IN THE SUPREME COURT OF MISSISSIPPI
NO. 2019-IA-01835-SCT
WALTER COOLEY AND TAMMY COOLEY
v.
PINE BELT OIL CO., INC.
DATE OF JUDGMENT: 11/22/2019 TRIAL JUDGE: HON. ROBERT B. HELFRICH TRIAL COURT ATTORNEYS: JAMES K. DUKES WALTER H. BOONE DEBORAH DEROCHE KUCHLER JOSEPH HENRY HART, IV JOHN ALEXANDER BRUNINI BRIAN CRAIG KIMBALL HALEY FOWLER GREGORY MONIQUE M. WEINER M. CHRISTINE CROCKETT WHITE COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: WALTER H. BOONE ANDY LOWRY M. CHRISTINE CROCKETT WHITE ATTORNEYS FOR APPELLEE: MONIQUE M. WEINER JAMES K. DUKES DEBORAH DEROCHE KUCHLER NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: REVERSED AND RENDERED - 03/03/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
KITCHENS, PRESIDING JUSTICE, FOR THE COURT:
¶1. This interlocutory appeal concerns whether the statute of limitations bars an action for
implied indemnity. The action stems from damages that Pine Belt Oil Co. (Pine Belt) incurred for the remediation of a September 2008 gasoline leak that originated on property
Walter and Tammy Cooley (the Cooleys) had sold to Pine Belt four months prior to discovery
of the leak. In 2009, the Mississippi Department of Environmental Quality (MDEQ) issued
an administrative order demanding that Pine Belt, the owners of Pine Belt, Robert Allen
Morgan and Melissa Forte Morgan (collectively, “the Morgans”), and the Cooleys pay
remediation costs, including future costs, for the properties afflicted by the gasoline leak.
Since October 2008, Pine Belt has maintained that the Cooleys were responsible for the
gasoline leak, not Pine Belt. After initially refusing to pay the remediation costs, Pine Belt
did begin paying them in July 2009.
¶2. In April 2016, six years and nine months after its first remediation payment, Pine Belt
filed a complaint seeking indemnification from the Cooleys for Pine Belt’s past and future
expenses incurred due to its remediation damage caused by the gasoline leak. The Cooleys
moved for summary judgment, arguing that the claim was barred by the statute of limitations.
The trial judge denied the summary judgment motion.
¶3. The Cooleys filed a petition for interlocutory appeal, which this Court granted. They
argue that the statute of limitations bars Pine Belt’s implied indemnity claim. The Cooleys
argue alternatively that, if the statute of limitations does not bar Pine Belt’s implied
indemnity claim, then the claim fails because Pine Belt cannot prove that it did not actively
participate in the underlying wrong, i.e., the gasoline leak. Pine Belt argues that its claim is
not time barred because an action for implied indemnity cannot accrue before a liable party
can be identified and because there must be a final, fixed amount. We hold that the applicable
2 three-year statute of limitations ran on Pine Belt’s claim on March 5, 2012. Pine Belt’s claim
is time barred, and all other arguments are moot.
STATEMENT OF THE FACTS
¶4. This dispute involves a parcel of land in Forrest County, Mississippi. Sunrise Trading
Post, a gasoline service station and convenience store, is located on the property. The
property has been used for gasoline sales since the 1920s. In the late 1980s to the early
1990s, according to MDEQ’s records, Pine Belt registered and paid for two underground
gasoline storage tanks (USTs) on the property, which were removed from the property on
April 24, 1992, while Pine Belt still owned them. The property was sold in February 1995
to James Mark Riley, who later installed several above-ground fuel storage tanks (ASTs). On
June 25, 2002, Riley sold the property to Walter and Tammy Cooley. Two months later, on
August 13, 2002, the Cooleys conveyed ownership of the property, including the building
and the AST system, to Sunrise Trading Post, LLC, a company created by the Cooleys. On
May 21, 2008, the Cooleys sold Sunrise Trading Post to the Morgans, who own Pine Belt.
The parties described the sale as “a handshake deal” because there was no written contract
or indemnity agreement between the Morgans and the Cooleys.1
¶5. On September 6, 2008, gasoline was discovered leaching into a nearby landowner’s
pond. The release was reported to MDEQ, which visited the property and informed Pine Belt
there had been a release of free gasoline product. Two days later, MDEQ requested that Pine
Belt perform a precision tightness test (PTT) in order to test the fuel lines of Pine Belt’s
1 At oral argument, the Cooleys’ attorney explained that there was a deed and that it had been recorded. But neither party included a copy of the deed in the record.
3 ASTs. In October 2008, MDEQ visited the property to verify that Pine Belt had performed
the PTT test and witnessed Pine Belt’s performance of a different test on the fuel lines, an
air-line test. The fuel lines failed the air-line test, which indicated that there was a leak in the
lines. After the test failure, MDEQ requested that Pine Belt stop usage of the fuel lines until
repairs could be made and the release of gasoline was remedied. On October 21, 2008,
MDEQ sent a letter to Pine Belt confirming that a release of gasoline had occurred at the
property and requesting that Pine Belt perform an investigation and assess the property. The
next day, October 22, 2008, Pine Belt sent the Cooleys a letter, stating the following:
At the time Pine Belt Oil Company purchased the property, it did not know, nor did you reveal to them, that the underground piping at the location was presently leaking or had leaked at any time in the past. . . . During an investigation of the scene, it was determined by Pine Belt Oil Company that if the fuel contaminating the property of the adjoining owner came from the Sunrise Trading Post, the fuel was produced prior to the time of Pine Belt Oil Company’s purchase of the gas station. Therefore, I request that you contact [an MDEQ employee with a listed telephone number] and make arrangements with the Department of Environmental Quality to comply with their requests for testing and clean-up. I would ask for you to please keep me informed of your progress on this matter and your work with the Department of Environmental Quality.
Pine Belt also forwarded the MDEQ letter of October 21, 2008, to the Cooleys. A Pine Belt
representative averred in his deposition that, in 2008, Pine Belt knew that the fuel leak
occurred before Pine Belt had acquired the property because sampling had indicated that a
component of the leaked fuel was “MTBE,[2] and MTBE had been out of the fuel system
2 In its complaint, Pine Belt avers that “MTBE [methyl tert-butyl ether] is a gasoline additive that fulfilled some of the same functions as tetra ethyl lead—typically referred to as ‘lead’ or ‘ethyl’—after leaded gasoline began to be phased out and was ultimately banned for use in road vehicles, well over a decade before Pine Belt purchased the subject property.”
4 long before we got there.”
¶6. On November 19, 2008, Pine Belt met with MDEQ to discuss the release of gasoline.
