Hubbard-Hall Inc v. Monsanto Co. et al
Filing
149
ORDER granting 85 Motion for Summary Judgment; granting in part and denying in part 85 Motion for Judgment on the Pleadings. Please see attached Ruling and Order. Signed by Judge Robert N. Chatigny on 3/29/15. (Reardon, C)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
:
HUBBARD-HALL, INC.,
:
:
Plaintiff,
:
:
v.
:
No. 3:13-cv-104(RNC)
:
MONSANTO COMPANY, et al.,
:
:
Defendants.
:
:
RULING AND ORDER
This case arises from contamination of industrial property
caused by polychlorinated biphenyls ("PCBs"), a highly toxic
substance.
Plaintiff Hubbard-Hall, a chemical distributor,
alleges that PCB-containing paint applied to the exterior of a
structure on its property, the Tank Farm Building, has migrated
into building materials and surrounding soil.
“Old Monsanto,” a
predecessor of the named defendants, was the sole manufacturer of
PCBs in the United States before their manufacture was banned by
the EPA in 1977.
The Environmental Protection Agency and the
Connecticut Department of Environmental Protection have directed
plaintiff to remediate the contamination.
Plaintiff seeks
compensatory damages and declaratory relief.
Count one of the
amended complaint alleges a violation of the Connecticut Products
Liability Act (CPLA), Conn. Gen. Stat. §§ 52-572m et seq.
Count
two alleges a violation of the Connecticut Unfair Trade Practices
Act (CUTPA), §§ 42-110b et seq.1
Defendants have filed two dispositive motions.
The first, a
motion for judgment on the pleadings, argues that the CPLA claim
is barred by Connecticut's ten-year statute of repose because
plaintiff's harm occurred in the mid-1950s.
It also argues that
the CUTPA claim is precluded by the exclusive remedy provision of
the CPLA.
Defendants' second motion seeks summary judgment on
the CPLA claim based on Connecticut's two-year statute of
limitations.
Defendants argue that Hubbard-Hall received notice
of PCB contamination on its property as early as 1982, and
certainly more than two years before it filed this lawsuit.
This ruling addresses both motions.
For the reasons stated
below, the motion for judgment on the pleadings is granted as to
the CUTPA claim but denied as to the CPLA claim, and the motion
for summary judgment is granted.
I.
The CPLA’s statute of repose bars a claim brought “later
than ten years from the date that the party last parted with
possession or control of the product.”
577a(a).
Conn. Gen. Stat. § 52-
Statutes of repose are not subject to equitable
tolling, and apply even if the actionable harm underlying the
claim has yet to be discovered.
See Saperstein v. Danbury Hosp.,
1
Count three, for declaratory relief, is dependent on the two
substantive counts.
2
X06CV075007185S, 2010 WL 760402, at *13 (Conn. Super. Ct. Jan.
27, 2010) ("[T]he law is well established that equitable tolling
does not apply to statutes of repose.").
The parties agree that
it has been more than fifty years since PCB-containing paint was
used on the plaintiff’s property, and more than thirty-five years
since the manufacture of PCBs was banned.
The only dispute is
whether an exception to the statute of repose has been
sufficiently pleaded in the amended complaint.
The CPLA delineates three exceptions to the statute of
repose, allowing suits to be brought after the ten-year period
has expired.
Relevant here are the “useful safe life” and
“fraudulent concealment” exceptions.
577a(c), (d).
Conn. Gen. Stat. §§ 52-
The Court concludes that Hubbard-Hall has
adequately pleaded the useful safe life exception, but not the
fraudulent concealment exception.
Section 52-577a(c) provides that the statute of repose shall
not apply “provided the claimant can prove that the harm occurred
during the useful safe life of the product.”
The duration of a
product’s useful safe life is a question of fact.
The statute
itself lists several non-exclusive factors that may be considered
in determining whether the useful safe life of a product has
expired:
(1)
(2)
The effect on the product of wear and tear or
deterioration from natural causes;
the effect of climatic and other local conditions in
which the product was used;
3
(3)
(4)
(5)
the policy of the user and similar users as to repairs,
renewals and replacements;
representations, instructions and warnings made by the
product seller about the useful safe life of the product;
and
any modification or alteration of the product by a user
or third party.
Id. § 52-577a(c).
Read together, these factors indicate that a
product’s “useful safe life” is determined by reference to
reasonable expectations about how long the product may be safely
used before it needs repair or replacement.
Plaintiff alleges that PCBs “have an effectively infinite
useful safe life” and that PCB-containing paint, which was
manufactured to be extremely durable, has a useful safe life “at
least in excess of 50 years.”
Id. at ¶¶ 18, 58.
It further
alleges that "one of the reasons that PCB-containing paint has
not been a focus of EPA . . . is that contamination from the PCBcontaining paint typically will not be detected until the paint .
. . begin[s] to peel or flake and contaminate the surrounding
environment."
Id. ¶ 58.
Defendants take the position that the
“useful safe life” exception can never apply to products like
PCBs and PCB-containing paint because they are inherently
dangerous from the start.
No Connecticut Supreme Court cases construe the phrase
“useful safe life,” but the Connecticut Appellate Court has used
the phrase interchangeably with “normal life expectancy.”
Moran
v. E. Equip. Sales, Inc., 818 A.2d 848, 852 (Conn. App. 2003)
4
(affirming jury verdict that design of wheel loader was
unreasonably dangerous and that harm occurred during the
product’s “useful safe life”).
Similarly, a Connecticut trial
court has ruled that the exception applies if the product was
still “in a condition to accomplish its intended purpose” when
the harm occurred.
Terry v. Palace Aids, Inc., CV990078989S,
2000 WL 1521347, at *3 (Conn. Super. Ct. Sept. 22, 2000) (denying
summary judgment when material issue of fact remained about the
useful safe life of a defective wood stove and stove duct
piping).
These cases are consistent with the Model Uniform
Products Liability Act, which provides that the “useful safe
life” of a product “begins at the time of delivery of the product
and extends for the time during which the product would normally
be likely to perform or be stored in a safe manner.”
Model
Uniform Products Liability Act § 110(A) (1979) (emphasis added).
Under the Model Act, the useful safe life of a product expires
when the product is no longer “likely” to be safe for “normal”
use.
In this case, the alleged harm is the contamination of the
plaintiff’s property due to the migration of PCBs from paint into
building materials and soil.
See ECF No. [38] ¶ 151.
In
assessing whether Hubbard-Hall has plausibly alleged that this
harm occurred during the “useful safe life” of the product, it is
necessary to distinguish between contamination of the Tank Farm
5
Building and contamination of the surrounding soil.
