Opinion
No. 441669
February 17, 2005
MEMORANDUM OF DECISION
On April 15, 1996, the plaintiffs, Coral New Haven Associates L.L.C., formerly McCann Real Equities Series XXII, LLC (collectively referred to herein as the plaintiff) entered into a contract with the defendants David McDermott (McDermott), David McDermott, Inc. and McDermott Chevrolet (collectively, the defendants) to purchase "as is" 4.0 acres of real property and improvements located on Whalley Avenue in New Haven, much of which had been used throughout most of the twentieth century for automobile sales and other automotive-related purposes. Nine months before the closing, an independent environmental assessment firm hired by the plaintiff to examine the condition of the property found a basement room in one of the buildings into which 10,000 gallons of petroleum and water had spilled from two tanks. Testing revealed that the concrete containing the room and the soil around the building was contaminated by the oil. The plaintiff purchased the property in July 1997. The soil around the building was later found to contain more contamination than the plaintiff or its experts had estimated. On July 25th 2000, after being served with a notice of violation by the department of environmental protection of the state of Connecticut (DEP) in March 2000, the plaintiff brought this action against the defendants seeking money damages.
Although Coral New Haven Associates L.L.C. is the successor in right to McCann Real Equities Series XXII, L.L.C. both are named as plaintiffs.
Exhibit 2, pp. 5-9.
The plaintiff's amended complaint is in nine counts: breach of contract, negligent misrepresentation, reckless or indifferent misrepresentation, intentional and fraudulent misrepresentation, unfair trade practices in violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110 et seq., common-law indemnification, statutory indemnification pursuant to General Statutes § 22a-452, fraudulent concealment and fraud.
The defendants filed an answer, admitting that they had entered into a written contract with the plaintiff which was subsequently amended but denying the material allegations of wrongdoing. The defendants also pleaded as special defenses that: (1) the plaintiff's claims were barred by an indemnification clause that required the plaintiff to hold the defendants harmless for claims arising out of the environmental condition of the property; (2) any damages incurred by the plaintiff were caused by its own negligent or intentional acts or omissions; (3) the plaintiff had actual, constructive or imputed knowledge of the environmental condition of the property prior to expiration of the environmental contingency clause, and its failure to exercise its rights thereunder constituted a waiver of their claims; (4) the plaintiff's claims were barred and deemed waived by § 16 of the contract, which provided that the plaintiff's acceptance of a deed and bill of sale was deemed to constitute full performance by and discharge of the defendants except for those provisions stated to survive the closing; (5) pursuant to the closing, the plaintiff filed a Form III Negative Declaration form with the DEP, certifying that it accepted responsibility for any environmental investigation and remediation; (6) the contract provided that in the event of default, the plaintiff's sole remedy was an action for specific performance; and (7) the plaintiff's claims were barred by the applicable statutes of limitations, General Statutes § 52-577 or General Statutes § 52-577c(b).
The case was tried to a jury. After the plaintiff rested its case, the defendants moved for a directed verdict. The court granted the motion. The plaintiff has now moved to set aside the directed verdict.
At the time that it granted the motion for a directed verdict, the court orally articulated the reasons for its action. The court subsequently signed and filed the nineteen-page transcript of those remarks. See Practice Book §§ 6-1(a), 64-1(a).
The standard for granting a directed verdict is well settled. "A trial court should direct a verdict for a defendant if, viewing the evidence in the light most favorable to the plaintiff, a jury could not reasonably and legally reach any other conclusion than that the defendant is entitled to prevail." (Internal quotation marks omitted.) Moran v. Eastern Equipment Sales, Inc., 76 Conn.App. 137, 143, 818 A2d 848 (2003). "Directed verdicts are not favored in Connecticut jurisprudence . . . A verdict may be directed, however, when the decisive question is one of law or when the claim is that there is insufficient evidence to sustain a favorable verdict." (Citation omitted.) Message Center Management, Inc. v. Shell Oil Products Co., 85 Conn.App. 401, 413, 857 A.2d 936 (2004). The same standard governs a motion to set aside a directed verdict. Cf., Malloy v. Colchester, 85 Conn.App. 627, 632, 858 A.2d 813, cert. denied, 272 Conn. 907, 863 A.2d 698 (2004).
The evidence, viewed in light most favorable to the plaintiff, established the following facts. On March 21, 1996, the plaintiff and the defendants entered into a written contract, dated April 15, 1996, for the purchase and sale of approximately four acres of land and four buildings on Whalley Avenue in New Haven. On May 21, 1996, the parties entered into a second amendment to the contract.
The plaintiff sought the property for the purpose of leveling the buildings and constructing a new building to be used as a supermarket. The contract was negotiated by Martin Berger, on behalf of the plaintiff and by David McDermott on behalf of the defendants. Berger testified that he had been in the business of real estate development, primarily developing retail shopping centers, for fifteen to eighteen years. McDermott was president of David McDermott, Inc., which is in the business of selling new and used Lexus and Chevrolet automobiles and doing automotive repairs, including oil changes. Both the plaintiff and the defendants, however, had the benefit of counsel in preparing the contract. The plaintiff, which has its principal offices in New York, was represented by the New York City law firm of Newman, Tannenbaum Helpern, Syracuse Hirschtritt LLP, which had expertise in environmental law.
Berger first became interested in purchasing the defendants' property as a result of the plaintiff's development of adjacent property that also had been used as an automobile dealership. The plaintiff had developed Rite-Aid and Staples stores at this site. He was introduced to McDermott by the brokerage firm of Levey, Miller and Maretz.
The Contract's Salient Provisions.
Section 7.3. of the second amendment to the contract provided:
" Buyer's Environmental Inspection — Buyer may, at Buyer's sole cost and expense, within thirty (30) days from the date of this Second Amendment, obtain an environmental site assessment report and perform any and all test it deems necessary ("Site Assessment") with respect to the presence on the Premises of `oil,' `hazardous wastes,' `hazardous materials' or `hazardous substances' or `underground storage tanks' and any other `environmental contaminants' (collectively the `Materials'), as the same are defined in the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq., as amended, the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 9601 et seq., as amended. Buyer shall commence drilling test borings within two weeks from [May 21, 1996], subject to force majeure. If the Buyer does not commence the drilling in a timely manner, Buyer waives its rights to terminate this Agreement pursuant to this environmental contingency. In the event that Buyer is not reasonably satisfied with the results of Buyer's Site Assessment in its sole discretion, Buyer may terminate this Agreement by notice to Seller within the said thirty (30) day period which notice shall be accompanied by a copy of Buyer's Site Assessment, report or field notes. If Buyer so terminates this Agreement, all deposits shall be promptly refunded and this Agreement shall be null and void and without recourse to any party. If the Buyer does not terminate this Agreement within the thirty (30) day period he shall perform after the closing, at his sole cost and expense, such remediation as (i) is recommended in the Buyer's Site Assessment report and (ii) is required by Buyer's lender. Buyer shall after closing hold Sellers free and harmless and shall indemnify Sellers from any and all claims, including costs and attorneys fees, based on the environmental condition of the Premises and this release and indemnity shall survive the closing and shall not be limited by the liquidated damages provision in Section 20 . . ."