At that meeting, Pine Belt informed MDEQ that it did not intend to remediate damage caused
by the release of gasoline. Pine Belt contended that it was not responsible for the remediation
efforts. On November 24, 2008, a second meeting between MDEQ and Pine Belt occurred
in which Pine Belt again declined to remediate the gasoline damage. The record shows that
on December 1, 2008, MDEQ, along with the United States Environmental Protection
Agency (EPA), hired a contractor to begin remediation efforts to contain and prevent the
release of gasoline.3
¶7. On March 5, 2009, MDEQ issued an administrative order to Pine Belt, the Morgans,
and the Cooleys. In its order, MDEQ ordered the parties to “immediately contain and remove
the free product from the groundwater at the site and any properties that have been polluted”
3 The record includes the Cooleys’ expert’s report, which says that
[a]n interceptor recovery trench was installed on an adjoining property, owned by Mr. Earl Nordan, on December 12, 2008. A contractor, United States Environmental Services, LLC (USES), removed free phase gasoline and gasoline-contaminated groundwater from the trench at a two-week interval for approximately five (5) months. A free phase gasoline delineation assessment was performed by Neel-Schaffer in December 2008 by drilling twenty (20) borings and installing ten (10) permanent groundwater monitoring wells. The final report of the investigation was completed on January 30, 2009 which indicated ‘a free phase gasoline plume approximately 300 feet in length, 100 feet in width and up to five feet in thickness.’ An additional groundwater assessment was completed by Neel-Schaffer which included the installation of 55 additional soil borings between December 22, 2008 and February 11, 2009. A report for the assessment was issued on April 22, 2009 titled, ‘Free Phase Gasoline Delineation and Miscible Phase Benzene and Methyl-Tert-Butyl Ether [MTBE] Groundwater Assessment.’
5 and that they were “responsible for any future containment and free product removal from
the groundwater at the site and all properties affected[.]” The order cited Mississippi Code
Section 49-17-43, which imposes strict liability upon an owner or operator of a facility that
causes “pollution necessitating immediate remedial or clean-up action . . . .” Miss. Code Ann.
§ 49-17-43(4) (Rev. 2012). The order provided that “[c]ontinuing remediation will be
necessary for the foreseeable future and Respondents must meet their statutory responsibility
to remediate this site . . . .”
¶8. In a letter to MDEQ dated May 7, 2009, Pine Belt’s lawyer wrote, inter alia, the
following:
We did not receive the report prepared by Neel Schaffer until on or about April 29th, and after analyzing the same, I am now able to outline the position of Pine Belt Oil and make a proposal as to their willingness to assist in the clean up, although the evidence clearly indicates that Pine Belt Oil has little or no liability or responsibility. On behalf of Pine Belt Oil [and the Morgans], I wish to outline the proposal of Pine Belt Oil and the Morgans, as well as set forth the basis for the position of Pine Belt Oil, and its willingness to voluntarily participate in the remediation procedure, and submit the following to wit: Based on the report . . . prepared by Mr. John Malanchak, RPG of Neel-Schaffer, . . . we concur with Mr. Malanchak’s opinion concerning the urgency of the remediation of free phase gasoline and gasoline vapors in the immediate vicinity of the store and even though the factual date of the above referenced report concerning the fuel indicates Pine Belt Oil Company, Inc. had virtually no participation in the release of fuel, and Pine Belt Oil Company, Inc. has no liability in and accepts no responsibility for the release. Pine Belt Oil Company, Inc., in a demonstration of goodwill and concern for the safety of the customers and employees of Sunrise Trading Post, proposes the following. . . . Pine Belt Oil Company proposes to begin the remediation of the free phase gasoline and gasoline vapors in the area immediately surrounding the store[.] . . . Pine Belt Oil Company, Inc. will . . . oversee the remediation project of the aforementioned area. Pine Belt Oil Company, Inc. will begin the aforementioned remediation as quickly as is logistically possible. . . . Additionally, the evidence contained in the above referenced report prepared by Neel-Schaffer concerning the components of the fuel, such
6 as lead and MTBE, proves beyond any doubt that the contamination of the area north and west of Sunrise Road occurred at a time when there was absolutely no possible involvement by Pine Belt Oil Company, Inc. during the brief period of time Pine Belt Oil Company, Inc. was associated with the facility and current AST’s. It is important to note that Mr. Malanchak does identify the source of the leaded contamination as former UST’s[.] . . . Pine Belt Oil Company, Inc., via this letter, formally notifies the [MDEQ] that Pine Belt Oil Company, Inc. is in no way responsible for the remediation of the area north and west of Sunrise Road. Remediation of the area . . . is exclusively the responsibility of the previous owners and operators of Sunrise Trading Post.[4]
The record establishes that Pine Belt hired Neel-Schaffer to conduct the necessary
remediation work. The record includes invoices from Neel-Schaffer to Pine Belt beginning
in July 2009.
¶9. In 2015, Pine Belt retained William Benni as an expert to identify the exact time that
the gasoline was released by conducting a source release timing modeling report. Benni’s
report was based on sampling data taken over the years since the gasoline release was
discovered in September 2008. In his report, Benni concluded that, based on the distribution
of methyl tert-butyl, the gasoline leak had occurred in June 2005, when the Cooleys owned
the property.
¶10. The Cooleys’ expert, Steven Utroska, a professional geologist,5 opined in his report:
4 While the letter alludes to Pine Belt’s “willingness and voluntariness” to participate in remediation efforts, the 2009 MDEQ order placed a legal obligation upon Pine Belt. Additionally, Pine Belt never has contended seriously that the remediation payments it made were voluntary. Nor has Pine Belt contended that the MDEQ order did not create a legal obligation. Both parties agree that the MDEQ order imposed a legal obligation upon Pine Belt. Regardless of this letter’s insinuations that Pine Belt acted voluntarily, Pine Belt was under a legal obligation to pay for the remediation efforts. 5 Each party filed a motion to exclude the other’s expert. But the trial court has yet to rule on those motions due to a stay in the proceedings pending the outcome of this interlocutory appeal.
7 The Property has a long complex history of releases of contaminants to the environment. It is my opinion, based on the facts relied upon, that there is evidence to clearly identify long term and potentially continual releases of contaminants prior to and after the ownership and operation of The Property by [the Cooleys]. In particular, some of the contamination may have occurred during Pine Belt Oil Company’s ownership of the USTs. The resulting intermixed contaminant plume and subsequent remedial action, in my opinion, cannot be precisely attributed to any single owner or operator.
¶11. On April 15, 2016, Pine Belt filed an action for implied indemnity against the Cooleys
in the Circuit Court of Forrest County. In its complaint, Pine Belt claimed that it “[had]
incurred expenses involved in complying with the MDEQ’s Order” since March 5, 2009.
