CITY OF LEWISTON v. FLEET ENVIRONMENTAL SERVICES

2004 | Cited 0 times | D. Maine | June 29, 2004

RECOMMENDED DECISION ON CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT

Fleet Environmental Services, LLC ("Fleet"), one of four nameddefendants, moves for summary judgment on Counts IX-X andXIII-XVII of the amended complaint. Fleet Environmental ServicesLLC's Motion for Partial Summary Judgment, etc. ("Fleet Motion")(Docket No. 81) at 1. The plaintiff moves for summary judgment onCounts IX, X and XVII of the amended complaint. Joint Motion forPartial Summary Judgment by Lewiston, LMRC, and Platz Associates, etc.("Lewiston Motion") (Docket No. 84) at 1. The third-partydefendants, Platz Associates ("Platz") and Lewiston MillRedevelopment Corporation ("LMRC"), move for summary judgment onCounts II, III, V and VI of the third-party complaint and onCounts I and IV of their counterclaims against Fleet. Id. at1-2. I recommend that the court grant the motions in part.

I. Summary Judgment Standard

Summary judgment is appropriate only if the record shows "thatthere is no genuine issue as to any material fact and that themoving party is entitled to a judgment as a matter of law." Fed.R. Civ. P. 56(c). "In this regard, `material' means that acontested fact has the potential to change the outcome of thesuit under the governing law if the dispute over it is resolvedfavorably to the nonmovant. By like token, `genuine' means that`the evidence about the fact is such that a reasonable jury couldresolve the point in favor of the nonmoving party.'" Navarro v.Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir. 2001) (quotingMcCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1stCir. 1995)). The party moving for summary judgment mustdemonstrate an absence of evidence to support the nonmovingparty's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325(1986). In determining whether this burden is met, the court mustview the record in the light most favorable to the nonmovingparty and give that party the benefit of all reasonableinferences in its favor. Nicolo v. Philip Morris, Inc.,201 F.3d 29, 33 (1st Cir. 2000). Once the moving party has made apreliminary showing that no genuine issue of material factexists, the nonmovant must "produce specific facts, in suitableevidentiary form, to establish the presence of a trialworthyissue." Triangle Trading Co. v. Robroy Indus., Inc.,200 F.3d 1, 2 (1st Cir. 1999) (citation and internal punctuation omitted);Fed.R.Civ.P. 56(e). "As to any essential factual element ofits claim on which the nonmovant would bear the burden of proofat trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to themoving party." In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001)(citation and internal punctuation omitted).

The mere fact that multiple parties seek summary judgment doesnot render summary judgment inappropriate. 10A Charles Wright,Arthur Miller & Mary Kane, Federal Practice and Procedure("Wright, Miller & Kane") § 2720 at 327-28 (3d ed. 1998). Forthose issues subject to cross-motions for summary judgment, "thecourt must consider each motion separately, drawing inferencesagainst each movant in turn." Merchants Ins. Co. of NewHampshire, Inc. v. United States Fidelity & Guar. Co.,143 F.3d 5, 7 (1st Cir. 1998) (citation omitted). If there are any genuineissues of material fact, the opposing motions must be denied asto the affected issue or issues of law; if not, one moving partyis entitled to judgment as a matter of law. 10A Wright, Miller &Kane § 2720.

II. Factual Background

The statements of material facts submitted by the partiespursuant to Local Rule 56 include the following undisputedmaterial facts.

