Opinion
No. CV04-4002076
January 27, 2006
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE SPECIAL DEFENSES #112
The plaintiff, by his amended complaint dated April 18, 2005, has brought a two-count complaint against the defendants seeking injunctive and declaratory relief to protect the public trust in waters and soils of the State of Connecticut pursuant to General Statutes § 22a-16.
General Statutes § 22a-16 provides: "The Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business, except that where the state is the defendant, such action shall be brought in the judicial district of Hartford, for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction provided no such action shall be maintained against the state for pollution of real property acquired by the state under subsection (e) of section 22a-133m, where the spill or discharge which caused the pollution occurred prior to the acquisition of the property by the state."
In October 1999, the plaintiff, Kenneth Devino, acquired ownership of Lot 24 on Echo Lake Road, Watertown, Connecticut. On March 21, 1973, the Connecticut department of environmental protection ("DEP") issued a demolition disposal area permit to the defendants, Waterbury House Wrecking Cc. Inc. and Peter Vileisis, Jr., authorizing the defendants to establish and operate a private demolition debris disposal area on approximately 2.5 acres of land located on Lot 24, Echo Lake Road, Watertown, CT ("Echo Lake Landfill"). Since 1973, when it was issued to the defendants, the permit has not been revoked, modified or altered. As a result of the issuance of the permits to the defendants, the defendants did cause to be deposited solid waste at the Echo Lake Landfill.
Count one of the plaintiff's amended complaint seeks injunctive relief pursuant to General Statutes § 22a-16 to have the defendants close the Echo Lake Landfill pursuant to DEP landfill closure regulations. The controversy between the plaintiff and defendants is as to who has the responsibility to: (1) investigate, remediate and/or mitigate soil, surface water and ground water contamination, in, on, under and mitigating from the Echo Lake Landfill, (2) closing the landfill in accordance with the 1973 Permit, the DEP landfill closure regulations and closure plan and (3) to perform post-closure ground water monitoring of the landfill. Count two of the amended complaint seeks a declaratory judgment as to the rights and responsibilities of the parties with respect to the above controversies.
The defendants have pled five special defenses to the plaintiff's amended complaint.
The first special defense alleges that the defendant, Vileisis, has acted as agent for and/or on behalf of the defendant, Waterbury Housewrecking and, therefore, he is not personally or individually responsible.
The second special defense alleges that the defendant, Waterbury Housewrecking, properly placed demolition materials from a single residential structure on the Echo Lake Landfill in 1973 and thereafter ceased to dispose of any other solid waste of that location. Therefore, any other waste at the location was caused to be placed there by other persons or entities.
The third special defense alleges that the plaintiff's claims are barred by General Statutes § 52-577, which establishes a three-year statute of limitations for tort actions.
General Statutes § 52-577 provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
The fourth special defense alleges the plaintiff's claims are barred by General Statutes § 52-584, which establishes a two-year statute of limitations to recover damages to property caused by negligence and/or wanton reckless misconduct.
General Statutes § 52-584 provides: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed."
The fifth special defense alleges the plaintiff's claims are barred by General Statutes § 52-577c, which establishes a two-year statute of limitations to actions to recover for damages claims which arise from exposure to hazardous chemical substances.
General Statutes § 52-577c provides:
"(a) For the purposes of this section: (1) `Environment' means any surface water, ground water, drinking water supply, land surface or subsurface strata or ambient air within the state or under the jurisdiction of the state; (2) `exposure' means any contact, ingestion, inhalation or assimilation, including irradiation; (3) `hazardous chemical substance or mixture' means petroleum, a petroleum product or any chemical substance or mixture for which there is a federal standard, including any law, requirement, tolerance, prohibition, action level or similar legal authority adopted by an agency pursuant to federal law, including any such standard or legal authority adopted by a state or local government pursuant to federal law, generally intended to prevent, reduce or mitigate the risk of a disease or class or type of diseases to an individual or individuals resulting from exposure to such chemical substance or mixture; (4) `hazardous pollutant' means any designated, specified or referenced chemical considered to be a `hazardous substance' under Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 USC 9601(14); (5) "release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment.
