In-Ground Fuel Tanks
Issues: Nuisance, Trespass, Negligence, Breach of Contract, landlord-tenant, statute of limitations
Here are some links for environmental law issues involving a common situation -- in-ground fuel tanks. I did this research for a lawsuit I defended. I do not know the "answers", because we settled the case. Generally, it is a good idea to settle such cases if you can find any reasonable common ground with the the opposing parties. There were at least four separate defendant parties, so a total of five law firms. By the time we reached the settlement, total attorney's fees (for everyone combined) probably reached $150,000.00. And that was without completion of discovery, without depositions of expert witnesses, and without an (anticipated) two week trial.
I am providing two links to treatises on the legal issues involved. I found that some of the posted research may or may not be applicable here in California. It may be that California is more likely to impose liability on prior owners and lessees. You will have to do your own research (and follow new developments in the law) to find out the answer.
I am also providing the points & authorities from two separate summary judgment motions. One was drafted by me, and the other was drafted by other defense counsel on behalf of their clients. This is non-copyrighted information which is in public court files, although I have attempted to remove all of the identifying information. The motions were not heard, so we do not know how the court would have ruled.
A couple of experts I was referred to (but we never got to the expert stage): Dan Herlihy, 714-662-1280; Environmental Strategies, Angelo Bellom/Tom Watson, 818-509-1101.
Random Research Notes (these are my personal research notes, and are not particularly coherent, but I wanted to save the cites for a starting point if I should litigate these issues again someday):
Damages: CC 3491, 3501; CCP 731
Mitigation: CC 3483
SOL: CCP 338(b); Baker v. Burbank-Glendale, 39 Cal.3d 862 (1985).
Landlord's Consent to Use: Churchill v. Baumann, 95 Cal. 541,545 (1892).
Statutory claims: H&S 25283; 25300-25395.
Nuisance: Permanent or continuing? Capogeannis v. Superior Court, 12 Cal.App.4th 668,683-684 (1993).
Successor owner liability - CC 3483. Must have notice and request to remove. Does it include a lessee? Resolution Trust Corp. v. Rossmoor Corp. 34 Cal.App.4th 93, 98-100. (1995); Mangini v. Aerojet-General Corp., 230 Cal.App.3d 1125 (1991). Also, 22 USF LR 31 (?)
Generally, Miller & Starr 2d 29:9; 29:82.
Officer liability: U.S. Liab. Ins. v. Haidinger, 1 Cal.3d 586 (1970); Francis v. Village Green Owners Assn., 42 Cal.3d 490 (1986) -- would have to have notice, and duty to remedy (general issues, not specific to statutory duties relating to Underground Tanks); CC 2351; 76 ALR 4th 365 (1990).
Indemnity: 20 ALR 2d 925,929, sec. 4-6. But don't overlook the important point that indemnity can only be had where the plaintiff has to pay another party for losses. The plaintiff cannot recover for their own losses. Also, 171 Cal.App.2d 59 (?)
Lawyer Recommendation:
Naturally, you are now dazzled by my sheer brilliance. I can recommend also Guy Lochhead (909/624-6474), a solo practitioner in Claremont, California. Guy does outstanding work and is an excellent writer. I had a good working relationship with Steve Berliner and Jeffrey Kent of Poindexter & Doutre, in Los Angeles, as well, and would also recommend this firm. I got useful assistance from Eleanor Oths ("Oats") at Denny & Oths, in Glendale, California (818/500-9030.