On or about October 26, 1999 the plaintiff, through its agentsPlatz and LMRC, entered into a contract with Fleet for theabatement of lead paint from Mill 3 of the Bates Mill Complex(the "Mill 3 Contract"). Fleet Environmental Services LLC'sSupporting Statement of Material Facts ("Fleet SMF") (Docket No.82) ¶ 1; Lewiston's Statement of Material Facts in Opposition toFleet's Statement of Facts ("Plaintiff's Responsive SMF") (DocketNo. 102) ¶ 1. The Bates Mill Complex is a group of buildings inLewiston, Maine, owned by the plaintiff, that formerly comprisedthe Bates Fabrics manufacturing facility. Joint Statement ofUndisputed Material Facts in Support of Lewiston, LMRC, and PlatzAssociates' Motions for Partial Summary Judgment ("Lewiston SMF")(Docket No. 85) ¶ 2; Fleet Environmental Services LLC's OpposingStatement of Facts, etc. ("Fleet's Responsive SMF") (Docket No.105) ¶ 2. In 1993, the plaintiff leased the Bates Mill Complex to LMRC, anon-profit corporation wholly owned by the plaintiff and chargedwith managing the day-to-day operations and redevelopment of thecomplex. Id. ¶ 3. LMRC hired Platz to serve as its architectand construction manager for the redevelopment of the complex.Id. According to the terms of the Mill 3 Contract, Fleet,through Maine SF, Inc., agreed to remove lead paint from theinterior of Mill 3. Fleet SMF ¶ 2; Plaintiff's Responsive SMF ¶2.

Prior to entering into the Mill 3 Contract, Fleet hadauthorized James Jabbusch of Maine SF, Inc. to sign and submit aproposal for the lead abatement work to Platz in Fleet's name andon Fleet's behalf. Lewiston SMF ¶ 5; Fleet's Responsive SMF ¶ 5.Except for the attachments outlining the project's scope of work,the Mill 3 Contract was Fleet's own "boilerplate" servicesagreement form. Id. ¶ 6. In the Mill 3 Contract, Fleetrepresented that it was "engaged in the business of providingenvironmental services in accordance with the work requirementsof Client as defined from time to time by Scope of Work."Id. ¶ 7. Exhibit A to the Mill 3 Contract is concerned with theremoval of lead paint to be "performed in accordance withFederal, State and Local regulations and guidelines." Id. ¶ 8.Fleet represented to LMRC that it and its employees hadspecialized experience, knowledge and expertise in the abatementand disposal of lead paint. Lewiston's Response Statement ofMaterial Facts ("Plaintiff's Additional SMF") (beginning at page12 of Plaintiff's Responsive SMF) ¶ 35.1 Fleet alsocontracted to make the arrangements for the "waste disposal andtransport by others." Lewiston SMF ¶ 9; Fleet's Responsive SMF ¶9. The Mill 3 Contract provided that the scope of work might bemodified, and the work increased, at LMRC's expense. Id. ¶ 11.The Mill 3 Contract includes a clause whereby Fleet indemnifiesLMRC. Id. ¶ 12. The plaintiff, not LMRC, paid Fleet under theMill 3 Contract. Id. ¶ 13. The Mill 3 Contract also includesthe plaintiff's warranty that the work Fleet was to do "does not violate anyjudicial or administrative order or ruling of any governmentalagency of which [the plaintiff] has knowledge." Fleet's SMF ¶ 5;Plaintiff's Responsive SMF ¶ 5.

Fleet subcontracted the Mill 3 lead paint abatement to MaineSF, Inc. Lewiston SMF ¶ 15; Fleet's Responsive SMF ¶ 15. Fleetspecified to Maine SF, Inc. that it wanted to handle thetransportation and disposal of the Mill 3 wastes, whether theyturned out to be hazardous or non-hazardous. Id. ¶ 20. Fleetknew that Maine SF, Inc. was having cash-flow problems andcreditor issues and did not have adequate capital to do the Mill3 lead paint abatement alone. Id. ¶ 21. Maine SF, Inc. wouldhave closed if it had not obtained the Mill 3 lead abatementwork. Id. ¶ 23. James Jabbusch did not inform Platz of MaineSF, Inc.'s financial difficulties. Id. ¶ 24.

