Hatco Corp. v. W.R. Grace & Co.-Conn.

using Stanley’s practice current of did tends But the court information. amount of numbers, larger part for its conclu T50 as of model always articulate the basis not Polaroid factors regarding opinion, the various is reversed. sions described all factors relevant it considered or whether appears instances it In several

to the case. weight gave undue

that the district strength, and the mark’s question of factors as Polaroid error —other

viewed—in strength. mark’s See 870

indicative (“sophistication purchas of

F.Supp. at 430 finding support limited to a factor “lends

ers” a factor in deter strength”; “good faith” CORPORATION, Appellee HATCO mark). mining strength factors are that the Polaroid We have said v. not, course, and should not be “exclusive” CONN., Corpora & W.R. GRACE “mechanically.” Paddington, CO. - applied Connecticut, Defen tion of the State of dispositive, single factor is F.2d at 584. No Third-Party dant and Plaintiff certainly arise where a factor and cases to the facts at hand. See Orient is irrelevant v. Trading Dep’t Express Ltd. v. Federated (2d Cir.1988) Stores, Inc., (as ALLSTATE INSURANCE COMPANY (district “slavishly recite the courts need and successor to Northbrook Excess eight litany all Polaroid factors each Employ Surplus Company); American case”). every upon But it is incumbent and Company; ers’ Insurance Certain Un engage in a judge to deliberate the district Lloyd’s, London and the derwriters at factor, and, if a factor is review of each Companies; London Market Commer case, why. inapplicable explain See Company; cial Union Insurance Conti Medical, (analysis 753 F.2d at Thompson Casualty Company; Pacific Em nental necessary of all to determination factors Unigard ployers Company; Insurance suit). steady infringement application Security Company, Insurance Third- proper develop- to the Polaroid is critical Party Defendants only for it ment of trademark when and; applied consistently Polaroid factors are clearly time that the relevant dis- over configura- factual tinctions between different COMMERCIAL UNION INSURANCE emerge. Litigants are entitled to tions can COMPANY, Third-Party Defendant guidance this common- the illumination Fourth-Party Plaintiff affords, process appellate courts de- law pend performance on it for the of their as- Friendly signed Judge An task review. COMPANY, MARYLAND CASUALTY

recognized, “problem determining how Fourth-Party Defendant and ... protected far a valid trademark shall be Fifth-Party Plaintiff long vexing and does not become has been Polaroid, years.” easier of solution with the efficacy of the multi- at 495. AMERICAN CENTENNIAL INSURANCE Judge Friendly wisely approach factor COMPANY; Evanston Insurance Com set out to address this difficult situation de- pany; Company; careful, First State Insurance thorough, pends on and consistent Casualty Company; Gibraltar Hartford application of the doctrine district courts. Company; Casualty Certain Insurance Ill Lloyd’s, Underwriters at London and the Companies; above, Midland judg- London Market forth For reasons set Company; court, Insur as it ex- Insurance Reliance ment of the insofar district Company; Republic Insurance ance Indemnity Company; Royal

Company; Indemnity,

Transport Mission a/k/a Company; Insurance Twin

American Company,

City Fifth- Fire Insurance

Party Defendants Conn., Appellant. &

W.R. Co. -

No. 94-5276. Appeals,

United States Court

Third Circuit.

Argued Jan. 1995. July

Decided Rehearing Aug. Petition for

Sur

403

Anthony (argued), Marchetta J. Robert G. Sher, Pitney, (argued), Rose Elizabeth J. Szuch, Morristown, Hardin, NJ, Kipp & for appellant. Daniel,

Aubrey (argued), Mog- III Paul M. in, Roth, Braun, Eric M. H. Evan Dane J. Butswinkas, Sencer, Stephen D. Williams & DC, Connolly, Washington, Robert M. Good- man, Morrissey, Carpenter, Bennett & New- ark, NJ, appellee. for HUTCHINSON, MANSMANN, Before: WEIS, Judges. Circuit THE OF COURT OPINION WEIS, Judge. Circuit case, buyer plant In of a chemical the seller under state law and the has sued Response, Comprehensive Environmental Liability Compensation, and Act of 1980 9601-9675, (“CERCLA”), §§ U.S.C. abating costs incurred contamination court, applying The district federal site. sale common held that the clearly parties did not reheve between the and, duty the seller from a to contribute trial, buyer. judgment entered after a governs that state the inter- We conclude law requires consid- pretation of the contract ambi- evidence to resolve eration of extrinsic agree the district court guities. We jury parties are not entitled to $9,269,892.41, plus prejudgment interest Accordingly, we will CERCLA. trial under $12,189,778.16. buyer $2,919,885.75, for a total of judgment favor vacate hearing on the contractual for a district court proceedings and remand before the published issues. chronicled in a series of have been opinions.2 Conn, ac- & Co.— W.R. manufacturing business quired a chemical Although unresolved claims between Fords, oper- Jersey. Grace owned (including potential insurance parties remain it until 1978 when sold plant ated coverage), judgment final the court entered that, turn, straw-parties operation to the 54(b). pursuant to Fed.R.Civ.P. Grace has Corpora- to Hateo the business transferred issues, raising appealed, a number of one tion, was and is Alex sole shareholder whose appeal. dispositive we find is of this which Kaufman.1 at the Fords site for Kaufman had worked I. presi- twenty years and served as the over there from chemical division dent of Grace’s CERCLA, Under U.S.C. At the time of until the sale 9607(e), “agreements indemnify § or hold sale, polluted was the manu- the site [private] harmless are enforceable between that had been carried on facturing operations against government.” parties but not contamination oc- years. Additional over the Improvement Corp. Land & v. Celotex Smith subsequent years when during the curred (3d 86, Cir.1988); Corp., 851 F.2d 89 accord facility. Hateo owned East, 206, Corp., Inc. v. Mead 34 F.3d Beazer authorities, from state pressure Under — (3d denied, U.S. -, Cir.1994), 211 cert. cleanup operations at the Hateo undertook (1995). 1696, 131 L.Ed.2d 559 Al 115 S.Ct. for and then reimbursement site sued though private agreements these cannot nul liability against alleging expended, sums lify underlying liability, party’s CERCLA Jersey and the New under CERCLA Grace they are effective to shift the ultimate finan (“Spill Act Spill Compensation and Control Beazer, 211; cial 34 F.3d Mardan loss. Act”), §§ 58:10-23.11 to -23.24. N.J.Stat.Ann. Music, Ltd., 1454, Corp. v. C.G.C. 804 F.2d respon- Contending that Hateo had assumed Cir.1986). (9th 1459 agreement of sibility cleanup in the 1978 sale, summary judgment. moved for Grace required to contends that it is not same issue. a cross-motion on the Hateo filed cleaning up Fords reimburse Hateo for Grace’s motion on The district court denied agreement of sale be site because Hatco’s, concluding granted that issue and parties, Hateo assumed the obli tween law, did agreement, as a matter of that the gation satisfying environmental obli from Hatco’s unambiguously not shield Grace gations. Following opinion earlier in Mo its claim for reimbursement. Inc., bay Corp. Allied-Signal, F.Supp. 761 v. (D.N.J.1991), the district court held 345 trial, found nonjury the district court duty indemnify in order to create a under responsible under the both Grace and Hateo law, common “an unmistakable intent federal Jersey Spill Act and CERCLA. unambiguous expressed must to do so be cleanup apportioned the costs between clearly implied.” Corp. Hatco v. terms or be on a number of companies based two Conn., 1309, F.Supp. Grace & 801 judgment favor W.R. factors and entered Co. - (D.N.J.1992). amount of 1318 against Grace Hateo and Conn., 1994); Corp. Hatco v. W.R. Grace & no distinction between 1. The have made Co. - (D.N.J.1994); corporate predecessors F.Supp. Corp. to whom its Hatco v. Hateo and 849 931 originally plant. Conn., We will sold the F.Supp. Grace had 1049 W.R. Grace & 836 Co. - original if it were the (D.N.J.1994); therefore treat Hateo as (D.N.J.1993), modified, F.Supp. 849 987 purchaser. Conn., Corp. v. W.R. Grace & tco Co. - Ha (D.N.J.1992); F.Supp. Corp. 1334 Hatco v. 801 Conn., Corp. Grace & 859 2. Hatco v. W.R. Co. - Conn., F.Supp. 801 1309 W.R. Grace & Co. - (D.N.J.1994); F.Supp. Corp. Hatco v. W.R. 769 (D.N.J.1992). Conn., (D.N.J. F.Supp. 987 Grace & 849 Co. -

