The opinion
STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. Docket No. CV-02-28
. I.
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STATE OF MAINE and
MAINE DEPARTMENT OF
ENVIRONMENTAL
PROTECTION,
PlaintiffS,
ORDER ON MOTION
FOR SUMMARY JUDGMENT
HENRY MINERVINO, d/b/a
LONG BEACH MARINA,
LONG BEACH MARINA INC. DONALD L. GARBRECHT
and AUTO MARINE INC., LAW LIBRARY
Defendants/
Third Party Plaintiffs. SEP 4 20
COUNTRY GAS INC. and
DALE MCBURNIE, d/b/a
MCBURNIE OIL CO.,
Third Party
Defendants.
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This matter comes before the court on the plaintiffs’ Motion for
Summary Judgment and the defendants’ cross motion.
Facts:
This case involves an action by the Department of Environmental
Protection (DEP) to enforce reimbursement of $5000 of the cost of disposal
of contaminated water associated with the removal of an underground oil
storage tank at Long Beach Marina in Sebago. The following facts are
undisputed.
In 1995, when the oil tank was removed and the contaminate water
disposed of, defendant Henry Minervino was the operator of the Long
Beach Marina. Minervino applied to the Groundwater Clean-up Fund for
coverage of the clean-up costs pursuant to 38 M.R.S.A. §§ 562-A(2), 568-
A(1). The application for coverage included the following language: “[b]y
Signing this agreement, the applicant . . . agrees to pay to pay all initial
costs for clean-up and settlement of any third party damages up to the
deductible amount specified in 38 M.R.S.A., Section 568 (A-2) ...” The
deductible amount for Minervino’s application was $5000 because there
were two tanks located at the marina facility.
In an order dated December 4, 1995, the DEP found Minervino
eligible for coverage and it eventually paid out a total of $13,820.71 for
clean-up expenses. The December order also ordered Minervino to meet
his deductible obligation of $5000, as provided by statute. Because this
order failed to include a notice of the right to appeal, two additional letters
were sent, On January 26 and February 2, 1996 notifying Minervino of the
30-day appeal period.! In four subsequent requests between 1996 and
1999, the DEP unsuccessfully sought payment from Minervino. It
eventually referred the matter to a collection agency which was also
unsuccessful.
On February 7, 2002, the DEP filed this action in Superior Court
seeking payment of the $5000, plus interest accrued from 1995, and
litigation costs. The Complaint lists as defendants Henry Minervino d/b/a
Long Beach Marina, Long Beach Marina, Inc. (current owner of record) and
Auto Marine, Inc. (owner of record at the time of the contamination clean-
up). All the named defendants jointly moved to dismiss based. inter alia,
on the expiration of the statute of limitations. The motion was denied on
July 5, 2002. The State now moves for summary judgment as to defendant
Henry Minervino only, not the two business corporations that are also
named as parties-in-interest.
Discussion:
1 The Complaint contains allegations that Minervino filed an appeal
in March, 1998, but the Fund Insurance Review Board dismissed the
appeal as untimely.
A summary judgment is proper if the citations to the record found
in the parties’ Rule 56(h) statements demonstrate that there is no genuine
issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. See Dickinson v. Clark, 2001 ME 49, J 4, 767
A.2d 303. “The party having the burden of proof at trial is ‘required to
produce evidence sufficient to resist a motion for a [judgment as a matter
of law] if it produced at trial nothing more than was before the court on its
motion for a summary judgment.’” Fleming v. Gardner, 658 A.2d 1074,
1076 (Me. 1995) (quoting Keyes Fibre Co. v. Lamarre, 617 A.2d 213, 214
(Me. 1992).
The State moves for summary judgment asserting that Minervino is
liable because he (1) applied for clean-up cost coverage, (2) agreed in the
application to pay the deductible, (3) was ordered to pay $5000 as a
deductible, and (4) has failed to do so.
The defendant responds by reiterating the statute of limitations
argument he made in his motion to dismiss and by pointing out that the
notice required under M.R. Civ. P. 7(b)(1)(B) (regarding proper means of
opposing a motion for summary judgment) was omitted from the State’s
motion.
Failure to provide the 7(b)(1)(B) notice is not fatal to the State’s
motion. The Advisory Committee notes (2001) explain the purpose of the
rule as providing unrepresented litigants with a means of properly
responding to a motion for summary judgment. The notes provide that
“[w]here litigants . . . are improperly notified of the requirements of Rule
56(h), trial courts may be more flexible in considering responses that do
not meet the requirements of the rule.” Here, the plaintiff has met the
requirements of Rule 56(h) and, while the failure to include the notice
should be brought to the State’s attention, it does not require the court
disregard the State’s motion.
Relying on the doctrine of nullum tempus occurit regi [time does not
run against the king] to the defeat the statute of limitations argument, the
court earlier denied the defendant’s motion to dismiss. As Minervino
presents no new arguments and there are no disputed issues of material
fact, the court sees no reason to deny the DEP’s motion for summary
judgment. The legal analysis set forth in the order dated July 5, 2002, is
incorporated herein.
