Goldenberg's Hartford vapor settlement evaporates

By Steve Korris | Feb 28, 2007

Mark Goldenberg

Mark Goldenberg's class action settlement with Equilon Enterprises and Premcor Refining over pollution in Hartford has collapsed.

In separate filings Feb. 16, Goldenberg and the companies erased a deal they brought to Madison County Circuit Judge Daniel Stack in August.

Goldenberg invoked a paragraph allowing him to terminate the agreement if Equilon and Premcor "have not cooperated as required generally."

The paragraph specifically allowed termination if Equilon and Premcor did not deliver scientific evidence establishing liability of other companies.

Goldenberg expected to use evidence from Premcor and Equilon in a three-year-old suit against other companies over pollution in Hartford.

The August settlement, which Goldenberg filed as a separate suit, would have dismissed Equilon and Premcor from the original suit.

Now Equilon and Premcor will stick with the original defense after all, unless they reach a new deal with Goldenberg.

For the moment they would prefer a new deal. Premcor attorney Dan Nester asked Stack on Feb. 16 for permission to renegotiate.

He invoked a paragraph keeping Equilon and Premcor out of the original suit if both sides agree to renegotiate.

The paragraph says, "If the parties do not arrive at a renegotiated settlement, the Parties shall have no further rights or obligations under this agreement."

In a cryptic way it says, "It is the express intention of the Parties that their relative positions in any litigation remain unchanged in the event of termination."

For decades refining operations deposited a lake of petroleum beneath the village. Every rainfall pushes vapors into homes.

Different companies have owned refineries and many more have conducted business on the grounds, making it hard to fix blame.

In 2003 a team of Missouri attorneys sued many companies on behalf of Katherine Sparks. They moved to certify her claim as a class action.

In 2004 Goldenberg filed a similar suit for 185 individuals but did not propose a class action.

In 2005 Stack certified the Sparks suit as a class action.

Defendants moved for reconsideration and Stack granted it. Although he did not rescind the class certification, he left it in doubt.

Goldenberg took advantage. Last summer he bargained with Equilon and Premcor on a class action basis.

The secret got out when a Goldenberg client told a client of the Missouri attorneys about the negotiations.

After Goldenberg settled with Equilon and Premcor, he filed the agreement as a class action with Harry Goforth representing the class.

The agreement covered all who resided in Hartford or owned property there from 1984 through 2006.

Equilon and Premcor agreed to contribute $3.5 million for property damage, $3.5 million for displacement, loss of use and loss of enjoyment, and $1 million for medical expenses.

Premcor agreed to provide testimony regarding liability of other defendants excluding Equilon.

Equilon agreed to provide "frank discussions" with technical personnel.

Stack granted preliminary approval to the settlement Aug. 28.

The Missouri attorneys asked the Illinois Supreme Court to overrule Stack, but the Justices elected not to intervene.

The Missouri team still awaits Stack's decision on certifying Sparks as class representative.

Stack faces another big decision in the Sparks case.

BP North America and Alantic Richfield have filed counterclaims against Apex Oil, and Apex has moved to dismiss those.

Apex argues that its bankruptcy in the 1980s cleared it of any liability for harm that occurred prior to bankruptcy.

Apex Oil argues that BP and Atlantic Richfield knew the potential liability and should have submitted claims on Apex before it reorganized.

On yet another front, Apex seeks to curb its losses in Madison County suits by suing former insurers in the court of Associate Judge Ellar Duff.

The insurers have not indemnified or defended Apex Oil, claiming their policies did not cover pollution.

Duff recently rejected a defense motion to transfer the suit to St. Louis.

Defendant Maryland Casualty moved Feb. 13 for summary judgment as successor to American General Fire and Casualty.

Attorney Eric Banks of Kansas City wrote that American General's policy covered Apex Oil in 1979 and 1980.

He wrote that Apex Oil bought the refinery in 1981.

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