CLEAN EARTH OF MARYLAND, INC. v. TOTAL SAFETY, INC. Et Al Complaint

Case 2:10-cv-00119-JPB Document 13-1 Filed 11/04/10 Page 1 of 18 PageID #: 232
IN THE CIRCUIT COURT OF PENDLETON COUNTY, WEST VIRGiNIA
CLEAN EARTH OF MARYLAND, INC.,

a Maryland corporation,
PlaintfJ
Civil Action No. 10-C-_______
TOTAL SAFETY, INC., an Ohio

corporation; DARIN M. DILLOW,
individually and as President and CEO Oil
of Total Safety, Inc.; PAUL BILLOW,
individually and as Vice-President of
Total Safety, Inc.; MILLER ENVIRONMENTAL,
INC., a West Virginia corporation;
EMERGENCY RESPONSE & TRAINING
SOLUTIONS, an Ohio corporation; CAL
KELLY, individually and as Project Supervisor
for ERTS; RKM ENVIRONCLEAN, INC.,
a Virginia corporation; INDEPENDENT
CONTINENTAL CARRIES, INC., an Indiana
corporation; and, CHARLES D. BOLE,
individually and as President and CEO of
Independent Continental Carriers, Inc.
Defendants.
COMPLAINT
For its complaint, the plaintiff, Clean Earth of Maryland, Inc. (“Clean Earth”), states as
follows:
1. Clean Earth is a Maryland Corporation whose principal place of business is

located at 1469 Oak Ridge Plaza, Hagerstown, Maryland, 21740.
2. Defendant Total Safety, Inc. (“Total Safety”) is an Ohio corporation whose

principal place of business Clean Earth believes is located at 7394 County Road, South Point,
Lawrence County, Ohio.
3. Total Safety filed bankruptcy before the United States Bankruptcy Court for the
Southern District of West Virginia, Chapter 7 Proceeding Case No. 3:l0-bk-30398.
4, Clean Earth obtained from the bankruptcy Court an Agreed Order Granting
Motion to Lift Stay to Seek Recovery from the Debtor’s Insurers which was entered on July 23,
2010. (See Exhibit A).
5. Accordingly, Clean Earth’s complaint against Total Safety is asserted only to the
extent of Total Safety’s available insurance coverage.
6. Defendant, Darin M. Dillow, is an individual who Clean Earth believes resides in

the State of Ohio, and who was the President and Chief Executive Officer of Total Safety, Inc.
7. Defendant, Phillip Dillow, is an individual who Clean Earth believes resides in

the State of Ohio, and who was the Vice-President of Total Safety, Inc.
8. Defendant, Miller Environmental, Incorporated (“Miller Environmental”) is a

West Virginia corporation, whose principal place of business is located at 514 Hartman Run
Road in Morgantown, Monongalia County, West Virginia.
9. Defendant, Emergency Response and Training Solutions, Incorporated (“ERTS”)

is an Ohio corporation whose principal place of business is identified as 555 Oakmont Lane,
Aurora, Portage County, Ohio.
10. Defendant, Calvin “Cal” Kelly is an individual, who Clean Earth believes is or
was a supervisor for ERTS, and who Clean Earth believes resides in the State of Ohio.
11. Defendant, RKM Environclean, Inc. (“Environclean”) is a Virginia corporation,

whose principal place of business is 396 East Midland Trail, Lexington, Virginia, 24450.
12. Defendant, Independent Continental Carriers, Inc., (“Continental Carriers”) is an

Indiana corporation, whose principal place of business is 1612 N. Althshire, Muncie, Indiana,
47303.
13. Defendant. Charles D. Bole, is an individual, who is the President of Continental

Carriers, and who Clean Earth believes resides at 1612 N. Althshire, Muncie, Indiana, 47303.
Jurisdiction and Venue
14. This Court is vested with subject matter jurisdiction of this civil action pursuant to
W. Va. Code § 5 1-2-2.
15. This Court has jurisdiction of each of the defendants as each of them either
separately or jointly conducted business in Pendleton County, West Virginia, related to the
events in controversy in this civil action.
16. Venue is proper in this Court pursuant to W. Va. Code § 52-1-1(a)(2) as the
events which give rise to the matters in controversy arose as a result of events which occurred in
Pendleton County, West Virginia.
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Factual Background
17. Clean Earth operates a contaminated oil treatment facility (“Facility”) in