Maine SF, Inc. blasted the lead paint from the walls of Mill 3in accordance with the terms of the Mill 3 contract. Fleet's SMF¶ 11; Plaintiff's Responsive SMF ¶ 11. Brian House, Fleet'sExecutive Vice President charged with the oversight of Fleet'sday-to-day operations, visited Mill 3, met with the Platzconstruction manager, Bruce Allen, and was generally responsiblefor the Mill 3 lead paint abatement. Lewiston SMF ¶ 26; Fleet'sResponsive SMF ¶ 26. Maine SF, Inc. hired Disney EnvironmentalServices, Inc. ("Disney") to collect samples for a ToxicityCharacteristic Leaching Procedure ("TCLP") test of the Mill 3blasting grit. Fleet's SMF ¶ 12; Plaintiff's Responsive SMF ¶ 12.James Jabbusch's son Peter gathered the sample of Mill 3 gritused for TCLP testing. Id. ¶¶ 14-15; Lewiston SMF ¶ 29; Fleet'sResponsive SMF ¶ 29. Jabbusch had never previously collected leadwaste sample. Fleet's SMF ¶ 16; Plaintiff's Responsive SMF ¶ 16.Neither the Mill 3 Contract, Fleet's contract with Platz asconstruction manager for LMRC nor Fleet's subcontract with Maine SF, Inc.identified anyone as being responsible for sampling and testingthe Mill 3 wastes. Lewiston SMF ¶¶ 34-35; Fleet's Responsive SMF¶¶ 34-35.

In 1997 Maine SF, Inc. had conducted lead paint abatement inMill 7 of the Bates Mill Complex, and Eric Jabbusch, another ofJames Jabbusch's sons, had sent a sample of waste sandblast mediato Disney for TCLP testing. Id. ¶¶ 30, 37. When Disney receivedthe Mill 7 test result, it informed James Jabbusch that Maine SF,Inc. should treat all surfaces as having lead unless more testingwas performed because Disney had conducted XRF lead testingthere. Id. ¶ 38.

Two samples of waste sandblast media from Mill 3 were tested.Id. ¶ 39. Disney was paid by Maine SF, Inc. for the tests.Id. ¶ 40. Fleet paid Maine SF, Inc. a flat figure of $100,000,which included Disney's charges. Id. ¶ 41. James Jabbusch keptFleet informed of the test results for the waste sandblast media.Id. ¶ 42. Peter Jabbusch had assembled the first sample ofwaste sandblast media for testing by collecting material fromseveral locations in the work area, including a wall, ceiling andbeam. Id. ¶ 43. According to the November 19, 1999 TCLP test ofthe Mill 3 grit, the sample had a lead concentration of 36.1parts per million ("ppm"). Fleet's SMF ¶ 18; Plaintiff'sResponsive SMF ¶ 18. Eric Jabbusch gathered a second sample.Id. ¶ 22. While awaiting the results of the TCLP test for thesecond sample of Mill 3 grit, Maine SF, Inc. advised Allen, theauthorized agent of the plaintiff and LMRC, of the results of thefirst TCLP test. Id. ¶ 23. Allen did not inform the plaintiffor LMRC of the results of the first TCLP test. Id. ¶ 24. Fleetwas told about the result of the first test but took no action.Lewiston SMF ¶ 46; Fleet's Responsive SMF ¶ 46. On or aboutNovember 30, 1999 Disney provided Mane SMF, Inc. with the resultsof the TCLP test of the second sample of Mill 3 grit. Fleet's SMF¶ 25; Plaintiff's Responsive SMF ¶ 25. The result of the secondtest showed a lead concentration of 0.6 ppm. Id. ¶ 26. On December 3, 1999 the company that Fleet hired to transportthe Mill 3 grit, Ameritech Environmental Services, Inc.,transported the first batch of the Mill 3 grit to the plaintiff'ssolid waste and recycling facility (the "Landfill"). Id. ¶¶ 7,27. The disposal ticket for the Mill 3 grit indicated that thematerial being disposed of was sand blast grit from Mill 3. Id.¶ 28. Seventy-five tons of Mill 3 waste sandblast media weretransported to and disposed of at the Landfill. Lewiston SMF ¶52; Fleet's Responsive SMF ¶ 52. The Landfill is not a hazardouswaste disposal facility. Id. ¶ 53.

