KATHLEEN WEST et al.
JEWETT AND NOONAN TRANSPORTATION, INC.
Argued: May 15, 2018
Stephen A. Bell, Esq. (orally), Mundhenk & Bell, LLC,
Portland, for appellant Jewett and Noonan Transportation,
G. McCarthy, Esq. (orally), Catherine R. Connors, Esq., and
Katherine S. Kayatta, Esq., Pierce Atwood LLP, Portland, for
appellees Erik and Kathleen West
ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
The crux of this dispute on appeal is whether, when the
defendant has caused a physical invasion of the
plaintiff's property, the plaintiff must present evidence
of a specific diminution in market value in order to
successfully prove nuisance.
Jewett and Noonan Transportation, Inc. (Jewett), appeals from
a judgment of the Superior Court (Cumberland County,
Horton, /.) entered upon a jury verdict awarding
Kathleen and Erik West (the Wests) compensatory damages in
the amount of $490, 000 on the Wests' claim of nuisance.
Jewett contends that the trial court (1) erred when it denied
Jewett's motions for judgment as a matter of law on the
nuisance claim because the Wests did not present evidence of
a specific diminution in market value to their land and (2)
erred or abused its discretion when it allowed the Wests to
introduce evidence relating to the conduct of Jewett's
insurer in support of the Wests' claims against Jewett.
We disagree and affirm the judgment.
Viewed in the light most favorable to the Wests as the
prevailing parties, the following facts were established at
trial. See Batchelder v. Realty Res. Hosp., LLC,
2007 ME 17, ¶ 3, 914 A.2d 1116. On June 11, 2014, an oil
tanker owned and operated by Jewett overturned in a traffic
circle in Gorham. As a result of the accident, over 9, 000
gallons of oil and kerosene spilled from the tanker into a
culvert and onto property belonging to the Wests.
The Wests acquired their property, which consisted of twelve
acres of land and a house, in 2011 with plans to subdivide
and develop the property. Erik West, who previously owned a
construction company, had begun to explore development
possibilities prior to the spill: he spoke with Gorham's
code enforcement officer, hired an engineering company to
create preliminary designs for the development, met with
Gorham's town planner and with a representative from the
engineering company, and discussed the property with four
interested real estate developers. After the spill, each of
the potential developers lost interest.
The Maine Department of Environmental Protection (the
Department) coordinated clean-up efforts between the Wests
and Jewett. Jewett assembled a team to handle the remediation
that included Jewett's safety director, an engineer and
an environmental scientist from an environmental engineering
firm, and a representative from Jewett's insurer. By the
end of the summer of 2014, Jewett had captured approximately
7, 800 gallons of the oil, but tests performed by
Jewett's remediation team showed levels of soil
contamination in excess of the Department's standards.
In late August 2014, the Wests communicated to Jewett that
they wanted Jewett to remediate the remaining oil through
excavation. Although the Jewett team decided that natural
attenuation was the most cost-effective means to address the
remaining oil and did not think excavation would be
necessary, it did not communicate its preferred plan to the
Wests at that time. Meanwhile, Jewett sought extensions of
deadlines set by the Department, stalled the performance of
the Department's order to excavate,  and continued to
request additional soil sampling of the spill site, despite
the Department's opposition to further sampling.
Eventually, Jewett performed additional sampling in July
2015. The results of this sampling showed lower contamination
levels than the sampling performed in 2014. This supported
Jewett's argument for natural attenuation and prompted
the Department to determine that excavation was no longer
necessary. When Jewett concluded its remediation efforts,
roughly 800 gallons of oil remained unaccounted for.
On December 7, 2015, the Wests filed a complaint against
Jewett alleging claims of (1) common law trespass; (2)
statutory trespass; (3) negligence; (4) nuisance; and (5)
strict liability; and requesting compensatory, double, and
punitive damages. During the pendency of the case, the court
granted Jewett's motion for summary judgment on the
Wests' claims of statutory trespass and strict liability,
but denied Jewett's motions for summary judgment on the
remaining claims and also denied the Wests' motion for
After a jury was selected, the parties filed seven motions
and cross-motions in limine to exclude certain evidence at
trial. Relevant to this appeal, the court granted
Jewett's motion to exclude evidence of lost profits or
other dollar loss as a result of the spill but allowed the
Wests to present evidence that the remaining oil inhibited
marketing or development of the property. It also denied
Jewett's motion to exclude evidence that it was insured
because the Wests merely sought to offer evidence relating to
the conduct of the ...