Six-Year Statute of Limitations Applies to Spill Act Contribution Claim

by Wilson Elser

On August 23, 2013, the New Jersey Appellate Division held that the general six-year statute of limitations for property damage applies to a private claim for contribution under the Spill Compensation and Control Act, N.J.S.A. § 58:10-23.11, et seq. (Spill Act). In Morristown Associates v. Grant Oil Co., No. A-01313-11T3, 2013 N.J. Super (App. Div.), the court held that the six-year time limit runs from the time that a contribution plaintiff discovers or should have discovered the grounds for its claims. Significantly, the court rejected plaintiff’s argument that actual sample results or notice from an environmental authority is necessary to establish notice, instead emphasizing that the question is whether there are enough indications of environmental contamination to put plaintiff on reasonable notice of a need for further investigation.

New Jersey’s discovery rule may extend the six-year time limit based on when plaintiff discovers or, through the exercise of reasonable diligence and intelligence, should have discovered the basis of a claim.

Spill Act Contribution Claim
The Spill Act strictly prohibits the discharge of hazardous substances. The Act defines a discharge as “any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of hazardous substances into the waters or onto the lands of the State, or into waters outside the jurisdiction of the State when damage may result to the lands, waters or natural resources within the jurisdiction of the State.” N.J.S.A. § 58:10-23.11b. The Act imposes broad liability for a discharge and sets forth that “any person who has discharged a hazardous substance, or is in any way responsible for any hazardous substance, shall be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs no matter by whom incurred.” N.J.S.A. § 58:10-23.11g. The Act provides a discharger with a private right of action for recovery of cleanup and removal costs. N.J.S.A. § 58:10-23.11f.

The Act does not contain a statute of limitations for a private contribution claim, which prior to Morristown Associates had been the subject of controversy. Federal courts in New Jersey took the position that the general six-year statute of limitations for property damage applied. See, e.g., Reichhold, Inc. v. U.S. Metals Refining Co., (2009). However, New Jersey state courts had not decided the issue.

In 1994, the Appellate Division held that the 10-year statute of repose did not apply to a private contribution claim but did not address a time limit specifically in the context of a statute of limitations. Pitney Bowes v. Baker Industries, Inc. (1994). Thereafter, in an unpublished opinion, the Appellate Division held that no statute of limitations applied to a private contribution claim. Mason v. Mobil Oil Corp., (1999). However, unpublished opinions do not constitute precedent in New Jersey and, accordingly, the question of whether a statute of limitations defense could be asserted remained unanswered until the Appellate Division’s opinion in Morristown Associates, which has been approved for publication.

Impact of Appellate Division’s Opinion in Defending Spill Act Contribution Claim
In Morristown Associates, plaintiff owner of a shopping center filed suit against its tenant dry cleaners and heating oil companies for contribution of cleanup and removal costs for groundwater and soil contamination arising from a leaking underground oil storage tank. Defendants moved for summary judgment, dismissing the claim on the ground that it was barred by the statute of limitations. Plaintiff alleged that it received notice of the underground storage tank (UST) and contamination in 2003 – less than six years prior to the filing of its lawsuit. The trial court concluded that plaintiff should reasonably have discovered the contamination by 1999 – more than six years prior to the filing of the lawsuit – when plaintiff was made aware of another leaking UST that was removed from plaintiff’s shopping center. Agreeing with the trial court, the Appellate Division affirmed dismissal of the claim and held that plaintiff should have exercised due diligence and supervision over its property to investigate whether any other USTs existed and whether they were functioning properly. The court noted the numerous oil deliveries that must have been made prior to 1999 as well as clearly visible evidence of fill and vent pipes for the leaking UST.

Plaintiff may further appeal the decision to New Jersey’s Supreme Court, and Wilson Elser will continue to monitor for updates. However, until a reversal, if any, or other high court decision on the issue, Morristown Associates remains the binding authority in New Jersey.

How Does Morristown Associates Impact Private Spill Act Contribution Claims?
The statute of limitations defense is now a viable defense to a private Spill Act contribution claim. The most compelling evidence of plaintiff’s notice of the alleged contamination are groundwater/soil sample results and/or express notice of a contamination/discharge from the New Jersey Department of Environmental Protection (NJ DEP), a remediation consultant and/or other environmental authority. In the absence of same, further investigation regarding plaintiff’s records of purchase and/or sale of the subject property may also reveal the environmental status of the property. In short, upon receipt of the claim, investigation of plaintiff’s notice of the environmental status of its property may establish a viable statute of limitations defense.

Written by:

Wilson Elser

Wilson Elser on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.