CALDWELL TRUCKING v. SPAULDING CO.

• Decision Date: 13 July 1995
• Docket Number: Civ. No. 94-3531 (WGB).
• Citation: 890 F. Supp. 1247
• Parties: CALDWELL TRUCKING PRP GROUP, Plaintiff, v. SPAULDING COMPOSITES CO., INC., individually and as successor to Mycalex Corporation, Aetna Casualty & Surety Co., Allstate Insurance Co., as successor to Northbrook Insurance Co., American Centennial Insurance Co., American Home Insurance Co., Employers Insurance of Wausau, Greenwich Insurance Co., as successor to Harbor Insurance Company, Industrial Underwriters Insurance Co., Liberty Mutual Insurance Co., Lexington Insurance Co., Certain Underwriters at Lloyds of London, Certain London Market Defendants, Mutual Fire, Marine and Inland Insurance Co., National Union Fire Insurance Co., New England Reinsurance Corp., New Jersey Property-Liability Insurance Guarantee Association, John Doe 1-50, Defendants. SPAULDING COMPOSITES CO., INC., Cross-Claim Plaintiff, v. AETNA CASUALTY & SURETY CO., Allstate Insurance Co., as successor to Northbrook Insurance Co., American Centennial Insurance Co., American Home Insurance Co., Employers Insurance of Wausau, Greenwich Insurance Co., as successor to Harbor Insurance Company, Industrial Underwriters Insurance Co., Liberty Mutual Insurance Co., Lexington Insurance Co., Inc., Certain Underwriters at Lloyds of London, Certain London Market Defendants, Mutual Fire, Marine and Inland Insurance Co., National Union Fire Insurance Co., New England Reinsurance Corp., New Jersey Property-Liability Insurance Guarantee Association, John Doe 1-50, Cross-Claim Defendants. NEW ENGLAND INSURANCE CO., Counterclaim and Cross-Claim Plaintiff, v. SPAULDING COMPOSITES CO., INC., Aetna Casualty & Surety Co., Allstate Insurance Co., as successor to Northbrook Insurance Co., American Centennial Insurance Co., American Home Insurance Co., Employers Insurance of Wausau, Greenwich Insurance Co., as successor to Harbor Insurance Company, Industrial Underwriters Insurance Co., Liberty Mutual Insurance Co., Lexington Insurance Co., Inc., Certain Underwriters at Lloyds of London, Certain London Market Defendants, Mutual Fire, Marine and Inland Insurance Co., National Union Fire Insurance Co., New Jersey Property-Liability Insurance Guarantee Association, John Doe 1-50, Counterclaim and Cross-Claim Defendants.
• Court: U.S. District Court — District of New Jersey

890 F. Supp. 1247

CALDWELL TRUCKING PRP GROUP, Plaintiff, v. SPAULDING COMPOSITES CO., INC., individually and as successor to Mycalex Corporation, Aetna Casualty & Surety Co., Allstate Insurance Co., as successor to Northbrook Insurance Co., American Centennial Insurance Co., American Home Insurance Co., Employers Insurance of Wausau, Greenwich Insurance Co., as successor to Harbor Insurance Company, Industrial Underwriters Insurance Co., Liberty Mutual Insurance Co., Lexington Insurance Co., Certain Underwriters at Lloyds of London, Certain London Market Defendants, Mutual Fire, Marine and Inland Insurance Co., National Union Fire Insurance Co., New England Reinsurance Corp., New Jersey Property-Liability Insurance Guarantee Association, John Doe 1-50, Defendants.

SPAULDING COMPOSITES CO., INC., Cross-Claim Plaintiff, v. AETNA CASUALTY & SURETY CO., Allstate Insurance Co., as successor to Northbrook Insurance Co., American Centennial Insurance Co., American Home Insurance Co., Employers Insurance of Wausau, Greenwich Insurance Co., as successor to Harbor Insurance Company, Industrial Underwriters Insurance Co., Liberty Mutual Insurance Co., Lexington Insurance Co., Inc., Certain Underwriters at Lloyds of London, Certain London Market Defendants, Mutual Fire, Marine and Inland Insurance Co., National Union Fire Insurance Co., New England Reinsurance Corp., New Jersey Property-Liability Insurance Guarantee Association, John Doe 1-50, Cross-Claim Defendants.

