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West v. Jewett & Noonan Transforation, Inc.

Superior Court of Maine, Cumberland

May 1, 2017

ERIK WEST, KATHLEEN WEST, JOHN PRIDE, and JO ANN PRIDE, Plaintiffs,
v.
JEWETT & NOONAN TRANSFORATION, INC., Defendant

          ORDER ON MOTIONS FOR SUMMARY JUDGMENT

          A. M. HORTON JUSTICE.

         There are two motions for summary judgment pending before the court. On or about December 15, 2016, defendant Jewett & Noonan Transportation, Inc. moved for summary judgment on plaintiffs' claims for common law trespass, common law nuisance, and strict liability based upon abnormally dangerous activities. Defendants also argue summary judgment is warranted because plaintiffs are unable to prove their damages under any theory of recovery and have not asserted facts sufficient to present a claim for punitive damages.

         Plaintiffs moved for an extension of time to respond arguing that defendant moved for summary judgment before discovery regarding plaintiffs' punitive damages claim concluded. Plaintiffs asserted that the motion was made in defiance of the court's clear statement that such discovery should conclude before any motion for summary judgment was re-filed. On January 9, 2017, the court granted plaintiffs' motion for an extension of time until 21 days after discovery concluded, through the deposition of Paul Nestor, a representative of defendant's insurer.

         On or about February 8, 2017, plaintiffs filed their own motion for summary judgment arguing that regardless of how the petroleum products from defendant's overturned tanker truck entered onto plaintiffs' property, defendant is liable for trespass because it has refused to remove them from plaintiffs' property. Plaintiffs also moved for summary judgment arguing that they have established an entitlement to $490, 000 in damages based on the cost to remove the petroleum products from the property. Defendant responded to plaintiffs' motion for summary judgment by requesting the court consider its earlier filed motion for summary judgment to be incorporated by reference into its opposition and to decide all of the pending motions at this time.

         Following the full briefing of plaintiffs' motion for summary judgment, the court held a conference with the parties to discuss the best method for resolving the pending motions for summary judgment. The parties did not agree on a particular path forward.

         Based on the parties' positions at the conference and the current record, it is appropriate to address plaintiffs' motion for summary judgment in its entirety and defendant's motion for summary judgment regarding plaintiffs' common law trespass claim and plaintiffs' proof of damages. The court addresses these issues in defendant's motion for summary judgment because plaintiffs' motion effectively responds to and confronts the arguments raised therein.

         For the reasons discussed below, the court denies plaintiffs' motion for summary judgment, and denies those aspects of defendant's motion for summary judgment addressed in this Order, relating to common law trespass and damages.

         Background

         On June 9, 2011, Kathleen West and her parents, John and Joann Pride purchased approximately 12 acres of land located at 15 Washburn Drive in Gorham, Maine (the "property"). (Pl.'s Supp'g S.M.F. ¶ 1.) The Prides and Kathleen West subsequently transferred ownership of the property to Kathleen and Erik West on March 11, 2016. (Id. ¶ 2.)

         On June 11, 2014, a transport tanker owned and operated by defendant rolled over in a traffic circle near the property, resulting in the release of nearly ten thousand gallons of No. 2 heating petroleum products and kerosene [hereinafter collectively referred to as "petroleum products"]. (Id. ¶ 3.) A significant amount of the spilled petroleum products migrated onto the property. (See id. ¶ 4.) The driver of defendant's vehicle testified that the spill was occasioned by his attempt to avoid crashing into a vehicle that cut him off. (Bird Dep. 6:1-15). The passenger in defendant's vehicle, however, testified that the driver was gunning the vehicle to get in front of a car that was coming around the traffic circle. (Maraian Dep. 49:1-50:7, 52:6-12.) As a result of the acceleration, according to the passenger, the nose of defendant's vehicle was very close to hitting the vehicle in front of it, and the driver had to jerk the wheel abruptly to avoid a collision, causing the truck to roll over. (Id. at 52:13-53:22.)

