DISTRICT COURT IN UTAH FOLLOWS 5TH CIRCUIT LEAD
Contribution Claim Authorized by OPA 90
By: Elizabeth Williams
Chevron Pipe Line co. v. Pacificorp, No. 2:12-CV-287-TC, 2017 U.S. Dist. LEXIS 123447*, 2016 WL 6998641 (D. Utah Aug. 4, 2017).
ISSUEThe United States District Court for the District of Utah, Central Division, is deciding whether the contribution provision of the Oil Pollution Act allows a “responsible party” to recover a portion of its costs from a third-party found to be partially liable for damages arising from an oil spill.BACKGROUNDIn June 2010, in the state of Utah, an electrical arc from defendant’s electrical transition station created a hole in plaintiff’s underground oil pipeline causing crude oil to leak into the Red River Butte Creek and flow into Liberty Park Lake and the Jordan River. The Pipeline and Hazardous Safety Administration designated plaintiff, Chevron Pipe Line Co., (Chevron) as the “responsible party” and directed Chevron to clean up the spill and conduct remediation activities.In March 2012, homeowners living along the path of the spill brought suit against Chevron Pipe Line Co. and Pacificorp d.b.a. Rocky Mountain Power, (RMP) defendant herein, asserting claims of negligence, trespass, and nuisance. Chevron Pipe Line Co. filed a counter claim against the defendant company alleging negligence, trespass, private nuisance, and a right to contribution under the Oil Pollution Act claiming that defendant’s acts proximately caused the electrical arc to burn a hole in plaintiff’s pipeline.Chevron settled with the homeowners without any contribution from the defendant company and asked the court to find that the defendant’s negligence was a proximate cause of the oil and spill and therefore they should be responsible for part of the damages. RMP sought summary judgment to dismiss the claims for contribution under OPA 90, on the state negligence, trespass and nuisance claims as well as on the alleged failure to prove damages. Chevron countered with a motion for summary judgment for contribution under OPA 90.ANALYSISFEDERAL CLAIMS:Under the Oil Pollution Act 33 U.S.C. §2709, a person may bring a civil action for contribution against any other person who is liable or potentially liable under the Act or another law. The court has interpreted this to mean that a “responsible party” is entitled to contribution for purely economic damages from a third-party found to be partially liable. Thus, the court found that under section 2709 the plaintiff in this case could bring an action against the defendant because it is possible that the defendant is a partial cause of the oil spill. In doing so, the trial court followed the recent precedent of the U.S. Court of Appeals for the Fifth Circuit in Settoon Towing, L.L.C. v. Marquette Transp. Co., L.L.C. (In re Complaint of Settoon Towing, L.L.C.), 859 F.3d 340 (5th Cir. 2017).STATE LAW CLAIMS of Trespass and Nuisance:A person is liable for trespass when he intentionally enters land in the possession of the other or causes a thing or third person to do so. The court found that even though the defendant may not have intentionally created the arc, a reasonable jury could find that the electrical transition station was intentionally placed in close proximity to plaintiff’s pipeline which resulted in the arcs trespass onto plaintiff’s easement.A nuisance claim arises when there is a substantial non-trespassory invasion of the private use and enjoyment of a real property interest caused by the defendant or for which the defendant was responsible and the invasion was either intentional and unreasonable or unintentional and otherwise actionable. The defendant here argued that plaintiff had no right to a nuisance claim because the arc physically invaded the plaintiff’s property and therefore did not support the “nontrespassory invasion” element. However, the court did not agree with this assertion and instead found that caselaw suggests that nuisance is not overly concerned with the nature of the conduct that caused the damage, but instead focuses on the interests interfered with or invaded.DAMAGESTo prove damages under Utah state law, the evidence must rise above speculation and provide a reasonable, not necessarily precise, estimate of damages. When the subject is beyond the common knowledge of a lay person, as this subject matter is, the information must be relayed to the jury through an expert witness. Plaintiff’s did hire an expert witness, but defendant claims that the expert witness did not properly analyze the cost documentation and therefore could not accurately relay the information concerning damages to the jury. The court found that sufficiency of evidence is the jury’s province and they were not willing to dismiss the damage claims on that basis.The defendant also argued that the claim for damages under the Oil Pollution Act should be dismissed because the plaintiff failed to prove damages through an expert witness. The court also denied this motion finding that the defendant failed to produce any statute, regulation, or caselaw that expressly requires an expert witness to testify about the reasonableness and necessity of the removal costs incurred under direction of the government.In addition, the trial judge found that the standard and method of proof RMP advocated for the damages sought under OPA 90 claim for costs was not applicable. Rather, as maintained by Chevron, OPA 90 establishes a standard under the statute and regulations.CONCLUSION:Defendant’s motion for summary judgment for failure to prove the amount damages was denied. Defendants motion for summary judgment on the Oil Pollution Act, negligence, trespass, and nuisance claims was also denied.
