7-Eleven, Inc. v. Department of Environmental Quality

ANNUNZIATA, Judge,

concurring.

Although I concur in the holding of the majority opinion, I do so based on different analytical considerations, beginning with my finding the term, “costs,” as it is used in Code § 62.1-44.34:ll(A)(2)(a)-(b), to be ambiguous.

Code § 62.1-44.34:ll(A)(2)(a) provides reimbursement by the state for:

a. Reasonable and necessary per occurrence costs incurred for releases reported ... by the owner or operator who is the responsible person, in taking corrective action for release of petroleum into the environment.

Code § 62.1-44.34:ll(A)(2)(b) states that “costs” includes “payment of judgments for bodily injury and property damage caused by the release of petroleum into the environment from an underground storage tank.” The term “costs” is not more specifically defined under the Tank Fund statute and neither Code section makes clear whether the legislature intended to limit recovery to actual clean-up costs for the property in question or whether the term “costs” encompasses other factors, such as the costs of prosecuting a suit for such damages, settlement costs incurred in conjunction with such a suit, or damages as defined in the context of litigation.8

*394No reference to settlement costs, whatsoever, is made in the statute. The sole reference to “settlement” is found in § VIII of the Fund Guidelines, promulgated by the DEQ in 1998. The reference is general in its import and, like the statute, is devoid of any definition of the components to be considered.9

In short, I find the term “costs,” as employed in § 62.1-44.34:11(A)(2), as well as in the Guidelines that the DEQ promulgated, to be ambiguous and subject to statutory construction. The ambiguity gives rise to dual inquiries: Did the legislature intend compensation to extend to amounts expended in settling litigation and, if so, what factors relating to settlement are to be considered?10

*395The principles of law that govern statutory construction are well settled. See, e.g., Grillo v. Montebello Condominium, Owners’ Ass’n, 243 Va. 475, 416 S.E.2d 444 (1992); Shackelford v. Shackelford, 181 Va. 869, 27 S.E.2d 354 (1943); Watkins v. Hall, 161 Va. 924, 172 S.E. 445 (1934). The most relevant to our inquiry requires the trial court to give deference to an Agency’s interpretation of the legislation. As noted in Southern Spring Bed Co. v. State Corp. Comm’n, 205 Va. 272, 275, 136 S.E.2d 900, 902 (1964), “the construction given to a statute by public officials charged with its enforcement is entitled to great weight ... and in doubtful cases will be regarded as decisive.”

In its analysis, the Agency noted that it could not find any authority for 7-Eleven’s proposition that factors such as the strength of the case, the potential range of jury verdicts, the likely duration of the litigation and other similar “cost of settlement” factors, were to be considered by the Agency in awarding compensation under the statute, and 7-Eleven cites none. Rather, it simply contends that, since the reimbursement statute specifically includes “judgment” as part of what might be reasonable and necessary, the legislature contemplated that litigation between owners, operators and aggrieved third parties would be instituted and that at least some of the litigation would result in settlement. From that premise, 7-Eleven concludes that the legislature intended “the traditional common law factors that are used by courts to determine the reasonableness and necessity of a settlement [such as the expense, complexity and likely duration of the litigation] to apply when the DEQ ma[kes] its initial judgement, as well as when an appellate court review[s] that decision.” It cites no authority for that proposition, nor explains why its proposed reasoning and conclusion necessarily follow, particularly in the context of the statute at issue here.

*396In this case, the Agency employed the settlement as its point of departure, as provided in the Guidelines, and determined that the amount expended in settlement was compensable, but found the statute and case law limited its consideration to the costs incurred as a result of the property damage caused by the spill, using as its measure the diminution in the market value of the property.11 See Packett v. Herbert, 237 Va. 422, 427, 377 S.E.2d 438, 442 (1989). An appellate court is required to give deference to the Agency’s interpretation of the statute and, “in doubtful cases [that interpretation] will be regarded as decisive.” Southern Spring, 205 Va. at 275, 136 S.E.2d at 902. I find the trial court properly applied this rule of law. 7-Eleven also contends it is entitled to damages for “carrying costs, lost profits and lost investment income.” There is no legal authority to support the proposition that such elements of damage are compensable under the statute. Code § 62.1-44.34:ll(A)(2)(b) defines reimbursable “costs” only as: “payment of judgments for ... property damage caused by the release of petroleum into the environment from an underground storage tank.” Furthermore, the Agency’s Guidelines exclude from reimbursement “intangible property damage costs.” Guidelines, § VIII. The Guidelines, thus, focus on damage to the property itself.

