Tuesday, March 7, 2017

Evaporating COAs

State v. Atlantic Richfield Co., 2016 VT 61

By Thomas M. Kester

Tick. Tock. 

Interlocutory appeals are nifty legal devices that allow an appeal during a proceeding, in this case, to determine whether the State is exempted from a six-year limitation for claims arising from damages to State waters due to groundwater contamination from gasoline additives. I’m not going to recount the facts here because I already did that and they don’t matter as much here. This is a statutory examination case. For you non-hyperlink clickers, here is the ten-cent factual recitation: chemical added to gasoline makes cars vroom-vroom better, chemical leaks into water sources, science people’s science shows chemical pollutes water sources, and VT legislature enacts law to stop using chemical. 

On June 5, 2014, the State sues Defendants and Defendants move to dismiss the complaint as being time-barred under the general six-year statute of limitations for civil actions. Why, you ask? Because the Vermont Legislature banned the chemical in May 2005 and the law become effective January 1, 2007. Let me show what this means with some lawyer math: six years + May 2005 = May 2011, and six years + January 1, 2007 = January 1, 2013. According to the Gregorian calendar system and because the 2012 Mayan apocalypse didn’t happen, June 5, 2014 occurred after both May 2011 and January 1, 2013. Defendant’s argue that the countdown began when the statute banning the gas chemical was either passed or effective, making the complaint filed after either [date + six-year] period. 


The State raised four arguments at the trial court in support of their claims. The trial court found for the Defendants and dismissed almost all of the State’s claims. The State then interlocutory appealed on whether the State was exempt from the six-year limitation, arguing that (1) tort and environmental claims are exempted from the time-bar and (2) another statute created a new cause of action.

The State loses on their first argument, according to the SCOV, “Because the State’s claims are not the kind of claims contesting property interests in land to which the statute applies.” There is a little exception to the statute of limitations that involves real property. Back in Vermont’s early pioneering days, there was a “widespread problem of defective land titles held by early Vermont settlers” and, when a lawful owner unsettled folks from their land by the business end of a rifle civilized 18th century processes (like equitable actions to “quiet title”), the lawful owner had to pay the unwelcome guests for any improvements made upon that land. Because the State holds land for public use and cannot continuously monitor every tract of land it owns, the State was exempted (along with “public, pious, or charitable uses”). This all has to do with adverse possession which you can more read about here. If the State's argument was accepted here, then it should logically also apply also to land held for “public, pious, or charitable uses” and make them sort of immune from statutes of limitation. But the purpose of the exemption is about “claims asserting an interest in lands” and not broader than that.

On to the argument that another statute gives the State a generalized cause of action. The following portion of the statute is what, according to the State, bolsters their claim: “The designation of the groundwater resources of the state as a public trust resource shall not be construed to allow a new right of legal action by an individual other than the state of Vermont.” The effective date of the statute is June 9, 2008 (lawyer math: June 9, 2008 + six years = June 9, 2014, and this occurs after the filing date of June 5, 2014). So if the math checks out…. what’s the problem with the State’s argument?

We need to talk about the “discovery rule.” Do you lose sleep at night pondering life’s question like “when does the statute of limitations begin? how is it determined? Who sold Tom Brady on doing that weird Beauty Rest commercial?” Rest assured, the “discovery rule” may be able to help: “the statute of limitations begins to run ‘only when a plaintiff discovers or reasonably should discover the injury, its cause, and the existence of a cause of action.’” The State latched onto the last portion (“existence of a cause of action”) to argue the statute’s effective date was the starting date. The SCOV, on the other hand, states this language is about “the plaintiff’s knowledge as to whether that the defendant was negligent and breached that duty.” Put another way: “When the Legislature passes a new law creating a cause of action, a plaintiff does not ‘discover’ the existence of a previously unknown cause of action.”

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