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14-P-1638 Appeals Court

R.M. PACKER CO., INC. vs. MARMIK, LLC & others.1

No. 14-P-1638.

Dukes. September 2, 2015. - November 25, 2015.

Present: Meade, Wolohojian, & Milkey, JJ.

Massachusetts Oil and Hazardous Material Release Prevention Act. 

Hazardous Materials. Damages, Hazardous waste 

contamination, Attorney's fees. Contribution. Practice, 

Civil, Attorney's fees, Costs, Findings by judge. 

Department of Environmental Protection.

Civil action commenced in the Superior Court Department on 

May 8, 2009. 

The case was heard by Gary A. Nickerson, J., and a motion 

for attorney's fees and costs was heard by him.

John D. Curran for the plaintiff.

Marilyn H. Vukota for Vineyard Port Hole, Inc.

 

1 Wallace Realty Trust; TP Panancy LLC; Vineyard Markets,

Inc.; and the Vineyard Port Hole, Inc. Vineyard Port Hole, Inc. 

is a closely held Massachusetts corporation, owned by Terrence 

P. McCarthy, doing business as Dockside Marina (Dockside).
2

WOLOHOJIAN, J. At issue is whether R.M. Packer Co. 

(Packer) was properly found liable for attorney's fees and costs 

under G. L. c. 21E, § 4A(f), after it unsuccessfully sought 

contribution from the defendants for costs to clean up an oil 

spill. In three circumstances, the statute requires that 

reasonable attorney's fees and costs be awarded against a 

plaintiff who has sued seeking contribution for environmental 

clean-up costs. Those three circumstances are

"[i]f the court finds that (1) the plaintiff did not 

participate in negotiations or dispute resolution in good 

faith; (2) the plaintiff had no reasonable basis for 

asserting that the defendant was liable, or (3) the 

plaintiff's position with respect to the amount of the 

defendant's liability pursuant to the provisions of this 

chapter was unreasonable."

G. L. c. 21E, § 4A(f), inserted by St. 1992, c. 133, § 294. 

Here, after a bench trial, a judge found that Packer had no 

reasonable basis for asserting its claim against the defendant 

Dockside at the time it filed suit, and accordingly awarded fees 

and costs under § 4A(f)(2). The judge reached this conclusion 

despite the fact that, before Packer filed its complaint, the 

Department of Environmental Protection (DEP) had issued a notice 

of responsibility to Dockside, stating that it had reason to 

believe that Dockside was a "[p]otentially [r]esponsible 

[p]erson."

Packer argues that DEP's position vis à vis Dockside's 

potential responsibility provided a reasonable basis upon which 
3

Packer could sue Dockside for contribution. Hence, Packer 

argues, the judge erred in awarding fees and costs under 

§ 4A(f)(2). We do not need to reach this issue because, on the 

facts found by the judge (and not challenged on appeal), the 

award was independently proper under § 4A(f)(3). We accordingly 

affirm the award on that basis.

Background.

2 Packer was in the business of selling and 

delivering petroleum-based products on Martha's Vineyard.3 

Before the events at issue in this case, Packer had owned a 

piece of commercial property located at 27 Lake Avenue in Oak 

Bluffs, where a gas station was located. In 1998, Packer 

 

2 The facts are drawn from the trial judge's clear and 

detailed written findings. Where, as here, a judge acts as the 

trier of fact, his or her factual findings must be accepted on 

appeal unless shown to be clearly erroneous. See Mass.R.Civ.P. 

52(a), as amended, 423 Mass. 1402 (1996). Packer does not argue 

that any of the judge's subsidiary findings are clearly 

erroneous. Moreover, the findings are in essence unreviewable 

because the trial transcript was not included in the appellate 

record. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975),

& 18(a), as amended, 425 Mass. 1602 (1997). See Kunen v. First 

Agric. Natl. Bank of Berkshire County, 6 Mass. App. Ct. 684, 

689-691 (1978); Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 

(1995); Buddy's Inc. v. Saugus, 62 Mass. App. Ct. 256, 264 

(2004).

3 Ralph M. Packer, Jr. was the company's chief executive 

officer; Packer employees, Scott Bailey and Mark Leith, were 

deliverymen.
4

installed underground fuel4 storage tanks behind the station. 

Tank one was for diesel fuel; tank two was for gasoline.

Two piers stretched into Oak Bluffs Harbor nearby. On one 

of those piers, Dockside owned and operated pumps that dispensed 

fuel to motor boats. Dockside's pumps were connected to tanks 

one and two, and Dockside purchased the fuel it needed for its 

operations from Packer, who delivered it to, and stored it in, 

those two tanks.

