Hydrochloric Acid, Sewage Backup, and the Use of Independent Contractors

A federal court in West Virginia has ruled – in case you had any doubts – that using an independent contractor to transport your product may not protect you from the exposure when 1,728 gallons of your hydrochloric acid floods a family’s yard, leading to a sewage backup into the family’s home.

David and Rebecca Campbell live on Husky Highway in Fairmont, W. Va.  They allege that, on April 6, 2022, a truck hauling hydrochloric acid spilled 1,728 gallons of the acid onto the Campbells’ property, contaminating the soil.  The truck belonged to Tarquin Acid, LLC, was in the possession of trucking company Kuhnle Brothers, Inc., and was being driven, specifically, by trucker Drake King. 

The court’s opinion reflects that Tarquin, the acid company, hired a remediation company, and the soil was successfully remediated.  Unfortunately, the heavy equipment used in the remediation damaged the Campbell’s septic system, causing sewage to back up into their house. Gross.  The family had to move out while the damage was repaired.

Tarquin also commissioned an evaluation that concluded that the acid leak was caused by a failed liner inside the tanker.  Tarquin had repaired the liner nine months before the spill, and the evaluator determined that the repair was inadequate.

The Campbells sued the acid company, the trucking company, and the driver.  

Tarquin filed a motion for summary judgment, arguing that the “independent contractor defense” protected it against the Campbells’ claims for negligence, nuisance, and infliction of emotional distress, since Tarquin was not in control of the truck when the spill occurred.  The court held this defense inapplicable, since the Campbell’s claims against Tarquin were based on Tarquin’s own alleged actions – in particular, the manner in which Tarquin repaired the tank liner in 2021.  That Kuhnle Brothers and Mr. King later got involved, said the court, was “irrelevant.”

Layers of third parties between your business and the consumer, or bystander, will not protect you against liability for your own actions if someone down the line is harmed. Tarquin will have to defend on other grounds – which will be complicated by the fact that, as it appears, Tarquin itself commissioned the analysis that determined that Tarquin messed up the liner repair.  Tighter controls on the front end would have made all the difference.