After the Mill 3 waste sandblast media were disposed of at theLandfill, the U.S. Environmental Protection Agency ("EPA")investigated the sampling, lead characterization and disposal ofthe wastes. Id. ¶ 54. The EPA advised the plaintiff that itbelieved the Mill 3 grit in the Landfill was hazardous. Fleet'sSMF ¶ 29; Plaintiff's Responsive SMF ¶ 29. The plaintiff'ssuperintendent of solid waste told the Maine Department ofEnvironmental Protection's ("DEP") project manager about the EPAinvestigation. Lewiston SMF ¶ 56; Fleet's Responsive SMF ¶ 56.After preliminary testing, the DEP ordered the plaintiff toremediate the Landfill by removing the wastes and adjacentoverburden and fill and by disposing of these materials at alicensed hazardous waste disposal facility. Id. ¶ 57. Theplaintiff and its consultant, CMA Engineers, Inc., arguedunsuccessfully that leaving the grit in the landfill would notthreaten the public. Fleet's SMF ¶¶ 32-33; Plaintiff's ResponsiveSMF ¶¶ 32-33. The DEP issued a Notice of Violation to theLandfill and commenced a Consent Action against the plaintiffseeking to impose fines on the plaintiff relating to the Mill 3grit. Id. ¶ 34. Consistent with the DEP-approved work plan forthe remediation of the Landfill, 211 tons of hazardous Mill 3grit and associated overburden and substrata were removed fromthe Landfill and transported to New York for disposal.Plaintiff's Additional SMF ¶ 52.

III. Discussion

A. Counts IX, X and XVII of the Amended Complaint Counts IX, X and XVII of the amended complaint are subject tocross-motions for summary judgment by the plaintiff and Fleet.Count IX seeks CERCLA response costs. Amended Complaint, etc.(Docket No. 33) ¶¶ 84-88. Count X seeks relief under 30-AM.R.S.A. § 3352(2) and 38 M.R.S.A. § 1319-U(5). Id. ¶¶ 89-93.Count XVII seeks double damages under 30-A M.R.S.A. § 3352(2).Id. ¶¶ 121-24. The plaintiff does not seek summary judgmentagainst the other defendants, who are also named in these counts.

1. Count IX. The Comprehensive Environmental Response,Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 etseq., imposes strict liability for certain costs on

any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, or by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances. . . .42 U.S.C. § 9607(a)(3). The amended complaint cites this sectionof CERCLA as the basis for the plaintiff's claim against thenamed defendants. Fleet does not contest the plaintiff'scharacterization of the Mill 3 grit as a hazardous substance forpurposes of its motion for summary judgment but rather contendsthat the plaintiff is itself liable under CERCLA and accordinglyis entitled, at most, to contribution from Fleet rather than thefull recovery for its response costs that it seeks. Fleet Motionat 13-15. The plaintiff contends that Fleet "is strictly liablefor Lewiston's response costs under CERCLA" because Fleet was thegenerator of the waste as that term is defined in applicableregulations. Lewiston Motion at 7-9. Both motions are notable fortheir lack of citation to helpful case law on this issue.

The plaintiff asserts that its right of action against Fleetunder CERCLA is created by 42 U.S.C. § 9613(f). Id. at 8.Significantly, that statutory section provides for an action forcontribution "from any other person who is liable or potentiallyliable under section 9607(a) of this title." It does not providefor indemnification or full recovery, if that is what the plaintiffis seeking in this count. Fleet so interprets the amendedcomplaint, because it makes no attempt to argue that it could notbe liable at all; it merely contends that "Lewiston is not aninnocent party within the meaning of the statute" and that it istherefore entitled to summary judgment. Fleet Motion at 14-15.The plaintiff's "innocence" is disputed, see, e.g., Fleet's SMF¶¶ 7, 12, 29, 34; Plaintiff's Responsive SMF ¶¶ 7, 12, 29, 34, soit is not entitled to summary judgment on a claim for fullrecovery of its costs. However, the dispute also means that Fleetis not entitled to summary judgment insofar as Count IX isinterpreted as a claim for full recovery of the plaintiff'scosts.

However, the count as pleaded and as presented by the plaintiffmay also be construed to be seeking contribution for some portionof the response costs incurred by the plaintiff. See generallyCity of Bangor v. Citizens Communications Co., 2004 WL 483201(D. Me. Mar. 11, 2004), at *1, *4 (discussing difference betweenactions for recovery of costs under section 9607 and actions forcontribution under section 9613). Because the summary judgmentrecord also includes evidence that would allow a rationalfactfinder to conclude that Fleet arranged for the disposal ofthe hazardous substance at issue or that it was a "generator" ofthe wastes at issue under CERCLA, Fleet could be liable for suchcontribution. See 40 C.F.R. § 260.10 ("Generator means anyperson, by site, whose act or process produces hazardous waste . . .or whose act first causes a hazardous waste to become subjectto regulation."). Accordingly, Fleet is not entitled to summaryjudgment on this count.

The evidence that Fleet was a "generator" is not undisputed,however. See, e.g., Lewiston SMF ¶¶ 25, 26, 36, 51, 52; Fleet'sResponsive SMF ¶¶ 25, 26, 36, 51, 52; Lewiston's Additional SMF ¶51. For that reason, the plaintiff is not entitled to summaryjudgment on liability on this court. The plaintiff argues in itsopposition to Fleet's motion that "if Lewiston was at fault"under CERCLA, "it was Fleet's fault" as Lewiston's agent.Lewiston's Memorandum in Opposition to Fleet's Motion for PartialSummary Judgment ("Plaintiff's Opposition") (Docket No. 101) at 15. This assertionis hotly disputed, both as to underlying facts, see, e.g.,Fleet's SMF ¶¶ 7, 24, Plaintiff's Responsive SMF ¶¶ 7, 24;Lewiston's SMF ¶ 9, 10, 36, Fleet's Responsive SMF ¶¶ 9, 10, 36,and as to interpretation of applicable law.2 There is noevidence in the summary judgment record of the remediation costsincurred by the plaintiff, so it would not be entitled to summaryjudgment on damages in any event.

Neither Fleet nor the plaintiff is entitled to summary judgmenton Count IX on the showing made.3 2. Counts X and XVII.Count X of the amended complaint alleges that the defendants areliable to the plaintiff under 30-A M.R.S.A. § 3352(2) and 38M.R.S.A. § 1319-U(5). Amended Complaint ¶¶ 89-93. Count XVIIalleges that the plaintiff is entitled to double damages under30-A M.R.S.A. § 3352(2). Id. ¶¶ 121-24. The plaintiff and Fleetboth seek summary judgment on these two counts.

The statutes at issue in these counts provide, in relevantpart: 1. Prohibited dumping. [W]hoever personally or through the agency of another leaves or deposits and offal, filth or other noisome substance in any public dumping ground, except in the manner prescribed by the local health officer, is guilty of a Class E crime and shall be punished by a fine of not less than $10 no more than $100, or by imprisonment for not more than 3 months. 2. Civil action. A municipality may recover any expenses incurred in abating the nuisance caused by the violation in a civil action brought in the name of the municipality against the guilty party. If requested and the violation merits it, the court in its discretion may award double damages in the action. 30-A M.R.S.A. § 3352. 5. Civil liability. A person who disposes of or treats hazardous waste, when that disposal or treatment, in fact, endangers the health, safety or welfare of another, is liable in a civil suit for all resulting damages. It is not necessary to prove negligence.

For the purposes of this section, damages are limited to damages to real estate or personal property or loss of income directly or indirectly as a result of a disposal or treatment of hazardous wastes.38 M.R.S.A. § 1319-U(5).