In 2000, as part of a larger business deal, Packer sold the 

property, including the tanks, to Marmik, LLC (Marmik), an 

unrelated firm. As a result, Marmik inherited Dockside as what 

the parties call a "pass-through" customer; after the 

transaction, Dockside continued to purchase fuel from Packer

(paying Packer directly), and Packer continued to deliver it to 

tanks one and two. However, those tanks were now owned and 

maintained by Marmik,5 and Dockside paid Marmik a per gallon 

handling charge for this arrangement.

6

 

4 When we refer to "fuel" in this opinion, we do so 

colloquially where it makes no difference whether the substance 

referred to is diesel fuel or gasoline.

5 Dockside neither leased the tanks nor exercised (or 

assumed) exclusive or shared control of the tanks. Dockside was 

not responsible for maintenance or repairs to the tanks. 

Further, it had no duty to monitor the fitness of the tanks.

6 Dockside also entered into an indemnification agreement 

with Marmik, agreeing to indemnify Marmik from "acts or 
5

Marmik adapted the property to meet its business needs. 

Among other changes, it added a nine-foot fence enclosing the 

area where the tanks were buried. In this same area, Marmik had 

installed a concrete base with layers of sand on top, which was 

customized to serve as an outdoor seating area for a restaurant 

on an abutting parcel. These changes to the site made it 

difficult for Packer's deliverymen to use the pole method to 

check the fuel levels before filling the tanks. The pole method 

entails lowering a measuring pole through the direct fill cap of 

the tank to measure the level of the tank's contents. The pole 

method is a customary and reliable method of measuring the level 

of a tank's contents and allows the deliveryman to determine how 

much fuel can be added to the tank without risking a spill.

While Packer's deliverymen had on occasion used the pole 

method to measure the fuel levels, they usually relied instead 

on a remote electronic sensory system known as a veeder root 

system (VRS), which Packer had put in place when the tanks were 

added to the site. With the aid of sensors inside each tank, 

the VRS measured and recorded each tank's fuel capacity on a 

running tape (akin to a sales register printout); thus, the VRS 

recorded the volume of fuel in a tank and its ullage, i.e., the 

number of gallons that could be added. The VRS terminal was 

 

omissions" of Dockside and its agents. This agreement, however, 

does not appear to be implicated here.
6

housed in a nearby convenience store and available when the 

store was open for business.

On the evening of Saturday, July 7, 2007, a Dockside 

employee measured the fuel in the tanks using the VRS, which 

recorded fifty-four inches of diesel fuel in tank one and 

eighteen inches of gasoline in tank two. In turn, according to 

the parties' well-established protocol, the Dockside employee 

reported the readings to Packer, stating (in inches) the height 

of fuel in each tank. In addition to reporting the fuel levels, 

the Dockside employee ordered gasoline (for tank two) to be 

delivered as early as possible the following morning. Dockside 

did not order any diesel (for tank one). On Sunday, at about 

6:00 A.M., Skip Bailey, Packer's employee, accurately recorded 

Dockside's fuel levels (i.e., fifty-four inches of diesel and 

eighteen inches of gasoline) in a company ledger.

For reasons set out in more detail in the margin,7 Packer 

was delayed in making the delivery and Dockside's owner, 

Terrence McCarthy, became correspondingly agitated that Dockside

would run out of fuel.8 Ultimately, Leith made the delivery. 

 

7 Bailey intended to deliver gasoline to Dockside after a 

delivery via ferry to another customer located on Chappaquiddick 

Island. That delivery was dependent on the tides, and Bailey 

was delayed on Chappaquiddick Island, due to unfavorable 

conditions that prevented the ferry from returning to Edgartown.

8 McCarthy left two messages with an outside answering 

service for Packer, indicating that without a prompt delivery 
7

However, rather than delivering gasoline, he delivered diesel 

fuel. Moreover, he did not check tank one's capacity, either by 

the pole method or by using the VRS terminal before filling the 

tank. Nor did he take any other reasonable step to ascertain 

the level of diesel fuel in tank one.

9 Instead, Leith attached 

the truck's hose to the remote (indirect) fill spout for tank 

one and proceeded to fill it. At the moment he began offloading 

diesel fuel, tank one had room for about 273 gallons. By the 

time Leith stopped force pumping diesel fuel, he had delivered 

1,060 gallons of diesel, the tank had ruptured, the sensor rod 

within the tank had shot through the top of the tank "like a 

rocket," and diesel fuel was gushing from the tank "like a small 

geyser." The best estimate is that 787 gallons of diesel fuel 

spilled as a result.

