Argued April 15, 2013
On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2071-06.
Steven T. Singer argued the cause for appellant/cross-respondent.
Richard J. Isolde argued the cause for respondents/cross-appellants Petro, Inc., Johnson Oil Company and Meenan Oil Co. (Gaul, Baratta & Rosello, L.L.C., attorneys; Mr. Isolde, on the brief).
David W. Field argued the cause for respondents Edward Hsi and Amy Hsi (Lowenstein Sandler, P.C., attorneys; Mr. Field, on the brief).
Kristin V. Hayes argued the cause for respondent Spartan Oil Company (Wiley Malehorn Sirota & Raynes, attorneys; Ms. Hayes, of counsel and on the brief; Carolyn Conway Duff, on the brief).
Before Judges Graves, Ashrafi and Guadagno.
Plaintiff Morristown Associates, the owner of a shopping center, brought claims against several heating oil companies and the prior owners of a dry cleaning business for contribution to plaintiff's environmental remediation costs and for other damages caused by contamination of its property. It now appeals from two orders of the Law Division barring testimony from its liability expert and granting summary judgment or partial summary judgment to several defendants on statute of limitations grounds. The orders are appealable as of right under Rule 2:2-3(a) because all remaining claims have been resolved by stipulations of the parties or dismissed by the trial court.
Contrary to plaintiff's arguments, we hold that the general six-year statute of limitations for damage to property, N.J.S.A. 2A:14-1, applies to a private claim for contribution pursuant to the New Jersey Spill Compensation and Control Act (Spill Act), N.J.S.A. 58:10-23.11 to -23.24. The discovery rule of Lopez v. Swyer, 62 N.J. 267 (1973), may extend the time limitation based on when "the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim." Id. at 272.
In this case, the trial court did not err in concluding that the discovery rule did not warrant permitting plaintiff to pursue claims that arose outside the six-year limitation period. We affirm the trial court's summary judgment orders. We need not and do not address other issues raised on appeal.
On July 31, 2006, plaintiff filed a three-count complaint against defendant Grant Oil Company alleging environmental damage to plaintiff's property. In three amended complaints filed over the next several years, plaintiff added as defendants six other heating oil companies that had allegedly delivered oil to the site and also the prior owners of a dry cleaning business that leased space in plaintiff's shopping center. Defendants filed cross-claims against one another and also third-party claims against the current owner of the dry cleaning business.
Plaintiff alleged that the fill pipes to an underground storage tank (UST) located under the leasehold of the dry cleaning business leaked oil into the soil and groundwater from about 1988 to 2003. It alleged that the oil companies and the prior owners of the business failed to inspect the pipes and the UST to ensure they were not leaking and to make repairs. Plaintiff brought claims under the Spill Act (count one), the New Jersey Environmental Rights Act, N.J.S.A. 2A:35A-1 to -14 (count two), and common law negligence (count three).
Through a series of motions brought by defendants, the trial court barred proposed testimony by plaintiff's oil delivery expert, Robert Walters, and it also granted summary judgments limiting plaintiff's claims to events of contamination that occurred within six years of the date of its complaint. Subsequently, plaintiff resolved or voluntarily dismissed all such claims that arose during the six-year limitation period and filed this appeal from the trial court's rulings on summary judgment and the expert testimony.
Viewed most favorably to plaintiff, R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the summary judgment record established the following relevant facts.
In 1979, plaintiff purchased a small shopping center called Morristown Plaza, located on Lafayette Avenue in Morristown. At that time, one of the tenants was a dry cleaning business named Plaza Cleaners, then owned by Robert Herring. Defendants Edward and Amy Hsi became the owners of the dry cleaning business from 1985 to 1998, and third-party defendant Byung Lee became the owner from 1998 to the time of this litigation.
In 1977 or 1978, before plaintiff purchased the property, Herring had installed a UST to hold heating oil for a steam boiler used in the dry cleaning business. The tank was located under a concrete slab floor and was inaccessible. The fill and vent lines for the UST protruded through an exterior wall into an alleyway. Pictures of the ...