Washington County, Maryland, pursuant to Permit No. 2007-OPS-3065A granted by the State of
Maryland.
18. Clean Earth’s facility is authorized to accept oil contaminated wastes however
the facility is not authorized to accept hazardous or other wastes not approved by Permit No.
2007-OPS-3065A.
19. On or about July 16, 2008, a tractor trailer owned and operated by Continental
Carriers and driven by defendant Charles D. Bole (“Bole”), transporting spent batteries, wrecked
while traveling on West Virginia Route 33 near Judy Gap, Pendleton County, West Virginia
(“Judy Gap site”).
20. During the wreck, diesel fuel from the tractor trailer was discharged on to the
ground and some of the spent batteries spilled from the tractor trailer onto the ground at the site
of the wreck.
21. As a result of the wreck, the grounds at or near the site of the wreck were
contaminated with both spilled battery acid and diesel fuel.
22. Upon information and belief, Bole in his own capacity and on behalf of
Continental Carriers hired Miller Environmental to undertake the immediate remediation of the
site including collecting the spent batteries and the proper collection and treatment of the
contaminated soils.
23. Upon information and belief, Miller Environmental began to collect the spent
batteries and the contaminated soils into containers for treatment.
24. Upon information and belief, Miller Environmental tested the soils to determine
the type and extent of contamination in the soils.
25. Upon information and belief, Miller Environmental based upon the result of the
test of the collected soils determined that some, if not all, the collected soils were contaminated
with battery acid and that those soils were deemed hazardous waste.
26. Upon information and belief, Miller Environmental labeled several, if not all, of
the containers of the contaminated soils as hazardous wastes.
27. Upon information and belief, Miller Environmental disclosed not only to the Bole
and Continental Carriers but to the other defendants or their representatives that some if not all
the collected soils were contaminated with hazardous wastes.
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28. Upon information and belief, Miller Environmental was replaced by ERTS as the
company to oversee the rernediation of the site, including the collection, storage, transportation
and treatment of the contaminated soils.
29. Upon information and belief, ERTS contracted with Enviroclean to perform the
actual remediation of the site, including the collection, storage, transportation and treatment of
any contaminated soils.
30. Upon information and belief, ERTS employed the defendant Calvin “Cal” Kelly
as a project supervisor who was responsible for the rernediation project including but not limited
to the proper collection, transportation and treatment of the soils contaminated with either or
both diesel fuel and battery acid.
31. Upon information and belief the defendant Enviroclean performed and
participated in the remediation at the Judy Gap site including the collection, storage,
transportation and treatment of contaminated soils.
32. Upon information and belief ERTS and/or Enviroclean tested the soils to
determine the type and extent of contamination in the soils.
33. Upon information and belief ERTS and/or Enviroclean based upon the results of
the test of the collected soils determined that some, if not all, the collected soils were
contaminated with battery acid and that those soils were deemed hazardous waste.
34. Upon information and belief ERTS and/or Enviroclean disclosed not only to the
Bole and Continental Carriers but also to the other defendants or their representatives that some
if not all the collected soils were contaminated with hazardous wastes.
35. Upon information and belief, ERTS contracted with the defendants, Total Safety,
Darin Dillow, and Paul Dillow for the transportation and treatment of the soils collected at the
site.
36. Total Safety on August 15, 2008 requested permission to dispose of the soils
collected from the vicinity of the wreck at Judy Gap site in Clean Earth’s Maryland facility.
37. On August 15, 2008, Total Safety and Darin M. Dillow provided to the plaintiff a
written certification entitled “Non-Hazardous Profile Sheet” signed by Darin M. Dillow which
represented that the wastes from the Judy Gap site to be delivered by Total Safety were not
hazardous wastes and did not contain any hazardous wastes.
38. On August 27, 2008 and August 28, 2008, the soils from the Judy Gap site were
delivered to Clean Earth’s facility for treatment and Clean Earth relying upon the certification
accepted the soils from the Judy Gap siteanddisposed ofthose soils in its facility:-
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39. On September 18, 2008, Clean Earth was notified by the West Virginia
Department of Environmental Protection that the Judy Gap site soils were contaminated with
hazardous wastes and could not be deposited in Clean Earth’s facility.
40. Upon receiving the notice, Clean Earth was required to and did remove all of the
soils which were deemed contaminated as hazardous wastes from its facility and transported
those soils for treatment to Clean Earth’s RCRA Part B facility which is permitted to accept
hazardous waste.
41. On September 22, 2008, the West Virginia Department of Environmental

Protection Department issued a Notice of Violation to Continental Carriers. In the Notice of
Violation, the West Virginia DEP alleged that Continental Carries caused or allowed five (5)
violations of the West Virginia regulations governing the generation, treatment, storage,
transportation and disposal of hazardous wastes.

Protection Department issued a Notice of Violation to ERTS. In the Notice of Violation, the
West Virginia DEP alleged that ERTS caused or allowed five (5) violations of the West Virginia
regulations governing the generation, treatment, storage, transportation and disposal of
hazardous wastes.