(b) Notwithstanding the provisions of sections 52-577 and 52-577a, no action to recover damages for personal injury or property damage caused by exposure to a hazardous chemical substance or mixture or hazardous pollutant released into the environment shall be brought but 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.
(c) The provisions of subsection (b) of this section shall not apply to an action brought against (1) any municipal waterworks system established and operated under chapter 102 or any special act, (2) any regional water authority established under any general statute or special act, or (3) any water company as defined in section 16-1."
The plaintiff moves to strike each of the defendants' five special defenses. As to the first special defense, the plaintiff moves to strike the entire defense as legally insufficient as the defense as pled is not a defense to plaintiff's cause of action. The plaintiff moves to strike the second special defense as legally insufficient in that even if the defendants only had deposited waste at the landfill once, the defendants are still responsible to close the landfill pursuant to the DEP permit and DEP regulations. As to the third, fourth and fifth special defenses, the plaintiff moves to strike each as legally insufficient in that the statute of limitations pled relate to damages and, therefore, are not applicable to a cause of action brought pursuant to General Statutes § 22a-16 seeking injunctive and declaratory relief.
A party may contest the legal sufficiency of any special defense by way of a motion to strike. Practice Book § 10-39(a)(5). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a . . . motion to strike, all well-pleaded facts and these facts necessarily implied from the allegations are taken as admitted." Saunders v. Stigers, 62 Conn.App. 138, 143, 773 A.2d 971 (2001). (Internal quotation marks omitted.) "The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaints . . . to state a claim upon which relief can be granted." Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). (Internal quotation marks omitted.)
As to the defendants first special defense, that the defendant, Vileisis, was acting as the agent for the principle, Waterbury Housewrecking, a recently released Supreme Court decision is on point relative to liability of the agent as it applies to actions brought pursuant to General Statutes § 22a-16. In Ventres v. Goodspeed Airport, 275 Conn. 105, 881 A.2d 937 (2005), our Supreme Court stated the following: "It is well established that an officer of a corporation does not incur personal liability for its torts merely because of his official position. Where, however, an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby . . . Thus, a director or officer who commits the tort or who directs the tortious act done, or participates or operates therein, is liable to third persons injured thereby, even though liability may also attach to the corporation for the tort.
We conclude in the present case that the trial court's determination that Mellon personally directed Evans to clear-cut the trees is amply supported by the record. Accordingly, we conclude that the trial court properly determined that Mellon was personally liable for cutting the trees under §§ 22a-44(b) and 22a-16a. It is immaterial whether Mellon was acting in his individual capacity or on behalf of the corporation." (Citations omitted; internal quotation marks omitted.) Id., 141-43.
Also, noted by the Supreme Court in Ventres, supra, is the decision of BEC Corp. v. Dept. of Environmental Protection, 256 Conn. 602, 775 A.2d 928 (2001), a case involving the enforcement of the Water Pollution Control Act (General Statutes § 22a-416 et seq.). The BEC court stated:
"We hold that a corporate officer is personally liable for the abatement of a violation of § 22a-432 when (1) the officer is in a position of responsibility that allows that officer to influence corporate policies and activities; (2) there is a nexus between the officer's actions or inactions in that position and the violation of § 22a-432 such that the corporate officer influenced the corporate actions that constituted the violation; and (3) the corporate officer's actions or inactions resulted in the violation." Id., 618.
Based on the case law as expressed by our Supreme Court, the defendants' first special defense fails to state a legally sufficient defense to the plaintiff's cause of action under General Statutes § 22a-16. The first special defense is ordered stricken.
The defendants' second special defense alleges that the defendants are not responsible for other waste deposited at the landfill not attributable to the waste they deposited one time in 1973. The defendants did not cite any authority to support this special defense. They argue that the equities of the allegations allow them to maintain this defense. On careful reading of the special defense, the court finds that the defense is in the nature of a denial of liability by the defendants. Therefore, the court finds that the defendants' special defense is not a legally sufficient special defense as defined in Practice Book § 10-50 and, accordingly, grants the plaintiff's motion to strike the defendants' second special defense.