Section 7.6 of the second amendment to the contract provided:
" Expiration of Contingencies and Forfeitures of Deposits — Notwithstanding any other provision of this Agreement to the contrary, unless Buyer terminates this Agreement within thirty (30) days from the date hereof as provided for in Section 7.1, 7.2, 7.3 or 7.4 then, immediately upon the expiration of Buyer's rights to terminate pursuant to said Sections, Buyer's right to terminate the Agreement pursuant to said contingencies shall lapse and the Initial Deposit shall become non-refundable to Buyer except for a failure of Seller to convey the Premises as provided for in this Agreement."
Section 11e of the contract provided:
INVESTIGATION — IN REACHING ITS DECISION TO PROCEED WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT, BUYER HAS RELIED SOLELY UPON ITS INVESTIGATION OF THE PREMISES AND BUYER HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY OF SELLERS, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLERS SET FORTH IN THIS AGREEMENT. BUYER ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO EXAMINE AND REVIEW ANY AND ALL INFORMATION IT DEEMED NECESSARY TO COMPLETE ITS DUE DILIGENCE EXAMINATION AND INVESTIGATION OF THE PREMISES AND IS SATISFIED WITH THE RESULTS OF SAID EXAMINATION.
Berger defined due diligence as follows: "The due diligence period is a period of time in which we can determine whether the property works for our needs . . . And in order for it [to] work for our needs, we have to determine that it's environmentally sound, that the property geotechnically can be used, that we have good survey meets and bounds. And then we have to prepare site plans. And all that needs to come together in a manner that the city will approve, it's economically viable for us, and that the tenant, ultimately Shaw's, would accept as well." (T. 9/2/04, p. 122).
Paragraph 13 of the contract provided:
Between the date hereof and the Closing Date, Seller covenants and agrees as follows . . . b. Sellers will comply with all laws, ordinances, regulations, orders or notices of violations of or issued by any Governmental Authority.
Section 15 provided:
NO WARRANTIES/ENTIRE AGREEMENT — EXCEPT AS SPECIFICALLY PROVIDED FOR HEREIN, BUYER ACKNOWLEDGES THAT IT HAS EXAMINED THE PREMISES AGREED TO BE SOLD AND IS BUYING THEM "AS IS," WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER, WHETHER RELATING TO THE PREMISES' CONDITION OR USE, EXPRESS OR IMPLIED, BY SELLERS OR BY ANY AGENT, EMPLOYEE OR OTHER REPRESENTATIVE OF SELLERS NOT EXPRESSLY STATED HEREIN. ALL UNDERSTANDINGS AND AGREEMENTS HERETOFORE MADE BETWEEN THE PARTIES HERETO ARE MERGED IN THIS AGREEMENT, WHICH ALONG FULLY AND COMPLETELY EXPRESSES THEIR AGREEMENT.
(Upper case in original.)
Section 16 provided:
ACCEPTANCE OF DEED AND BILL OF SALE — THE ACCEPTANCE OF A DEED AND THE BILL OF SALE BY BUYER SHALL BE DEEMED TO BE A FULL PERFORMANCE AND DISCHARGE OF EVERY AGREEMENT AND OBLIGATION ON THE PART OF SELLERS TO BE PERFORMED PURSUANT TO THE PROVISIONS OF THIS AGREEMENT, EXCEPT THOSE STATED TO SURVIVE THE CLOSING.
(Upper case in original.)
Section 21 stated:
Sellers Default — If Sellers shall fail to fulfill their agreements herein, Buyer may bring an action for Specific Performance which shall be its sole remedy under the terms of this Agreement.
The subject property had been used throughout most of the twentieth century for automobile-related purposes. McDermott had purchased the property in 1985 for use in his automobile sales and service business.
The property was "honeycombed" with underground basement rooms, Several above-ground storage tanks (ASTs) and underground storage tanks (USTs) were present on the property. These tanks were used to hold clean oil, used oil and heating fuel. During the time that McDermott owned the property, an underground room containing two ASTs existed in one of the buildings. During McDermott's ownership of the property, his employees dumped used oil into the tanks, resulting in substantial spillage into the room.
After entering into the contract, the plaintiff retained Heynen Teale Engineers (Heynen Teale) to perform a Phase I and Phase II environmental site assessment (ESA) of the entire property. This consisted of conducting a visual observation of the site for physical evidence of hazardous materials in the environment; contacting governmental authorities and reviewing their files for information concerning the presence of hazardous materials at the site; reviewing ownership records for information of current and prior site usage; assessing the general hydrogeological setting based on field observations and topographical information; and performing two days of test boring explorations. The letter of proposal from Heynen Teale, which the plaintiff accepted, stated that "[s]oil samples will be screened for total volatile organic compounds (VOCs) using a Thermo electronics 580A organic vapor meter (OVM). Selected soil samples will be analyzed for specific aromatic and chlorinated hydrocarbons . . ."
The terms Phase I and Phase II environmental site assessment are terms of art in the industry. "The Phase I investigation combines a walk through of the property with site history and evidence of prior uses, location and governmental permits or notices. Robert I. McMurray, Treatment of Environmental Contamination in Eminent Domain Cases, C975 ALI-ABA 237 (1995)." Housing Authority v. Suydam Investors, 177 N.J. 2, 8 n. 1, 826 A.2d 673 (2003). "A Phase II assessment is a comprehensive site assessment to collect, develop and evaluate the following information: (1) the source, nature, extent and potential impacts of the release of hazardous material; (2) the risk of harm to health, safety, public welfare, and the environment posed by the disposal site; and (3) the need for remedial actions . . . [It] shall include, inter alia, a characterization of the sources, nature, and vertical and horizontal extent of contamination at the disposal site, and the identification and characterization of all potential human and environmental receptors that could be affected by hazardous material at or migrating from such site." (Internal quotation marks omitted.) Eastern Products Corp. v. Continental Casualty Co., 58 Mass.App.Ct. 16, 19 n. 9, 787 N.E.2d 1089 (2002), review denied, 439 Mass. 1108; 791 N.E.2d 346 (2003).
