70 WATER STREET ASSOCIATES, LLC v. HARRIS GANS COMPANY ET AL.

2005 Ct. Sup. 4302, 38 CLR 810
No. CV 00 0180713Connecticut Superior Court, Judicial District of Stamford-Norwalk at Stamford
March 7, 2005

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
LEWIS, JUDGE.

Before the court are two motions for summary judgment (#157 and #160) by the defendant Harris Gans Company (Harris Gans) and by the defendants Pennsylvania Petroleum Corporation (Penn Petro), Alvin Farans and Neil Farans, respectively. This action was commenced by the plaintiff, 70 Water Street Associates, LLC, against the defendants by service of a summons and complaint on October 6, 2000.

On March 28, 2004, the plaintiff filed the operative complaint, a five-count second revised complaint. The complaint alleges that the plaintiff purchased land in Norwalk from Harris Gans in 1997, and that the land is abutted by a parcel owned by the Farans. The complaint further alleges that, after acquiring the property from Harris Gans, the plaintiff discovered that the soil on and beneath the property was contaminated with petroleum products and by-products from both Harris Gans’s prior use of the subject property and by Penn Petro’s prior use of the adjoining property at 90 Water Street. Counts one and two claim that the defendants, Harris Gans, Penn Petro and the Farans, are liable to the plaintiff for reimbursement of the costs of remediating the contamination, pursuant to General Statutes §22a-452. Count four seeks equitable or injunctive relief against Penn Petro and the Farans, pursuant to General Statutes § 22a-16, to control the migration of petroleum discharges that continue to contaminate the groundwater beneath the plaintiff’s property. Count five claims that Penn Petro and the Farans are liable in continuing trespass because petroleum, petroleum constituents and other contaminants discharged and/or released on the Farans’ property continue to migrate into the groundwater beneath the plaintiff’s property.[1]

Harris Gans moved for summary judgment[2] as to count CT Page 4303 one on the grounds that the statute of limitations has expired on the General Statutes § 22a-452 action, and that the plaintiff’s written agreement to purchase the property “as is” and without warrantees or representations, with knowledge that the property was contaminated, bars any claim by the plaintiff.[3] Penn Petro and the Farans moved for summary judgment as to counts two and four on the ground that the statute of limitations has run on both claims, and as to count five on the grounds that the statute of limitations has run and that the trespass is not continuing because Penn Petro removed the source tanks from its property in 1995 and the contamination was removed from the plaintiff’s property by June 1998.[4]

The plaintiff opposes the motions for summary judgment on the grounds that (1) the applicable statute of limitations for a General Statutes § 22a-452 reimbursement claim is three years and runs from the date that the plaintiff incurred the cost of remediation; (2) that, in the alternative, the § 22a-452 claims are equitable and therefore not subject to a statute of limitations; (3) that General Statutes § 22a-16 claims are also equitable and therefore not subject to a statute of limitations; and (4) that the applicable statute of limitations for the continuing trespass claim is three years and runs from the date the contaminated soil was removed from the plaintiff’s property. Though not stated by the plaintiff, its argument that the statute of limitations on the trespass claim began to run when the contamination was remediated, admits that the contamination is not continuing. Because the property was remediated and the source of contamination was removed from the defendant’s property, the continuing trespass claim should be treated as a standard trespass claim.

The following facts are admitted or undisputed. The plaintiff purchased the property at 68-70 Water Street in Norwalk, Connecticut from Harris Gans on April 10, 1997. The purchase and sale agreement contained several disclaimers regarding the condition of the property, including an “as is” clause. It also detailed the opportunity for the plaintiff to review all reports relating to the premises, a warranty and covenant that the purchaser had inspected the premises and was purchasing it with all faults and without recourse to the seller and disclaimers of any and all warranties by the seller. Prior to the sale, the defendant’s principal, Donald Gans, told the plaintiff’s principal, Salvatore DiNardo, that the property was contaminated. On or about May 2, 1997, Peter DiNardo, the plaintiff’s employee CT Page 4304 and son of Salvatore DiNardo, had a telephone conversation with James McCarthy of Delta Environmental about the remediation of the subject property, and received a written cost estimate for the remediation. Delta completed the remediation for the plaintiff prior to June 26, 1998. During the remediation, Delta discovered and removed all residual contamination from earlier petroleum discharges on the Penn Petro property that had migrated onto the plaintiff’s property. Penn Petro had ceased all operations at 90 Water Street in or about 1993 and the tanks that caused the contamination had been removed from its property in 1995.