         The Maine Department of Environmental Protection ("DEP") initially requested that the defendant excavate all petroleum-contaminated soils on plaintiffs' property. (Def.'s Supp'g S.M.F. ¶ 5; Compl. ¶ 8.) In light of testing performed in July 2015, showing lowered concentrations of petroleum, the DEP decided not to require any further remediation from defendant. (Def.'s Supp'g S.M.F. ¶ 5; Compl. ¶ 21.)

         Robert Dupuis, the designated corporate deponent for defendant, asserts that the reason it never began excavating the site was because it never received an access agreement from the plaintiffs to do so. (Dupuis Dep. 174:19-175:18.) Mr. Dupuis testified that before the DEP concluded no further remediation was required, it had spent over $700, 000 remediating the spill. (Id. at 101:23-102:3.) The Wests testified that their well was tested about a month after the spill, and then two months thereafter, and both tests found the water was clean. (E West Dep. 69:23-70:10; K West Dep. 72:10-73:11.)

         Erik West asserts that he has requested defendant several times to remove all of the petroleum products from the property. (E West AfF. ¶ 5.) Defendant has not removed all of the petroleum products from the property. (Pl.'s Supp'g S.M.F. ¶ 7.) In response to an interrogatory, Kathleen West asserts that it would cost approximately $450, 000 to $500, 000 to remediate the contaminants on their property. (K West Response to Interrogatory No. 3.) Defendant made a conscious and intentional decision not to excavate the property based at least in part on the fact that the DEP has not required excavation. (Dupuis Dep. 192:10-193:5.)

         Plaintiffs' expert witness, John Sevee, P.E., opines that the cost of removing the petroleum products-contaminated soil from the property is approximately $490, 000. (Sevee Aff. ¶ 4 and Ex. B thereto; see also Garfield Dep. 117-118 ($500, 000 estimate for removing the petroleum products-contaminated soil is "probably a little bit more than we had in our remedial alternatives evaluation; but it's not orders of magnitude high or low or that sort of thing").) Mr. Sevee is designated to testify that the spill area still contains contaminants from the spill and that restoration of the area to its pre-spill condition will be very expensive. (Pl.'s Expert Designation.) Mr. Sevee also opined that the level of risk to the groundwater on the property is very high, there will never be a point where there's absolutely no risk of contamination on the property-unless perhaps one were to dig up everything for 500 feet below the ground surface and move it off someplace else and fill it back in with clean soil. (Sevee Dep. 94:12-97:23.) Mr. Sevee believes that such an intensive excavation has never been performed and the reason is that it is cost prohibitive. (Id. at 137:10-139:1.)

         At the time of the spill, the Wests were in the process of developing the property with the intent that Erik West, an experienced contractor, would build and sell single-family homes. (Pl.'s Supp'g S.M.F. ¶ 10.) Mr. West anticipated being able to build 4 or 5 single family homes and expected the homes to sell for approximately $250, 000 each, for total revenues of $1, 000, 000 or $1, 250, 000, depending on the number of houses built. (E West Aff. ¶ 8.) Mr. West anticipated that the cost of construction would be approximately $100, 000 per home, plus approximately $100, 000 for other costs for a total cost of construction of approximately $500, 000 to $600, 000 depending on the number of houses built. (Id. ¶ 9.) Mr. West asserts that by June 11, 2014?, he had talked at length with four different persons about their potential interest with the development and all four told him they were prepared to move forward. (Id. ¶ 10.) After the spill, however, the individuals he talked to no longer were interested in the property due to the presence of petroleum products. (Id. ¶ 11.) Mr. West further asserts that he is aware of no other persons interested in purchasing a house in the development with the current state of contamination. (Id. ¶ 12.) Mr. West anticipated revenues, minus the avoided costs of construction, to be approximately $500, 000 or $650, 000 depending on whether four or five lots could be built on the property. (Id. ¶ ¶ 8-9.)

         The Wests testified that they did not know what the property was worth on the day before the accident and do not know the property's value today. (K West Dep. ...


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