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Cook v. DeSoto Fuels8/2/2005
Opinion Vote: REVERSED AND REMANDED.
Ahrens, P.J. and Baker, J. concur.
Opinion:
Property owners sued DeSoto Fuels, Inc., alleging that gasoline leaking from tanks at DeSoto's gas station had contaminated their land and groundwater. The trial court granted summary judgment in favor of DeSoto based on the statute of limitations, and the property owners appeal. We reverse and remand.
I. BACKGROUND
DeSoto owned and operated an Amoco gas station located near property owned by Claude and Mary Jeanne Cook. At some point, a leak allegedly developed in at least one of the three underground storage tanks ("USTs") that supplied the station with gasoline, resulting in the contamination of the Cooks' property.
The Cooks had two wells on their property. One well provided water for the Cooks' own residence and the other supplied water to a residence that the Cooks rented out to tenants. One of the Cooks' tenants noticed a strong odor of gasoline and a rainbow sheen in the water and reported this to the Missouri Department of Natural Resources. In July of 1993, the Department tested the well supplying the rental property for contamination. At some point during that year, Claude Cook also noticed that the water had an odor and he became aware that the Department's tests showed the presence of contaminants.
The Department tested the water in both of the wells in December of 1993. The Department's Preliminary Report, issued on March 25, 1994, indicated that the water from both of the Cooks' wells was contaminated with constituents of gasoline. The report identified four nearby gas station sites, including DeSoto's gas station, as possible sources of the pollution. The Department concluded that additional work was needed to determine which of those four sites was the source of the contamination. Also in March of 1994, the Cooks drilled a new well on the property "as a precaution." This new well became contaminated within a month, so the Cooks had their residence connected to the city water supply.
On March 8, 1996, the Department issued its Final Report. It described the existence of contamination and again identified the same four potentially responsible parties, including DeSoto, which by then had ceased operating its gas station. The following year, the Department installed two groundwater monitoring wells in an effort to identify the cause and source of the contamination. In September of 1997, the Department issued an addendum to its Final Report, this time identifying DeSoto's former Amoco station as the sole source of the contamination.
The record does not reveal when the Cooks had actual notice of any of the Department's reports. But in August of 2000, the Cooks entered into a contract to sell their property, and the prospective buyer's investigation revealed an unacceptable level of contamination. After the contract was cancelled, the Cooks hired counsel, who discovered and reviewed the Department's files.
The Cooks filed their petition against DeSoto and two other defendants on March 30, 2001, claiming negligence, trespass and private nuisance. The Cooks alleged that the defendants "failed to undertake adequate measures to prevent or to detect the releases" that caused the contamination of the Cooks' property and that the defendants knew or should have known about the releases. The Cooks further alleged that they did not know about the extent of the damage to their property until they attempted to sell it in 2000. The Cooks claimed that the defendants' conduct resulted in the continuing entry, trespass, or intrusion onto their property and that the defendants continued to unreasonably inte
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