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Successful Defense of Environmental Subrogation Case Involving Leaking Underground Storage Tank.

The defense prevailed on a motion for summary judgment as to liability in an environmental case involving claims related to a leaking underground storage tank (UST). Our client sued a fuel delivery company under the New Jersey Spill Compensation and Control Act for delivering fuel oil to the UST while the UST was leaking. Our client also asserted claims for negligence and breach of contract. The defendant also moved for summary judgment, seeking to dismiss our client’s claims on the basis of a disclaimer printed on the delivery tickets, which were subsequently mailed to the insured. Following oral argument, the court granted our motion and denied the defendant’s motion. In granting our motion, the court found that the plain language of the Spill Act requires a finding of liability where it is shown that the delivery company made deliveries to the UST while it was leaking, even absent actual or constructive notice of the leak. In denying the defendant’s motion, the court found that the pre-printed disclaimer constituted an unenforceable adhesion contract, contrary to public policy, and that such a defense would not apply to a Spill Act claim, even if the provision were otherwise enforceable.

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