The Agency’s interpretation of the statute is buttressed by the legislature’s adoption of a provision defining what a third party may claim in damages as a result of a prohibited discharge. Whenever possible, we interpret separate sections of a statute as a consistent and harmonious whole so as to effectuate the legislative goal. See Virginia Elec. & Power Co. v. Bd. of County Supervisors, 226 Va. 382, 388, 309 S.E.2d 308, 311 (1983). Code § 62.1-44.34:18(0(4) sets forth the *397damages which an injured third party may recover for property damage in a suit against a liable owner/operator, and specifically contemplates recovery for “loss of income, loss of the means of producing income, or loss of the use of the damaged property for recreational, commercial, industrial, agricultural or other reasonable uses, caused by such discharge.” The statutory provision at issue in 7-Eleven’s claim is distinguished by the absence of such language; reimbursement is explicitly limited to costs for “property damage,” with no mention of lost income or profits. When interpreting statutory language, we must assume that the legislature chose with care the words it used and, where it includes specific language in one section but omits that language from another section, we presume that the exclusion of the language was intentional. See Industrial Dev. Auth. v. Bd. of Supervisors, 263 Va. 349, 353, 559 S.E.2d 621, 623 (2002).

Under the familiar principle of law governing appellate review of an Agency’s construction of a statute that it is mandated to enforce, the trial court properly gave the Agency’s interpretation great deference on appeal. In the absence of specific statutory language to the contrary, or clearly supportive case precedent, I find the trial court did not err in according the Agency’s interpretation of the statute such deference.12 See Holtzman Oil Corp. v. Commonwealth, 32 Va.App. 532, 538-39, 529 S.E.2d 333, 337 (2000).

Having determined the Agency properly limited its consideration of settlement “costs” to those related to permanent real property damage, the trial court concluded that the Agency used the correct measure of damages and found that substantial evidence supported its calculation. The evidence in the record supports the trial court’s determination. Specifi*398eally, the record discloses that the Agency began its review of the settlement amount,13 excluding all but the amount relating to the diminution of market value. Then, applying traditional principles governing the evaluation of evidence both expert and lay, together with its expertise, the Agency determined that the amount 7-Eleven sought was not reasonable and necessary, and set its award at $103,117. That determination, which was based on the application of its expert discretion, fell within the specialized competence of the Agency. The trial court may not substitute its own independent judgment for that of the Agency and will only reverse the Agency decision if it was arbitrary and capricious. See Holtzman, 32 Va.App. at 538-39, 529 S.E.2d at 337. Because I find the trial court’s deference to the Agency’s construction of the statute was proper and that it also properly found that substantial evidence supported the Agency’s findings of fact, I would affirm its decision to sustain the Agency’s decision.

. "The term 'costs’ also has a well-defined legal meaning: Those expenses incurred by parties in prosecuting or defending a suit, action *394or other proceeding at law or in equity, recognized and allowed by law, and taxed against the losing party.” Morgan v. Haley, 107 Va. 331, 337, 58 S.E. 564, 566 (1907). The Code sections in the matter at issue cannot necessarily be read as incorporating the traditional legal definition of the term.

. The Guidelines specifically provide:

The Agency’s acquiescence to a settlement between owner and third party does not mean that the Agency will pay the full settlement amount....
A. Settlements
1. Owners/operators and third parties contemplating settlement should obtain DEQ advance determination of the amount of damages identified in the settlement total, which will be eligible for disbursement.
2. DEQ will attempt to review the proposed settlement within ninety days from receipt of a completed third party claim.
3. For settlements, the owner/operator must demonstrate the basis of [his] liability to the third parly and that the liability, if not certain, is at least fairly disputable. DEQ reserves the right to review all settlements for reasonableness.
Virginia Petroleum Storage Tank Fund Third Party Disbursements Guidelines, § VIII.

. Among the criteria one might use in assessing the reasonableness of settlement in the context of litigation

include evaluations of (1) the risks of establishing liability and damages, (2) the range of reasonableness of the settlement in light of the best possible recovery, (3) the range of reasonableness of the settlement in light of all the attendant risks of litigation, (4) the complexity, expense and likely duration of the litigation, (5) the stage of the proceedings and the amount of discovery completed, (6) the recom*395mendations of competent counsel, and (7) the reaction of the [beneficiaries] to the settlement.

Dauphin Deposit Bank & Trust Co. v. Hess, 556 Pa. 190, 727 A.2d 1076, 1078 (1999).

. In addition to its statutory analysis, the DEQ noted numerous factual problems with 7-Eleven’s claim, including 7-Eleven’s failure to provide the Agency with the legal theories underlying the damages it sought in the litigation and upon which settlement was premised. The Agency thus had no way to evaluate whether 7-Eleven’s claims for damages other than those damages related to property damage were legally viable.

. I further note that, even were 7-Eleven’s position to be adopted, no evidence relating to the Dauphin factors relevant to assessing the reasonableness of a settlement, such as the complexity of the case, the range of jury verdicts and other such facts that 7-Eleven asked be considered, was submitted and there has been no showing that the Agency has the expertise necessary to determine the reasonableness of settlement, absent such evidence.

. The Agency Guidelines provide: “Settlements and final court orders will be used as baselines from which the Agency will conduct eligibility, reasonableness, and necessity reviews.” Guidelines, § VIII (emphasis added).