Protection Department issued a Notice of Violation to Total Safety. In the Notice of Violation,
the West Virginia DEP alleged that Total Safety caused or allowed five (5) violations of the
West Virginia regulations governing the generation, treatment, storage, transportation and
disposal of hazardous wastes.
44. Total Safety knew or should have known that the soils collected from the vicinity
of the wreck at Judy Gap site were contaminated with hazardous wastes and could not be
accepted for treatment in the Clean Earth’s facility.
45. Total Safety knowingly misrepresented to Clean Earth that the soils from the
wreck at Judy Gap site were not contaminated with hazardous wastes, when in fact Total Safety
knew that those soils were in fact deemed hazardous wastes and could not be accepted at Clean
Earth’s facility.
46. Upon information and belief, Darin Dillow knew that the soils collected at the
wreck at Judy Gap site were contaminated with hazardous wastes and were deemed to be
hazardous wastes.
47. Upon information and belief, Darin Dillow knowingly misrepresented and failed
to disclose to Clean Earth that the soils from the wreck at Judy Gap site were not contaminated
with hazardouswastes, when in fact Darin Dillow knew that those soils were in fact hazardous
wastes and could not be accepted at Clean Earth’s facility.
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48. Upon information and belief,Phil Dillow knew that the soils collected at the
wreck at Judy Gap site were contaminated with hazardous wastes and were deemed to be
hazardous wastes.
49. Upon information and belief, Phil Dillow knowingly misrepresented or failed to
disclose to Clean Earth that the soils collected at the wreck at Judy Gap site were contaminated
with hazardous wastes and were deemed to be hazardous wastes.
50. Upon information and belief, each of the defendants, independently or

collectively, knew or should have known that the soils collected from the wreck at the Judy Gap
site contaminated with battery acid were hazardous wastes and not merely oil contaminated
wastes.

collectively knew or should have known that any container used to store soils contaminated with
battery acid should be labeled to identify the contents of each container as hazardous wastes.

collectively failed to label or removed labels identifying the contents as hazardous wastes from
the containers used to collect and store the contaminated soils prior to their transport to the
plaintiffs facility.

collectively knew or should have known that hazardous wastes cannot be placed in a facility
which is not authorized to accept hazardous wastes.
54. Each of the defendants had an affirmative duty prior to the delivery of the
contaminated soils to Clean Earth’s facility to disclose to Clean Earth that the soils were
hazardous wastes.
55. Each of the defendants had an affirmative duty to disclose to Clean Earth the
nature and content of the soils delivered to Clean Earth as hazardous wastes.
56. The defendants each had an affirmative duty to properly collect, label, transport
and dispose of the hazardous wastes (contaminated soils) from the wreck at Judy Gap site.
57. Miller Environmental, ERTS, Calvin “Cal” Kelly, Enviroclean, Total Safety,
Darin Dillow, Phil Dillow each had an affirmative duty to properly train and supervise
themselves, their employees, and their sub-contractors to properly collect, store, label, transport,
and dispose of hazardous wastes prior to and during the remediation of the soils contaminated as
hazardous wastes by the wreck at Judy Gap site.
58: Continental Caffiersand- Bole each-had an affirmative-duty to not contarninatethe--

soffI dfJüdy Gap site and after the wreck had a duty to hire competent persons and
entities to properly collect, store, label, transport, and dispose of the wastes created as a result of
the wreck by Continental Carriers and Bole.
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59. Upon information and belief, Continental Carriers and Bole failed to hire
competent persons or entities to complete the remediation of the area near the Judy Gap site.
60. Upon information and belief, ERTS failed to hire competent persons or entities to
complete the remediation of the area near the Judy Gap site.
61. ERTS knew or should have known that soils contaminated with battery acid were
hazardous waste, with that knowledge, upon information and belief, ERTS failed to hire
competent persons or entities to undertake and complete the remediation, including the proper
treatment of the contaminated soils:
62. Environclean knew or should have known that the soils at the Judy Gap site were
contaminated with hazardous waste, and with that knowledge Enviroclean had an affirmative
duty to ensure the proper collection, storage, transport, treatment and disposal of the hazardous
wastes; to properly label any container used to store hazardous waste; to notify any person or
entity used to transport the soils that the soils to be transported were hazardous wastes; to prepare
a correct manifest or other written document to notify the receiver of the soils that they were
contaminated hazardous waste; and to make sure that the hazardous waste contaminated soils
were delivered to a facility authorized to accept and dispose of hazardous wastes.
63. Each of the defendants, independently or jointly, failed to carry out each of the
affirmative duties identified in this complaint, as a result of each of the acts or omissions of each
of the defendants, Clean Earth suffered damages and incurred significant costs and expenses to
remediate its own facility and to properly dispose of the hazardous waste in a licensed facility.
64. As part of the remediation of the Judy Gap site, defendants, independently or
jointly, had test performed upon the contaminated soils from the Judy Gap site, which revealed
to the defendants that some of the soils were contaminated with hazardous waste.
65. Defendants, independently or jointly, with the knowledge that all or a part of the
soils from the Judy Gap site were contaminated with hazardous waste, negligently, knowingly
and/or purposefully failed to disclose their knowledge to Clean Earth.
66. On August 15, 2008, Total Safety, acting through its President and CEO, signed
and presented a signed certification entitled “non-Hazardous Profile Sheet” that the soils from
the Judy Gap site did not contain any hazardous wastes although Total Safety and its officers
knew that the soils were contaminated with hazardous wastes and could not be placed or
disposed at Clean Earth’s facility.
67. On August 15, 2008, Darin Dillow presented a signed certification entitled “non
Hazardous Profile Sheet” that the soils from the Judy Gap site did not contain any hazardous
waste although Darin Dillow knew that the soils were contaminated with hazardous wastes and
could not be accepted for treatment at Clean Earth’s facility —
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68. Darin Dillow and Total Safety, knowing that the soils from the Judy Gap site
were contaminated with hazardous wastes, denied Clean Earth’s request to obtain certain test
results from “Triad Engineering” of the soils, which test results would have shown that the soils
from the Judy Gap site were contaminated with hazardous wastes and, with that knowledge,
Clean Earth would have refused to accept the contaminated soils for treatment in Clean Earth’s
facility.
COUNT I --STRICT LIABILITY IN TORT
69. Clean Earth repeats and re-alleges paragraphs 1 through 67 of the complaint as if
set forth fully herein.
70. The generation, handling, treatment, storage, transportation and disposal of

