Opinion
DOCKET NO. A-5842-13T2
01-15-2016
USAA CASUALTY INSURANCE COMPANY, a/s/o KEVIN AND MAUREEN BAXTER, Plaintiff-Appellant, v. HARRY J. SELNOW and LINDA A. SELNOW, Defendants-Respondents.
Marshall, Dennehey, Warner, Coleman & Goggin, P.C., attorneys for appellant (Kevin T. Bright, on the briefs). Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, attorneys for respondents (Robert C. Neff, Jr., of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-677-12. Marshall, Dennehey, Warner, Coleman & Goggin, P.C., attorneys for appellant (Kevin T. Bright, on the briefs). Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, attorneys for respondents (Robert C. Neff, Jr., of counsel and on the brief). PER CURIAM
Plaintiff USAA Casualty Insurance Company, as subrogee of its insureds, Kevin and Maureen Baxter, appeals from the Law Division's order granting summary judgment in favor of defendants Harry J. Selnow and Linda Selnow, and dismissing plaintiff's complaint with prejudice. In its complaint, plaintiff alleged it was entitled to recover approximately six hundred thousand dollars that it spent to remediate the damage caused to the Baxters' residential property, which they had purchased from defendants, by a leaking oil storage tank. According to plaintiff, the leak began while defendants owned the property. The Law Division granted summary judgment after determining there was insufficient evidence in the record to support plaintiff's contention as to when the leak began.
On appeal, plaintiff argues the evidence established a legitimate question as to a material fact — "whether the leak began during defendants' ownership of the property" — that should have prevented summary judgment from being awarded. Plaintiff also contends that defendants' argument on summary judgment concerning "the probability that the [leak] began during plaintiff's insureds' period of ownership [was] not properly supported by expert testimony." Defendants disagree and argue the court properly rejected the expert report plaintiff submitted for the first time in opposition to summary judgment as proof the leak began during defendants' ownership, and correctly entered summary judgment in their favor.
We have considered the parties' arguments in the light of our review of the record and applicable legal principles. We affirm.
We review an order granting summary judgment de novo, applying the same standard as the trial court, which requires denial of summary judgment when "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also Townsend v. Pierre, 221 N.J. 36, 59 (2015) (quoting Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014)).
The material facts, drawn from the competent evidential materials, and seen "in a light most favorable to plaintiff, consistent with the summary judgment standard," Peguero v. Tau Kappa Epsilon Local Chapter, 4 39 N.J. Super. 77, 87 (App. Div. 2015), were generally undisputed, and can be summarized as follows.
Defendants owned a home in Parsippany from 1977 until 1992, when they sold it to the Baxters. The house was heated by oil until approximately 2010, when the Baxters decided to convert to gas heat. During the ensuing removal of the underground storage tank from the property, it was discovered that the tank had leaked oil into the surrounding soil. As a result, the Baxters made a claim for coverage under their policy with plaintiff, and plaintiff accepted responsibility for the cost of remediation.
In 2012, plaintiff filed its complaint against defendants, alleging defendants were liable for the remediation costs pursuant to New Jersey's Spill Compensation and Control Act (Spill Act), N.J.S.A. 58:10-23.11 to -23.11z. After completion of discovery, defendants moved for summary judgment, essentially arguing that plaintiff's expert report failed to establish that it was more likely than not that the leak began during defendants' ownership of the property. Defendants argued that, based on the record evidence, it was more likely the leak began after the Baxters took title in 1992.
As explained by the Court in Morristown Assocs. v. Grant Oil Co., 220 N.J. 360 (2015):
[T]he Spill Act is remedial legislation designed to cast a wide net over those responsible for hazardous substances and their discharge on the land and waters of this state. See Pitney Bowes[, Inc. v. Baker Indus., Inc.], 277 N.J. Super. [484,] 490, [(1994)] (noting that Spill Act's "broad imposition of strict liability excepts no one actually responsible for that environmental contamination"); see generally State, Dep't of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 493 (1983) ("Those who poison the land must pay for its cure.").
[Id. at 383.]
Plaintiff responded by arguing that defendants' contentions were unsupported by any expert report opining as to the probability that the leak occurred during defendants' ownership, and that defendants' factual assertions were incorrect. According to plaintiff, its expert report, prepared by Worldwide Geosciences, Inc. (Worldwide) in 2011, established that the leak occurred during an "exposure time of sixteen to twenty years, [meaning] the leak began sometime between March of 1991 and March 1995."
