1998 Phase I—which 

indicated that the Site’s historical use as a bulk oil storage area with multiple 

USTs and ASTs was a recognized environmental condition—he believed that 

SSI was “stuck” with a potentially contaminated property. 

[30] On appeal, SSI argues that Schuchman’s observation of surface soil staining 

was not sufficient to put SSI on notice of potential contamination because the 

staining was limited to a discrete area that was excavated prior to SSI’s 

purchase of the Site. SSI does not mention, however, Schuchman’s own 

testimony that follow-up testing should have been conducted, but that no such 

testing occurred because the soil “looked clean.” Appellant’s Appendix at 404. 

Even if we accept SSI’s assertion that Schuchman and SSI subjectively believed 

the Site was clean based on the Wilcher Phase I and the excavation of the 

stained soil, we must apply an objective standard in determining the accrual 

date for its claims. See Martin Oil Mktg. Ltd. v. Katzioris, 908 N.E.2d 1183, 1188 

(Ind. Ct. App. 2009) (explaining that “we apply an objective standard to the 

plaintiff’s actions, not a subjective one”). We cannot conclude that a visual 
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inspection by one of SSI’s principals following the removal of the stained soil 

would satisfy a reasonable person in SSI’s position that any potential 

contamination had been abated. Indeed, even Schuchman admitted that 

“[t]esting should have been done[.]” Appellant’s Appendix at 404. Under these 

facts and circumstances, we conclude that by July 1998 at the latest, SSI had 

knowledge sufficient to trigger its duty to inquire further in order to determine 

whether a legal wrong had occurred. See Martin Oil, 908 N.E.2d at 1188-89. 

Because SSI filed its ELA claim in November 2009, well outside the applicable 

six-year statute of limitation, the claim is time-barred.7

3. Recovery Under the PRS

[31] The PRS gives IDEM the authority to order a property owner or responsible 

person to undertake remedial action with respect to a release of petroleum at a 

petroleum facility, I.C. § 13-24-1-1(a), and, under certain circumstances, to 

undertake remedial action itself. I.C. § 13-24-1-2. Specifically, Section 2 of the 

PRS provides that IDEM may undertake removal or remedial action if: 

(1) the action is necessary, in the judgment of the commissioner, to 

protect human health and the environment; and

 

7 Because we conclude that the designated evidence establishes that SSI had actual knowledge sufficient to 

trigger the running of the six-year statute of limitation by July 1998 at the latest, we need not consider the 

trial court’s conclusions that SSI also had constructive knowledge of the contamination based on the 

recorded Disclosure Document and that SSI is charged with the knowledge of its predecessors-in-title

concerning the contents of the Keramida CAP. 
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(2) a person cannot be found not later than ninety (90) days after the 

suspected or confirmed release is identified who is:

(A) an owner or operator of the petroleum facility or a 

responsible person; and

(B) capable of properly carrying out removal or remedial 

action with respect to the release.

Id. Additionally, IDEM may undertake remediation without delay in the event 

of an emergency. I.C. § 13-24-1-2(c). 

[32] Section 4 of the PRS provides that an owner or operator of a petroleum facility 

is liable to the State for the costs of any remedial action taken pursuant to 

section 2. I.C. § 13-24-1-2(a). Section 4 also provides a means by which an 

owner, operator, or responsible party that is liable for the costs of remedial 

action taken by the State may recover those costs from other responsible parties. 

Specifically, Subsection 4(b) provides that:

The owner, operator, or responsible person is entitled to all rights of the 

state to recover from another responsible person all or a part of the costs 

described in subsection (a) incurred or paid to the state by the owner, 

operator, or responsible person in an action brought in a circuit or 

superior court with jurisdiction in the county in which the release 

occurred.

