CHUBB CUSTOM INSURANCE COMPANY, for itself and as subrogee of, and in the name of Taube-Koret Campus for Jewish Life v. SPACE SYSTEMS/LORAL, INC., a Delaware Corporation Successor Ford Aerospace and Communications Corp.; Ford Motor Company; Sun Microsystems, Inc., a Delaware Corporation; Chevron Corporation; Harman Stevenson Inc., a California corporation doing business as KFC
No. 11-16272
United States Court of Appeals, Ninth Circuit
Argued and Submitted Nov. 8, 2012. Filed March 15, 2013.
710 F.3d 946
Another indication that Congress did not intend to abrogate Montero-Martinez is that our interpretation of the statute does not render
Given these considerations, it is evident that Congress did not intend the 2005 addition of
CONCLUSION
We affirm the dismissal of Ms. Mamigonian‘s District Court Petition for lack of jurisdiction. The District Court‘s dismissal was, by default, without prejudice. Accordingly, barring the discovery of new facts, the District Court now has jurisdiction to hear Ms. Mamigonian‘s claim that USCIS improperly denied her adjustment-of-status application on nondiscretionary grounds. Given the amount of resources that have already been expended on this case by the federal courts, we assume that the government will delay further removal efforts until Ms. Mamigonian has an opportunity to seek relief from the District Court on the basis indicated.
AFFIRMED.
Kirk C. Chamberlin (argued), Chamberlin Keaster & Brockman LLP, Encino, CA, for Plaintiff-Appellant.
Kevin T. Haroff (argued), Daniel K. Kolta, Marten Law, San Francisco, CA, for Defendant-Appellee Ford Motor Company.
Brent E. Rychener, Holme Roberts & Owen LLP, San Francisco, CA, for Defendant-Appellee Sun Microsystems, Inc.
Robert C. Goodman (argued), D. Kevin Shipp, Rogers Joseph O‘Donnell, P.C., San Francisco, CA, for Defendant-Appellee Chevron Corporation.
Scott L. Davis (argued), Gardere Wynne Sewell LLP, Dallas, TX, for Amicus Curiae Chartis Specialty Insurance Company; John G. Nevius (argued) and Alexander
Before: RONALD M. GOULD, and MILAN D. SMITH, JR., Circuit Judges, and KEVIN THOMAS DUFFY, District Judge.*
Opinion by Judge MILAN D. SMITH, JR.; Dissent by Judge GOULD.
OPINION
M. SMITH, Circuit Judge:
Plaintiff-Appellant Chubb Custom Insurance Company (Chubb) filed a subrogation suit against Defendants-Appellees1 for recovery of insurance payments made to its insured, Taube-Koret Campus for Jewish Life (Taube-Koret), for environmental response costs Taube-Koret incurred in cleaning up pollutants released on its property. In the operative Third Amended Complaint (TAC), Chubb asserted subrogated claims under sections 107(a) and 112(c) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Pub.L. No. 96-510, 94 Stat. 2767 (1980), as amended,
of response” related to the removal or remediation of a polluted site, and because the common law principle of subrogation does not apply to section 107(a); Chubb cannot bring a subrogation claim under section 112(c) because it did not allege that Taube-Koret was a “claimant“; and Chubb‘s state law claims are time-barred. Accordingly, we affirm the district court.
FACTS AND PRIOR PROCEEDINGS
Chubb issued an environmental insurance policy to Taube-Koret covering, among other things, remediation costs related to certain pollution incidents on its
A. The Site
The action involves approximately 47 acres of land, which comprises properties located at 3825, 3963, and 3977 Fabian Way and 901 San Antonio Road in Palo Alto, California (in the aggregate, the Site).3 Chubb alleges that Ford Aerospace & Communications Corporation (Ford Aerospace), now known as Defendant-Appellee Space Systems/Loral, Inc. (Space Systems), owned and used the Site from 1959 to 1990 to manufacture and sell communications satellites, satellite equipment, and missile guidance systems. Chubb claims that Ford Aerospace‘s manufacturing activities resulted in the release of Volatile Organic Compounds (VOCs) in the soil and groundwater. Chubb further alleges that the Site was under the control and supervision of Defendant-Appellee Ford Motor Company (Ford Motor), the controlling entity of Ford Aerospace prior to 1990. Ford Motor operated a dewatering system located at 3825 Fabian Way and conducted ineffective remediation activities, which exacerbated the soil and groundwater contamination and caused the migration of hazardous substances onto Taube-Koret‘s property.
On August 16, 1989, the California Regional Water Quality Control Board (Water Board) issued Order No. 89-137, naming Ford Aerospace a discharger of pollutants and requiring it to clean up certain hazardous substances released on the Site. In August 1990, Space Systems purchased the assets of Ford Aerospace from Ford Motor and continued the operations previously conducted by Ford Aerospace. Chubb alleges that Ford Motor expressly agreed to assume liability for compliance with Order No. 89-137 and successive orders. Space Systems currently owns and occupies buildings located at the three Fabian Way properties.
In 1988, Defendant-Appellee Sun Microsystems, Inc. (Sun) acquired 901 San Antonio Road, a 12-acre parcel that became part of the Site. The Water Board named Sun a discharger of pollutants in Order Nos. 93-091, 96-023, and 99-043. The Water Board informed Sun in November 2001 that it intended to oversee the investigation and cleanup of contaminants at 901 San Antonio Road and to recover oversight costs. Chubb alleges that Sun failed
to take adequate measures to remediate or abate further contamination caused by Sun‘s demolition of a vehicle maintenance building previously constructed by Ford Aerospace and known to contain hazardous substances.
In June 2002, Sun sold its 12-acre parcel to Taube-Koret. Chubb alleges that before selling the property, Sun knew about the contaminated soil and groundwater on its property but elected not to take remedial action. The 12-acre parcel on 901 San Antonio Road was later divided into a 4-acre parcel (Parcel 1) and an 8-acre parcel (Parcel 2). Taube-Koret retained Parcel 2 for the purpose of developing an intergenerational community center with an independent and assisted living facility for seniors.