Plaintiff also submitted a certification from a previously unidentified expert, engineer John Rhodes. According to plaintiff, Rhodes explained that defendants' unsupported opinion as to when the leak began was based on an incorrect interpretation of the Worldwide report, and that a correct analysis leads to the conclusion, "within a reasonable degree of scientific certainty," that the leak began after the Baxters purchased the home in 1992. He based this previously-undisclosed opinion on his view that, had Worldwide analyzed soil samples taken from "a point further away from the tank," "older fuel oil would likely be encountered up to approximately 23 feet from the tank, approximately five feet further than" the sample relied upon by Worldwide. He opined that a sample from that further point, if taken, "would indicate a release date of March[] 1991, about 1 1/2 years before" the Baxters purchased the home.
During the ensuing oral argument, plaintiff's counsel argued that Rhodes and a representative from Worldwide could testify at trial regarding the new opinion offered by Rhodes because the information he relied upon was contained in Worldwide's report. In response, defendants' counsel noted that, if that were true, Worldwide could have provided that new opinion in its opposition rather than plaintiff "find[ing] another expert in order to try to close [the] gap" as to when the leak occurred.
After considering the parties' submissions and oral arguments on June 6, 2014, the court concluded that, without an expert opinion establishing a date within the period defendants owned the home, any estimated range before or after the date the Baxters purchased the home was insufficient to avoid entry of summary judgment because there was "a total failure of the expert . . . to express . . . that this spill existed at the time of the sale." The judge rejected plaintiff's requests to supplement the Worldwide report with Rhodes's opinion because "the time for discovery . . . [was] over" and Worldwide had never opined that the leak began prior to defendants' sale of the home.
The court entered its order granting summary judgment to defendants. This appeal followed.
We affirm essentially for the reasons stated by the motion judge. We add only the following comments.
It is undisputed that Worldwide's report did not establish that the leak occurred during the period defendants owned the property, but provided merely a range when the leak could have occurred — a range that included only the final year and a half of defendants' ownership, with the remaining years being during the Baxters' period of ownership.
Plaintiff's attempt to correct Worldwide's report through Rhodes's speculation as to what other soil samples may have shown had they been taken did not provide sufficient evidence to prevent the entry of summary judgment. First, Rhodes's opinion was never provided during discovery and plaintiff never sought to extend discovery or amend its previously served report within the time periods provided in the court's rules. See R. 4:17-7. Plaintiff's argument that Rhodes's opinion was only necessitated by the content of defendants' summary judgment motion is without merit, as plaintiff was obligated to establish the leak occurred during defendants' ownership of the property in order to maintain their action to recover the cost of remediation. See Ventron, supra, 94 N.J. at 502 (stating "[o]wnership or control over the property at the time of the discharge . . . will suffice" to establish liability).
Second, in determining the sufficiency of expert evidence offered in opposition to summary judgment, a motion judge should consider whether the expert opinion upon which a party relies is a "net opinion" because that determination delineates the weight the report is to be afforded. Polzo v. Cnty. of Essex, 196 N.J. 569, 584 n.5 (2008). "[A]n expert's opinion is rendered a 'net opinion' if it is based on unfounded facts," and "cannot provide the factual basis for denying summary judgment." Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 72 (App. Div. 2004), certif. denied, 183 N.J. 213 (2005).
In Townsend, the Court explained the "net opinion" rule, stating:
The net opinion rule is a corollary of [ N. J.R.E. 703] . . . which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data. The rule requires that an expert give the why and wherefore that supports the opinion, rather than a mere conclusion.--------
. . . .
The net opinion rule, however, mandates that experts be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable. An expert's conclusion is excluded if it is based merely on unfounded speculation and unquantified possibilities. . . . . By definition, unsubstantiated expert testimony cannot provide to the factfinder the benefit that N.J.R.E. 702 envisions: a qualified specialist's reliable analysis of an issue beyond the ken of the average juror. Given the weight that a jury may accord to expert testimony, a trial court must ensure that an expert is not permitted to express speculative opinions or personal views that are unfounded in the record.
[Townsend, supra, 221 N.J. at 53-55 (first and second alterations in original) (citations omitted).]
Applying this standard here, we conclude that Rhodes's opinion "lack[ed] a factual foundation to connect the asserted cause and effect," rendering it a "net opinion," Smith v. Estate of Kelly, 343 N.J. Super. 480, 498 (App. Div. 2001), insufficient to defeat summary judgment, see Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238, 244 (App. Div. 2013) ("A net opinion is insufficient to satisfy a plaintiff's burden on a motion for summary judgment."), because the sample he relied upon to "date" the leak was never actually taken by him or anyone else, making his conclusion clearly speculative, especially since there was no proof that Worldwide concurred with Rhodes in his evaluation of its report.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION