Sirois v. Winslow , 1991 Me. LEXIS 7 ( 1991 )

GLASSMAN, Justice.

Pursuant to M.R.Civ.P. 72(c),¹ this matter comes to us on a report of an interlocutory ruling by the Superior Court (Cumberland County, Alexander, J.) granting the motion of the defendant, Richard H. Win-slow, to dismiss that portion of the complaint of the plaintiffs, Leo A. Sirois and Shirley Jones, seeking damages for alleged injuries to their property for which the plaintiffs had pending a claim previously filed with the Department of Environmental Protection (DEP). We hold that the report of the interlocutory ruling was improvidently granted and discharge the report.

In December 1987, the plaintiffs filed a claim for property damage and loss of income with the DEP pursuant to the Oil Discharge Prevention and Pollution Control Act, 38 M.R.S.A. §§ 541-560 (1964 & Supp. 1989), and the Underground Oil Storage Facilities and Ground Water Protection Act, 38 M.R.S.A. §§ 561 to 570-G (1964 & Supp.1989) (the Acts), alleging that leaking gasoline tanks on Winslow’s property had contaminated their property. In February 1989, the plaintiffs filed the present action against Winslow in the Superior Court alleging trespass, nuisance and negligence and seeking damages for physical and emotional injuries and injuries to their property claimed to have been suffered as a result of the leaking gasoline tanks. Winslow filed a motion to dismiss the plaintiffs’ complaint on the grounds that the plaintiffs’ previously filed claim before the DEP sought recovery for the same damages and that the exclusivity provisions of the Acts, sections 551(2)(D) and 569(2-A)(E),² precluded the Superior Court action. In opposition to Winslow’s motion to dismiss the property damage claims, the plaintiffs asserted that they had a constitutional right to have those issues determined by a jury.

After a hearing,³ at which time the plaintiffs’ claim before the DEP had not been resolved, the court granted Winslow’s motion to dismiss as to those portions of the plaintiffs’ complaint seeking damages for injuries to property or loss of income resulting directly or indirectly from the claimed gasoline leakage. The court, contrary to the plaintiffs’ contention, held that the exclusivity provisions of the Acts did not on the facts of this case deprive the plaintiffs of their constitutional right to a jury trial on their property damage claim in violation of the provisions of article I, § 20 of the Maine Constitution. The court reasoned that this right was reserved to the plaintiffs by initially offering an election between the administrative remedy and the court action but where, as here, the plaintiffs had first invoked the administrative remedy that remedy became exclusive.⁴ After a hearing, the court granted the plaintiffs’ motion for a report of the court’s interlocutory ruling and stayed all further proceedings pending a decision on the report.

We have repeatedly stated that the report of a question of law prior to the final disposition of a case by the trial court is a departure from the final judgment rule barring piecemeal appeals and should be used only on extraordinary occasions. Accordingly, we retain the power to make our own independent determination whether in all the circumstances of a given case our decision on a report would be consistent with our basic function as an appellate court and we would not be cast in the role of an advisory board. We have also repeatedly stated that judicial restraint requires us to cautiously approach constitutional questions presented on report. See State v. Bassford, 440 A.2d 1059, 1061 (Me.1982); Matheson v. Bangor Publishing Company, 414 A.2d 1203, 1205-06 (Me.1980). “For any number of reasons a question raised on report might not have reached the Law Court in the normal course of the appellate process.” State v. Bassford, 440 A.2d at 1061.

Viewing the present report in the light of these policy considerations, we conclude that the procedure of report is an improper method for deciding the constitutional issue presented. The plaintiffs have yet to establish by either the DEP proceeding or the action in the Superior Court that the alleged contamination occurred or that Winslow was responsible for the contamination. To prevail in their claim for personal injuries, the plaintiffs must establish these two facts. If the plaintiffs are successful in doing so, they can then challenge the interlocutory ruling. If at the trial of this matter, Winslow is absolved of liability for the plaintiffs’ claimed personal injuries, the plaintiffs will be precluded from asserting their common law claim for property damage. Here, as in Matheson, the constitutional issue posed is in the abstract and the possibility is evident that but for the report by the Superior Court this case and its constitutional question would never reach this court. 414 A.2d at 1206. We hold that the instant report does not present the type of question to be determined by this court prior to the complete resolution of the case by the trial court.

The entry is:

Report discharged. Remanded to the Superior Court for further proceedings.

McKUSICK, C.J., and ROBERTS and WATHEN, JJ., concur.

1 . M.R.Civ.P. 72(c) provides:

(c) Report of Interlocutory Rulings. If the court is of the opinion that a question of law involved in an interlocutory order or ruling made by it in any action in the Superior Court ought to be determined by the Law Court before any further proceedings are taken therein, it may on motion of the aggrieved party report the case to the Law Court for that purpose and stay all further proceedings except such as are necessary to preserve the rights of the parties without making any decision therein.

2 .After the complaint in the instant case was filed in the Superior Court, we note that P.L. 1989, ch. 865, § 16, effective July 1, 1990 under an emergency preamble, repealed the exclusivity provision contained in the Underground Oil Storage Facilities and Ground Water Protection Act, 38 M.R.S.A. § 569(2-A)(E), and added a new provision, § 569(2-A)(G), expressly declaring that the third-party damage remedies under that Act were nonexclusive. P.L.1989, ch. 890, § B-148, effective July 14, 1990, without referring to P.L.1989, ch. 865, reenacted the Act with the original exclusivity provision intact. The exclusivity provision in the Oil Discharge Prevention and Pollution Control Act, 38 M.R.S.A. § 551(2)(D), remains unchanged. See P.L.1989, ch. 890, § B-117.

3 . Winslow conceded at the hearing on his motion to dismiss that the Acts, which address only property damage and loss of income claims, could not preempt the plaintiffs' common law action for personal injuries. See 38 M.R.S.A. §§ 551(2), 569(2-A) (1964).

4 . The court stated that because the facts of this case did not present the issue, it need not address whether a property damage claim filed in the Superior Court and seeking a jury trial without a previous claim having been presented to the DEP would be precluded by the exclusivity provisions of the Acts.