405 (2d Inc., 425, appeal Holdings, 959 F.2d 430 However, months after this Cir. some 1992) law); taken, among agreements (applying New York General we held was Mills, addressing Corp., se the alloca Inc. v. Filmtel Int’l 195 A.D.2d parties inter private (1993). 820, are responsibility for CERCLA claims tion of N.Y.S.2d state, by incorporating interpreted to be However, law, agreement under state federal, Dev. v. Boise Cascade law. Fisher Co. may accurately be more here characterized (3d Cir.1994); rp., 37 F.3d Co release, as a release. “To constitute a Corp., 91 n. Tippins Inc. v. USX writing expression pres must contain an of a Beazer, Cir.1994); 34 F.3d at 215. We Carpen ent intention to renounce a claim.” that, appropriate lan given have also decided Machold, ter v. 86 A.D.2d 447 N.Y.S.2d pre-CERCLA agreement can be guage, a (1982) (citation omitted). par 46-47 “No arising after the statute effective claims drafting ticular form need be used in a re Fisher, 110; effective. 37 F.3d at became lease____” Plumbing Heating, Pratt & Inc. Beazer, 34 F.3d at 211. Mastropole, A.D.2d N.Y.S.2d Indeed, “[a]ny words agreement pro before us The sale used, long they be manifest the relea interpreted are to vides that its terms be discharge. parties’ sor’s intent to intent that state’s the laws of New York. Under scope will determine the of a release.” Bank proof assignment of the burden Am. Nat'l Trust & Sav. Ass’n v. Gillaiz of eau, depends upon whether (2d Cir.1985) (apply or as question is characterized as “release” law) (citations omitted). ing New York “indemnity” e.g., Compare, contract. Painting Corp. v. In Travelers Structural governed princi Releases are 743, 451 demnity 88 A.D.2d N.Y.S.2d ples Mangini McClurg, of contract law. (1982) (burden establishing intent 508, 556, 511-13, 24 249 N.Y.2d 301 N.Y.S.2d releasor) assigned to parties is Walsh (1969). 386, agree an N.E.2d 389 Whether Diesel, Inc., 653, 143 A.D.2d 533 v. Morse ambiguous question ment is is a of law for (1988)(burden 80, establishing N.Y.S.2d 83 Assocs., court, the Inc. Gianconti W.W.W. indemnitee). assigned parties is intent eri, 157, 440, 443, 11 N.Y.2d 565 N.Y.S.2d 566 (1990), 639, by to be determined N.E.2d 642 us, In district the case before the looking to the document as a whole rather appeal court and the have used the in than to or clauses isolation. sentences “indemnity” “release” inter terms Press, State, 434, Inc. v. 37 N.Y.2d Williams standard, Mdbay changeably. the Under 72, 76-77, 299, 302 335 N.E.2d 373 N.Y.S.2d difference, perhaps that made no but it is (1975). ambiguity in the document If an in otherwise under Beazer. As we remarked agreement prevents a firm conclusion that context, the effect of a release is a CERCLA release, is extrinsic evidence be intro beneficiary agreement to shield the question of fact. Gil duced to resolve that liability responsi rather than to shift its from 713-15; laizeau, see also 766 F.2d at Green bility to another as is the case of a contract Games, Inc., Olympic Placid 1980 Lake Fisher, indemnify. 37 F.3d at 112. (1989) 82, 860, 84 147 A.D.2d 538 N.Y.S.2d in specifies York law that an (circumstances issue of fact sufficient to raise demnity strictly agreement be construed and permit extrinsic evidence parties’ as to intent intent to in that a clear and unmistakable release). interpretation of a as aid to demnify in the contract. be manifested Auth., in Transp. A factor to be considered deter Metropolitan Heimbach v. 657, 392-93, 657, agreement mining whether an is “release” N.Y.2d 553 N.Y.S.2d (1990). “indemnity” type of claim assert parties’ If or an is the 553 N.E.2d the litigation. “An action for writing, from the the court ed intent is not clear indemnity agreement does not breach of an must consider extrinsic evidence. Com damage party] has suffered Equip., [a arise until mander Oil v. Advance Food Serv. Cir.1993) v. Stan Mar of the breach.” Eliseo (applying New reason Assocs., Inc., Assocs., law); A.D.2d golin Inc. v. ANC York Seiden (citations (1991) (citation Id. omit- proof on that issue.” omit- of 831, 831-32 N.Y.S.2d ted). ted).3 Indus., Inc., 423 F.2d In Bouton v. Litton II. (3d Cir.1970), York interpreted New we survey of New York With this the sale of construing a contract for law dispute at turn our attention we now agree- distinguished between business agree language in the The relevant hand. assumption. those of indemnity and ments of hereby assumes “[Hateo] ment is: the contract language of that the We held obligations discharge” ... certain agrees to assumption not of indemnifica- was “that agreement has been invoked Grace. liability, assumes a and that “one who tion” Grace, expended sums has not which agrees distinguished from one who cleanup no claim for them. and makes it, obligation of indemnify against takes Hence, indemnity at has no basis for at 651. himself....” Id. transferor unto reality seeking to shield point, but in for reimbursement. from Hatco’s claim itself may dic Although canons various it attempting sums Hateo is to recover agreement is to be ambiguous that an tate liability. asserted spent to meet Grace’s parties,4 such against construed one enforceable, However, agreement is it if the consequence when the of little rules are mat payment acts to relieve Grace “negotiated question has been agreement taken over itself when ters that Hatco had representatives length at arm’s between agree assumption parties executed the sophisticated business entities.” two Indeed, in 1978. as the district ment Co., 42 Sibley, Lindsay & Curr Hogeland v. out, to the extent a document of pointed 397 N.Y.S.2d N.Y.2d asserting “prevents purchaser from nature seller, N.E.2d against claim a CERCLA a ‘release.’” agreement can be viewed as proof on the Hatco, The burden rests F.Supp. at 1317. We are ac court, general language to establish that of the district releasor cord with this comment “or as a re meant to be limited shall treat the document was and we intent of lease. represent otherwise does parties.” Mangini, 301 N.Y.S.2d cases, diversity the burden of 390; Corp. also Olin v. 249 N.E.2d at see law, proof a of substantive Blair is matter 10, 16 Corp., 5 F.3d Consolidated Aluminum 296, 692 F.2d 299 Manhattan Ins. Life Cir.1993) law); York (applying 4 New n. (3d Cir.1982), by Fed. and is not controlled

