COURTNEY ENTERS. INC. v. Publix Super Markets, Inc.

788 So. 2d 1045, 2001 WL 387944
CourtDistrict Court of Appeal of Florida
DecidedApril 18, 2001
Docket2D00-1485
StatusPublished
Cited by4 cases

This text of 788 So. 2d 1045 (COURTNEY ENTERS. INC. v. Publix Super Markets, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
COURTNEY ENTERS. INC. v. Publix Super Markets, Inc., 788 So. 2d 1045, 2001 WL 387944 (Fla. Ct. App. 2001).

Opinion

788 So.2d 1045 (2001)

COURTNEY ENTERPRISES, INC., a Florida corporation, Appellant,
v.
PUBLIX SUPER MARKETS, INC., a Florida corporation, Appellee.

No. 2D00-1485.

District Court of Appeal of Florida, Second District.

April 18, 2001.
Rehearing Denied May 21, 2001.

*1046 Robert L. Donald of the Law Office of Robert L. Donald, Fort Myers; and Vincent D. Sapp of Vincent D. Sapp, P.A., Fort Myers, for Appellant.

James P. Hahn of Hahn, McClurg, Watson, Griffith & Bush, P.A., Lakeland, for Appellee.

PARKER, Acting Chief Judge.

Courtney Enterprises, Inc. (Courtney), appeals the summary final judgment entered in favor of Publix Super Markets, Inc. (Publix), in this case involving damage to Courtney's real property. We reverse because we conclude that Courtney possesses a common law right to sue Publix for Courtney's diminution in property value.

This case involves the application of chapter 376, Florida Statutes, the Water Quality Assurance Act (WQAA), and the effect of rehabilitation immunity on an adjoining landowner's common law causes of action for damages resulting from dry-cleaning chemical contamination.[1] In October 1996 Courtney sued Publix and Bernard R. Kissinger,[2] contending that Courtney's property had been damaged by the dry-cleaning activities conducted on Publix's adjoining property. The complaint's general allegations reflect that since 1970 Publix has been in possession, under a 99 year lease, of a shopping center in Fort Myers, Lee County. Courtney's property adjoined Publix's property. From 1978 until 1996 Publix leased space in the shopping center to Kissinger, who operated a dry-cleaning establishment next to Courtney's property. Kissinger used an extremely *1047 toxic chemical known as perchloroethylene ("perc") in his dry-cleaning business. The substance is a hazardous waste under federal law, and a federal permit is required to use it.

In 1990 Courtney discovered that a tenant had contaminated the soil and water on its Lee County property with petroleum. Lee County subsequently assessed the petroleum contamination and installed remediation equipment on Courtney's premises. In 1994 Courtney learned from Lee County authorities about the perc contamination emanating from the Publix property. Courtney's president subsequently confronted Publix, and Publix had the perc contamination assessed. In 1996 Lee County removed the petroleum remediation equipment from Courtney's property because using the equipment would create a risk of drawing the perc contamination onto Courtney's property.

Courtney's complaint sought damages against Publix on the basis of negligence, nuisance, trespass, and strict liability. Each count alleged that the damages sustained by Courtney were "the material reduction in the value of its premises." In November 1996 Publix moved to dismiss Courtney's complaint or, in the alternative, to have the action abated while its application for clean-up under the WQAA was being processed by state officials. In April 1999 the trial court denied this motion.

Publix subsequently filed an answer raising as an affirmative defense that it had obtained in October 1998 a certificate from the state declaring that it was eligible for the dry-cleaning clean-up program under section 376.3078, Florida Statutes (1995). Publix alleged that its eligibility for this program immunized it from suit pursuant to section 376.3078(3). Courtney's reply to Publix's affirmative defenses stated that section 376.3078(3) only immunizes polluters from a suit to require rehabilitation, and another portion of the same chapter, section 376.313, Florida Statutes (1995), specifically states that damage actions may still proceed. Publix moved for summary judgment on two bases: first, it contended that it was entitled to complete immunity under section 376.3078(3) because it had satisfied the eligibility requirements of that subsection for the clean-up program; and second, that it was also entitled to immunity under section 376.3078(11), Florida Statutes (Supp.1998), because it had conducted a voluntary clean-up before qualifying for the program.

In opposition to the summary judgment, Courtney submitted two affidavits. The first was executed by the geologist employed by the Department of Environmental Protection (DEP) who is in charge of the Publix/Courtney site. He stated that he had met with Publix officials concerning a voluntary clean-up, but that Publix had never agreed to this and that he did not know whether Publix had met all conditions for continued eligibility. The DEP official's affidavit also stated that the state-administered clean-up program does not pay adjacent owners "for any lost rents, limitations on development, and the like." The affidavit explained that a scoring system is used by the DEP to decide the priority of clean-up, and that clean-up will only proceed as funded by the legislature based upon an established system of site scores. The affidavit further stated that there is no presently scheduled clean-up for the site, and "in my opinion it will be at least several years, if ever, before any state-administered clean-up occurs."

The second affidavit was from the president of Courtney Enterprises, which stated that Courtney had never been informed by Publix of the contamination that had occurred a few feet from its property, but found out from Lee County years after Publix discovered the problem. Publix had *1048 first learned of the problem in February 1991, when it found a 55-gallon drum of perc sitting outside the dry cleaners, and the surrounding area indicated leakage. Publix's delay in notification allowed the pollution to spread and also resulted in a useless petroleum contamination extraction system being installed on the Courtney property. Publix had never conducted any voluntary clean-up activities. The presence of the perc on Courtney's property greatly complicated the petroleum cleanup that was already underway, since "the existence of two different kinds of contamination on the property greatly increases the engineering and technical problems," with a commensurate increase in costs. It is probably impossible with existing technology to clean up the site.

The trial court granted summary final judgment to Publix, holding that Publix was indeed entitled to a full immunity from suit under sections 376.3078(3) and (11). The court held that "if parties such as Publix meet the applicable requirements [of section 376.3078], as Publix has done, they shall obtain immunity against all other claims, including the claims of Courtney, and to hold otherwise would render the Dry Cleaning Solvent Cleanup Program toothless." This appeal followed.

Even in the face of statutory immunity to prevent lawsuits for rehabilitation against owners who find and properly report to the state dry-cleaning chemical pollution on their property, the WQAA does not prohibit an adjoining landowner from pursuing a common law cause of action for diminution in the value of his land. Before the enactment of section 376.3078, this state recognized common law causes of action for a landowner whose land was damaged by pollution from an adjoining landowner. See, e.g., Davey Compressor Co. v. City of Delray Beach, 639 So.2d 595 (Fla.1994) (trespass, negligence, nuisance, and strict liability); Bunyak v. Clyde J. Yancey & Sons Dairy, Inc., 438 So.2d 891 (Fla. 2d DCA 1983) (strict liability, nuisance, and negligence); Windham v. Dep't of Transp., 476 So.2d 735 (Fla. 1st DCA 1985) (negligence, trespass, and nuisance).

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