Gerst v. Marshall
| Decision Date | 19 June 1996 |
| Docket Number | No. 95-499,95-499 |
| Citation | 549 N.W.2d 810 |
| Parties | Jeff C. GERST and Kari R. Gerst, Appellants, v. Billy G. MARSHALL, Jr., Cindy R. Marshall, and Reif Oil Co., Appellees. |
| Court | Iowa Supreme Court |
Brenda Myers and Kathryn Barnhill of Barnhill & Goodman, P.C., Des Moines, for appellants.
Mary Ann Brown of Bauer, Schulte, Hahn, Swanson & Brown, Burlington, for appellees Marshalls.
H. Craig Miller of Hirsch, Adams, Krekel, Putnam, Cahill & Miller, Burlington, for appellee Reif Oil Co.
Considered by HARRIS, P.J., and LARSON, CARTER, SNELL, and TERNUS, JJ.
Appellants, Jeff C. Gerst and Kari R. Gerst, sued appellees, Billy G. Marshall, Jr., Cindy R. Marshall and Reif Oil Co., after the Gersts discovered petroleum contamination on land they had purchased from the Marshalls. The district court granted summary judgment to the Marshalls and Reif Oil, concluding the Gersts had failed to generate factual questions on several issues. Because we agree the Gersts have not produced sufficient evidence to allow a fact finder to conclude conduct of the Marshalls or Reif Oil caused the contamination on the Gersts' property, we affirm the grant of summary judgment.
We review a summary judgment ruling for error. Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 354 (Iowa 1995). Summary judgment may be entered if the record shows "no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Iowa R.Civ.P. 237(c). Thus, "we examine the record before the district court to decide whether a genuine issue of material fact exists and whether the court correctly applied the law." Benavides, 539 N.W.2d at 354. In doing so, we view the facts in the light most favorable to the party opposing the motion for summary judgment. Hagen v. Texaco Refining & Mktg., Inc., 526 N.W.2d 531, 538 (Iowa 1995).
The record before the district court, when viewed in the light most favorable to the Gersts, shows the following facts. The Marshalls operated a gas station on the involved property from 1985 until 1988 when they sold the property to the Gersts. During the time the Marshalls owned the property, Reif Oil supplied petroleum products to the service station.
In October 1987, the Marshalls installed two new underground storage tanks (USTs), lines and related equipment on the southern part of the property. Ron Walker, an independent contractor who installed the new tanks, tested the tanks and related equipment twice after they were installed; neither test showed a leak.
Walker and Billy Marshall testified the soil in the area of the new tanks was not discolored, and there was no smell of gasoline. Nevertheless, a soil sample taken from this area at the time of installation revealed gasoline byproducts in the soil, but not above acceptable levels.
The Marshalls installed four sniffer wells near the new tanks. Billy Marshall checked these wells, every few days at first and then weekly, by sticking his nose down the pipe and sniffing. 1 About once a week he would take water out of the sniffer wells that had water in them to look for evidence of contamination; he observed none.
The next spring, shortly before they sold the property, the Marshalls removed two old USTs from the northern part of the property and installed four monitoring wells around the old tank pit. Billy Marshall smelled petroleum when the concrete was first removed and during the drilling of one of the monitoring wells, but again the soil around the tanks was not discolored. Marshall did not further investigate the smell or inform the Iowa Department of Natural Resources (DNR). Thereafter, Marshall checked the monitoring wells weekly or biweekly and discovered no signs of contamination. 2
When the Gersts bought the property, the Marshalls gave them a warranty deed and a groundwater hazard statement saying there were no known hazardous wastes on the property. Billy Marshall did not tell the Gersts he had smelled petroleum when the old tanks were removed.
The Gersts did not check the monitoring wells after they purchased the property and were cited by the DNR in 1990 for their failure to do so. Thereafter, the Gersts began to keep records of their inspections of the monitoring wells, although Jeff Gerst admitted that not all the inspections recorded were actually performed.
During the time the Gersts owned and operated the service station several accidental spills occurred in the vicinity of the new tanks. On occasion, customers would pull away from the pump with the nozzle still in their car, resulting in the hose being pulled from the dispenser or the nozzle being pulled off the hose. In May 1990, a diaphragm in the gas dispenser broke causing a release of gasoline. Ron Walker was called by the Gersts to make the repairs. Walker testified the soil underneath the pump island was wet with gasoline and "[y]ou could smell the gas fumes real bad." The Gersts did not clean up these releases; they merely hosed down the area.