Mardan, (applying at 1462 New 8(c), governs pled as which releases R.Civ.P. law). proof of is not York burden “[T]he See Palmer v. affirmative defenses. Hoff of necessary concomitant of the burden man, 117, 477, 482, 109, 63 87 318 U.S. S.Ct. defense. Hill St. pleading” an affirmative (1943). recognize that the L.Ed. 645 We 72, 499 Hosp., 67 N.Y.2d N.Y.S.2d Clare’s case, diversity but present dispute is not a (N.Y.1986) 823, 904, 911, N.E.2d chosen to have because the here have (citations omitted). the of “Thus burden agreement interpreted in accordance their validity a release on the proof as to the of is apply York we will that state’s with New it, pleads but a releasor who proof. defendant who of See substantive law on the burden Mardan, Olin, 4; 804 F.2d at limit of a release because 5 F.3d at 16 n. seeks to the effect that the terms of burden 1462. Because it contends mutual mistake has the of a claimed York, ambiguous example, con Although indemnity arise 4. For in New does not a claim for strongly against usually tract is construed most obligation pay prime to been estab- until the has party the other has had no the drafter when lished, third-party be com- some actions Sassower, preparation. Jacobson v. voice in the judicial economy before menced the interest of in 381, 382, 991, N.Y.S.2d 66 N.Y.2d Assocs., technically ripe. they Mars Inc. v. are (1985). contrast, By a re N.E.2d Fund, City 126 A.D.2d New York Educ. Constr. strongly against the releasor. lease is construed most appeal dism'd 513 N.Y.S.2d Terminal, Inc. v. LeChase Mt . Read interlocutory, N.Y.S.2d 70 N.Y.2d Corp., A.D.2d 396 N.Y.S.2d Constr. (1987). 514 N.E.2d 391 (i) unclear, obligations respect we that sales or- agreement conclude the are Business, accepted by ders the Chemical require Grace to bear proper course is Liabilities; other than Excluded bearing producing evidence on the burden of (ü) obligations goods and services Hateo, though, as the ambiguity. releasor Business, ordered the Chemical other release, seeking effect of the to limit the Liabilities; than Excluded persuasion the effect burden of bears (in) obligations liabilities and with re- agreement. of that spect capital expenditures described any Request Capital Appropriation ap- agreement, reviewing the the dis proved with [Grace’s] accordance cus- trict court used indemnity.” vant when matters extrinsic lated as other cases dence parties. to the require words, writing establish simply, Hatco, indemnity inquiry. the admission to the very “No district court ambiguous, disprove strict criterion articu agreement clear F.Supp. at expression, the intent of extrinsic opined New are irrele However, 1321. In York evi no which Excluded ment tomary procedures by arising after Chemical brook (v) (iv) Chemical other ^[5] group other Alex date has Liabilities; Business, liabilities Kaufman obligations Business, actual [Grace] ordinary whether Closing, and or David G. senior present personal or and liabilities management course obligations any manage- prior thereto; other to or than Sea- of knowledge awareness at the and date of agreement that Hateo exe- assumption than Agreement, the Sale other Excluded incorporated specifically sale cuted Liabilities; pertinent agreement part: read in and (vi) obligations other liabilities and $5,000 per do which not exceed item and hereby agrees assumes “1. and [Hateo] $50,000 aggregate, other Ex- than pay discharge due all and course added). (emphasis cluded Liabilities.” attributable to the [Grace] liabilities The “Excluded Liabilities” Hatco did listed A to Chemical Business Exhibit specific not assume listed in were detail instrument, hereby [Hateo] as- categories, including fell into a number perform all agrees sumes and and fulfill suits, personal pending potential two law obligations attributable to the of [Grace] claim, injury “[alleged pollution and the Business____ Sling May Tail Brook on or about 1977.” Chemical “Chemical was defined “that business” agrees indemnify [Hateo also] presently conducted [Grace] business and hold harm- [Grace] [Grace] and to save comprising plas- manufacture and sale of damage, against less all synthetic ticisers and lubricants ... liability, arising ... of or loss out [or] Fords, Jersey.” The sale by duly resulting from failure [Hateo] language specifications the and set tracked any agreement perform to or fulfill set agreement. in assumption out the forth in this instrument.” A. obligations of Grace attrib- Liabilities pollution that the Grace contends