From 1960 to 1977, Defendant-Appellee Chevron Corporation (Chevron) owned and operated a gas service station on a property adjacent to the Site located at 851 San Antonio Road. Chubb alleges that during Chevron‘s operation and demolition of the gas service station, hazardous substances contaminated the soil and spread to the property. Chevron also maintained underground storage tanks containing waste oil and petroleum, which allegedly leaked and spilled into the soil at 851 San Antonio Road.
From 1977 to 2007, Defendant Harman Stevenson, Inc. (Stevenson) owned and operated a Kentucky Fried Chicken restaurant at 851 San Antonio Road. Chubb alleges that during the construction and demolition of the restaurant, Stevenson released hazardous substances left by Chevron, which continued to migrate onto the property.
On November 30, 2006, Taube-Koret purchased 851 San Antonio Road, a parcel adjacent to 901 San Antonio Road, for inclusion in its redevelopment project that involved both properties.
B. Site Cleanup Orders and Remediation
Soil and groundwater beneath Taube-Koret‘s property were found to be contaminated with hazardous substances, including VOCs and polychlorinated biphenyls (PCBs). On June 16, 1999, the Water Board issued Order No. 99-043, which required named dischargers to clean up and abate the effects of hazardous substances found on certain portions of the Site: namely, 3825, 3963, and 3977 Fabian Way and 901 San Antonio Road. On August 12, 2003, after Taube-Koret had acquired 901 San Antonio Road, the Water Board issued Order No. R2-2003-0071, amending its previous order and naming Taube-Koret a discharger based on Taube-Koret‘s June 2002 purchase of the property from Sun. Taube-Koret complied with Order Nos. 99-043 and R2-2003-0071 by performing the requisite environmental investigation, assessment, remedial actions, and removal of hazardous substances on its property. Between January and June 2006, Taube-Koret submitted to the Water Board for approval a Human Health Risk Assessment report, a Site Cleanup Plan (SCP), and a Risk Management Plan (RMP) for the proposed cleanup and development of 901 San Antonio Road. The Water Board approved the SCP and RMP. Taube-Koret removed contaminated soil from 901 San Antonio Road in June and July 2006.
After Taube-Koret acquired 851 San Antonio Road, it submitted a “Workplan for Phase II Investigation” to the Water Board on December 18, 2006, and an Addendum on February 2, 2007, relating to the San Antonio Road properties. On February 7, 2007, the Water Board approved the Workplan and Addendum. On March 14, 2007, the Water Board issued Order No. R2-2007-0023 with respect to Taube-Koret‘s redevelopment project, directing Taube-Koret to implement its
In January 2008, during the excavation and remediation of 851 San Antonio Road, Taube-Koret discovered additional contamination. Taube-Koret submitted a soil removal plan to the Water Board, which approved the plan. Between February and March 2008, Taube-Koret completed the excavation and remediation of contaminated soil on 851 San Antonio Road. Chubb alleges that during subsequent excavation activities, Taube-Koret discovered Chevron‘s waste oil. On March 18, 2008, Taube-Koret removed 550 gallons of waste oil from the ground. Soil samples from the excavation revealed the presence of hydrocarbons and other contaminants. Vapor control systems were installed to minimize the risk of vapor intrusion on the property.
On August 28, 2009, Taube-Koret submitted a detailed completion report regarding all removal and remediation activities completed in compliance with the RMPs and Order No. R2-2007-0023. On September 9, 2009, the Water Board issued written confirmation that Taube-Koret had fully complied with all cleanup orders. Chubb alleges that Taube-Koret incurred $2.4 million in response costs through July 2008 for the removal of pollutants from the San Antonio Road properties.
C. Insurance Policy and Payment to Taube-Koret
Chubb issued Taube-Koret an Environmental Site Liability Insurance (Policy) for Taube-Koret‘s two properties on 901 and 851 San Antonio Road, effective from June 21, 2002 to June 21, 2012. Taube-Koret paid Chubb an initial policy premium of $153,259 for the 901 San Antonio Road property, with a policy limit of $10 million and a $50,000 deductible for each pollution incident. The premium was later increased by an additional $37,966 for coverage of 851 San Antonio Road. The Policy included a provision for the Transfer of Rights of Recovery: “If the insured has rights to recover all or part of any payment we have made under this insurance, those rights are transferred to us.” The Policy also referenced a “pollution incident” at the 851 San Antonio Road property that was excluded from coverage.
On December 4, 2008, Chubb issued Taube-Koret a check for $2.4 million, which “constituted the necessary cleanup costs for responding to the release of hazardous substances” on its San Antonio Road properties, and represented “payment for all necessary Response Costs claims and incurred” by Taube-Koret, “thereby making [Taube-Koret] whole for its soil remediation costs.”
D. Procedural History
On September 23, 2009, Chubb filed suit against Defendants. In the original complaint, Chubb asserted CERCLA claims for cost recovery under section 107(a), subrogation under section 112(c), and contribution and declaratory relief under sections 113(f)-(g). Chubb also asserted supplemental state law claims, including contractual and equitable subrogation as well as statutory and equitable indemnity. The district court dismissed Chubb‘s initial complaint with leave to amend. Chubb subsequently filed two amended complaints, each of which was dismissed by the district court with leave to amend. On January 6, 2011, Chubb filed the operative TAC, renewing CERCLA claims under sections 107(a) and 112(c). Chubb also asserted subrogated state law claims for statutory indemnity under the
STANDARD OF REVIEW
We review de novo the district court‘s dismissal for failure to state a claim under
DISCUSSION
Congress enacted CERCLA in 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub.L. No. 99-499, 100 Stat. 1613, “in response to the serious environmental and health risks posed by industrial pollution.” Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 602 (2009). Through a complex statutory framework, CERCLA provides for the “liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive hazardous waste disposal sites.” Carson Harbor Vill., Ltd. v. Cnty. of Los Angeles, 433 F.3d 1260, 1265 (9th Cir. 2006) (Carson Harbor II) (citation and quotes omitted). CERCLA was intended to promote the timely cleanup of hazardous waste sites, ensure that polluters were held responsible for the cleanup efforts, and encourage settlement through specified contribution protection. Burlington N., 556 U.S. at 602; City of Emeryville, 621 F.3d at 1264. To effectuate these goals, CERCLA “grants the President broad power to command government agencies and private parties to clean up hazardous waste sites.” Key Tronic Corp. v. United States, 511 U.S. 809, 814 (1994).4 The EPA may either clean up a polluted site itself or compel responsible parties to perform cleanups or reimburse the government for EPA-led cleanups.
