Opinion
No. X03 CV 97 0510328 S
July 30, 2004
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
In a three-count amended complaint alleging willful misconduct (count one), public nuisance (count two), and negligence (count three), the plaintiff, Tanya Tolchin, alleges that she suffers from a serious pre-leukemic illness known as polycythemia vera ("pc Vera") caused by gasoline in her family's well water which leaked from an underground storage tank at a gasoline station owned and operated by the defendant, Shell Oil Company ("Shell"). Specifically, Tolchin alleges that she resided at the home in Woodbury, Connecticut from 1982 to 1989, and that for some period of time prior to May 1986, her drinking water was contaminated by "various toxic chemical components of gasoline, including benzene, a known human carcinogen." (Amended Complaint ¶ 7.) Although Shell "first alerted the family of the potential contamination of their well water in 1989," the plaintiff alleges that she was not diagnosed with pc vera until November 1996. Tolchin also alleges that the leaking gasoline is a hazardous chemical substance or mixture within the definition of General Statutes § 52-577c(a)(1) and therefore subject to the statute of limitations set forth in § 52-577c. This lawsuit was originally filed in November 1997.
General Statutes § 52-577c provides in pertinent part as follows.
Limitation of action for damages caused by exposure to a hazardous chemical substance or mixture or hazardous pollutant.
(a)(3) "hazardous chemical substance or mixture" means petroleum, a petroleum product . . .
(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. CT Page 9515-dj
Pursuant to an earlier version of § 52-577c which specifically excluded petroleum and petroleum products from the definition of "hazardous chemical substance or mixture," this lawsuit was stricken in its entirety by the court on statute of limitations grounds on February 3, 1998. Tolchin v. Shell Oil Co., Superior Court, judicial district of New Haven at New Haven, Docket No. 398334 (February 3, 1998, O'Keefe, J.). While the matter was pending appeal, § 52-577c was amended (P.A. 98-140), to include petroleum and petroleum products. A substitute complaint (second substitute complaint), was thereafter filed on February 25, 1998, and the appeal was withdrawn. The operative complaint, referred to herein as the amended complaint filed July 25, 2000, followed a denial of a motion to strike the second substitute complaint. Tolchin v. Shell Oil Co., Superior Court, judicial district of New Haven at New Haven) Docket No. 398334 (October 18, 1999, Zoarski, J.T.R.).
Presently before the court is Shell's motion for summary judgment. Shell contends that, 1) Tolchin's negligence and willful misconduct counts are barred by the three-year statute of repose set forth in General Statutes § 52-584, as she filed this action at least eight years after any wrongful conduct by Shell, and 2) even if the two-year discovery-based limitation period for claims arising out of hazardous chemical exposure in § 52-577c(b) applies to all three counts of the complaint, Tolchin's claims are time-barred because she either discovered or should have discovered her injuries more than two years before filing her complaint. Tolchin counters that all three claims are subject to § 52-577c(b), and that while she exhibited certain symptoms of pc vera since 1989, she did not discover her injury for purposes of triggering the limitation period until her formal diagnosis in 1996, within two CT Page 9515-dd years of filing this action in November 1997.
General Statutes § 52-584 provides in pertinent part as follows.
No action to recover damages for injury to the person . . . caused by negligence, or by reckless or wanton misconduct . . . 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 . . .
"[S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Gould v. Mellick Sexton, 263 Conn. 140, 146, 819 A.2d 216 (2003). The instant motion presents two issues for resolution. The first is which limitation period pertains to Tolchin's claim, § 52-584, as Shell claims, or § 52-577c(b), as Tolchin claims. If § 52-584 applies, the three-year statute of repose in that section would mandate summary judgment in favor of Shell as there is no dispute that the act or omission complained of by Tolchin took place no later than 1989. If, however, the pure discovery-based statute of limitations set forth in § 52-577c(b) applies, as Tolchin claims, the court must determine whether, viewing the evidence in the light most favorable to Tolchin, there is a genuine issue of material fact as to when she discovered, or in the exercise of reasonable care should have discovered her injury. General Statutes § 52-577c(b). Because the court finds that § 52-577c(b) is the applicable statute of limitations to be applied to Tolchin's complaint, and because there is a material issue of fact (based on the evidence offered in connection with the motion for summary judgment), as to whether in the exercise of reasonable care Tolchin should have discovered her injury before her November 1996 diagnosis of pc vera, the motion for summary judgment must be denied.
II
The crux of the debate over the applicable limitation period focuses on whether the language of § 52-577c(b) preempts the statute of limitations for negligence actions set forth in § 52-584. Since § 52-584 applies to both the willful misconduct (count one) and negligence (count three) claims, the analysis as to both counts is identical and is addressed as a single issue herein.
Section 52-577c(b) provides:
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 CT Page 9515-de or in the exercise of reasonable care should have been discovered.
(Emphasis added.) As noted previously, § 52-577c(a) defines "hazardous chemical substance or mixture" to include petroleum or a petroleum product, such as gasoline.
