ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
LARRY J. KANE JAMES E. AYERS
KARL L. MULVANEY Wernle, Ristine & Ayers
PHIL L. ISENBARGER Crawfordsville, Indiana
Bingham Summers Welsh & Spilman
SHELL OIL COMPANY, ) ) Appellant-Defendant, ) ) vs. ) No. 32A01-9705-CV-154 ) THE LOVOLD COMPANY, a Partnership, ) ) Appellee-Plaintiff. )
1993). Further, "control" is defined as "to exercise restraining or directing influence over."
Id. at 252. In order to be considered an operator under the Act, therefore, Shell must have
had more than the "authority to control." Rather, Shell must have exercised immediate
control over or have been directly answerable for the daily operations of the storage tanks.
In the present case, nothing in the record indicates that Shell exercised such influence or was otherwise accountable for the daily operations of the storage tanks. The record reveals that the relationship between Shell and the operators of the Brownsburg station was tenuous. Shell, as a wholesaler, merely supplied gasoline to an intermediate wholesaler who, in turn, supplied gasoline to the Brownsburg station. R. at 97. However, there is no evidence that Shell had a contract with the station to supply the gasoline. R. at 98. Additionally, there is no evidence that Shell leased the facility; rather, the intermediate wholesaler, who leased the facility from a third party, sublet the station to the Brownsburg station operators. R. at 97. Finally, although Shell may have taken certain remedial actions over the past several years to ensure that the underground storage tanks would not pose a health risk to the local residents, these isolated acts were insufficient to make Shell responsible for the daily operations of the Brownsburg station's underground tanks. Under these circumstances, we cannot conclude that Shell was an operator under the Act. To hold otherwise, would impose a definition that the legislature could not have intended. Because Shell could not be held liable under the Act, the trial court erred in denying its motion for summary judgement. The denial of Shell's motion for summary judgment is reversed and remanded for proceedings not inconsistent with this proceeding.
STATON, J., concurs.
ROBERTSON, J., dissents with opinion.
COURT OF APPEALS OF INDIANA
SHELL OIL COMPANY, )
vs. ) No. 32A01-9705-CV-154
THE LOVOLD COMPANY, a Partnership )
ROBERTSON, Judge, dissenting
I respectfully dissent. This is enormously complex litigation. The slip opinion of this
court's decision in Shell Oil Co. and Union Oil Co. v. Meyer, 684 N.E.2d 504, 514 (Ind. Ct.
App. 1997) is 48 pages long and deals with the interpretation of a whole bunch of federal
statutes and cases. Transfer is pending before our supreme court.
Under the doctrine of stare decisis, we follow precedent from other districts of this court and may repudiate those decisions only if strong reason exists to do so. Lincoln
Utilities, Inc. v. Office of Utility Consumer Counselor, 661 N.E.2d 562, 565 (Ind. Ct. App. 1996), trans. denied. As the Meyer decision was comprehensively dealt with by our court, and our supreme court will have an opportunity to judge its correctness, principles of stare decisis and judicial economy prompt me to vote to affirm the present, discretionary, interlocutory appeal of the denial of summary judgment.
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