cleanup costs of an environmental hazard, even if the person did not contribute to the contamination. United States v. Atl. Research Corp., 551 U.S. 128, 136 (2007);
A. Subrogation Claims under CERCLA
Subrogation is a common law doctrine based in equity that permits an insurer to take the place of the insured to pursue recovery from third-party tortfeasors responsible for the insured‘s loss. See Intri-Plex Techs., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1053 n. 6 (9th Cir. 2007). As the party who pays the insured‘s loss, the insurer (the subrogee) “stands in the shoes” of the insured (the subrogor), and succeeds to the insured‘s rights and remedies. See Am. Surety Co. of N.Y. v. Bethlehem Nat. Bank of Bethlehem, Pa., 314 U.S. 314, 317 (1941); In re Hamada, 291 F.3d 645, 649 (9th Cir. 2002). Aside from equitable subrogation, a subrogation right may be expressly created by contract or statute. In re Hamada, 291 F.3d at 649; Sapiano v. Williamsburg Nat‘l Ins. Co., 28 Cal. App. 4th 533, 537 n. 1 (1994). The right of subrogation, however, cannot be contractually enlarged beyond what is granted in equity. Sapiano, 28 Cal. App. 4th at 538. An important limit to the right of subrogation is that it is a purely derivative right—meaning that the subrogee succeeds to rights no greater than those of the subrogor. United States v. California, 507 U.S. 746, 756 (1993); Fed. Ins. Co. v. Union Pac. R.R. Co., 651 F.3d 1175, 1177 n. 1 (9th Cir. 2011).
Chubb seeks to bring subrogated claims under both sections 107(a) and 112(c) of CERCLA. Specifically, Chubb alleges a section 107(a) claim as the equitable and contractual subrogee of Taube-Koret. Chubb also brings a claim for statutory subrogation under section 112(c). The district court dismissed Chubb‘s section 107(a) claim for lack of standing because it determined that an insurance payment is not included within the meaning of “costs of response,”
1. Principles of Statutory Interpretation
In interpreting statutes, our task is to construe Congress‘s intent, and doing so requires us to “begin, as always, with the language of the statute.” Duncan v. Walker, 533 U.S. 167, 172 (2001); accord Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 877 (9th Cir. 2001) (Carson Harbor I) (en banc). We apply the fundamental precept of statutory construction that, unless otherwise defined, “words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42 (1979). But “[w]hen a statute includes an explicit definition, we must follow that definition, even if it varies from that term‘s ordinary meaning.” Stenberg v. Carhart, 530 U.S. 914, 942 (2000); accord Carson Harbor I, 270 F.3d at 878. Moreover, because words necessarily derive meaning from their context, “[i]nterpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006); see also Carson Harbor I, 270 F.3d at 877 (“We look first to the plain language of the statute, construing the provisions of the entire law, including its object and policy, to ascertain the intent of Congress.” (citation and quotes omitted)). Reviewing the whole statutory scheme is particularly important for a law such as CERCLA, which is a complex regulatory statute with “a web ... of sections, subsections, definitions, exceptions, defenses, and administrative provisions.” Carson Harbor I, 270 F.3d at 880. We are, however, cautioned against following a literal interpretation of a statute that would thwart the overall statutory scheme or lead to an absurd result. Wilshire Westwood Assocs. v. Atl. Richfield Corp., 881 F.2d 801, 804 (9th Cir. 1989). Although we presume the application of well-established common law principles to a federal statute, this presumption does not apply “when a statutory purpose to the contrary is evident.” United States v. Texas, 507 U.S. 529, 534 (1993) (citation and quotes omitted). Congress need not “affirmatively proscribe” the common law principle to evince this intent. Id. (citation and quotes omitted).
We first consider whether Chubb may pursue a subrogation action under section 112(c), which expressly provides for subrogation, and then consider whether it may assert a section 107(a) claim in subrogation.
2. Subrogation under CERCLA Section 112(c)
The district court ruled that Chubb could not bring a subrogation cause of action under section 112(c) because Chubb had not alleged that Taube-Koret was a “claimant” under the statute, defined as a person who demands compensation for damages or costs from the Superfund or a liable party resulting from a CERCLA violation.
The issue before us is whether Chubb has alleged that Taube-Koret is a “claimant” under CERCLA. Section 112(c)(2) provides:
Any person, including the Fund, who pays compensation pursuant to this chapter to any claimant for damages or costs resulting from a release of a hazardous substance shall be subrogated to all rights, claims, and causes of action for such damages and costs of removal
that the claimant has under this chapter or any other law.
Applied to this case, the definition of claimant required Chubb to make a written demand for payment for its response costs from potentially liable parties (alleged to be Defendants). If Chubb reimbursed Taube-Koret for the response costs, it could then bring a subrogation claim under section 112(c)(2). Here, however, Chubb has not alleged that Taube-Koret has made such a demand on Defendants, the Superfund, or any other PRP. Chubb only alleges that Taube-Koret has made an insurance claim to Chubb. There is no indication that section 112(c)(2) contemplates this meaning of claimant. In this section of CERCLA, Congress did not simply use the broader term “person,” which the statute also defines; instead, it employed the narrower term “claimant.” Reading section 112(c) to authorize subrogation claims irrespective of whether Taube-Koret qualifies as a “claimant,” as Chubb urges, “violates the settled rule that a statute must, if possible, be construed in such fashion that every word has
some operative effect.” United States v. Nordic Vill., Inc., 503 U.S. 30, 36 (1992); accord Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 167 (2004). An insurer‘s subrogation right under section 112(c)(2) may be narrower than under common law principles of equitable subrogation, but it is within Congress‘s right to impose such limits. See United States v. A & P Trucking Co., 358 U.S. 121, 124 (1958) (“[T]he power of Congress to change the common law rule is not to be doubted.“).
The limit also makes practical and policy sense. Under the provision, subrogation rights vest once an insured makes a claim to either the Superfund or a potentially liable party. This means that the subrogee assumes the insured‘s rights to cost recovery, thereby preventing the insured from obtaining double recovery from the insurance company and any PRPs. Here, there is no such risk because Taube-Koret is not alleged to have made any claim or to have identified any PRP. The requirement that a party first request reimbursement from a liable party, if known, also furthers the overall statutory purpose of identifying PRPs and making actual polluters pay for environmental cleanups. See infra Part A(5) [Statutory Purpose and Public Policy].