With respect
to the first form of harm, plaintiff has adequately pleaded the
elements of the exception.
With respect to the second, however,
it has not.
Dealing with the soil contamination first, the facts alleged
in the amended complaint do not support a reasonable inference
that the contamination occurred during the useful safe life of
the product, whether the product is PCB-containing paint or
PCBs.2
Plaintiff states that PCB-containing paint is “nearing
the end of its useful safe life” when it “begin[s] to peel or
flake and contaminate the surrounding environment.”
[38] ¶ 58.
See ECF No.
It follows, then, that peeling and flaking of PCB-
containing paint is a precondition to contamination of
surrounding soil.
Could a jury reasonably conclude that PCB-
containing paint applied to the Tank Farm Building was still
within its useful safe life when, as a result of peeling and
flaking, PCBs were released into the soil?
Given the meaning of
“useful safe life,” the answer must be no.
The “useful safe life” of a product expires when it can no
longer be reasonably expected to function as intended.
As with
products that “wear out” and become unsafe or ineffective over
time, the “useful safe life” of PCBs and PCB-containing products
2
The amended complaint does not clearly allege which product is
the focus of its CPLA claim.
6
expires when a reasonable consumer would repair or replace the
product.
See Conn. Gen. Stat. § 52-577a(c)(1)-(5).
Once PCB-
containing paint begins to peel and flake, it is no longer
serving its expected “useful” function of covering or sealing a
surface, regardless of whether it is still or ever was “safe.”
See Conn. Gen. Stat. § 52-577a(c)(3).
Thus, claims of harm
occurring as a result of the peeling and flaking of the product,
as alleged here with regard to soil contamination, are outside
the scope of the “useful safe life” exception.
The analysis is slightly different if the accused product is
the PCBs themselves.
Plaintiff urges that PCBs have an
“infinite” useful safe, even when used in a non-enclosed manner
as here.
ECF No. [38] ¶ 18.
But for purposes of the exception
to the statute of repose, the “useful safe life” of PCBs expired
when the product was no longer “likely” to be safe for “normal”
use.
See Model Uniform Products Liability Act § 110(A).
Under
this standard, no reasonable jury could find that the “useful
safe life” of the PCBs in the paint on the exterior of the Tank
Farm Building extended beyond 1977 when the use of PCBs in other
than “totally enclosed” systems was banned.
ECF No. [38] ¶ 20.
While this interpretation does not directly address all five of
the § 52-577a(c) factors, it is effectively dictated by factor
three, “the policy of the user and similar users as to repairs,
renewals and replacements.”
The useful safe life of the PCBs
7
expired when safety concerns dictated the need to “repair” or
“replace” (i.e., remediate) PCBs in other than totally enclosed
systems.
Assuming the useful safe life of PCBs expired no later than
1977, the issue is whether the harm – here, the contamination occurred while the paint was intact and prior to 1977.
The
amended complaint does not allege when the soil on Hubbard-Hall’s
property became contaminated.3
Instead, plaintiff appears to
rely on its assertion that PCBs have an “infinite” useful safe
life.
In the absence of factual allegations that, if proven,
would allow a jury to conclude that the contamination of the Tank
Farm Building and surrounding area occurred (1) when the paint
was intact, and (2) prior to 1977, the “useful safe life”
exception is inapplicable to the contamination of the soil.
This “useful safe life” analysis leads to a different
conclusion when applied to the other form of harm Hubbard-Hall
has alleged: contamination of the Tank Farm Building itself.
Peeling or flaking is not a precondition to this type of
contamination.
Plaintiff alleges that PCBs were applied to (and
then migrated into) the structure’s cinder block walls, and it
stands to reason this occurred while the paint was still
3
In its moving papers, without citation to the complaint, the
plaintiff states that the contamination “occurred sometime in the
50-plus years since [the Tank Farm] [B]uilding’s construction.”
ECF No. [50] at 21.
8
performing its intended function of covering or sealing the Tank
Farm Building’s exterior surface.
The critical inquiry is whether the complaint plausibly
alleges that the migration of the PCBs into the cinder block
walls occurred prior to the 1977 restrictions on PCB use.
If so,
the harm occurred while the PCB-containing paint was still
serving its purpose and prior to the EPA’s declaration that PCBs
are unsafe for use outside totally enclosed systems – that is,
during the product’s useful safe life.
If the harm occurred
after 1977, the useful safe life exception does not apply for the
reasons discussed above.
A fair reading of the complaint suggests that the Tank Farm
Building was contaminated prior to 1977.
The complaint states
that the structure was “constructed in 1954 and partially rebuilt in 1955.”
Am. Comp. ¶ 85, ECF No. [38].
It is reasonable
to infer that the building was painted at that time, which predated the PCB ban by some two decades.
And it appears that
contamination of the Tank Farm Building occurred even as the
structure was being painted: in painting the building, HubbardHall was covering the outer walls with a highly toxic substance.
The structure’s contamination therefore occurred during the
product’s useful safe life if the product had any useful safe
life.
As discussed above, it did.
Because Hubbard-Hall has
pleaded that the Tank Farm Building was contaminated while the
9
PCB-containing paint remained intact and before the use of PCBs
was restricted in 1977, this form of harm falls within the useful
safe life exception to the statute of repose.4
II.
The “fraudulent concealment” exception to the statute of
repose is codified at Conn. Gen. Stat. § 52-577a(d).
It provides
that the statute of repose does not bar “any action against a
product seller who intentionally misrepresents a product or
fraudulently conceals information about it, provided the
misrepresentation or fraudulent concealment was the proximate
cause of harm to the claimant.”
Hubbard-Hall asserts that its
claim can proceed because over the course of several decades, Old
Monsanto fraudulently concealed information about the dangers of
PCBs.
No Connecticut case has been cited interpreting the relevant
statutory language, and the parties do not agree on its meaning.
Defendants argue that § 52-577a(d) must be construed in light of
4
As the complaint discusses, the harm to the Tank Farm Building
involves not just the outer covering of PCB-containing paint, but
PCBs that have migrated a short distance into the cinder blocks.
The complaint does not suggest how quickly this migration might
have occurred. It is possible, then, that Hubbard-Hall incurred
some portion of its building-related harm after 1977, as PCBs
gradually penetrated the Tank Farm Building’s walls to a greater
depth. But whatever effect this intensely factual question might
have on Hubbard-Hall’s claim, it does not prevent Hubbard-Hall
from invoking the useful safe life exception at the pleadings
stage. It is enough that some portion of the harm to the Tank
Farm Building – an apparently significant portion — occurred in
the mid-1950s.