"Volatile organic compounds (VOC) means any compound of carbon, excluding carbon monoxide, carbon dioxide, carbonic acid, metallic carbides or carbonates, and ammonium carbonate, which participates in atmospheric photochemical reactions." 40 C.F.R. § 5 1.100(s). Thus, hydrocarbons are a VOC. See, e.g., Bluewater Network v. E.P.A., 370 F.3d 1, 7 (D.C. Cir. 2004).
In performing the ESA, Heynen Teale divided the property into sixteen areas, designated as Areas A through P. It is the condition of a basement room in Area M that gives rise to this litigation.
Lawrence Bee, vice president of operations for Heynen Teale, conducted visual observation of the property. He visited the property in March and October 1996. McDermott, or an employee he assigned, showed Bee around the property. Bee was not restricted at any time on any visit from going wherever he wanted to go on the property and was given free rein to take soil samples. (T. 9/9/04, pp. 14-15, 33). He never requested to see the basement in Area M and it was not shown to him.
On October 31, 1996, during the visual portion of the ESA, Bee and two other representatives of Heynen Teale discovered the basement in Area M that contained the large amount of liquid as well as the two ASTs. Either Berger telephoned McDermott, or vice versa, and Berger asked McDermott what the liquid was in the Area M basement. McDermott replied that it was only rain water and that the two ASTs had never been used. There is no evidence that McDermott told Berger not to test either the tanks, the building's concrete or the surrounding soil for contamination. Nor is there evidence that the plaintiff represented to anyone that the soil around Area M was not contaminated.
Berger forwarded the information given to him by McDermott to Heynen Teale. Some of the liquid in the basement in Area M was indeed rainwater that had entered the room from a hole in the roof or cracks in the walls. Nevertheless, immediately, or within days after Berger forwarded the information, Heynen Teale, with which Berger spoke several times a week (T. 9/2/04, p. 126), reported back that much of the liquid consisted of oil. Virtually the plaintiff's entire case, and its claim of substantial damages, is based on McDermott's alleged statement that the liquid in Area M was only rainwater.
Shortly thereafter, on November 12, 1996, Heynen Teale issued its written ESA in which it reported that the building in Area M "is a masonry structure containing hydraulic lifts. The northwest corner of the building contains 3 ASTs used for possibly virgin oil. The floor is heavily stained from apparent overfills and improper handling. Adjacent to the 3 ASTs is a basement access with wood steps. The steps appear unsafe, and no lighting was observed in the basement, This northwest basement floor as observed with flashlights, was under 8+/- inches of oil and water. The soil [sic: oil] was apparently due to overfills of two 275-gallon waste oil ASTs in the basement fed from the main level." (Exhibit 2, p. 15).
"The northwest basement area [of Area M] below the virgin oil storage area contains an estimated 10,000 gallons of an oil/water mixture on the floor from poor waste oil management practices. The northwest basement walls are stained from ceiling to the floor." (Exhibit 2, p. 19).
"The following observations suggest the presence of on-site petroleum releases:
a) an estimated 10,000 +/- gallons of oil and water on the northwest basement floor of Area M;
b) overtopping of and surface staining surrounding, the broken flush-mounted UST [underground storage tank] fill pipe in Area O;
c) surface staining in Area N adjacent to the Area C gasoline UST; and
d) staining beneath the Area G basement fuel oil AST." (Emphasis added; Exhibit 2, p. 33.)"The screening and analytical results suggest the presence of petroleum-related hydrocarbons in soil near the groundwater surface at Area M, and the presence of gasoline and solvent-related hydrocarbons near the groundwater surface in the south end of Area K. OVM [organic vapor meter] screening data suggests the presence of VOC's [volatile organic compounds] near the groundwater surface in Areas K, G, L, and M." (Emphasis added; Exhibit 2, p. 34.)
Prior to the closing, additional environmental testing was performed by Apex Environmental, Inc. (Apex). Between March 31, 1997 and April 4, 1997 Apex observed the drilling of seventeen soil borings around the property and cores of buildings on the site. On June 26, 1997, Apex reported to the plaintiff that it found no signs of significant contamination at the borings. Additional "subslab investigation" in certain locations did not detect significant contamination.
Prior to the closing, the plaintiff never advised the defendants of the findings of Heynen Teale or Apex. In July 1997, the plaintiff purchased the property from the defendants and received a deed and bill of sale. Subsequently, Apex determined that the soil around the Area M basement was more contaminated than either it or Heynen Teale had determined. Because of the contamination, the soil required extensive remediation. The plaintiff claims that the expense of the remediation and resulting construction delay cost the plaintiff over one million dollars.
In its ESA, Heynen Teale reported that Area M had been used for auto repair purposes as far back as 1923. (Exhibit 2, p. 10)
I
The first count of the plaintiff's amended complaint alleges that the defendants breached the contract with the plaintiff in the following ways: "(a) The Defendants failed to comply with certain notices of violation issued by the Connecticut DEP; (b) the Defendants failed to comply with local, State and federal environmental laws affecting the Real Property prior to closing; (c) the Defendants failed to disclose the existence of notices of violation during that period of time after execution of the Purchase and Sale Agreement and in particular, following the environmental contingency period contained in the Purchase and Sale Agreement; (d) the Defendants failed to timely and truthfully disclose facts known to them concerning the environmental condition of the Real Property and the existence of current violations; (e) the Defendants knowingly concealed from the Plaintiffs facts relevant to the Purchase of the Real Property, including, inter alia, the existence of a current environmental investigation relating to the Real Property, issuance of notices of violations and the existence of past violations which were unresolved prior to closing."
"[T]he key elements of a breach of contract action considered by the court are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." Bouchard v. Sundberg, 80 Conn.App. 180, 189, 834 A.2d 744 (2003).
In its motion to set aside the directed verdict, the plaintiff renews the claim it raised at trial that the defendants breached the contract in essentially two ways. First, the plaintiff argues that the defendants failed to disclose letters they received from the DEP prior to entering into the contract and that this was a breach of § 12c of the contract. Second, the plaintiff argues that the condition of basement in Area M was a breach of § 13b of the contract.