With respect to section 1319-U(5), Fleet contends that becauseit did not transport the Mill 3 grit to the Landfill, it did notdispose of any hazardous waste; that the plaintiff cannot provethat the grit was hazardous waste; and that the plaintiff's owncommissioned study "details how the Mill 3 Grit poses no danger."Fleet Motion at 10-11. The plaintiff contends that it is entitledto summary judgment on its claim under this statute because"[t]he Mill 3 Wastes were hazardous because the exceeded the EPAand DEP toxicity limit for lead" and that "Fleet's arrangementsfor the transportation and disposal of these wastes at theLandfill" make Fleet liable. Lewiston Motion at 10. Theplaintiff's argument makes no mention of the fact that thestatute requires that the waste at issue in fact endanger thehealth, safety or welfare of another. In its opposition toFleet's motion, the plaintiff appears to assume that becausethere is evidence that the waste was hazardous, it may be assumedthat the waste in fact endangered the health, safety or welfareof another, Lewiston Opposition at 12, but that approach wouldrender the "in fact" requirement of the statute superfluous, incontradiction to basic rules of statutory construction. Reid v.Gruntal & Co., 763 F. Supp. 672, 676 (D. Me. 1991) (fundamentaltenet of statutory construction is that statue should beconstrued so that effect is given to all provisions, so that nopart will be superfluous or insignificant). On the showing made,the plaintiff is not entitled to summary judgment on that portionof Count X that relies on 38 M.R.S.A. § 1319-U(5). The same is true of Fleet, but for a different reason. Fleet'sonly references to evidence supporting its contention that theMill 3 Grit did not in fact endanger the health, safety orwelfare of another are to documents rather than to paragraphs inits statement of material facts. Fleet Motion at 11-12. Itsstatement of material facts does include the assertion that thestudy mentioned in its motion "contended that the Mill 3 Gritproved no health concerns." Fleet SMF ¶ 33. See also FleetResponsive SMF ¶ 53. The plaintiff's qualification of paragraph33 of Fleet's statement of material facts states "Mr. Grilloactually testified that it was his opinion that the sand blastgrit did not pose a particular health and safety risk where itwas in the landfill." Lewiston's Responsive SMF ¶ 33. This isinsufficient to establish that the plaintiff could not prove thethird element of the statutory test. Assuming arguendo that theplaintiff could not establish that Fleet disposed of the grit orthat the grit was in fact hazardous, therefore, Fleet isnonetheless not entitled to summary judgment on this portion ofCount X.

With respect to section 3352, Fleet contends that it must befound guilty of the crime described in subsection 1 before it maybe held civilly liable under subsection 2, an event which has notoccurred. Fleet Motion at 12-13. The plaintiff simply states that"[i]t is difficult to contemplate a more noisome substance thanhazardous wastes," directing its argument instead to its allegedentitlement to double damages. Lewiston Motion at 10-11. Theplaintiff's opposition does not respond to Fleet's statutoryconstruction argument, nor does Fleet's opposition mentionsection 3352. I agree with Fleet's interpretation of section3352, at least to the extent that a municipality seeking torecover under section 3352(2) must prove that the defendantviolated section 3352(1), without deciding whether a criminalconviction under that subsection is required. The plaintiffoffers no argument, let alone any evidence, that would allow areasonable factfinder to conclude that Fleet dumped the Mill 3grit in the Landfill "except in the manner prescribed by thelocal health officer." Fleet is accordingly entitled to summaryjudgment on that portion of Count X that seeks recovery under 30-A M.R.S.A. § 3352 and on Count XVII, whichseeks double damages under 20-A M.R.S.A. § 3352(2).

B. Counts XIII-XVI of the Amended Complaint

Fleet seeks summary judgment on Counts XIII-XVI of the amendedcomplaint. I will address these counts in the order in which theyappear in the amended complaint.

1. Count XIII. This count sounds in common-law negligence,alleging that the defendants breached "a duty to Lewiston tosample and test the Mill 3 Waste in a manner which would provideLewiston with test results which accurately reflected the actuallead content in all of the sandblast grit that [the defendants]asked and induced Lewiston to accept at its Landfill." AmendedComplaint ¶¶ 104-05.