NEW ENGLAND INSURANCE CO., Counterclaim and Cross-Claim Plaintiff, v. SPAULDING COMPOSITES CO., INC., Aetna Casualty & Surety Co., Allstate Insurance Co., as successor to Northbrook Insurance Co., American Centennial Insurance Co., American Home Insurance Co., Employers Insurance of Wausau, Greenwich Insurance Co., as successor to Harbor Insurance Company, Industrial Underwriters Insurance Co., Liberty Mutual Insurance Co., Lexington Insurance Co., Inc., Certain Underwriters at Lloyds of London, Certain London Market Defendants, Mutual Fire, Marine and Inland Insurance Co., National Union Fire Insurance Co., New Jersey Property-Liability Insurance Guarantee Association, John Doe 1-50, Counterclaim and Cross-Claim Defendants.

Civ. No. 94-3531 (WGB).

United States District Court, D. New Jersey.

July 13, 1995.

COPYRIGHT MATERIAL OMITTED

Pitney, Hardin, Kipp, & Szuch by Peter J. Herzberg, Kathy Dutton Helmer, Morristown, NJ for plaintiff Caldwell Trucking PRP Group.

Lowenstein, Sandler, Kohl, Fisher & Boylan by Robert D. Chesler, Roseland, NJ, and Timby, Brown & Timby by: John J. Dugan, Camden, NJ, for defendant Spaulding Composites Co., Inc.

Manta and Welge by John C. Sullivan, Stephen F. Brock, Michael Dolich, Princeton, NJ, and Wilson, Elser, Moskowitz, Edelman & Dicker by James C. Orr, Newark, NJ, for defendant Liberty Mut. Ins. Co.

Feinberg and Tritsch by Bruce A. Tritsch, Livingston, NJ, and Wright, Robinson, McCammon, Ostheimer & Tatum by Thomas S. Schaufelberger, Paul A. Fitzsimmons, Michael N. Clark, Washington, DC, for defendant Employers Ins. of Wausau.

Garrity, Graham & Favetta by Antonio D. Favetta, Montclair, NJ, for defendant American Centennial Ins. Co.

Harwood Lloyd by John D. Aleen, III, Kim E. Sparano, Hackensack, NJ, for defendant Aetna Cas. & Sur. Co.

Siff Rosen P.C. by Lisa S. Rabinowitz, New York City, for defendant New England Ins. Co.

Ronca, McDonald & Hanley by William J. Hanley, Livingston, NJ, and Jackson & Campbell, P.C. by James P. Schaller, Richard W. Bryan, Margery J. Lexa, Washington, DC, for defendant American Home Assur. Co., Lexington Ins. Co., and National Union Fire Ins. Co. of Pittsburgh, Pa.

Robinson, St. John & Wayne by Karol Corbin Walker, Steve Manley, Newark, NJ, for defendant Industrial Underwriters Ins. Co.

Mendes & Mount by Claire T. Barile, Newark, NJ, for defendants Certain Underwriters at Lloyds of London and Certain London Market defendants.

Francis & Berry, by John O'Farrell, Beth A. Hardy, Morristown, NJ, for defendant New Jersey Property-Liab. Ins. Guar. Ass'n.

OPINION

BASSLER, District Judge:

Plaintiff, Caldwell Trucking PRP Group ("PRP Group"), is an unincorporated association of the parties attempting to remediate hazardous substance contamination at the Caldwell Trucking site pursuant to a consent decree entered by this Court in State of New Jersey and United States of America v. the Carborundum Company et al., consolidated Civil Action no. 94-1437. Compl. ¶¶ 9, 16. Spaulding was not a party to this consent decree even though the United States Environmental Protection Agency ("EPA") had identified Spaulding, along with the members of the PRP Group, as a potentially responsible party for contamination at the site pursuant to 42 U.S.C. § 9607. Compl. ¶ 16.

The PRP Group seeks contribution from Spaulding to cover past and future costs of cleaning up the Caldwell Trucking site. In addition, the PRP Group brings a direct action for damages and a declaration of coverage against Spaulding's insurers. Spaulding has cross-claimed for damages and a declaration of coverage against the same insurers. Numerous motions are before the Court for resolution.

Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants, Liberty Mutual Insurance Company ("Liberty"), Employers Insurance of Wausau ("Wausau"), American Centennial Insurance Company ("American Centennial"), American Home Assurance Company ("American Home"), Lexington Insurance Company ("Lexington"), National Union Fire Insurance Company of Pittsburgh, Pennsylvania ("National Union"), New England Insurance Company ("New England"), Industrial Underwriters Insurance Company ("Industrial Underwriters"), Certain Underwriters at Lloyd's, London ("Lloyd's"), Certain London Market Insurance Companies ("London Market"), Allstate Insurance Company ("Allstate"), and Aetna Casualty & Surety Company ("Aetna")¹ move to dismiss counts five and six of Plaintiff, the Caldwell Trucking PRP Group's Complaint for failure to state a claim upon which relief can be granted.

Several of these Defendants have also moved to dismiss the Complaint under the doctrine of forum non conveniens or alternatively, to transfer this action to the United States District Court for the Western District of New York pursuant to 28 U.S.C. § 1404(a).

In addition, Defendants Wausau, Liberty, New England, American Home, Industrial Underwriters, American Centennial, Lloyd's, London Market, Aetna and Allstate move to dismiss the Cross-Claim asserted by Spaulding Composites, Co. Inc. ("Spaulding"), for failure to state a claim upon which relief can be granted. Additionally, several Defendants move to dismiss those claims asserted by Spaulding related to contamination at a site in Tonawanda, New York, for improper joinder under Federal Rule of Civil Procedure 13(g). These Defendants also reiterate their request to transfer this action to the Western District of New York pursuant to 28 U.S.C. § 1404(a).

This Court possesses jurisdiction over this action to recover cleanup and response costs incurred to remediate hazardous substance contamination at the Caldwell Trucking site pursuant to 42 U.S.C. §§ 9607, 9613 and 28 U.S.C. § 1331. The Court possesses supplemental jurisdiction over Plaintiff's claims based upon New Jersey law under 28 U.S.C. § 1367.

For the reasons set forth in the Opinion below, Defendants' motions to dismiss counts five and six of Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) are granted. Defendants' motions to dismiss for forum non conveniens are denied. Defendants' motions for transfer to the Western District of New York are also denied.

Defendants Wausau, Liberty, New England, American Home, Industrial Underwriters, American Centennial, Lloyd's, London Market and Allstate's motions to dismiss Spaulding's Cross-Complaint are granted. The motions to transfer the Cross-Complaint to the Western District of New York filed by these Defendants are denied. These same Defendants' motions to dismiss those claims asserted by Spaulding related to contamination at a site in Tonawanda, New York, for improper joinder under Federal Rule of Civil Procedure 13(g) are denied.

I. BACKGROUND

On this motion to dismiss, the Court must accept all of Plaintiff's factual allegations as true. Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). Between approximately 1958 and 1973, Caldwell Trucking Company transported lead-containing wastes allegedly generated by Spaulding and its predecessor in interest, Mycalex Corporation, and deposited them at the site. Compl. ¶¶ 10, 20.

Since February, 1993, Spaulding has been involved in a bankruptcy proceeding in the United States Bankruptcy Court, Central District of California, case no. 93-16711-CA. Compl. ¶ 52. In September, 1993, the PRP Group filed a proof of claim form for damages already incurred and those anticipated in connection with cleaning up the Caldwell Trucking site. Compl. ¶ 53.

On May 17, 1994, Defendant, Liberty, filed a complaint in the United States District Court for the Western District of New York against Nortek, Inc. ("Nortek") and Monogram Industries, Inc. ("Monogram"), Spaulding's former corporate parents, that were named, with Spaulding, as coinsureds under policies issued by some of the Defendant insurers. In the Western District of New York action, Liberty sought a declaratory judgment that its policies issued to Nortek, Monogram, and Spaulding, did not provide coverage for environmental contamination at either the Caldwell Trucking or Tonawanda site. Before filing the New York action, Liberty did not obtain relief from the automatic stay triggered by Spaulding's bankruptcy petition.

In an Amended Stipulation, filed on July 11, 1994, the Bankruptcy Court modified the automatic stay to permit the PRP Group and the EPA to maintain actions in the United States District Court for the District of New Jersey or other appropriate forum for "declaratory relief against...