Opinion
Cause No. IP 01-0531-C H/K
March 26, 2003.
ENTRY ON PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
This diversity case presents a contract dispute over the remediation of a "Superfund" hazardous waste site in Boone County, Indiana. Plaintiffs Roy O. Ball and Norman W. Bernstein ("the Trustees"), are trustees for the fund formed by hazardous waste generators to clean up the site under an agreement with federal and state government agencies. The Trustees filed this action against defendant Versar, Inc. for breach of its contract to perform remediation services at the site. In its answer, Versar denied having breached the contract and asserted counterclaims against the Trustees in six counts. Versar also filed a third party complaint against third party defendants Environmental Resources Management, Inc. and Radian International, LLC, companies that performed services for the Trustees in connection with the hazardous waste site.
The case comes before the court on plaintiff-trustees' motion for partial summary judgment, their motion to supplement their motion for partial summary judgment, and defendant Versar's motion for reconsideration of a discovery ruling. Briefing on these matters has been extensive. A summary of these filings will clarify the context of this entry. The Trustees filed on July 3, 2002, the present motion for partial summary judgment as to any of defendant Versar's counterclaims that predate November 30, 1999, the effective date of Amendment No. 2 to the parties' original agreement. The Trustees filed this motion before the court had ruled on their then-pending motion to dismiss several of defendant Versar's counterclaims. On September 6, 2002, the court then dismissed Counts II (negligent misrepresentations and/or fraud involving future incentives), III (breach of implied duty of good faith and fair dealing), and VI (negligent misrepresentation and/or fraud for failure to disclose information about ground water contamination) of Versar's counterclaims. In addition, the court determined that Indiana law governed the parties' dispute. The court also granted in part and denied in part defendant Versar's motion to compel responses to its discovery requests, which Versar has asked the court to reconsider. At the November 6, 2002 pretrial conference, the court denied Versar's motion for leave to file a proposed second amended answer and counterclaims and third party complaint. However, this denial was without prejudice to a third amended answer and counterclaim sufficient to meet the particularity requirements of Fed.R.Civ.P. 9(b) with regard to any alleged fraudulent misrepresentations made by the Trustees. Versar subsequently filed an amended counterclaim on November 18, 2002, asserting breach of contract, fraud, unjust enrichment, and implied contract. The Trustees then filed a motion to supplement their motion for partial summary judgment to address Versar's new fraud allegations.
The court grants the Trustees' motion to supplement their motion for partial summary judgment to allow the Trustees to address Versar's amended counterclaims. The Trustees could not have addressed Versar's amended counterclaims in their original July 2002 motion because Versar's amended counterclaims were not filed until November 2002. Granting the Trustees' motion to supplement will not prejudice Versar in any way other than by presenting additional arguments with which it disagrees. The parties' briefs concerning the motion to supplement have been considered by the court in ruling on the Trustees' motion for partial summary judgment.
As explained below, the Trustees' motion for partial summary judgment with respect to counterclaims that predate the effective dates of contract Amendment No. 1 and Amendment No. 2 is granted in substantial part. The broad language of the two contract amendments reflects objectively an intent by the parties to release those claims that predated the effective date of the amendments. However, Versar's fraud counterclaim based on the theory of affirmative misrepresentation survives summary judgment to the extent it is based on misrepresentations after the effective date of Amendment No. 1, with its broader release language. Amendment No. 2 released the Trustees only from fraud — like claims based on nondisclosure, as distinct from affirmative misrepresentations of fact. In addition, Versar's motion for reconsideration of the court's September 6, 2002 discovery ruling is granted.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate when there are no genuine issues of material fact, leaving the moving party entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party must show there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual issue is material only if resolving the factual issue might change the suit's outcome under the governing law. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). A factual issue is genuine only if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Contract interpretation often presents a question of law for which summary judgments is appropriate. E.g., National Fire Casualty Co. v. West, 107 F.3d 531, 534-35 (7th Cir. 1997) (affirming summary judgment under Indiana contract law); Tri-Central High School v. Mason, 783 N.E.2d 341, 344 (Ind.App. 2000). In considering the Trustees' motion, the court must consider the evidence in the light reasonably most favorable to Versar.
