(U.E. Ex. 1, Statement of Uncontroverted Facts, P 6; U.E. Ex. 21, Letter of Intent). It was later formalized into a real estate contract dated April 23, 1979, (U.E. Ex. 22, Slay Warehousing Company and G&S Motor Equipment Company Real Estate Contract) that was contingent upon the U.E./G&S sale transaction.
Immediately following closing, G&S sold the property and equipment to Slay by quit-claim deed and the personal property and fixtures were sold "as is", expressly excluding warranties of "merchantable quality" or for "particular purpose" (U.E. Ex. 24, Bill of Sale Between G&S Motor Equipment Company and Eugene P. Slay and Joan Slay, pg. 2-3).
Following the conveyance, Sarnelli entered into a lease agreement with Slay to maintain salvage operations on the Sauget Site. Pursuant to that lease agreement, Sarnelli was to remove the smokestacks and level the floors in the power house building, remove all debris and all of its materials and equipment (U.E. Ex. 25, Lease and Easement Agreement, P 4). If Sarnelli failed to remove any covered property, Slay reserved the right to remove the property at Sarnelli's expense (U.E. Ex. 25, Lease and Easement Agreement, P 1(b)).
Prior to starting salvaging operations, Sarnelli informed Slay's Chief Operating Officer and in-house lawyer, Ted Tahan, that he would be removing asbestos at the Sauget site and thereafter advised EPA and his bonding company (U.E. Ex. 14, Sarnelli Depo. pg. 24-25). Thereafter, on July 2, 1979, Sarnelli advised EPA that he was removing asbestos from the site and simultaneously informed his bonding company and Slay (U.E. Ex. 14, Sarnelli Depo. pg. 24; U.E. Ex. 27, Letter from Sarnelli Brothers, Inc. to EPA). Mr. Slay admitted receiving the letter and stated that he probably would have sent it to Ted Tahan (U.E. Ex. 15, Eugene Slay Depo. 3/30/92, pg. 88-89).
In 1985, nearly eight years after they purchased the property, the Slay's began rehabilitating the building to convert it into a warehouse for general storage (U.E. Ex. 28, Schwartz Depo. pg. 16-17; U.E. Ex. 26, Lueken Depo. pg. 14-20). In doing so, Slay's removed the remnants of Sarnelli's salvaging. The remnants contained scrap metal, insulation, piping and equipment that was abandoned by Sarnelli, however, no attempt was made to test the insulation for asbestos containing materials prior to taking action (U.E. Ex. 26, Lueken Depo. pg. 34). Slay contends that he had no knowledge of the extensive amounts of hazardous materials on the Sauget Site and thus, was out additional amounts of money to remove it in response.
STANDARD OF REVIEW FOR MOTIONS FOR SUMMARY JUDGMENT
A Court may grant summary judgment only if the party seeking summary judgment demonstrates that no genuine issue of fact exists for trial and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(e); Wilson v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 841 F.2d 1347, 1354 (7th Cir. 1988). If that showing is made and the motion's opponent would bear the burden at trial on the matter that forms the basis of the motion, the opponent must come forth with evidence to show what facts are in actual dispute. Celotex Crop. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Donald v. Polk County, 836 F.2d 376, 379 (7th Cir. 1988). Where the moving party fails to meet its strict burden of proof, summary judgment cannot be entered even if the opposing party fails to respond to the motion. Yorger v. Pittsburgh Coming Corp., 733 F.2d 1215, 1222 (7th Cir. 1984).
When the parties do not dispute the factual basis of a motion for summary judgment, the court's only inquiry is whether judgment should issue as a matter of law. The burden of proof on this matter rests with the moving party. Summary judgment is inappropriate, however, if the parties disagree about inferences reasonably to be drawn from undisputed facts. Bowyer v. United States Dep't of Air Force, 804 F.2d 428, 430 (7th Cir. 1986).
When the parties dispute the facts, the parties must produce proper documentary evidence to support their contentions. The parties cannot rest on mere allegations in the pleadings, Boruski v. United States, 803 F.2d 1421, 1428 (7th Cir. 1986), or upon conclusory allegations in affidavits. First Commodity Traders, Inc. v. Heinold Commodities, 766 F.2d 1007, 1011 (7th Cir. 1985). The Court must view the evidence and any permissible inferences from the materials before it finds in favor of the non-moving party, Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588-89, 106 S. Ct. 1348, 1357, 89 L. Ed. 2d 538 (1986). The non-moving party must show that the disputed fact is material; that is, it must be outcome-determinative under the applicable law. Wainwright Bank & Trust Co. v. Railroadmens Fed. Sav. & Loan Ass'n, 806 F.2d 146, 149 (7th Cir. 1986).
DEFENDANT'S FIRST MOTION FOR SUMMARY JUDGMENT
U.E. has moved for partial summary judgment on the following grounds:
(1) Plaintiffs' common law counts are barred under the applicable statute of limitation because plaintiffs knew or should have known of the presence of asbestos and the condition of the property as early as 1978 and no later than 1985.