There is no claim nor evidence of an affirmative misrepresentation by the defendants prior to entering into the contract.
A.
The court first addresses the plaintiff's claim involving DEP's inspections and letters to the defendants.
In its memorandum in support of its motion to set aside the directed verdict the plaintiff contends that the defendant breached the contract because they, inter alia, "failed to disclose the existence of notices of violation and action taken by the Department of Environmental protection that was short of a notice of violation, which includes inspections and testing."
The following additional facts are necessary for the presentation of the plaintiff's claim. On August 30, 1994 and December 16, 1994, the DEP inspected the property. On February 15, 1995, DEP wrote the defendant stating:
The inspections found some problems with respect to waste handling procedures.
1. Oil contaminated sawdust was being thrown in the dumpster, rather than being disposed of as Connecticut Regulated Waste.
2. During the inspection on December 16, a 55-gallon drum was found near the dumpster. It was indicated that the drum contained waste paint thinner. While this drum has reportedly been removed from the site, McDermott has been unable to provide documentation to verify that it was properly disposed.
3. McDermott apparently has not been maintaining records for disposal of waste oil.
Enclosed are copies of documents which you should find useful. These include Connecticut's Waste Management Regulations. Characteristic and Listed Hazardous Waste Code Book, Small Quantity Generator Guidance, information on Connecticut Regulated Waste and guides to pollution prevention for the automotive repair and automotive refinishing industries. The documentation should be thoroughly reviewed to determine which regulations apply to McDermott's operation. Measures must then be implemented, as necessary, to ensure compliance with those regulations. Be advised that the facility may be inspected again to evaluate the company's compliance. Your cooperation on this matter is appreciated. If you have any questions please contact me at . . . (Exhibit 7G).
The following year, DEP again inspected the property. On August 9, 1995, following an inspection of the property on July 14, 1995, DEP wrote to the defendant. That letter states:
The July 14 inspection found that the problems had not all been corrected.
1. Contaminated sawdust was still being disposed of in the dumpster. The sawdust must be containerized and properly disposed.
2. A 55-gallon drum of waste paint thinner had been found during the December 16 inspection. McDermott was unable to present documentation verifying proper disposal of the waste.
During the July inspection, a 16-gallon drum of waste paint related material was found with an open funnel. Containers of hazardous waste must always be closed while in storage, unless waste is being added or removed. It was also found that a hazardous waste determination had not been performed on waste masking paper contaminated with paint. This is a violation of Section 22a-449(c)-102(a)(1) of the Regulations of Connecticut State Agencies, incorporating 40 CFR 262.11.
The documentation sent to you in February must be reviewed to determine McDermott's current operating status. Measures must be implemented, as necessary, to ensure compliance with all applicable regulations. Be advised that the facility will be inspected once more to evaluate the company's compliance. Also, a copy of the manifest for the disposal of the waste paint thinner and the results of a hazardous waste determination for the waste masking paper must be submitted to Mr. Ploch by September 15, 1995 . . . (Exhibit 7E).
The following year, on February 26, 1996, DEP again inspected the property. After the inspection, the DEP inspector noted that the defendants were unable to produce any documentation showing proper disposal of the contents of a 55-gallon drum of waste paint thinner or masking paper that had been contaminated with paint. After an August 22, 1996 inspection by DEP, the defendants' operations director, Joe Cetta, informed DEP that he would he unable to provide disposal documentation for the 55-gallon drum because the employee "who arranged for disposal was no longer working for McDermott and had not for over a year." (Exhibit 7C).
A March 27, 1997 inspection of the property by DEP was remarkable for the absence of issues except that the defendants were still unable to locate documentation for the disposal of the 55-gallon drum of paint thinner. The inspector also advised the defendant to segregate spent antifreeze from waste oil and to perform a hazardous waste determination on it. Following the inspection, DEP sent a letter to McDermott Auto Group, stating:
The McDermott Group facility was inspected by Dwight Chernauskas, Field Inspector 3 with the DEP Waste Engineering and Enforcement Division on March 27, 1997. A copy of his inspection report is enclosed for your use.
The inspection found that many of the problems found during previous inspections had finally been corrected. However, spent antifreeze was being handled improperly because it was being mixed with waste oil. The spent antifreeze must be collected separately. A hazardous waste determination must be performed to ensure that the waste is properly disposed. A copy of the Department's fact sheet on hazardous waste determinations is enclosed for your use.
It appears that the facility is operating as a conditionally exempt small quantity generator (CESQG) of hazardous waste. This is contingent on the results of the hazardous waste determination for the spent antifreeze and its rate of generation if it is found to be hazardous. A copy of the Department's CESQG Guidance Document is enclosed for your use. You should review it to make sure the facility is being operated in compliance with all the requirements applicable to a CESQG.
During the inspection, it was indicated that McDermott will be moving to a new facility in East Haven. This is an opportune time to develop and implement best management practices (such as secondary containment for tanks), before operations actually begin at the new facility. Best management practices are described in the CESQO Guidance Document. Also, all wastes must be removed and properly disposed when the West Haven facility is vacated. The waste storage area must be decontaminated as described in the CESQG Guidance Document.
The results of the hazardous waste determination on the spent antifreeze and documentation verifying properly disposal of the wastes from the West Haven facility must be submitted for review and approval. Please submit the requested information by June 20, 1997. If you have any questions, please contact me at . . . (Exhibit 7A). The only provision of the contract that could possibly give rise to a duty to disclose is § 12c in which the defendants represented: "There are no actions, suits or proceedings pending or, to the best knowledge of Sellers, threatened against Sellers, at law or in equity, by or before any Federal, State, Municipal or other government court, department, commission, board, bureau, agency or instrumentality which in the event of a decision adverse to Sellers would prevent the consummation of the transactions contemplated by this Agreement." Section 12c, however, is unavailing for several reasons.
The defendant, David McDermott, stated that the reference to "West Haven" is erroneous and should refer to New Haven. The plaintiff has agreed with this correction.
Heynen Teale was retained by the plaintiff whose responsibilities included obtaining public records of DEP relevant to the subject property. It obtained none of the 1994-1997 documents referenced here. Nonetheless, Berger testified that he was only upset about the May 1997 letter from DEP. (T., 9/3/04, pp. 54-55.)
"Section 12c of the contract provides in its entirety: " Seller's Representation . . . c. No Litigation — There are no actions, suits or proceedings pending or, to the best knowledge of Sellers, threatened against Sellers, at law or in equity, by or before any Federal, State, Municipal or other government court, department, commission, board, bureau, agency or instrumentality which in the event of a decision adverse to Sellers would prevent the consummation of the transactions contemplated by this Agreement."
