Bolin v. Cessna Aircraft Co., Civ. A. No. 87-1338-T.

Citation759 F. Supp. 692
Decision Date06 March 1991
Docket NumberCiv. A. No. 87-1338-T.
CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
PartiesA. Leland BOLIN, et al., Plaintiffs, v. The CESSNA AIRCRAFT COMPANY, Defendant, United States of America, Intervenor.

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Randall K. Rathbun, Depew, Gillen & Rathbun, Wichita, Kan., for plaintiffs.

Jay F. Fowler, Douglas L. Stanley, Mikel L. Stout, Foulston & Siefkin, Wichita, Kan., for defendant.

Lee Thompson, U.S. Atty's. Office, Wichita, Kan., Stuart M. Gerson, Surell Brady, Charles W. Sorenson, Jr., Dept. of Justice, Civil Div., Washington, D.C., for intervenor.

MEMORANDUM AND ORDER

THEIS, Senior District Judge.

This matter is before the court on the motion of defendant for partial summary judgment. (Doc. 86). In this private action between non-diverse parties, plaintiffs allege claims under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601, et seq., as well as several pendent claims based on state law. Defendant presents three grounds in support of partial summary judgment, including the contention that all pendent state claims are barred by the relevant Kansas statute of limitation, and that application of a contrary federal commencement statute to these claims is an unconstitutional extension of the commerce clause power as well as a violation of the tenth amendment to the United States Constitution. Pursuant to 28 U.S.C. § 2403(a), the court previously certified to the Attorney General that defendant has challenged the constitutionality of the federal statute in question. The United States has intervened for the limited purpose of defending this statute against the constitutional attack.

I. Background

Plaintiffs in this action are individual homeowners and their adult children,1 who contend that defendant has contaminated their groundwater supply with trichloroethylene ("TCE"), a solvent that the Environmental Protection Agency has determined is a probable human carcinogen. Since 1951 defendant has owned and operated an aircraft manufacturing plant located a mile or less from the community where plaintiffs reside. In May 1985 defendant was notified by the Kansas Department of Health and Environment ("KDHE") that TCE had been detected in a sample of water taken from one of defendant's wells. Defendant had been using TCE at the plant since the 1950s. In late July 1985, KDHE informed at least some of the residents of the community that water samples taken from their wells had revealed TCE contamination. Some residents began transporting bottled water for cleaning and cooking purposes, and in the fall of 1985 the residents first petitioned the City of Wichita to connect their community to the city water mains and lines.

Throughout 1985 and 1986 tests were conducted by defendant and KDHE to determine both the extent of the TCE migration as well as the point sources of the contamination. Although defendant now admits that TCE has escaped from its property to plaintiffs' groundwater, defendant contends that until the late fall of 1986 it was unsure whether it had caused the TCE contamination of plaintiffs' groundwater. On October 28, 1986, KDHE issued a press release and published a notice to all residents living near defendant's plant, informing these residents that their groundwater had been contaminated. The notice advised that "residents in the area may wish to transport water from a public water supply for drinking and cooking purposes" or "to boil the water for ten minutes before drinking or cooking." Dep.Eht. 95. In December 1986, defendant made individual offers to 42 families and businesses to pay for the expense of connecting them to city water. For disputed reasons that are not material to this motion,2 plaintiffs declined this offer and themselves incurred the expense of connecting their property to the city water.

Plaintiffs filed this action on June 23, 1987, alleging subject matter jurisdiction under CERCLA. 42 U.S.C. § 9613; 28 U.S.C. § 1331. The CERCLA action is based upon the "response costs"3 that plaintiffs have incurred by procuring an alternative source of water for their property. The state law causes of action alleged are negligence, trespass, intentional public and private nuisance, strict liability for ultrahazardous substances, and "wanton conduct." Plaintiffs claim compensatory damages in the form of diminished property value, out of pocket expenses, and "annoyance, discomfort, inconvenience and peace of mind (emotional distress)." Doc. 94, at 8. In addition, plaintiffs seek to recover punitive damages for conduct alleged to have been callous and indifferent to the health and safety of others.

Defendant moves for partial summary judgment on the grounds that: 1) all state claims are barred by the governing Kansas statute of limitation; 2) the court lacks subject matter jurisdiction over all claims of the eight plaintiffs who are adult children of the homeowners; 3) no plaintiff can recover damages for emotional distress.