Additionally, Pine Belt asserted that it was required to comply with the MDEQ order because
it was the current landowner and that it “had no active or passive negligence in causing the
contamination at issue[.]” Pine Belt asserted also that the Cooleys “are indebted to Pine Belt
for expenses [it] has paid to comply with the MDEQ’s Order” and that they “are indebted and
owe indemnification to Pine Belt for any future expenses [it] incurs to comply with the
MDEQ’s Order[.]”
¶12. On August 25, 2016, the Cooleys filed a motion for judgment on the pleadings
pursuant to Rule 12(c) of the Mississippi Rules of Civil Procedure, asserting that Pine Belt’s
“implied indemnity claim accrued well over three years ago and [was] barred by the statute
of limitations.” Pine Belt opposed the motion, arguing:
[The Cooleys] are correct in their assertion that “[t]he statute of limitations accrues when the act occurs which gives rise to the claim” but they misconstrue the “act[s]” that give rise to Pine Belt’s claims for indemnity. . . . Each occasion when the MDEQ required Pine Belt to perform and/or pay for some task is a discrete basis for seeking indemnity from the Cooleys. . . . The bases for seeking indemnity from the Cooleys are “continuous” and analogous to a continuing tort for which limitations does not begin to accrue until the acts
8 causing injury cease. Here, the acts creating the bases for indemnity are the ongoing instructions by the MDEQ resulting in expenses being incurred and paid by Pine Belt. . . . Even if it is ultimately found that certain of these discrete instructions occurred more than three years before the filing of Pine Belt’s Complaint and are untimely, those discrete instructions by the MDEQ that have forced Pine Belt to incur expenses within the three years immediately prior to the filing of Pine Belt’s Complaint remain subject to a claim for indemnity.
After a hearing, the trial court denied the Cooleys’ Rule 12(c) motion on March 29, 2017.6
¶13. On October 17, 2019, the Cooleys filed a motion for summary judgment, alleging that
Pine Belt’s indemnity claim was barred by the statute of limitations. Specifically, the Cooleys
alleged that:
1) “The record demonstrates that Pine Belt’s right to sue, if it ever had such a right, became vested in 2009 when the MDEQ Order was issued, or, at the latest, when Pine Belt first began incurring expenses related to the remediation of the Sunrise Trading Post property, also in 2009.”
2) “Notwithstanding, Pine Belt has not met the necessary prerequisites under Mississippi law to invoke implied indemnity, which include a showing (1) that the damages it seeks to shift to the Coolyes [sic] were imposed upon it as a result of some legal obligation and (2) that the Cooleys were actively negligent while Pine Belt was not.”
¶14. In response, Pine Belt argued that its implied indemnity claim was not barred by the
statute of limitations because it did not have an enforceable cause of action until it knew
whom to sue. Specifically, it argued that “[a] cause of action cannot come into existence
before a potentially liable person can be identified.” Pine Belt claimed that it “could not
identify to a reasonable certainty who the property owner was when the release at issue took
6 The Cooleys sought an interlocutory appeal from this Court regarding the denial of this motion on April 18, 2017. On June 14, 2017, a panel of former Chief Justice Waller and Justices King and Chamberlin denied the Cooleys’ petition.
9 place without scientific expertise in analyzing sub-surface petroleum product migration.”
(Emphasis added.) Therefore, according to Pine Belt, “under the first section of Miss. Code
Ann. § 15-1-49, the cause of action accrued when Pine Belt obtained [its expert’s] analysis
identifying a time frame for the release that could be correlated with a property owner who
could be sued for Pine Belt’s damages[,]” which was in 2015. Pine Belt argued again that
“[e]ach occasion when the MDEQ required [it] to perform and/or pay for some task is a
discrete basis for seeking indemnity from the Cooleys” and “[a]t the very minimum, Pine
Belt’s damages incurred in the three years prior to filing suit are viable[.]” Also, Pine Belt
claimed that it had provided “sufficient proof on each of the required elements” for implied
indemnity.
¶15. A hearing was held on November 22, 2019. After each party presented its arguments,
the trial judge issued his ruling from the bench:
Based on J.B. Hunt Transport[, Inc. v. Forrest General Hospital, 34 So. 3d 1171 (Miss. 2010), ] and Borne [v. Estate of] Carraway[, 118 So. 3d 571 (Miss. 2013)], when the statute of limitations began to run and whether Pine Belt actively participated in the release that required the remediation are questions for the jury. So I’m going to deny your motion for summary judgment.
The same day, the trial judge filed a written order denying summary judgment “for the
reasons stated from the bench in open court at the hearing of the motion.”
¶16. On December 13, 2019, the Cooleys filed a petition for interlocutory appeal, which
was granted by this Court. The Cooleys argue that the statute of limitations began to run
“when Pine Belt knew it had suffered an injury—that its property had an underground fuel
leak that had seeped into neighboring land, and that the State would require Pine Belt to
10 expend money to remediate the leak.” Pine Belt argues that “[a] common-law indemnity
cause of action cannot come into existence before a potentially liable person can be
identified” and “until the underlying liability ‘has become finally fixed and ascertained.’”
The Cooleys argue also that neither of the two prerequisites for implied indemnity set forth
in J.B. Hunt “demand[s] that the plaintiff identify with any certainty what entity supposedly
owes him indemnity. The plaintiff (Pine Belt) just has to know that it was not at fault itself.”
¶17. Additionally, the Cooleys assert that if the statute of limitations has not run, Pine
Belt’s claim still fails because Pine Belt voluntarily paid the remediation costs and Pine Belt
cannot prove that it was not an active participant in causing the gasoline leak. In response,
Pine Belt asserts that these are questions of fact that are reserved for the jury.
STANDARD OF REVIEW
¶18. “This Court employs a de novo standard of review when considering a trial court’s
grant or denial of summary judgment.” Hobson v. Chase Home Fin., LLC, 179 So. 3d 1026,
1033 (Miss. 2015) (citing WW, Inc. v. Rainbow Casino-Vicksburg P’ship, L.P., 68 So. 3d
1290, 1292 (Miss. 2011)). “In considering this issue, we must examine all the evidentiary
matters before us, including, inter alia, admissions in pleadings, answers to interrogatories,
depositions and affidavits.” Webb v. Braswell, 930 So. 2d 387, 395 (Miss. 2006) (citing
McCullough v. Cook, 679 So. 2d 627, 630 (Miss. 1996)). “We are to view the evidence in
the light most favorable to the party opposing the motion.” Id. (citing Stallworth v. Sanford,
921 So. 2d 340, 341-42 (Miss. 2006)). “The party moving for summary judgment bears the
burden of showing that no genuine issue of material fact exists.” Hobson, 179 So. 3d at 1033
11 (internal quotation marks omitted) (quoting WW, Inc., 68 So. 3d at 1292). “If no genuine
issue of material fact exists and the moving party is entitled to judgment as a matter of law,
summary judgment should be entered in that party’s favor.” Webb, 930 So. 2d at 395 (citing
McCullough, 679 So. 2d at 630).
