Opinion
No. LLI CV 07 5002427S
August 20, 2008
MEMORANDUM OF DECISION RE: MOTION TO STRIKE (#103)
Before the court is a motion to strike (#103) filed by the defendant, Laidlaw Transit, Inc., seeking to strike the first, second and fifth counts of the plaintiff's complaint. For the reasons that follow, the motion must be denied as to the first and fifth counts and granted as to the second count.
The plaintiff, Michael J. Hamm III Property Account, LLC, filed an amended complaint dated September 12, 2007, alleging that it entered into an agreement with the defendant for the lease of a commercial property in Torrington, Connecticut. The complaint further alleges that the defendant is in the business of providing school bus transportation services and leasing commercial properties for the storage and maintenance of its buses. It was for these purposes that the defendant leased the property, and the plaintiff alleges that in the course of storing, repairing and maintaining its fleet of buses, the defendant caused spills and releases of hazardous substances and petroleum, which contaminated the soil, groundwater, surface water and storm sewers on the property. The plaintiff alleges that as a result of the defendant's maintenance practices, the plaintiff has incurred expenses to remediate the property, and anticipates incurring additional expenses related to remediation.
The plaintiff has filed a six-count complaint, alleging 1) negligence per se 2) violation of General Statutes § 22a-452; 3) breach of contract; 4) unjust enrichment; 5) violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA); and 6) trespass. The defendant's motion to strike challenges the first, second and fifth counts which allege negligence per se, violation of General Statutes § 22a-452 and violation of CUTPA, respectively.
Standard
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [complaint] . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC. v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
Negligence Per Se
In support of its counts alleging negligence per se, the plaintiff cites to the Connecticut Water Pollution Control Act (WPCA), General Statutes § 22a-422 et seq., specifically §§ 22a-422, 22a-427, 22a-430, and 22a-452, claiming that these provisions provide a standard by which to measure the defendant's conduct. The defendant seeks to strike these counts, arguing that they are legally insufficient because the WPCA neither supports a private cause of action nor establishes standards of care the violation of which constitutes negligence per se.
General Statutes § 22a-422 provides: "It is found and declared that the pollution of the waters of the state is inimical to the public health, safety and welfare of the inhabitants of the state, is a public nuisance and is harmful to wildlife, fish and aquatic life and impairs domestic, agricultural, industrial, recreational and other legitimate beneficial uses of water, and that the use of public funds and the granting of tax exemptions for the purpose of controlling and eliminating such pollution is a public use and purpose for which public moneys may be expended and tax exemptions granted, and the necessity and public interest for the enactment of this chapter and the elimination of pollution is hereby declared as a matter of legislative determination."
General Statutes § 22a-427 provides: "No person or municipality shall cause pollution of any of the waters of the state or maintain a discharge of any treated or untreated wastes in violation of any provision of this chapter."
General Statutes § 22a-430 provides, in relevant part: "No person or municipality shall initiate, create, originate or maintain any discharge of water, substance or material into the waters of the state without a permit for such discharge . . ."