Discussion
I. Background
The Northside Sanitary Landfill ("NSL") and the Environmental Conservation and Chemical Corporation ("ECC") are adjacent hazardous waste sites located in Boone County, Indiana. The two sites were combined for remedial action for a number of reasons, including their close proximity and similar contamination. Def. Ex. A, Superfund Record of Decision: Remedial Alternative Selection, 1987. Prior to 1982, ECC had been involved in the recovery, reclamation, and brokering of primary solvents, oils, and other wastes from industrial clients. ECC received these products in drums or bulk tankers and prepared the drums and tankers for reclamation or disposal. The combination of accumulation of contaminated stormwater, poor management of drum inventory, and numerous spills led the state government and the United States Environmental Protection Agency to investigate. In 1982, a court ordered ECC to close and to environmentally secure the site due to ECC's failure to produce hazardous waste inventories. Emergency actions in 1983 and 1985 eliminated the major source of contaminants at the site, but as of 1987, the soil still contained high concentrations of trans-1, 2-DCE; trichloroethene; 1,1-DCE; vinyl chloride; and possibly other sources of contamination. Id.
By November 1982, NSL had accepted at least 16 million gallons of hazardous substances from industrial clients. As of 1987, the ground water, surface water, soil, and sediments were contaminated by inorganics, organics, pesticides, acids, base-neutral compounds, oils and VOCs (including benzene; 1,1-DCE; and TCE). Id.
In 1987, the EPA required that the following remedial action be taken for the combined sites:
The selected remedial alternative is ground water interception and treatment plus capping, and includes the following major components:
• Deed and access restrictions to prevent future development of the sites.
• A multi-layer cap over both sites which meets the requirements of the Resource Conservation and Recovery Act.
• Re-routing surface waters to reduce potential for contaminant movement to surface water.
• Leachate collection and treatment for NSL.
• Ground water collection and treatment for both sites.
• Monitoring to ensure effectiveness of remedy components listed above.
Id. This plan was intended to address both contaminated soil and contaminated ground water.
On June 7, 1991 the EPA modified its original plan for the ECC site. Def. Ex. D, Declaration for the Record of Decision Amendment. The EPA clarified that the original decision was amended "to reflect the decision to implement separate, complementary remedies" for the ECC and NSL sites. Id. The modified remedial plan for the ECC site included the following elements:
• Soil vapor extraction, concentration and destruction
• RCRA Subtitle C cap
• Access restrictions
• Subsurface and surface water monitoring
• Contingent subsurface water collection and treatment
Id. A Consent Decree in United States of America v. Environmental Conservation and Chemical Corp., Civil Action No. IP 83-1419-C, was then entered by the Southern District of Indiana in 1991 that required the hazardous waste generators to raise and administer funds and to manage the implementation of a remedial action to remediate the ECC site. Pl. Ex. 1, ¶ 1. The Trustees for the fund sought bids for remediation services and eventually accepted the bid of Versar, Inc.
On August 28, 1997, the Trustees entered into a contract with Versar for, among other things, the design, construction, operation, and maintenance of a soil vapor extraction system ("SVE") that would treat contaminants in the soil. Pl. Ex. 1, ¶ 2; Pl. Ex. 2, ¶¶ 1, 2, 137; Pl. Ex. 3(A). Disputes arose between the Trustees and Versar involving the operation of the contract. Pl. Ex. 1, ¶ 23; Pl. Ex. 2, ¶¶ 23, 94; Pl. Ex. 3(B). In an effort to resolve their disputes, the parties entered into an Amendment to Contract, Settlement Agreement and Release ("Amendment No. 1"), which became effective May 4, 1999. Pl. Ex. 1, ¶ 23; Pl. Ex. 2, ¶ 23; Pl. Ex. 4, ¶ 23.
After the parties entered into Amendment No. 1, additional disputes arose between the Trustees and Versar. Thereafter, the parties entered into a second amendment to the contract, aptly entitled "Amendment No. 2, Settlement Agreement and Release." Pl. Ex. 3(C). After entering into Amendment No. 2, additional disputes arose between the parties, prompting them to begin negotiating a third amendment to the contract. However, the Trustees terminated the Versar contract for "convenience" under the terms of the contract before a new agreement was reached. Pl. Ex. 3, ¶ 45. This litigation ensued.
II. Motion for Partial Summary Judgment
The Trustees' motion for partial summary judgment involves the scope of the amendments to the contract. The Trustees assert that Versar expressly and voluntarily waived any and all of its claims against the Trustees that predate Amendment No. 2. The Trustees argue that the parties intended for Amendments No. 1 and No. 2 to constitute a full and complete release or waiver of any of Versar's claims. Versar counters that the releases in Amendments No. 1 and 2 were limited to specific disagreements that prompted the amendments and therefore did not constitute a release or waiver of all claims that it had against the Trustees.