¶19. Additionally, “[t]his Court applies a de novo standard of review to the statute of
limitations.” Lincoln Elec. Co. v. McLemore, 54 So. 3d 833, 835 (Miss. 2010) (citing Harris
v. Darby, 17 So. 3d 1076, 1078 (Miss. 2009)); see also Burch v. Ill. Cent. R.R. Co., 136 So.
3d 1063, 1065 (Miss. 2014) (“The de novo standard also applies to the application of a
statute of limitations, which is a question of law.” (citing Sarris v. Smith, 782 So. 2d 721,
723 (Miss. 2001))).
DISCUSSION
¶20. The parties agree that, because there is no prescribed statute of limitations for an
implied indemnity action, the applicable statute of limitations is set forth in Mississippi Code
Section 15-1-49(1) (Rev. 2019). Section 15-1-49 provides that
(1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.
(2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.
Miss. Code Ann. § 15-1-49(1)-(2) (Rev. 2019). “Generally, statutes of limitation begin to run
as soon as a cause of action exists.” Greenlee v. Mitchell, 607 So. 2d 97, 110 (Miss. 1992)
(citing Aultman v. Kelly, 236 Miss. 1, 5, 109 So. 2d 344, 346 (1959)). Additionally, “[t]his
12 Court has held that a cause of action accrues ‘“when it comes into existence as an
enforceable claim, that is, when the right to sue becomes vested.”’” Weathers v. Met. Life
Ins. Co., 14 So. 3d 688, 692 (Miss. 2009) (emphasis omitted) (quoting Bullard v. Guardian
Life Ins. Co. of Am., 941 So. 2d 812, 815 (Miss. 2006)). “In other words, the statute of
limitations ‘begins to run when all the elements of a tort, or cause of action, are present.’”
Id. (quoting Caves v. Yarbrough, 991 So. 2d 142, 147 (Miss. 2008)). Therefore, we must
determine the elements that are necessary for an implied indemnity right of action to accrue.
¶21. Pine Belt argues that an implied indemnity action cannot accrue until “a potentially
liable person can be identified[.]” But this argument fails because Mississippi Rule of Civil
Procedure 9(h) provided Pine Belt a mechanism for assertion of its implied indemnity claim
timely, even though it had not definitively identified the liable person and/or entity. See Miss.
R. Civ. P. 9(h). This Court has explained that
“The purpose of Rule 9(h) is to provide a mechanism to bring in responsible parties, known, but unidentified, who can only be ascertained through the use of judicial mechanisms such as discovery. It is not designed to allow tardy plaintiffs to sleep on their rights for . . . years, make only one telephone call prior to the running of the statute, and then enjoy the benefits of the rule.”
Wilner v. White, 929 So. 2d 315, 322 (Miss. 2006) (quoting Doe v. Miss. Blood Servs., Inc.,
704 So. 2d 1016, 1019 (Miss. 1997)). It is apparent from Pine Belt’s letters that it knew the
Cooleys likely were liable to them as early as October 2008. Had Pine Belt utilized Rule 9(h)
to assert its claim with John Does listed as defendants, it could have substituted the Cooleys
as named parties after Pine Belt’s expert had determined a time frame for the gasoline leak.
See Wilner, 929 So. 2d at 322 (“Rule 9(h) pleadings are not considered amendments
13 changing a party against whom a claim is asserted and are allowed under Rule 15(c) to relate
back to the date of the original pleading.” (citing Miss. R. Civ. P. 15(c))). Pine Belt cannot
claim that its action did not accrue until it could positively identify the liable party when it
had a good faith belief since 2008 that the Cooleys indeed were responsible parties. Rule 9(h)
obviates an argument that an action does not accrue until a responsible party is identified
definitively. We note that, based on Pine Belt’s letters, it is apparent that its lawyer had
enough information in 2009 to form a good faith belief that the Cooleys were liable with
respect to Pine Belt’s implied indemnity claim.
¶22. Pine Belt asserts also that its implied indemnity action could not accrue until there was
a final, fixed amount of damages. Both parties recognize that this is an unusual claim for
indemnity because there is no judgment or settlement with a fixed amount. Rather, there is
an administrative agency’s order that legally required a party to pay remediation
costs—which are neither fixed nor liquidated—for an underlying wrong, i.e., the gasoline
leak. Pine Belt’s argument relies on the continuing tort doctrine. Specifically, Pine Belt
argues that
Just as this Court has recognized that a tort can be continuing, so also can a claim for implied indemnity continue beyond an initial loss. The actionable component of Pine Belt’s indemnity claim—payment of expenses properly attributable to Defendants—continued well into 2015. Each and every such expense is part of a broader indemnity claim that could not accrue until the entire indemnity claim was complete. . . . In the alternative, at the very least, Pine Belt’s expenses incurred within three years of filing suit are not barred by limitations. Limitations could not accrue on an indemnity claim for expenses that had not yet been incurred and that could not be ascertained.
Additionally, Pine Belt argues that, “in the analogous context of continuing torts, limitations
14 will not run on a claim that is ongoing” and that “[e]ach and every time Pine Belt was forced
to comply with remediation requirements that [the Cooleys] did not undertake, its indemnity
action continued to accrue.” We find that Pine Belt’s comparison to the continuing tort
doctrine is inapposite.
¶23. This Court has held that
[W]here a tort involves a continuing or repeated injury, the cause of action accrues at, and limitations begin to run from, the date of the last injury, or when the tortious acts cease. Where the tortious act has been completed, or the tortious acts have ceased, the period of limitations will not be extended on the ground of a continuing wrong.
A “continuing tort” is one inflicted over a period of time; it involves a wrongful conduct that is repeated until desisted, and each day creates a separate cause of action. A continuing tort sufficient to toll a statute of limitations is occasioned by continual unlawful acts, not by continual ill effects from an original violation.
