FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Claudia R.
J. Guilday, Robert D. Fingar, George W. Hatch, III, and
Catherine B. Chapman of Guilday, Simpson, West, Hatch, Lowe
& Roane, P.A., Tallahassee, for Appellant.
Christine A. Marlewski of Gray|Robinson, P.A., Tampa
(withdrew after briefing); Andrew J. Mayts and Alissa M.
Ellison of Gray|Robinson, P.A., Tampa (substituted as counsel
of record), for Appellee.
Tech, Inc., appeals a final summary judgment entered in favor
of Valley Tank Testing, L.L.C. (Valley Tank), on claims of
equitable subrogation (count I), negligence (count III), and
indemnification (count IV). The complaint was the product of
a dispute between Tank Tech and Valley Tank regarding which
of the two entities caused damage to underground petroleum
storage tanks (USTs) at various Circle K stores. Tank Tech
had been hired to modify the USTs by adding a second interior
wall inside of them while Valley Tank had been hired to test
the interstitial space between the original UST walls and the
newly added walls. As a result of the damage, Tank Tech was
required to repair the damaged USTs. Tank Tech then sued
Valley Tank to recover the repair costs and other losses.
Ultimately, the trial court entered summary judgment on the
appeal, Tank Tech argues that summary judgment was improper
because (1) there were genuine issues of material fact
regarding the equitable subrogation claim; (2) the trial
court erred in finding that Valley Tank owed no duty to Tank
Tech and that there was no factual basis to show that Valley
Tank was negligent in its testing of the USTs; (3) Valley
Tank's failure to meet the presumption set forth in
Public Health Trust of Dade County v. Valcin, 507
So.2d 596 (Fla. 1987), precluded entry of summary judgment;
and (4) there were genuine issues of material fact regarding
which of the two entities caused the damage for purposes of
the indemnification claim. We agree with Tank Tech on the
issue of equitable subrogation and thus reverse the final
summary judgment entered on that claim. However, for the
reasons explained herein, we conclude that the trial court
did not err in granting final summary judgment on the claims
for negligence and indemnification. We do not address the
remaining issues raised by Tank Tech as they either lack
merit or do not materially contribute to our disposition.
are heavily regulated by both the federal and state
governments in an effort to minimize the impact on the
environment and the health and welfare of the surrounding
community. See, e.g., 42 U.S.C. § 6991 (1995);
Fla. Admin. Code. Ch. 62-761, et seq. The Florida Department
of Environmental Protection (FDEP) adopted regulations
requiring UST owners to either upgrade existing USTs with a
secondary containment system or to close the UST systems on
or before December 31, 2009. See Fla. Admin. Code R.
62-761.510(3) & (5). Where secondary containment systems
were employed, the regulations required UST owners to
internally monitor the interstitial space between the
original tank wall and the secondary tank wall. See
Fla. Admin. Code R. 62-761.610, .640.
Tech manufactures and installs the Phoenix System, which is a
technology approved by the FDEP to retrofit existing USTs
with a secondary containment system. Valley Tank is an entity
that performs the required testing of the interstitial space
and was retained by the affected UST owners to perform the
testing. Valley Tank used a procedure known as the Estabrook
Method, which was approved as a testing method by the FDEP
only "where the groundwater depth is verified." The
Estabrook Method includes specifications related to the
amount of pressure that is applied during the testing as well
as to how the groundwater level affects the testing.
Specifically, the Estabrook Method provides in relevant part
Test Pressure . . . Pressure differential
across tank wall is equal to the absolute value of vacuum
applied to tank, plus pressure of tank excavation backfill on
tank, plus groundwater pressure on tank, minus pressure of
liquid in tank.
. . . .
Groundwater Groundwater level in tank
excavation backfill must be determined by observation well or
soil probe in tank excavation backfill.
If groundwater level in tank excavation backfill is above
bottom of tank or the groundwater level in the tank
excavation backfill has not been determined, water sensor
must be used and test time extended to ensure water [i]ngress
detection during test.
Comments . . . An observation well or soil
probe in tank excavation backfill may help determine backfill
material, water level in tank excavation backfill, and free
product. . . . More than 4 psi pressure differential across
the tank wall at any location in the tank could damage the
groundwater level table is an important factor during testing
because the Estabrook Method applies a vacuum to the tank,
causing the tank walls to flex inward. Likewise, water
located outside of the tank puts pressure on the exterior
tank walls causing them to deflect inward.
retrofitting the affected tanks with the Phoenix System, Tank
Tech was notified by Circle K and other customers that USTs
were failing. Tank Tech investigated and determined that
there was a correlation between cracks appearing in the USTs
and high water level tables. In an effort to learn about how
the affected USTs were tested, Tank Tech had one of its
employees attend a course on the Estabrook Method. Tank Tech
alleges that it learned that Valley Tank was testing the
affected USTs as if they were located in a dry hole and that
Valley Tank had not been making an allowance for groundwater
pressure. Tank Tech hired John Cignatta, P.E., Ph.D., who
opined in an affidavit that if excessive vacuum force was
used, it would cause the tank walls to repeatedly flex inward
and that, over time, the structural integrity of the tanks
would break down, resulting in cracks that could allow fuel
to enter ...