The Appellate Courts have not ruled on whether a claim for negligence per se may be predicated on provisions of the WPCA, and as both the plaintiff and the defendant acknowledge in their memoranda of law, there is a significant split of authority in the Superior Courts. Those courts that decline to recognize a cause of action generally reason that the WPCA is a broad statutory scheme and does not provide standards sufficient to support a claim for negligence per se. See Bourbeau v. Alpha Q., Inc., Superior Court, judicial district of Hartford, Docket No. CV 054015076 (Jun. 15, 2007, Miller, J.); Cerretani v. Levco Tech, Inc., Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 03 0193735 (April 22, 2004, Adams, J.); Augelli v. Matos, Superior Court, judicial district of Waterbury, CV 01 0163496 (July 29, 2003, Dubay, J.) ( 35 Conn. L. Rptr. 228); Connecticut Water Co. v. Thomaston, Superior Court, judicial district of Hartford, Docket No. CV 94 0535590 (March 4, 1996, Corradino, J.) ( 16 Conn. L. Rptr. 213, 213-15) (striking a negligence per se claim under General Statutes §§ 22a-427, 22a-430 and 22a-450); Chromium Process Co. v. Yankee Gas Service Co., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 92 038532 (Jun. 23, 1995, Comerford, J.) (granting summary judgment on a count alleging negligence per se under General Statutes §§ 22a-422, 22a-427, 22a-430 and 22a-450). The basis of this reasoning is the conclusion by some Superior Courts that the WPCA does not provide a private cause of action. Oink, Inc. v. Ann Street Limited Partnership, Superior Court, judicial district of Hartford, Docket No. CV 93 0532065 (October 18, 1994, Corradino, J.) ( 12 Conn. L. Rptr. 547); Michael v. Kenyon Oil Company, Inc., 4 C.S.C.R. 337 (March 22, 1989, O'Connor, J.). In Connecticut Water Co. v. Thomaston, supra, 16 Conn. L. Rptr. 213, the court held that a claim for negligence per se could not be predicated on the WPCA. The court relied upon Superior Court decisions that found that no private action could be maintained under the WPCA. Acknowledging that the inquiry as to whether the statute provided a private cause of action was analytically distinct from the inquiry as to whether the statute could serve as a basis for a claim of negligence per se, the court nonetheless reasoned that "to permit a negligence per se rule adopting administrative regulations is tantamount to saying there is a private cause of action under the statute." Id., 214,
The courts recognizing a cause of action for negligence per se based upon the WPCA rely upon the test laid out in Gore v. People's Savings Bank, 235 Conn. 360, 381-82, 665 A.2d 1341 (1995). In Gore, the Supreme Court gave negligence per se treatment to statutory requirements regarding the presence of lead paint in apartments. "[U]nder general principles of tort law, a requirement imposed by statute may establish the applicable standard of care to be applied in a particular action. It is well established that [i]n order to establish liability as a result of a statutory violation, a plaintiff must satisfy two conditions. First, the plaintiff must be within the class of persons protected by the statute . . . Second, the injury must be of the type which the statute was intended to prevent." (Citations omitted; internal quotation marks omitted.) Gore v. People's Savings Bank, supra, 235 Conn. 375-76. "Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct. To establish negligence, the jury in a negligence per se case need not decide whether the defendant acted as an ordinarily prudent person would have acted under the circumstances. They merely decide whether the relevant statute or regulation has been violated. If it has, the defendant was negligent as a matter of law . . ." (Citation omitted; internal quotation marks omitted.) Id., 376. Noting that "[t]he majority of cases concluding that a statutory provision implicates the doctrine of negligence per se have arisen in the context of motor vehicle regulation," the court held that nevertheless, "[s]uch a history . . . should not be read to suggest that the negligence per se doctrine is relevant only in the context of statutes pertaining to motor vehicles." Id. The court pointed out that in Panaroni v. Johnson, 158 Conn. 92, 100-02, 256 A.2d 246 (1969), it "concluded that the trial court had not improperly charged the jury that certain provisions of the New Haven housing code imposed an affirmative duty on the landlord, beyond the requirements of the common law, the violation of which gave rise to civil liability." Id.
Courts recognizing a cause of action have relied upon the above language in determining that a plaintiff can state a claim for negligence per se under the standards in the WPCA. See Putnam v. County Environmental Services, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 166445 (July 12, 2000, D'Andrea, J.) ( 27 Conn. L. Rptr. 684) (holding that plaintiffs properly pleaded a sustainable negligence per se cause of action pursuant to § 22a-452.); Accashian v. Danbury, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 97 0147228 (January 6, 1999, Hodgson, J.) ( 23 Conn. L. Rptr. 648); Walker v. Barrett, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0169673 (November 8, 1999, D'Andrea, J.) ( 25 Conn. L. Rptr. 665); Goodrich v. Jennings, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 150074 (May 22, 1997, Mintz, J.) ( 19 Conn. L. Rptr. 544); Blackburn v. Miller-Stephenson Chemical Co., Superior Court, judicial district of Danbury, Docket No. 314089 (January 12, 1995, Stodolink, J.) ( 13 Conn. L. Rptr. 364); see also Sundaram v. Kenyon Oil Co., Superior Court, judicial district of Danbury, Docket No. CV 04 0352014 (November 4, 2004, Nadeau, J.) [ 38 Conn. L. Rptr. 204]; French Putnam, LLC v. County Environmental Systems, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV980166445 (July 21, 2000, D'Andrea, J.) ( 27 Conn. L. Rptr. 684).