Pierce v. Cook, 992 So. 2d 612, 619 (Miss. 2008) (alteration in original) (quoting Stevens
v. Lake, 615 So. 2d 1177, 1183 (Miss. 1993)). “We have held that we will not apply the
continuing tort doctrine when harm reverberates from one wrongful act or omission.” Smith
v. Franklin Custodian Funds, Inc., 726 So. 2d 144, 149 (Miss. 1998) (citing Stevens, 615
So. 2d at 1183). The wrongful act that caused Pine Belt’s harm and damages was the action
or inaction of the landowner whose negligence, whether active or passive, caused the
gasoline leak. It is possible that damages incurred due to that landowner’s actions or
inactions during the time between the origination of the gasoline leak and the repair of the
leak might satisfy the continuing tort doctrine, since damages may have resulted from
ongoing tortious acts. But we find that the damages for which Pine Belt seeks
15 indemnification from the Cooleys are continuing ill effects of the action or inaction that
caused the leak, not a continuing tortious act such as ongoing leakage. Thus, Pine Belt’s
argument in this regard is without merit.
¶24. The Cooleys argue that Pine Belt’s cause of action accrued when Pine Belt discovered
or “knew it had been injured.” They maintain that “[o]nce Pine Belt knew it had incurred an
obligation to MDEQ for conduct for which it believed itself blameless, it had to file suit
within three years.” Pine Belt asserts that the Cooleys “pervasively confuse and conflate the
accrual of a cause of action on the one hand—which starts the limitations clock ‘ticking,’
with the statutory discovery rule for latent injuries on the other—which tolls limitations on
an action that would otherwise accrue until injury specifically is discovered.” While the
parties agree that the date of discovery/latent injury statutory rule does not apply in this case,
each relies on case law interpreting and applying that particular rule. See Borne, 118 So. 3d
at 571; Caves, 991 So. 2d 142; Angle v. Koppers, Inc., 42 So. 3d 1 (Miss. 2010);
Owens-Illinois, Inc. v. Edwards, 573 So. 2d 704 (Miss. 1990); City of Tupelo v.
O’Callaghan, 208 So. 3d 556 (Miss. 2017). “[T]his Court has held that if a latent injury is
not present the discovery rule would not apply.” PPG Architectural Finishes, Inc. v.
Lowery, 909 So. 2d 47, 50 (Miss. 2005) (citing Chamberlin v. City of Hernando, 716 So.
2d 596, 602 (Miss. 1998)). We find that the so-called discovery rule and its case law have
no application and bear no analogous relevance to this case.
¶25. Regarding causes of action for indemnity, this Court has held that
An obligation to indemnify may arise from a contractual relation, from an implied contractual relation, or out of liability imposed by law. When one
16 person is required to pay money which another person in all fairness should pay, then the former may recover indemnity from the latter in the amount which he paid, provided the person making the payment has not conducted himself in a wrongful manner so as to bar his recovery. 42 C.J.S. Indemnity § 20 (1944).
Bush v. City of Laurel, 215 So. 2d 256, 259-60 (Miss. 1968). There is no indemnity contract
and no indemnity clause within a contract in this case. Thus, Pine Belt’s indemnity claim
arises from the common law. For implied indemnity cases:
The general rule governing implied indemnity for tort liability is that a joint tort feasor, whose liability is secondary as opposed to primary, or is based upon imputed or passive negligence, as opposed to active negligence . . . may be entitled, upon an equitable consideration, to shift his responsibility to another joint tort feasor. However, where the fault of each is equal in grade and similar in character, the doctrine of implied indemnity is not available since no one should be permitted to base a cause of action on his own wrong. Thus, the determination of whether or not indemnity should be allowed must of necessity depend upon the facts of each case. 41 Am. Jur. 2d Indemnity § 20 (1968); 42 C.J.S. Indemnity § 20 (1944); Werner Contribution and Indemnity In California, 57 Cal. L. Rev. 490, 491 (1969); Davis, Indemnity Between Negligent Tort Feasors: A Proposed Rationale, 37 Lowa L. Rev. 517, 538 (1952); and Leflar, Contribution and Indemnity Between Tortfeasors, 81 U. Pa. L. Rev. 130, 147 (1932).
Home Ins. Co. of N. Y. v. Atlas Tank Mfg. Co., 230 So. 2d 549, 551 (Miss. 1970).
¶26. We have held that:
Two critical prerequisites are generally necessary for the invocation of noncontractual implied indemnity in Mississippi: (1) The damages which the claimant seeks to shift are imposed upon him as a result of some legal obligation to the injured person; and (2) it must appear that the claimant did not actively or affirmatively participate in the wrong.
J.B. Hunt, 34 So. 3d at 1173-74 (emphasis omitted) (quoting Home Ins. Co., 230 So. 2d at
551). We have recognized that a claim for common law indemnity does not arise “until there
is legal liability to pay a judgment . . . ” that should in fairness be paid by another. Miss.
17 Transp. Comm’n v. Jenkins, 699 So. 2d 597, 599 (Miss. 1997)).
¶27. American Jurisprudence provides the following guidance from other states’ case law
on the scenarios that give rise to an indemnity action:
Generally, a cause of action for implied indemnity does not come into existence until the indemnitee has suffered actual loss through the payment of a judgment or settlement. Accordingly, a fundamental prerequisite to an action for equitable indemnity is an actual monetary loss through the payment of a judgment or settlement.
Generally, a cause of action for common law indemnification accrues at the time a judgment is rendered against the indemnitee for the underlying claim.
41 Am. Jur. 2d Indemnity § 26, Westlaw (database updated May 2021) (emphasis added)
(footnotes omitted) (citations omitted). Additionally, American Law Reports states, citing
case law from other jurisdictions:
The rule generally recognized in most jurisdictions is that the cause of action for . . . indemnity based upon tort is distinct from the cause of action for the underlying tort, and the time when the statute of limitations starts to run upon such cause of action is not when the tort is committed, but when the underlying claim, a judgment thereon, or a settlement thereof is paid or discharged. . . .
However, frequently statements made by some courts indicate that the statute of limitations might be regarded as commencing to run on a cause of action for indemnity at some time prior to actual payment, namely, at the time the injured person recovers judgment against the indemnitee or when such judgment becomes final.
57 A.L.R. 3d 867 (footnotes omitted), Westlaw (emphasis added) (citations omitted).
¶28. Pine Belt argues that “the trial court correctly ruled that when Pine Belt’s cause of
action accrued requires resolution of highly disputed questions of fact.” We disagree. In its
brief, the questions of fa[ct that Pine Belt asserted were: (1) whether Pine Belt was actively
negligent; (2) the discovery of the injury, i.e., the source of the contamination; and (3)
18 whether Pine Belt’s payment under the 2009 MDEQ order was voluntary. This Court has
held that “[o]ccasionally the question of whether the suit is barred by the statute of
limitations is a question of fact for the jury; however, as with other putative fact questions,
the question may be taken away from the jury if reasonable minds could not differ as to the
conclusion.” Smith v. Sanders, 485 So. 2d 1051, 1053 (Miss. 1986) (citing Gulfport
Fertilizer Co. v. McMurphy, 114 Miss. 250, 75 So. 113, 114 (1917)); see also Averitt
Express, Inc. v. Collins, 172 So. 3d 1252, 1255-56 (Miss. Ct. App. 2015) (“If there is no
factual dispute, ‘the question is one of law, and the Court may independently review those
facts to determine the correct answer.’” (quoting Walls v. N. Miss. Med. Ctr., 568 So. 2d
712, 714 (Miss. 1990))).
