Millett v. Atlantic Richfield Co.

• Decision Date: 23 October 2000
• Parties: Michael MILLETT et al. v. ATLANTIC RICHFIELD CO. et al.
• Court: Maine Supreme Court

760 A.2d 250

2000 ME 178

Michael MILLETT et al. v. ATLANTIC RICHFIELD CO. et al.

Supreme Judicial Court of Maine.

Argued September 7, 2000.

Decided October 23, 2000.

Jon Hinck (orally), Lewis J. Saul, Jennifer Martin Frank, Lewis Saul & Assoc., P.C., Portland, William D. Robitzek, Berman & Simmons, P.A., Lewiston, for plaintiff.

William J. Kayatta Jr. (orally), John J. Aromando, David P. Littell, Pierce Atwood, Portland, Alan J. Hoffman, Blank Rome Cominsky & McCauley, Philadelphia, PA, for ARCO Chemical and Lyondell Chemical.

Randall B. Weill, Jonathan S. Piper, Preti Flaherty Beliveau Pachios & Haley, LLC, Portland, for Atlantic Richfield.

Mark G. Lavoie, Thomas S. Majerison, Norman Hanson & DeTroy, Portland, for George Smith.

Peter J. Rubin, Jeffrey A. Thaler, Bernstein Shur Sawyer & Nelson, Portland, for Oxygenated Fuels Assn.

Joseph H Groff III, Brendan Reilly, Jensen Baird Gardner & Henry, Portland, for American Petroleum Inst.

Panel: WATHEN, C.J., and CLIFFORD, RUDMAN, ALEXANDER, SAUFLEY and CALKINS, JJ.

CALKINS, J.

[¶ 1] Michael Millett and other named plaintiffs appeal from the order of the Superior Court (Cumberland County, Cole, J.) denying their motion for class certification. There is no final judgment in this matter. The immediate appealability of an order denying a motion for class certification is an issue of first impression in Maine. We conclude that such appeals are interlocutory and that this case does not come within any of the recognized exceptions to the final judgment rule. Accordingly, we dismiss the appeal.

I. PARTIES AND FACTS

[¶ 2] The five named plaintiffs own or have an interest in real estate in Maine. They all have wells from which they obtain groundwater for drinking and household purposes. The well water of three of the named plaintiffs has been tested and found to contain the gasoline additive, methyl-tertiary-butyl ether, commonly known as MTBE, at levels in excess of that considered safe for drinking. Two of the named plaintiffs have wells which have not been tested. The defendants are Atlantic Richfield Company (ARCO) and its subsidiaries, ARCO Chemical Company and Lyondell Chemical Company.

[¶ 3] The salient facts presented by the plaintiffs for purposes of the class certification motion are as follows. MTBE is a chemical oxygenate, first produced by ARCO Chemical in the 1960s, but not produced commercially until 1979 when it was added to gasoline in low concentrations to boost octane. To meet the requirements of the Clean Air Act, 42 U.S.C.A. §§ 7401-7671q (1995 & Supp.2000), the Environmental Protection Agency and the petroleum industry worked together to develop MTBE RFG, which is reformulated gasoline with higher concentrations of MTBE. MTBE RFG increases the oxygen content of gasoline enabling it to burn cleaner with reduced levels of volatile organic compounds. Pursuant to the Clean Air Act, Maine "opted in" seven counties to the reformulated gasoline program, effective January 1, 1995. This meant that only MTBE RFG could be sold by the gasoline stations in those seven counties. Actual sales of MTBE RFG began in Maine in November 1994. Gas stations outside of the seven counties also sold MTBE RFG because they found it difficult to obtain other gasoline from suppliers.

[¶ 4] MTBE is very soluble in water and, when spilled, spreads farther and faster than other components of gasoline. In 1998 several incidents of well contamination in Maine were reported. Health officials randomly tested 951 household wells and 793 public water sources, and they found MTBE in 15.8% of the tested wells and water sources. Of these, 1.1% had MTBE levels exceeding the Maine drinking water standard of 35 parts per billion.

[¶ 5] The complaint alleges seven causes of action: (1) strict liability for failure to warn; (2) strict liability for misrepresentations; (3) unfair and deceptive trade practice; (4) negligence; (5) negligent misrepresentation; (6) civil conspiracy; and (7) fraud. Among other contentions, the plaintiffs allege that ARCO and its subsidiaries knew that MTBE posed a danger to groundwater; misrepresented that danger; failed to warn others of the danger; and engaged in a conspiracy regarding the misrepresentation and failure to warn.

