Opinion
No. X06 CV 08 4018262 S
March 10, 2010
MEMORANDUM OF DECISION RE ON THE PLAINTIFF'S MOTION TO STRIKE SECOND SPECIAL DEFENSE (#148)
STATEMENT OF THE CASE
This action was instituted by the plaintiff, the Commissioner of Environmental Protection, concerning alleged contamination of property with polychlorinated biphenyls ("PCBs"). The defendants are Sergy Company, LLC and Magnetek, Inc. The operative complaint is the amended complaint filed on September 11, 2008. The amended complaint alleges that Sergy Co. is the owner of the property located in Bridgeport, Connecticut. The amended complaint further alleges that in 2001 Magnetek filed a Form III certification with the Connecticut Department of Environmental Protection ("DEP") because of Magnetek's participation in the transfer of the business operating on the property. This Form III filing was made pursuant to the Transfer Act, General Statutes § 22a-134 et seq. According to the amended complaint, a dispute arose between Sergy Co. and Magnetek concerning who was responsible for paying the electrical service necessary to operate a groundwater PCB treatment system located on the property. As a result of this dispute, the electricity necessary to operate this' system was terminated. This termination interfered with the operation of the treatment system, causing PCB contamination.
Pending before the court is the plaintiff's motion to strike (#148) the second special defense asserted by Magnetek in its answer (#146). This special defense is directed to the fifth count of the amended complaint. See Practice Book § 10-51. The facts alleged in the fifth count of the amended complaint are summarized as follows. As a result of its Form III filing, Magnetek "certified to the plaintiff that it would investigate the [p]roperty in accordance with prevailing standards and guidelines and remediate pollution caused by any release at the [p]roperty in accordance with the Remediation Standards Regulations." (Amended Complaint, fifth count, ¶ 8.) In a letter dated July 16, 2002, the DEP informed Magnetek that, under the Transfer Act, Magnetek was required to submit a proposed schedule for: "(1) investigating and remediating the [property]; (2) submitting to the [DEP] technical plans, technical reports and progress reports related to such investigation and remediation; and (3) providing public notice of the remediation prior to the initiation of such remediation . . ." (Amended Complaint, fifth count, ¶ 10.) The amended complaint alleges that Magnetek did not comply with this requirement, and therefore, violated the Transfer Act, specifically General Statutes (Rev. to 2001) § 22a-134a(h), as amended by Public Acts 2001, No. 01-204, § 16 ("former § 22a-134a (h)"). The plaintiff seeks an injunction requiring Magnetek to comply with the Transfer Act and "a civil penalty not to exceed $25,000 per day, to be fixed by the court, for each day of each violation of the Transfer Act pursuant to [General Statutes] § 22a-134b." (Amended Complaint, prayer for relief, ¶ 6.)
Practice Book § 10-51 provides in relevant part: "Where the complaint or counterclaim is for more than one cause of action, set forth in several counts, each separate matter of defense should be preceded by a designation of the cause of action which it is designed to meet, in this manner: First Defense to First Count, Second Defense to First Count, First Defense to Second Count, and so on." (Emphasis in original.)
The plaintiff cites this provision as General Statutes § 22a-134a(i). On October 1, 2001, however, in P.A. 01-204, § 16 the legislature transferred the language, with some changes, of the relevant duty from subsection (i) to subsection (h) without making relevant substantive changes. On October 1, 2006, the legislature, in Public Acts 2006, No. 06-76, § 15, further transferred the language to a new subdivision (1) of subsection (h), its current location. According to the allegations, Magnetek filed its Form III on November 21, 2001, and received the plaintiff's letter requesting that it file an appropriate proposed schedule on July 16, 2002. The effective date of the legislature's amendment in P.A. 01-204 preceded these dates while the amendment creating subdivision (1) had not yet been enacted. Therefore, the applicable provision at the time was subsection (h) and not subsection (i) or subsection (h)(1). Accordingly, for the purpose of clarity, the court will refer to the provision as "former § 22a-134a (h)."
Additionally, the plaintiff requests that "the court issue an order requiring [d]efendants Sergy [Co.] and Magnetek, each, pay a civil penalty not to exceed $25,000 per day, to be fixed by the court, for each day of each violation of [General Statutes] § 22a-467, pursuant to [General Statutes] § 22a-469." (Amended Complaint, prayer for relief, ¶ 8.) The plaintiff also seeks an injunction against Magnetek and Sergy Co. requiring restoration of the electrical service in order to restart the PCB treatment system.