Fleet contends that this claim rests "on a single allegation[:]namely that neither Fleet nor M[aine] SF[, Inc.] advised Lewistonof the results of the First TCLP Test." Fleet Motion at 9. Itasserts that it is "undisputed" the Maine SF, Inc. advised BruceAllen of Platz, who was an agent of the plaintiff, of the resultsof that test. Id. at 9-10. It also contends that advisingLMRC's agent of the results is the equivalent of advising theplaintiff, because LMRC is "nothing more than an `operatingshell' of the City of Lewiston." Id. at 10 n. 4. The plaintiffresponds that its negligence claim "is based upon Fleet'sobligation of properly characterizing the lead content of all thewastes." Plaintiff's Opposition at 10. Relying on the testimonyof its expert witness, the plaintiff contends that Fleet "failedto comply with applicable EPA regulations and industrypractices;" "failed to ascertain that the wastes were indeedhazardous[;] and represented to landfill personnel that thewasters were not hazardous and could be accepted for disposalthere." Id. at 10-11. Again, neither party has provided thecourt with any citations to authority in support of thesearguments. Fleet did not file a reply to the plaintiff'sopposition to its summary judgment motion. The plaintiff's characterization of Count XIII of its amendedcomplaint is reasonable. Amended Complaint ¶¶ 104-06. Theparagraphs of its statement of material facts and responsivestatement of material facts that it cites in support of thatcharacterization are disputed, but sufficient to overcome Fleet'smotion for summary judgment on this count.

2. Counts XIV and XV. These counts respectively allegenegligent and fraudulent misrepresentation. Amended Complaint ¶¶107-17. Fleet makes the same argument with respect to thesecounts that it made in support of its motion for summary judgmenton Count XIII. Fleet Motion at 9-10. The plaintiff responds thatthese claims are based on "Fleet's failure to disclose thehazardous nature of the waste Fleet caused to be disposed of inthe landfill and . . . its mischaracterization of such waste."Plaintiff's Opposition at 8. Again, this is a reasonablecharacterization of the allegations in the amended complaint andthe paragraphs of its statement of material facts and responsivestatement of material facts support its position sufficiently sothat a reasonable factfinder could decide in its favor. Id. at8-10. On the showing it has made, Fleet is not entitled tosummary judgment on these counts.

3. Count XVI. This count is entitled "Wrongful Involvement inLitigation." Amended Complaint at 17. Fleet contends, in aminimal argument, that "Maine Law does not recognize the tort ofwrongful involvement in litigation." Fleet Motion at 9. Theplaintiff asserts in response that the Maine Law Court "hasexpressly recognized" this tort. Plaintiff's Opposition at 6.However, the case cited in support of this assertion by theplaintiff, Gagnon v. Turgeon, 271 A.2d 634 (Me. 1970), holdsonly that the costs of litigation may be recovered as damagesflowing from a tort that led to the litigation, id. at 635. Asthis court has held, Maine does not recognize wrongfulinvolvement in litigation as a separate tort. Saco Steel Co. v.Saco Defense, Inc., 910 F. Supp. 803, 812 (D. Me. 1995). Fleetis entitled to summary judgment on this count, although the plaintiff may recover such damages upon proper proof shouldit succeed on one or more of its other tort claims. Id. n. 14.

