Howard Davis P.C.


The Davis Group Wins Appeal in Bradley v. Kovelesky

August 16, 2016

Anne Bradley v. Joseph Kovelesky, Docket No. A-0423-14T4

Argued January 13, 2016 – Decided August 15, 2016

The Law Office of Howard Davis, P.C., recently received a favorable decision for its client from the Appellate Division which strengthens the rights of owners of contaminated property to pursue contribution under the Spill Compensation and Control Act (“Spill Act”), N.J.S.A. 58:10-23.11 et seq., the Brownfield and Contaminated Site Remediation Act (“BCSRA”), N.J.S.A. 58:10B-1 et seq., the Environmental Rights Act (“ERA”), N.J.S.A. 2A:35A-1 et seq., and common law nuisance. See Bradley v. Kovelesky, Docket No. A-0423-14T4 (App. Div. August 15, 2016). In Bradley, our client, owner of a parcel of historically contaminated property, sought contribution for contamination caused by the previous owners under the Spill Act, BCSRA, and several common law theories. The Bradley trial court initially denied Plaintiff’s argument and dismissed the complaint reasoning that Spill Act and common law claims were time-barred under the six-year statute of limitations governing common law claims. N.J.S.A. 2A:14-1. In addition, the lower court also refused to allow Plaintiff’s to amend the complaint to add theories of recovery under the BCSRA and the Environmental Rights Act taking the view that the amendment would be futile as Plaintiff’s would be unable to demonstrate violations that were continuous or intermittent, and likely to recur in the future.

On appeal, Howard Davis, P.C., successfully advocated several legal theories, including application of the ERA, which resulted in the Appellate Division’s reversal of the lower court’s decision. In the intervening period between the trial court’s decision and appeal, the New Jersey Supreme Court issued its decision in Morristown Associates v. Grant Oil Co. which, as Howard Davis, P.C., argued at the trial court, limited Spill Act contribution defenses to those exclusively set forth in the statute (acts or omissions caused solely by war, sabotage, or God). See Morristown Associates v. Grant Oil Co., 220 N.J. 360 (2015). In Bradley, the Appellate Division also held that the Spill Act precludes equitable defenses of laches and unclean hands.

Second, the Appellate Division also ruled in favor or Plaintiff’s arguments and found that, in instances of environmental contamination, a nuisance can be a continuous tort which triggers a new limitation period each day the nuisance remains unabated. As such, Plaintiff’s claims were not time barred because defendants had failed to abate the nuisance.  Thus, the time of a abatement should be a critical factor that parties assess when evaluating potential claims and defenses.       

Finally, the Appellate Division agreed with arguments presented by Howard Davis, P.C., that a dischargers’ failure to remediate constitutes an ongoing violation of BCSRA that can be enforced under the ERA. The BCSRA, as amended by the 2009 Site Remediation Reform Act, now imposes an affirmative obligation to remediate contamination on a person in any way responsible for a discharge of hazardous substance, among others. N.J.S.A. 58:10B-1.3(a). The ERA grants private parties the right to initiate a civil action to enforce environmental statutes, regulations or ordinances in certain circumstances. In Bradley, the Appellate Division agreed with arguments presented by Howard Davis, P.C., concluding that BCSRA mandates a continuing duty to remediate, and defendants who have not conducted remediation are in continuous violation of BCSRA. Therefore, private parties can pursue actions under the ERA to require dischargers or responsible parties to remediate contaminated sites.

The Bradley decision is beneficial to all property owners seeking contribution from the parties that caused pollution.