Magnetek's second special defense alleges the following. In 1986, a company named Farley/Northwest Industries, Inc. ("Farley") made a Form III filing regarding the property. Additionally, in 1988, Farley entered into a consent order with the DEP in which Farley agreed to investigate contamination on the property and remediate any such contamination. Starting in 1985 and continuing until after 1988, Farley conducted investigations of the soil and groundwater on the property and implemented various remediation plans, including the construction of a groundwater pump and treatment system. Farley conducted this work under the supervision of the DEP and pursuant to specific reports and plans utilized with the DEP's approval or acquiescence.
In 2001, believing that the investigation and remediation work done by Farley was completed, Magnetek filed a Form II with the DEP. "Thereafter, following consultation with DEP staff, Magnetek filed a Transfer Act Form III on the understanding that [the] DEP would continue to look [to Farley] to fulfill its obligations." (Answer and Special Defenses of Magnetek, second special defense, ¶ 7.) When Magnetek filed the Form III, the DEP did not indicate that Farley's work was deficient or incomplete. Magnetek argues that Farley has the responsibility to take corrective action to address any deficiency in the investigation or remediation of any contamination on the property.
In its special defense, Magnetek also claims that in July 1999, two individuals, Meritt B. Gavin and Alan M. Sergy, transferred the property to Sergy Co. This transfer was covered by the Transfer Act. Under the act, Gavin and Sergy were required to file a Transfer Act certification with the DEP, but no such filing was made. Consequently, no party to that transfer undertook any investigation or remediation work. Magnetek argues, therefore, that any investigative or remediation work required when it made its Form III filing in 2001 was due to the failure of the parties to the 1999 transfer to comply with the Transfer Act and not to any act or omission on the part of Magnetek.
Although the term "apportionment" is not used in the special defense itself, in its objection to the plaintiff's motion to strike, Magnetek contends that the allegations of this defense assert a claim for common-law apportionment. The plaintiff moves to strike the special defense on the grounds that it (1) improperly pleads facts that are inconsistent with the count against which it is directed and (2) fails to state a valid defense. The court agrees with the plaintiff's second argument that Magnetek's second special defense fails to state a legally cognizable defense to the fifth count of the amended complaint. Therefore, the motion to strike is granted.
DISCUSSION I
A motion to strike challenges the legal sufficiency of a pleading, including special defenses. Practice Book § 10-39; Krasnow v. Christensen, 40 Conn.Sup. 287, 288, 492 A.2d 850 (1985) (motion to strike is the proper method of challenging the legal sufficiency of a special defense); see generally, Homecomings Financial Network, Inc. v. Starbala, 85 Conn.App. 284, 287-89, 857 A.2d 366 (2004). The motion admits well pleaded facts but does not admit any legal conclusions or the truth or accuracy of opinions stated in the pleadings. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980). In ruling on a motion to strike, the court is limited to the facts alleged in the challenged pleadings. King v. Board of Education, 195 Conn. 90, 93, 486 A.2d 1111 (1985). The burden of alleging recognizable special defenses rests upon the defendant. Cf. McAnerney v. McAnerney, 165 Conn. 277, 334 A.2d 437 (1973).
II
As previously stated, count five of the amended complaint alleges that Magnetek filed a Form III certification with the DEP under the provisions of the Transfer Act, but failed to comply with the requirements of the act. Because of this failure, the plaintiff seeks civil penalties and injunctive relief. Magnetek asserts a defense of common-law apportionment premised on violations of the act committed by other individuals.
The purpose of the Transfer Act is to provide protection against the conveyance of property containing hazardous waste by requiring the transferor of such property to submit a formal declaration that the property is free of pollution. See Diamond v. Marcinek, 27 Conn.App. 353, 358, 606 A.2d 1001 (1992), rev'd on other grounds, 226 Conn. 737, 629 A.2d 350 (1993). Under General Statutes § 22a-134a(a), persons are prohibited from transferring an establishment, as defined in the act, without adhering to the provisions of the act.
