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Minyard Enters., Inc. v. Southeastern Chem. & Solvent Co.

Citation: 29 ELR 21369
No. Nos. 98-1207, -1264, 184 F.3d 373/48 ERC 2025/(4th Cir., 07/13/1999)

The court holds that $ 200,000 awarded to a former owner whose property was damaged by an underground storage tank (UST) operator's negligence is not duplicative of the former owner's award for past and future response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). A magistrate judge determined that the UST operator caused the property to be damaged and awarded CERCLA response costs to the former and present owners of the property. The magistrate judge also awarded the former owner damages for the UST operator's negligence under state law. The court first holds that the magistrate judge's finding that the UST operator ruptured one of the USTs on the property, thus proximately causing the property to be damaged, is not clearly erroneous. Soil samples taken from the property revealed the presence of the same type of chemicals supplied by the UST operator for use with the UST system. Furthermore, the magistrate judge's finding is fully supported by eyewitness testimony.

The court next holds that the $ 200,000 award to the former owner on its negligence claim for diminution in value of the property as a result of the UST operator's negligence and the damage award under CERCLA to the former owner do not constitute an impermissible double recovery. The two amounts are intended to compensate the former owner for two separate and distinct harms. Moreover, while the former owner was reimbursed for $ 24,000 it incurred in past response costs, the former owner cannot benefit economically from any future response costs because the former owner no longer owns the property.

The court then holds that the magistrate judge did not err in holding the UST operator liable for contribution under CERCLA § 113(f) despite the former and present owners' failure to expressly seek contribution among potentially responsible parties under CERCLA § 113(f) in their complaint. The owners properly pleaded and proved allegations supporting an entitlement to contribution from the UST operator for response costs under CERCLA § 113(f), and the owners' failure to expressly demand relief in their complaint under § 113(f) did not unfairly prejudice the UST operator. The court, however, holds that in apportioning all response costs under CERCLA § 113(f), the magistrate judge improperly placed the burden of proving the appropriate allocation of response costs on the UST operator rather than on the former and present owners. The court, therefore, vacates the judgment with respect to the damages portion of the owners' contribution claim under CERCLA § 113(f) and remands the case for the magistrate judge to reapportion costs with the burden of proving the UST operator's equitable share resting on the former and present owners.

Counsel for Plaintiffs
William A. Coates
Love, Thornton, Arnold & Thomason
410 E. Washington St., Greenville SC 29603
(864) 242-6360

Counsel for Defendant
David W. Burchmore
Squire, Sanders & Dempsey
4900 Key Tower
127 Public Sq., Cleveland OH 44114
(216) 479-8500

Before Widener and Murnaghan, JJ.