In Goodrich v. Jennings, supra, 19 Conn. L. Rptr. 544-45, the court denied a motion to strike a negligence per se action based on General Statutes §§ 22a-427, 22a-430 and 22a-450 of the WPCA on the basis that the plaintiff was within the class of persons protected by these statutes and sustained the type of injury these statutes were intended to prevent. The court reasoned that "[t]he doctrine of negligence per se serves to superimpose a legislatively prescribed standard of care on the general standard of care." (Internal quotation marks omitted.) Goodrich v. Jennings, supra, 19 Conn.L.Rptr. 545. The court emphasized that "General Statutes § 22a-422 states the policy of the WPCA. This policy mentions `the inhabitants of the state.' General Statutes § 22a-422. As inhabitants of the state of Connecticut, the plaintiffs are within the class of persons protected by this statute. The injury incurred by the plaintiffs is of the type which the WPCA was intended to prevent. General Statutes § 22a-422 states that `the elimination of pollution is hereby declared as a matter of legislative determination.' Furthermore, `the pollution of the waters of the state is inimical to the public health, safety and welfare of the inhabitants of the state, is a public nuisance . . . and impairs domestic, agricultural, industrial, recreational and other legitimate beneficial uses of water.'" Id., 545. "If a plaintiff alleges that a statute, ordinance or regulation has been violated, thereby relying on negligence per se, and also alleges that there is a causal connection between such negligence and the injuries sustained, a cause of action has been stated." Commercial Union Ins. v. Frank Perrotti Sons, 20 Conn.App. 253, 258, 566 A.2d 431 (1989).
The court is of the opinion that those cases allowing a cause of action are the better reasoned, and accordingly denies the defendant's motion to strike the first and second counts on these grounds.
Remediation Costs Under § 22a-452
The defendant next seeks to strike the second count on the ground that the plaintiff is claiming reimbursement for remediation costs it has not yet incurred. The amended complaint reads, in relevant part: "[the plaintiff] is entitled to reimbursement from [the defendant] for costs it has incurred and will incur to contain, remove, and otherwise mitigate the effects of oil, petroleum, chemical liquids and solids and hazardous wastes and substances released on the property." (Emphasis added.) The defendant argues that § 22a-452 only allows recovery for remediation costs already incurred. The plaintiff counters with two arguments. First, the plaintiff argues that it "has not alleged entitlement for reimbursement of expenditures it has not incurred. Rather, [the plaintiff] has merely alleged that under § 22a-452 it is (1) entitled to reimbursement of costs it has already incurred to remediate the alleged contamination and (2) will be entitled to reimbursment of similar costs once [the plaintiff] incurs them." Second, the plaintiff argues that the defendant is seeking to strike only that portion of the second count alleging entitlement to reimbursement for costs that the plaintiff "will incur" and as such the motion is procedurally deficient as it seeks to strike only a portion of the count.
Taking the plaintiff's second argument first, the plaintiff's characterization of the defendant's motion to strike is not entirely accurate. The motion to strike seeks to strike the second count "insofar as it invokes § 22a-452 to recover . . . costs not yet incurred." This does not limit the scope of the motion to strike to the words "will incur," and a review of the defendant's memorandum of law clarifies that the motion to strike is intended to address the entire count. Therefore the motion to strike the second count is not procedurally deficient.