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Rocco v. Garrison, 268 Conn. 541, 548, 848 A.2d 352 (2004). “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Internal quotation marks omitted.)Lombardo’s Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 237, 842 A.2d 1089 (2004). “Summary judgment may be granted where the claim is barred by the statute of limitations.” Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).

As to the General Statutes § 22a-452 claims in counts one and two, the defendants argue that the applicable statute of limitations for such a claim is General Statutes § 52-577c(b), which provides that, “no action to recover damages for personal injury or property damage caused by exposure to a hazardous chemical substance or mixture or hazardous pollutant released into the environment shall be brought but within two years from the date when the injury or damage complained of is discovered or in the exercise of reasonable care should have been discovered.” The defendants acknowledge that, prior to an October 1, 1998 amendment, the meaning of “hazardous chemical substances” in §52-577c did not include petroleum or petroleum products. Se Doty v. Mucci, supra, 238 Conn. 805. They argue, however, that the statute, which now includes damage caused by petroleum or CT Page 4305 petroleum products should be applied retroactively to a cause of action that accrued before the amendment because merely procedural statutes are to be given retroactive effect and that the statute of limitations to be applied is the one that is in effect at the time an action is filed.

The plaintiff responds that, to the extent that the court applies General Statutes § 52-577c to these claims, the old statute of limitations should be applied in the interest of “good sense and justice.” The plaintiff also argues, in the alternative, that § 52-577c does not apply in this case because the plaintiff’s claims are not claims for personal injury or property damage, and that, instead, the court should apply the three-year statute of limitations in either General Statutes §§52-598a or 52-577. The plaintiff further argues, in the alternative, that cost reimbursement claims pursuant to General Statutes § 22a-452 are equitable, and therefore not subject to a statute of limitations. Finally, the plaintiff argues that, if the court applies a statute of limitations to the § 22a-452
claim, the public policy of encouraging environmental remediation is best served by commencing the running of the limitation period from the time that the plaintiff incurred remediation costs.

Though Connecticut’s appellate courts have not decided the issue, several Superior Court cases have held that the applicable statute of limitations for a claim pursuant to General Statutes §22a-452 is General Statutes § 52-577c. See French Putnam, LLC v. County Environmental Services, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0166445 (September 6, 2002, Adams, J.) (33 Conn. L. Rptr. 3) Cadlerock Properties Joint Venture, L.P. v. Schilberg, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 99 0069263 (July 17, 2001, Sferrazza, J.) (30 Conn. L. Rptr. 85) Blackburn v. Miller-Stephenson Chemical Co., Inc., Superior Court, judicial district of Danbury, Docket No. CV 93 0314089 (September 11, 1998, Leheny, J.).

Connecticut’s appellate courts have also not decided whether amended General Statutes § 52-577c applies retroactively to causes of action that accrued before the amendment, and there is a split of authority in the Superior Court cases that have decided it. The cases holding that § 52-577c applies retroactively have relied on reasoning similar to that stated i Roberts v. Caton, 224 Conn. 483, 488-89, 619 A.2d 844 (1993). See French Putnam, LLC v. County Environmental Services, Inc., CT Page 4306 supra, 33 Conn. L. Rptr. 3; Monroe v. Underground Construction Survey, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV01 0384754 (April 16, 2002, Thim, J.) (31 Conn. L. Rptr 721). In Roberts, the court held that, “statutes of limitation are presumed to apply retroactively . . . Although substantive legislation is not generally applied retroactively absent a clearly expressed legislative intent, legislation that affects only matters of procedure is presumed to [be] applicable to all actions, whether pending or not, in the absence of any expressed intention to the contrary . . . Statutes of limitation are generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action . . . Therefore, unless specifically tied to a statutory right of action or unless a contrary legislative intent is expressed, the statute of limitations in effect at the time an action is filed governs the timeliness of the claim.” (Citations omitted; internal quotation marks omitted.) Roberts v. Caton, supra, 224 Conn. 488-89.