“hazardous wastes” are subject to extensive regulation by various state and federal agencies.
71. The improper generation, handling, treatment, storage, transportation and disposal
of hazardous wastes is an “ultra hazardous” activity and any person involved in those activities
are strictly liable for each and every injury or damage suffered as a result of each defendant’s
acts or omissions.
72. Defendants had an affirmative duty to comply with the laws of the State of West
Virginia and the regulations promulgated pursuant thereto, regulating the generation, treatment,
storage, transportation and disposal of any hazardous wastes created by the event on July 16,
2008.
73. Defendants failed to comply with the requirements of the laws of the State of
West Virginia regulating “hazardous wastes” thus each of the defendants, independently or
jointly, are independently and/or jointly are liable in strict liability for each and every
consequential damage suffered by Clean Earth.
WHEREFORE, Clean Earth respectfully requests entry of judgment against defendants,

individually and/or jointly, for strict liability in tort, and for an award of such compensatory
damages against each of them as is available under law.
COUNT II-- NEGLIGENCE
75. Each of the defendants had duties related to the generation, handling, treatment,
storage, transportation and disposal of “hazardous wastes” created as a result of the events at
Judy Gap West Virginia.
76. Each of the defendants by action or omission violated each of the duties set out in
this complaint and carelessly, recklessly and negligently caused injury and damage to Clean
Earth.
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77. Clean Earth suffered damages as a result of the careless, reckless, and negligent
acts or omissions of each defendant in violation of their duties as set out in this complaint.
WHEREFORE, Clean Earth respectfully requests entry of judgment against defendants,

individually and/or jointly, for negligence, and for an award of such compensatory damages
against each of them as is available under law.
COUNT III -- NEGLIGENCE PER SE
79. Continental Carriers, ERTS, and Total Safety violated the laws and regulations
governing the generation, handling, storage, transportation, treatment and disposal of “hazardous
wastes.”
80. The violation of laws and regulations by Continental Carriers, ERTS, and Total
Safety governing the generation, handling, storage, treatment and disposal of “hazardous wastes”
constitutes negligence per Se.
8 1. As a result of the negligence per se by Continental Carriers, ERTS, and Total

Safety, Clean Earth suffered damages.
WHEREFORE, Clean Earth respectfully requests entry of judgment against Continental

Carriers, ERTS, and Total Safety, individually and/or jointly, for negligence per Se, and for an
award of such compensatory damages against each of them as is available under law.
COUNT IV - FRAUD
83. Upon information and belief, defendants made false and material
misrepresentations to Clean Earth regarding the character and type of the wastes presented to the
Clean Earth for treatment at Clean Earth’s facility.
84. Upon information and belief, defendants knew or should have known that
representations were false and were made with the intent to mislead Clean Earth and to cause the
Clean Earth to accept the “hazardous wastes” for treatment at Clean Earth’s facility.
85. Clean Earth relied upon the false statements and misrepresentations made by
defendants and as a result suffered damages.
86. Darin Dillow presented to Clean Earth a verified statement which stated the
wastes from the Judy Gap site were not or did not contain “hazardous wastes.”
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87. Darin Dillow knew the verified statement was false at the time he delivered it to
Clean Earth.
88. Darin Dillow knew Clean Earth would rely upon the verified statement before
accepting the wastes from the Judy Gap site for treatment at Clean Earth’s facility.
89. Darin Dillow knew that if he revealed to Clean Earth that the wastes from the
Judy Gap site were contaminated with hazardous wastes Clean Earth would not accept the waste
for treatment in its facility.
90. Darin Dillow knew that he and his company would incur substantially more costs
and expenses to dispose of the wastes from the Judy Gap site if those wastes were identified as
“hazardous wastes.”
91. Darin Dillow acted with the intent to deceive and defraud Clean Earth.
92. As a result of the fraudulent and intentional acts of Darin Dillow, Clean Earth
suffered damages.
93. Upon information and belief, Phil Dillow was an officer and involved in the
active operation of Total Safety and as such knew of the fraudulent statement prepared and made
by Darin Dillow to Clean Earth.
94. Upon information and belief, Phil Dillow knew Clean Earth would rely upon the
fraudulent statement and would accept the wastes from the Judy Gap site for treatment in
plaintiff s facility.-
95. Upon information and belief, Phil Dillow, intended to deceive and defraud Clean
Earth.
96. As a result of the fraudulent and intentional acts of Phil Dillow, Clean Earth
suffered injury and damages.
WHEREFORE, Clean Earth respectfully requests entry of judgment against these

