After a seven day trial, Mitchell H. Kizner, shareholder in Flaster Greenberg’s Environmental and Litigation Departments, successfully defended client, Woodruff Energy Inc., a South Jersey petroleum distributor, against allegations that it had caused discharges of heating oil, kerosene and gasoline on the Salem County commercial premises of the plaintiff. That trial court ruling has now been affirmed by a three judge panel of the N.J. Superior Court, Appellate Division. In rendering its 39 page decision, the Appellate Court specifically held that the mere fact that a heating oil distributor sold product that after leaving its possession was later was involved in a spill was not sufficient to cause liability to the distributor. Furthermore, the Court indicated that the distributor would not be liable without more simply because it delivered oil to a tank which leaked.
The plaintiff claimed in the suit filed in 2011 that a Woodruff employee had caused an overfill of heating oil during a delivery in the 1990’s and was also responsible for discharges of gasoline and kerosene on the property in the 1960’s. Woodruff steadfastly denied those allegations and was supported in that regard by testimony of its own current and former employees as well as its expert witness, William Silverstein, a New Jersey Licensed Site Remediation Professional and Professional Engineer with Roux Associates.
In a six-hour oral ruling issued in January 2018, Superior Court Judge David W. Morgan, sitting in Gloucester County, rejected the plaintiff’s claims that Woodruff Energy was responsible for any spill events, and ruled that Woodruff was not required to assess and remediate the premises, or pay any other expense relating to the property or the litigation.
A large national oil company, a co-defendant represented by separate counsel, was found liable with respect to gasoline contamination, and was required to commence an environmental investigation of that aspect of the contamination. That part of the case currently remains before the Appellate Division.
Mitchell Kizner has been representing businesses and individuals in New Jersey environmental and insurance litigation for more than 30 years. He can be reached at 856.382.2247 or mitchell.kizner@flastergreenberg.com.