10
Conn. Gen. Stat. § 52-595, which provides for delayed accrual of
a cause of action if “any person, liable to an action by another,
fraudulently conceals from him the existence of the cause of such
action.”
Section 52-595, unlike § 52-577a(d), has been
interpreted by the Connecticut courts, and it requires three
elements: 1) defendant’s actual awareness, not imputed knowledge,
of the facts necessary to establish plaintiff’s cause of action;
and 2) defendant’s intentional concealment of these facts from
plaintiff; 3) for the purpose of delaying plaintiff’s lawsuit.
Falls Church v. Tyler, Cooper & Alcorn, LLP, 912 A.2d 1019,
1032–33 (Conn. 2007).
Defendants argue that this standard
transfers wholesale to statute-of-repose cases under § 52577a(d).
They bolster their contention by reference to two
decisions interpreting the fraudulent concealment exception to
Illinois’s products liability statute of repose, each of which
announces a Falls Church-like standard.
See, e.g., Landry v.
Keene Corp., 811 F. Supp. 367, 372 (N.D. Ill. 1993).
Hubbard-
Hall, for its part, does not articulate its view of the
appropriate standard, but does assert that defendants’ is too
stringent.
Hubbard-Hall is correct.
Differences on the faces of the
statutes preclude seamless application of the § 52-595 standard
in § 52-577a(d) cases.
Section 52-595, entitled “Fraudulent
Concealment of Cause of Action,” delays accrual of a cause of
11
action if the defendant “fraudulently conceals from [the
plaintiff] the existence of the cause of such action.”
Gen. Stat. § 52-595 (emphasis added).
Conn.
Section 52-577a(d), on the
other hand, permits an otherwise barred action if the defendant
“intentionally misrepresents a product or fraudulently conceals
information about it.”
added).
Conn. Gen. Stat. § 52-577a(d) (emphasis
Section 52-577a(d) speaks to concealment concerning the
product in issue, not the cause of action.
The Falls Church
standard, which reflects the very different statutory language of
§ 52-595, is therefore a poor fit.5
Applying it in § 52-577a(d)
cases would impose requirements (chiefly, the need for a
plaintiff to show that a defendant acted for the purpose of
delaying suit) out of keeping with the statute’s text.6
5
The Illinois cases discussed by defendants are inapposite for
the same reason. The rule they interpret, Ill. Code Civ. P. §
13-215, tolls the statute of repose if “a person liable to an
action fraudulently conceals the cause of such action.”
6
It might reasonably be argued that the phrase “fraudulent
concealment,” taken alone, is sufficiently imbued with common law
meaning to fairly imply the elements urged by defendants.
Fraudulent concealment was a common law doctrine before it was
codified in any statute, and its usual common law meaning both
concerned concealment of a cause of action and required that the
defendant intend to delay a lawsuit. See Note, 43 HARV. L. REV.
471, 472–73 (1930). This argument would be persuasive if the
phrase appeared without qualification or elaboration in § 52577a(d) – if the statute simply read, for example, “An act of
fraudulent concealment shall toll the statute of repose.” But
the legislature has specified the relevant object of concealment,
and it is “a product” or “information about it.” In these
circumstances, the Court has no warrant to write in an additional
object of concealment (a cause of action) and its attendant
mental state (intent to delay suit).
12
But that does not mean § 52-595 is irrelevant.
Despite the
statutes’ differences, each employs identical language –
“fraudulently conceals” – to describe the conduct and mental
state a plaintiff must allege to bring an otherwise time-barred
action.
To that extent, the Connecticut courts’ construction of
§ 52-595 should inform this Court’s construction of § 52-577a(d).
So too should Connecticut’s common law of fraud.
Standard Oil
Co. of N.J. v. United States, 221 U.S. 1, 59, 31 S. Ct. 502, 55
L.Ed. 619 (1911) (“[W]here words are employed in a statute which
had at the time a well-known meaning at common law or in the law
of this country, they are presumed to be used in that sense.”);
Hunte v. Blumenthal, 680 A.2d 1231, 1234 (Conn. 1996) (“It is
assumed that all legislation is interpreted in light of the
common law at the time of its enactment.”); see also Neder v.
United States, 527 U.S. 1, 22, 119 S. Ct. 1827, 144 L.Ed.2d 35
(1999) (“[A]ctionable ‘fraud’ had a well-settled meaning at
common law.”).
In this context, it is reasonable to conclude that HubbardHall must allege three elements to make out the fraudulent
concealment exception: (1) that defendants had actual awareness,
rather than imputed knowledge, of material information about the
product;7 (2) that they intentionally concealed this information,
7
Information about a product is “material” if it is likely to
affect the decisions or conduct of its users. Miller v.
Guimaraes, 829 A.2d 422, 434 (Conn. App. 2003).
13
either through intentional misstatement, affirmative act of
concealment, or failure to disclose when under a duty to do so;8
and 3) that plaintiff’s reliance on the misstatement or omission
proximately caused its harm.
See Hamilton v. Smith, 773 F.2d
461, 468 (2d Cir. 1985) (“To establish fraudulent concealment
under [§ 52-595], a plaintiff must show that . . . absent a
fiduciary relationship, the defendant was guilty of some
affirmative act of concealment.”); Falls Church, 912 A.2d at
1032–33 (describing the elements of fraudulent concealment under
§ 52-595); Ferris v. Faford, 890 A.2d 602, 611 (Conn. App. 2006)
(identifying the “well settled” elements of common-law fraud);
Spilke v. Spilke, No. FA000440636S, 2007 WL 2245936, at *8 (Conn.
Super. July 18, 2007) (a misrepresentation of fact is not
fraudulent if it is not material).
This standard appropriately
accounts for the plain language of § 52-577a(d), the case law on
§ 52-595 and settled understandings concerning the law of fraud.
There remains one final question regarding the standard to
be applied to Hubbard-Hall’s amended complaint.
Defendants argue
that Hubbard-Hall’s invocation of the fraudulent concealment
exception is a “claim[] of fraud” that must be evaluated under
the heightened pleading standard of Federal Rule of Civil
8
Such a duty might arise due to the existence of a fiduciary
relationship between seller and buyer, see Falls Church, 912 A.2d
at 1034, or a seller’s partial or incomplete statements relating
to the concealed information, Wedig v. Brinster, 469 A.2d 783,
788 n.4 (Conn. App. 1983).
14
Procedure 9(b).
ECF No. 42-1, at 13.
Defendants are correct:
under Rule 9(b), “[a] claim of fraudulent concealment must be
pled with particularity.”