The third, fourth and fifth special defenses pled by the defendants allege that the various statute of limitations apply as a bar to the plaintiff's cause of action. The court's analysis is to review the special defenses collectively regarding the application of statutes of limitations to the underlying cause of action.
The court begins with a review of the legislative history of General Statutes § 22a-16, known as House Bill 5037, No. 96 of Public Acts 1971. Representative Papandrea spoke in support of § 22a-16 as follows:
"This bill, does not, Mr. Speaker, expand the power of the court to award money damages in these suits. It should be clearly understood that the only relief that is available here is equitable relief, namely a declaratory judgment which does not involve dollars or an injunction prohibiting the carrying on or conduct of the activity which is the subject matter of the lawsuit. 14 H.R. Proc., Pt. 2. 1971 Sess., pp. 739-40.
Then it permits any citizen of this state to bring a suit for declaratory or equitable relief against anyone else including the state and any of its subdivisions which would include any municipality or its subdivision, or any other person or legal entity who unreasonably pollutes the environment."
14 H.R. Proc., supra, p. 74a.
Senator Pac speaking in support stated:
Now this bill will permit a suit for declaratory judgment and equitable relief. It does not concern itself with damages and if any are sought they would have to be pursued in subsequent litigation. 14 S. Proc., Pt. 3, 1971 Sess., p. 1090.
The legislative history is clear that the only cause of action allowed under General Statutes § 22a-16 is for declaratory or injunctive relief, not for monetary damages.
General Statutes § 22a-16 was first reviewed by the Supreme Court in the case of Greenwich v. Connecticut Transportation Authority, 166 Conn. 337, 348 A.2d 596 (1974). The Greenwich court found that although "any person" could institute a cause of action under the statute, it did not prevent the act from constituting "state regulation," as stated specifically:
It could be argued that because the Environmental Protection Act of 1971 did not place complete regulatory authority over various forms of pollution within a traditional regulatory agency, but instead conferred standing to sue on a wide variety of agencies, municipalities and other entities, including `any person,' it cannot be said to establish `state regulation.' We are of the opinion, however, that § 22a-16 is an example of a legislative enactment of what has been described as the expanding doctrine of `private attorney generals,' who are empowered to institute proceedings to vindicate the public interest . . . By utilizing this procedure, the legislature expanded the number of potential guardians of the public interest in the environment into the millions, instead of relying exclusively on the limited resources of a particular agency. That this is the case is demonstrated by the provisions of § 22a-20, which states, in part, as follows: `Sections 22a-14 to 22a-20, inclusive, shall be supplementary to existing administrative and regulatory procedures provided by law and in any action maintained under said sections, the court may remand the parties to such procedures.' (Emphasis in original.) The mere fact that the Environmental Protection Act of 1971 allows towns or private citizens to initiate proceedings, for example, to enforce public health codes, does not prevent the act from constituting `state regulation.' (Citation omitted.) Id., 343-44.
Therefore, it may be concluded that regardless of the entity commencing an action pursuant to General Statutes § 22a-16, said cause of action is brought for the benefit of the state and its citizens to protect the environment.
Is the statute of limitations a defense to the state in an equitable proceeding? The answer has historically been "no."
In State v. Goldfarb, 160 Conn. 320, 278 A.2d 818 (1971), the Supreme Court restated the precedent as follows:
It may be stated we think as a universal rule in the construction of statutes limiting rights, that they are not to be construed to embrace the government or sovereignty unless by express terms or necessary implication such appears to have been the clear intention of the legislature, and the rights of the government are not to be impaired by a statute unless its terms are clear and explicit, and admit of no other construction. The [s]tate holds the immunities in this respect belonging by the English common law to the [k]ing. (Citation omitted; internal quotation marks omitted.) Id., 323-24. See also Dept. of Transportation v. Canevari, 37 Conn.Sup. 899 (1982).
