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West v. Jewett and Noonan Transportation, Inc.

Supreme Court of Maine

July 12, 2018

KATHLEEN WEST et al.
v.
JEWETT AND NOONAN TRANSPORTATION, INC.

          Argued: May 15, 2018

          Stephen A. Bell, Esq. (orally), Mundhenk & Bell, LLC, Portland, for appellant Jewett and Noonan Transportation, Inc.

          Gavin G. McCarthy, Esq. (orally), Catherine R. Connors, Esq., and Katherine S. Kayatta, Esq., Pierce Atwood LLP, Portland, for appellees Erik and Kathleen West

          Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          HUMPHREY, J.

         [¶1] 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.

         [¶2] 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.

         I. BACKGROUND

         [¶3] 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.

         [¶4] 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.

         [¶5] 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.

         [¶6] 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, [1] 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.

         [¶7] 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 summary judgment.

         [¶8] 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 ...


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