Diamond MacK, Inc. v. Dicocco, No. 0103579 (May 19, 1992)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM This is an action to recover services in trucking to and spreading fill upon land owned by the defendant Kathleen DiCocco. She has interposed a special defense that whoever arranged for the services of the plaintiff had no authority from her to do so. Both defendants have interposed a special defense that the fill trucked in and spread was contaminated with hazardous substances. She has counterclaimed that because the fill was so contaminated, it substantially reduced the value of her property.

It is clear that the arrangement for the plaintiff's services was made by the named defendant, husband of Kathleen, who until a short time prior to the rendering of services, had been the owner of the land. Placement of the fill provided a benefit to her. Although there was no expert testimony as to contamination, a lay witness did testify that he observed what appeared to be oil in part of some fill he saw upon the land in question. Accepting for present purposes that some fill was contaminated, there was ample evidence that the plaintiff was not the only entity that delivered fill; in fact, it was involved only in approximately one-third of the total fill brought in. Further, the fill it did bring in and spread was placed in a different portion of the premises than that where the oil was observed. I conclude that in fact the named defendant was an undisclosed agent for Kathleen and in any event that the fill the plaintiff did bring in and spread constituted benefit to her, and there was absolutely no evidence whatsoever that what it did bring in was contaminated in any way. The reasonable value of the services rendered by the plaintiff is $12,621.

Judgment may enter for the plaintiff in the amount of $12,621, costs to be taxed.

J. HEALEY, STR