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Bardon Trimount8/1/2000
Suffolk.
March 16, 2000.
Environment, Environmental cleanup costs. Comprehensive Environmental Response Compensation and Liability Act. Contract, Condition. Practice, Civil, Costs, Attorney's fees. Words, "Prevailing party."
Civil action commenced in the Superior Court Department on March 27, 1996.
The case was heard by Patrick J. King, J., on motions for summary judgment.
Bardon Group PLC entered into a contract, closing date May 4, 1988, with the shareholders of Guyott Company by which it purchased each and all their shares for a total base price of $100 million, and thereby acquired ownership of the Guyott Company properties. That company had been primarily in the business of supplying crushed stone, bituminous concrete, and liquid asphalt, and among its properties were eleven parcels of land, several of which were the subjects of environmental disputes stemming from alleged pollution of the sites. As the costs to be incurred in dealing with and liquidating the claims were in many respects inchoate and could not be accurately forecast, the shares purchase agreement set out rather elaborate terms for notices from Bardon Group PLC to the shareholders about the accrual of such costs and their payment divided between the two sides.
The shareholders have asserted that they are free of the duty to pay any amount now or in the future because of the alleged failure of Bardon Trimount, Inc. (Bardon), assignee of Bardon Group PLC, to furnish them with periodic notices regarding the environmental costs that complied with the terms of the agreement. The present action was by Bardon in Superior Court against the shareholders for breach of contract in failing to reimburse Bardon for their agreed portion of payments already made by Bardon, and for a declaration of their continuing duty under the agreement. The shareholders entered denials of the breach and counterclaimed for a declaration in their favor. Both sides made further allegations pursuant to the consumer protection act, G. L. c. 93A.
Upon a voluminous documentary record, the parties cross-moved for summary judgment. The judge dismissed the shareholders' c. 93A claim, but entered judgment for them on all counts of Bardon's complaint, entered the declaratory judgment sought by the shareholders, and awarded them $200,677.18 in attorney's fees as the prevailing parties, pursuant to a provision of the contract. The plaintiff, Bardon, appeals. We shall in effect affirm in part and reverse in part. Neither side appeals from the denial of c. 93A relief.
ENVIRONMENTAL COSTS
A. Sites.
We begin with the sites in question. Schedule 3.19 of the agreement identifies these, indicating the status of any ongoing litigation or regulatory proceedings.
(1) Groveland wells.
State and Federal actions were pending initiated by the town of Groveland against companies unrelated to Bardon, alleging that they had caused town drinking water wells to be polluted. Those defendants made a Guyott subsidiary a third-party defendant in these actions, alleging that the source of the problem was the subsidiary's property in Haverhill, specifically a 75-acre municipal landfill the subsidiary was leasing to the city of Haverhill.
(2) Haverhill site.
The Haverhill landfill just mentioned was, at the time of the shares purchase agreement, under a closure program begun in 1981 in settlement of a Superior Court action brought by the Massachusetts Department of Environmental Quality Engineering (DEQE) under the Oil and Hazardous Material Release Prevention and Response Act, G. L. c. 21E. In 1984, the United States
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