[33] The trial court concluded that Section 4 did not permit SSI to recover costs 

from the Former Operators pursuant to the PRS in this case because “[t]he 

plain language of the statute limits private recovery to actions taken under 

Section 2 of the statute and does not extend private actions to Section 6 or any 
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other section of the statute.” Appellant’s Appendix at 35. Thus, the trial court 

concluded that SSI had no private right of action under the PRS because “SSI 

designated no evidence it incurred costs or paid the State for any actions 

undertaken pursuant to [Section 2.]” Id. at 36. In other words, the trial court 

concluded that because it was SSI that undertook remediation at IDEM’s 

direction, as opposed to IDEM carrying out the remediation itself pursuant to 

Section 2 and seeking to recover costs from SSI, the PRS did not permit SSI to 

recover costs from third parties.

[34] On appeal, SSI does not dispute that its right to recover under Section 4 is 

limited to costs related to action taken under Section 2. However, SSI takes 

issue with the trial court’s interpretation of Section 2(a).8 SSI argues that “[t]he 

better and more logical reading is that SSI . . . may perform removal and 

remedial action work at a non-emergency site when other responsible parties 

have not stepped up within 90 days, and in that case SSI may via I.C. § 13-24-1-

4(b) seek reimbursement” just like IDEM. Appellant’s Brief at 27. 

[35] We note, however, that our notions of what is “better” and “more logical” do 

not trump the language of the PRS, which is in this case quite clear. Section 

4(b) provides that an owner, operator, or responsible person is entitled to 

recover from other persons all or part of the costs described in section 4(a). 

Section 4(a) provides that an owner, operator, or responsible party is liable to 

 

8

SSI makes no argument that action was taken pursuant to the emergency provision of Section 2(c). 
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the state for the costs of remedial action taken under section 2. In turn, section 

2 sets forth the circumstances under which the state may undertake remedial 

action with respect to a petroleum facility release. These sections work together 

to demonstrate that the PRS extends a limited right of recovery to private 

parties. It allows an owner, operator, or responsible party to recover from 

another responsible party where the State has incurred remediation costs 

pursuant to section 2 and passed those costs on to the owner, operator, or 

responsible party seeking recovery. Because IDEM did not incur remedial costs 

pursuant to section 2 of the PRS, and consequently passed no costs on to SSI 

pursuant to section 4(a), SSI cannot recover from other responsible parties 

pursuant to section 4(b). 

[36] Because we find the language of the PRS clear and unambiguous, we may not 

engage in judicial construction. See Siwinski v. Town of Ogden Dunes, 949 N.E.2d 

825, 828 (Ind. 2011) (noting that “[i]f a statute is clear and unambiguous on its 

face, no room exists for judicial construction”). Nevertheless, we note that we 

are unpersuaded by SSI’s argument that a broader construction is necessary to 

prevent the absurdity of “requir[ing] property owners to thumb their noses at 

IDEM upon receipt of a [PRS] demand, lest that property owner get stuck 

holding the bag when it tries to pass on some or all of its costs to ‘another 

responsible person.’” Appellant’s Brief at 28. This argument presumes that the 

PRS is the only means by which property owners may recover remediation 

costs relating to a petroleum facility release from other responsible parties. This 

is simply not the case. The ELA allows an owner of property contaminated by 
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a petroleum facility release to bring an action to recover remediation costs from 

another person that caused or contributed to the release. See Cooper, 899 N.E.2d 

at 1281 (noting that the ELA “overlaps in some ways” with the USTA and the 

PRS). We are not at liberty to construe the PRS more broadly than its language 

allows so as to relieve SSI of the consequences of its failure to file its ELA claim 

within the applicable limitation period.

Conclusion

[37] For all of these reasons, we conclude that the trial court correctly concluded 

that SSI’s ELA claim is time-barred and that the PRS does not provide SSI with 

a right to recover from the Former Operators under the circumstances of this 

case. Accordingly, we affirm the trial court’s partial summary judgment order 

on those claims.

[38] Judgment affirmed.

[39] Robb, J. and Barnes, J., concur.