The memorandum in support of the defendant's motion to strike states variously: "[T]he court should . . . strike the second count because it seeks reimbursement for costs not yet incurred"; "[T]he court should strike the second count."
The defendant argues that § 22a-452 only allows recovery for remediation costs already incurred. General Statutes § 22a-452(a) provides, in relevant part: "Any person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids 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 expended 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."
In ATC Partnership v. Coats North America Consolidated, 284 Conn. 537, 935 A.2d 115 (2007), the plaintiff brought a claim under § 22a-452, claiming that because the trial court in a related condemnation proceeding reduced the value of the plaintiff's property by an amount equal to the cost for environmental remediation of the property, the plaintiff should be reimbursed for that amount pursuant to § 22a-452. The trial court granted the defendant's motion for summary judgment, finding that the plaintiff had taken no action to remediate the land and was therefore not entitled to reimbursement. On appeal, the Supreme Court upheld the trial court's decision, holding that "[t]he plain language of this modifying clause necessarily limits those persons or entities that may recover under the statute. In other words, § 22a-452(a) authorizes only those persons or entities that have taken action to remediate contaminated land to obtain reimbursement for "the reasonable costs expended" for the remediation. Because "contains," "removes," and "mitigates" are all verbs that indicate action on the part of the entity attempting to recover reimbursement, such action is a prerequisite for success in an action brought under § 22a-452(a)." ATC Partnership v. Coats North America Consolidated, supra, 284 Conn. 546. The court further held that "in order for a plaintiff to recover under § 22a-452(a), the plaintiff must establish that it took action in specific ways to effectuate the remediation of the contaminated land and that it expended costs to do so." Id. "We are not persuaded by the plaintiff's argument that, under our interpretation of the statute in Knight v. F.L. Roberts Co., 241 Conn. 466, 696 A.2d 1249 (1997), the mere earmarking of a sum of money as a cost of remediation — without any further action — is enough to satisfy the requirements of § 22a-452(a), and, thus, to give rise to a cause of action under that statute." Id., 547. Discussing its interpretation in Knight v. F. L. Roberts Co., 241 Conn. 466, 696 A.2d 1249 (1997), the court noted that implicit in that decision "was the idea that in order to prevail at trial, the plaintiff in Knight was required to establish that the settlement, or a portion thereof, was used to remediate the land." Id., 550.
"The clear purpose of [§ 22a-452] is to encourage parties to pay for remediation by providing them with an opportunity to recoup at least some of their remediation costs from others who are also found to be responsible for the contamination." Knight v. F. L. Roberts Co., supra, 241 Conn. 475. "In order for a plaintiff to be able to bring a claim under . . . § 22a-452, the remediation must have already taken place and the plaintiff must have expended funds for such remediation . . . The reason for this is that liability attaches not upon the act of polluting but upon the act of remediation of that pollution by another. (Citations omitted.) Durham Manufacturing Co. v. Merriam Manufacturing Co., 294 F.Sup.2d 251, 272 (D.Conn. 2003). Courts have consistently held that remediation of the property must have already taken place. See Albahary v. Bristol, 963 F.Sup. 150, 156 (D.Conn. 1997) ("by its terms, § 22a-452 allows reimbursement of remediation costs only if a plaintiffs has `contain[ed] or remove[d] or otherwise mitigate[d]' contamination"); Cadlerock Properties Joint Venture, L.P. v. Schilberg, Superior Court, judicial district of Tolland, Docket No. CV 99 69263 (July 17, 2001, Sferrazza, J.) ( 30 Conn. L. Rptr. 85) (holding that a cause of action under § 22a-452 does not accrue until remediation has taken place); Blackburn v. Miller-Stephenson Chemical Co., Superior Court, judicial district of Danbury, Docket No. CV 93 0314089 (September 11, 1998, Leheny, J.) (holding that plaintiff could not recoup costs of investigating the presence of contamination where remediation had not taken place under § 22a-452, because that statute requires that "remediation has already taken place").