defendants, individually and/or jointly, for fraud and for an award of such compensatory
damages, punitive damages, attorney fees, litigation expenses, and court costs against each of
them as is available under law.
COUNT V - FRAUDULENT CONCEALMENT
98. Defendants had a duty to make truthful statements and representations to Clean
Earth regarding the characteristics and types of the wastes delivered for treatment in Clean
Earth’s facility.
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99. Defendants knew or should have known the soils from the Judy Gap site were
contaminated with hazardous waste.
100. Defendants knew or should have known the statement presented by Darin Dillow
and Total Safety was false, misleading, and fraudulent and with such knowledge defendants had
a duty to disclose the nature of the wastes from the Judy Gap site as hazardous wastes.
101. Defendants knew or should have known Clean Earth would rely upon the
fraudulent statement regarding the true nature of the wastes from the Judy Gap site and Clean
Earth would accept the soils for treatment.
102. Defendants knew or should have known that soils exposed to battery acid would
be deemed to be “hazardous wastes” and with such a designation would not be permitted to be
deposited in a facility not authorized to accept “hazardous wastes.”
103. Upon information and belief, defendants knowingly withheld information from
Clean Earth regarding the true character of the contamination of the soils from the Judy Gap site.
104. Upon information and belief, defendants’ fraudulent concealment of the true
character of the contamination of the soils from the Judy Gap site was done with the intent to
deceive and fraud Clean Earth.
105. As a result of defendants’ fraudulent concealment, Clean Earth suffered damages.

defendants, individually and/or jointly, for fraudulent concealment and for an award of such
compensatory damages, punitive damages, attorney fees, litigation expenses, and court costs
against each of them as is available under law.
COUNT VI- NEGLIGENT MISREPRESENTATION
107. Defendants had a duty to make a reasonable investigation into the characteristics
and types of wastes delivered for treatment in Clean Earth’s facility.
108. Defendants had a duty to make truthful statements and representations to Clean
Earth regarding the characteristics and types of the wastes delivered for treatment in Clean
Earth’s facility.
109. Through the exercise of reasonable care, defendants should have known the soils
from the Judy Gap site were contaminated with hazardous waste.
110. Through the exercise of reasonable care, defendants should have known the
statement presented by Darin Dillow and Total Safety was false and with such knowledge
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defendants had a duty to disclose the nature of the wastes from the Judy Gap site as hazardous
wastes.
111. Through the exercise of reasonable care, defendants should have known Clean
Earth would rely upon the false statement regarding the true nature of the wastes from the Judy
Gap site and Clean Earth would accept the soils for treatment.
112. Through the exercise of reasonable care, defendants should have known that soils
exposed to battery acid would be deemed to be ‘hazardous wastes” and with such a designation
would not be permitted to be deposited in a facility not authorized to accept “hazardous wastes.”
113. Defendants made negligent misrepresentations to Clean Earth regarding the true
nature of the wastes from the Judy Gap site.
114. As a result of defendants’ negligent misrepresentations, Clean Earth suffered

damages.

defendants, individually and/or jointly, for negligent misrepresentation and for an award of such
compensatory damages against each of them as is available under law.
COUNT VII- NEGLIGENCE
116. Defendants had a duty to exercise reasonable care in their acts and omissions
concerning the cleanup and treatment of the wastes that were delivered for treatment in Clean
Earth’s facility.
117. Defendants had a duty to exercise reasonable care in the retention, training, and
supervision of others to assist in the cleanup and treatment of wastes that were delivered for
treatment in Clean Earth’s facility.
118. Defendants failed to exercise reasonable care in their acts and omissions
concerning the cleanup and treatment of the wastes that were delivered for treatment in Clean
Earth’s facility.
119. Defendants failed to exercise reasonable care in the retention, training, and
supervision of others to assist in the cleanup and treatment of wastes that were delivered for
treatment in Clean Earth’s facility.
120. Defendants’ failure to exercise reasonable care proximately resulted in damages

