Crouzet v. First Baptist Church of Stonington
| Decision Date | 18 August 2020 |
| Docket Number | AC 42069 |
| Citation | 239 A.3d 321,199 Conn.App. 532 |
| Parties | David CROUZET v. FIRST BAPTIST CHURCH OF STONINGTON et al. |
| Court | Connecticut Court of Appeals |
Eric J. Garofano, New London, for the appellant (plaintiff).
Benjamin H. Nissim, Stamford, with whom were Proloy K. Das, Hartford, and, on the brief, Leonard M. Isaac, Waterbury, and James J. Nugent, Orange, for the appellees (defendants).
Lavine, Prescott and Bright, Js.*
The plaintiff, David Crouzet, appeals from the judgment of the trial court rendered in favor of the defendants, First Baptist Church of Stonington and Second Congregational Church of Stonington, following a trial to the court in a factually complex case involving environmental contamination. The question underlying all of the plaintiff's claims on appeal is what was the cause of the oil contamination in and around the plaintiff's residence and, in particular, to what extent fuel oil that leaked from the underground storage tank on the defendants’ property migrated onto the plaintiff's property and infiltrated the plaintiff's basement. On appeal, the plaintiff claims that the court's finding of a secondary source of contamination in his basement is clearly erroneous and that the court's decision is based on speculation and is legally unsound. We agree and, accordingly, reverse the judgment of the trial court.
The following facts were presented to the trial court. The plaintiff owns property located at 50 Trumbull Avenue in Stonington (plaintiff's property), which he purchased in 2004. In preparation for his purchase, Coastal Home Inspection, LLC, performed a home inspection. In the report prepared following the inspection, the inspector noted, in relevant part, that there was minor oil seepage from the oil tank in the plaintiff's basement, coming from the filter and on top of the tank, that there was a strong odor of fuel oil, and that the oil line was unprotected.
The defendants, since 1951, have jointly owned the abutting property located at 48 Trumbull Avenue (defendants’ property), on which their parsonage is located. The plaintiff's property is west and southwest of the defendants’ property. In January, 2006, the defendants had a 550 gallon underground oil tank, which had been located approximately four feet from the plaintiff's property, removed, and they replaced it with a 275 gallon steel aboveground tank, which was placed in their basement.
After heavy rains in the spring of 2009, a neighbor noticed oil coming from a pipe that carried excess water from the plaintiff's basement sump pump to the walkway in front of the plaintiff's house, and he called the fire department, which then shut off the sump pump. Eventually, the Department of Energy and Environmental Protection (department) became involved, and William Warzecha, the supervising environmental analyst for the department's remediation division, conducted an investigation of potential contamination at 48 and 50 Trumbull Street (properties). On May 23, 2011, Timothy Baird, an environmental analyst at the department, completed a limited subsurface investigation report, which was reviewed and approved by his supervisor, Aaron Green. In the report, Baird concluded that the department had found the presence of fuel oil in the soil and in the groundwater of the properties. The report posited that the oil being released from the sump pump in the plaintiff's basement originated from the underground oil tank that had been removed from the defendants’ property. The report also provided that it could not rule out a secondary source for the soil contamination in the plaintiff's basement. Additionally, the report provided that a representative of the defendants had stated that, in early December, 2010, the defendants removed contaminated sand and gravel from their sump pit and used that material to fill in a hole on the property. The department requested that the defendants retain an environmental consultant to assist in further investigation and remediation of contamination on the properties.
The defendants hired Kropp Environmental Contractors (Kropp) to excavate the area where the underground storage tank had been located. In December, 2011, Kropp removed approximately ten tons of contaminated soil and placed it under a polyethylene cover on the paved driveway of the plaintiff's property. The defendants also hired Paul Burgess, LLC (Burgess), to investigate the properties and to develop a remediation plan. The plaintiff hired a senior licensed environmental professional, Martin Brogie, who worked for GEI Consultants, Inc. The defendants agreed to pay Brogie to analyze the site and the environmental remediation activities.