Considering the above authority, the court concludes that § 22a-452 allows for recovery of remediation costs the plaintiff has already expended, not those that it will incur. Accordingly, the motion to strike the second count is granted, insofar as it alleges entitlement to remediation costs it has not expended.
CUTPA CT Page 13767
The defendant seeks to strike the fifth count, alleging a violation of CUTPA, on the ground that "the alleged contamination did not occur in [the defendant's] normal course of trade or commerce." The defendant claims that its primary business is providing school bus transportation services, and any maintenance of its school bus fleet is merely incidental to this primary business. The defendant further argues that "[i]n order for a lessor to sufficiently assert a CUTPA claim against a lessee, or vice versa, the defendant must be in the trade or commerce of leasing of property." In its objection to the motion to strike, the plaintiff counters that leasing commercial properties for the storage and maintenance of its buses is a "central and inseparable part" of the defendant's primary trade or commerce, and therefore the defendant's alleged contamination of the property resulted from conduct well within its primary trade or commerce.CUTPA provides that "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110b(a). The Connecticut Appellate Court has shed light on the interpretation of what constitutes "conduct of any trade or commerce." In McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 890 A.2d 140 (2006), the plaintiffs alleged that the defendants violated CUTPA in connection with their sale to plaintiffs of certain property that had been used for automobile sales and related services and was contaminated with oil. The defendants, whose primary trade or business was the sale of automobiles and related automotive services, not the sale of property, moved to strike the CUTPA claim on the grounds that CUTPA does not apply to a transaction which is not within the alleged offender's primary trade or business. The Appellate Court agreed and held that "a CUTPA violation may not be alleged for activities that are incidental to an entity's primary trade or commerce." Id., 523.
The plaintiff distinguishes McCann on the ground that, in that case, the defendants were in the business of selling automobiles and related services, and the plaintiff had never contended that the sale of the property had any relationship to the defendants' primary trade or business. Here, the plaintiff has alleged that "[the] [d]efendant is in the business of providing school bus transportation services . . . [the] [d]efendant's services include the regularly scheduled transportation of students to and from school, as well as the non-regularly scheduled transportation of students on field trips, to athletic events, or for other extracurricular activities"; that "[the] [d]efendant is also in the business of leasing commercial properties throughout the country, including the state of Connecticut, for the storage and maintenance of its buses at locations convenient for providing these transportation services"; and that "[the] [d]efendant's pattern and practice of leasing commercial property for the purpose of maintaining and repairing its fleet of buses and, causing contamination thereon, and then vacating is unfair, deceptive and unscrupulous." In contrast to McCann, which involved a single sale of real estate by a company in the business of selling automobiles and related services, the plaintiff here alleges that the defendant engaged in a pattern of leasing properties to maintain and repair its fleet of buses, contaminating those properties, and then vacating the properties. Read in the light most favorable to the plaintiff, these allegations are sufficient to state a claim that these activities are not incidental to the defendant's primary trade or commerce. Accordingly, the motion to strike count five is denied.
The defendant places much emphasis on the fact that the plaintiff pleaded "[the] [d]efendant is also in the business of leasing commercial properties throughout the country, including the state of Connecticut, for the storage and maintenance of its buses at locations convenient for providing these transportation services." (Emphasis added.) The defendant contends that this constitutes an admission on the part of the plaintiff that the defendant's practice of leasing commercial properties is for the purpose of providing transportation services. Read in the light most favorable to the plaintiff, however, the phrase "for providing these transportation services" simply provides the reason for the convenient locations described in the allegation. It does not necessarily relate to the thrust of the allegation, that "[the] [d]efendant is also in the business of leasing commercial properties throughout the country, including the state of Connecticut, for the storage and maintenance of its buses . . ." In other words, the complaint does not read that the defendant is also in the business of leasing commercial properties for the purpose of providing these transportation services, as the defendant's interpretation would render its meaning.
Conclusion
The motion to strike is denied as to the first and fifth counts of the complaint, and granted as to the second count in accordance with this decision.