Hinds Cnty., Miss. v. Wachovia Bank
N.A., 620 F. Supp. 2d 499, 520 (S.D.N.Y. 2009); 5A CHARLES ALAN
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1297 (3d ed.
2014) (“[C]ases involving claims of fraudulent concealment . . .
are held to fall within the heightened pleading requirement of
Rule 9(b).”).
Rule 9(b) requires a plaintiff to “state with
particularity the circumstances constituting fraud” – the “who,
what, when, where, and how.”
Fed. R. Civ. P. 9(b); DiLeo v.
Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990).
A plaintiff
alleging a fraudulent misstatement must “(1) specify the
statements that the plaintiff contends were fraudulent, (2)
identify the speaker, (3) state where and when the statements
were made, and (4) explain why the statements were fraudulent.”
Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290 (2d Cir. 2006).
If
a plaintiff alleges fraud by omission and so cannot “specify the
time and place because no act occurred,” the complaint must still
allege “(1) what the omissions were; (2) the person responsible
for the failure to disclose; (3) the context of the omissions and
the manner in which they misled the plaintiff; and (4) what
defendant obtained through the fraud.”
Estate of Axelrod v.
Flannery, 476 F. Supp. 2d 188, 192 (D. Conn. 2007) (internal
quotation marks omitted).
15
Analyzed under the substantive standard of § 52-577a(d) with
the procedural overlay of Rule 9(b), Hubbard-Hall’s claim of
fraudulent concealment fails.
Plaintiff has not alleged facts
showing that Old Monsanto was aware of material information
concerning the dangers of PCBs at the pertinent time.
And even
if Old Monsanto was aware of such information, Hubbard-Hall has
failed to properly identify a harm-causing misstatement, act of
concealment or omission by Old Monsanto.
Hubbard-Hall alleges that beginning in the 1930s and
continuing through the 1970s, Old Monsanto became increasingly
aware that PCBs could harm humans, animals and the environment.
Hubbard-Hall states that in the 1930s and 1940s, Old Monsanto
learned of reports “indicat[ing] that prolonged and excessive
occupational exposure to PCBs might cause liver defects in
humans.”
Am. Comp. ¶ 30, ECF No. [38].
An Old Monsanto
memorandum from September 1955 stated, “We know Aroclors [PCBs]
are toxic but the actual limit has not been precisely defined.”
Id. at ¶ 31.
In 1968, Old Monsanto learned that people in Japan
had become ill from ingesting PCB-contaminated rice, and in 1969
an internal report acknowledged that some PCBs were “nearly
global environmental contaminants.”
Id. at ¶¶ 33–37.
During the
1970s, Old Monsanto’s knowledge of the dangers posed by PCBs
increased.
In 1974, the EPA sent it a report stating, “A
tremendous quantity of research has demonstrated that
16
environmental exposure to [PCBs] causes serious impairment of the
functions of the liver.”
Id. at ¶¶ 38–40.
Accepting Hubbard-Hall’s statements as true, Old Monsanto
unquestionably was aware of material information about the
dangers of PCBs by the mid-1970s (at the latest).
And an
industrial user of PCB-containing paint like Hubbard-Hall might
well have ceased using the product had it known that PCBs were
“nearly global environmental contaminants” that could seriously
harm humans and animals through environmental exposure.
But
Hubbard-Hall’s complaint does not allege that it used PCBcontaining paint during the 1970s.
It states that the Tank Farm
Building was “constructed in 1954 and partially re-built in
1955.”
Id. at ¶ 85.
This implies that Hubbard-Hall’s use of
PCB-containing paint occurred no later than the mid-1950s.
Hubbard-Hall has suggested it might have used the paint later
than that, and indeed it might have.
ECF No. 35 (“[T]he building
itself was constructed in or around 1954 . . . . So presumably
it’s somewhere at that time or after.”).
But it would be
speculative to conclude on the basis of Hubbard-Hall’s complaint
that the paint was used any later than the mid-1950s.
Thus, the
question is whether at that time, Old Monsanto was aware of
material information concerning the risks of PCB-containing paint
– that is, information that might have affected the decisions or
conduct of industrial users like Hubbard-Hall.
17
Based on the parties’ submissions, Old Monsanto lacked
knowledge of material risks associated with PCB-containing paint
in the mid-1950s.
As defendants point out, Old Monsanto knew
only that 1) some reports indicated that “prolonged and excessive
occupational exposure to PCBs might cause liver effects in
humans,” and 2) PCBs were toxic at some limit (but this limit was
unknown).
Hubbard-Hall does not explain why this information
would have affected its decision to apply PCB-containing paint to
the Tank Farm Building.
The paint posed no danger to Hubbard-
Hall’s interests unless the PCBs it contained might migrate and
persist in sufficiently high concentrations to create
environmental or health risks.
Nothing in Old Monsanto’s limited
body of knowledge suggested this was likely or even possible.
To
be sure, Old Monsanto was aware of information indicating that
PCBs posed dangers in certain respects, and this information
would have been of great interest to some parties – for instance,
Old Monsanto employees who were routinely exposed to PCBs in
their day-to-day work.
But plaintiff has failed to articulate
why Old Monsanto’s information would have been of interest to an
entity like Hubbard-Hall.
To satisfy the second element of § 52-577a(d), Hubbard-Hall
must identify a misrepresentation or act of concealment on the
part of Old Monsanto.
This might take the form of an intentional
misstatement, an affirmative act of concealment, or a failure to
18
disclose information (if Old Monsanto was under a duty to
disclose).
Hubbard-Hall has not alleged facts suggesting that
Old Monsanto was duty-bound to disclose information relating to
the risks posed by PCBs.9
Nor has it alleged that Old Monsanto
took affirmative steps to conceal information about PCBs; it
merely alleges that Old Monsanto was silent.
Thus, Hubbard-Hall
may satisfy this element only if it alleges that Old Monsanto
made intentional misstatements about the dangers of PCBs, and
those misstatements proximately caused its harm.
Hubbard-Hall has failed to adequately identify any such
intentional misstatements.
The only statements Hubbard-Hall
identifies were made by defendants in litigation documents within
the last decade.
See Am. Comp., ¶¶ 76–78, ECF No. [38].
Even if
these qualify as intentional misstatements, they cannot have
proximately caused plaintiff’s harm – Hubbard-Hall obviously did
not rely on them when it decided to paint the Tank Farm Building
in 1954.10
Plaintiff’s complaint identifies no other statements made by
9
For this reason, its argument that Old Monsanto failed to
adequately warn of the risks associated with PCBs is unavailing.
