On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-1372-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Messano and LeWinn.
The litigation that gives rise to this appeal involves environmental contamination of commercial real estate in Union (the Union property). This is an appeal and cross-appeal from an order of April 13, 2009 that resolves all claims that were not settled by plaintiffs and defendant Honeywell Industries, Inc. The order was entered on cross-motions for summary judgment and a motion by plaintiffs to add additional counts to their complaint. We affirm, substantially for the reasons stated by Judge Anzaldi in his oral decisions of March 6 and 13, 2009, as supplemented herein.
Only two of the parties are participating in this appeal. They are plaintiff-appellant Northern International Remail and Express Co. (Northern) and defendant-cross-appellant Lester Robbins, Trustee Under Trust Indenture dated June 28, 1976 (Robbins). Northern purchased the Union property from Robbins in 1991.
In a complaint filed on April 15, 2008, Northern sought declaratory relief and damages from Robbins and the other defendants, including Honeywell International, Inc. Northern's claims were based on contamination of the Union property and asserted under the New Jersey Spill Compensation and Control Act, N.J.S.A. 58-10:23.11 to -23.24 (the Spill Act) and the common law governing strict liability, nuisance, negligence, indemnification and restitution. Northern subsequently moved to add counts alleging misrepresentations by Robbins. Honeywell filed a counterclaim against Northern, and Honeywell and Robbins filed cross-claims for indemnification.
Judge Anzaldi dismissed Northern's common law claims and denied its motion to add a new common law claim on the ground that the six-year limitation period, which commenced in 1998 when Northern knew it had a basis for asserting claims based on contamination of the Union property, had expired when the complaint was filed. He entered judgment in favor of Robbins under the Spill Act on the ground that the evidence did not permit a finding that there had been a "discharge" during the period of Robbins's ownership. Northern appeals from those determinations.
The judge also dismissed Robbins's cross-claim for indemnification by Honeywell because he found that the legal relationship essential for common law indemnification was lacking. Robbins cross-appeals from that determination. Northern opposes that cross-appeal, but Honeywell does not.
The evidential materials submitted on the motions, viewed in the light most favorable to the non-prevailing party, support Judge Anzaldi's factual findings on the rulings challenged by Northern and Robbins. We agree with his determination that the prevailing parties were entitled to judgment as a matter of law.
Robbins took title to the Union property on June 30, 1976, and Robbins transferred title to Northern on December 31, 1991. In 2003, Northern sold the property to plaintiff Satec, Inc.
Honeywell is the successor-in-interest to Baron-Blakeslee, Inc., (Baron), which was a division of defendant Purex Industries, Inc., during a portion of the term of the lease.*fn2
Baron was a tenant of the Union property under a lease between the owner from whom Robbins took title. Baron's ten-year lease was signed on November 10, 1967.
Between November 10, 1967 and August 1970, Baron used the property to store and distribute solvents. The solvents were distributed in drums to customers who purchased degreasing machines from Baron. At this site, Baron received the solvent in drums and also had a minimum of two 1000-gallon outdoor tanks in which it stored solvents. The solvents contained trichloroethylene (TCE); perchloroethylene; methylene chloride; Freon; and 1,1,1-trichloroethylene (TCA). The tanks were mounted on a concrete storage pad outside the building.
In August 1970, Baron moved the work done on the Union property to another location. Northern does not assert that Baron discharged any solvent at the Union property after Robbins took title in June 1976. After moving its operation in August 1970, Baron sub-leased the property to J&J Construction Co. (J&J), for a term beginning on September 16, 1970 and ending on December 14, 1977.
There is additional evidence that Baron was not operating on the Union property. A June 1981 Comprehensive Environmental Response, Compensation, and Liability Information System (CERCLIS) report lists the Union property and refers to "Purex Corporation/Baron-Blakeslee." The CERCLIS listing indicates that no hazardous substances were being handled on site at that time and that there were no underground or above-ground storage tanks.
J&J is in the business of installing car radios. In October 1977, Robbins leased the property to J&J for a term ending on September 30, 1982. That lease was either renewed or extended. Records of the United States Environmental Protection Agency (EPA) show that in 1985 J&J was registered as a "large quantity generator" of hazardous waste at the Union property. Moreover, in 1987, J&J sub-leased a portion of the Union property to Northern. There is no evidence ...