Chubb argues that the district court‘s interpretation contravenes CERCLA‘s statutory scheme and legislative history. But Chubb cites no specific statutory language or related materials in support of its position. Instead, Chubb protests that reliance on Howmet Turbine is misplaced because the court in that case was discussing the definition of a claim in the context of a notice requirement for a civil action. This argument has no relevance here. Our holding in Howmet Turbine that there is no notice requirement for a civil action under section 107(a) bears no relationship to the issue at hand, namely the definition of a “claim” within the context of CERCLA, which the court clarified. The district court properly dismissed Chubb‘s section 112(c) claim.
3. Subrogation under CERCLA Section 107(a)
Chubb asserts a CERCLA section 107(a) claim as the subrogee of Taube-Koret. We know of no controlling authority or persuasive circuit authority on the issue of whether section 107(a) authorizes a subrogated cost-recovery action. Thus, we heed the rule that where a common law principle is well-established, we presume that “Congress has legislated with the expectation that the principle will apply except when a statutory purpose to the contrary is evident.” Astoria Fed. Sav. & Loan Ass‘n v. Solimino, 501 U.S. 104, 108 (1991) (citation and quotes omitted); accord Texas, 507 U.S. at 534. To overcome this interpretative presumption to a statutory scheme, Congress need not give a “clear statement” to that effect, Solimino, 501 U.S. at 108, or “affirmatively proscribe” this principle, Texas, 507 U.S. at 534 (citation and quotes omitted). See also Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 1709 (2012) (recognizing that although “Congress is understood to legislate against a background of common-law adjudicatory principles,” “Congress plainly can override those principles,” through, for example, statutory text that evinces a clear intent to the contrary (citation and quotes omitted)). Here, there is no question that subrogation is a well-settled principle. See Am. Surety, 314 U.S. at 317. But, in this case, the presumption in favor of subrogation does not apply under CERCLA section 107(a) because there is
We first turn to the statutory text of section 107(a) to discern congressional intent. Section 107(a) of CERCLA imposes strict liability on four categories of PRPs for the cleanup of environmental hazards, irrespective of whether they directly contributed to the contamination. Team Enters., 647 F.3d at 907 & n. 2;
(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan;
(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan....
Section 107(a) states that PRPs are liable for “necessary costs of response incurred,” which are “consistent with the national contingency plan.”
Applying these definitions, section 107(a) plainly applies to a person who, through his or her own actions, becomes statutorily liable for, or is subject to, the
Our reading of section 107(a) is consistent with our CERCLA jurisprudence. Although there is no controlling authority on the issue of whether an insurer may bring a subrogated cost-recovery claim under section 107(a), we have consistently tracked the express language of section 107(a) in defining the scope of that provision.8
Nevertheless, in support of its position, Chubb relies on the Supreme Court‘s recent analysis in United States v. Atlantic Research Corp., 551 U.S. 128 (2007), concerning the relationship between CERCLA sections 107(a) and 113(f). Amicus Chartis Specialty Insurance Company (Chartis) also contends that Atlantic Research opens the door wide for any person to commence litigation to recover cleanup costs against other PRPs. But Atlantic Research actually undermines, not supports, Chubb‘s and Chartis‘s position. In that case, Atlantic Research Corporation, a lessee of a facility operated by the Department of Defense, retrofitted rocket motors for the United States, and contaminated the soil and groundwater on its site. Atl. Research, 551 U.S. at 133. Atlantic Research cleaned up the site at its own expense and then sought to recover some of the costs by suing the United States under section 107(a). Id. The United States moved to dismiss on the ground that section 107(a) does not allow PRPs, such as Atlantic Research, to recover costs under that provision. Id. at 133-34. The district court dismissed the action, and the Eighth Circuit reversed. Id. at 134.
The issue before the Supreme Court was whether section 107(a) provides PRPs with a cause of action to recover from other PRPs, separate and distinct from section 113(f)(1), which authorizes one PRP to sue another for contribution (1) during or following a civil action under section 106 or 107(a) and (2) after private parties have settled their liability with the Government,
Chubb argues that the Court‘s reading of “any other person” under section 107(a) supports its position that insurance companies, too, should be included as a party under that provision. However, the Court‘s interpretation of “any other person” under 107(a) is limited to “a private party that has itself incurred cleanup costs.” Id. at 139 (emphasis added). The Court made the express distinction that, in contrast to section 113(f)(1), section 107(a) “permits a PRP to recover only the costs it has ‘incurred’ in cleaning up a site.” Id. (emphasis added) (quoting
While the Supreme Court examined section 107(a) as it specifically intersects with section 113(f), the Court‘s distinction between a response cost and reimbursement may be applied to clarify the proper scope of section 107(a) in relation to section 112(c). Under the Court‘s ruling, Taube-Koret, as a PRP, may seek contribution against other PRPs under section 107(a) if it voluntarily cleans up the environmental hazard. But the Court‘s ruling does not authorize a private party who has only incurred reimbursement costs, such as Chubb, to file suit under that provision. Just as a PRP “has not incurred its own costs of response,” by reimbursing other parties’ response costs, Chubb has not incurred response costs solely by virtue of reimbursing Taube-Koret for Taube-Koret‘s response costs under an insurance policy.