10
It might reasonably be argued that Hubbard-Hall can make out
reliance and proximate causation by alleging misstatements that
occurred after it used PCB-containing paint, but during the life
of the ten-year statute of repose. Such statements could not
have caused Hubbard-Hall to use the product, but could have
caused it to forgo filing a timely complaint. The statements
Hubbard-Hall identifies, though, were made well outside the tenyear statute of repose.
19
Old Monsanto.
The closest calls appear in paragraphs 45 – “Old
Monsanto specifically marketed its PCBs for use in paints and
other coatings, touting their value as additives that increased
the flexibility, improved the adhesion and extended the life of
paints” – and 157 – “Defendants expressly warranted that the PCB
Products were safe for their intended use.”
Plaintiff states
that it “elected to use PCB-containing paint on its Property as a
result of [such] marketing efforts” and “reasonably relied” on
Old Monsanto’s express warranty.
Am. Comp. ¶ 56, 158.
These allegations fail under Rule 9(b).
Though Hubbard-Hall
has roughly summarized the content of Old Monsanto’s purported
statements, it has not “specif[ied] the statements” themselves.
Lerner, 459 F.3d at 290.
statements were made.”
Nor has it “state[d] where and when the
Id.
Hubbard-Hall has described the
alleged misstatements only in the most general terms – which is
precisely what Rule 9(b) does not permit.
Hubbard-Hall comes close to conceding as much in its
response to defendants’ motion.
After reciting the allegations
discussed above, it states: “Reading these allegations in favor
of Hubbard-Hall, and making reasonable inferences based on
defendants’ recent statements in court filings that PCBs are
safe, Hubbard-Hall has alleged facts that plausibly show that its
CPLA claim fits within the intentional misrepresentation and
fraudulent concealment exception to the statute of repose.”
20
ECF
No. 50, at 18.
Hubbard-Hall in effect asks the Court to infer
from defendants’ specifically identified (but recent) statements
and their less recent (but unspecified) marketing efforts and
warranties that during the relevant time period, defendants made
intentional misstatements about the risks posed by PCBs.
It is
unnecessary to decide whether that inference is plausible under
Rule 8(a), as Hubbard-Hall appears to urge, because such an
approach does not pass muster under Rule 9(b).11
III.
Count two of the amended complaint alleges the boilerplate
elements of a CUTPA claim.
Am. Cmpl. ¶¶ 134-37, 139.
Hubbard-
Hall adds that it has suffered “financial injury, including the
loss of business revenue associated with the shutdown of
operations that will be necessary to mitigate the PCB
contamination and the diminution in the value of Hubbard-Hall’s
property associated with the deed notation required by the
proposed PCB mitigation plans.”
Id. at ¶ 138.
Defendants
contend that this alleged “financial injury” is product-related
property damage for which the CPLA provides the exclusive remedy.
11
If Hubbard-Hall could demonstrate Old Monsanto’s knowledge of
material risks attending PCBs at the relevant time and
specifically identify contemporaneous statements touting the
product’s safety and efficacy, a jury might be able to reasonably
infer reliance and proximate causation. But in the absence of
plausible allegations of knowledge and specific identification of
intentional misstatements, Hubbard-Hall cannot rely on the
fraudulent concealment exception.
21
Conn. Gen. Stat. § 52-572n(a) (“A product liability claim . . .
shall be in lieu of all other claims against product sellers . .
. for harm caused by a product.”).
"The exclusivity provision
makes the product liability act the exclusive means by which a
party may secure a remedy for an injury caused by a defective
product."
Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120,
126, 818 A.2d 769, 773 (Conn. 2003).
On this basis, defendants
ask the Court to dismiss the CUTPA claim.
The Connecticut Supreme Court has held that CUTPA claims are
available for injuries “not caused by the defective product, or
if the party is not pursuing a claim for personal injury, death
or property damage.”
Gerrity, 263 Conn. at 128, 818 A.2d at 774
(internal quotation marks omitted).
In Gerrity, the CUTPA claim
concerned the mark-up in the price of cigarettes facilitated by
the defendants’ misrepresentations about the safety of their
products.
Id. at 129-30, 818 A.2d at 775-76.
Hubbard-Hall
analogizes its damages to the financial injury alleged in
Gerrity.
But the harm alleged by Hubbard-Hall was “caused by the
defective product,” not by the defendant’s misrepresentations,
and the relief sought is available under the CPLA’s provisions
regarding “property damage.”
Accordingly, defendants are
entitled to judgment on the CUTPA claim.
See W. Haven Sch. Dist.
v. Owens-Corning Fiberglas Corp., CIV. H-85-1056(AHN), 1988 WL
250851, at *2-3 (D. Conn. July 21, 1988) (dismissing CUTPA claim
22
as “functionally identical to and coextensive with” products
claim, alleging that the asbestos-containing materials “by their
very presence damaged the plaintiff's property and caused the
plaintiff to expend large amounts of money” on abatement); cf.
Lebowitz v. Amica Mut. Ins. Co., NNHCV126027780, 2013 WL 4734742,
at *7 (Conn. Super. Ct. Aug. 8, 2013) (diminution in value, when
accompanied by physical property damage, is covered by insurance
policies insuring against losses "because of" property damage).
IV.
Under Connecticut law, an action to recover damages for
“property damage caused by exposure to a hazardous chemical
substance or mixture or hazardous pollutant released into the
environment” must be filed “within two years from the date when
the injury or damage complained of is discovered or in the
exercise of reasonable care should have been discovered.”
Gen. Stat. § 52-577c(b).
Conn.
Defendants argue that Hubbard-Hall’s
products liability claim founders on this statutory bar because
it had notice of PCB contamination on its property long before
June 17, 2008 (two years before it filed this lawsuit).
A. Legal Standard
Defendants raise their statute of limitations argument in
a motion for summary judgment.
On a summary judgment motion, the
Court’s role is to determine whether the record presents triable
issues of fact.
Summary judgment should be granted “if the
23
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
A “material” fact is one that influences
the case’s outcome under substantive law, and a dispute is
“genuine” if the evidence would permit a reasonable jury to find
for the non-movant.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247–48, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986).
The Court
must view the record evidence in the light most favorable to the
party opposing the motion, resolving all factual disputes and
drawing all reasonable inferences in the non-movant’s favor.
Gallo v. Prudential Residential Servs. Ltd. P’ship, 22 F.3d 1219,
1223 (2d Cir. 1994).
The limitations period in § 52-577c(b) begins to run when
the plaintiff’s injury “is discovered or in the exercise of
reasonable care should have been discovered.”
The “injury” that
causes a claim to accrue must be a legal injury, or “actionable
harm.”