There is no dispute between the parties about the requirements imposed on a Form III filer under the Transfer Act. As a person signing a Form III certification, Magnetek "agree[d] to investigate the parcel in accordance with prevailing standards and guidelines and to remediate pollution caused by any release of a hazardous waste or hazardous substance from the establishment in accordance with the remediation standards." General Statutes § 22a-134 (12). As defined in § 22a-134(6), a certifying party "means . . . a person associated with the transfer of an establishment who signs a Form III . . . and who agrees to investigate the parcel in accordance with prevailing standards and guidelines and to remediate pollution caused by any release at the establishment in accordance with the remediation standards . . ."
Furthermore, former § 22a-134a(h) provided in relevant part: "[i]f the commissioner [of environmental protection] notifies the certifying party to a Form III . . . that the commissioner's review and written approval of the investigation of the parcel and remediation of the establishment [are] required, such certifying party shall, on or before thirty days of the receipt of such notice . . . submit for the commissioner's review and written approval a proposed schedule for: (1) investigating the parcel and remediating the establishment; [and] (2) submitting to the commissioner scopes of work, technical plans, technical reports and progress reports related to such investigation and remediation . . ." In paragraphs ten and eleven of the amended complaint's fifth count, the plaintiff alleges that it gave Magnetek, as a Form III certifying party, a request to submit a proposal as required under former § 22a-134a(h), and Magnetek failed to comply.
General Statutes § 22a-134d provides that a person violating the provisions of the Transfer Act "shall be assessed a civil penalty . . . in accordance with [General Statutes § ]22a-438." Under § 22a-438(a), a liable party "shall be assessed a civil penalty not to exceed twenty-five thousand dollars, to be fixed by the court, for each offense."
There is also no dispute that the plaintiff has the authority to institute a suit to seek fines or injunctive relief against parties who violate the Transfer Act. Specifically, § 22a-438(a) provides that "[t]he Attorney General, upon complaint of the commissioner, shall institute a civil action in the superior court . . . to recover such penalty." Additionally, "[t]he commissioner may also request that the Attorney General bring an action in the superior court . . . to enjoin any person who fails to comply with any provision of [General Statutes §§ ] 22a-134 to 22a-134e . . ." General Statutes § 22a-134a(j); see also General Statutes § 22a-6(a) ("[T]he commissioner shall have the power to . . . institute legal proceedings including, but not limited to, suits for injunctions, for the enforcement of any statute . . . administered . . . by him [or her]").
In summary, the obligations that are being imposed upon Magnetek and enforced by the plaintiff are based on statutory mandates imposed particularly on Magnetek under the Transfer Act. Specifically, in its capacity as a Form III certifying party, § 22a-134(12) required Magnetek "to investigate the parcel" and "remediate pollution," and former § 22a-134a(h) required Magnetek to respond to a request from the DEP for the submission of a proposal for this purpose. These statutory obligations were imposed directly on Magnetek itself and the consequences for the failure to comply with these obligations cannot be deferred or deflected by pointing to what someone else did or should have done based on an "apportionment" theory as alleged in Magnetek's special defense. Consequently, the court agrees with the plaintiff that, in an enforcement action seeking civil penalties and injunctive relief under the Transfer Act, the statutory scheme does not recognize or accommodate any "apportionment" of these responsibilities as purportedly asserted in Magnetek's special defense. See Sergy Co., LLC v. Magnetek, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 06 5007333 (July 10, 2009, Stevens, J.) ( 48 Conn. L. Rptr. 319) ("If the legislature intended to impose some form of priority, indemnification or apportionment among transferors who violate the Transfer Act, it could have done so, but it did not").
Apportionment is a cause of action available to a defendant who may be liable for damages in an underlying action where the fault of other parties may have contributed to a plaintiff's injury. Reilly v. DiBianco, 6 Conn.App. 556, 570, 507 A.2d 106, cert. denied, 200 Conn. 804, 510 A.2d 192 (1986). Generally, where the acts of two or more parties combine to cause a single injury to the plaintiff, any one of those parties may be held liable for the entire amount of damages under the principle of joint and several liability. Gutowski v. New Britain, 165 Conn. 50, 54-55, 327 A.2d 552 (1973). If, however, a defendant can prove that the injury is capable of apportionment, the defendant can, through an apportionment claim, limit the amount that the plaintiff can recover from it to an amount representing that portion of the injury caused by the defendant's acts. Id., 55; accord Reilly v. DiBianco, supra, 568-70.