In support of their position, Chubb and Chartis also rely on Karras v. Teledyne Industries, Inc., 191 F.Supp.2d 1162 (S.D.Cal.2002), and Basic Management, Inc. v. United States, 569 F.Supp.2d 1106 (D.Nev.2008). But these cases are neither binding on this court nor apposite, and in fact, only undercut their argument. In Karras, the district court held that the plaintiff Trusts incurred response costs necessary to maintain a contribution action under section 113 because it contractually assumed the duty to clean up the polluted site and performed the actual cleanup. 191 F.Supp.2d at 1170. In contrast, Chubb did not engage in any of the remediation activities itself, and the Policy it issued Taube-Koret was not executed for the purpose of cleaning up a polluted site. Rather, the Policy insures Taube-Koret against the risk of liability and provides for environmental cleanup costs it could potentially incur on its property. Chartis also relies on Basic Management, but in that case, corporate PRPs brought a suit for direct recovery and contribution against the government under sections 107(a) and 113(f) to recover a portion of remediation costs. 569 F.Supp.2d at 1112. The district court determined that plaintiffs had not incurred response costs because, under the insurance policy, the insurer “pays the vendors directly and is obligated to do [so] in the future,” in connection with remediation activities. Id. at 1120, 1121. Enabling plaintiff PRPs to obtain contribution in such circumstances would also lead to double recovery, which is barred under CERCLA. Id. at 1123. Here, in contrast, Chubb does not allege that it directly paid for response costs related to the removal and remediation activities on the San Antonio Road properties; rather, it only alleges that it reimbursed Taube-Koret after completion of the cleanup.9
Accordingly, the statutory text of section 107(a) does not support an application of subrogation under that provision. The express language of section 107(a), as interpreted by the Supreme Court and this circuit, is inconsistent with reading that provision as permitting a type of derivative incurment of response costs through subrogation. Because “[i]t is our function to give the statute the effect its language suggests, however modest that may be,” Morrison v. Nat‘l Austl. Bank, Ltd., 561 U.S. 247, 270 (2010), we conclude that Chubb lacks standing to sue under section 107(a) because it has not itself become statutorily liable for response costs under CERCLA.
4. Statutory Scheme
Because we must review the words of a statute “in their context and with a view to their place in the overall statutory scheme,” Davis v. Mich. Dep‘t of Treasury, 489 U.S. 803, 809 (1989), we next examine the interaction of section 107(a) within the context of CERCLA‘s remedial scheme—specifically, its interaction with section 112(c)—to further determine Congress‘s intent. In dismissing Chubb‘s section 107(a) claim, the district court concluded that allowing Chubb to bring a claim under section 107(a) would thwart the remedial scheme under CERCLA because doing so would render “§ 112(c) a nullity.” The district court‘s ruling accords with the rules of statutory interpretation and the Supreme Court‘s analysis in Atlantic Research.
In interpreting statutes, we observe the “cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (citation
Section 112(c) permits an insurer like Chubb to file a subrogation action for reimbursement of costs from PRPs, so long as it complies with the statutory requirements, including the requirement that Taube-Koret be a “claimant.”
by rendering section 112(c) meaningless. In other words, if Congress had contemplated permitting equitable subrogation under section 107(a), there would have been no purpose in enacting a separate, narrower subrogation provision under 112(c), because, in this case, for example, Chubb would have been able to proceed under both sections 107(a) and 112(c) regardless of whether Taube-Koret had made a claim. It is a well-established rule of statutory construction that courts should not interpret statutes in a way that renders a provision superfluous. See Tohono O‘Odham Nation, 131 S.Ct. at 1730; Atlantic Research, 551 U.S. at 137, 127 S.Ct. 2331 (noting that it is inappropriate to “adopt a textually dubious construction that threatens to render the entire provision a nullity“); Solimino, 501 U.S. at 111-12, 111 S.Ct. 2166 (rejecting application of preclusion, a common law principle, to a federal statute because applying the principle would render a section superfluous). In contrast to the reading urged by Chubb, the Court‘s interpretation of sections 107(a) and 113(f) in Atlantic Research allows for complementary remedies because it permits different remedial schemes (i.e., direct recovery and contribution) under distinct procedural circumstances, thus obviating the nullifying effect of Chubb‘s interpretation of section 107(a). See Atl. Research, 551 U.S. at 139, 127 S.Ct. 2331.10
Chartis counters that a subrogation claim is expressly contemplated under CERCLA section 107(e)(2). But Chartis‘s argument is not supported by the plain language of that provision. Section 107(e)(2) provides that “[n]othing in this subchapter . . . shall bar a cause of action that an owner or operator or any other person subject to liability under this section, or a guarantor, has or would have, by reason of subrogation or otherwise against any person.”
The Dissent nevertheless maintains that equitable subrogation should be permitted under section 107(a) because there is no showing that Congress intended statutory subrogation under section 112(c) to be exclusive, and because there is no showing that Congress intended to eliminate consideration of equitable subrogation. But while CERCLA does not expressly proscribe equitable subrogation under section
5. Statutory Purpose and Public Policy11
Because Chubb did not allege that Taube-Koret was a claimant, as expressly defined by CERCLA, it is precluded from bringing a subrogation action under section 112(c). Further, both the plain statutory language and overall scheme of CERCLA indicate that an insurer cannot bring a subrogation action under section 107(a) when it has not itself incurred response costs. As the Supreme Court has observed, “[g]iven the clear meaning of the text, there is no need . . . to consult the purpose of CERCLA at all,” as “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Cooper Industries, 543 U.S. at 167, 125 S.Ct. 577 (quoting Oncale v. Sundowner Off-shore Servs., Inc., 523 U.S. 75, 79, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)); see also United States v. Aerojet Gen. Corp., 606 F.3d 1142, 1151 (9th Cir.2010) (declining to be persuaded by policy arguments where CERCLA statutory provisions are unambiguous). Nevertheless, given the complexity of CERCLA, we consult statutory purpose to see if the plain text of 107(a) and 112(c) clearly is inconsistent with congressional intent or leads to absurd results.
“Our court construes CERCLA liberally to effectuate the statute‘s two primary goals: (1) to ensure the prompt and effective cleanup of waste disposal sites, and (2) to assure that parties responsible for hazardous substances [bear] the cost of remedying the conditions they created.” City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440, 447 (9th Cir.2011) (citation and quotes omitted). Chubb and Chartis advance two main public policy arguments.
First, Chubb and Chartis argue that affirming the district court‘s decision would make it more difficult for insurers to access remedies under CERCLA. This would risk the winnowing of insurance products offered, leaving some markets unserved or underserved. The net result, they argue, would be a decrease in the overall insurance money available to cover remediation costs under CERCLA. This, in turn, undermines the purpose of CERCLA to facilitate prompt cleanup of hazardous sites.