Under Indiana law, release agreements are governed by the same rules that apply to other types of contracts. Beaver v. Grand Prix Karting Ass'n, Inc., 246 F.3d 905, 909 (7th Cir. 2001) (applying Indiana law), citing Western Ohio Pizza, Inc. v. Clark Oil Refining Corp., 704 N.E.2d 1086, 1091 (Ind.App. 1999). Generally, the interpretation of an unambiguous contract is a question of law. Zemco Mfg., Inc. v. Navistar Intern. Transp. Corp., 270 F.3d 1117, 1123 (7th Cir. 2001) (applying Indiana law). The court first attempts to ascertain the parties' intent by examining language used in the contract to express obligations. Tri-Central High School v. Mason, 783 N.E.2d 341, 344 (Ind.App. 2000) (contract interpretation is a question of law). Contract language is given its plain and ordinary meaning. Zemco Mfg., 270 F.3d at 1123-24. The court must not read portions of a contract "exclusive of other contractual provisions." Id., citing Grandview Lot Owners Ass'n, Inc. v. Harmon, 754 N.E.2d 554 (Ind.App. 2001). "Rather, the document must be read as a whole when attempting to determine the parties' intentions." Zemco Mfg., 270 F.3d at 1124, citing First Fed. Sav. Bank of Ind. v. Key Markets, Inc., 559 N.E.2d 600, 603 (Ind. 1990). In addition, contracts should not be construed so narrowly as to frustrate their obvious design or construed so loosely as to relieve a party of liability fairly within the scope of the contract's terms. Radio Picture Show Partnership v. Exclusive Intern. Pictures, 482 N.E.2d 1159, 1167 (Ind.App. 1985).
"Where the terms of a contract are clear and unambiguous, we will not construe the contract or look at extrinsic evidence, but will apply the contractual provisions." Kokomo Tube Co. v. Dayton Equipment Services Co., 123 F.3d 616, 624 (7th Cir. 1997) (applying Indiana law), quoting Coates v. Jaye, 633 N.E.2d 334, 337 (Ind.App. 1994). Where the contractual language is ambiguous, meaning that reasonable people would find the contract subject to more than one construction, "the intention of the parties is a question of fact and resort to extrinsic evidence is proper." Anderson v. Horizon Homes, Inc., 644 N.E.2d 1281, 1290 (Ind.App. 1995), citing English Coal Co. v. Durcholz, 422 N.E.2d 302, 308-09 (Ind.App. 1981). However, a contract is not ambiguous merely because the parties dispute its meaning. Ecorp, Inc. v. Rooksby, 746 N.E.2d 128, 131 (Ind.App. 2001).
Indiana courts have a long tradition of enforcing contracts as written in order to further the freedom to contract. See, e.g., Trimble v. Ameritech Publishing, Inc., 700 N.E.2d 1128, 1129 (Ind. 1998). With respect to releases, the Indiana courts teach "that upholding releases serves an important public policy because it facilitates the orderly settlement of disputes." Zollman v. Geneva Leasing Associates, Inc., 780 N.E.2d 387, 392 (Ind.App. 2002), citing Prall v. Indiana Nat. Bank, 627 N.E.2d 1374, 1377 (Ind.App. 1994), in turn citing Indiana Bell Tel. Co. v. Mygrant, 471 N.E.2d 660, 664 (Ind. 1984). "If judges could interpret a release to mean something that is contrary to the plain language because one party intended for it to mean something else, then parties would be discouraged from signing releases because they could not have confidence that a court would enforce the release's plain language." Zollman, 780 N.E.2d at 393. With these principles in mind, the court turns to Amendments No. 1 and No. 2.
A. Amendment No. 1
The release term of Amendment No. 1 is not subject to more than one reasonable construction here and is not ambiguous. Amendment No. 1 states in relevant part:
Whereas, differences have arisen as to work done and materials and labor supplied, including without limitation regarding invoices and change orders submitted by Contractor [Versar], whether for work within or without the scope of the Contract; and
Whereas, the parties desire to settle all such claims including without limitation all claims regarding unpaid Contractor invoices and unapproved Contractor change orders.