utable to chemical business and assumed the phrase Fords included within the the site is by part Hateo in relevant were defined obligations arising in “other and liabilities ordinary of the Chemical Busi the course follows: scope the of clause ness” and thus is within “(b) following assumes] the obli- [Hateo (iv). rejected argu that The district court existing gations date and liabilities the Haynes v. & ment and relied on Kleinewefers in ease Closing, of the or the of those (2d Cir.1990) Corp., for Lembo F.2d 453 (iv), arising in clause thereafter case, described Appeals In the of support. that Court that contractual for the found Second Circuit purchase pal negotiators the analyst Hateo in its as a financial at the for Seabrook served facility plant princi- in as one of Fords at one time and the respects in some to 1977” for term “Excluded Liabilities” provisions—identical indemnity in an every appears at hand but that in those of the case in instance where term Haynes, unambiguous. (b), setting facially argu- paragraph appealing —were sought to recover (iv) a business purchaser of only “accept- ment that clause relates to personal paid it to settle the amounts had orders, services, goods ordered ed sales injured injury employee who was claim of its apart. capital expenditures” falls We previously by machine owned a defective phrase “ordinary conclude that the course purchas- The Court held that the the seller. Business,” together with the the Chemical indemnity because the er was entitled reference to an claim the environmental ordinary injury not occur “in the course did section, excluded liabilities creates an ambi- business,” the contractual a factor that scope assumption guity as to the of the required prerequisite as a to ab- language agreement. Consequently, extrinsic evi- solving the seller. properly discern dence must be admitted court, relying general Haynes on the parties. the intent construction, ejusdem generis, con- rule argument, sought To its Grace bolster “[following that an enumeration of cluded sale, during negotiations that show particular classes ‘other’ must be read as attempted agreement Hateo to include like,’ only such and includes others of ‘other express language excluding li- environmental (quoting like kind and character.” Id. at 457 ability, but that refused to do so. Al- (5th ed.1979)). Dictionary Black’s Law though the district court held that extrinsic phrase The court thus construed the “other permissible, it evidence was nevertheless obligations arising in and liabilities the ordi- did review contention and reasoned Grace’s including nary course of matters business” “improperly [sought] that it to reverse the previously similar to those enumerated in the Hateo, expression burden of of intent.” paragraph same as orders for sales —such F.Supp. at 1321. The court concluded that seller, accepted that had been orders manifesting expression a clear burden services, goods capital expendi- However, of intent must fall on Id. Grace. categories tures. Id. at 458. Because those as we have set out our discussion New resulting quite were dissimilar to an incident demonstrating York the burden of injury, in personal the court held that intent of the falls on Hateo because it employee’s among claim was not included attempting is the releasor to limit the effect obligations buyer that had undertaken. of the release. language “fail[ed] clearly establish an unmistakable intent B. obligation indemnify.” assume an Id. Hat- The district court also reviewed assuming personal injury Even to an agreement’s co’s contention that the defini- employee ordinary does not arise in the Business,” referring tion of “Chemical business, course we nevertheless differ conducted,” presently would not “business Haynes court’s the district view that manufacturing arising include claims governs the case at hand. There are two operations that discontinued some had been present dispute crucial factors that set the time before the sale. The court remarked First, apart Haynes. disposal from that although agreed position it with Hatco’s operation plant of waste in the of a chemical point, arguments at on the “Grace’s best lead very day-to-day much a function of the meaning to the conclusion that the of ‘Chemi- Second, operation of the business. unlike the ambiguous____” Id. cal Business’ is We inju- personal lack of a relevant intimation of exists, agree ambiguity that an and on this ry Haynes agreement, claims in the also, point extrinsic evidence should have hand, specific important one at is a there been admitted.

reference to at one least environmental Sling pollution claim—the Tail Brook inci- C.

dent. (v) provides that Hateo phrase “Alleged pol- If Clause would one Substitutes the obligations Sling May lution of Tail Brook on or assume “other liabilities and of about