to Clean Earth.
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defendants, individually and/or jointly, for negligence and for an award of such compensatory
damages against each of them as is available under law.
COUNT VIII- DECLARATORY JUDGMENT
122. On October 8, 2009, a Final Award of Arbitration was entered granting Clean
Earth “a total award of $571,835.58” against Total Safety.
123. The Final Award of Arbitration is entitled to full faith and credit in this Court.
124. On April 6, 2010, the Final Award of Arbitration was entered as a Judgment in
the Court of Common Pleas, Lawrence County, Ohio.
125. The Judgment is entitled to full faith and credit in this Court.
126. At the time of the relevant circumstances in this case, Total Safety was the named
insured on a Commercial General Liability Policy No. G23803410 002 (hereinafter “Policy”)
issued by the defendant, Westchester Surplus Lines Insurance Company (hereinafter
“Westchester”).
127. The insuring agreement of the Policy states, “We will pay those sums that the
Insured becomes legally obligated to pay as damages because of. ‘property damage’ to which
. .
this insurance applies.”
128. The Policy further states, “This insurance applies to ‘property damage’
. . . if. . . .
{t]he. . . ‘property damage’ is caused by an ‘occurrence’ that takes place in the ‘coverage
telTitory.”
129. The Policy defines “Property damage” as “Physical injury to tangible property,
including all resulting loss of use of that property . . .
130. The damages suffered by Clean Earth meet the Policy’s definition of “property
damage.”
131. The Policy defines “Occurrence” as “an accident, including continuous or

repeated exposure to substantially the same general harmful conditions.”
132. Total Safety’s negligence and, specifically, negligent misrepresentations meet the
Policy’s definition of “occurrence.”
133. The Policy defines “Covered territory” as “The United States of America. . .
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134. As the loss occurred in West Virginia, it meets the Policy’s definition of “covered
territory.”
135. Accordingly, Westchester is liable under the Commercial General Liability Policy
to satisfy the arbitration award against Total Safety.
136. In the alternative, Westchester is liable under the Policy to satisfy any judgment
entered in this action against Total Safety for negligence and/or negligent misrepresentation.
137. The Policy also has a “Contractors Pollution Liability” endorsement.
138. The insuring agreement of the Contractors Pollution Liability endorsement states,
“We will pay those sums that the insured becomes legally obligated to pay as damages
. .
because of. property damage to which this insurance applies.”

. .
139. The endorsement states, “This insurance applies to a loss on if. . . [t]he loss arises
out of your ‘Or1(”
140. The endorsement defines “loss” as “property damage, neither expected nor
intended from the standpoint of the insured, caused by or resulting from a pollution condition
and which results in a claim or suit.”
141. The endorsement defines “your work” as “Work or operations performed by you
or on your behalf,” specifically including “representations made at any time with respect to the
fitness, quality, durability, performance or use of your work; and [t]he providing of or failure to
provide warnings or instructions.”
142. The loss suffered by Clean Earth as a result of Total Safety’s “work,” including
but not limited to representations regarding Total Safety’s work and the negligent providing of or
failing to provide warnings or instructions meet the definitions of “loss” and “work” under the
endorsement.
143. The endorsement defines “property damage” to include “Physical injury to

tangible property, including all resulting loss of use of that property” and “Cleanup costs.”
144. The endorsement defines “cleanup costs” as “expenses incurred in the

investigation, evaluation, monitoring, testing, removal, containment, treatment, response,
disposal, remediation, detoxification or neutralization of any pollution conditions to the extent
required by applicable environmental laws.”
145. The “property damage” suffered by Clean Earth as a result of Total Safety’s
“work” included “cleanup costs” as defined in the endorsement.
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146. The endorsement defines “environmental laws” to include “state laws, . . .
statutes, ordinances, regulations, and all amendments thereto, including state voluntary cleanup
or risk-based corrective action guidance .
147. The “property damage” and “cleanup costs” suffered by Clean Earth as a result of
Total Safety’s “work” were required by “environmental laws” as defined in the endorsement.
148. The endorsement defines “natural resource damage” as “damage for... loss of.
• land . or other similar resources
. . otherwise controlled by the
. . . state government ... . . .
including the reasonable costs of assessing such. loss resulting therefrom.” . .
149. The “property damage” and “cleanup costs” suffered by Clean Earth included
“natural resource damage” as defined in the endorsement.
150. The endorsement defines “pollution condition” as “the discharge, dispersal,

release, escape, migration, or seepage of any solid, liquid, gaseous or thermal, material matter,
irritant or contaminant, including smoke, soot, vapors, fumes, acids, alkalis, chemicals,
hazardous substances, hazardous materials, or waste materials, on, into, our upon land and
structures thereupon, the atmosphere, surface water or groundwater.”
151. The contaminated soil transferred to Clean Earth as a result of Total Safety’s
“work” created a “pollution condition” as defined in the endorsement.
152. The endorsement defines “products-completed operations hazard” as “all .
property damage occurring away from premises you own caused by pollution conditions ...
arising out or your product or your work. .
153. The endorsement defines “your product” as “Any goods or products handled, . • •
distributed or disposed of by . . You

. including “representations made at any time with
. . . ,“
respect to the fitness, quality, durability, performance or use of your product; and [t]he providing
of or failure to provide warnings or instructions.”
155. The property damage, cleanup costs, and natural resource damage suffered by
Clean Earth as a result of Total Earth’s “work” and “product” meets the definition of “product
completed operations hazard” as defined in the endorsement.
156. Accordingly, Westchester is liable under the Contractors Pollution Liability

