Containerport Group v. American Financial Group
| Citation | 128 F.Supp.2d 470 |
| Decision Date | 16 January 2001 |
| Docket Number | No. C2-95-1262.,C2-95-1262. |
| Parties | CONTAINERPORT GROUP, INC., Plaintiff, v. AMERICAN FINANCIAL GROUP, INC., Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Katerina M Eftimoff, Porter Wright Morris & Arthur, Columbus, OH, Daniel F. Gourash, Porter Wright Morris & Arthur, Cleveland, OH, for Containerport Group Inc.
Jonathan A Cote, Pierce E Cunningham, Cincinnati, OH, Pierce Edward Cunningham, Jonathan A Conte, Cincinnati, OH, for American Financial Group, Inc.
Plaintiff ultimately seeks to recover from Defendant costs incurred in cleaning up environmental contamination on land Plaintiff's predecessor-in-interest bought from Defendant's predecessor-in-interest. Plaintiff brings this action under §§ 107 and 113 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), 42 U.S.C. § 9601 et seq. Plaintiff is seeking a declaratory judgment as to Defendant's liability for past and future response costs. This matter is currently before the Court on cross motions for summary judgment.
From 1901 until 1985, Penn Central Corporation owned and operated a railyard and rail siding facility on Camden Avenue in Columbus, Ohio.1 In July of 1985, Rail Container Services, Inc., Plaintiff's predecessor corporation, purchased eighteen acres of this real estate from Penn Central for $128,695. Prior to purchasing the property, Plaintiff did not conduct an environmental assessment, and at no time did Penn Central notify Plaintiff that it had placed hazardous substances on the property. For the next five years, Plaintiff used the site principally to store empty shipping containers. It contends that it engaged in no operations involving hazardous substances or the disposal of hazardous waste on the property during this time. In 1990, it no longer needed the site for storage space and placed the property, which was zoned for manufacturing, up for sale.
In 1993, the Columbus Chapter of Habitat for Humanity began negotiating with Plaintiff for the purchase of the property, hoping to use it for single family homes. Habitat for Humanity retained Sharp & Associates, an environmental consulting firm, to conduct a "Phase I" environmental site assessment. The assessment revealed no obvious hazardous waste problems, but did reveal the presence of fill material of an unknown origin on the western portion of the property. (Ex. 2 to Pl.'s Mot. Summ.J.). Based on this assessment, Habitat for Humanity hired BBC & M, another environmental consulting firm, to conduct a "Phase II" assessment. Plaintiff agreed that if, based on that assessment, Habitat for Humanity chose not to purchase the property, Plaintiff would pay one-half of the cost of the Phase II assessment.
The Phase II assessment revealed that the fill appeared to be "a coal combustion by-product, such as bottom ash or boiler slag" and contained several metals classified as hazardous substances under CERCLA. (Ex. 5 to Pl.'s Mot.Summ.J.). Specifically, the study found levels of cadmium, lead, and copper that exceeded the Upper Confidence Levels for Ohio Farm Soils. In addition, levels of arsenic were approximately ten times greater than the Superfund Proposed Screening Levels for Heavy Metals. BBC & M estimated that it would cost Habitat for Humanity $200,000 to $980,590 to remedy the problems before building could begin. Slag was found on approximately fourteen of the eighteen acres. The average depth was 2.1 feet. (Ex. 6 to Pl.'s Mot.Summ.J.). Possible solutions included covering the ground with additional fill material or removing the fill material from the site and disposing of it elsewhere.
Based on this report, Habitat for Humanity decided not to purchase the property. As agreed, Plaintiff paid half of the cost of the Phase II assessment. Plaintiff then filed this action asking for a declaratory judgment that Defendant is strictly liable for past and future response costs under CERCLA as a prior owner and operator of the site at the time hazardous wastes were disposed of, and/or as a generator of, or arranger for, the disposal of hazardous substances at the site. Defendant filed a counterclaim alleging that Plaintiff, as the current owner of the property, is jointly and severally liable for response costs incurred in clean-up of the site. Although no response plan has yet been implemented, Plaintiff has incurred over $12,000 in costs including the site assessments, the slag remediation study, legal fees incurred in identifying responsible parties, and related expert services and property analyses. Both parties have filed motions for summary judgment.
Federal Rule of Civil Procedure 56(c) provides:
[Summary judgment] ... shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
"[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original); Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984).
Summary judgment will not lie if the dispute about a material fact is genuine; "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The purpose of the procedure is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6th Cir.1978). Therefore, summary judgment will be granted "only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is ... [and where] no genuine issue remains for trial, ... [for] the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try." Poller v. Columbia Broadcasting Sys., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (quoting Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944)); accord County of Oakland v. City of Berkley, 742 F.2d 289, 297 (6th Cir.1984).
In making this inquiry, the standard to be applied by the Court mirrors the standard for what was formerly referred to as a directed verdict. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson, 477 U.S. at 250, 106 S.Ct. 2505.
"The primary difference between the two motions is procedural; summary judgment motions are usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on the evidence that has been admitted." Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 745, n. 11, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983). In essence, though, the inquiry under each is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.
Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505. Accordingly, although summary judgment should be cautiously invoked, it is an integral part of the Federal Rules, which are designed "to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1).
In a motion for summary judgment the moving party bears the "burden of showing the absence of a genuine issue as to any material fact, and for these purposes, the [evidence submitted] must be viewed in the light most favorable to the opposing party." Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (footnote omitted); accord Adams v. Union Carbide Corp., 737 F.2d 1453, 1455-56 (6th Cir.), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984). Inferences to be drawn from the underlying facts contained in such materials must also be considered in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Watkins v. Northwestern Ohio Tractor Pullers Ass'n, 630 F.2d 1155, 1158 (6th Cir.1980). Additionally, "unexplained gaps" in materials submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion for summary judgment. Adickes, 398 U.S. at 157-60, 90 S.Ct. 1598.
If the moving party meets its burden and adequate time for discovery has been provided, summary judgment is appropriate if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. The existence of a mere scintilla of evidence in support of the opposing party's position is insufficient; there must be evidence on which the jury could reasonably find for the opposing party. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
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