We find this argument unpersuasive. As a preliminary matter, we emphasize that subrogation actions are not foreclosed to insurers like Chubb. Insurers may still avail themselves of statutory subrogation pursuant to section 112(c) and under relevant state law, as long as they comply with specified requirements. Moreover, there is no evidence—and Chubb and Chartis have furnished none—that Congress contemplated funding of environmental cleanups through insurance money. CERCLA establishes a trust fund, commonly known as “Superfund,” which is financed through taxes on certain chemicals and by general revenues. Exxon Corp. v. Hunt, 475 U.S. 355, 359, 106 S.Ct. 1103, 89 L.Ed.2d 364 (1986), superseded by statute on other grounds as stated in Manor Care, Inc. v. Yaskin, 950 F.2d 122, 125 (3d Cir.1991). Under certain conditions, the federal government may use the Superfund to finance cleanup efforts, which it may then replenish by filing suits against PRPs under section 107(a). See Bestfoods, 524 U.S. at 55, 118 S.Ct. 1876;
Furthermore, there is no evidence that insurance companies rely on the availability of CERCLA remedies in issuing environmental policies. Nor is there evidence that insurers depend on CERCLA recoveries to stay in business. An insurer‘s
Here, Chubb assumed the risk that it would have to pay on the Policy and received premium payments (totaling nearly $200,000) to compensate it for assuming that risk.12 Additionally, at present, despite the apparent paucity of cases in which insurers have successfully brought a subrogation claim under section 107(a), the market for environmental insurance companies appears to be robust and growing. See William Pritchard Jr., Pollution Solution, American Agent & Broker (Feb. 2011) (observing that from 1990 to 2010, the number of companies offering environmental insurance products jumped from four to forty, amounting to a thousand percent growth over twenty years); David J. Dybdhal, Environmental Risks and Insurance Market Place Update, American Risk Management Resources Network (March 2009) (reporting that the environmental insurance market place continues to experience exceptional organic growth rates averaging between ten and fifteen percent annually, in contrast to the three percent underlying organic growth rate of the traditional property and liability insurance market), available at http://www.armr.net/EnvMar3-2009.pdf. Thus, the risk of winnowing insurance products appears unsubstantiated.
Second, Chubb and Chartis argue that conditioning a section 112(c) claim on whether the insured has made a claim to either the Superfund or other PRPs places further unnecessary roadblocks that prevent an insurer from perfecting its right to pursue other PRPs for response costs. This not only slows down the remediation process, but also enables actual polluters to receive an undeserved free pass, simply because the remediation costs were paid by the insurance company.
This argument fares no better than the first. It could be argued, as does the Dissent, that placing limits on a broad subrogation right under CERCLA would encourage insurance companies to rewrite their policy and explicitly condition insurance payments on whether the insured brings suit or makes a claim. According
While Chubb and Chartis contend that the condition precedent under section 112(c) would thwart CERCLA‘s purpose, the opposite is true. Requiring PRPs to first seek claims from the Superfund or other PRPs, instead of resorting to insurance money, ensures that PRPs are identified and held accountable for cleanups. PRPs are in a better position to locate and identify other PRPs because they are more knowledgeable about the polluting site and engage in the cleanups themselves, rather than insurance companies who are detached from the property and are not involved in the remediation activities. This furthers CERCLA‘s goal of making polluters pay for cleanup costs. Making polluters pay, in turn, frees up, not reduces, the available insurance money for remediation. Additionally, requiring the insured to pursue a claim before a subrogation right vests under section 112(c) would not be unduly burdensome or have a slowing effect on cleanups of polluted sites. Insurance companies may write their policies in a way as to require reasonable cooperation from their insureds. In the Policy at issue, for example, Taube-Koret already had a duty “to cooperate and otherwise offer [Chubb] reasonable assistance in the defense, investigation or settlement of a claim.”
Moreover, not permitting an equitable subrogation action under section 107(a) and requiring the insured to make a claim before an insurer can pursue a section 112(c) claim does not give a “free pass” to actual polluters. The issue here is not whether liable parties or actual polluters are given a free pass, but whether insurers may pursue a CERCLA claim under 107(a) and 112(c) without having incurred response costs and without its insured first making a claim. Defendants’ liability has
There are further countervailing policy arguments that counsel against an expansive reading of sections 107(a) and 112(c). Aside from the timely cleanup of polluted sites and imposing liability on responsible parties, “[o]ne of the core purposes of CERCLA is to foster settlement through its system of incentives and without unnecessarily further complicating already complicated litigation.” City of Chico, 297 F.Supp.2d at 1235; see also In re Cuyahoga Equip. Corp., 980 F.2d 110, 119 (2d Cir.1992) (“Congress sought through CERCLA . . . to encourage settlements that would reduce the inefficient expenditure of public funds on lengthy litigation.“); City of Emeryville, 621 F.3d at 1264 (noting that CERCLA was designed to ensure, inter alia, “that settlements are encouraged through specified contribution protection“);
Moreover, enabling insurance companies to sue in subrogation under section 107(a) or section 112(c), irrespective of whether the insurer has incurred response costs or the insured has made a claim, creates perverse incentives. It would encourage insurance companies to sue third parties who may or may not be liable for the release of contaminants in the hopes of getting a settlement from those who would rather settle than engage in expensive litigation. It could also create a windfall for insurance companies, since they would not only receive premium payments, but also potentially lucrative recoveries from CERCLA actions.
Finally, allowing insurers the benefit of a broad subrogation right under section 107(a) or 112(c) would be fundamentally unfair because while CERCLA does not bar an insurer from recouping insurance payments through subrogation, it prohibits a contractual assignment of liability. See
In sum, after reviewing the statutory language, remedial scheme, and purpose of CERCLA, along with relevant case law, we hold that an insured must first make a claim to either the Superfund or a potentially liable party before an insurer can bring a subrogation action under section 112(c). We further hold that section 107(a) of CERCLA does not authorize an insurer to assert a subrogation claim under that provision to recover insurance payments when it did not directly incur environmental response costs. The plain statutory language of section 107(a) and its
B. Chubb‘s State Law Claims13
Chubb asserts subrogated state law claims under the California Health and Safety Code and under negligence per se and strict liability tort theories. The district court dismissed Chubb‘s state law claims as time-barred under section 338(b) of the California Code of Civil Procedure, which provides for a three-year limitations period for “[a]n action for trespass upon or injury to real property.” The statute of limitations for injury to property begins to run when the injury to the property occurs. CAMSI IV v. Hunter Tech. Corp., 230 Cal.App.3d 1525, 1534, 282 Cal.Rptr. 80 (1991). This limitation period applies “regardless of the theory upon which relief is sought.” Auto. Ins. Co. v. Union Oil Co., 85 Cal.App.2d 302, 307, 193 P.2d 48 (1948). The parties do not contest that section 338(b) applies to Chubb‘s state law claims. Rather, the dispute turns on when the limitations period begins, and whether, on the facts alleged in the TAC, the district court properly dismissed Chubb‘s state law claims.