¶29. Here, reasonable minds could not differ on the question of whether the elements of
common law indemnity were present in 2009. See Weathers, 14 So. 3d at 692 (quoting
Bullard, 941 So. 2d at 815). Pine Belt and the Cooleys agree that Pine Belt was under a legal
obligation by virtue of the MDEQ order of March 5, 2009, which mandated the parties to pay
for the remediation of injury caused by the gasoline leak. It is manifest from the record that
as early as 2008, Pine Belt believed that its short time of ownership of the property appeared
to show that it was not an active participant in causing the gasoline leak.7 In 2009, it
informed MDEQ that it bore no responsibility for the leak. It asserted that a 2009 expert
7 In J.B. Hunt, this Court stated that “it must appear that the claimant did not actively or affirmatively participate in the wrong[;]” we interpret that language to mean that, in order for the action to accrue and allow a complaint for implied indemnity to be filed, only a good- faith belief, based on appearances, that the person or entity seeking indemnity was not an active participant in the wrong is required. J.B. Hunt, 34 So. 3d at 1174.
19 report by Neel-Schaffer established that Pine Belt was not responsible based on the presence
of lead and MTBE in the fuel contamination. We observe that it is apparent from the record
that the earliest invoice related to the costs for remediation was for July 1, 2009. Although
the amount that Pine Belt was ordered to pay by MDEQ was unliquidated, the MDEQ order
legally obligated Pine Belt to pay for present and future cleanup costs which Pine Belt all
along believed, in fairness, should be paid by the Cooleys. Because the order placed Pine Belt
under a compulsion to pay damages which it believed should be paid by another, this Court
finds that all of the elements of implied indemnity were present and the statute of limitations
began to run on March 5, 2009, and ended on March 5, 2012. Pine Belt did not file its
complaint until April 15, 2016. Thus, Pine Belt’s implied indemnity action is time barred.
Because the claim is time barred, we do not reach the question of whether Pine Belt can
prove the elements of implied indemnity or address the conflicting testimony of the experts.
¶30. The separate opinion contends that, although MDEQ ordered Pine Belt to pay for
present and future cleanup costs on March 5, 2009, MDEQ issued cleanup orders in 2013 and
2014 that created an “unusual” situation necessitating a jury determination of when the
limitations period began. CDIP Op. ¶ 51 (emphasis omitted). But what the separate opinion
characterizes as orders actually are letters sent by counsel for MDEQ to counsel for Pine Belt
concerning specific aspects of Pine Belt’s performance of the remediation ordered on March
5, 2009. Those letters did not impose any legal obligations outside the scope of the cleanup
required by the March 5, 2009, order. Undoubtedly in recognition of that fact, Pine Belt’s
complaint for indemnity avers that the source of the liability it incurred on behalf of the
20 Cooleys was the March 5, 2009, order. The 2013 and 2014 letters did not revive Pine Belt’s
implied indemnity claim. The March 5, 2009, order was the only MDEQ order in this case,
and it obligated Pine Belt and the other affected parties to perform “continuing remediation
for the foreseeable future.”
¶31. Under the separate opinion’s viewpoint, every future remediation payment made by
Pine Belt pursuant to the original 2009 order would give it three years in which to sue the
Cooleys to recover that payment, sparking the potential for almost endless litigation. The
separate opinion deems this concern a red herring, yet it does not explain why. The separate
opinion’s analysis would violate the protections afforded to litigants by the applicable statute
of limitations. This Court has held that “[t]he primary purpose of statutory time limitations
is to compel the exercise of a right of action within a reasonable time. These statutes are
founded upon the general experience of society that valid claims will be promptly pursued
and not allowed to remain neglected.” Mitchell v. Progressive Ins. Co., 965 So. 2d 679, 683
(Miss. 2007) (internal quotation marks omitted) (citing Miss. Dep’t of Pub. Safety v.
Stringer, 748 So. 2d 662, 665 (Miss. 1999)); see also Wood v. Carpenter, 101 U.S. 135, 139,
25 L. Ed. 807 (1879) (“[Statutes of limitation] promote repose by giving security and stability
to human affairs.”). Nor did Pine Belt’s acquisition, in 2015, of an expert report providing
further MTBE-based evidence that Pine Belt was not responsible revive the claim because,
since 2009, Pine Belt had asserted that it was not responsible for the contamination and that
it had an expert report proving it was not responsible based on the presence of MTBE.
Because the March 5, 2009, MDEQ order compelled all of the payments that Pine Belt has
21 made or will make, for which it believed all along it was not responsible, all elements of
implied indemnity were present when the order was entered.
CONCLUSION
¶32. A cause of action accrues and the statute of limitations begins to run when all the
elements of the action are present. Here, all the elements for implied indemnity were satisfied
on March 5, 2009, when Pine Belt was ordered to pay cleanup costs for an underlying wrong
in which Pine Belt appeared not to have been an active participant. The statute of limitations
for an implied indemnity action is three years. Thus, Pine Belt’s implied indemnity claim ran
on March 5, 2012. Pine Belt did not file its claim until April 15, 2016, which was
approximately three years too late. This Court finds that Pine Belt’s action for implied
indemnity is time barred and that the Cooleys were entitled to summary judgment. All other
arguments are moot.
¶33. REVERSED AND RENDERED.
KING, P.J., BEAM, CHAMBERLIN AND GRIFFIS, JJ., CONCUR. RANDOLPH, C.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY COLEMAN, MAXWELL AND ISHEE, JJ.
RANDOLPH, CHIEF JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
¶34. An indemnity claim does not accrue until payment is made. With respect to indemnity
claims by Pine Belt arising from payments made before April 15, 2013, I concur, because the
applicable three-year statute of limitations expired as to those claims. However, those claims
accruing from payments made on or after April 15, 2013, were not prescriptively time-barred
22 when this action was filed on April 15, 2016. Thus, I respectfully concur in part and dissent
in part.
¶35. Before this Court is an order denying a motion for summary judgment filed by Walter
and Tammy Cooley. The trial court properly determined that factual disputes and issues of
whether Pine Belt’s claims were barred and whether Pine Belt sufficiently alleged the
elements of its claims are questions of fact, depending on the evidence presented.
