Muncie v. Wiesemann

548 S.W.3d 877
CourtMissouri Court of Appeals
DecidedJune 14, 2018
Docket2017-SC-000235-DG
StatusPublished
Cited by26 cases

This text of 548 S.W.3d 877 (Muncie v. Wiesemann) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Muncie v. Wiesemann, 548 S.W.3d 877 (Mo. Ct. App. 2018).

Opinion

OPINION OF THE COURT BY JUSTICE CUNNINGHAM

Factual and Procedural Background

On December 2, 2010, the Energy and Environmental Cabinet's Environmental Response Branch responded to a leak of approximately 1,000 gallons of #2 Fuel Oil (i.e. home heating oil) from a faulty underground *878storage tank at an unoccupied property owned by the Martha Magel Estate. The heating oil flowed downhill from the Estate's property and flooded the nearby residence of Appellants, Cindy and Jim Muncie. Although Appellee Patricia Wiesemann, the testatrix of the Martha Magel Estate, hired contractors to remove the heating oil and prevent further contamination, the leaking continued to damage the property.

From December 2 onward, heating oil continued to leak onto the Muncies' property. The sump pump failed on December 8, and extensive damage to the basement, driveway, and lawn of the Muncie residence ensued. The continued contamination caused the Environmental Response Branch to request on January 13, 2011, that an environmental emergency be declared. The agency then implemented emergency procedures to "limit any human health or environmental impacts" at the Muncie residence.

In May of 2011, Auto-Owners Insurance Company, Wiesemann's liability insurer, filed an Interpleader complaint in federal court against Wiesemann, the Muncies, the Dunkles, Shield Environmental Associates, Inc. ("Shield"), and the Kentucky Department for Environmental Protection (specifically, the Environmental Response Team and the Division of Waste Management, Superfund Branch).

In September of 2013, the parties in the federal action entered into the Partial Settlement and Partial Release Agreement. Auto-Owners discharged its obligation to resolve third-party claims by paying settlements for damages and environmental cleanup costs. Notably, the settlement allocated $60,000 to the Muncies for repair costs, intended to remedy actual damages to their property. Additionally, the Muncies agreed to dismiss all claims against Wiesemann, the Magel Estate, and Shield, except for a few reserved claims. Prominently, the partial settlement reserved "claims by the Muncies asserting the diminution of the value of their real estate due to the stigma resulting from the contamination...." Partial Settlement and Partial Release Agreement at 2.

One month later, the Muncies filed the underlying state claim in Oldham Circuit Court against Wiesemann and Shield for negligence, trespass, and permanent nuisance. In May of 2015, Wiesemann filed a motion for summary judgment, arguing that the partial settlement barred the state action because the Muncies were fully compensated for the actual damages the contamination caused to their property. Citing Smith v. Carbide & Chems. Corp., 226 S.W.3d 52 (Ky. 2007), Wiesemann argued that, as a matter of law, stigma damages can only be recovered when paired with an actual damages award.

During its October 16, 2015 hearing, the Oldham Circuit held that, while stigma damages may be considered in the measure of actual damages for remediation, the Muncies could not seek both the costs of remediation (i.e. the repair costs) and the diminution in value due to stigma damages. Because the Muncies settled their remediation claim in the partial settlement agreement, the trial court held that no further claim existed. Thus, the Muncies' claim for stigma damages was dismissed. The Muncies appealed to the Court of Appeals of Kentucky.

On appeal, the Muncies argued that: (1) stigma damages resulting from the diminution in value of real property are recoverable where there is actual damage; and (2) remediation for actual damages is not a bar to recovery of stigma damages. While the Court of Appeals agreed that "when there is actual damage to real property, stigma or reputation damages may be included as a measure of damages ...

*879[however,] there is not an independent right of recovery available for such damages." Court of Appeals Opinion at 10. The Muncies moved this Court for discretionary review, which we granted.

Analysis

"Appellate review of a summary judgment involves only legal questions and a determination of whether a disputed material issue of fact exists. So we operate under a de novo standard of review with no need to defer to the trial court's decision." Shelton v. Kentucky Easter Seals Soc'y, Inc., 413 S.W.3d 901, 905 (Ky. 2013) (internal citations omitted).

Stigma Damages are Recoverable

Throughout the procedural history of this case, whether Kentucky law recognizes stigma damages as part of an injured party's recoverable damages has been undisputed. The Court of Appeals recognized this legal truth, finding that stigma damages are awardable where actual damages exist. But it was also held that stigma damages cannot be presented as a stand-alone claim. Wiesemann did not appeal the finding that stigma damages are recoverable in a cross-motion. Nevertheless, defense counsel argued against stigma damages in their entirety when appearing before this Court.

Wiesemann's contention that stigma damages are not recognized in the Commonwealth is patently false. To be clear, damages for proven diminution in the fair market value of real property-in the form of repair costs and stigma damages-are recoverable where there has been actual damage to property. Carbide, 226 S.W.3d at 57.

Indeed, Wiesemann's argument runs counter to the lower courts' opinions, which were in Wiesemann's favor. She won her claim on stigma damages in the courts below and did not file a cross-motion to appeal that issue to this Court. "[A] question not raised or adjudicated in the court below cannot be considered when raised for the first time in this court." Fischer v. Fischer, 197 S.W.3d 98, 102 (Ky. 2006) (quoting Combs v. Knott Cnty. Fiscal Ct., 283 Ky. 456, 141 S.W.2d 859, 860 (1940) ). Therefore, Wiesemann "is precluded from raising that question on appeal because it was not raised or relied upon in the court below." Combs, 141 S.W.2d at 860.

Stigma Damages and Remediation, Collectively

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Cite This Page — Counsel Stack

Bluebook (online)
548 S.W.3d 877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/muncie-v-wiesemann-moctapp-2018.