Thermo Fluids, Inc. v. Buckley Air Force Base et al

Filing 40

Memorandum Opinion and ORDER granting 20 Motion to Dismiss. Signed by Judge John L. Kane on 09/23/15.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00569-JLK-MEH
THERMO FLUIDS, INC.,
Plaintiff,
v.
THE UNITED STATES OF AMERICA; and
URS GROUP, INC., a corporation,
Defendants.

MEMORANDUM OPINION AND ORDER ON DEFENDANT URS GROUP’S
MOTION TO DISMISS
Kane, J.
Introduction
Plaintiff brings negligence claims against Defendants the United States and URS
Group in connection with a shipment of oil from Buckley Air Force Base handled by
Plaintiff that was found to be contaminated with Polychlorinated Biphenyls (“PCBs”).
Defendant URS has moved to dismiss on the grounds that Plaintiff’s claims are barred by
the Colorado two-year statute of limitations for negligence. Doc. 20. The motion is
GRANTED for the reasons stated below.
Background
On August 22, 2012, Plaintiff, an industrial waste management corporation,
collected a shipment of oil from a tank located at Buckley Air Force Base. Doc. 12 at ¶

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20. According to the bill of lading for the shipment, the contents of the tank were
characterized as “Non-Regulated Liquid, Used Oil.” Id. at ¶ 21.
In early September, 2012, Plaintiff was notified that the railcar used to ship the oil
tested positive for traces of PCBs. Id. at ¶ 24. On or about September 10 and 11, 2012,
Plaintiff’s test confirmed the used oil contained PCBs. Id. at ¶ 28-29. Buckley AFB
conducted its own test and, on September 24, 2012, confirmed to Plaintiff that its analysis
found the same level of PCBs in the subject tank. Id. at ¶ 32.
On October 17, 2012, Plaintiff submitted a written claim for damages to Buckley
AFB alleging property damage due to chemical contamination, pursuant to the Federal
Tort Claims Act. Id. at ¶ 36. On November 14, 2013, the Department of the Air Force
via certified letter denied Plaintiff’s claim under the FTCA. Id. at ¶ 37. In its denial
letter, the Air Force stated an employee of an independent contractor, Foothills
Environmental, Inc., was responsible for the contamination. Id. at ¶ 38. Plaintiff then
investigated and discovered Foothills Environmental, Inc. was not working at Buckley
AFB during August 2012. Id. at ¶ 42.
On April 28, 2014, Plaintiff requested, in writing, that its claim be reevaluated
given Foothills Environmental, Inc. was not working at Buckley AFB during August
2012. Id. at ¶ 43.
On September 22, 2014, the Air Force sent Plaintiff a certified letter containing its
final denial of the request for reconsideration of Plaintiff’s claim. Id. at ¶ 44. In this
letter, the Air Force stated an employee of URS, not Foothills, was responsible for the

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contamination. Id. at ¶ 45. Plaintiff filed its Complaint in this action on March 20, 2015,
naming both Buckley Air Force Base and URS as defendants. See Doc. 1.
Analysis
1.

