## Facts

- Samson Bandimere owned land with warehouse space that he rented for years to mining-related tenants.
- After a tenant defaulted, Bandimere took possession of the tenant’s property, including mining equipment and approximately 30–40 barrels of chemicals.
- Many barrels were in poor condition (e.g., unlabeled, lidless, corroded, or leaking), and Bandimere was told he likely had an “EPA problem,” but he did not determine what the barrels contained.
- Bandimere contacted Jelen & Son, Inc., a mining-equipment business, to dispose of the equipment and barrels together.
- The parties agreed that Jelen would trade a compressor plus cash in exchange for the equipment and barrels, and Bandimere later agreed by telephone to deliver the items to a Jelen location.
- While Bandimere was transporting the barrels and equipment, leaking barrels drew the attention of the fire marshal.
- Bandimere told the fire marshal that he did not know the barrels’ contents; a hazardous-materials specialist determined the chemicals were extremely dangerous.
- Jelen refused to accept the delivery after learning the materials were hazardous, and authorities treated the barrels as Bandimere’s responsibility.
- Bandimere faced criminal charges for unlawful transportation of hazardous material; the charges were dismissed after he agreed to pay cleanup and disposal costs.
- Bandimere sued Jelen, asserting that Jelen’s refusal to accept delivery made Bandimere responsible for the cleanup; a jury awarded Bandimere damages that included attorney’s fees for the criminal matter.
- The Colorado Court of Appeals affirmed the judgment except for the attorney’s-fees component.
- The Colorado Supreme Court granted certiorari to decide whether hazardous-material cleanup costs from a spill during delivery (before rejection) are recoverable as a seller’s incidental damages under C.R.S. § 4-2-710 (U.C.C. § 2-710) when the buyer fails to comply with the contract.

## Issues

1. Whether, under C.R.S. § 4-2-710 (U.C.C. § 2-710), hazardous-material cleanup and disposal costs arising from a spill during delivery (before the buyer’s rejection) may be recovered as a seller’s incidental damages when the buyer fails to comply with the sales contract.
2. What limits apply under § 4-2-710—specifically, whether the claimed cleanup expenses must be commercially reasonable and shown to have resulted from the buyer’s breach rather than from independent causes.

## Decision

- The Colorado Supreme Court reversed the Court of Appeals’ judgment and remanded for further proceedings consistent with its interpretation of C.R.S. § 4-2-710.
- The court held that Article 2 of the U.C.C. governed the transaction and that the seller’s remedy for incidental damages is defined by § 4-2-710.
- The court concluded that, in principle, hazardous-material cleanup and disposal costs can fall within a seller’s “incidental damages” under § 4-2-710 if they are commercially reasonable and if they result from the buyer’s breach (even though the spill occurred during delivery and before rejection).
- Attorney’s fees incurred to defend criminal charges were not recoverable as incidental damages under § 4-2-710 absent an independent basis for fee shifting.

## Legal Principles

- U.C.C. § 2-710 (C.R.S. § 4-2-710) allows a seller to recover “commercially reasonable” charges and expenses incurred in stopping delivery, in the transportation, care, and custody of goods after the buyer’s breach, in connection with return or resale, and expenses “otherwise resulting from the breach.”
- The “otherwise resulting from the breach” language permits recovery beyond standard shipping and resale expenses, so long as the claimed items are commercially reasonable and sufficiently tied to the buyer’s breach.
- Cleanup and disposal costs for hazardous goods may qualify as incidental damages when they are expenses of transportation, care, custody, or disposition connected to the buyer’s nonperformance and are shown to result from that breach.
- A seller seeking recovery under § 2-710 must show the required causal link between the buyer’s breach and the claimed expenses and must show the amounts were commercially reasonable in the circumstances.
- Criminal-defense attorney’s fees are not part of a seller’s incidental damages under § 2-710 without a statute, contract, or recognized exception allowing fee shifting.

## Conclusion

Jelen & Son, Inc. v. Bandimere holds that the U.C.C. controls the dispute and that hazardous-material cleanup and disposal costs stemming from a delivery-related spill may be recoverable, if at all, as the seller’s incidental damages under C.R.S. § 4-2-710, but only to the extent the seller proves the costs were commercially reasonable and resulted from the buyer’s breach; the Colorado Supreme Court therefore reversed the court of appeals and remanded for proceedings applying the proper § 4-2-710 framework.


Jelen & Son, Inc. v. Bandimere, 801 P.2d 1182 (1990)