LITIGATION LAWYER SUES ON BEHALF OF HOMEOWNERS WHOSE NEIGHBOR’S OIL TANK LEAKED, CONTAMINATING THE HOMEOWNERS’ PROPERTY.
A case brought by a litigation lawyer was resolved by the New Jersey Supreme Court on August 6, 2015. John and Pamela Ross claimed that their residence was damaged by the migration of home heating oil from a leaking underground oil storage tank located at a neighboring residence. They hired a litigation lawyer and sued the current and former owners of the property where the underground storage tank was located.
Here are the facts. On an unknown date, an underground heating oil tank was installed at 72 Leighton Avenue in Red Bank. From 1988 to 1999, that property was owned by Susan Ellman.
In 1999, Ellman sold 72 Leighton Avenue to Karen Lowitz. Prior to closing, Lowitz arranged for the oil storage tank on the property to be tested by an environmental consultant. The consultant found no leakage. Lowitz owned the property from 1999 to October 2003.
In August 2003, Lowitz entered into a contract to sell the premises to Calvin Haley. Prior to the closing, Lowitz arranged for an environmental consultant to inspect the underground storage tank. The consultant located a leak. Lowitz notified her insurers, and the insurers arranged and paid for the remediation of the leaked oil on Lowitz’s property.
In 2004, John Ross bought 66 Leighton Avenue. Ross claimed he was unaware at the time that the oil tank on Lowitz’s property had leaked. He claimed he first learned in 2006 that the oil had contaminated Lowitz’s property and an adjoining property. But he did not learn at that time that oil had migrated to his own property.
In late 2006 Ross put his property up for sale. In May 2007, Ross signed a contract with a buyer to sell his property for $325,000. A week after the contract was signed, an environmental consultant retained by Lowitz’ insurers informed Ross that the oil had migrated to his property. The buyer of the property cancelled the contract.
In August 2007, the Ross’s attorney sought a commitment from the insurers that they would promptly arrange for remediation of the oil on Ross’s property. According to Mr. Ross, the insurers were not responsive to his lawyer’s repeated request that they commence remediation.
In September 2008, John and Pamela Ross hired a litigation lawyer and sued. They asserted claims based on negligence (carelessness), “strict” liability (see below), nuisance, trespass and a New Jersey environmental law called the “Spill Act.” The parties sued denied the allegations.
In the late summer of 2009, environmental consultants retained by the insurers finally excavated portions of the Ross’s property to remove the contamination. That process was completed in late October 2009.
All parties being sued filed court motions to dismiss the Ross’s lawsuit. The Ross’s litigation lawyer now argued that, even if the parties sued did not commit nuisance, trespass etc., the case should not be dismissed, because Ellman and Lowitz and their insurers unreasonably delayed the correction of the oil problem. The parties being sued denied this too. Lowitz additionally asserted that she discharged any duty she had by notifying her insurers of the claim.
(To be continued).