R.M. Packer Co., Inc. v. Marmik, LLC, et al. (Lawyers Weekly No. 11-179-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-1638 Appeals Court R.M. PACKER CO., INC. vs. MARMIK, LLC & others.[1] No. 14-P-1638. Dukes. September 2, 2015. – November 25, 2015. Present: Meade, Wolohojian, & Milkey, JJ. Massachusetts Oil and Hazardous Material Release Prevention Act. Hazardous Materials. Damages, Hazardous waste contamination, Attorney’s fees. Contribution. Practice, Civil, Attorney’s fees, Costs, Findings by judge. Department of Environmental Protection. Civil action commenced in the Superior Court Department on May 8, 2009. The case was heard by Gary A. Nickerson, J., and a motion for attorney’s fees and costs was heard by him. John D. Curran for the plaintiff. Marilyn H. Vukota for Vineyard Port Hole, Inc. WOLOHOJIAN, J. At issue is whether R.M. Packer Co. (Packer) was properly found liable for attorney’s fees and costs under G. L. c. 21E, § 4A(f), after it unsuccessfully sought contribution from the defendants for costs to clean up an oil spill. In three circumstances, the statute requires that reasonable attorney’s fees and costs be awarded against a plaintiff who has sued seeking contribution for environmental clean-up costs. Those three circumstances are “[i]f the court finds that (1) the plaintiff did not participate in negotiations or dispute resolution in good faith; (2) the plaintiff had no reasonable basis for asserting that the defendant was liable, or (3) the plaintiff’s position with respect to the amount of the defendant’s liability pursuant to the provisions of this chapter was unreasonable.” G. L. c. 21E, § 4A(f), inserted by St. 1992, c. 133, § 294. Here, after a bench trial, a judge found that Packer had no reasonable basis for asserting its claim against the defendant Dockside at the time it filed suit, and accordingly awarded fees and costs under § 4A(f)(2). The judge reached this conclusion despite the fact that, before Packer filed its complaint, the Department of Environmental Protection (DEP) had issued a notice of responsibility to Dockside, stating that it had reason to believe that Dockside was a “[p]otentially [r]esponsible [p]erson.” Packer argues that DEP’s position vis à vis Dockside’s potential responsibility provided a reasonable basis upon which Packer could sue Dockside for contribution. Hence, Packer argues, the judge erred in awarding fees and costs under § 4A(f)(2). We do not need to reach this issue because, on the facts found by the judge (and not challenged on appeal), the award was independently proper under […]