In the aftermath of the spill, the DEP conducted an 

investigation that led it to send a notice to Dockside stating 

that it had reason to believe that Dockside was "a Potentially 

 

Dockside would run out of fuel. Driving to the site, a Packer 

employee, Mark Leith, telephoned McCarthy, who voiced his urgent 

need for fuel. McCarthy did not refer to "diesel" fuel, either 

in his messages left with the answering service or in 

conversation with Leith. Nor did Leith inform McCarthy that 

diesel, not gasoline, would be delivered that day.

9 Leith had delivered 2,000 gallons of diesel fuel the 

previous day which, the trial judge found, should have raised 

doubts in Leith's mind that additional diesel fuel was needed. 

He could have easily resolved any such doubt by walking over to 

the Dockside pumps.
8

Responsible Party (a 'PRP') with liability under . . . G. L. 

c. 21E, § 5, for response costs." A like notice was sent by DEP 

to Packer, indicating that Packer was also a PRP liable under 

the Act for the spill.

Packer hired an environmental firm to remediate the spill 

and, all told, the clean-up costs came to $300,000, which were 

assumed by Packer's insurance company. Packer then, pursuant to 

G. L. c. 21E, § 4A, sent demand letters to both Dockside and 

Marmik, demanding that they each contribute eighty percent of 

the remediation costs (which, had the defendants acceded to the 

demand, would have resulted in a significant windfall). 

Packer's demand at no point changed despite the fact that, as 

the trial judge found, "Packer well knew that Dockside was 

blameless in this instance." The parties did not resolve their 

differences and Packer brought this suit against Dockside, among 

others,10 asserting liability based on common-law (negligence) 

principles as well as certain provisions of G. L. c. 93A and 

G. L. c. 21E, the Massachusetts Oil and Hazardous Material 

Release Prevention Act (Act). Dockside asserted a counterclaim 

for an award of its attorney's fees and costs under G. L. 

c. 21E, § 4A(f)(1)-(3).

 

10 See note 1, supra; the other named defendants are not 

implicated in this appeal.
9

After an eight day bench trial, the judge issued findings 

of fact and found in favor of Dockside on all of Packer's 

claims. On Dockside's counterclaim, the judge awarded Dockside 

$66,409.50 in attorney's fees and costs, relying on G. L. c. 21, 

§ 4A(f)(2),

11 and concluded: "[w]hen Packer filed its complaint, 

application of the facts to the existing law made it reasonably 

clear that Dockside was not liable under G. L. c. 21E." The 

only issue before us is the award of fees and costs.

12

Discussion. General Laws c. 21E is a comprehensive statute 

designed to promote the prompt and efficient cleanup of sites 

contaminated by the release of hazardous materials and to 

provide a legal framework by which response costs are borne by, 

and appropriately allocated among, those responsible. See 

Commonwealth v. Boston Edison Co., 444 Mass. 324, 335 (2005); 

Bank v. Thermo Elemental Inc., 451 Mass. 638, 653 (2008). Under 

the Act, a person, as defined by § 2, is authorized to undertake 

 

11 Section 4A(f)(2) authorizes an award of litigation costs 

and reasonable attorney's fees to a defendant if a court 

concludes that "the plaintiff had no reasonable basis for 

asserting that defendant was liable." And, in connection with 

his ruling, the judge cited Scott v. NG US 1, Inc., 450 Mass. 

760, 773 (2008) ("the question is whether, when the complaint 

was filed, application of the facts to existing law made it 

reasonably clear that the defendant[] [was] not liable under 

G. L. c. 21E").

12 Although Packer's notice of appeal states that Packer 

appeals from the judgment, its only argument on appeal is in 

regards to the award of attorney's fees and costs to Dockside 

pursuant to G. L. c. 21E, § 4A(f)(2).
10

response actions

13 to remediate a contaminated site and is 

entitled to reimbursement "from any other person liable" for the 

release of hazardous materials. G. L. c. 21E, § 4, third par., 

as appearing in St. 1992, c. 133, § 293. If two or more persons 

are liable, then each is liable to the others for their 

equitable share.14 Ibid. See Martignetti v. Haigh-Farr, Inc., 

425 Mass. 294, 308 (1997); Commonwealth v. Boston Edison Co., 

supra at 338.