[¶ 6] The named plaintiffs seek to bring this action on behalf of two subclasses. The first subclass is the "Verified Contaminated Well Subclass" which is composed of:

all persons or entities who during the class period from November 1, 1994 to present owned or had an interest in property in Maine and were consumers, other than resellers, of Defendants' MTBE or MTBE RFG and have had water tests verifying that their well or ground water is contaminated with MTBE in unacceptable concentrations.

The plaintiffs seek to certify this first subclass pursuant to M.R. Civ. P. 23(b)(3). They request monetary relief from the defendants for property damage caused by MTBE. The second subclass is the "Untested Well Subclass" which is composed of:

all persons or entities who presently own or have an interest in property in Maine, and who 1) have been consumers, other than resellers, of Defendants' MTBE or MTBE RFG; 2) rely on ground water from the property for drinking and/or other household uses[;] and 3) have not had their water tested for the presence of MTBE.

The plaintiffs seek to certify the second subclass pursuant to M.R. Civ. P. 23(b)(2). They request an injunction requiring the defendants to establish a fund to test and monitor their wells. The plaintiffs exclude from the definition of both subclasses any persons who have received personal injuries.

[¶ 7] The Superior Court found that the plaintiffs meet the numerosity, commonality, and typicality requirements of M.R. Civ. P. 23(a)(1), (2), and (3). The court found that plaintiffs' attorneys can adequately represent the class, but it found that the named plaintiffs are inadequate representatives of their respective subclasses. The court found that the Contaminated Well Subclass does not meet the requirements of M.R. Civ. P. 23(b)(3) because the common questions of law and fact do not predominate over the issues in each individual's case of reliance, causation, comparative negligence, damages, and identification of suppliers of MTBE. The trial court held that these individual issues also mean that the class action is not superior to the individual action. The court found that the Untested Well Subclass does not meet the requirements of Rule 23(b)(2) because it concluded that the plaintiffs in that subclass are primarily seeking monetary relief by requesting the defendants to pay for testing of their wells. For these reasons, the Superior Court denied class certification. The plaintiffs appeal from that denial, and the defendants request this Court to dismiss the appeal on the ground that there is no final judgment.

II. FINAL JUDGMENT RULE

[¶ 8] Only final judgments are appealable except in a few narrow circumstances. See State v. Maine State Employees Ass'n, 482 A.2d 461, 464 (Me.1984). The final judgment rule prevents piecemeal litigation, and

"helps curtail interruption, delay, duplication and harassment; it minimizes interference with the trial process; it serves the goal of judicial economy; and it saves the appellate court from deciding issues which may ultimately be mooted, thus not only leaving a crisper, more comprehensible record for review in the end but also in many cases avoiding an appeal altogether."

Id. In this case the plaintiffs argue that two exceptions to the final judgment rule are applicable: the death knell exception and the judicial economy exception.¹

A. Death Knell Exception

[¶ 9] An exception to the final judgment rule allows the appeal of an interlocutory order when that order operates as a "death knell" to the action. The death knell doctrine is a federal invention devised exactly for the situation in this case: the denial of class certification. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); 15A CHARLES A. WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE §§ 3911, 3912 at 338, 451 (2d ed.1992).

[¶ 10] In Maine, the death knell doctrine has been applied in a handful of cases, and none involve a situation resembling the denial of a class certification. "The death knell exception `permits an appeal from an interlocutory order where substantial rights of a party will be irreparably lost if review is delayed until final judgment.'" Andrews v. Dep't of Envtl. Prot., 1998 ME 198, ¶ 4, 716 A.2d 212, 215 (quoting Cook v. Cook, 574 A.2d 1353, 1354 (Me.1990)). In Andrews, the defendants appealed from a denial of summary judgment in which the defendants claimed immunity, and we agreed that a denial of immunity was entitled to immediate review under the death knell doctrine. Id. In Cook, we permitted an appeal from a foreclosure judgment, which was not final because of a pending counterclaim, but we found that, in the particular circumstances of that case, the foreclosure judgment precluded relief on the counterclaim. Cook, 574 A.2d at 1354. See also Moffett v. City of Portland, 400 A.2d 340, 343 n. 8 (Me. 1979) (permitting appeal from denial of preliminary injunction which sought to enjoin public disclosure of records claimed to be confidential).

[¶ 11] The dominant case concerning the immediate appealability of orders denying class certification is Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). In that case the Supreme Court determined that such appeals are interlocutory and not immediately reviewable. Because the federal class action rule, F.R. Civ. P. 23,² was identical in all respects to Maine's current class action rule, the Coopers & Lybrand case is persuasive authority. The Supreme Court noted that the death knell exception is utilized only when the interlocutory order has the effect of ending the litigation. See id. at 471, 98 S.Ct. 2454. For this reason, the death knell...