1. The Accrual Period under Section 338(b)
Chubb challenges the district court‘s determination that the limitations period under section 338(b) “commences to run when the plaintiff knows, or should have known, of the wrongful conduct at issue.” Angeles Chem. Co. v. Spencer & Jones, 44 Cal.App.4th 112, 119, 51 Cal.Rptr.2d 594 (1996). Because Chubb has not suffered an injury itself, but instead is asserting the claims of Taube-Koret in subrogation, the limitations period began to run when Taube-Koret knew, or should have known, of the wrongful conduct—i.e., the release of hazardous substances on its San Antonio Road properties. See Auto. Ins. Co., 85 Cal.App.2d at 305, 193 P.2d 48 (“[I]t seems only fair, right, just and equitable that one who is subrogated to the rights and remedies of another should be allowed the same time in which to enforce such rights that the law would have allowed the person to whose rights and remedies he succeeds.“); Emp‘rs Ins. of Wausau v. Granite State Ins. Co., 330 F.3d 1214, 1217 (9th Cir.2003) (“Because of the derivative nature of subrogation, a subrogee insurer is subject to the same statute of limitations that would have been applicable had the insured brought suit in his or her own behalf.” (citation and quotes omitted)).
Chubb contends that the statute of limitations under section 338(b) is measured from the date that an insurer pays an indemnity claim, alleged in this case to be December 4, 2008. In support of this proposition, Chubb relies on Smith v. Parks Manor, 197 Cal.App.3d 872, 243 Cal.Rptr. 256 (1987) and Preferred Risk Mut. Ins. Co. v. Reiswig, 21 Cal.4th 208, 87 Cal.Rptr.2d 187, 980 P.2d 895 (1999). But as the district court observed, these cases are inapposite because they
In contrast to both these cases, Chubb does not assert a claim for equitable indemnity arising from a payment it made to a third party on Taube-Koret‘s behalf.14 Rather, Chubb‘s state law claims are premised on subrogated claims for the recovery of payment made directly to Taube-Koret. Thus, the rule articulated in Parks Manor and Preferred Risk is inapplicable here and does not support Chubb‘s position that the limitations period under section 338(b) began at the time it indemnified Taube-Koret. The district court correctly determined that the statute of limitations period under section 338 accrues “when the plaintiff knows, or should have known, of the wrongful conduct at issue.” Angeles Chem. Co., 44 Cal.App.4th at 119, 51 Cal.Rptr.2d 594.
Nevertheless, Chubb insists that its suit is a third-party subrogation action, and that it issued Taube-Koret a third-party liability policy, rather than a first-party loss policy. While Chubb is correct that the Policy includes third-party liability coverage, it also provides for first-party loss, which is the provision at issue in this case. (See Policy, Sect. 1.1 (“We will also pay remediation costs resulting from discovery of a pollution incident . . . on or under the insured site. . . .“).) As alleged in the TAC, Chubb reimbursed Taube-Koret for expenses it incurred in cleaning up the contaminated soil on its property, not a settlement to a third-party for Chubb‘s tortious conduct. Nor did the
2. San Antonio Road Properties
Dismissal of Chubb‘s state law claims on the ground that it is barred by section 338(b) is proper only when “the running of the statute is apparent on the face of the complaint.” Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir.2006) (citation and quotes omitted). Based on the allegations in the TAC, the district court properly determined that Chubb‘s state law claims were time-barred.
Chubb alleges in the TAC that, on August 12, 2003, the Water Board issued Order No. R2-2003-0071, naming Taube-Koret as a discharger of hazardous substances found on 901 San Antonio Road, and that Taube-Koret removed contaminated soil from that site in June and July 2006. Construing these facts in the light most favorable to Chubb, it is reasonable to infer that Taube-Koret knew or should have known of hazardous substances on its property as early as August 2003 and as late as July 2006, when it removed the contaminated soil. There are no allegations that any other environmental response actions occurred. Since Chubb did not file suit until September 23, 2009, more than three years after the removal date, its state law claims are time-barred as to 901 San Antonio Road.
With respect to 851 San Antonio Road, Chubb alleges that it acquired the property in November 2006 for inclusion in its redevelopment project. While it may be inferred from this purchase date that Chubb did not know about the contamination until November 2006 (thus within the limitations period), the Policy suggests otherwise. Under the Policy, which was incorporated in the TAC and all prior complaints, there is an endorsement, dated December 28, 2004, which expressly identifies a “pollution incident” at the 851 San Antonio Road property that was excluded from coverage. The description of the pollution incident references underground storage tanks and product lines at the property, as stated in an environmental site assessment dated September 13, 2004. It is reasonable to infer that Taube-Koret knew or should have known of at least some of the contamination on 851 San Antonio Road in late 2004. Thus, Chubb‘s claims as to this property are also time-barred.