1. Upon receipt of the payment described in Paragraph 4 below, Contractor without condition hereby releases and forever discharges the Trustees from any and all claims from the beginning of time to the date hereof that Contractor may have against the Trustees, whether under the Contract or otherwise, including for all work done and labor and materials supplied at or in connection with the Site, including without limitation for all invoices unpaid in whole or in part issued by Contractor or by any subcontractor or supplier of Contractor prior to the date hereof, and Contractor agrees to hold the Trustees harmless for all claims by any person, including without limitation, and supplier or subcontractor of Contractor, for all such work done or materials or labor supplied and all such invoices.
Pl. Ex. 3(B) (emphasis added).
Versar attempts to narrow the scope of the release to only claims arising from work already completed and materials and labor already supplied. That interpretation is not tenable, in light of the broad release language highlighted above. That language is not ambiguous, it is deliberately broad. Cf. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499 (1985) (rejecting attempt to narrow deliberately broad language in civil RICO statute: "[T]he fact that RICO has been applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth."), quoting Haroco, Inc. v. American National Bank Trust Co., 747 F.2d 384, 398 (7th Cir. 1984), aff'd, 473 U.S. 606 (1985).
Versar's attempt to portray itself as the poor uncounseled victim of sharp lawyering by the Trustees does not raise a genuine issue of material fact. Beyond any reasonable dispute, the parties here were sophisticated businesses working with a custom-tailored multimillion dollar contract for sophisticated environmental remediation services. The legal meaning of a release of "any and all claims from the beginning of time to the date hereof that Contractor may have against the Trustees, whether under the Contract or otherwise" should have been obvious to Versar.
B. Amendment No. 2
Amendment No. 2 also provided for a broad release. Amendment No. 2 states in relevant part:
Whereas, Contractor has asserted that the Trustees are in breach of the Contract in various ways including with respect to the scope of Contractor's obligations under the Contract to achieve the cleanup standards contained in Revised Exhibit A referenced in the Contract, in connection with the making of progress payments, and in other ways; and
Whereas the parties desire to settle all such claims and differences
* * *
1. Versar will conduct operation and maintenance "O/M" as required by the Contract, including the augmentation of the soil vapor extraction ("SVE") system with additional wells or trenches as needed to achieve compliance with all Table 3-1 cleanup standards. . . . Versar remains responsible, however, for dealing with all water (except as provided in Section 3. below) that the SVE system collects from the soil without any increase in Contract time or Contract price.
* * *
11. Versar will not make any claim and covenants not to sue for any claim that it has been prevented from achieving any bonus provided for under the Contract by reason of conditions in the vicinity of T-2 and T-6 (or both), or by reason of any act or omission of the Trustees as of the date hereof.
12. Versar withdraws with prejudice and hereby releases and discharges the Trustees from any and all claims that the Trustees have been or are in breach of the Contract; any and all claims that the Trustees withheld information from Versar regarding Site conditions; and any and all claims that the remedy cannot achieve Revised Exhibit A Table 3-1 cleanup standards. Versar also acknowledges the Trustees have throughout acted solely in their capacities as Trustees and that Versar has no claim against either of them individually or against their respective firms.
Pl. Ex. 3(C).
The language of paragraph 11 states that Versar covenants not to sue for any claim that it has been prevented from achieving any contractual bonus. The broad language of paragraph 12 states Versar "releases and discharges the Trustees from any and all claims" that (1) the Trustees have breached the contract; (2) the Trustees have withheld information regarding site conditions; or (3) a remedy cannot achieve applicable standards. Nothing within the terms of Amendment No. 2, or in the other agreements for that matter, qualifies or limits the broad language of these paragraphs to particular disputes. In fact, the introductory language of Amendment No. 2 states that Versar has asserted that the Trustees are in breach of the contract and the "parties desire to settle all such claims and differences."
The only reasonable interpretation of Amendment No. 2 is that the parties intended it to serve as a release of all claims up to the effective date of the release that Versar had against the Trustees for breach of contract, for withholding information, for preventing Versar from attaining a bonus under the contract, or that a remedy could not comply with the applicable standards. Because the intent of the parties is clear from the "four corners" of agreement and there is only one plausible interpretation of the release, the court finds that Amendment No. 2 is unambiguous. The court may not and will not resort to extrinsic evidence. Rather, the court will simply apply the provisions of Amendment No. 2.