Endorsement to satisfy the arbitration award against Total Safety.
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1 57. In the alternative, Westchester is liable under the Contractors Pollution Liability
Endorsement to satisfy any judgment entered in this action against Total Safety for pollution
liability and completed operations hazard arising from Total Safety’s negligence and negligent
misrepresentation.
158. The Policy also has a “Professional Liability” endorsement.
159. The insuring agreement of the endorsement states, “We will pay those sums
that the insured becomes legally obligated to pay as damages because of claim(s) that result from
the rendering or failure to render professional services for others to which this insurance
applies.”
160. The endorsement states, “This insurance applies to claim(s) that result from the
rendering or failure to render professional services only if. [t]he damages are caused by an
. .
alleged act, error, or omission . . .
161. The endorsement defines “claim(s)” as “a request or a demand received by you or

us for money . including the institution of suit, seeking damages arising from an act, error, or
. .
omission in the rendering or failure to render professional services.”
162. The endorsement defines “professional services” as “those architectural,

engineering, consulting, project management or construction management services that are
performed by you or on your behalf”
163. The “claim” by Clean Earth for “damages” that were caused by the “act(s),
error(s), or omission(s)” of Total Safety in its provision of “professional services” meets the
endorsement’s definition of those terms.
164. Accordingly, Westchester is liable under the Professional Liability Endorsement

165. In •the alternative, Westchester is liable under the Professional Liability

Endorsement to satisfy any judgment entered in this action against Total Safety for negligence or
negligent misrepresentation arising out of its provision of professional services.
166. The endorsement defines “your product” as “Any goods or products handled,
. . .
distributed or disposed of by . You. . including “representations made at any time with

... ,“
respect to the fitness, quality, durability’, performance or use of your product; and [t]he providing
of or failure to provide warnings or instructions.”
16
168. The “claim” by Clean Earth for “damages” arising from Total Earth’s “work” and
“product” meets the endorsement’s definition of those terms.
169. Accordingly, Westchester is liable under the Professional Liability Endorsement

170. In the alternative, Westchester is liable under the Professional Liability

Endorsement to satisfy any judgment entered in this action against Total Safety for negligence or
negligent misrepresentation arising out of its “work” and “product.”
WHEREFORE, pursuant to the provisions of the West Virginia Declaratory Judgment

Act, Clean Earth respectfully requests entry of judgment against Westchester for $571,835.58,
plus pre-judgrnent interest of 4% per annum on and from April 6, 2010, or, in the alternative, for
judgment against Westchester in an amount to be determined by the jury with statutory
prejudgment interest from the accrual of Clean Earth’s cause(s) of action against Total Safety to
the date of entry of judgment, and for an award of Clean Earth’s attorney fees, court costs, and
litigation expenses associated with the preparation and prosecution of this complaint.
PRAYER
171 On August 27 and 28, 2008, the soils from the Judy Gap site were delivered to
Clean Earth’s facility for treatment.
172. Relying upon the representations made by defendants and otherwise through their
acts and omissions, Clean Earth accepted the soils from the Judy Gap site for treatment in its
facility.
173. On September 18, 2008, Clean Earth was notified by the West Virginia
Department of Environmental Protection that the soils were contaminated hazardous waste and
could not be deposited in Clean Earth’s facility.
174. Upon receiving the notice, Clean Earth was required to and did remove all of the
soils received from the Judy Gap site along with all additional soils cross contaminated by the
materials from the Judy Gap site which were deemed contaminated as hazardous wastes from its
facility and transported those soils for treatment to Clean Earth’s RCRA Part B facility which is
facility permitted to accept hazardous waste for treatment.
175. As a result of all the acts or omissions of the defendants, acting independently or
jointly, Clean Earth incurred the costs to remediate its own facility and pay for the proper
handling and treatment of the “hazardous wastes” delivered from the Judy Gap site.
176. As a result of all of the acts or omissions of the defendants, acting independently
or jointly, Clean Earth incurred costs and expenses totaling Five Hundred, Seventy One
Thousand Eight Hundred and Thirty-five Dollars and Fifty-Eight Cents (S571 ,835.58).
17
177. Clean Earth asserts that defendants are jointly and severally liable for the injury
and damages suffered by Clean Earth.
178. Clean Earth prays that it be awarded damages as may deemed sufficient to
compensate Clean Earth for the acts or omissions of each of the defendants.
179. Clean Earth prays that it be awarded damages as may be deemed sufficient to
punish the defendants for their fraudulent, wanton, willful, and reckless acts and omissions.
180. Clean Earth prays that it be awarded reimbursement of its attorney fees, litigation
expenses, and court costs against the defendants for their fraudulent conduct.
181. Clean Earth demands a jury trial in this matter.
WHEREFORE, the plaintiff, Clean Earth of Maryland, Inc., demands judgment against
each of the defendants, severally or jointly, in the sum of Five Hundred, Seventy One Thousand
Eight Hundred and Thirty-five Dollars and Fifty-Eight Cents ($571,835.58), together with
interest thereon as provided by the laws of the State of West Virginia and such other damages,
costs, expenses and attorney fees as this Court may deem fair and just.
CLEAN EARTH OF MARYLAND, INC.