Section 4A of the Act sets out a detailed prelitigation 

process that a person must follow if that person wishes to 

obtain contribution from others who may also have liability for 

environmental clean-up costs. To begin with, the person seeking 

contribution must send a demand letter specifying (among other 

things) the nature, scope, and cost of the remediation, the 

legal and factual basis for the demand, and the amount of 

contribution or reimbursement being sought. G. L. c. 21E, 

§ 4A(a). The recipient of such a demand letter is required to 

 

13 "Response," as defined by § 2 of the Act, encompasses 

assessment, containment, and removal measures to remediate a 

site. A response action is deemed complete when it achieves a 

"permanent" solution, a result that is attained when a site no 

longer poses a "significant risk" to the public or environment 

for a "foreseeable period of time." G. L. c. 21E, § 3A(g), as 

appearing in St. 1992, c. 133, § 283.

14 There is no question in this case that Packer is liable 

as a "person who . . . caused or is legally responsible for a 

release . . . of oil . . . from a . . . site." G. L. c. 21E, 

§ 5(a)(5), inserted by St. 1983, c. 7, § 5.
11

respond within forty-five days, and may request additional 

documentation. Ibid. Either party may request that the dispute 

be submitted to arbitration, mediation, or some other form of 

alternative dispute resolution. G. L. c. 21E, § 4A(b). Only 

after this procedure has been followed can suit be filed in 

Superior Court. G. L. c. 21E, § 4A(c). The purpose of this 

procedure is to prevent the parties from resorting to litigation 

unless and until they have attempted to resolve the allocation 

and burden of remediation among themselves.

As a further incentive to encourage the parties to take 

reasonable prelitigation positions and to resolve their disputes 

among themselves, the Legislature designed a fee-shifting 

structure that penalizes any party who takes unreasonable 

prelitigation positions regarding liability or cost sharing. A

plaintiff is to be awarded its litigation costs and reasonable 

attorney's fees if the court finds that the defendant is liable 

and "(1) failed without reasonable basis to make a timely 

response to a [demand letter], or (2) did not participate in 

negotiations or dispute resolution in good faith, or (3) failed 

without reasonable basis to enter into or carry out an agreement 

to perform or participate in the performance of the response 

action on an equitable basis or pay its equitable share of the 

costs of such response action or of other liability pursuant to 

the provisions of this chapter, where its liability was 
12

reasonably clear."15 G. L. c. 21E, § 4A(d). On the other hand, 

"[i]f the court finds that (1) the plaintiff did not participate 

in negotiations or dispute resolution in good faith; (2) the 

plaintiff had no reasonable basis for asserting that the 

defendant was liable, or (3) the plaintiff's position with 

respect to the amount of the defendant's liability pursuant to 

the provisions of this chapter was unreasonable, it shall award 

litigation costs and reasonable attorneys' fees to the 

defendant." G. L. c. 21E, § 4A(f). In essence, attorney's fees 

and costs are to be awarded against any person who takes an 

unreasonable prelitigation position regarding the existence or 

extent of another person's liability.

Here, the judge awarded fees and costs, concluding that 

Packer had "no reasonable basis for asserting that [Dockside] 

was liable." G. L. c. 21E, § 4A(f)(2). This conclusion rested 

on the judge's subsidiary findings, including his finding that 

Dockside was wholly blameless for the spill in this case. 

Indeed, the judge found that the spill was caused by Packer's 

employee, who mistakenly delivered diesel fuel to tank one

without first measuring the level in the tank. Dockside had not 

 

15 In the absence of one of these conditions, the plaintiff 

shall not receive attorney's fees and costs even if the court 

finds the defendant liable for contribution, reimbursement, or 

equitable contribution. G. L. c. 21E, § 4A(e).
13

ordered diesel fuel to be delivered and, moreover, had 

accurately reported the levels in the tanks.

Although these subsidiary findings are unassailable on 

appeal, they do not dispose of the question whether Packer had a 

reasonable basis for asserting that Dockside was liable for 

purposes of awarding attorney's fees under § 4A(f)(2).

16 That 

question turns on whether Packer had a reasonable basis for 

asserting that Dockside fell within one of the five broadlydefined categories of persons who may be liable, under 

§ 5(a)(1)-(5), "without regard to fault" or causation. G. L. 

c. 21E, § 5(a), inserted by St. 1983, c. 7, § 5. If, as Packer 

alleged, Dockside was strictly liable under § 5(a)(1) as an 

"operator of . . . a site from . . . which there . . . has been 

a release . . . of oil," Packer would have had a reasonable 

basis for asserting Dockside's liability.