First, the plaintiff's acceptance of the deed and bill of sale was deemed by § 16 of the contract "to be a full performance and discharge of every agreement and obligation on the part of sellers to be performed pursuant to the provisions of this agreement, except those stated to survive the closing." Section 12c was not one of the provisions of the agreement stated to survive the closing.
Second, at no time did the DEP suggest, let alone threaten, any proceeding against the defendant. The parties' contract does not define the word "threaten." "Accordingly; [o]ur resolution of the [plaintiffs] claim is guided by the general principles governing the construction of contracts. A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms." (Internal quotation marks omitted.) Issler v. Issler, 250 Conn. 226, 235, 737 A.2d 383 (1999). "Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Internal quotation marks omitted.) Tallmadge Bros., Inc., v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 495, 746 A.2d 1277 (2000).
"Threat" is defined as "an indication of something impending and [usually] undesirable or unpleasant . . . an expression of an intention to inflict . . . injury, or damage on another [usually] as retribution or punishment for something done or left undonequieted at once on the teacher's [threat] to keep them after school . . ." Webster's Third New International Dictionary, p. 2382. "Threaten," is defined as "to utter threats against: promise punishment, reprisal or other distress to . . . to charge under pain of punishment: WARN . . . to promise as a threat: hold out of way of menace or warning . . . to give signs of the approach of (something evil or unpleasant): indicate as impending: portend . . . to hang over as a threat . . . to announce as intended or possible . . ." "To threaten is "to charge under pain of punishment." Webster's Third New International Dictionary, p. 2382. DEP's statement to the defendants in its letter of August 9, 1995 "that a hazardous waste determination had not been performed on waste masking paper contaminated with paint" and that "[t]his is a violation of Section 22a-449(c)-102(a)(l) of the Regulations of Connecticut State Agencies" is a far cry from a threat of proceedings; cf. Texas v. West Publishing Co., 882 F.2d 171, 176 (5th Cir. 1989), cert. denied, 493 U.S. 1058, 110 S.Ct. 869, 107 L.Ed.2d 953 (1990); especially when the entire communication is considered as a whole, as it must be. Zullo v. Smith, 179 Conn. 596, 601, 427 A.2d 409 (1980).
Notably, while the plaintiff characterized the communications from the DEP as "notices of violation," clearly they were not. Between 1994 and 1997, when the DEP sent the correspondence in question to the defendants, General Statutes (Revs. to 1995, 1997) § 22a-6b (c) provided: "If the commissioner has reason to believe that a violation has occurred for which a civil penalty is authorized by this section, he may send to the violator, by certified mail, return receipt requested, or personal service, a notice which shall include: (1) A reference to the sections of the statute, regulation, order or permit involved; (2) A short and plain statement of the matters asserted or charged; (3) A statement of the amount of the civil penalty or penalties or the method for calculating the penalty or penalties to be imposed upon finding after hearing that a violation has occurred or upon a default; and (4) A statement of the party's right to a hearing." See also Regs., Conn. State Agencies § 22a-6b-101. There is no evidence that the correspondence to the defendants from DEP was sent by certified mail or personally served. None of the correspondence contained the amount of any penalty nor a statement of the defendants' right to a hearing. This obviously is more than a matter of form. The statutory notice was not only necessary to put the defendants on notice of imminent consequences for failure to comply with regulatory requirements, which could "be enforced in the same manner as a judgment of the Superior Court"; General Statutes [Revs. to 1995, 1997) § 22a-6b (g); but also triggered the accused violator's right to request, within thirty days of the notice of violation, a hearing. General Statutes [Revs. to 1995, 1997) § 22a-6b(d). The defendants never received a notice of violation from DEP.
Third, there was no evidence that any adverse decision that DEP might have made in connection with the matters raised in their inspections between 1994 and 1997 would have "prevent[ed] the consummation of the transaction contemplated by th[e] Agreement," pursuant to § 12c of the contract. Such a clause "cannot be read out of the contract"; Anglim v. Sears-Roebuck Shoe Factories, 255 Mass. 334, 339, 151 N.E. 313 (1926); Groton v. Board of Labor Relations, Superior Court, judicial district of New London, Docket No. CV 94 0104742 (March 12, 1997, Parker, J.); and proof of this vital fact "cannot be supplied by surmise or assumption." Lamb v. Driver, 196 Va. 393, 397, 83 S.E.2d 741 (1954). The jury "may not resort to speculation and conjecture." State v. Little, 194 Conn. 665, 671, 485 A.2d 913 (1984).
Fourth, no reasonable person could have found that the defendants' nondisclosures of the letters and inspections of DEP between 1994 and 1997 caused the plaintiff damages. "In order for a plaintiff to be entitled to an award of damages, the plaintiff must establish a causal relation between the defendants' breach and the damages." Davis v. Fitzpatrick's, Inc., 5 Conn.App. 469, 472, 499 A.2d 805 (1985). Here there was no evidence of such a relation. There was no allegation that, the plaintiff had been fraudulently induced to enter into the contract nor evidence that the defendant's nondisclosure of the DEP inspections and letters between 1994 and 1997 caused the plaintiff any damages. The damages that the plaintiff claimed at trial involved Area M and are wholly unrelated to anything remotely connected to the matters raised by DEP between 1994 and 1997, i.e. the disposal of saw dust, the documentation of the removal of a 55-gallon drum of waste paint thinner, the failure to perform a hazardous waste determination on spent antifreeze and waste masking paper contaminated with paint and the handling of spent antifreeze. There is no evidence that any of the DEP letters relate to Area M. In sum, there was no evidence that the defendants' nondisclosure of inspections and communications from DEP caused the plaintiff any damages.
B.
The plaintiff's only other principal claim that the defendants breached the contract was that the condition of the basement in Area M violated § 13b of the contract, which states: "Between the date hereof and the Closing Date, Seller covenants and agrees as follows . . . Sellers will comply with all laws, ordinances, regulations, orders or notices of violations of or issued by any Governmental Authority." The jury could have reasonably found that the condition of the basement in Area M was a violation of the law of the State of Connecticut and DEP regulations.
However, as with § 12, § 13b was not a provision of the contract that survived the closing under § 16 of the contract.