C. Contribution and Indemnification Claims

LMRC and Platz move for summary judgment on Counts V and VI ofFleet's third-party complaint, which seek contribution andindemnification under common law for any liability it may incurfor damages sustained by Lewiston, Third-Party Complaint of FleetEnvironmental Services, LLC (Corrected) (Docket No. 38) ¶¶ 30-37,asserting that there is no evidence in the record of any suchcommon-law duty, Lewiston Motion at 12-13. Fleet's only mentionof these claims in its opposing memorandum of law is included inthe following sentence: "In addition to common law contributionclaims that exist due to the moving Parties' breach of the Mill 3Contract, Fleet has CERCLA § 113(f) contribution claims againstthe Parties." Fleet Opposition at 10. It is questionable whetherthis presentation is sufficient to preserve any opposition to themotion for summary judgment on these counts. In any event, thiscourt must nonetheless reach the merits of any claim for summaryjudgment. Any statutory or contractual entitlement tocontribution or indemnification presents a separate claim; itdoes not and cannot as a matter of law also give rise to acommon-law claim. See Fireman's Ins. Co. of Newark, N.J. v.Todesca Equip. Co., 310 F.3d 32, 37 & n. 7 (1st Cir. 2002)(common-law indemnity not available when express indemnificationcontract exists). To the extent that Fleet intends its claims tobe construed to include the allegation that it is entitled tocommon-law contribution or indemnification should none beavailable under the contract it mentions, Fleet has provided nocitation to any factual support in the record for such claimsagainst LMRC and Platz, and LMRC and Platz are accordinglyentitled to summary judgment on Counts V and VI of thethird-party complaint.

LMRC and Platz also seek summary judgment on Counts I and IV oftheir counterclaims against Fleet, Lewiston Motion at 11-12,which assert claims for breach of contract and contractualcontribution and indemnification against Fleet, Third-Party Defendant LewistonMill Redevelopment Corporation's Answer, Affirmative Defenses,Counterclaim, and Crossclaim (Docket No. 48) at 6-14, ¶¶ 28-32,43-45; Third-Party Defendant Platz Associates' Answer,Affirmative Defenses, Counterclaim, and Crossclaim ("PlatzCounterclaim") (Docket No. 50) at 6-14, ¶¶ 28-32, 43-45. However,the motion does not discuss the breach-of-contract claims or thecontribution and indemnification claims of Platz. The motion forsummary judgment as to Count I of each counterclaim and Count IVof the Platz Counterclaim must therefore be deemed waived.

LMRC contends that Fleet contracted to indemnify it for damagecaused by Fleet pursuant to Paragraph 7.1 of the Mill 3 contract.Lewiston Motion at 11-12. Fleet responds that Paragraph 7.2 ofthat contract is a reciprocal indemnification clause, giving "theParties" "the same indemnification liability to Fleet" that Fleetmight have to them. Fleet Opposition at 8-9. This may well be,but it is not a response to LMRC's contention that it is entitledto summary judgment under Paragraph 7.1. LMRC's position issupported by paragraph 12 of Lewiston's SMF, which is notdisputed in any material respect by Fleet's "qualified" response.Fleet's Responsive SMF ¶ 12. LMRC is accordingly entitled tosummary judgment on Count IV of its counterclaim. Whether thatindemnification, if it becomes operable at some point, isultimately offset by a claim by Fleet for indemnification is aseparate question for another day.

IV. Conclusion

For the foregoing reasons, I recommend that Fleet's Motion forPartial Summary Judgment (Docket No. 81) be GRANTED as toCounts XVI, XVII and that portion of Count X of the amendedcomplaint that seeks recovery under 30-A M.R.S.A. § 3352 andotherwise DENIED; and that the Joint Motion for Partial SummaryJudgment by Lewiston, LMRC, and Platz Associates (Docket No. 84)be GRANTED as to Counts V and VI of Fleet's third-party complaint against LMRCand Platz (Docket No. 38) and Count IV of that third-partycomplaint only as to LMRC and otherwise DENIED.

1. Fleet filed no response to the plaintiff's statement ofadditional material facts. Accordingly, they are deemed admittedto the extent supported by the record references given. LocalRule 56(e).

2. Assuming the assertion to be true, however, does notentitle the plaintiff to anything more than contribution fromFleet.

3. Without any additional argument, Lewiston, Platz and LMRCcontend that Platz is entitled to summary judgment on Count II ofFleet's third-party complaint and that LMRC is entitled tosummary judgment on Count III of the third-party complaint, forthe same reasons that entitle Lewiston to summary judgment onCount IX of its amended complaint. Lewiston Motion at 9. BecauseI conclude that Lewiston is not entitled to summary judgment onthat count, this cursory argument fails as well.

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