The Trustees have objected to the admissibility of evidence submitted by Versar in opposition to the present motion for partial summary judgment on the grounds that it is extrinsic evidence. The court agrees. Because Amendment No. 2 is unambiguous, extrinsic evidence such as the portions of the affidavit of George Anastos regarding the parties' subjective intentions, is inadmissible as evidence of the parties' intent. See, e.g., Hoseman v. Weinschneider, ___ F.3d ___, ___ 2003 WL 755806, *4 (7th Cir. March 6, 2003) (affirming summary judgment based on "clear and broad" release covering "all claims, known or unknown"); Empro Mfg. Co. v. Ball-Co Mfg., Inc., 870 F.2d 423, 425 (7th Cir. 1989) ("Contract law gives effect to the parties' wishes, but they must express these openly. Put differently, `intent' in contract law is objective rather than subjective."); Prall v. Indiana Nat'l Bank, 627 N.E.2d 1374, 1377 (Ind.App. 1994) (affirming summary judgment based on release between commercially sophisticated parties: "In the absence of ambiguity, the court looks only to the [release] instrument to ascertain the parties' intent."). The court has not considered such evidence in ruling on the Trustees' motion for partial summary judgment.
In the context of this motion, Amendment No. 2 effectively releases the Trustees from any claims Versar might have had against them for breach of contract, for withholding information, for preventing Versar from attaining a bonus under the contract, or that a remedy could not comply with the applicable standards. Therefore, the Trustees' motion for partial summary judgment on Versar's counterclaims that predate the effective date of Amendment No. 2 must be granted, at least apart from Versar's counterclaim for fraud, to which the court now turns.
C. Fraud
As explained above, Versar added a counterclaim for fraud in its third amended answer and counterclaims, and the Trustees' supplement to their motion for partial summary judgment addressed that newly added counterclaim.
Amendment No. 1 is a release broad enough to release fraud claims that had arisen before May 4, 1999, the date of the amendment. Amendment No. 1 effected a release of "any and all claims from the beginning of time to the date hereof that Contractor may have against the Trustees, whether under the Contract or otherwise. . . ." Indiana law does not require that fraud claims be singled out for separate mention in order to effect a release, nor does it require that the releasing party have full knowledge of the circumstances of the (later-alleged) fraud. Otherwise, it would be impossible to settle a fraud claim with confidence that the claim would stay settled.
Versar asserts that "Indiana law is clear that `waiver of a fraud claim requires both full knowledge of the fraud and the performance of acts which show an intent to confirm the transaction." Versar Supp. Br. at 5, quoting Dodd v. Estate of Yanan, 587 N.E.2d 1348, 1353 (Ind.App. 1992), vacated, 625 N.E.2d 456 (Ind. 1993), and Smart Perry Ford Sales v. Weaver, 274 N.E.2d 718, 724 (Ind.App. 1971). Versar has accurately quoted a conclusory comment in the appellate decision in Dodd, but the Indiana Supreme Court's grant of transfer vacated the appellate opinion. Also, the vacated Dodd opinion has little relevance here. It involved an attempt to set aside a divorce property settlement, which is distinguishable from this commercial contract dispute in terms of both the role of the court in the divorce decree and the parties' duties of disclosure about their property and financial affairs. The Smart Perry opinion does not deal with a release of any kind. This court is confident that the Indiana courts would not make it impossible to settle or release a claim for fraud absent a full confession by the alleged wrongdoer.
In Amendment No. 2, Versar did not release fraud claims based on affirmative misrepresentations of existing or past fact. Paragraph 12 of Amendment No. 2 specifies that Versar releases the Trustees from "any and all claims that the Trustees withheld information from Versar regarding Site conditions." Pl. Ex. 3(C) (emphasis added). A claim that a party withheld information is different from a claim that the party misrepresented information, which is what Versar has alleged in part in Count II of its third amended answer and counterclaim. Compare Park 100 Investors v. Kartes, 650 N.E.2d 347, 349 (Ind.App. 1995) (to prove fraud based on a material misrepresentation there must be: "(1) A material misrepresentation of past or existing fact by the party to be charged, which (2) was false, (3) was made with knowledge or in reckless ignorance of the falsity, (4) was relied upon by the complaining party, and (5) proximately caused the complaining party injury."), with Vaughn v. General Foods Corp., 797 F.2d 1403, 1413-14 (7th Cir. 1983) ("the failure to disclose all material facts, by a party on whom the law imposes a duty to disclose, constitutes actionable fraud"). The Trustees did not have any special duty under the law, like that of a fiduciary to his beneficiaries, to disclose information to Versar. In the third amended answer and counterclaim, however, Versar has also alleged affirmative misrepresentations of fact. The other complication is that a release can be voided as a result of fraud in securing the release itself. See, e.g., Beaver v. Grand Prix Karting Ass'n, Inc., 246 F.3d 905, 911 (7th Cir. 2001).
