PaineWebber Income Properties v. Mobil Oil Corp.

• Decision Date: 23 June 1995
• Docket Number: No. 92-1839-Civ-T-17B.,92-1839-Civ-T-17B.
• Parties: PAINEWEBBER INCOME PROPERTIES THREE LIMITED PARTNERSHIP, a Delaware Limited partnership, qualified to do business in Florida, By and Through its General Partner, THIRD INCOME PROPERTIES, INC., a Delaware Corporation, Plaintiff, v. MOBIL OIL CORPORATION, a New York Corporation, Defendant.
• Court: U.S. District Court — Middle District of Florida

902 F. Supp. 1514

PAINEWEBBER INCOME PROPERTIES THREE LIMITED PARTNERSHIP, a Delaware Limited partnership, qualified to do business in Florida, By and Through its General Partner, THIRD INCOME PROPERTIES, INC., a Delaware Corporation, Plaintiff, v. MOBIL OIL CORPORATION, a New York Corporation, Defendant.

No. 92-1839-Civ-T-17B.

United States District Court, M.D. Florida, Tampa Division.

April 28, 1995.

Order Denying Reconsideration June 23, 1995.

Clifford A. Schulman, Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quental, P.A., Miami, FL, Byron G. Petersen, Siegfried, Kipnis, Rivera, Lerner, De La Torre and Petersen, Fort Lauderdale, FL, for Painewebber Income Properties Three Limited Partnership and Third Income Properties, Inc.

Roger Steven Kobert, Todd R. Legon, Mark A. Cohen & Associates, P.A., Miami, FL, for Mobil Oil Corporation.

KOVACHEVICH, District Judge.

This cause is before the Court on defendant, Mobil Oil Corporation's (hereinafter referred to as "MOBIL") Motion for Partial Summary Judgment as to Statutory Claims and for Diminution in Value Damages (Dkt. No. 60); response (Dkt. No. 72); and all supporting documents.

Defendant MOBIL seeks relief pursuant to Rule 56, Fed.R.Civ.P., for partial summary judgment as to statutory claims and for diminution in value damages sought by Plaintiff, Painewebber Income Properties Three Limited Partnership (hereinafter referred to as "Painewebber") in a multi-count Supplemented and Amended Complaint (hereinafter referred to as "Complaint") (Dkt. No. 1 and Dkt. No. 44).

Painewebber's Complaint seeks damages for statutory and other pendent claims arising out of the environmental contamination to real property it owns. Specifically, Painewebber seeks statutory relief pursuant to § 6972(a)(1)(B) of the Federal Resource Conservation and Recovery Act, (hereinafter referred to as "RCRA") for Hazardous Waste Discharge in Count I, and pursuant to Fla. Stat. § 378.313, Count II for Contractual Indemnification, Count III for Statutory Strict Liability, Count IV for Common Law Strict Liability, Count V for Negligence, Count VI for Trespass, Count VII for Nuisance and Count VIII for Breach of Indemnity Agreement.

FACTS

Plaintiff, Painewebber owns approximately 13.83 acres at 17th Street and Lockwood Ridge Road in Sarasota, Florida, which is known as the Northeast Plaza Shopping Center ("Northeast Plaza" or the "Property"). Defendant, Mobil is the owner and/or operator of a service station (MOBIL service station number 02-F3F) located at 1700 Lockwood Ridge Road, Sarasota, Florida, to the south, to the west, and contiguous to the property owned by Plaintiff.

During the period between 1957 and 1967 MOBIL constructed and thereafter owned, occupied, and operated a service station at this location. In the operation of the service station, Mobil handled, stored, and used petroleum products such as gasoline, diesel fuel, and other contaminants. Defendant stored such petroleum products on the service station site in underground storage tanks.

During a monthly investigation, in or about March of 1987, Defendant and/or its consultants discovered free floating petroleum product in three of the four tank area compliance wells located on the service station site. Also discovered, were crack(s) in certain distribution lines for the tanks, and other deficiencies.

Subsequent studies revealed that petroleum contamination had migrated across the property line separating Mobil's service station site from Painewebber's "Northeast Plaza" property, causing petroleum contamination of the groundwater and/or soil of Plaintiff's "Northeast Plaza" property.

Defendant concedes that the subject property suffers from environmental contamination caused by free floating petroleum products and has attempted to remedy the soil and groundwater contamination under the supervision of the Florida Department of Environmental Regulation (hereinafter referred to as "DER"). However, Defendant denies that it caused or was otherwise responsible for the contamination, and attributes the cause to third parties. Notwithstanding, Defendant has agreed to fully remediate the subject property, at its sole expense, in strict compliance with Federal and State law, and has commenced the remediation process.