Even if the statute of limitations did apply to the State, it would not
apply in this case. The defendant treats the complaint as if it were a brand
new legal action for breach of contract, but it is really more in the nature
of an action to enforce the prior valid administrative order of the DEP. The
order dated December 4, 1995, was issued pursuant to 38 M.R.S.A. §568-A
(1)(F). If an applicant disagrees with some part of the order - in this case
payment of the $5,000 deductible - the statute provides that he may
appeal that order to the Fund Insurance Review Board, and if unsuccessful
there, may seek judicial review pursuant to M.R.Civ.P. 80C. Minervino
tried to follow this appeal procedure, but was too late (see footnote 1). In
other words, by March 1998 Minervino’s liability and the amount had
already been administratively adjudicated and he had had his opportunity
for appeal. Rather than obey the DEP order and pay the deductible,
Minervino did nothing. The court concludes that under these
circumstances, the general statute of limitations set forth in 14 M.R.S.A.
§752 simply does not apply.
For the reasons set forth above, the entry will be: Motion granted
and ORDERED that judgment shall be entered for the plaintiff against
defendant Henry Minervino in the amount of $5,000 plus statutory
interest of 15% from December 12, 1995.
Dated: August 26, 2002 H, | :
S.KIRKSTUDSTRUP !
JUSTICE, SUPERIOR COURT
STATE OF MAINE - PLAINTIFF
Attorney for: STATE OF MAINE
MARY SAUER
IFFICE OF THE ATTORNEY GENERAL
5 STATE HOUSE STATION
AUGUSTA ME 04333-0006
MAINE DEPARTMENT OF ENVIROMENTAL PROTECTION -
Attorney for: MAINE DEPARTMENT OF ENVIROMENTAL
>ROTECTION
\FFICE OF THE ATTORNEY GENERAL
> STATE HOUSE STATION
\UGUSTA ME 04333-0006
rs
IENRY MINERVINO - DEFENDANT
ttorney for: HENRY MINERVINO
"RANCIS M JACKSON
JACKSON & MACNICHOL
35 INDIA ST
-ORTLAND ME 04112
,ONG BEACH MARINA ~ DEFENDANT
\ttorney for: LONG BEACH MARINA
TRANCIS M JACKSON
TACKSON & MACNICHOL
35 INDIA ST
ORTLAND ME 04112
JONG BEACH MARINA INC - DEFENDANT
.ttorney for: LONG BEACH MARINA INC
"TRANCIS M JACKSON
[ACKSON & MACNICHOL
15 INDIA ST
ORTLAND ME 04112
.UTO MARINE INC - DEFENDANT
\ttorney for: AUTO MARINE INC
‘RANCIS M JACKSON
TACKSON & MACNICHOL
5 INDIA ST
ORTLAND ME 04112
‘COUNTRY GAS, INC. - THIRD PARTY DEFENDANT
Page 1
PLAINTIFF
of
SUPERIOR COURT
DOCKET RECORD
Printed on:
AUGSC-CV-2002-00028
08/28/2002
AUGSC-CV-2002-00028
DOCKET RECORD
Attorney for: COUNTRY GAS, INC.
XAVID VAN DYKE
3ERMAN & SIMMONS
20 BOX 961
129 LISBON
STREET
UEWISTON ME 04243-0961
SALE MCBURNIE - THIRD PARTY DEFENDANT
Attorney for: DALE MCBURNIE
XAVID VAN DYKE
3ERMAN & SIMMONS
PO BOX 961
129 LISBON
STREET
LEWISTON ME 04243-0961
Filing Document: COMPLAINT Minor Case Type: OTHER STATUTORY ACTIONS
Filing Date: 02/07/2002
Docket Events:
92/07/2002
02/07/2002
02/07/2002
02/07/2002
02/12/2002
03/18/2002
03/18/2002
03/18/2002
03/28/2002
FILING DOCUMENT - COMPLAINT FILED ON 02/07/2002
Defendant's Attorney: MARY SAUER
WITH ATTACHED EXHIBITS AND COPY OF SUMMONSES, FILED.
Party(s): STATE OF MAINE
ATTORNEY - RETAINED ENTERED ON 02/07/2002
Defendant's Attorney: MARY SAUER
Party(s): MAINE DEPARTMENT OF ENVIROMENTAL PROTECTION
ATTORNEY - RETAINED ENTERED ON 02/07/2002
Defendant's Attorney: MARY SAUER
CERTIFY/NOTIFICATION - CLERK CERTIFICATE ISSUED ON 02/07/2002
NOTE - OTHER CASE NOTE ENTERED ON 02/12/2002
NON EXEMPT
Party(s): HENRY MINERVINO
SUMMONS - ACK OF RECEIPT OF SUMM/COMP FILED ON 03/14/2002
NOTICE AND ACKNOWLEDGEMENT FOR SERVICE BY MAIL WAS FILED, BUT NOT DATED. CALLED M.
AAG FOR DATE.
Party(s): LONG BEACH MARINA INC
SUMMONS ~ ACK OF RECEIPT OF SUMM/COMP FILED ON 03/14/2002
Party(s): AUTO MARINE INC
SUMMONS - ACK OF RECEIPT OF SUMM/COMP FILED ON 03/08/2002
Party(s): HENRY MINERVINO, LONG BEACH MARINA, LONG BEACH MARINA INC,AUTO MARINE INC
MOTION - MOTION TO DISMISS FILED ON 03/28/2002
Defendant's Attorney: FRANCIS M JACKSON
REQ. FOR HEARING AND PROP. ORDER.
Page 2 of 6 Printed on:
SAUER,
08/28/2002