Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Muncie v. Wiesemann

Supreme Court of Kentucky

June 14, 2018

CINDY MUNCIE AND JIM MUNCIE APPELLANTS
v.
PATRICIA WIESEMANN APPELLEE

          ON REVIEW FROM COURT OF APPEALS CASE NO. 2015-CA-001788 OLDHAM CIRCUIT COURT NO. 13-CI-00688

          COUNSEL FOR APPELLANTS: Joseph E. Conley, Jr. BUECHEL & CONLEY, PLLC

          COUNSEL FOR APPELLEE: Kenneth Allen Bohnert Bradley Robert Palmer CONLIFFE, SANDMANN & SULLIVAN

          OPINION OF THE COURT

          CUNNINGHAM, JUSTICE.

         REVERSING AND REMANDING

         Factual and Procedural Background

         On December 2, 2010, the Energy and Environmental Cabinet's Environmental Response Branch responded to a leak of approximately 1, 000 gallons of #2 Fuel Oil (i.e. home heating oil) from a faulty underground storage tank at an unoccupied property Owned by the Martha Magel Estate. The heating oil flowed downhill from the Estate's property and flooded the nearby residence of Appellants, Cindy and Jim Muncie. Although Appellee Patricia Wiesemann, the testatrix of the Martha Magel Estate, hired contractors to remove the heating oil and prevent further contamination, the leaking continued to damage the property.

         From December 2 onward, heating oil continued to leak onto the Muncies' property. The sump pump failed on December 8, and extensive damage to the basement, driveway, and lawn of the Muncie residence ensued. The continued contamination caused the Environmental Response Branch to request on January 13, 2011, that an environmental emergency be declared. The agency then implemented emergency procedures to "limit any human health or environmental impacts" at the Muncie residence.

         In May of 2011, Auto-Owners Insurance Company, Wiesemann's liability insurer, filed an Interpleader complaint in federal court against Wiesemann, the Muncies, the Dunkles, Shield Environmental Associates, Inc. ("Shield"), and the Kentucky Department for Environmental Protection (specifically, the Environmental Response Team and the Division of Waste Management, Superfund Branch).

         In September of 2013, the parties in the federal action entered into the Partial Settlement and Partial Release Agreement. Auto-Owners discharged its obligation to resolve third-party claims by paying settlements for damages and environmental cleanup costs. Notably, the settlement allocated $60, 000 to the Muncies for repair costs, intended to remedy actual damages to their property. Additionally, the. Muncies agreed to dismiss all claims against Wiesemann, the Magel Estate, and Shield, except for a few reserved claims. Prominently, the partial settlement reserved "claims by the Muncies asserting the diminution of the value of their real estate due to the stigma resulting from the contamination . . . ." Partial Settlement and Partial Release Agreement at 2.

         One month later, the Muncies filed the underlying state claim in Oldham Circuit Court against Wiesemann and Shield for negligence, trespass, and permanent nuisance. In May of 2015, -Wiesemann filed a motion for summary judgment, arguing that the partial settlement barred the state action because the Muncies were fully compensated for the actual damages the contamination caused to their property. Citing Smith v. Carbide & Chems. Corp., 226 S.W.3d 52 (Ky. 2007), Wiesemann argued that, as a matter of law, stigma damages can only be recovered when paired with an actual damages award.

         During its October 16, 2015 hearing, the Oldham Circuit held that, while stigma damages may be considered in the measure of actual damages for remediation, the Muncies could not seek both the costs of remediation (i.e. the repair costs) and the diminution in value due to stigma damages. Because the Muncies settled their remediation claim in the partial settlement agreement, the trial court held that no further claim existed. Thus, the Muncies' claim for; stigma damages was dismissed. The Muncies appealed to the Court of Appeals of Kentucky.

         On appeal, the Muncies argued that: (1) stigma damages resulting from the diminution in value of real property are recoverable where there is actual damage; and (2) remediation for actual damages is not a bar to recovery of stigma damages. While the Court of Appeals agreed that "when there is actual damage to real property, stigma or reputation damages may be included as a measure of damages . . . [however, ] there is not an independent right of recovery available for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.