Moreover, under § 21 of the contract, if the defendant failed to fulfill its obligations under the contract, the plaintiff's "sole remedy" was specific performance. Section 21 states: " Sellers Default — If Sellers shall fail to fulfill their agreements herein, Buyer may bring an action for Specific Performance which shall be its sole remedy under the terms of this Agreement."
Furthermore, the plaintiff's own evidence showed that there was no causal connection between the defendants' representation that the liquid in the Area M basement was only water and that the tanks had never been used and the damages the plaintiff claims.
The plaintiff had been given a period of time under the contract to perform an ESA. It did not commence that assessment timely, pursuant to § 7.3 of the contract, nor did the plaintiff exercise its right to cancel the contract at any time. Berger's own testimony was that the plaintiff permitted the environmental contingency to lapse on July 3, 1996. Heynen Teale found the Area M basement containing the liquid in October 1996. It was then that McDermott made his representations to Berger that the liquid was rain water and that the tanks had never been used. Within a few days, if not immediately, Heynen Teale, in its November 12, 1996, report to the plaintiff, determined that the liquid was not just rain water but oil and that the tanks had been used. Not only did the plaintiff not request the defendants to rescind the contract at that time, request additional due diligence time or just forfeit its deposit, the plaintiff never mentioned the condition of the Area M basement to the defendants until it brought this action, three and a half years later.
Berger claimed that he relied on the defendants' representation in that he would have had additional testing done had McDermott told him that the liquid in the Area M basement was not only water but also oil. This is fanciful, and the rest of Berger's testimony and the rest of the plaintiff's evidence conclusively establishes that the plaintiff did not rely on McDermott's statement. Berger was told almost immediately by Heynen Teale that the liquid contained oil.
At one point in his testimony, Berger admitted: "We relied on my experts as well." (T. 9/3/04, p. 79).
Q So you were aware that there was a problem in the basement Area "M" when you got that report. Right?
A We knew there was purportedly water and oil inside the basement of Area "M." (T. 9/7/04, p. 62).
There was no evidence that the plaintiff sustained any damages or prejudice by whatever brief interval existed between McDermott's representation (on October 31, 1996, at the earliest) and Heynen Teale's report to the plaintiff that the basement contained oil as well as water (November 12, 1996, at the latest). No prejudicial deadlines or events transpired during this brief period. Berger admitted that he was not concerned that there was fluid in the basement or in the tanks. He admitted that he knew before the closing that the oil had seeped into the concrete of the basement. He also testified that he was not concerned that the petroleum had seeped into the concrete, because the plaintiff intended to remove the concrete. His concern, he testified, was that for years the oil had been seeping into the soil. His complaint was not that, the soil required remediation — Heynen Teale's report and Apex's testing disclosed that — but that the remediation of the soil was beyond what was expected. Unfortunately for the plaintiff the testing conducted prior to the closing failed to reveal this. However, there was no evidence that the defendant made any representation concerning the soil around the Area M basement. Finally, there is no evidence that either Heynen Teale or Apex, who performed the ESAs, did the actual testing, nor did their and had employees or former employees testify at trial, that they relied on the McDermott statement in determining what testing to do or not do. On this record, no reasonable person could find that the misrepresentation of McDermott concerning the contents of the liquid in the Area M basement and whether he had ever used the tanks there caused the plaintiff's damages. See Visconti v. Pepper Partners Ltd. Partnership, 77 Conn.App. 675, 683-84, 825 A.2d 210 (2003) (plaintiff's "bare statement" that he relied on defendants' representation had "no probative value" in light of his other testimony and documentary evidence; summary judgment for defendants affirmed).
5ee testimony of David Lis of Apex, T. 9/7/04, pp. 71-74.
C. CT Page 3091
Although not explicitly pleaded in its complaint, the plaintiff also claimed that the defendant breached the contract by not emptying and removing ASTs on the property prior to the closing. Section 4 of the contract provided: " Possession and Condition of Premises — Unless otherwise provided for herein, full possession of the Premises, free and clear of all tenants, occupants and rights of possession, is to be delivered at the time of delivery of the deed, the Premises to be then in the same condition as they are now, reasonable wear, tear and normal use excepted. The premises shall be delivered broom clean with all furniture, fixtures, equipment and inventory removed with the exception of all automobile lifts which may be left in the buildings at no cost to the Sellers." McDermott admitted that it was his "obligation under the contract to clean and decontaminate the tanks everywhere on the property." (T. 9/2/04, p. 111; testimony of David McDermott). In addition, there was evidence from which the jury could find that the defendants did not remove several tanks from the property and that these items, if not fixtures under section 4, constituted "inventory."
However, § 16 of the contract unambiguously provided: " ACCEPTANCE OF DEED AND THE BILL OF SALE — THE ACCEPTANCE OF A DEED AND THE BILL OF SALE BY BUYER SHALL BE DEEMED TO BE A FULL PERFORMANCE AND DISCHARGE OF EVERY AGREEMENT AND OBLIGATION ON THE PART OF THE SELLERS TO BE PERFORMED PURSUANT TO THE PROVISIONS OF THIS AGREEMENT, EXCEPT THOSE STATED TO SURVIVE THE CLOSING." (Uppercase in original.)
Notably, the plaintiff was well aware that the defendants had not drained or removed the tanks prior to the date of the closing. Its lawyer had so advised the defendants' lawyer. (Exhibit J; T. 9/7/04, pp. 11-13).
Section 4 was not a provision that was stated to survive the closing. Accordingly, the defendants are deemed to have fully performed their obligations under § 4 and are discharged from any obligation thereunder.
II
The second, third, fourth, eighth and ninth counts all allege misrepresentation by the defendants with various degrees of culpability. These counts are based on essentially the same allegations as the first count.
"Proving a false representation is, however, only one part of a claim of actionable misrepresentations. To prevail, the plaintiff also was required to show that he reasonably relied on that misrepresentation. One who, in the course of his business, profession or employment supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Emphasis in original; internal quotation marks omitted.) Visconti v. Pepper Partners Ltd. Partnership, supra, 77 Conn.App. 682.
For the same reasons that no reasonable person could find a causal connection between any breach of contract by the defendants and any losses claimed by the plaintiff, no person could find that the plaintiff relied on any representation of the defendants.
Second, no reasonable person could find any justifiable reliance by the plaintiff. The plaintiff had the benefit of two companies with expertise in environmental assessment, Heynen Teale and Apex. In addition, Berger was an expert in real estate development and had developed an adjacent property formerly used for automotive purposes. On the other hand, there was no evidence that McDermott possessed any particular education or any expertise whatsoever. He was not shown to be anything other than a well-groomed car salesman. While the reasonableness of reliance on a misrepresentation is ordinarily a question of fact, on this record no reasonable person could find that any reliance by the plaintiff was reasonable or justified.
