PRIVE v. VERMONT ASBESTOS GROUP, 08-474.

• Citation: 2010 VT 2, 992 A.2d 1035
• Case Date: January 15, 2010
• Court: United States State Supreme Court of Vermont

992 A.2d 1035
2010 VT 2

Leonard PRIVE
v.
VERMONT ASBESTOS GROUP and Howard Manosh.

No. 08-474.

Supreme Court of Vermont.

January 15, 2010.

992 A.2d 1036

Robert E. Manchester, Burlington, Of Counsel to Valsangiacomo, Detora & McQuesten, P.C., Barre, for Plaintiff-Appellant.

Andrew K. Braley and Gale E. Westgate of Primmer Piper Eggleston & Cramer PC, Burlington, for Defendant-Appellee Manosh.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

¶ 1. REIBER, C.J.

¶ Plaintiff appeals the dismissal of his complaint against defendant Howard Manosh. The original complaint listed Vermont Asbestos Group (VAG) as the only defendant. Plaintiff subsequently filed proposed amendments to his complaint to add as a defendant the president and CEO of VAG, Howard Manosh. Plaintiff stated that Manosh was personally liable for the alleged trespass and nuisance claims. After one of plaintiff's motions to amend was granted, Manosh filed a motion to dismiss to remove his name from the lawsuit and to hold that the entire claim was barred under the applicable statutes of limitations. Plaintiff responded and also filed a second motion to amend the complaint to allege

992 A.2d 1037

additional facts regarding Manosh's liability. The trial court granted Manosh's motion to dismiss on the grounds that Manosh could not be held personally liable, thereby removing Manosh as a defendant. The court subsequently denied plaintiff's motion to amend, holding that even if the proposed second amended complaint were allowed, plaintiff failed to allege facts that would make Manosh personally liable. Plaintiff then filed a motion to reconsider and a motion to allow a third amended complaint, and the trial court denied both of these motions. On appeal, plaintiff argues that the trial court did not properly apply Vermont's liberal pleading requirements and committed legal error when it granted defendant's motion to dismiss. We reverse and remand

¶ 2. Because this appeal arises out of defendant's successful motion to dismiss, "we must assume as true all factual allegations pleaded by the nonmoving party." Amiot v. Ames, 166 Vt. 288, 291, 693 A.2d 675, 677 (1997). With this standard in mind, we recount the facts as plaintiff stated them in his first amended complaint.¹

¶ 3. Plaintiff owns a parcel of land that abuts VAG's former asbestos mine in Eden, Vermont. When plaintiff purchased this land in 1989, it contained wetlands, ponds, and woodlands that supported a wide variety of fish and wildlife, including various species of migratory birds. The ponds and wetlands appeared clean and free from any contamination. In 1992, plaintiff completed construction of an access road and cabin on the land. Plaintiff states in his complaint that he uses the cabin "as a second home and personal retreat" where he can enjoy the "natural beauty and pristine wilderness" of the area.

¶ 4. The VAG asbestos mine was in operation for a number of decades. Manosh was president and CEO of VAG beginning in 1974 and continuing at least through 1993, when the mine ceased operations. By 1993, when the mine became dormant, it had accumulated roughly twelve million tons of waste materials—a mine tailings pile that stands over 300 feet high. This pile of waste materials is apparently still standing today on the VAG property. The pile stands within the watershed of Hutchins Brook.

¶ 5. A tributary to Hutchins Brook flows through VAG's property and then travels downstream into plaintiff's ponds and wetlands. According to plaintiff, beginning in 1993 and continuing at least through the spring of 2007, runoff from VAG's three-hundred-foot pile of waste materials caused contaminated substances to travel through the tributary and onto plaintiff's property. Plaintiff argues that this amounts to a trespass, as well as a nuisance that interferes with (among other things) his enjoyment of the natural beauty of his land.

¶ 6. Plaintiff has taken numerous steps to address the issue of contaminated water runoff. For instance, in 1993, when a dense subsoil deposit filled several of plaintiff's ponds, he contacted VAG and Manosh, and VAG agreed to buy just over ten acres of plaintiff's 169-acre parcel. Plaintiff's remaining property continued to

992 A.2d 1038

be inundated with subsoil deposits, and, on several occasions beginning around 2001, he rented excavator equipment and used it to remove deposits. Plaintiff alleges that his remediation efforts have so far cost him around five thousand dollars. He claims that future remediation efforts will cost over one million dollars

¶ 7. In the spring of 2005, as increasing quantities of subsoil deposits continued to invade his property, plaintiff contacted the Vermont Department of Environmental Conservation and requested assistance about how to protect his ponds and wetlands. The department conducted a field investigation and determined that significant asbestos contamination had occurred on plaintiff's property. The department also advised plaintiff that he needed a permit before he could continue to excavate the subsoil deposits on his property. In addition, the department told plaintiff that he should stop using water from the tributary to Hutchins Brook.

¶ 8. During 2006 and 2007, the subsoil deposits continued to build up on plaintiff's property. Plaintiff states in his complaint that by the spring of 2007 these deposits had "completely obliterated" several of his ponds and wetlands and that deposits were also visible beneath his cabin. Fish were dying in his remaining ponds, and he again called the department to request assistance. The department undertook a second investigation, after which it advised plaintiff that his property was covered with visible evidence of asbestos contamination and that he was putting himself at risk of contracting an asbestos-related disease every time he visited his property. The department also concluded that the asbestos contamination likely resulted from the twelve-million-ton pile of waste materials directly upstream of plaintiff's property.

¶ 9. When plaintiff initially filed suit, VAG was the only listed defendant. Plaintiff later filed an amended complaint to add Manosh as a defendant. The first amended complaint was substantially similar to the original complaint, but it replaced "VAG" with "VAG and Manosh" in several places and added the allegations that "Manosh as President and chief executive officer of VAG was responsible for all actions taken by that corporation" and "during all times material to this action... Manosh was the `operator of a facility' within the meaning of 10 V.S.A. § 6615(a)(1)." The trial court granted plaintiff's first motion to amend the complaint.

¶ 10. Manosh then filed a motion to dismiss to remove his name from the lawsuit for failure to state a claim upon which relief can be granted. See V.R.C.P. 12(b)(6). Manosh made two arguments for dismissal: (1) plaintiff's claims failed to allege facts that would make Manosh personally liable for his actions at VAG; and (2) plaintiff's claims were barred by the applicable statute of limitations. In responding to the first argument, plaintiff filed a motion to replace the first amended complaint with a second amended complaint, which included the following additional allegations against Manosh:

Among other things, at all times material to this complaint, Manosh was and has been the registered agent and sole director of VAG, has since 1974 become the principal shareholder and has acquired a controlling interest in the corporation, and has been found to make all decisions regarding what is left of VAG operations, which are rentals and keeping the property as safe as it can be made. Accordingly, at all times material since 1974, Manosh as chief executive officer for VAG was and has been directly responsible for making all decisions concerning VAG operations including

992 A.2d 1039

but not limited to maintenance and control of erosion from tailing piles located on VAG's asbestos mine property, and has personally participated on behalf of VAG in all decisions concerning the containment and storage of discarded mining waste as defined by

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