409 relationship ... legal [the] existed until en- Kaufman or David G. Seabrook which Alex CERCLA,” despite actment of that chro- knowledge and but personal present has actual nology, pre-CERCLA agreements were held Agree- the date of the Sale at awareness effective. of actu- extent those individuals’ ment.” The disputed, knowledge is there seems al but that The district also commented they of that aware forget were both be little doubt “Grace seems the CERCLA problems in potential begin environmental in issue were actual or liabilities its liabilities Hateo, earlier, Al- unsuccessfully F.Supp. 801 at 1321. with.” As noted Hateo though these environmental liabilities were specific in the agreement insert sought to obviously attributable to Grace before the liability risks. of for such disclaimers 1978, we find the court’s statement to sale that CERC- court concluded The district later be irreconcilable its conclusion not the time of LA did exist at liabilities “existing” identical these liabilities were (v) therefore, and, did not estab- clause sale Indeed, closing on the date. See id. at 1322. As the Hateo had assumed them. lish that step determining first whether Hateo situation, “liability” neces- court viewed assumed Grace’s liabilities is whether Grace legal relationship “a between sarily indicated had liabilities be assumed. it is party party and the to whom liable similarly The court that “[with remarked court, According to the Id. at 1322. liable.” statutory or to im out a common law basis legal relationship ... until existed “No such pose responsibility, ... it is too far of a Thus, Id. enactment CERCLA.” [the] stretch to characterize the existence of the necessary facts for CERCLA existence ‘liability.’” as a But had facts Id. liability in the court’s view was not “sufficient already potential incurred lia environmental ” knowledge Id. ‘liabilities.’ to constitute state and bilities under federal law before reasoning is not consistent with This closing assumption agreem date pronouncement that a broad court’s earlier responsible ent.7 Grace was under state liability pre- assumption of environmental statutory provisions for the common-law post- would for dating CERCLA be effective to the abatement of environmental harm That con- claims. Id. at 1317-18. CERCLA resulting past Fords site hazardous Fisher, clearly correct. See clusion was State, disposal practices. Dep’t waste 1; 211; Beazer, n. at at 110-11 34 F.3d F.3d Corp., Protection v. Ventron 94 N.J. Envtl. Hercules, Inc., v. Philadelphia 150, Elec. Co. (1983), Supreme A.2d Cir.1985).6 Jersey In those 309-10 that “the pointed Court of New out here, change cases, Spill such Act not so much substan “[n]o [did] as well as one Co., (10th Hardage, Joslyn Mfg. Koppers Co. 40 F.3d States v. 985 F.2d also See Cir.1993) (1972 (5th Cir.1994) (two agreements dated and 1977 trans- 754-55 leases sufficiently sufficiently port waste broad so were so as to hazardous were 1942 and 1949 broad costs, costs, cleanup responsibility responsibility cleanup "even transfer for for as to transfer spe- sufficiently preclude yet as to though liability ... was not narrow so environmental cross-indemnification) law); contemplated (applying cifically at contract- Oklahoma the time of Int’l, law); Forging Equip. (applying Inc. v. ing") Louisiana Kerr-McGee AM International Cir.1993) (1979 (6th Corp., Corp. v. Iron 14 F.3d 982 F.2d Chem. & Metal Lefton (7th Cir.1994) (1972 necessary agreement agreement, remand to deter- was but was 326-27 responsibility parties contemplated sufficiently whether environmen- broad so as transfer mine costs, agreement agreement despite cleanup that the covered claims tal liabilities fact for nuisance,” apparently no environmental "pollution made mention of and state environmental liabilities) law); Corp. years (applying Polaroid enacted two before the Ohio statute was Olin, Inc., (NJ), contracted) law); (applying 5 F.3d Envtl. Servs. 416 Mass. Illinois Rollins (1976 (1993) (1974 agreement agreement sufficiently broad was N.E.2d 15-16 responsi- sufficiently cleanup broad transfer responsibility costs was so as to so as to transfer costs, liabilities") cleanup parties were (applying bility "the unknown "even to future law); changing regulations Boyd [environmental] Gas John S. Co. v. Boston aware New York Co., claim") (1959 (1st Cir.1993) (apply- liability was a tenable and strict law). Jersey preclude ing narrow so transfer was as to agree- cleanup responsibility for because costs liabilities, "existing” parties both limit discussion of envi- only but 7. The their ment related arising under New apparently no environmental liabilities those made mention of ronmental law); liabilities) (applying Jersey well as United as federal law. Massachusetts closing knowledge as of the liability it new remedies Kaufman’s established] tive length by at the district date was discussed recognized as tortious both un for activities findings in its of fact after the trial. common law.” See prior and the der statutes court found that Kaufman had been Corp., 37 Kerr-McGee Chem. also Leo v. organic highly regarded Grace as an Cir.1994) (3d (citing T & 101 & n. 8 F.3d chemist. Hatco v. W.R. Grace & Co.— Indus., Safety Light Corp., 123 N.J. E Inc. v. (D.N.J.1993). Conn., F.Supp. (1991)); Corp. Polaroid 587 A.2d predeces employed He had been Grace’s (NJ), Inc., 416 Mass. Rollins Envtl. Servs. and, capacities in a at one sor number (1993) (applying 624 N.E.2d 965-67 develop point, and had been the research law). dispos Jersey Because the waste New laboratory responsible for ment that was practices at the Fords site threatened the al product developments improvements in by leach public health and the environment manufacturing processes. He became potential sources of drink ing chemicals into familiarity plant manager acquired water, responsibility for ing corresponding facility. In disposal practices waste at the closing on the date of under cleanup existed request, engineering expert at his See, e.g., United theories as well. federal report on the waste water dis submitted Price, Cir. States posal practices Fords. at 1982); Recovery v. Solvents United States president In Kaufman became England, F.Supp. New Serv. of operated facility began division that (D.Conn.1980). spend acquiring more of his time new business, taking particularly rather than York law court’s view New Mardan part running day-to-day opera- active known, injury pertinent: is “[I]f is also plant. tion of the Fords Id. at 1078. How- parties] merely mistake [of and the ever, regularly any he was informed of con- course, seque consequence, future to the governmental agencies tacts with on environ- injury, then the release will lae of a known matters, prob- mental other environmental (internal Mardan, 804 F.2d at 1463 stand.” facility, plant’s pollution lems and the omitted) law); quotation (applying New York expenditures. control Id. at 1079. He re- Corp. v. Purolator Prods. Allied- see also monthly reports ceived on whether the Grace (W.D.N.Y. Inc., F.Supp. Signal, any chemical division had been involved in law). 1991) (applying York In the cir New government proceedings pertaining to en- here, practical impor no cumstances it is of forcement of environmental laws. obligation up tance to clean whether Grace’s latest, Kaufman As of 1978 at the was CERCLA, imposed by the site would be increasing activity govern- aware of the statute, the common or a another federal agencies coping mental with the environ- event, Jersey pro statute. consequences past present mental expenditure require cess would of sub manufacturing activities. He was chemical money, sums of and it is that reim stantial kept impending legislation, includ- advised of We, which Hateo seeks here. bursement ing such federal statutes as the Toxic Sub- therefore, accept the district court’s do not 2601-2629, Act, §§ stances Control 15 U.S.C. “liabilities” as restrictive view the term involved in the and understood those (b) A to the paragraph found in of Exhibit had concerned about chemical business to be assumption agreement. regulations. environmental the sale from The circumstances of findings compelling These offer reasons Kaufman, unique Hateo are in that determining of Kaufman’s knowl- the extent Hateo, charge had been owner of edge closing. at the time of the Seabrook facility for activities at the Fords Grace’s plant some time at the also had worked for many years ownership. before the transfer Hateo, knowledge, and his before its sale to exaggeration, but it makes the too, It be an pro- is a crucial issue. further Without facts, point say buyer that the knew more about ceedings adequately develop those plant operations and its than did the court will be unable to decide mean- (v). ing of clause seller.

4H said, Supreme sections and 9613 D. Court provide overlapping “similar and somewhat have ambiguities we To resolve — Tronic, Key remedies].” U.S. at discussed, necessary that mat- it will be -, 114S.Ct. at 1966. district court so that remanded to the ter be may hearing a at which extrinsic it conduct In United v. Aluminum States Alcan may to produced be in order deter- evidence (3d Corp., Cir.1992), 964 F.2d 252 we deter scope assump- full effect of the mine the alleged mined that under section an However, agreement. before conclud- tion responsible party prove is entitled to that the ing, must determine whether this case we environmental harm is and thus is divisible jury. be tried a must degree liability. reflected in the theOn 9613(f)(1) hand, other section allows more

III. in allocating response discretion to the court that it was Grace contends entitled costs, may liability and factors other than jury trial on a its CERCLA claims. 29; apportionment. enter into Id. 270 n. aspects jury trial procedural issue R.R., see also E. United States Colorado & are blurred. Rather record somewhat (10th (§ Cir.1995) 1530, 1534-38 50 F.3d exploring complexities, we shall as than joint responsibility establishes and several on rely that Grace was entitled on the sume basis; § liability a strict 9613 allocates by jury originally trial made Hateo considerations). demand equitable amounts due on The district court on the CERCLA claims.8 intertwined, Both sections are and there are requests, concluding that denied Grace’s practical making difficulties with a distinction cost-recovery and claims for contribu actions differing justify between them that would 9607(a)(4) CERCLA, §§ 42 U.S.C. tion under rulings availability jury trial. on the a equitable are in nature. Hatco v. rule, general right a to a As Conn., F.Supp. & W.R. Co. - jury by protected trial is the Seventh (D.N.J.1994). The district court ruled one, legal Amendment when the claim is a cost-recovery are actions for resti suits establishing if new equitable. but not it is jury. and are not to a tution triable remedies, statutory Congress may provide 9607(a)(4)(B) § provides that the U.S.C. jury required trials addition those facility is operator or of a liable for owner States, Tull v. the Constitution. United “necessary by any incurred response costs of 3, 107 1831, 1835 n. 417 n. 481 U.S. S.Ct. person with the national other consistent Loether, (1987); 95 L.Ed.2d 365 Curtis contingency plan.” Judicial construction 1006-07, 189, 191-92, 415 U.S. 94 S.Ct. originally implied created an this section (1974). The 39 L.Ed.2d 260 determination Key Corp. right of contribution. See Tronic applicable specific a which form of trial is — States, -, -, v. United U.S. one, claim, however, always simple is not a 1960, 1965, L.Ed.2d 797 S.Ct. statutory particularly remedy when the is However, a subsequent amendment Congress intention. has not stated its 9613(f)(1) (SARA), § CERCLA U.S.C. Piedmont See the discussion Crocker v. “[a]ny person may seek provides that contri- Aviation, (D.C.Cir. Inc., 744-49 person who is liable or other bution 1995). 9607(a) ... potentially liable section under any civil action during following under A. permitted is section].” The court [that appellate ruling court response only under section allocate costs 9613(f)(1)“using right jury cases is equitable to a trial CERCLA such factors as Pharmaceuti- appropriate.” As the United States v. Northeastern court determines are Cir.1979). questionable Grace's demand for Shore Land It is whether appropri- 8(c) (a jury on its was improperly trial "counterclaim” See also Fed.R.Civ.P. defense assumption agreement properly ate. The char- pleaded a counterclaim be treated as release that should have been acterized designa- proper if there had been "as pleaded defense. It affirmative is not tion”). Owens-Illinois, separate claim. See Inc. v. Lake 412 Cir.1987). (8th Co., apportionment case-by-case on a F.2d 726 claims