¶36. “[I]ndemnify” is defined as “[reimbursement] for a loss suffered because of a third
party’s or one’s own act or default.” Indemnify, Black’s Law Dictionary (11th ed. 2019)
(emphasis added). Likewise, “indemnification” is defined as “the action of compensating for
loss or damage sustained . . . the compensation so made.” Indemnification, Black’s Law
Dictionary (11th ed. 2019) (emphasis added). Indemnification claims come into being at the
moment a payment has been made. In other words, a party must suffer a loss by payment to
another to trigger an indemnification claim.
¶37. This case is not premised on a claim that the Cooleys are liable in tort. Thus, neither
the discovery rule nor the continuing-tort doctrine have application to this case. Pine Belt
seeks recovery of payments made due to demands of the Mississippi Department of
Environmental Quality (MDEQ). The losses incurred by Pine Belt were imposed because of
strict liability.8 Pine Belt seeks to be indemnified, inter alia, for losses it incurred for
8 Pine Belt’s duty to pay was not based upon fault or negligence, but strict liability. The 2009 MDEQ order cited Mississippi Code Section 49-17-43 which states, in pertinent part, that “[a]ny person who owns or operates facilities which, through misadventure, happenstance or otherwise, cause pollution necessitating immediate remedial or clean up action shall be liable for the cost of such remedial or clean-up action . . . . Miss. Code. Ann. § 49-17-43(4) (Rev. 2012) (emphasis added); see also 33 U.S.C. §§ 1251-1388 (the Clean
23 remediation of a site that contained methyl tert-butyl ether (MBTE). There is no dispute that
contamination emanated from property sold by the Cooleys to Pine Belt. The question
presented to this Court is whether the trial court properly denied the Cooleys’ motion for
summary judgment. The Cooleys’ motion contends that all claims of indemnification,
regardless of when the claim or payment was made, are barred by a three-year statute of
limitations. Pine Belt rebutted, arguing that it was not until 2015 “[d]uring an investigation
of the scene, it was determined by Pine Belt Oil Company that if the fuel contaminating the
property of the adjoining owner came from the Sunrise Trading Post, the fuel was produced
prior to the time of Pine Belt Oil Company’s purchase of the gas station.” While its argument
may or may not be true, that is a decision for the fact finders, not summary dismissal by an
appellate court.
¶38. It is well settled that “[a]n obligation to indemnify may arise from a contractual
relation, from an implied contractual relation, or out of liability imposed by law.” Bush v.
City of Laurel, 215 So. 2d 256, 259 (Miss. 1968). There is no disagreement that the three-
year statute of limitations found in Mississippi Code Section 15-1-49 applies. It provides that
claims shall barred “within three (3) years next after the cause of such action accrued, and
not after.” Miss. Code Ann. § 15-1-49(1) (Rev. 2019). It is also well settled that “a cause of
action ‘accrues’ when it comes into existence as an enforceable claim, that is, when the right
to sue becomes vested.” Bullard v. Guardian Life Ins. Co. of Am., 941 So. 2d 812, 815
(Miss. 2006) (internal quotation marks omitted) (quoting Forman v. Miss. Publishers Corp.,
Water Act).
24 195 Miss. 90, 14 So. 2d 344, 346 (1943)). In a recent case, this Court held that
Two critical prerequisites are generally necessary for the invocation of noncontractual implied indemnity in Mississippi: (1) The damages which the claimant seeks to shift are imposed upon him as a result of some legal obligation to the injured person; and (2) it must appear that the claimant did not actively or affirmatively participate in the wrong.[9]
J.B. Hunt Transp., Inc. v. Forrest Gen. Hosp., 34 So. 3d 1171, 1173–74 (Miss. 2010) (first
emphasis added) (quoting Home Ins. Co. v. Atlas Tank Mfg. Co., 230 So. 2d 549, 551
(Miss. 1970)). Thus, damages must not have only been claimed but must have been paid.
Furthermore, the one seeking indemnification must not have participated in the wrong that
caused the injury. Each element is fact-intensive.
¶39. The trial court recognized numerous factual questions precluded summary judgment
as a matter of law.
¶40. The following dates and facts are crucial in evaluating the trial court’s denial of
summary judgment.
FACTS
¶41. On June 25, 2002, the Cooleys bought the property. On May 21, 2008, Pine Belt
purchased the Cooleys’ property. On September 6, 2008, gasoline was found leaching into
an adjacent landowner’s pond. On September 8, 2008, MDEQ requested Pine Belt perform
tests on its fuel lines. In October 2008, those tests revealed a leak. On October 21, 2008,
MDEQ also corresponded with Pine Belt and requested an investigation be conducted. On
October 22, 2008, MDEQ corresponded with the Cooleys and requested that the Cooleys
9 That is a fact that the majority summarily imposes against Pine Belt, despite their protestation through expert testimony.
25 comply with testing and clean-up.
¶42. On March 5, 2009, MDEQ issued an administrative order to Pine Belt and the
Cooleys, inter alia, ordering them to clean up the site and informing them that they would
be responsible for any future clean up. In July 2009, only Pine Belt complied.
¶43. The first MDEQ order mandated that the both parties “immediately contain and
remove the free product from the groundwater at the site and any properties that have been
polluted” and provided they were “responsible for any future containment and free product
removal from the groundwater at the site and all properties affected[.]” The order further
stated that “[t]he failure to comply with this [o]rder will be considered a continuing violation
of those laws and regulations, subjecting the Respondents to further penalties of up to
$25,000 per day.” The second MDEQ order in 2013 required that the dual-phase extraction
system paid for by Pine Belt continue to be operated; and that two wells from the property
across the street (a different location) be added to the maps created by the Neel-Schaffer
engineers, at Pine Belt’s expense, to be included in the reports provided to MDEQ. The third
MDEQ order in 2014 mandated that two more monitoring wells be added to the sampling
roster, as they were needed for dissolved phase plume delineation.10 MDEQ also added the
requirement of statistical analysis and interpretation of each impacted well, previously
neither sought nor performed by anyone. Pine Belt complied with these governmental
demands subsequently, incurring more than $1 million of additional expenses. At every point,
Pine Belt was subject to the compulsory governmental demands of MDEQ. Its resulting
10 A plume is an underground pattern of contaminant. Delineation is mapping and defining that pattern through sampling.
26 payments were in response to the attending legal obligation.
¶44. Of particular import, it was not until the 2014 Order that MDEQ required additional
testing which resulted in the identification of the MTBE. Within six months of gaining
knowledge of this fact, Pine Belt averred that it was not responsible for the remediation of
the MBTE contamination because that chemical was removed from gasoline decades prior.
