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Osprey Properties, LLC v. Owens Corning Sales, LLC

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

July 3, 2017

Osprey Properties, LLC
v.
Owens Corning Sales, LLC

          MEMORANDUM OF DECISION

          Michael Hartmere, Judge Trial Referee.

         On June 12, 2015, the plaintiff, Osprey Properties, LLC (" Osprey Properties") filed a revised complaint against the defendant Owens Corning Sales, LLC (" Owens Corning") which claimed a violation of the Connecticut Products Liability Act (" CPLA") and a claim for environmental cleanup costs. The claims are based on an alleged leak of gasoline from an underground storage tank (" UST"). Owens Corning filed an answer and special defenses on February 3, 2016. The matter was tried to the court for six days between March 21 and March 30, 2017, subsequent to which the parties submitted post-trial briefs and reply briefs. Based on the evidence, the court makes the following findings.

         FINDINGS OF FACT

         On March 17, 2017, the parties stipulated to the following facts.

1. Defendant Owens Corning Sales, LLC, is the successor in interest to codefendant Owens Corning, the manufacturer and seller of tanks that are the subject of this case, and, for purposes of this case only, is liable for any acts, omissions and/or obligations of Owens Corning related to said tanks.
2. The reasonable, necessary and legally required cleanup and remediation activities undertaken by third-party vendors at the real property located at 714 Brooklawn Avenue, Fairfield, Connecticut, following the January 2013 gasoline release, cost, in total, $206, 919.66.

         The court makes the following findings of fact. On January 21, 2011, the plaintiff, Osprey Properties purchased the property known as 714 Brooklawn Ave., Fairfield, CT (" the property") from Paul J. Zecchi (" Zecchi"). Zecchi had purchased the property, believing it to be a good investment, from Richard E. Gates (" Gates"), for $425, 000 on January 14, 2011. Gates had operated a Sunoco Service Station at the property. The property is situated in both Fairfield and Bridgeport.

         In August 1988, Gates and Sunoco Service had removed three old gasoline underground storage tanks and ordered two new USTs, which were installed by Liberty Auto & Electric Company, Inc. (" Liberty"). The new tanks were identical, 6000 gallon Model D-6 fiberglass tanks, manufactured by Owens Corning. Liberty's order was routed to Owen Corning's facility in Mount Union, Pennsylvania. Because the Mount Union facility only had one such tank, the second tank shipped from Valparaiso, Indiana. Owens Corning sometimes manufactured tanks for inventory and sometimes tanks were manufactured and sent out to customers immediately. Liberty's standard procedure was to check each new tank under pressure for leaks prior to installation. Liberty's owner, who has been with the company since 1981, has never encountered a defect with an Owens Corning UST. Each tank came with a warranty from Owens Corning that it would not fail for a period of thirty (30) years from the date of the original purchase due to external or internal corrosion.

         Prior to purchasing the property, Zecchi and Osprey Properties retained BL Companies, an environmental assessment consulting company, which based upon the results of their testing and the age of the existing USTs, recommended the removal of the existing gasoline USTs, dispenser island and associated piping. BL Companies also recommended a more extensive site inspection to delineate the extent of prior petroleum releases and the potential need for soil remediation. Osprey Properties and Zecchi declined to follow the consultant's recommendations.

         Subsequent to purchasing the property in January 2011, Osprey Properties leased the property to Zbignew Jachynm (" Ziggy"), the owner of Brooklawn Auto Service, doing business as Ziggy's Auto Service. After a number of upgrades to the property, including upgrades to the electrical system, Ziggy began selling gas at the end of 2011. The submersible turbine pump (" STP"), an aging Gilbarco (which are very rare in the industry), was not replaced. The STP is responsible for pumping gasoline from the UST to the dispensers above ground. Ziggy continued to sell gasoline for over a year and experienced no problems with the fueling system. The system passed a full inspection by the Connecticut Department of Energy and Environmental Protection (" DEEP") on December 14, 2012.

         On Tuesday, January 8, 2013, at approximately 3:25 p.m., Ziggy ran out of and could no longer pump or sell regular gasoline. However, the UST still contained about 6.10 inches or 245 gallons of gasoline at 7:06 p.m. The standard distance from the bottom of a UST to a submersible pump is approximately 6 inches. On Wednesday, January 9th, at approximately 8:45 a.m., Coastal Carriers of Connecticut made a 2, 001 gallon delivery of gasoline into the regular unleaded tank at the property. The tank reading from the automatic tank gauge (" ATG") indicated that the fuel level in the tank prior to the delivery was 245 gallons. After the delivery, the ATG indicated that the fuel level was 2, 126 gallons, indicating that the actual inventory level in the tank prior to the delivery was about 125 gallons. At approximately 3:59 p.m., the ATG sounded a " delivery needed" alarm indicating a fuel level in one of the tanks of 600 gallons. Ziggy assumed that the alarm was for the super unleaded tank, which normally he kept at a relatively low level. However, the " low product" alarm sounded at 4:50 p.m., indicating that the fuel inventory level had dropped further to 500 gallons. At this point, Ziggy realized something was wrong. Checking the ATG printouts, he found that the inventory in the regular tank had dropped from 2, 126 gallons to 500 gallons in less than nine hours. Between the time of delivery at approximately 9 a.m. and 4 p.m. the station had sold approximately 260 gallons of gasoline.

         Ziggy testified that he immediately hit the red emergency shut off button located on the exterior of the building, which cuts power to the fuel pumps, canopy lights and the dispensers--everything on the island. Had Ziggy done so, the emergency shutoff would have cut power to the submersible turbine pump. However, the documentary evidence shows that the power to the fuel pumps and dispensers was not shut off until the day after the leak, January 10. The point-of-sale system recorded totalizer numbers for the evening of January 9 (when Ziggy purportedly turned off the power), which would not have been possible if the power had been shut off. Ziggy cleared the property of his customers' vehicles and began looking for the source of the gasoline leak. He checked the distributors, the dispensers, and opened the side panels. He did not see or smell any gasoline in any of the areas which he inspected. Ziggy telephoned Paul Zecchi and the Connecticut Department of Energy and Environmental Protection (" DEEP") and informed them of the problem. At 6:45 p.m., the ATG indicated that the fuel inventory in the regular UST had dropped from 500 gallons to less than 245 gallons.

         On the following day, January 10, 2013, Osprey Properties retained Enviroshield, an environmental contracting company which does underground gasoline/oil tank removal, clean up, testing, soil testing, and excavation. At the property, Enviroshield performed line testing on the product discharge lines for both the regular and super tanks. The lines passed the tightness tests. The Enviroshield technician did not report anything consistent with a gasoline leak in the area of the STP, but the integrity of the submersible pump was not tested. Enviroshield later would return to the property to excavate the USTs.

         On January 11, 2013, at 1:15 p.m., DEEP compliance specialist (inspector) Gary Bellmar (" Bellmar") appeared at the property. Bellmar was familiar with the gas station, having done an inspection there in December 2012. Bellmar did a physical inspection, looking for leaks. He did not do a line leak test or a tank tightness test since he is not licensed to do so. The station was equipped with a Veeder Root TOS 350 automatic tank gauging device, which provides release detection. On January 11th, Bellmar spoke with Ziggy and noted that a sudden catastrophic loss on January 9, 2013 was most likely due to a breach in the regular tank itself. He took photographs of the sump entrenchment from the regular tank, which showed the submersible turbine pump inside the ...


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