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April 2019

Hartford Team Secures Favorable Ruling from the Appellate Court Fending off Plaintiff’s Attempts to Overturn Defense Judgment

Hartford attorneys Cullen W. Guilmartin and Regen O’Malley obtained a favorable ruling from the Appellate Court of the State of Connecticut for an environmental consulting firm client responsible for soil remediation following the removal of an underground storage tank (UST). In doing so, they successfully fended off the plaintiff’s attempts to overturn the defense judgment obtained by attorney Guilmartin and Keane Aures following a 2017 bench trial.

The plaintiff contracted to purchase property from a third-party seller in 2014. Before the closing, the seller had the UST removed, thereafter discovering it had leaked and caused soil contamination. The seller then hired an excavation company to remove the contaminated soil, and this company, in turn, hired the defendant/appellee environmental consulting firm, a licensed environmental professional (“LEP”), to supervise the soil remediation. Following this, the LEP issued a report indicating that excavation “was limited due to structural concerns for the site home” and that, per state guidance, excavation was not required in that circumstance. The report further stated: “With the exception of the northern sidewall, excavation continued until no visible or olfactory indications of contamination remained in the soils,” and that “the fuel oil release has been effectively remediated in site soil, and no further environmental investigation or remediation is warranted at this time.” Soil testing results from the lab were attached to the report, and both were provided to the excavation company and forwarded on to the plaintiff and his attorney.

After demolishing the home on the property, the plaintiff decided to sell. The next purchaser hired another company to evaluate the soil for contamination, which then determined that the soil that had been “beneath the former residence” required removal. The cost of that remediation was then charged to the plaintiff, and the plaintiff brought suit, claiming negligence and negligent misrepresentation by the LEP for allegedly failing to properly remediate the property and falsely reporting that no further remediation was warranted. The trial Court (Dubay, J.) had held in favor of the LEP, finding based on both fact and expert witness testimony, that the LEP had not breached any duty of care or made misrepresentations in its report. The plaintiff appealed. The Court of Appeals agreed that evidence in the record supported the trial court’s finding.

To view a copy of the decision, please click here

Keane E. Aures
Cullen W. Guilmartin
Regen O'Malley