{ Banner Image }
Search this blog

Subscribe for updates

Recent Posts

Blog editor

Blog Contributors

Showing 18 posts in Damages.

Last week the Third Circuit Court of Appeals issued a precedential opinion reversing the Eastern District of Pennsylvania’s decision granting a Motion to Dismiss a complaint filed by homeowners concerning alleged odors and air contaminants emanating from the Bethlehem landfill, thus reviving the case. Baptiste v. Bethlehem Landfill Co., No. 19-1692, slip op. (3d. Cir. July 13, 2020). In doing so, the Court found that a class of Pennsylvania homeowners allegedly affected by landfill odors may bring suit under theories of negligence, public nuisance and private nuisance. Read More »

This Post was authored by Lisa Maeyer, a MGKF summer associate. 

On June 8, 2020, the Commonwealth Court of Pennsylvania affirmed a trial court’s holding that flooding from sewage overflows not resulting from intentional activity on the part of a sanitary authority did not constitute a de facto taking of a landowner’s affected property. In the Matter of: Condemnation by the Franklin Twp. Sewage Auth., No. 1237 C.D. 2019, 2020 WL 3039070 (Pa. Cmwlth. June 8, 2020). In particular, the Court held that because the sewage overflows resulted from the age of the system and infiltration and inflows not caused by any actions of the Franklin Township Municipal Sanitary Authority (the “Authority”), the lower court properly sustained preliminary objections to Plaintiff William Ott’s petition seeking compensation for a de facto taking of his property. Read More »

In an unpublished opinion, Sutton v. Hoffmann-La Roche, Inc., No. A-5545-18T3 (N.J. App. Div. May 27, 2020), the Appellate Division of the New Jersey Superior Court recently affirmed a lower court’s certification of a class seeking damages due to lost property value premised upon the existence of contaminated groundwater.  Certification of similar homeowner classes has been illusive in federal courts, and thus of particular note here, the Appellate Division made clear that the while the language of New Jersey’s class certification rule is “textually similar” to the federal rule, New Jersey’s interpretation of its own rule is “far more liberal and permissive toward class certification.” Op. at 30, n. 6. Although the local nature of the case most likely made the Class Action Fairness Act inapplicable, this decision is further evidence of the importance to defendants in class action litigation of exercising removal jurisdiction whenever possible. Read More »

In a highly anticipated decision, on April 20, 2020, the U.S. Supreme Court ruled that state courts may award restoration damages to landowners who seek, under state law, a more expensive cleanup than that selected by EPA, but as potentially responsible parties under CERCLA they must first receive EPA’s approval of their alternative cleanup plan before they would be entitled to those damages. Atlantic Richfield Co. v. Christian, et al., No. 17-1498 (U.S. Apr. 20, 2020). Beyond its fact-specific holding, the opinion’s broader implications may have a significant impact on CERCLA cleanups and litigation going forward.   Read More »

In Frazer/Exton Development, L.P. v. United States, the United States Court of Appeals for the Federal Circuit affirmed the dismissal of a takings claim against the federal government relating to environmental contamination because the appellants, current and former landowners of the site at issue, filed their lawsuit more than 6 years after environmental remediation was complete. Frazer/Exton Development, L.P. v. United States, No. 2019-2143 (Fed. Cir. Apr. 7, 2020). Read More »

It has been more than a decade since the United States Supreme Court decided Burlington Northern & S.F. R. Co. v. United States, 129 S. Ct. 1870 (2009), holding that liability under Section 107(a) of CERCLA is not necessarily joint and several, but in appropriate circumstances can be divisible. And yet, courts still struggle to determine when liability is divisible and thus subject to apportionment rather than equitable allocation, with the latter, joint and several liability, still remaining the go to default. The March 30, 2020 decision from the U.S. District Court for the Southern District of Indiana, in the case of Von Duprin, LLC v. Moran Electric Service, Inc., No. 1:16-cv-01942-TWP—DML (S.D. Ind. Mar. 30, 2020), is no exception. The Court found that liability for a comingled plume of volatile organic compounds (“VOCs”) was divisible, but then applied equitable factors to allocate liability. And, in getting to its final decision, the Court also discussed what costs can be recovered under 107(a), the standard for determining compliance with the National Contingency Plan (“NCP”), and what steps a lessee needs to take to avail itself of the bona fide prospective purchaser (“BFPP”) defense. This is going to be a long one, so pull up a chair. Read More »

In 2015, a pipeline in Santa Barbara County, California ruptured and leaked oil, some of which made its way to the ocean and eventually washed up on local beaches. A class of plaintiffs brought an action in federal district court against defendants Plains All American Pipeline, L.P., and Plains Pipeline L.P. (“Plains”) for claims of statutory violations, negligence, public nuisance, continuing private nuisance, nuisance per se, and trespass. In response, Plains filed a motion for summary judgment which sought to have the claims of the Property Subclass plaintiffs dismissed, primarily on the basis that the harm caused by the oil spill was a “temporary diminution in property value,” and not recoverable as a matter of law.

Last week, Judge Gutierrez of the District Court for the Central District of California issued an order denying most of the defendants’ motion for summary judgment, thereby allowing the litigation to continue. See Keith Andrews et al v. Plains All American Pipeline, L.P. et al., CV 15-4113 PSG (JEMx) (Mar. 17, 2020). The court held that several of plaintiffs’ claims contained genuine issues of material fact that should be brought before a jury, and that it could not rule as a matter of law that plaintiffs had not suffered harm. The claims which merited the most analysis in the order were the common law property claims, i.e.: negligence, nuisance, and trespass. Read More »

On January 15, 2020, Judge Gerald J. Pappert of the Eastern District of Pennsylvania dismissed two groups of private plaintiffs’ claims against the United States Navy regarding perfluorocarbon contamination, PFOS and PFOA, in drinking water supplies around former Navy facilities in Bucks and Montgomery Counties, Pennsylvania. Giovanni v. U.S. Dept. of Navy, No. 16-4873, 17-765, -- F.Supp.3d --, 2020 WL 224683 (E.D. Pa. Jan. 15, 2020). Read More »

Two recent decisions from two different states, Pennsylvania and West Virginia, suggest that courts are becoming increasingly skeptical of landowners seeking to capitalize on oil and gas companies utilizing horizontal directional drilling (HDD) to access resources under the property of the landowners. Read More »

Rule 23(c)(4) of the Federal Rules of Civil Procedure provides that, “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.” Fed. R. Civ. P. 23(c)(4). Rule 23(b)(3), on the other hand, provides that a class action may be maintained only where “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” R. 23(b)(3). The Second, Fourth, Seventh, and Ninth Circuit have adopted a “broad view” of class certification, permitting a district court to certify a class on particular issues under Federal Rule 23(c)(4), even where the traditional predominance requirements of Rule 23(b)(3) have not been met for the case as a whole. Only two circuits, the Fifth and Eleventh, ascribe to the more “narrow view” in which Rule 23(b)(3)’s predominance requirement is applied to prevent district courts from certifying particular issues under Rule 23(c)(4), without certifying an entire claim. In a recent case brought my homeowners alleging contamination to groundwater, Martin v. Behr Dayton Thermal Products LLC et al., No. 17-3663, --- F.3d ---, 2018 WL 3421711 (6th Cir. July 18, 2018), the Sixth Circuit has now joined the majority of circuits addressing this issue by endorsing the “broad view” of issue-based class certification. Read More »