Two years after the Gersts purchased the property, in the summer of 1990, they discovered contamination on the property. Testing showed contamination in the area of the new tanks and at the old pit; the highest concentration was at the dispenser island. The Gersts continued to operate the service station until the summer of 1992, when they closed it.
In 1993, the Gersts sued the Marshalls and Reif Oil on theories of negligence, strict liability and res ipsa loquitur. They also sued the Marshalls on a theory of fraudulent misrepresentation and alleged a citizen action against the Marshalls under Iowa Code section 455B.111 (1993). After the lawsuit was filed, a line and tank tightness test was performed at the request of the Marshalls and Reif Oil. This 1994 test showed the equipment installed in 1987 was sound and not leaking.
The Gersts filed a motion for partial summary judgment, claiming they were entitled to judgment as a matter of law on their claim against the Marshalls based on section 455B.111. The Marshalls and Reif Oil also filed motions for summary judgment, seeking judgment in their favor on all of the Gersts' claims.
The summary judgment record included the deposition testimony of experts. Although the Gersts' expert testified the Marshalls should have reported to the DNR the odor in the soil at the time the old tanks were removed, the expert could not say what size of release was indicated by the presence of that odor. Similarly, the expert was unable to offer an opinion on what a groundwater or soil test in the area where gasoline was smelled would have shown in 1988.
The experts for the Gersts and the defendants testified there was no evidence the fuel delivery system was improperly installed or maintained. Nevertheless, they identified the contaminant on the property as gasoline and the source of the gasoline as the tanks and associated equipment. They could not specify the precise location within the system from which the gasoline was released, nor could they state what caused the release of gasoline. The experts merely testified there could be several potential causes, including system leaks, customer overfills and accidents at the island. Most importantly, both experts agreed the time the contamination occurred could not be pinpointed. Jeff Gerst testified he could only speculate on the cause and timing of the contamination.
The trial court denied the Gersts' motion and granted the Marshalls' and Reif Oil's motions, dismissing all claims made by the Gersts. The Gersts appealed. Because we find the issue of causation to be dispositive, we address only that issue.
The parties do not dispute causation is an element of the tort theories alleged by the Gersts. See Hyler v. Garner, 548 N.W.2d 864, 873 (Iowa 1996) (); Hagen, 526 N.W.2d at 537 (); Bickford v. American Interinsurance Exch., 224 N.W.2d 450, 455-56 (Iowa 1974) (). The parties disagree, however, on whether causation is an element of a citizen action under Iowa Code section 455B.111.
Chapter 455B and the administrative rules implementing it regulate the handling of releases from USTs and the removal of USTs. See Iowa Code §§ 455B.471-.479 (1993); Iowa Admin.Code ch. 567-135 (1996). Section 455B.111 allows "citizen actions" to enforce chapter 455B and the governing regulations:
1. Except as provided in subsection 2, a person with standing as provided in subsection 3 may commence a civil action in district court on the person's own behalf against any of the following:
a. A person, including the state of Iowa, for violating any provision of this chapter or a rule adopted pursuant to this chapter.
Iowa Code § 455B.111(1) (1993) (emphasis added). A person has standing "if the person is adversely affected by the alleged violation." Id. § 455B.111(3) (emphasis added). We conclude the standing requirement incorporates causation as an element of a section 455B.111 action.
When we apply a statute, we give the words used by the legislature their plain and ordinary meaning unless the words are defined by the legislature or have a particular and definite meaning in law. State v. Ahitow, 544 N.W.2d 270, 272 (Iowa 1996). Chapter 455B does not define the phrase "adversely affected by," nor are we aware of any particular legal meaning given to this phrase. Consequently, we look to the dictionary definition of these words. See id.; State v. Romeo, 542 N.W.2d 543, 548 (Iowa 1996).
The dictionary defines "adversely" as "in an adverse or hostile manner." Webster's Third New Int'l Dictionary 31 (1993). The word "adverse" means "in opposition to one's interests: detrimental, unfavorable." Id. Webster's defines "affect" as ...
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