The cases that have held that General Statutes § 52-577a does not apply retroactively have relied on Doty v. Mucci, supra, 238 Conn. 800. See Bridgeport v. Admiral Associates, LLC,
Superior Court, judicial district of New Haven, Docket No. CV 98 035277 (February 7, 2001, Moran, J.); J.F.C. Endeavors, Inc. v. Pioneer Steel Ball Co., Superior Court, judicial district of Hartford, Docket No. 587083 (December 14, 1999, Hennessey, J.). The decision in Doty, however, was not premised on a finding that General Statutes § 52-577c did not apply retroactively. Instead, the court in Doty found that, “§ 52-577c
incorporates, by reference to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); 42 U.S.C. § 9601 et seq.; the exclusion of petroleum from the definition of hazardous substances . . .” The court ruled that, because the plaintiffs’ claim alleged petroleum contamination, § 52-577c was not applicable. Doty v. Mucci, supra, 238 Conn. 804-05. This exclusion was subsequently removed by the 1998 amendment to §52-577c.

In light of the rule in Roberts and the 1998 amendment of General Statutes § 52-577c, the cases supporting retroactive application of § 52-577c are more persuasive. Section 52-577c
applies to actions to recover damages for personal injury or property damage caused by exposure to petroleum products, is not tied to a particular statutory right of action and was in effect CT Page 4307 at the time this action was filed. Therefore, § 52-577c applies to the plaintiff’s § 22a-452 claim and the statute of limitations is two years.

Finally, the “statute of limitation runs . . . under . . . §52-577c (b) . . . from . . . the date the plaintiff acquired the property with knowledge of its contaminated state.” Cadlerock Properties Joint Venture, L.P. v. Schilberg, supra, 30 Conn. L. Rptr. 87. Because the plaintiff had knowledge of the contamination when it bought the property, the two-year statute of limitations on the General Statutes § 22a-452 claim began running, at the latest, on April 10, 1997, and the complaint, served more than three years later, was untimely. Therefore, the defendants’ motions for summary judgment as to counts one and two are granted.

As to the General Statutes § 22a-16 claim against Penn Petro and the Farans in count four, those defendants argue that the applicable statute of limitations for such claims is also three years pursuant to General Statutes § 52-577c. The plaintiff responds that its § 22a-16 claim is a claim for equitable relief and, as such, is not subject to a statute of limitations, but only to the defense of laches. The applicable statute of limitations for claims brought pursuant to § 22a-16 is General Statutes § 52-577, the general statute of limitation applicable to torts. See Visconti v. Pepper Partners, 77 Conn.App. 675, 688-89, 825 A.2d 210 (2003) (accepting the parties’ position that § 52-577 applies to action pursuant to § 22a-16); see als Benson v. Redding, Superior Court, judicial district of Danbury, Docket No. CV 02 0344668 (February 4, 2003, White, J.). General Statutes § 52-577 states that “[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” “The date of the act or omission complained of is the date when the negligent conduct of the defendant occurs and is not the date when the plaintiff first sustains damage . . .” (Internal quotation marks omitted.)Prokolkin v. General Motors Corp., 170 Conn. 289, 297, 365 A.2d 1180 (1976). General Statutes § 22a-16 provides, in relevant part, that “any person, partnership, corporation, association organization or other legal entity may maintain an action . . . for declaratory and equitable relief . . . for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . .” As noted earlier, Penn Petro has not discharged pollutants onto its property since 1995, when the source tanks were removed. CT Page 4308 Furthermore, the court in Visconti v. Pepper Partners, supra, 77 Conn.App. 689, held that § 22a-16 does not impose liability on a property owner who merely maintains a contaminated condition on his property. The statute of limitations on the plaintiff’s §22a-16 claim began to run at the latest in 1995. This action was commenced well outside of the three-year limitations period in §52-577 and, therefore, Penn Petro’s motion for summary judgment as to count four is granted.