cal & 810 Chem. There, pursuant common Appeals determined that basis to Federal Court taking equitable in an action relevant considerations jury permitted not trial was Thus, questions lia- govern- 9607 into account. after brought under section resolved, individuals, alleging bility remedy have been against ment several may any severally liable for courts consider criteria relevant jointly and them to be determining whether there should be an 749. The Court ob- response costs. Id. at apportionment.” asking for government was served that the expended that it had of amounts restitution 34,645 (1985); Cong.Rec. 131 see H.R. also equitable seeking a form of and as such was 253(III), (1985), Cong., 99th 2d Sess. 19 re relief. 2835, 3038, printed in 1986 U.S.C.C.A.N. 3041-42. on substantive Restitution is based Finding congression no clear indication of unjust origins in liability having its enrich grant jury al intent to trial in either the party in ment to a kind of or the restoration legislative history, or must statute we Crocker, property proceeds. or its 49 his lost guarantee look to constitutional therefore 747; at also Porter v. Warner Hold see Supreme Amendment. The Seventh 395, 402, 1086, ing 66 S.Ct. 328 U.S. supplied large has the formula for this Court (1946) (restitution 1091, 90 L.Ed. review, ly acknowledging historical diffi its equitable powers within traditional of the “ ‘First, culty. compare statutory we court); § of Restitution 115. Restatement 18th-century brought in action to actions holding Pharmaceutical’s has Northeastern England prior merger courts of to the of the widely accepted, and does not been Second, equity. courts of law we exam appeal. take issue with it on this We are remedy sought ine the and determine wheth jury agreement that a trial is available ” legal equitable er it is or in nature.’ Wood- brought section 9607. a claim under dell v. International Bhd. Electrical Work ers, 71, B. 93, 97, 494, Local 502 U.S. S.Ct. (1991) (quoting 116 L.Ed.2d 419 right jury trial exists Chauf Whether a feurs, Helpers, Teamsters & Local No. 391 v. 9613(f)(1) grounded in a claim in section has 558, 565, Terry, 494 U.S. S.Ct. court, by any appellate not been decided but (1990)). 108 L.Ed.2d 519 conflicting the district courts have reached statute contains results on the issue.9 The Japanese In In re Elec. Prods. Antitrust juries. right (3d no to the One Cir.1980), references Litig., 631 F.2d 1069 we were court, performing district after an exhaustive presenta- an favored with elaborate historical search, specific found no comments parties. considering tion After legislative history. Cyanamid See American arguments, various we concluded that courts Indus., Inc., King F.Supp. Co. v. legal equitable or determine “the nature of a (D.R.I.1993). 212-13 by comparing actually suit it with suits tried equity.” in courts of common law Id. Report that one statement in the We note Judiciary of the House Committee on the accompanying tends to disclaim SARA parties here have not his- briefed the juries congressional intent to have decide phase inquiry, torical and we disclaim § 9613 matters. survey an exhaustive of our own on whether [9613(f)(1) century equi- ]

“New subsection of CERC- contribution the 18th was an remedy. research, judicial legal HA ... table or ratifies current decisions Our howev- er, during equitable period, their indicates that the relevant the courts use powers equitable remedy. apportion clean-up the costs of contribution was texts, among reviewing in- have responsible the various various we found Jo- Story’s seph Equity volved with the site. Courts are to resolve Commentaries Juris- (N.D.Cal.1987) Shaner, Compare Cyanamid King In with United States v. No. American Co. v. dus., Inc., 85-1372, (E.D.Pa. (D.R.I.1993); F.Supp. WL at **2-4 213-15 15, 1992) (unpublished opinion). Syntex Corp., F.Supp. June Wehner v. 39-40 contribution.”) (cit- 1839) part just to a per- each the most er of prudence ed. be Case, cases, that, Rep. ing Harbert’s 3 Coke’s Conceding in a few suasive. (Ex. 1584); existed, Eng.Rep. Ingle- Harris v. remedy of contribution common-law (M.R. dew, Eng.Rep. 3 P.Wms. 24 981 that the states the author 1730)); Adams, Equity John The Doctrine Equity Juris- exercise of beneficial “more of (1st 1850).10 ed. 219-25 diction, apportionment and con- in cases of cases, tribution, charges on in where ... is Pomeroy’s Although Treatise John N. on by actually paid ... off are real estate 1418, Jurisprudence § Equity at 468 n. 1 interest____ In parties in some of the 1883) (1st “jurisdiction states that at ed. law remedy no of this sort there is most cases become well settled which is sufficient in has uncertainty of at from the extreme joint ordinary suretyship of all eases liabil- ascertaining proportions, relative acknowledges equitable ity,” “[t]he he that of persons, having interests which different jurisdiction still and has some remains most nature, and dura- very quality, a different advantages.” important commentary, That tion, subject-matter, ought pay.” in the however, was several decades written after (footnote omitted). Story. George E. 483, That that of Justice As Palmer § Id. at 461 in his work explains The Law Restitution applicable in CERC- particularly is comment of (1978), 1.5, § at 31 enforcement contribu- LA claims. by appear claims suits at law did not tion opinions Story also Justice referred early century. in the until nineteenth authority regarded on by highly written York. Id. equity, Kent of New nature of claims has Chancellor CERCLA been 469, Cheesebrough by passing, § In v. Mil in “The 449 n. 2. noted us contribution at (N.Y. lard, 409, 1815), in proceeding equitable 415 Ch. is one which a 1 Johns. Ch. object principle response permitted is to allocate costs “[t]he Kent that wrote appropriate.” it support of a on factors Al equality is based deems of contribution burden____” can, at In Similarly, Camp in 270 n. 29. another common Dunstan, 334, remarked, right of we contri “[T]he & 4 Ch. context bell v. Mesier Johns. (N.Y. 1820), grounded equity.” others in is “[t]he he that bution 338 Ch. observed 754, Linn, founded, F.2d Indem. Co. v. 766 769 not of contribution is doctrine Pacific Cir.1985). (3d contract, equality of principle, on the that but burden, equity....” right, to a common is important more After our review of the authorities, are that a claim Baron we of the belief Kent cited Lord Chief