In support of its motion for summary judgment, Shell contends that because the General Assembly specifically excepted claims falling within § 52-577c from the operation of §§ 52-577 and 52-577a (the limitation periods for general tort actions and product liability claims, respectively), we may infer from its silence as to § 52-584, that it did not intend to exempt willful misconduct or negligence claims arising out of environmental pollution from the operation of § 52-584. The legislative history of § 52-577c makes no mention of § 52-584.
Although Shell claims that there is an unresolved split of authority among Connecticut trial courts on the foregoing question, the court finds that the decisions cited by Shell are distinguishable. See Benson v. Town of Redding, Superior Court, judicial district of Danbury, docket no. 344668 (February 4, 2003, White, J.) (property damage claims were all time-barred irrespective of the statute applied; intersection of § 52-577c and § 52-584 not addressed); City of Bridgeport v. Admiral Associates, LLC, judicial district of Fairfield at Bridgeport, docket no. 035277 (February 7, 2001, Moran, J.) ( 29 Conn.L.Rptr. 444) (property damage claim wherein court discusses § 52-584 and § 52-577, not § 52-577c); Amoco Oil Co. v. Liberty Auto Electric Co., Superior Court, judicial district of Waterbury, docket no. 160065 (May 9, 2001, McWeeney, J.) ( 30 Conn.L.Rptr. 87) (property damage claim which assumes without discussion of § 52-577c that § 52-584 applied to the plaintiff's negligence claim).
The court finds the superior court decisions cited by Tolchin much more persuasive on the issues presented by the motion for summary judgment. See Goldblum v. The Pittston Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 126252 (April 24, 1996, Stevens, J.) ( 16 Conn.L.Rptr. 512) (in a case involving exposure to hazardous chemical substances or pollutants whether based on negligence or some other theory, the applicable statute of limitations is that of § 52-577c(b)); Town of Monroe v. Underground Construction Survey, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 384754 (April 16, 2002, Thim, J.) ( 31 Conn.L.Rptr. 721) (§ 52-577c, not § 52-584, governs negligence claims arising out of personal injury or property damage claims caused by hazardous pollutants). The court reaches this conclusion because § 52-577c(b) is a limitations period specifically CT Page 9515-df created for actions to recover damages caused by a hazardous pollutant released into the environment such as this one. "It is a well-settled principle of [statutory] construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling." State v. State Employees' Review Board, 239 Conn. 638, 653, 687 A.2d 134 (1997).
Although our appellate courts have not specifically addressed the question raised herein, it seems clear from the statutory language of § 52-577c(b) ("notwithstanding the provisions of § 52-577 and § 52-577a . . .") and case precedent addressing the relationship between § 52-584 and § 52-577, that both statutes are exceptions to the general tort limitation period of § 52-577, and otherwise bear no relationship to each other. See Travelers Indemnity Co. v. Rubin, 209 Conn. 437, 441, 551 A.2d 1220 (1998) ("the three-year limitation of § 52-577 is applicable to all actions founded upon a tort which do not fall within those causes of action carved out of § 52-577 and enumerated in § 52-584 or another section . . . Thus, the three-year limitation period of § 52-577 applies to all actions based on a tort unless there has been a specific statutory exclusion" (citations omitted; internal quotation marks omitted)). Further, it defies reason that the General Assembly would have deliberately carved out a discovery-based statute of limitations arising out of exposure to environmental pollutants that did not include actions for negligence or willful misconduct in light of the legislative history of § 52-577c which indicates that a primary purpose of the statute was to extend the statute of limitations for lawsuits seeking damages caused by "toxic waste pollution." See 27 S.Proc., Pt. 4, 1984 Sess., p. 1353. For all these reasons, the court finds that § 52-577c is a specific and free-standing exception to § 52-577 and operates in lieu of § 52-584 as to claims for personal injury and property damage caused by negligence and/or willful misconduct arising out of "exposure to hazardous chemical substances or mixtures" such as petroleum and petroleum products.
Accordingly, the court finds that all three counts of the complaint are governed by the two-year discovery-based limitation period set forth in § 52-577c(b).
III
Assuming that § 52-577c(b) applies to Tolchin's claim, Shell argues alternatively, that all three of Tolchin's claims are nonetheless time-barred because she failed to bring her lawsuit within two years of the date she discovered her injury. Specifically, Shell claims that by the end of 1989, Tolchin was aware that her family's well water had been contaminated. She also knew that her family had consulted with a CT Page 9515-dg specialist at Yale Medical School and that she had been experiencing fatigue and migraine headaches. By the fall of 1994, the fatigue and headaches were more frequent and severe. Tolchin testified at her deposition that when she learned about the contamination, she was concerned about the possible effect on her health. Tolchin's medical records indicate that she had abnormal blood tests as early as 1989 and her own expert witness, Dr. Mark Cullen, testified at his deposition that based on her elevated platelet count, 1993 was "a latest date for the onset of her disease." (See Defendant's Memorandum, p. 20.) Shell also claims that Tolchin's college major was environmental studies and that she has a master's degree in environmental education. In addition, Shell asserts that Tolchin's family settled a property damage claim with Shell in 1992 that excepted personal injury claims. For all these reasons, Shell claims that Tolchin discovered, or in the exercise of reasonable care, should have discovered her injury and the source of that injury for purposes of the statute of limitations by 1994, two years before her diagnosis in 1996 and three years prior to filing suit in 1997. For her part, Tolchin claims that she did not discover her injury until she was actually diagnosed with pc vera in 1996, a time within two years of filing this lawsuit.