The Trustees argue in their supplemental reply brief that the court should grant summary judgment on all fraud claims because Versar has not come forward with affidavits supporting its fraud allegations. To avoid summary judgment, of course, a party must be able to support its position with evidence rather than bare allegations. However, the court is not convinced that the Trustees' motion to supplement their motion for summary judgment squarely put in issue the misrepresentation element of the fraud counterclaims. "When a party moves for summary judgment on ground A, his opponent is not required to respond to ground B — a ground the movant might have presented but did not." Malhotra v. Cotter Co., 885 F.2d 1305, 1310 (7th Cir. 1989), superseded on other grounds by statute, Rush v. McDonald's Corp., 966 F.2d 1104, 1119-20 (7th Cir. 1992). It remains to be seen whether Versar can support its fraud allegations, but it would be premature at this point to rule on the matter, where the critical issue was first raised in a supplemental reply brief. Thus, Versar's fraud counterclaim premised on alleged misrepresentations survives summary judgment, at least for now.
Although the Trustees' motion for partial summary judgment on Versar's counterclaims is granted in part, nothing in this entry precludes Versar from asserting the theories behind its counterclaims as affirmative defenses in response to the Trustees' claims. Amendments No. 1 and No. 2 waived Versar's right to assert claims against the Trustees, not the right to defend itself on claims asserted against it.
On this point, the Indiana Court of Appeals decision in Zollman v. Geneva Leasing Associates, Inc., 780 N.E.2d 387 (Ind.App. 2002), is instructive. The question in that case was whether Zollman had waived all defenses to the enforcement of a guaranty agreement by signing a release that discharged Geneva Leasing Company from "any and all claims, liabilities, demands, damages, and causes of action." Id. at 389. In affirming the trial court's grant of summary judgment in favor of Geneva (the beneficiary of the release), the majority tersely equated the release of claims and demands with the release of affirmative defenses. Id. at 393. However, Chief Judge Brook, concurring in the result, disagreed with the majority's conclusion that the release waived affirmative defenses. Id. After contrasting the legal definitions of "claim" and "affirmative defense" and noting that Indiana Trial Rule 8 addresses the terms separately, Chief Judge Brook reasoned that, while Zollman "waived her rights to sue Geneva, or file a claim against a third party; she did not waive her right to interpose affirmative defenses to a claim brought by Geneva." Id. at 393 n. 3 (emphasis in the original). The court finds the reasoning of Chief Judge Brook persuasive on this point of Indiana law.
III. Motion for Reconsideration of Discovery Ruling
In the September 6, 2002 entry, the court granted in part Versar's motion to compel. The court ordered the Trustees to produce to Versar all "`data documents' regardless of date and all other responsive documents as far back as 1996." That order was largely based on the dismissal of Versar's counterclaims for negligent misrepresentation and fraud involving the alleged nondisclosure of information. However, Versar's third amended answer and counterclaim reasserts its fraud claim. Versar alleges that despite the Trustees' general awareness of ground water contamination at the site, they assured Versar representatives that ground water problems did not exist. Def. Amend. Counterclaim, ¶¶ 115-19. Furthermore, Versar has uncovered documents dating back to 1988 that discuss ground water contamination. See Def. Ex. A, B, C. In light of Versar's fraud counterclaim and the newly uncovered documents, the court amends its prior ruling on Versar's motion to compel, and hereby orders the Trustees to produce to Versar no later than April 30, 2003, all documents dating back to 1987 (the year of the EPA's first Record of Decision relating to the site) that refer to ground water contamination, or the possibility of ground water contamination at the site.
Conclusion
The Trustees' motion to supplement their motion for partial summary judgment is hereby granted. The Trustees' motion for partial summary judgment is hereby granted with respect to Versar's counterclaims that predate the effective date of Amendment No. 1 and Amendment No. 2, with the exception of Versar's counterclaim for fraud based on alleged misrepresentations. Versar's motion for reconsideration of the court's discovery ruling is granted.
So ordered.