The Cooleys contest this fact. Again, the Cooleys may prevail, but neither the trial judge nor
a single justice on this Court has such uncontested knowledge. In evaluating a motion for
summary judgment, courts analyze in the light most favorable to the nonmoving party. If the
facts are in dispute, trial is necessary to decide the contested facts.
¶45. In October 2015, William Benni, an expert hired by Pine Belt, identified MTBE
contaminant in the sampling data. Benni concluded that the distribution of the entire plume,
which was similar in composition, indicated that one major release of contamination
occurred, as opposed to a “kind of dripping, ongoing release.” Moreover, the Cooleys
admitted that fuel had gone missing during their ownership. No tests were performed, so no
leak was revealed. These are just a sampling of the numerous facts to be considered and
resolved by a jury.
¶46. On April 15, 2016, Pine Belt filed this action seeking indemnification for expenses
incurred and paid by Pine Belt to contain or remove the contamination and for all future
expenses to contain and remove contamination from the subject and surrounding properties.
In the complaint, Pine Belt alleged that MTBE was identified in the remediation ordered by
MDEQ. Benni determined a plume from the contamination was the result of a single, major
27 release prior to Pine Belt’s ownership. Pine Belt further alleges that gasoline additive was
phased out of gasoline and ultimately banned for use in road vehicles more than a decade
before Pine Belt purchased the Cooleys’ property. Thus, Pine Belt pleads that it did not
contribute to the MTBE contamination. Pine Belt avers that its indemnification claim related
to MTBE contamination did not arise until after 2015. Pine Belt avers it did not actively or
affirmatively participate in the wrong and that it should not be held responsible for the
MTBE contamination. Once again, a fact finder must sort this out.
¶47. On August 25, 2016, the Cooleys filed a Mississippi Rule of Civil Procedure 12(c)
motion, arguing that Pine Belt’s claims were barred by the three-year statute of limitation.
The Cooleys argued that Pine Belt knew about remediation expenses since the first MDEQ
Order was issued on March 5, 2009. At the hearing, Pine Belt argued that it did not know
until 2015 that the source of contaminants included MTBE, qualifying it to seek recovery
for those remediation costs, alleging that they had not affirmatively participated in the release
of product containing MTBE. On March 29, 2017, the trial court correctly denied the
Cooleys’ Rule 12(c) motion, finding that the Cooleys failed to establish that there was no set
of facts that would support Pine Belt’s claims.
¶48. On October 17, 2019, one month after discovery was completed and one week before
trial, the Cooleys filed a motion for summary judgment, again alleging Pine Belt’s claims
were barred by the three-year statute of limitations. At that hearing, Pine Belt argued that this
case did not concern toxic torts or latent injuries, as the Cooleys represented, and that it did
not discover the MTBE contamination until 2015.
28 ¶49. On November 22, 2019, the trial court correctly followed our existing law and denied
the motion for summary judgment, finding that the issues presented, whether Pine Belt was
an active participant and whether the statute of limitations had expired, were questions of fact
for the jury.
ANALYSIS
¶50. No judgment or settlement with a fixed amount is at issue here. Multiple, ongoing
compliance requirements were issued that separately and legally obligated Pine Belt to pay
for remediation costs. In addition to the original 2009 order, MDEQ continued to mandate
Pine Belt’s compliance. In this case, no single judgment, event, or claim exists. Pine Belt’s
monetary losses were created by separate events and payments.
¶51. Pine Belt argues that “those discrete instructions by the MDEQ that have forced Pine
Belt to incur expenses within the three years immediately prior to the filing of [its] Complaint
remain subject to a claim for indemnity.” Such claims are not null as a matter of law at this
stage of the proceedings; the unusual nature of this claim for indemnity creates “a question
of fact for the jury” as to “whether the suit is barred by the statute of limitations . . . .” Smith
v. Sanders, 485 So. 2d 1051, 1053 (Miss. 1986) (citing Gulfport Fertilizer Co. v.
McMurphy, 114 Miss. 250, 75 So. 113, 114 (1917)); see Maj. Op. ¶ 28.
¶52. J.B. Hunt set forth two requirements for invoking an implied indemnity action—“(1)
the damages which the claimant seeks to shift are imposed upon him as a result of some legal
obligation to the injured person; and (2) it must appear that the claimant did not actively or
affirmatively participate in the wrong.” J.B. Hunt, 34 So. 3d. at 1174 (emphasis omitted).
29 Thus, the viability of any particular indemnity claim is not effectuated until damages have
accrued as a result of an order. Here, damages were imposed upon Pine Belt via MDEQ
orders in 2013 and 2014 (at which time, according to the majority, the statute of limitations
had already run). Even when utilizing the J.B. Hunt standard, additional imposition of
damages creates a separate claim of indemnity.
¶53. With respect to (2), this factor undeniably implicates genuine issues of material fact.
To whom shall factual disputes appear? It must appear to the jury that the claimant did not
participate in the wrong. The majority detailed the relevant ownership history of the subject
property and also pointed out that there are competing expert opinions (also for a jury to sort
out) on who owned the property at the time of the gasoline leak. Maj. Op. ¶¶ 4, 9-10. The
date of the release of the petrochemicals that migrated to adjoining property is a disputed fact
at this point, as is whether and when subsequent damages ensued. At the summary judgment
stage of these proceedings, in which “the non-moving party should be given the benefit of
every reasonable doubt,” Moss v. Batesville Casket Co., 935 So. 2d 393, 398 (Miss. 2006)
(citing Tucker v. Hinds Cnty., 558 So. 2d 869, 872 (Miss. 1990)), the trial judge’s
determination is without error that “whether Pine Belt actively participated in the release that
required the remediation is a question for the jury.”
¶54. The majority’s expressed concern of “endless litigation” is a red herring. Maj. Op. ¶
31. Once sufficient remediations have been implemented, the allowable time period to
indemnify comes to an end. “The primary purpose of statutory time limitations is to compel
the exercise of right of action within a reasonable time.” Mitchell v. Progressive Ins. Co.,
30 965 So. 2d 679, 683 (Miss. 2007) (internal quotation mark omitted) (quoting Miss. Dep’t of
Pub. Safety v. Stringer, 748 So. 2d 662, 666 (Miss. 1999)). An allowance of three years to
recover the payments from 2013 and 2014 is not only reasonable; the law demands it. We
agree that Pine Belt cannot require the Cooleys to fund the 2009 remediation efforts, for that
demand exceeds the three-year window provided by law. Yet nothing in our law mandates
that Pine Belt should be penalized for first suffering damages after the statute of limitations
had expired.
COLEMAN, MAXWELL AND ISHEE, JJ., JOIN THIS OPINION.