Chubb, however, argues that dismissal was improper because the running date of the statute of limitations period depends on whether the injury was permanent or continuous, which the district court failed to evaluate. Chubb insists that the TAC included allegations of “continuous physical injury” that was finally remediated in 2008, and under California law, the statute of limitations on continuous physical injury does not begin to run until abatement of the injury. Chubb is mistaken. California does not recognize a claim for continuing negligence per se or continuing strict liability. See Mangini v. Aerojet-Gen. Corp., 230 Cal.App.3d 1125, 1149, 281 Cal.Rptr. 827 (1991) (permitting amendment of complaint to allege continuing trespass and nuisance, but finding claims for negligence per se and strict liability time-barred), superseded by statute on other grounds as stated in Makreas v. First Nat‘l Bank of N. Cal., 856 F.Supp.2d 1097, 1102 n. 3 (N.D.Cal.2012).15
CONCLUSION
Our decision here does not mean that insurers cannot bring subrogation claims in environmental matters. On the contrary, insurers’ subrogation rights remain intact under CERCLA section 112(c) and relevant state law provisions. The right to subrogation under CERCLA section 112(c), however, is not an unbridled right. It may be circumscribed by Congress through certain requirements, including the assertion of a claim by the subrogor-insured. Moreover, the common law principle of subrogation does not apply to section 107(a) because there is clear congressional intent to the contrary, as evinced by the language of section 107(a), its statutory scheme in relation to section 112(c), and CERCLA‘s overall purpose. Although CERCLA should be liberally construed to effectuate the purpose of the statute, it may not be extended so far as to fashion a new right under CERCLA that Congress did not intend. Nor, a fortiori, should a right be created by application of a common law principle that not only contravenes the express language and scheme of CERCLA, but also does not further its aims. CERCLA was not enacted to benefit insurance companies; rather, it was enacted to promote the timely cleanup of contaminated waste sites, impose liability on those responsible for polluting the environment, and to encourage settlement through a complex statutory scheme. An expansive application of subrogation to sections 107(a) and 112(c) is inconsonant with those overall goals. If Congress wishes to change CERCLA‘s statutory scheme, it may certainly do so. But it is not the province of the courts to rewrite the statute. CERCLA sets limits and provides express guidance by which a party must abide. The statute of limitations under state law also required Chubb to file suit in a timely manner if it desired relief under state law. Chubb failed to do so here. We thus affirm the district court.
AFFIRMED.
I respectfully dissent. The majority provides a reasoned explication of why statutory subrogation under section 112(c),
“Equitable subrogation is a broad equitable remedy,” Mort v. United States, 86 F.3d 890, 894 (9th Cir.1996), that for centuries has been recognized by courts. See generally M.L. Marasinghe, An Historical Introduction to the Doctrine of Subrogation: The Early History of the Doctrine II, 10 Val. U.L.Rev. 275 (1976). It “arose as a ‘creature of equity’ and ‘is enforced solely for the purpose of accomplishing the ends of substantial justice.‘” Hamada v. Far E. Nat‘l Bank (In re Hamada), 291 F.3d 645, 649 (9th Cir.2002) (quoting Memphis & L.R.R. Co. v. Dow, 120 U.S. 287, 302, 7 S.Ct. 482, 30 L.Ed. 595 (1887)). A good explanation of the equitable right of subrogation can be found in Dobbs‘s treatise on the Law of Remedies:
Subrogation simply means substitution of one person for another; that is, one person is allowed to stand in the shoes of another and assert that person‘s rights against the defendant. Factually, the case arises because, for some justifiable reason, the subrogation plaintiff has paid a debt owed by the defendant. Having paid the defendant‘s creditor, the plaintiff stands in the creditor‘s shoes, becomes the real party in interest, and is entitled to exercise all the remedies which the creditor possessed against the defendant.
1 Dan B. Dobbs, Law of Remedies: Damages-Equity-Restitution § 4.3(4), at 604 (West Publishing 2d ed. 1993) (quotations and footnotes omitted). Applying this “well-settled rule” of equitable subrogation, I would hold that we should recognize the right of an insurer to equitable subrogation once it has reimbursed a landowner for remediation expenses that in fairness should have been borne in part by others. See United States v. Bestfoods, 524 U.S. 51, 63, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998) (applying a “well-settled rule” of corporate common law in the CERCLA context); see also Atchison, Topeka & Santa Fe Ry. Co. v. Brown & Bryant, Inc., 159 F.3d 358, 362-63 (9th Cir.1998) (applying “traditional rules” of successor liability under CERCLA).
Taube-Koret paid cleanup expenses that should have been borne in part by Ford, Chevron, Sun Microsystems, Inc., and others who polluted and contaminated the property. The majority reasons that because Chubb reimbursed Taube-Koret‘s cleanup expenses and did not directly incur those costs, it does not meet the definition of “any person” under section 107(a).
It should not matter that the statutory subrogation remedy elements are not satisfied under section 112(c). There is no showing that Congress intended this type of subrogation to be exclusive—no showing that Congress intended to eliminate consideration of equitable subrogation. See Bestfoods, 524 U.S. at 63, 118 S.Ct. 1876 (explaining that a federal statute does not “abrogate a common-law principle” unless it “speak[s] directly to the question addressed by the common law” (quoting
The district court and the majority give credence to the argument that permitting a subrogation claim under section 107(a) renders section 112(c) a nullity, but I disagree. In United States v. Atlantic Research Corporation, the Supreme Court recognized that CERCLA allows for complementary remedies that provide causes of action “to persons in different procedural circumstances.” 551 U.S. 128, 139, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007). Sections 112(c) and 107(a) provide for such complementary remedies. Allowing a subrogation claim under section 107(a) gives Chubb a remedy where one is otherwise not permitted under section 112(c) and where subrogation serves the purposes of CERCLA. If Taube-Koret had made explicit claims against Ford, Chevron, and Sun Microsystems, Inc., and Chubb had then reimbursed a “claimant,” there would be no question that Chubb would be entitled to proceed under section 112(c). But where an insurance company reimburses an insured party that incurred cleanup costs but has not asserted claims against potentially responsible parties, in my view, the proper remedy is under section 107(a). To deny this is detrimental to CERCLA. It is the actions of the insured, and not the insurer, that determine the procedural circumstances of the subrogation claim and dictate the proper statutory remedy. See Atl. Research, 551 U.S. at 139, 127 S.Ct. 2331. That there is some overlap between these two remedies is not fatal. See id. at 139 n. 6, 127 S.Ct. 2331. In either event, there should be a subrogation remedy available to an insurance company that has paid for a cleanup by reimbursing its insured.
The scheme of law adopted by the majority may be able to decide this particular case by characterizing the actions of the insurer‘s legal counsel as too little and too late. This view is inaccurate and reflects the majority‘s failure to implement a fair procedure of subrogation in a way that is called for under section 107(a). Also, in the long run, one cannot expect insurers to indemnify companies for pollution cleanup costs without charging an insurance premium reflecting the risk of monetary loss and that risk will necessarily increase if the insurer cannot seek contribution from prior polluters and property owners. Either insurance premiums for an organization like Taube-Koret will go up dramatically, raising questions on feasibility of insurance, or the policies will condition payment on a prior claim by the insured against other contributors of the pollution. This