Plaintiff asserts that since spring of 1990 and during all times relevant hereto, the "Northeast Plaza" property has been and is available for sale. However, Plaintiff contends that, due to the petroleum contamination, bona fide offers to purchase the property have not been forthcoming. Additionally, Plaintiff has been unsuccessful in refinancing the mortgage on the contaminated property, which Plaintiff argues would be fiscally prudent and reasonable based upon revenue streams available for the required debt servicing, but for the soil and groundwater contamination.

Due to Plaintiff's inability to secure refinancing, and pay the note secured by the property's wrap around mortgage, Plaintiff entered into a forbearance agreement on the debt with Northeast Plaza Associates at a rate of eleven percent (11%). Plaintiff also incurred loan extension fees payable to Barnett Bank to extend the note payment.

On September 26, 1991, Plaintiff anticipated that it would be unable to obtain third-party refinancing of the mortgage before the due date, and requested that Defendant provide refinancing or an alternative financial arrangement, which Defendant refused to do. Plaintiff's financial situation continued to deteriorate and Plaintiff defaulted. The default resulted in assignment of even higher interest debts, additional penalties, and potential foreclosure.

Plaintiff argues that in addition to its debts, it has been obligated to employ the services of an environmental consultant to monitor Defendant's compliance with the DER's clean-up directives, to conduct a study and prepare a disclosure statement concerning the property's environmental condition for prospective purchasers and potential financing entities, and to employ legal counsel to pursue this action. Plaintiff states that it has demanded reimbursement, in writing, from Defendant for these out-of-pocket expenses, required due to the contamination and Defendant has refused.

Although Plaintiff concedes that "Northeast Plaza" continues to be "economically viable in its intended use as a shopping center as evidenced by recent lease signings" (Dkt. No. 1, Pg. 7), Plaintiff argues that "the contamination has deterred potential mortgage lenders and buyers, reduced the value of the property, and rendered the property unmarketable." (Dkt. No. 1, Pg. 7). Consequently, Plaintiff claims the contamination has adversely affected, and continues to adversely affect, its ability to carry on normal business operations.

Plaintiff has amended Count I of the Complaint to include reasonable attorney fees, and to seek entry of a mandatory final injunction directing Defendant to expedite its remediation efforts by implementing certain improvements in addition to its current monitoring system (Dkt. No. 44).

MOTION FOR PARTIAL SUMMARY JUDGMENT

Defendant, MOBIL argues that it is entitled to partial summary judgment based on the following:

(1) Mobil contends that Painewebber has not satisfied the jurisdictional requirements of RCRA regarding notice and is barred from seeking injunctive relief.

(2) Mobil argues that Painewebber has sought relief pursuant to § 6972(a)(1)(B) of the Federal Resource Conservation and Recovery Act and Florida Statute, Section 376.313, and that these statutes do not provide Painewebber with a private cause of action for monetary damages. Therefore, Mobil claims that Painewebber cannot maintain these claims as a matter of law.

(3) Mobil argues that Painewebber is seeking to recover "diminution in value" of the subject real property purportedly caused by the contamination. Painewebber seeks to recover the difference between the fair market value of the property, absent contamination and the fair market value of the property after contamination. Mobil claims that this measure of damages is unavailable to Painewebber as a matter of law, because Mobil has already entered into an agreement with Painewebber which provided full reimbursement for all losses.

In that agreement, Mobil agreed to fully remediate the property, at its sole expense, therefore, making Painewebber completely "whole". (Dkt. No. 60, Exhibit "A" — "Monitoring Well Installation Agreement.") Consequently, Mobil argues that the costs for remediating the property and "diminution" in fair market value of the property are mutually exclusive remedies as a matter of law. In view of Plaintiff's acceptance of Mobil's offer to remediate, Mobil contends that Painewebber cannot obtain both measures of damage ("remediation and diminution") and realize a windfall by extracting a greater recovery from Mobil than the amount of actual damages which have been sustained.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The moving party may discharge this burden by showing that there is an absence of evidence to support the nonmoving party's case. Id. When the moving party shows the absence of an issue of material fact, the nonmoving party must go beyond the pleadings and show that there is a genuine issue for trial. Id. at 324, 106 S.Ct. at 2553. The nonmoving party must go "beyond the pleadings" and present evidence designating "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. at 2553. All evidence and factual inferences should be viewed in the light most favorable to the nonmoving party. Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir.1987). No genuine...