Under the allegations of count five of the amended complaint, there are no alleged injuries that Magnetek can prove were caused in part by other parties because the wrongful acts at issue solely involve Magnetek's own failure to comply with statutory duties required by the Transfer Act and enforceable by the plaintiff. The specific monetary claims sought by the plaintiff are civil penalties. No authority exists under the statutory scheme of the Transfer Act or under any rule of common law supporting the notion that civil penalties may be "apportioned." Penalties are not imposed to compensate a person for injuries caused by a wrongdoer's conduct. Penalties are imposed for the purpose of punishment and deterrence. See Davis v. Forman School, 54 Conn.App. 841, 851, 738 A.2d 697 (1999) ("Black's Law Dictionary defines a `penalty' as `a sum of money for which the law exacts payment by way of punishment for not doing some act which is required to be done'"). Cf. Commissioner, Enviro. Prot. v. Conn. Bldg. Wrecking, 227 Conn. 175, 186, 629 A.2d 1116 (1993) (imposition of a penalty under § 22a-438 includes factors such as "retribution or punishment").
A certifying party is not without any remedy under the Transfer Act. The Transfer Act creates a private right of action in favor of a transferee holding its transferor strictly liable for remediation costs and damages caused by the transferor's failure to comply with the act. General Statutes § 22a-134b; see also General Statutes § 22a-452(a); Northeast Connecticut Economic Alliance, Inc. v. ATC Partnership, 272 Conn. 14, 40, 861 A.2d 473 (2004); Sergy Co., LLC v. Magnetek, Inc., supra, 48 Conn. L. Rptr. 319.
General Statutes § 22a-134b provides in relevant part: "Failure of the transferor to comply with any of the provisions of sections 22a-134 to 22a-134e inclusive, entitles the transferee to recover damages from the transferor, and renders the transferor of the establishment strictly liable, without regard to fault, for all remediation costs and for all direct and indirect damages."
General Statutes § 22a-452(a) provides the following: "Any person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm or corporation for the reasonable costs expended for such containment, removal, or mitigation, if such oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emergency resulted from the negligence or other actions of such person, firm or corporation. When such pollution or contamination or emergency results from the joint negligence or other actions of two or more persons, firms or corporations, each shall be liable to the others for a pro rata share of the costs of containing, and removing or otherwise mitigating the effects of the same and for all damage caused thereby."
Magnetek does not allege that the individuals identified in its special defense, Farley, Sergy or Gavin, have a transferor relationship with Magnetek as defined under the Transfer Act. See generally General Statutes § 22a-134(1) (with defined exceptions, transfer of establishment "means any transaction or proceeding through which an establishment undergoes a change in ownership").
The Supreme Court's decision in Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 590 A.2d 447 (1991), relied on by Magnetek, is distinguishable. In Carothers, the court stated that `judicial review of any environmental cleanup order should be conducted with reference to the principles of joint and several liability, as limited by the doctrine of apportionment expressed in [Restatement (Second) of Torts §§ 433A, 433B, 879 and 881]." Id., 608. Carothers is distinguishable because it concerned the costs involved in complying with an environmental cleanup order, not civil penalties sought under the Transfer Act. Magnetek also relies on this court's discussion about Carothers in its decision (#142) denying Magnetek's motion for leave to cite in party defendants. In that decision, the court states that its "ruling should not be viewed as definitively addressing or precluding any claim of apportionment that may be asserted by Magnetek." (Ruling on Magnetek's Motion for Leave to Cite in Party Defendants, p. 3.) The court now has the opportunity to consider Magnetek's apportionment claim and concludes that this claim is meritless.
Restatement (Second) of Torts § 433A provides: "Apportionment of Harm to Causes. (1) Damages for harm are to be apportioned among two or more causes where (a) there are distinct harms, or (b) there is a reasonable basis for determining the contribution of each cause to a single harm. (2) Damages for any other harm cannot be apportioned among two or more causes." Connecticut Building Wrecking Co. v. Carothers, supra, 218 Conn. 608-09.
CONCLUSION
Therefore, for the foregoing reasons, the plaintiff's motion to strike Magnetek's second special defense is hereby granted.
So ordered this 10th day of March 2010.