Chancellor presented in Dering contribution the nature Eyre’s in Earl Winchel opinion v. sea, 321, us have been enter- 318, Eng.Rep. case before would Ch. Cas. 29 1 Cox’s (Ex. 1787), in 1184, 1185, equity a chancellor but 2 Bos. & Pull. 270 tained said, by court at That determination is contribu not law. “we shall find that where it is dispositive and of itself because the general princi not tion and fixed on is bottomed pursuant brought here are justice, spring from claims ples of and does not Supreme Court op of a statute. As the equality terms [T]he contract.... doctrine observed, provides Court, Congress effectually in than in where this has erates more suit, statutory rights a civil Cooper, law.” See also v. enforcement Court of Stevens (N.Y. 1815) (“It if the jury trial must be available action is “a Ch. 430 Ch. Johns. established, rights typi- of the sort remedies when land involves doctrine well that Curtis, at law.” burden, cally an action charge ought to enforced charged with a 1009. But at cer- part to bear 415 U.S. S.Ct. ought be and one equal, remedy was one tainly fact proportion; equity will more its due than equity argues granted only in typically own- preserve equality compelling this (K.B.1799). Eng.Rep. Because Supreme Northwest Court noted in As the Am., Airlines, Transport Workers Union that case Inc. understood most American courts AFL-CIO, contribution, U.S. 101 S.Ct. n. early proscription general (1981), the non- 1578 n. 67 L.Ed.2d 750 country prohibited law in this contribu common generally law is contribution rule of common among joint tortfeasors. tion Nixan, Term.Rep. Merryweather v. traced statutory remedy being brought considered in suits under 42 against a U.S.C. 9613(f)(1), §§ parties as one at law.11 9607 or are not jury entitled to a trial. S.A., Vapores, Peruana de Rex Cia Cir.1981), we observed IV. present issue that the Seventh Amendment in a must be considered in the con ed case raised a number of other have congressional text of the schema which it assumption issues not related to the 1978 earlier, As noted CERCLA’s lan arises. agreement. We decline to address them at legislative history guage and lack evi juncture because the ultimate resolution dence of intent to have the claims determined assumption question could be outcome- contrary, by jury. To the to references opinion our on determinative and those other equity equitable appear, and factors do and merely advisory. According- issues would be may Congress we assume that was well ly, judgment we will vacate the of the district juries equita aware that are not feature of proceed- court and will remand for further reasonable, entirely ble trials. It is there ings opinion. consistent with this fore, Congress to believe that to intended party Each to bear its own costs. design remedy that would track traditional equity practice. Keystone Cox v. Carbon Cf. ADDENDUM (3d Cir.1988) (ERISA 861 F.2d assumption agreement between Grace case) (“[W]e Congress can infer that knew and Hateo read as follows: significance equitable of the term and jury intended that no be available on de “ HATCO CHEMICAL BUYER’S mand.”); Corp., see also Pane v. RCA ASSUMPTION AGREEMENT (3d Cir.1989) (ERISA case). [Pjursuant Agreement ... hand, the Sale and In the case at the district court consideration, receipt for valuable precipitating reasoned that because the hereby acknowledged, which is primarily equi claims under section 9607 are nature, table in a claim for contribution un hereby agrees [Hateo] assumes and 9613(f)(1) essentially der section equitable. is also pay discharge and in due all course co, F.Supp. Hat at 775. The court of [Grace] liabilities attributable to the further relied on the fact section Chemical Business listed in A to Exhibit 9613(f)(1) requires apportion a court to instrument, hereby and as- [Hateo] parties “using costs between the equita such agrees perform sumes and and fulfill all ble ap factors as the court determines are obligations of [Grace] attributable to the propriate.” Id. at 775 n. 3. Chemical Business A to listed Exhibit this instrument. As used in this instru- We concur with the district court’s reason- ment, ‘Chemical Business’ means that busi- ing. Particularly, impressed we are with the 9613(f)(1) presently by ness conducted the Chemical “equitable” references in section Group Division of the Hateo of [Grace] factors. This is an indication that the statu- comprising the tory manufacture and sale of action for contribution is be flexible plasticisers synthetic remedy and lubricants at a be on based circumstances Fords, principal cognizable readily manufacturing not location at adaptable in nor to an sum, Jersey. purposes action at For of this instru- persuaded law. we are ment, that an action for contribution under ‘Chemical Business’ does not include section 9613(f)(1) essentially equitable. purchase the business of and resale of oxo- Accord Inc., Meyer, United States v. R.W. alcohols conducted such Divi- Chemical (6th Cir.1991). sion, Accordingly, any we hold or interest of in Grace [Grace] argues Commentary 11. Lord Devlin that the test should be and the Seventh Amendment: A Case, whether a chancellor in 1791 would have exer- the Zenith 81 Mich.L.Rev. 1571 It case, power equity approach, cised the hear would seem that Lord Devlin's unfor- inquiry precedent tunately, uncertainty the more narrow of whether would lead to even more actually determining demonstrated that such suits had been the bounds of the Seventh Amend- Devlin, Equity, heard. See Patrick Due Process ment. present personal knowledge Petro-chemicals, its one- has actual and Inc. or undivided Agree- awareness the date of Sale Enterprise. in Oxochem half interest ment, Liabilities; other than Excluded indemnify hereby agrees to [Hateo] (vi) obligations other liabilities hold harm- [Grace] to save [Grace] $5,000 per do not item and which exceed any damage, against and all from and less $50,000 aggregate, in the other than Ex- loss, (including, deficiency liability, edst or cluded Liabilities. to, attorneys’ reasonable but not limited expenses incident fees and other costs Agreement All terms defined Sale investigations of the de- proceedings or meaning agreement. same in this have the claim) arising any Liabilities, out of or result- following Excluded fense are the duly to ing Agreement: [Hateo] failure as defined the Sale any agreement forth set perform fullfill ‘Excluded means the follow- Liabilities’ in this instrument.” obligations ing liabilities and of [Grace] to the Chemical attributable Business assumption agreement A Exhibit prior to periods ending all on or date of following: provided (a) taxes, Closing: all liabilities for taxes, including limitation without income and “Assumed Liabilities federal, (except payroll and local and state [By Obligations Hateo] withholding pay period for the which taxes obligations and of following liabilities Closing, includes the date of the to the Busi- to the Chemical attributable [Grace] [Grace], paid by provided extent ness: shall accrual such amount be made (a) Di- Hateo Chemical liabilities Amount) (b) Closing and nation each has contributed seems to me interpret eral than New York law to rather likely already staggering to increase the meaning ambiguous provisions in litigation. transactional costs of CERCLA I agreement governing the sales Hatco’s re hold, am especially reluctant to as a matter sponsibility arising for liabilities out of law, that New York would construe an operation prior Grace’s of its “chemical busi agreement like the one before us as a release if, property purchased. indicates, ness” on the real Hatco as the Court it introduces the factor of East, process who acts first into the Corp., See Inc. v. Mead Beazer — distinguishing agreements of release denied, Cir.1994), U.S. -, cert. promises indemnify. Majority Op. See 131 L.Ed.2d 559 I S.Ct. import 406-07. This could into CERCLA however, respectfully disagree, with the litigation polluter an delay incentive for a conclusion that New York Court’s law re up publicly respon- the start of clean lest this quires applicable provisions of the sales may Thus, prove privately costly. sible act I agreement to be construed as a release rath goal expeditious believe CERCLA’s envi- promise indemnify. er than a I believe cleanup ronmental will be better served provisions ambiguous that these are also interpreting provisions ambiguous agree- in parties whether the intended release or abating ments for allocation of the cost of indemnify against such In liabilities. pollution among polluters agreements deed, indemnity. Hateo’s release is Grace’s release, indemnity agreements rather than Thus, I applicable believe their characterization as a possi- when local law makes that ble. indemnity question release an is a of fact