By Counsel
STEPTOE & JOSON PLLC )

Of Counsel
Robert D. Po1it(WVSB No. 2935)
Ancil G. Ramey (WVSB No. 3013)
Hannah B. Curry (WVSB No. 7700)
Marc C. Bryson (WVSB No. 10589)
P.O. Box 1588
Charleston, WV 25326-1588
Tel. No. 304-353-8000
Fax No. 204-353-8180
Counsel for Plaintiff
18

CLEAN EARTH OF MARYLAND, INC. v. TOTAL SAFETY, INC. Et Al Complaint

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CLEAN EARTH OF MARYLAND, INC. v. TOTAL SAFETY, INC. Et Al Complaint

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Case 2:10-cv-00119-JPB Document 13-1 Filed 11/04/10 Page 1 of 18 PageID #: 232

IN THE CIRCUIT COURT OF PENDLETON COUNTY, WEST VIRGiNIA

CLEAN EARTH OF MARYLAND, INC.,

Civil Action No. 10-C-_______

TOTAL SAFETY, INC., an Ohio

1. Clean Earth is a Maryland Corporation whose principal place of business is

2. Defendant Total Safety, Inc. (“Total Safety”) is an Ohio corporation whose

6. Defendant, Darin M. Dillow, is an individual who Clean Earth believes resides in

7. Defendant, Phillip Dillow, is an individual who Clean Earth believes resides in

8. Defendant, Miller Environmental, Incorporated (“Miller Environmental”) is a

9. Defendant, Emergency Response and Training Solutions, Incorporated (“ERTS”)

11. Defendant, RKM Environclean, Inc. (“Environclean”) is a Virginia corporation,

12. Defendant, Independent Continental Carriers, Inc., (“Continental Carriers”) is an

13. Defendant. Charles D. Bole, is an individual, who is the President of Continental

Jurisdiction and Venue

17. Clean Earth operates a contaminated oil treatment facility (“Facility”) in

41. On September 22, 2008, the West Virginia Department of Environmental

42. On September 22, 2008, the West Virginia Department of Environmental

43. On September 22, 2008, the West Virginia Department of Environmental

50. Upon information and belief, each of the defendants, independently or

51. Upon information and belief, each of the defendants, independently or

52. Upon information and belief, each of the defendants, independently or

53. Upon information and belief, each of the defendants, independently or

58: Continental Caffiersand- Bole each-had an affirmative-duty to not contarninatethe--

COUNT I --STRICT LIABILITY IN TORT

70. The generation, handling, treatment, storage, transportation and disposal of

WHEREFORE, Clean Earth respectfully requests entry of judgment against defendants,

COUNT II-- NEGLIGENCE

WHEREFORE, Clean Earth respectfully requests entry of judgment against defendants,

COUNT III -- NEGLIGENCE PER SE

8 1. As a result of the negligence per se by Continental Carriers, ERTS, and Total

WHEREFORE, Clean Earth respectfully requests entry of judgment against Continental

WHEREFORE, Clean Earth respectfully requests entry of judgment against these

COUNT V - FRAUDULENT CONCEALMENT

105. As a result of defendants’ fraudulent concealment, Clean Earth suffered damages.

WHEREFORE, Clean Earth respectfully requests entry of judgment against these

COUNT VI- NEGLIGENT MISREPRESENTATION

114. As a result of defendants’ negligent misrepresentations, Clean Earth suffered

WHEREFORE, Clean Earth respectfully requests entry of judgment against these

COUNT VII- NEGLIGENCE

120. Defendants’ failure to exercise reasonable care proximately resulted in damages

WHEREFORE, Clean Earth respectfully requests entry of judgment against these

COUNT VIII- DECLARATORY JUDGMENT

this insurance applies.”

131. The Policy defines “Occurrence” as “an accident, including continuous or

137. The Policy also has a “Contractors Pollution Liability” endorsement.

because of. property damage to which this insurance applies.”

143. The endorsement defines “property damage” to include “Physical injury to

144. The endorsement defines “cleanup costs” as “expenses incurred in the

146. The endorsement defines “environmental laws” to include “state laws, . . .

including the reasonable costs of assessing such. loss resulting therefrom.” . .

150. The endorsement defines “pollution condition” as “the discharge, dispersal,

152. The endorsement defines “products-completed operations hazard” as “all .

arising out or your product or your work. .

distributed or disposed of by . . You

156. Accordingly, Westchester is liable under the Contractors Pollution Liability

158. The Policy also has a “Professional Liability” endorsement.

alleged act, error, or omission . . .

161. The endorsement defines “claim(s)” as “a request or a demand received by you or

omission in the rendering or failure to render professional services.”

162. The endorsement defines “professional services” as “those architectural,

endorsement’s definition of those terms.