Bogdan v. Zimmer, Inc., 165 Fed. Appx. 883, 884 (2d Cir.
2006).
A plaintiff has experienced actionable harm when it “has
knowledge of facts that would put a reasonable person on notice
of the nature and extent of an injury, and that the injury was
caused by the . . . conduct of another.”
Id.
But harm need not
have “reached its fullest manifestation” to trigger the statutory
period.
Lagassey v. State, 268 Conn. 723, 749 (2004).
supporting a legal action will suffice.
24
Harm
Nor need a plaintiff
know it has been injured before the action accrues.
It is notice
of facts reasonably indicating legal injury, not certitude of
harm, that starts the two-year clock.
Bogdan, 165 Fed. Appx. at
884; Vector-Springfield Properties, Inc. v. Central Ill. Light
Co., Inc., 108 F.3d 806, 810 n.3 (7th Cir. 1997).
B. Discussion
Analyzing the parties’ arguments under § 52-577c(b)
requires discussion of facts not set forth above.
Defendants’
basic argument is that on eight distinct occasions between 1982
and 2007, Hubbard-Hall received notice that its property was
contaminated with PCBs.
Some of the occasions are the subject of
genuine disputes of material fact.12
For others, the presence or
absence of such disputes is at least a very close question.
The
genuine disputes need not be recounted, and the close questions
need not be resolved.
Rather, defendants are entitled to summary
12
For instance, defendants argue that a report issued by the
Connecticut Department of Environmental Protection (“DEP”) in
1982 alerted Hubbard-Hall to the presence of PCBs on its land.
ECF No. 85-1, at 6–7. Hubbard-Hall’s President, Andrew Skipp,
testified in his deposition that he “probably” saw this report in
1982, ECF No. 85-7 at 82, and defendants urge the Court to
“presume” knowledge of the report, given that it was issued by a
public agency, ECF No. 132 at 10. But Hubbard-Hall denies that
Mr. Skipp in fact saw the report in 1982, ECF No. 108 at 2–3, and
though the report was issued by a public agency the record does
not demonstrate whether or how easily Hubbard-Hall could have
acquired a copy. Similarly, defendants argue that a report
generated by an environmental consultant in 2006 shows PCB
contamination on Hubbard-Hall’s property, ECF No. 85-1 at 24–25,
but Hubbard-Hall’s evidence tends to show that defendants have
misread the report, ECF No. 108, at 15–16. These factual
disputes are properly resolved by a jury, not the Court.
25
judgment based on the following facts, which are either
undisputed or, where noted, the object of a dispute resolved in
Hubbard-Hall’s favor.13
In 1992, the EPA engaged a consulting firm called Roy F.
Weston, Inc. (“Weston”) to inspect Hubbard-Hall’s property.
Weston collected nine soil samples and analyzed them to determine
whether they contained certain contaminants, including PCBs.
Weston detected the presence of PCBs in two of the samples.
No. 109 at 19, 20.
ECF
It described its findings in a report
delivered to Hubbard-Hall in 1993:14
PCBs (Aroclor 1254) were detected at high
concentrations in soil samples SS-07 and SS-08.
Aroclor 1254 was detected at 35.3 times the SQL in SS07 (1200 ug/kg) and 188.2 times the SQL in SS-08 (6400
ug/kg). Hubbard hall (sic) has never used or generated
waste containing PCBs and it is unknown what this
contaminant may be attributed to.
ECF No. 85-9, at 8.
Old Monsanto manufactured PCBs under the
trade name “Aroclor,” and Aroclor 1254 is the particular
contaminant for which Hubbard-Hall seeks remediation costs.
Site
13
Defendants also argue that Hubbard-Hall essentially pleads
notice in its complaint: it states that it bought PCB-containing
paint in the 1950s “because of the unique features of PCBs.” ECF
No. 38, at ¶ 136. There is some merit to defendants’ position,
but it is not clear beyond dispute that this demonstrates
Hubbard-Hall’s awareness that PCBs were used on its property.
Hubbard-Hall might have known that its preferred paint had
valuable properties without knowing that those properties were
due to the presence of PCBs. At this stage in the litigation,
the Court must assume that to be the case.
14
The parties agree Hubbard-Hall’s corporate officers viewed the
report when it was issued.
26
SS-07, at which Weston found PCBs in a concentration of 1200
ug/kg, is located about 100 feet from the edge of the area
(adjacent to the Tank Farm Building) found to be contaminated in
2008.
Site SS-08, contaminated with PCBs to the tune of 6400
ug/kg, is about 310 feet from the edge of the affected area.15
ECF No. 109, at 22 n.10.
Hubbard-Hall took no steps to remediate PCB contamination
following its receipt of the Weston Report.
ECF No. 85-5, at 22.
But in 1997, it hired an environmental consultant, HRP
Associates, Inc. (“HRP”), to test its property for chemical
contaminants.
HRP issued a report that summarized information
generated by earlier investigations.
ECF No. 108, at 6–7.
The
reported was delivered to Margaret Hart, Hubbard-Hall’s
environmental manager.
ECF No. 85-5, at 146–51.
Two aspects of the HRP report are of interest.
First, the
copy of the report produced from Hubbard-Hall’s files contains
highlighting.
In the portion of the document discussing the
earlier Weston Report,16 the word “PCBs” is highlighted in yellow.
So is the sentence, “The source for the PCBs does not appear
attributable to Hubbard Hall manufacturing or waste generation
practices.”
ECF No. 85-10, at 5.
15
According to Hubbard-Hall, the
Hubbard-Hall has provided some context for these numbers: it
notes that the EPA’s residential cleanup standard for PCBs in
soil is 1000 ug/kg. ECF No. 108, at 6. Noting that the reading
for SS-07 was just 1200 ug/kg, Hubbard-Hall disputes Weston’s
characterization of PCB concentration as “high.”
16
The relevant language is quoted above.
27
report was highlighted by Ms. Hart, who “reviewed the draft and
highlighted certain portions of the text.”
ECF No. 85-20, at 3.
Ms. Hart then gave the report to Hubbard-Hall’s Chairman and
then-President, Charles Kellogg, who “reviewed the draft report
with Ms. Hart’s highlights and added written notes.”
Id.
Second, the HRP report mentioned an earlier incident
concerning the presence of PCB’s on Hubbard-Hall’s property.
The
report stated that in 1982, the DEP had received an anonymous tip
accusing Hubbard-Hall of dumping some 8000 gallons of toxic
solvents into a pit on its land.
ECF No. 85-10, at 8.