Whether a person is an "operator" for purposes of the Act

depends on whether the person (here, Dockside) had "actual 

control of, and active involvement in, operations at the site. 

 

16 What "ultimate legal determination" the facts support is 

a legal question we review de novo. Matter of Jane A., 36 Mass. 

App. Ct. 236, 239 (1994). See Simon v. Weymouth Agric. & 

Industrial Soc., 389 Mass. 146, 148-149 (1983); VMark Software, 

Inc. v. EMC Corp., 37 Mass. App. Ct. 610, 617 n.8 (1994)

("appellate court may reach its own ultimate conclusions based 

on a trial judge's findings [of fact] and may set aside a trial 

judge's ultimate ruling that is inconsistent with the [trial] 

judge's own subsidiary factual findings").
14

This is a fact-specific determination, and the appropriate 

factors to consider will differ according to the nature of the 

enterprise and the relation between the parties involved." 

Martignetti v. Haigh-Farr, Inc., 425 Mass. at 304. The judge's 

conclusion that Dockside was not an "operator" of the site 

rested on the following subsidiary findings. The judge found 

that Dockside did not own or control the tanks or the land in 

which they sat. Nor did it have any duty to maintain the tanks. 

The judge found that Dockside had no role in the day-to-day 

operations of the site, and no landlord-tenant relationship 

existed between it and Marmik. Dockside received no rents or 

profits from the premises and was not involved in a joint 

venture with Marmik. On the other hand, several of the judge's 

subsidiary findings point the other way. Dockside had a longstanding arrangement (begun with Packer, and continued with 

Marmik) whereby it pumped fuel from the tanks for sale to its 

customers. Fuel was delivered to, and stored at, the tanks at 

Dockside's instruction and for its use. Dockside's use of the 

tanks was not casual or intermittent; it was pursuant to a 

formalized business arrangement whereby it paid a fee to Marmik 

in exchange for the use of the tanks. In addition, after 

investigation, DEP notified Dockside that it (DEP) had reason to 

believe Dockside was potentially liable under the Act. This 

fact, taken together with those just recited, was certainly a 
15

strong buttress for Packer's position that Dockside bore 

potential liability as an operator of the site.

We need not, however, decide whether Packer had no 

reasonable basis for asserting that Dockside was liable as an 

operator such that an award of attorney's fees and costs was 

proper under § 4A(f)(2). The award was independently proper

under § 4A(f)(3) given the judge's other findings. The judge 

stated that "Packer's insistence that Dockside contribute eighty 

percent of the clean up costs . . . when Packer well knew that 

Dockside was blameless in this instance" was alarming. 

Particularly when that demand is considered with the similar one 

made to Marmik (together significantly exceeding the actual cost 

of remediation), and Packer's inflexibility despite its own 

responsibility for the spill, we have no difficulty concluding 

that Packer's "position with respect to the amount of the 

defendant's liability . . . was unreasonable" such that 

attorney's fees and costs could be awarded under § 4A(f)(3).

Although in other circumstances we might not determine the 

reasonableness of a presuit litigation position for the first 

time on appeal, we do so here for several reasons. First, the 

issue was raised and fully briefed below. Dockside's 

counterclaim sought attorney's fees and costs under all three 

subsections of § 4A(f), and its application for attorney's fees 

also pressed all three grounds. Second, on appeal, Dockside 
16

again argues that the award was proper under all three 

subsections. Tellingly, Packer challenges only the award under 

§ 4A(f)(2); it does not argue that the award could not rest on 

§ 4A(f)(3). Finally, it is clear that the judge would have made 

the award under § 4A(f)(3) as well as (or in lieu of) § 4A(f)(2) 

had he considered the question. As the judge noted, had he 

"reached the question of equitable apportionment of the 

[response] costs vis-a-vis Dockside, a finding of zero share 

would have been entered." It is but a short step from this 

statement, considered together with the judge's subsidiary 

findings concerning Dockside's lack of responsibility for the 

spill and his forceful remarks concerning his "alarm[]" at 

Parker's intransigent demand for an eighty percent contribution

to conclude that the judge would have found Packer's inflexible 

contribution position unreasonable.

The judgment dated September 3, 2013, and the order dated 

April 9, 2014, awarding attorney's fees and costs to Dockside 

are affirmed under G. L. c. 21E, § 4A(f)(3).

So ordered.