Also, note the reasoning of the Appellate Court in Joyell v. Commissioner of Education, 45 Conn.App. 476, 696 A.2d 1039, cert. denied, 243 Conn. 910, 701 A.2d 330 (1997), which held:
The plaintiff's argument would have us ignore the legal principle that statutes of limitations do not generally apply to the state. [A] universal rule in the construction of statutes limiting rights [is] that they are not to be construed to embrace the government or sovereignty unless by express terms or necessary implication such appears to have been the clear intention of the legislature, and the rights of the government are not to be impaired by a statute unless its terms are clear and explicit, and admit of no other construction . . . Furthermore, a subdivision of the state, acting within its delegated governmental capacity, is not impliedly bound by the ordinary statute of limitations . . . Thus, the board as an agency of the state is not subject to a statute of limitations unless it is expressly declared by the legislature. The legislature has not chosen to include such a limitation here. General Statutes § 10-145 (m). Where, as here, the language of a statute is clear and unambiguous, courts may not by construction supply omissions in a statute merely because the court feels that it has good reasons for doing so and that the statute would thereby be improved . . .
* * * *
On the basis of the lack of any applicable statute of limitations, and the other considerations previously set forth, we conclude that it was not unreasonable for the hearing officer to admit and for the board to consider evidence and testimony of past misconduct of the plaintiff, notwithstanding that such misconduct occurred beyond the time limited by statutes of limitation that would pertain in other kinds of legal actions. (Citations omitted; internal quotation marks omitted.) Id., 485-87.
Significant for this court's consideration is the following language of the Supreme Court in Dunham v. Dunham, 204 Conn. 303, 528 A.2d 1123 (1987), rev'd on other grounds, Santopietro v. New Haven, 239 Conn. 207, 213, 682 A.2d 106 (1996):
The fallacy in the defendant's argument is his assumption that a court, acting under its equitable powers, is bound to apply the statute of limitations that governs the underlying cause of action. In fact, in an equitable proceeding, a court may provide a remedy even though the governing statute of limitations has expired, just as it has discretion to dismiss for laches an action initiated within the period of the statute . . . Although courts in equitable proceedings often look by analogy to the statute of limitations to determine whether, in the interests of justice, a particular action should be heard, they are by no means obliged to adhere to those time limitations. (Citation omitted.) Id., 326-27.
A collective analysis of the legislative history and case precedent would have this court conclude that because there is no specific statute of limitations that is applicable to General Statutes § 22a-16 as created by the legislature, then none of the statute of limitations pled by the defendant would be applicable to this cause of action. First, the action is brought by the plaintiff pursuant to General Statutes § 22a-16, whereby it becomes a "state regulation" enjoying the sovereign's authority. Secondly, the cause of action seeks injunctive and declaratory relief which falls under the court's equitable powers. Lastly, the statute of limitations pled by the defendants all pertain to damages suffered and sought to be compensated for, whereas this cause of action brought by the plaintiff pursuant to General Statutes § 22a-16 does not seek damages but equitable relief only.
The one final issue the court must deal with is the case of Visconti v. Pepper Partners Ltd Partnership, 77 Conn.App. 675, 825 A.2d 210 (2003). Visconti is cited by the defendants for the proposition that an action brought pursuant to General Statutes § 22a-16 may be barred by the statute of limitations contained in General Statutes § 52-577. In Visconti, however, the plaintiffs did not dispute the applicability of General Statutes § 52-577 to their cause of action under General Statutes § 22a-16. The Appellate Court made no analysis or consideration of a claim of inapplicability of the statute of limitations contained in General Statutes § 52-577, as the plaintiffs had conceded its application to their cause of action. Instead, the plaintiffs argue in Visconti that the defendants were under a continuing duty to remediate environmental pollution and, therefore, General Statutes § 52-577 did not begin to run because the defendants had continually breached their duty.
In the present case, the plaintiff does not make such concessions in his arguments. The plaintiff argues that the statute of limitations pled by the defendants are inapplicable to the plaintiff's claims for relief sought pursuant to General Statutes § 22a-16. The court's analysis, as indicated above, persuades the court to agree with the plaintiff. The court orders that the defendants' third, fourth and fifth special defenses be stricken.
In conclusion, the plaintiff's motion to strike the first, second, third, fourth and fifth special defenses in the defendants' amended answer, dated June 10, 2005, is granted as to all special defenses.