Facts

Industrial Property Reclamation LLC (IPR) acquired the subject property from Ashland Inc. in 2001. IPR subsequently assigned its interest in the property to Painter Business Park LLC. Painter Liquidation LLC was the successor-in-interest to Painter Business Park and IPR. Painter obtained the property for the purpose of developing it into warehouse industrial buildings.

Ashland, a Fortune 250 chemical oil-processing company, or its predecessors operated the property since the 1960s. Ashland's primary business was in distributing and breaking down bulk chemical facilities. It operated a chemical distribution on the subject property which included the use of above-ground and underground storage tanks. It caused contamination of the soil and groundwater with hazardous materials, but has conducted investigations and remediation of the soil and groundwater since at least 1990.

URS Corp. conducted an environmental investigation of the property in 2000 for the sole purpose of obtaining necessary closure letters to facilitate the sale of the property. URS developed a plan, which governed the process of remediation of contaminated soils. However, while Ashland knew that there were hazardous materials in the soil, the full extent could not be known until the property was actually developed. The purchase agreement was contingent on the parties entering into an indemnity agreement.

Painter entered into the indemnity agreement with regard to the sale of the property with the intent of limiting its potential exposure to unknown environmental contamination discovered at the property. The agreement, however, did not contain a limit on the obligations.

Painter began developing the property in 2004. URS was designated by Ashland to be Painter's point of contract for issues related to hazardous materials. URS was prompt at first, but their performance became less responsive as the project progressed, which necessitated Painter to hire its own consultants. As a result thereof, Painter experienced considerable delays and incurred additional costs during the construction due to discovery of additional hazardous materials and URS's failure to promptly respond. Painter demanded Ashland to provide indemnity and reimbursement under the indemnity agreement, which Ashland rejected.

Damages

Painter sought $583,502 in damages for extra costs expended. Painter also sought $600,000 in attorney fees and costs as well as punitive damages.

Result

A bench trial resulted in a $86,482 award to plaintiff.