In the recent case of Legassey v. State, 268 Conn. 723, 846 A.2d 831 (2004), the Supreme Court restated the legal standard by which to evaluate the timeliness of a personal injury claim in the context of discovery-based statutes of limitation. The statute primarily at issue in that case was General Statutes § 4-148, which defines the limitation period for presenting personal injury claims against the state to the Claims Commissioner. In so doing, the Court engaged in an extensive analysis of § 52-584, as both § 4-148(a) and § 52-584 "state that the limitation period begins to run on the date when the plaintiff discovers or should have discovered the injury." Id., 739. Since § 52-577c(b) is a also a discovery-based provision, Legassey is instructive in assessing the timeliness of the plaintiff's claim pursuant to § 52-577c(b).
Pursuant to General Statutes § 4-148(a), claims for personal injury are "deemed to accrue on the date when the damage or injury is sustained or discovered or in the exercise of reasonable care should have been discovered, provided no claim shall be presented [to the Claims Commissioner] more than three years from the date of the act or event complained of." Legassey v. State, supra, 268 Conn. 737.
Significantly, Legassey addresses "the meaning of the term `injury' and the language `in the exercise of reasonable care should have been discovered,' "as employed in both § 4-148(a) and § 52-584. Id., 737. "A plain reading of §§ 4-148(a) and 52-584 reveals that the statutes are alike in most material respects. Both statutes provide that the limitation period begins to run when a plaintiff either sustains or discovers the injury or, in the exercise of reasonable care, should have discovered the injury, and both statutes contain a three-year period of repose. The only material differences in the two statutes are that § 4-148(a) allows for a one-year limitation period while § 52-584 allows for a two-year limitation period, and § 4-148(a) relates only to actions against the CT Page 9515-dh state . . ." Id., 738-39. That the same language concerning "injury" and "discovery" is used in § 52-577c(b) makes the Court's discussion in Legassey directly applicable to the instant case. In fact, the only material difference between § 4-148(a), § 52-584 and § 52-577c(b) is that the latter provision provides no set limitation period but contains a pure discovery-based statute of limitations of two years. Most importantly, for purposes of this discussion, all three provisions state that the limitation period begins to run "on the date that the plaintiff discovers or should have discovered the injury. In this context, we [the Supreme Court] have repeatedly stated that an injury occurs when a party suffers some form of actionable harm." (Internal quotation marks omitted.) Id., 739.
After analyzing the various cases that have interpreted §§ 4-148(a) and 52-584, Legassey sets forth what the Court terms as "the correct legal standard by which to evaluate the timeliness of causes of actions in negligence" as follows.
The limitation period for actions in negligence begins to run on the date when the injury is first discovered or in the exercise of reasonable care should have been discovered. See General Statutes §§ 4-148(a) and 52-584. In this regard, the term "injury" is synonymous with "legal injury" or "actionable harm." " Actionable harm" occurs when the plaintiff discovers, or in the exercise of reasonable care, should have discovered the essential elements of a cause of action . . . A breach of duty by the defendant and a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence; they are therefore necessary ingredients for "actionable harm . . ." Furthermore, "actionable harm" may occur when the plaintiff 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 negligent conduct of another . . . In this regard, the harm complained of need not have reached its fullest manifestation in order for the limitation period to begin to run; a party need only have suffered some form of "actionable harm . . ." Finally the determination of when a plaintiff in the exercise of reasonable care should have discovered "actionable harm . . ." is ordinarily a question reserved for the trier of fact. CT Page 9515-di
(Citations omitted; emphasis added; internal quotation marks omitted.) Legassey v. State, supra, 268 Conn. 748-49. As the Court in Legassey further states, for purposes of assessing when "actionable harm accrued," "[t]he inquiry is not when the injury could have been discovered; rather, it is when the injury should have been discovered." (Emphasis in original.) Id., 750-51.
Based on the foregoing, the court finds that the question of whether Tolchin in the exercise of reasonable care should have discovered her injury ("actionable harm") before the date she was diagnosed with pc vera, a serious illness, in 1996, is a material issue of fact that cannot be resolved on summary judgment. Although she could have known of her legal injury sooner, this does not compel the conclusion that she should have known it. See General Statutes § 52-577c(b); see also Legassey v. State, supra, 268 Conn. 750-51. Since all three claims of personal injury brought by Tolchin are dependent on the same discovery-based statute of limitations, the Court's analysis in Legassey applies by analogy to all three counts of the amended complaint.
Accordingly, Shell's motion for summary judgment is denied.
BY THE COURT,
A. Susan Peck, Judge