After Burgess prepared its soil remediation plan, the plaintiff and the defendants entered into a contract, dated September 26, 2012, giving the defendants the authority to perform remediation work on the plaintiff's property in accordance with the soil remediation plan. The contract stated that the soil remediation plan required "the disturbance of both the surface and subsurface of the [properties] and include[d] the further investigation, excavation and replacement of an undetermined amount of contaminated soil and other associated remediation activities ... [and that the defendants were] prepared to proceed with the [r]emediation [w]ork in accordance with the [s]oil [r]emediation [p]lan ...."
In the contract, the parties acknowledged that their written agreement did not include remediation of the soil beneath the plaintiff's home, but it provided that they agreed "to continue to pursue in good faith further environmental assessment of the [plaintiff's property] as may be required by the [department] ...." The contract also addressed secondary sources, providing:
The defendants hired Service Station Equipment, the company that had removed their underground tank, to remediate the contaminated soil. Service Station Equipment excavated soil from October 8 through 12, 2012, to a depth of approximately eight feet, beginning at the location of the former oil tank, extending slightly east toward the parsonage, extending north to approximately three feet from the plaintiff's garage and west to approximately three feet from the plaintiff's home, then extending south along the length of both the plaintiff's home and the parsonage toward the street sidewalk, in the form of a large rectangle that ran between and along the two properties.1 The approximate distance between the location of the former underground tank and the east wall of the plaintiff's home is between sixteen and twenty feet. Due to concerns about the structural integrity of the foundations of the plaintiff's home and garage, as well as the sidewalk, the excavation was not extended closer to those structures. Evidence of soil contamination, including odors and elevated organic vapor readings, was noted from approximately five and one-half feet to eight feet below the ground throughout the excavation area. No oil product was observed on the soils or in the groundwater at the time of excavation.
Soil samples were collected, however, and testing of the samples confirmed the existence of contamination that exceeded the department remediation criteria. A hydrocarbon fingerprint analysis also was conducted on several samples, all of which indicated the presence of No. 2 fuel oil. Approximately 122 tons of excavated contaminated soil were taken from the properties to Phoenix Soil in Waterbury for thermal treatment. Portions of the properties, however, still contained contaminated soil because excavation did not extend closer to the plaintiff's home or the garage, or to the sidewalk, due to concerns about structural integrity.
Brogie, the plaintiff's licensed environmental professional, produced a report for the plaintiff and the defendants on January 7, 2014, following the conclusion of the defendants’ remediation efforts. In his report, Brogie discussed the reports and findings of the department and Burgess, and he presented the results of his later inspection and testing of the plaintiff's basement and the areas adjacent to the plaintiff's home foundation and garage, which had not been remediated. Brogie concluded that there remained significant concentrations of petroleum in the soil near the home and the garage and that the fuel oil impacts below the home were consistent with the exterior release of petroleum.
In the report, Brogie concluded that the source of the contamination under the home and in the soil adjacent to the home and garage was the defendants’ former underground oil tank. The report also provided that Brogie suggested that the recommendations from the department be completed; these included connecting the plaintiff's sump pump discharge to a filtration system or to the sanitary sewer system, provided the town was amenable, and enhancing the ventilation in the basement of the home to eliminate...
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Crouzet v. First Baptist Church of Stonington
...J. Garofano, New London, in opposition.The defendants' petition for certification to appeal from the Appellate Court, 199 Conn. App. 532, 239 A.3d 321 (2020), is granted, limited to the following issue:"Did the Appellate Court, on the record in this case, properly reverse the judgment of th......
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Crouzet v. First Baptist Church of Stonington
...prove that the oil tank on the defendants’ property was the primary source of the contamination. Crouzet v. First Baptist Church of Stonington , 199 Conn. App. 532, 553–54, 239 A.3d 321 (2020). The Appellate Court agreed with the plaintiff and reversed the judgment of the trial court and re......