that should be decided the district court Accordingly, though I concur in the first instance. remanding Court’s mandate this case to the district court for reconsideration of Hatco’s clarity New York law is not a model of claim for contribution under New York rath- distinguishing agreements releases from er than federal I common would also indemnify. Compare Painting Structural decide, leave the district court free to in the Corp. v. Travelers Indem. 88 A.D.2d instance, first whether the intended (1982) indemnity.1 N.Y.S.2d with Walsh v. of release or one of agree knowledge I with the Court that evidence additional man's and Seabrook's of the extent to concerning polluted be needed on remand Kauf- which the site was before the sale. STAPLETON, BECKER, Present: GREENBERG,

MANSMANN, SCIRICA, COWEN,

HUTCHINSON, LEWIS, MCKEE, ROTH,

NYGAARD, WEIS,* Judges. Circuit

SAROKIN REHEARING PETITION FOR

SUR

Aug. rehearing by appellee filed petition for having been sub-

in the above entitled ease judges participated who

mitted to the to all other avail- of this

decision regular judges of circuit in circuit

able service, judge no who concurred

active rehearing, and having for

the decision asked majority judges of the circuit of the circuit having voted regular active service banc,

rehearing petition by the court Judge rehearing Hutchinson is denied. rehearing. granted

would have America, Appellee,

UNITED STATES A. MILLER Carol

Carol a/k/a Salerno, Appellant.

Miller

No. 95-1039. Appeals,

United States Court

Third Circuit. April

Argued July

Decided * addition, only panel Judge as to my Weis voted Senior Circuit I note full support scholarly analysis rehearing. adduces to Court rejection contention that it has its Seventh Amendment of Grace’s jury right constitutional trial on its CERCLA claims. the Net notes in, of reflected reserved [Grace] vision payable groups, to other accounts divisions Closing Net State- against or noted on the other units or or or subsidiaries affiliates Liabilities; ment, and other Excluded than [Grace], pay- of than trade accounts other (b) following obligations and liabili- the (c) arising purchase goods, able from the of Closing, of or existing on the date the ties against liabilities which is effec- [Grace] (iv), in clause in the case of those described insured, regard any tively appli- without thereafter, they arising or not are whether (d) amounts, product lia- cable deductible in, against noted on reserved or reflected bilities, including without limitation liabili- Closing Net Statement: injury, personal respect for with ties (i) obligations respect or- with to sales shipped prior or merchandise sold Business, accepted by Chemical ders (e) Closing, liabilities and obli- date of Liabilities; than Excluded other by claims gations arising asserted (ii) obligations goods and services employee employee with any or former Business, by other sickness, the Chemical ordered injury, disease or respect Liabilities; than disability Excluded of workmen’s death or under (f) laws, compensation liabilities for which (in) obligations re- with liabilities corresponding prepaid assets are ex- expenditures spect capital described charges, penses and deferred the benefit ap- any Request Capital Appropriation effectively cannot be transferred which cus- proved [Grace’s] accordance [Hateo], (g) obligations aris- liabilities tomary procedures by management by any of the ing from claims asserted Business, any manage- or the Chemical managers any prede- thereto; former owners or group of senior [Grace] ment company, any portion the busi- cessor (iv) obligations and liabilities aris- other in the or assets of which included ness ing ordinary course of Chemical Assets, the Chemical Business or Chemical Business, prior to or after whether (h) specifically described the liabilities Closing, other Excluded date of than to this Exhibit.” in the schedule Liabilities; assump- (v) A of schedule to Exhibit obligations other liabilities following: agreement provided tion Alex Kaufman or David G. Seabrook which [i.e., Diesel, Inc., Liabilities Those Retained Morse 143 A.D.2d “Excluded York, N.Y.S.2d New By Grace] elsewhere, polluter seeking indemnity Sling Tail Brook Alleged pollution against abating pollution the cost of its must May or on about indemnify establish an unmistakable intent to as well as the extent of the indemnification Tank, al., Superi- v. Buffalo et 2. Canton by Metropoli clear evidence. Heimbach v. Jersey, of New Middlesex Coun- Court Auth., Transp. tan 75 N.Y.2d ty, Docket L-4354-77. (N.Y. N.Y.S.2d 553 N.E.2d 1990) (citations omitted). York claim Norman Bresee for 3. Potential hand, the other allows a releasee to establish injury personal incurred the Chemical “expression intent release a mere of a plant in 1976. present intention to renounce a claim.” Car 4. Liloia v. E.I. duPont de Nemours & Machold, penter v. 86 A.D.2d Co., Inc., al., Superior (1982) (citation omitted). et Court New N.Y.S.2d Moreover, Jersey, County, once a document as a Essex Docket L-44267- construed ambiguous, release is held to be the burden 76.” proving the kinds of harm that are not HUTCHINSON, Judge, Circuit subject to the release shifts to the releasor. Dissenting. Concurring and Painting, Structural at 876. N.Y.S.2d Unfortunately, uncertainty that arises I concur in the decision to vacate the dis applying disputes these distinctions to judgment in trict court’s favor of Hateo on its among polluters single two or more of a site agree claim for contribution from I Grace. payment abating over of the cost of contami- incorrectly applied the district fed

Case Details

Case Name: Hatco Corp. v. W.R. Grace & Co.-Conn.

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 5, 1995

Citation: 59 F.3d 400

Docket Number: 94-5276

Court Abbreviation: 3rd Cir.