Statute of Limitations

Colorado has a two year statute of limitations for negligence claims that provides:
“[t]he following civil actions, regardless of the theory upon which suit is brought, or
against whom suit is brought, must be commenced within two years after the cause of
action accrues, and not thereafter: (a) Tort actions, including but not limited to actions for
negligence . . . .” C.R.S. § 13-80-102(1). Thus, Plaintiff was required to bring its
negligence claim against URS “within two years after the cause of action accrue[d.]” Id.
Under Colorado law, a “cause of action for injury to . . . property . . . shall be
considered to accrue on the date both the injury and its cause are known or should have
been known by the exercise of reasonable diligence.” C.R.S. § 13-80-108(1).
Defendant argues that Plaintiff’s claims must be dismissed because Plaintiff was
aware of its “injury” (PCB contamination) as well as the injury’s “cause” (contaminated
oil originating at Buckley AFB) by October 17, 2012, when Plaintiff submitted its written
claim for damages to Buckley AFB under the FTCA. Doc. 32 at 1. Accordingly,
Defendant argues that Plaintiff was required to bring its claims by October 17, 2014, and
because Plaintiff did not do so until March 20, 2015, Plaintiff’s claims are barred by the
statute of limitations. Id.
Plaintiff argues that as soon as it was aware of the PCB contamination, it
immediately investigated and identified Buckley AFB as the source, notified Buckley
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AFB, and received confirmation from a Buckley AFB employee that the PCB
contamination came from Buckley. Doc. 30 at 4-5. Plaintiff therefore argues that it had
no reason to believe that any party other than Buckley AFB was responsible for its
injuries until November 14, 2013, when it was erroneously informed by letter from the
Air Force that a contractor called Foothills Environmental had performed the work
leading to the contamination. Id. at 5. Plaintiff then investigated further, discovered that
Foothills was not performing work at Buckley AFB at the relevant time period, and
sought reconsideration of its FTCA claim. Doc. 30 at 5-6. On September 22, 2014,
Plaintiff learned that URS was a responsible party, and timely filed its negligence claim
against URS within six months. Id. at 6.
The main authority on which the Defendant relies for the proposition that Plaintiff
need not know the identity of the defendant in order to be aware of the “injury and its
cause” is Yoder v. Honeywell, 900 F.Supp. 240 (D. Colo. 1995). In Yoder, the plaintiff
brought a product liability action against Honeywell and Bull Information Systems,
alleging that Honeywell had manufactured a keyboard which gave the plaintiff carpal
tunnel syndrome. Id. at 242-243. At a scheduling conference, Honeywell denied having
manufactured the keyboard at issue, and both parties subsequently participated in an
inspection of the relevant keyboards. Id. at 242. Counsel for Honeywell then informed
plaintiff that they believed the keyboards at issue were actually manufactured by Bull,
and plaintiff moved to amend to add Bull as a defendant, more than two years after the
original complaint was filed. Id. at 243. The Court granted Bull’s motion to dismiss on
statute of limitations grounds, finding that “the relevant inquiry is when the Yoders knew
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or should have known that Ms. Yoder's injuries were caused by her use of the keyboard”
and that “[w]here, as here, the identity of the defendant could be discovered through
reasonable diligence the action is properly barred if not filed within the two year
limitation period.” Id. at 247-48.
I find that the statute of limitations bars Plaintiff’s claims. By October 17, 2012,
Plaintiff had discovered that it had been injured by oil contaminated by PCBs originating
at Buckley AFB. This discovery triggered the beginning of a two-year window in which
Plaintiff was required to conduct a reasonably diligent investigation, discover the identity
of those responsible, and bring its claims against them. See Yoder, 900 F.Supp. at 24748; Sender v. Mann, 423 F.Supp.2d 1155, 1166-67 (D.Colo. 2006) (finding statute of
limitations accrued once plaintiff was aware of the Ponzi scheme even where plaintiff did
not know identity of specific defendants). Although Plaintiff has alleged that it “had no
reason to suspect” URS’s involvement, Doc. 30 at 3, and that the “FTCA Claim process
did not provide a mechanism for [Plaintiff] to obtain discovery from Buckley AFB,” Doc.
30 at 5 n. 4, Plaintiff has not identified any investigation that it did undertake or
explained why the identity of URS could not have been discovered with reasonable
diligence. Accordingly, Plaintiff’s claims are barred by the statute of limitations and
must be dismissed.
2.

Equitable Tolling

“[A]n equitable tolling of a statute of limitations is limited to situations in which
either the defendant has wrongfully impeded the plaintiff’s ability to bring the claim or
truly exceptional circumstances prevented the plaintiff from filing his or her claim despite
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diligent efforts.” Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1099 (Colo.
1996). The doctrine of equitable tolling is not favored, and the plaintiff has the burden of
establishing the elements. Gognat v. Ellsworth, 224 P.3d 1039, 1049 (Colo. App. 2009).
Plaintiff argues that equitable tolling is appropriate because while plaintiff was
pursuing its FTCA claims against Buckley AFB, it had no reason to suspect that URS
was potentially responsible for the contamination and because any delay in filing its
negligence claim was because the Air Force provided Plaintiff with incorrect information.
Doc. 30 at 13-14. Defendant argues that Plaintiff has failed to “plead any action, let
alone wrongful conduct, by URS” nor any “extraordinary circumstances” that would
justify equitable tolling. Doc. 20 at 7. I find equitable tolling not available because
Plaintiff discovered the identity of URS on September 22, 2014, see Doc. 12 at ¶ 9,
within the two year statute of limitations period that began on October 17, 2012, when
Plaintiff filed its FTCA complaint. See Roberts v. Barreras, 484 F.3d 1236, 1242 (10th
Cir. 2007) (“[E]quitable tolling—sometimes referred to as fraudulent concealment—only
applies when the defendant is prevented from filing throughout the entire length of the
statutory period.” (emphasis added)).
Conclusion
For the reasons given above, Plaintiff’s claims against Defendant URS are barred
by the statute of limitations and Defendant’s motion to dismiss (Doc. 20) is therefore
GRANTED.
Dated: September 23, 2015

s/John L. Kane
SENIOR U.S. DISTRICT JUDGE

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