As to the trespass claim against Penn Petro and the Farans in count five, those defendants argue that the applicable statute of limitations is two years, pursuant to General Statutes § 52-577c, because a trespass claim premised on petroleum contamination is specifically covered by § 52-577c as a cause of action for personal injury or property damage caused by hazardous chemical substances. The plaintiff argues, in response, that the applicable statute of limitations is three years, pursuant to §52-577.[5] “[T]he three-year limitation of 52-577 is applicable to all actions founded upon a tort which do not fall within those causes of action carved out of 52-577 and enumerated in 52-584 or another section.” (Internal quotation marks omitted.) Travelers Indemnity Co. v. Rubin, 209 Conn. 437, 441, 551 A.2d 1220 (1998). In Tolchin v. Shell Oil Company, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. X03 CV 97 0510328 (July 30, 2004, Peck, J.) (37 Conn. L. Rptr. 575), the court found that the statute of limitations for exposure to environmental pollutants contained in § 52-577c
includes actions for negligence or willful misconduct premised on such exposure. A trespass premised on exposure to environmental pollutants is also subject to the limitation in § 52-577c. See also, Goldblum v. The Pittston Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV92 0126252 (April 24, 1996, Stevens, J.) (16 Conn. L. Rptr. 512) (holding that in a case involving exposure to hazardous chemical substances or pollutants whether based on negligence or some other theory, the applicable statute of limitations is that of §52-577c(b)).

Accordingly, the statute of limitations on the plaintiff’s trespass claim is two years from the date when the damage complained of is discovered or in the exercise of reasonable care should have been discovered. As noted earlier, the plaintiff admitted that the contamination was completely removed when it completed remediation of its property in June 1998. The statute of limitations, therefore, began running at the latest at that CT Page 4309 point, and the plaintiff’s trespass claim, commenced more than two years later, is untimely and Penn Petro’s motion for summary judgment as to count five is granted.

Because the defendants’ motions have been decided on statute of limitations grounds, it is not necessary to rule on whether count one is barred by the purchase and sale agreement.

For all of the foregoing reasons, the plaintiff’s claims are barred by the applicable statutes of limitations and the motions for summary judgment are granted on all counts.

So Ordered.

William B. Lewis, Judge.

[1] Count three sounded in misrepresentation against Harris, but has been withdrawn by the plaintiff.
[2] Harris Gan’s motion for summary judgment was accompanied by a photocopy of the signed and sworn purchase and sale agreement between it and the plaintiff, transcript excerpts from the deposition of Salvatore DiNardo, a witness for the plaintiff and a signed and sworn affidavit by Don Gans, for Harris Gans.
[3] Harris Gans also sought summary judgment on count three but, as noted, that count has been withdrawn by the plaintiff.
[4] The Penn Petro/Farans’ motion for summary judgment is accompanied by photocopied excerpts of transcripts from the depositions of Salvatore DiNardo, James McCarthy, an employee of the plaintiff’s consultant, Delta Environmental (Delta) and Peter DiNardo, a witness for the plaintiff, photocopies of the first and last pages of the purchase and sale agreement between the plaintiff and the defendant, Harris Gans, a photocopy of handwritten telephone notes allegedly written by James McCarthy on May 2, 1997, a photocopy of a letter of transmittal from Delta to Peter DiNardo dated May 2, 1997, a photocopy of a two-page estimate of remediation costs from Delta dated September 18, 1995, a photocopy of the summary of remediation report from Delta to Salvatore DiNardo dated June 26, 1998, and a fax copy of the signed affidavit of Alvin Farans dated September 7, 2004.
[5] The plaintiff cites General Statutes § 52-577a, which is a statute of limitation for actions based on product liability claims. It appears that the plaintiff’s citation is a scrivener’s error, and that the plaintiff meant to cite General Statutes §52-577, which is the three-year statute of limitations for actions founded upon a tort.

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