The DEP
had investigated and taken two soil samples, which were tested
for the presence of contaminants.17
The HRP report reads: “Both
samples also contained . . . PCBs with interferences."18
Hubbard-Hall appears to have taken no remedial steps in the
immediate wake of the HRP report.
In 2000, however, it hired a
firm called ALTA to investigate its property.
that ALTA’s efforts involved testing for PCBs.
It is undisputed
According to
Hubbard-Hall, this was not because it had any particular concern
that PCBs would be found on its land.
17
Rather, given the
As discussed above in n.12, Hubbard-Hall admits it knew about
the anonymous tip but denies it learned the results of DEP’s
testing.
18
The ellipses in the quoted language stand in for a portion of
the text that is unreadable because it is covered by a Post-It
note. Handwriting on the note reads, “PITS – PCB.” ECF No. 8510, at 9. This note was apparently placed on the report by
defendants’ counsel during this litigation, not a Hubbard-Hall
employee at an earlier date. ECF No. 85-20, at 3.
28
circumstances – Hubbard-Hall was trying to demonstrate the
absence of contaminants to the satisfaction of federal regulators
– it was cost-effective to test for virtually all chemicals that
might have been present.
ECF No. 108, at 10.
On defendants’
motion for summary judgment, the Court credits Hubbard-Hall’s
version of events.
ALTA tested twenty-two locations on the lower portion of
Hubbard-Hall’s property (the location of the Tank Farm Building)
and 39 locations on the upper portion.
ECF No. 105, at 22.
2003, it generated a report summarizing its findings.
In
The
section of the report entitled “Conclusions and Recommendations”
reads as follows:
The explorations, sampling and analyses performed
by ALTA have generally been sufficient to evaluate the
presence / absence of releases from identified
[potential areas of concern] . . . . Results of these
investigations are summarized below. Exceedances of
the DEP default soil remediation standards were noted
in the following areas, which warrant remediation or
other action . . . :
(1)
Soil just southwest of the former South Loading Dock
was found to be contaminated with PAHs, pesticides
and PCBs . . . .
(2)
Shallow soil (8 to 12 in.) near the northwesterly
corner of the building was found to be contaminated
with PCBs. . . .
Additional Phase III investigations into the degree and
extent of soil and groundwater contamination . . .
where remediation or other action is warranted under
the RSRs, are recommended in all of the aforementioned
areas.
ECF No. 85-30, at 9–11.
Hubbard-Hall did not undertake all the
29
follow-up investigatory steps recommended by ALTA because it
would have been “disruptive” and “expensive.”
ECF No. 85-4, at
15.
Defendants argue that this evidence plainly demonstrates
Hubbard-Hall’s knowledge of PCB contamination and the need for
further investigation and remediation.
Hubbard-Hall, however,
has produced evidence suggesting that the report should not be
taken at face value.
An ALTA employee has stated in an affidavit
that ALTA’s testing found no PCB contamination.
22.
ECF No. 105, at
She explains that the language quoted above – “soil . . .
was found to be contaminated with PCBs” – was added to the report
to address a “theoretical” gap in the data.
ECF No. 105, at 30.
ALTA had tested for total PCBs, but not “leachable” PCBs; it was
possible, in theory, that further testing would reveal the
presence of leachable PCBs.
Id.
The Court, like defendants,
finds it somewhat odd that ALTA articulated the existence of a
data gap by affirmatively stating that Hubbard-Hall’s property
was contaminated with PCBs.
But the Court nonetheless accepts
Hubbard-Hall’s account and assumes that the ALTA report was
understood to say that ALTA’s tests did not reveal the presence
of PCBs.
Finally, in 2004, DEP inspected Hubbard-Hall’s property and
issued a report.
Hubbard-Hall appears to concede that it
received a copy.
The report states: “The soils and groundwater
30
[on Hubbard-Hall’s land] are significantly contaminated with
solvents, metals, petroleum products, pesticides and
polychlorinated biphenyls [PCBs].”
ECF No. 85-33, at 3.
John
Paul, a Hubbard-Hall employee charged with overseeing
environmental compliance, testified in his deposition that he
“maybe . . . missed that particular sentence” in the report, or
“didn’t pay attention because [he] was more concerned about”
contaminants other than PCBs.
ECF No. 85-17, at 21.
1. Notice
The sole question for the Court is whether these “references
to and mentions of PCBs” put Hubbard-Hall on notice that its
property was contaminated through the fault of another party.19
ECF No. 109, at 3.
The Court concludes that they did and no
reasonable jury could find otherwise.
Hubbard-Hall’s claim
accrued when it discovered its injury or should have discovered
it in the exercise of reasonable care.
19
Conn. Gen. Stat. § 52-
Hubbard-Hall also raises authentication and hearsay arguments,
but these do not require much discussion. Hubbard-Hall’s
authentication argument must be rejected in light of Attorney
White’s affidavit (ECF No. 133), which amply demonstrates that
defendants are able to authenticate the documents on which they
rely. As for the hearsay question, defendants are not offering
these documents to prove the truth of what they assert (that PCBs
were present on Hubbard-Hall’s property). See Fed. R. Evid.
801(c). There is no question that PCBs were present on the
property; Hubbard-Hall alleges that it painted the Tank Farm
Building with PCB-containing paint in 1954. Defendants instead
offer these documents to demonstrate that Hubbard-Hall was on
notice of likely contamination. The documents therefore fall
outside the definition of hearsay.
31
577c(b).
This occurred in 1993.
And if it somehow did not occur
in 1993, it occurred in 1997.
To briefly recount the facts discussed above, in 1993
Hubbard-Hall received a report from a consulting firm, Weston,
engaged by the EPA to inspect its property.
The report noted
“high concentrations” of Aroclor 1254, the contaminant in issue
in this case, in the soil near the Tank Farm Building.
It also
noted that Hubbard-Hall had never used or generated waste
containing PCBs, meaning that the contamination was attributable
to a third party.
Four years later, Hubbard-Hall received a copy
of another report, this one issued by its own consultant, HRP.
It recited the language from the Weston report.
Hubbard-Hall’s
environmental manager read that language, highlighted it, and
showed the highlighted report to Hubbard-Hall’s Chairman and
President.
The same report stated that a 1982 DEP investigation
detected PCBs on another portion of the company’s property.
Hubbard-Hall therefore faces a difficult task: it must
explain why three reports (one authored by DEP, one by a
consultant hired by EPA, one by Hubbard-Hall’s own consultant)
stating that its property was contaminated with PCBs failed to
put it on notice that its property was contaminated with PCBs.
