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Hedgepath v. American Telephone and Telegraph Company12/10/2001
ecovery Act. The citizen suit provision allows claims by parties acting as private attorneys-general. Id.
The Banyard plaintiffs are actually claiming a single indivisible injury to their property for alleged permanent injury by pollution. See Ravan v. Greenville County, 315 S.C. 447, 434 S.E.2d 296 (Ct. App. 1993) (stating the measure of damages for permanent injury to real property by pollution, whether by nuisance, trespass, negligence, or inverse condemnation is the diminution in the market value of the property). The trial court granted summary judgment to Gaston Copper because insufficient evidence was presented as to new and different injuries to any plaintiff from any alleged wrongdoing after the sale of the plant to Gaston Copper in 1990. The court noted that every plaintiff who was asked confirmed that he or she was claiming the same injuries against all defendants. Since the same injuries were claimed, the trial court correctly applied the discovery rule when analyzing the application of the statute of limitations.
Therefore, based upon: (1) the uncontested evidence of the widespread publicity concerning alleged environmental contamination, (2) the affidavits submitted by the vast majority of the Banyard plaintiffs, and (3) the permanency of the claimed property damages, the trial court did not err in granting summary judgment to the defendants under the statute of limitations.
C. Equitable Estoppel Doctrine
The Banyard plaintiffs argue the trial court erred in failing to apply the equitable estoppel doctrine to the statute of limitations. They contend Nassau and Gaston Copper denied allegations of environmental contamination and actively concealed the contents of the Dames & Moore Report until 1994. On these grounds, the plaintiffs assert the defendants should be estopped from relying upon the statute of limitations.
In South Carolina, a defendant may be estopped from claiming the statute of limitations as a defense if some conduct or representation by the defendant has induced the plaintiff to delay in filing suit. Kleckley v. Northwestern Nat'l Cas. Co., 338 S.C. 131, 136, 526 S.E.2d 218, 220 (2000) (citing Black v. Lexington Sch. Dist. No. 2, 327 S.C. 55, 488 S.E.2d 327 (1997)); Harvey v. South Carolina Dep't of Corrections, 338 S.C. 500, 527 S.E.2d 765 (Ct. App. 2000); Republic Contracting Corp. v. South Carolina Dep't of Highways & Pub. Transp., 332 S.C. 197, 503 S.E.2d 761 (Ct. App. 1998); Maher v. Tietex Corp., 331 S.C. 371, 500 S.E.2d 204 (Ct. App. 1998); Brown v. Pearson, 326 S.C. 409, 483 S.E.2d 477 (Ct. App. 1997); Moates v. Bobb, 322 S.C. 172, 470 S.E.2d 402 (Ct. App. 1996); Kreutner v. David, 320 S.C. 283, 465 S.E.2d 88 (1995); Vines v. Self Memorial Hosp., 314 S.C. 305, 443 S.E.2d 909 (1994); Wiggins v. Edwards, 314 S.C. 126, 442 S.E.2d 169 (1994); Rink v. Richland Memorial Hosp., 310 S.C. 193, 422 S.E.2d 747 (1992); Dillon County School Dist. No. Two v. Lewis Sheet Metal Works, Inc., 286 S.C. 207, 332 S.E.2d 555 (Ct. App. 1985), overruled in part by Atlas Food Sys. & Servs., Inc. v. Crane Nat'l Vendors Div. of Unidynamics Corp., 319 S.C. 556, 462 S.E.2d 858 (1995); Gadsden v. Southern R.R., 262 S.C. 590, 206 S.E.2d 882 (1974).
An inducement for delay may consist of either an express representation that the claim will be settled without litigation or other conduct that suggests a lawsuit is not necessary. Kleckley, 338 S.C. at 136-37, 526 S.E.2d at 220; Vines, 314 S.C. at 308, 443 S.E.2d at 911; Wiggins, 314 S.C. at 130, 442 S.E.2d at 171; Rink, 310 S.C. at 198, 422 S.E.2d at 749. However, settlement negotiations which are commenced, but not finalized, will not bar assertion of the statute of limitations.
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