Bancamerica Commercial Corp. v. Trinity Industries
| Decision Date | 02 August 1995 |
| Docket Number | Civ. A. No. 90-2325-GTV. |
| Parties | BANCAMERICA COMMERCIAL CORPORATION and ASARCO Incorporated, Plaintiffs, v. TRINITY INDUSTRIES, INC. and Mosher Steel Company, Defendants. |
| Court | U.S. District Court — District of Kansas |
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Jane Harris Aniel, Bank of America National Trust, Los Angeles, CA, Christopher R. Hedican, Berens & Tate, P.C., Omaha, NE, Elizabeth Drill Nay, Thomas M. Martin, Lewis, Rice & Fingersh, Kansas City, MO, John M. Duggan, Duggan & Shadwick, P.C., Kansas City, MO, for Bancamerica Commercial Corp., plaintiff.
Roger D. Stanton, Stinson, Mag & Fizzell, Overland Park, KS, Robert L. Driscoll, Stinson, Mag & Fizzell, Kansas City, MO, Frederick
W. Addison, III, Bruce K. Packard, Elizabeth E. Mack, Locke, Purnell, Rain & Harrell, Dallas, TX, for Mosher Steel of Kansas, Inc. and Trinity Industries, Inc., defendants.
Steven B. Moore, Watson & Marshall L.C., Olathe, KS, Ilona L. Dotterrer, Bradley, Campbell, Carney and Madsen, Golden, CO, Katharine R. Stollman, Robert E. Zimet, Daniel H. Squire, Jerry Jackson, John Amodeo, Skadden, Arps, Slate, Meagher & Flom, Washington, DC, Robert B. Best, Jr., Watson & Marshall L.C., Kansas City, MO, for ASARCO, Inc., plaintiff.
This action involves the environmental cleanup of a 27-acre industrial site located at 2100 Metropolitan Avenue in Kansas City, Kansas (the "Site"). Plaintiffs Bancamerica Commercial Corporation ("BACC") and ASARCO Incorporated ("ASARCO") seek to hold defendants Trinity Industries, Inc. ("Trinity") and Mosher Steel Company ("Mosher Steel") liable under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601 et seq., as amended, for costs incurred by the plaintiffs in response to a release of hazardous substances at the Site. BACC is the current owner of the Site and ASARCO is the successor corporation to a company that operated one of the largest lead smelters in the country at the Site in the 1890s. Trinity and Mosher Steel operated a structural steel fabrication facility at the site during the 1980s. In addition to the CERCLA claims, BACC also asserts pendent state law claims against Trinity for indemnification and breach of contract. Trinity has asserted an indemnity counterclaim against BACC.
BACC began this suit by bringing a CERCLA action against Trinity and Mosher Steel on September 14, 1990. Trinity and Mosher Steel impleaded ASARCO as a third party defendant on December 31, 1990, and BACC added ASARCO as a defendant on July 9, 1991. ASARCO filed counterclaims against BACC, Trinity, and Mosher Steel. BACC also added three individual defendants who had been officers and directors of Kansas City Structural Steel, a company that operated at the Site from 1907 until 1982. The individual defendants entered into settlement agreements and are no longer part of this suit. BACC and ASARCO also settled the claims between themselves, and ASARCO was realigned as a party plaintiff.
The court denied a number of summary judgment motions, and no substantive issues were resolved prior to trial. A trial to the court was held over 17 days during the period January 18 to April 15, 1994. After the United States Supreme Court issued a ruling in June 1994 regarding the treatment of attorney fees as CERCLA response costs, the court reopened the record and the parties returned to present additional testimony and evidence on September 22, 1994.
All parties have submitted proposed findings of fact and conclusions of law, in addition to a variety of other trial and post-trial briefs. The court has considered the testimony, evidence, and arguments of the parties. Pursuant to Fed.R.Civ.P. 52(a), the court makes the following findings of fact and conclusions of law.
1. Plaintiff BACC, a Pennsylvania corporation, is the current owner of the property which is the focus of this litigation.
2. Plaintiff ASARCO operated a smelter at the property from 1899 until 1901 through a subsidiary, Consolidated Kansas City Smelting and Refining Company ("Consolidated"). (Exh. 750, 752, 754, 758.) In 1899 ASARCO purchased the assets of Consolidated which had operated the smelter from 1880 until 1899. (Exh. 650, 739, 742.)
3. Defendant Trinity, a Texas corporation, operated a structural steel plant at the property from 1985 until 1987. During 1984 and 1985, the structural steel plant was run by a wholly owned subsidiary of Trinity.
4. Defendant Mosher Steel is a separate subsidiary of Trinity.
5. ASARCO, BACC, Trinity, and Mosher...
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