II. Applicable Statute of Limitation

Defendant contends that plaintiffs' state claims are barred under Kansas law, and that the Constitution prevents the court from reviving these claims under a concededly applicable federal limitations statute. In the interest of avoiding a potentially unnecessary constitutional issue, see, e.g., Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2996, 86 L.Ed.2d 664 (1985), the court first addresses plaintiffs' alternative argument disputing the untimeliness of their claims under Kansas law.

A. Kansas Time Limitations

The parties recognize that plaintiffs' various state tort claims are governed by the Kansas two-year statute of limitation. Kan.Stat.Ann. § 60-513 (1983).4 The difficulty with this case, however, is in determining the time at which plaintiffs' claims accrued.

The court is well-acquainted with the byzantine edifice of Kansas limitations law for actions alleging injury to real property. In Miller v. Cudahy Co., 567 F.Supp. 892 (D.Kan.1983), aff'd in part, 858 F.2d 1449 (10th Cir.1988), cert. denied, 492 U.S. 926, 109 S.Ct. 3265, 106 L.Ed.2d 610 (1989), this court had occasion to review the Kansas cases that have struggled with the elusive task of determining the accrual of tort claims based on the pollution or contamination of land. Id. at 899-905. In making such determinations, Kansas draws a distinction between actions for permanent as opposed to temporary damages.

In an action for temporary damages, the tort is considered to be continuous, and a new cause of action accrues with each new injury. Williams v. Amoco Prod. Co., 241 Kan. 102, 108, 734 P.2d 1113 (1987) (quoting Gowing v. McCandless, 219 Kan. 140, 144, 547 P.2d 338 (1976)). The plaintiff who seeks to recover temporary damages, however, may only recover for those damages that have accrued within two years of the date on which suit was filed. See, e.g., Augustine v. Hinnen, 201 Kan. 710, 711, 443 P.2d 354 (1968); Miller, 567 F.Supp. at 909. With respect to damages for decreased property value in an action for temporary damages, Kansas measures recovery by the depreciation of rental or other usable value during the period within the statute of limitation. Alexander v. City of Arkansas City, 193 Kan. 575, 580, 396 P.2d 311 (1964) (quoting 66 C.J.S. § 175).

By contrast, an action for permanent damages is generally deemed to accrue at the time that the fact of a substantial, actionable injury becomes reasonably ascertainable. Williams, 241 Kan. at 108, 734 P.2d 1113; Olson v. State Highway Comm'n, 235 Kan. 20, 26-27, 679 P.2d 167 (1984); Roe v. Diefendorf, 236 Kan. 218, 222, 689 P.2d 855 (1984) (injury is "substantial" within meaning of § 60-513(b) if sufficient to support an action). The nature of permanent damages was explained in McAlister v. Atlantic Richfield Co., 233 Kan. 252, 662 P.2d 1203 (1983):

Permanent damages are given on the theory that the cause of injury is fixed and that the property will always remain subject to that injury. Permanent damages are damages for the entire injury done — past, present, and prospective — and generally speaking those which are practically irremediable. If an injury is permanent in character, all the damages caused thereby, whether past, present, or prospective, must be recovered in single action.

Id. at 262, 662 P.2d at 1211 (citation omitted). "The measure of damages for permanent injury is the difference in the fair market value of the land before and after injury." Williams, 241 Kan. at 110, 734 P.2d 1113.

In determining whether an action for injury to land is to be considered as one for permanent or temporary damages, the Kansas cases have focused on three facets of the problem: 1) the pollution itself, 2) the damage caused by the pollution, and 3) the source of the pollution. Miller, 567 F.Supp. at 899-900; see also Olson, 235 Kan. at 24, 679 P.2d at 172. To the extent that the pollution itself or the damage caused by the pollution can be characterized as occasional, remediable, or abatable, the damage is temporary. McAlister, 233 Kan. at 262, 662 P.2d at 1211. As to the nature of the source of the pollution, relevant factors include the permanency of the polluting structure and whether the normal operations at the structure will necessarily create a continuous source of pollution. A pollution that is abatable at its source will tend to support an action for temporary rather than permanent damages. See Gowing v. McCandless, 219 Kan. 140, 145, 547 P.2d 338 (1976). Whether an action is deemed as one for temporary or permanent damages depends upon facts of each case. Olson, 235 Kan. at 24, 679 P.2d at 172.

In Miller, this court also observed that to a certain extent, plaintiffs enjoy the right to choose whether to pursue an action for temporary or permanent damages. 567 F.Supp. at 904 (citing Augustine v. Hinnen, 201 Kan. 710, 443 P.2d 354 (1968)). See also McDaniel...

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