Finally, as a matter of law, the plaintiff had contracted away its right to rely on any representation of the defendants as to the environmental condition of the property. The plaintiff had contracted to purchase the property "as is." It agreed that, as of the time the contract was entered into, it was relying on its own investigation of the premises and not on any representation of the defendants, that it had the opportunity to examine and review any and all information necessary to complete its assessment of the property and was satisfied with the results of that examination. Going forward the second amendment to the contract provided that the plaintiff had thirty days to complete its environmental site assessment after which the plaintiff would hold the defendants harmless and indemnify the defendants for all claims based on the environmental condition of the property. The contract further provided that the plaintiff's acceptance of the deed and bill of sale would be deemed to be full performance by the defendant and a discharge of the defendants of every agreement and obligation they had under the contract.
"It is established well beyond the need for citation that parties are free to contract for whatever terms on which they may agree. This freedom includes the right to contract for the assumption of known or unknown hazards and risks that may arise as a consequence of the execution of the contract. Accordingly, in private disputes, a court must enforce the contract as drafted by the parties and may not relieve a contracting party from anticipated or actual difficulties undertaken pursuant to the contract, unless the contract is voidable on grounds such as mistake, fraud or unconscionability . . .
"Just as the parties to a contract for the sale of goods are free to disclaim warranties; see General Statutes § 42a-2-316; the parties to a contract for the sale of real property are free to disclaim responsibility for known environmental risks. Indeed, the agreed upon contract price for the property typically reflects an allocation of the known risks that attend the ownership of property." Holly Hill Holdings v. Lowman, 226 Conn. 748, 755-56, 628 A.2d 1298 (1993) (holding that generally, a clause for the-sale of property "as is" is enforceable). As in Holly Hill Holdings, that the plaintiff was "mistaken, not about the existence of a potential environmental hazard, but about its extent"; id. 757; is of no avail in light of contract provisions that shifted the burden of such a mistake to the plaintiff. Id. Moreover, here, as in Holly Hill Holdings, those contract provisions were not mere boilerplate but were negotiated into the contract. Id., 756.
Visconti v. Pepper Partners Ltd. Partnership, supra, 77 Conn.App. 675, provides a useful analogy to this case. In Visconti, the plaintiff purchased vacant land that he knew had once been used as a gasoline station. Prior to the execution of the contract of sale, Ernest Wiehl, one of the defendant partners, told the plaintiff that underground tanks had been removed from the property and that the authorities were satisfied. The plaintiff assumed that the soil was contaminated. The defendants never told him that the soil was clean or that he should not have the soil tested. The contract provided that the plaintiff could, at his own expense, make such inspections of the property, including a Phase I ESA, as he deemed appropriate. The contract also informed the plaintiff that the property might be a hazardous waste "establishment" requiring remediation.
The plaintiff declined to have an ESA performed and signed Transfer Act forms that were prepared by the defendants. See General Statutes § 22a-134 et seq. The plaintiff purchased the property and subsequently brought a twelve-count complaint against the defendants that included counts alleging fraud, fraudulent nondisclosure negligent misrepresentation and breach of duty to remediate. The trial court granted the defendants' motion for summary judgment on the fraud count because the plaintiff had not relied on the Wiehl's representation and granted summary judgment on the fraudulent nondisclosure count because, in the contract, the plaintiff had assumed the risk that the property was contaminated. Id., 681.
The Appellate Court agreed. With respect to the fraud count, the court held that "[t]o prevail . . . the plaintiff must have alleged sufficient facts to demonstrate his reliance on the statement made by Ernest Wiehl. He has failed to do so. In his deposition, he acknowledged his independent knowledge of continued soil contamination, derived from his observation of differences in the color of the soil at the site of the removal of the storage tanks. In the contract of sale, he acknowledged that the property might be an environmental `establishment' and undertook to investigate and disclose the environmental condition of the property. In the mortgage, he again acknowledged that he had assumed the responsibility for remediating any environmental hazards that the property might contain. In light of these specific assertions of assumption of risk, the trial court properly found no probative value in the plaintiff's bare statements that he had relied on Wiehl's representation." Id., 683-84.
With respect to the fraudulent nondisclosure count, the court stated: "The plaintiff maintains that the defendants' failure to comply with the Transfer Act in 1989 was, in effect, an assertion that the property contained nothing that would give rise to any environmental concern. Had the defendants made the proper filings, they would have had to undertake the required environmental cleanup. Instead, he argues, having failed to comply with the Transfer Act, they fraudulently transferred contaminated property to him.
"The plaintiff does not dispute the fact that, in the contract of sale of the property to him, he expressly undertook to take whatever steps for remediation the property might require. He recognizes that in Holly Hill Holdings v. Lowman, 226 Conn. 748, 628 A.2d 1298 (1993), our Supreme Court held that contractual provisions may preclude `a private right of action . . . based on a transferors noncompliance with pretransfer disclosure regulations.' Id., 750. In that case, as in this one, the transferee `had actual knowledge of the existing underground gasoline storage tanks . . . that were associated with the service station.' Id., 751. Further, as in this case, the transferor had not given the transferee or the department of environmental protection the written notification contemplated by the applicable environmental statute . . .
"The plaintiff would have us distinguish this case from Holly Hill Holdings on the ground that he was unaware of the environmental hazards posed by the property. That argument is untenable. His deposition discloses that he knew the soil near the removed tanks to be contaminated even after removal of the tanks themselves.
"The unassailable fact is that, in the contract of sale, the plaintiff assumed the risk that the property might have environmental problems when he purchased it. He had the opportunity to investigate possible environmental hazards before the transfer of the property but chose not to make the relevant inquiries. We agree with the trial court that, under these circumstances, the defendants had no duty to make any further disclosures to the plaintiff." (Emphasis in original.) Visconti v. Pepper Partners Ltd. Partnership, supra, 77 Conn.App. 684-86.
Here, as in Visconti, the contract itself reflects the potential for environmental contamination. In addition, here the contract allowed the plaintiff a period of time to perform an ESA. The plaintiff's own evidence is that it had an ESA performed, by Heynen Teale and additional testing by Apex and had actual knowledge of the contents of the Area M basement, the contamination of the concrete and the soil by Heynen Teale shortly after McDermott's representations and nine months before the closing. Here, as in Visconti, the plaintiff's assertion that it relied on McDermott's representations is entitled to no probative value. Unlike Visconti, however, here the plaintiff contractually undertook to hold the defendants harmless for any environmental contamination.