Hubbard-Hall endeavors to show that prior to 2008, the company
could not be sure that its property was contaminated with PCBs.20
20
There is one exception: Hubbard-Hall argues that the 2004 DEP
report did not put it on notice of contamination because ALTA’s
32
Of the Weston report, for instance, it notes that Weston
characterized its results as "approximate."
The report also
detected PCBs in "diluted" samples, which, according to HubbardHall, rendered its results "unreliable and unconfirmed."
108, at 47.
ECF No.
Similarly, the 1997 HRP report relied in part on
Weston's conclusions, so it exhibits all the Weston report's
infirmities.
report.
Moreover, it was just a "draft" report, not a final
ECF No. 109, at 23.
As for the 1982 DEP investigation
described in the HRP report, Hubbard-Hall was not made aware of
"what method the state laboratory may have used for its alleged
PCB testing."
ECF No. 109, at 16.
What is more, "the DEP report
does not include any backup data" to support its conclusions, and
thus failed to demonstrate the presence of PCBs to Hubbard-Hall's
satisfaction.
Id.
Hubbard-Hall misapprehends the relevant inquiry and its
responsibilities under the law.
It was not incumbent on Weston,
HRP or DEP to convince Hubbard-Hall based on unimpeachable
evidence that its property was contaminated with PCBs.
It was
rather incumbent on Hubbard-Hall to take reasonable steps to
protect its interests once it learned it had probably been
injured.
To take just one example, Hubbard-Hall was not entitled
investigation (which occurred between 2000 and 2003) did not
detect PCBs. A reasonable person, it urges, would have
discounted DEP’s conclusions because they were contradicted by
ALTA’s data. The Court will assume that a reasonable jury could
so find.
33
to ignore the DEP’s finding that PCBs were present on its land
because the DEP’s report did not describe its testing methods or
furnish Hubbard-Hall with backup data.
Were the law otherwise,
potential plaintiffs could manipulate the limitations period
through the simple expedient of closing their eyes to what they
suspect or even believe to be true.
This concern is particularly
salient in the context of toxic clean-up cases.
A party like
Hubbard-Hall, on notice of likely contamination, might rationally
keep mum in the hope that regulators would never order it to
remediate.
In the event remediation happened to be mandated, the
party would lose nothing; it would simply sue then.
And if
contamination were to escape official notice indefinitely, so
much the better – no need to sue, and no need to remediate.
The law sensibly expects more from companies on notice of
contamination.
When Hubbard-Hall received reports indicating
that its land was contaminated with PCBs, it was obliged to take
reasonable steps to determine whether PCBs were indeed present
and, if they were, where they came from.
Under the case law,
It failed to do so.
Hubbard-Hall’s inaction was not justified
simply because its information might have been incomplete.
In
Vector-Springfield, for instance, the plaintiff planned to sell a
parcel of land.
It knew the parcel adjoined the site of a
defunct coal gas manufacturing plant.
F.3d at 807.
Vector-Springfield, 108
An environmental consultant engaged to evaluate the
34
parcel prior to sale wrote the plaintiff a letter stating,
“Investigations at similar former gas plant sites have revealed
contamination of soils and groundwater, in some cases well beyond
the site boundaries.”
Id.
The consultant therefore recommended
further investigation of the site.
Some time later, its
suspicions were confirmed: the parcel was indeed contaminated.
The Seventh Circuit held that the plaintiff’s cause of action
accrued when it saw the consultant’s letter: “[A] reasonable
person, possessed of such a letter, would be put on notice of its
injury and . . . should determine whether legally actionable
conduct was involved.”
Id. at 810;21 see also Highland Indus.
Park, Inc. v. BEI Defense Sys., 357 F.3d 794, 797 (8th Cir. 2004)
(plaintiff on notice of injury when it received an environmental
consultant’s report stating “that the contaminants in its
groundwater exceeded the maximum contaminant levels established
by the [EPA] as safe”); OBG Tech. Servs., Inc. v. Northrop
Grumman Space & Mission Sys. Corp., 503 F. Supp. 2d 490, 522 (D.
Conn. 2007) (claim dismissed because plaintiff, on notice of
contamination from an unknown source, failed to explain “what, if
anything, it did to try to determine the source of the”
contamination); SPS Ltd. P’ship, LLLP v. Severstal Sparrows
21
Vector-Springfield was decided under Illinois’s statute of
limitations, not Connecticut’s. But Illinois marks accrual in
the same fashion as Connecticut: the limitations period runs from
the time a plaintiff knows or should know she has been harmed.
Conn. Gen. Stat. § 52-577c(b); Vector-Springfield, 108 F.3d at
810 n.3.
35
Point, LLC, 808 F. Supp. 2d 794, 814–15 (D. Md. 2011) (“Because
the Phase I Environmental Assessment . . . states ‘that
contamination from at least one of [the five study areas] . . .
could be impacting the . . . site,’ it is clear that Plaintiffs
had ‘knowledge of circumstances which would cause a reasonable
person . . . to undertake an investigation which, if pursued with
reasonable diligence, would have led to knowledge of the alleged
tort.”) (emphasis added); LaBauve v. Olin Corp., 231 F.R.D. 632,
660 n.59 (M.D. Ala. 2005) (“Accordingly, plaintiffs’ reliance on
Pressley’s deposition testimony that she lacked ‘solid
information’ proving offsite contamination . . . is misplaced and
unavailing.”).
In sum, the law does not permit a plaintiff to demand strict
proof of injury before its claim accrues.
On this record, a
reasonable jury would have to conclude that by 1997, at the
latest, Hubbard-Hall had received sufficient notice of
contamination to be charged with responsibility for investigating
its potential injury.
Hubbard-Hall would have discovered its
injury had it acted with reasonable care.
Thus, its claim
accrued no later than 1997 and is now time-barred.22
22
Hubbard-Hall devotes a great deal of attention to ALTA’s
investigation, which in the early 2000s found no evidence of PCB
contamination at 61 sites on the property. In the Court’s view,
the import of ALTA’s investigation is limited to the issue
discussed above in footnote 20. Notice of PCB contamination
received after ALTA’s report, such as the 2004 DEP findings,
might reasonably have been discounted by Hubbard-Hall in reliance
on ALTA’s work. But that does not save the plaintiff from the
36
V.
Accordingly, the motion for judgment on the pleadings is
hereby denied as to count one but granted as to count two.
The
motion for summary judgment is hereby granted.
So ordered this 29th day of March 2015.
/s/
Robert N. Chatigny
United States District Judge
effect of its earlier failure to investigate. Hubbard-Hall
appears to concede that a reasonable investigation undertaken in
the 1990s would have uncovered evidence of contamination.
37
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