In light of the provisions of the contract, no reasonable person could find that the plaintiff reasonably relied on the defendants representations or that the plaintiff may prevail on the misrepresentation counts, counts two, thee, four, eight and nine.
III
The fifth count alleges a claim under the Connecticut Unfair Trade Practices Act (CUTPA).
First, no CUTPA violation can arise out of the DEP inspections and correspondence, all of which preceded the execution of the contract, because the contract provided that the plaintiff was purchasing the property "as is," and that it was not relying on any representation of the defendants. Moreover, the contract did not require the defendant to disclose DEP investigations or correspondence. "Where a plaintiff alleges that a defendant's passive conduct violates CUTPA common sense dictates that a court should inquire whether the defendant was under any obligation to do what it refrained from doing." (Emphasis in original.) Downes-Patterson Corp. v. First National Supermarkets, Inc., 64 Conn.App. 417, 427, 780 A.2d 967, cert. granted, on other grounds, 258 Conn. 917, 782 A.2d 1242 (2001) (appeal dismissed June 25, 2002). "It is axiomatic that a party is entitled to rely upon its written contract as the final integration of its rights and duties," Zullo v. Smith, supra, 179 Conn. 601. As discussed supra, in Part IA, the defendants did not have any obligation to disclose the DEP correspondence to the plaintiff.
Second, "in order to prevail in a CUTPA action, a plaintiff must establish both that the defendant has engaged in a prohibited act and that, `as a result of' this act, the plaintiff suffered an injury. The language `as a result of' requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff." (Emphasis in original.) Abrahams v. Young Rubicam, Inc., 240 Conn. 300, 306, 692 A.2d 709 (1997). For the reasons discussed in Part I B, no reasonable person would find that any representation of the defendant was a proximate cause of any harm to the plaintiff.
IV CT Page 3097
The sixth count is entitled "common law indemnification" A claim of common law indemnification seeks to "impose an implied obligation of indemnity on a tortfeasor whose active negligence is primarily responsible for a plaintiff's injuries, thus superseding the indemnitees passive, negligence . . . To assert a claim for indemnification . . . an out-of-pocket [plaintiff] must show that: (1) the party against whom the indemnification is sought was negligent; (2) that party's active negligence, rather than the [plaintiff's] own passive negligence, was the direct, immediate cause of the . . . resulting injuries . . .; (3) the other party was in control of the situation to the exclusion of the [plaintiff] seeking reimbursement; and (4) the [plaintiff] did not know of the other party's negligence, had no reason to anticipate it, and reasonably would rely on the other party not to be negligent." (Emphasis in original.) Smith v. New Haven, 258 Conn. 56, 66, 779 A.2d 104 (2001).
In the sixth count, the plaintiff alleges: "The Plaintiffs, as a result of the Defendants various breaches of the Purchase and Sale Agreement and their failure to abide by certain Connecticut environmental protection laws along with their concealment and misrepresentation of said failures have caused the Plaintiffs to pay or to become obligated to pay expenses charges, fines, legal fees and consultant and expert costs which are, were or should be the responsibility and obligation of the Defendants."
The "as a result of" language in this count requires a showing that the defendants' wrongful acts were a proximate cause of the plaintiff's damages. Abrahams v. Young Rubicam, Inc., supra, 240 Conn. 300. As discussed supra, they were not. Therefore, the plaintiff failed to prove the second element of common law indemnification.
Nor did the plaintiff prove that the defendants were in control of the situation to the exclusion of the plaintiff. The contract expressly provided that the plaintiff was purchasing the property "as is," and clearly contemplated that after the execution of the contract the plaintiff was required to rely on its own ESA. The plaintiff, not the defendants, was "in control" of the situation. Indeed, it is baffling how the plaintiff can claim common law indemnification from the defendants for an environmental condition which it has contractually agreed to investigate and for which it has agreed to indemnify the defendants.
Finally, with respect to the Area M basement, there was no evidence that the plaintiff did not know of the defendants' negligence, had no reason to anticipate it, and reasonably could rely on the defendants not to be negligent. The only evidence is that the plaintiff did know, long before the closing, that the liquid in the basement contained oil as well as water and that the tanks had indeed been used. The plaintiff filed to prove the elements of common-law indemnification.
V
Count seven of the amended complaint seeks indemnification pursuant to General Statutes § 22a-452.
General Statutes § 22a-452 provides in relevant part: "(a) Any person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquid; or solid, liquid or gaseous products or hazardous wastes resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm or corporation for the reasonable costs amended for such containment, removal, or mitigation, if such oil or petroleum or chemical liquids or solid liquid or gaseous products or hazardous wastes pollution or contamination or other emergency resulted from the negligence or other actions of such person, firm or corporation. When such pollution or contamination or emergency results from the joint negligence or further actions of two or more persons, firms or corporations, each shall be liable to the others for a pro rata share of the costs of containing, and removing or otherwise mitigating the effects of the same and for all damage caused thereby . . ."
In light of the clear provisions of the parties' contract, the plaintiff's claim under General Statutes § 22a-452 is barred by Visconti v. Pepper Partners Ltd. Partnership, supra. 77 Conn.App. 675.
In sum, thy reality here is that nothing the defendants did or failed to do after contracting with the plaintiff with the exception of their failure to empty and remove certain ASTs, had anything to do with the plaintiff's damages. The plaintiff knew it was purchasing property that had long been used for automotive uses and that the soil would reflect this, long usage. Moreover, the plaintiff knew nine months before the closing that the basement in Area M contained 10,000 gallons of oil and water, that the oil had soaked into the concrete and seeped into the soil. The testing performed by its environmental experts, Heynen Teale Engineers and Apex Environmental, Inc., prior to the closing unfortunately failed to reflect the extent of the contamination. In any event, the plaintiff had contracted to assume the risk of any such contamination. For three years it did so, not even communicating its disappointment to the defendants until DEP regulators caught up with the problem three years later. Only when DEP sought to add its own inimitable ilk of insult to the plaintiff's injury did the plaintiff look for ways to pass off its liability. Neither the facts, the contract nor the law, however, afford it any grounds to do so.
The plaintiff's motion to set aside the directed verdict is denied.
By the Court
Bruce L. Levin Judge of the Superior Court