Interstate Power Co. v. Kansas City Power & Light Co., C89-3033.

Decision Date01 October 1991
Docket NumberNo. C89-3033.,C89-3033.
Citation909 F. Supp. 1224
PartiesINTERSTATE POWER COMPANY, a Delaware corporation, Plaintiff, v. KANSAS CITY POWER & LIGHT COMPANY, a Missouri corporation, Defendant and Third-Party Plaintiff, v. IOWA-ILLINOIS GAS & ELECTRIC COMPANY and Bob McKiness Excavating & Grading, Inc., Third-Party Defendants.
CourtU.S. District Court — Northern District of Iowa

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kent M. Ragsdale, Dubuque, IA, Clement F. Springer, Jr., Ronald W. Teeple, John L. Leonard, Defrees & Fiske, Chicago, IL, for Interstate Power Company.

Mark L. Zaiger, Shuttleworth & Ingersoll, Cedar Rapids, IA, Jerome T. Wolf, Terry W. Schackmann, Barry L. Pickens, Spencer Fane Britt & Browne, Kansas City, MO, Mark G. English, Kansas City Power & Light, Kansas City, MO, for Kansas City Power and Light Co.

Stephen D. Hardy, Grefe & Sidney, Des Moines, IA, David C. Duncan, Stephen D. Hardy, Iris J. Post, Grefe & Sidney, Des Moines, IA, for Bob McKiness Excavating & Grading, Inc.

Thomas J. Shields, Lane Waterman, Davenport, IA, Cathy S. Woollums, Iowa-Illinois Gas & Electric Co., Davenport, IA, Robert M. Olian, Pamela R. Hanebutt, Arlene Haas, Sidley & Austin, Chicago, IL, for Iowa Illinois Gas and Electric Co.

Anne L. Clark, Philip H. Dorff, Jr., Hopkins Huebner, Des Moines, IA, for City of Mason City, Iowa.

Craig A. Kelinson, Asst. Atty. Gen., Des Moines, IA, for Iowa Department of Natural Resources.

ORDER

HANSEN, District Judge.

This matter is before the court on defendant's resisted motion for summary judgment on Counts I through X of plaintiff's complaint, filed February 21, 1990, and resisted motion to dismiss Counts III through VII, IX, and X of that complaint, filed April 23, 1990. The court acknowledges defendant's supplemental memorandum in support of its summary judgment motion, filed February 27, 1991, and plaintiff's response, filed March 12, 1991. This court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 9613(b).

This case arises out of the sale of real property in Mason City, Cerro Gordo County, Iowa, to plaintiff Interstate Power Company (IPC) by defendant Kansas City Power & Light Company (KCPL) in 1957. Plaintiff is primarily engaged in the business of generating, transmitting, and selling electric energy and selling natural gas. Complaint, filed May 12, 1989, at 1. Defendant is engaged in the business of generating, transmitting, and selling electricity. Id.

Defendant purchased the Mason City site in 1932 from Peoples' Gas & Electric Company (Peoples), which, from 1906 to 1932, had operated a coal and water gas manufacturing plant at the site. Id. at 2-3. In 1932, as part of an "intra-holding company restructuring and reshuffling," defendant acquired Peoples' assets, including the Mason City site and the gas manufacturing plant. Id. at 3. As part of this arrangement, defendant accepted and assumed all of Peoples' liabilities, and Peoples continued to manage the Mason City site as defendant's agent pursuant to an agency agreement. Id. at 3-4. In 1950, the agency agreement was terminated, and defendant continued to operate the site until the 1957 sale to plaintiff. Id. at 4.

Plaintiff claims that during the period of time that defendant and Peoples owned and operated the Mason City site and plant, residues from the plant were generated and deposited on and into the ground at the site. Id. at 6-7. These residues were in the form of coal tar and water gas tar, both of which are oily, sticky substances. Id. at 7. Plaintiff claims that these residues may have been deposited by defendant and Peoples or have reached the adjacent Willow Creek by way of contaminated alluvial groundwater. Id.

The gas manufacturing plant at Mason City was demolished in 1952. During or after the demolition, plaintiff alleges that defendant buried "deep into the ground" all of the coal tar and water gas tar located at the site, removing it from view. Id. Plaintiff claims that when it purchased the site in 1957, the tar residues were hidden from view and that defendant never advised plaintiff that there were such tar residues present beneath the surface. Id. at 7-8.

Plaintiff claims that it first became aware of the presence of the residues in 1984 when the city of Mason City uncovered deposits of tar beneath the ground when it was installing a sewer line. Id. at 8. Plaintiff notified the State of Iowa and the Environmental Protection Agency (EPA), which conducted extensive testing at the site. Id. Large amounts of buried coal gas tar and water gas tar were found. Id.

Pursuant to the strict liability provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended, 42 U.S.C. § 9601 et. seq., a consent order imposing one-hundred percent of the clean-up and monitoring costs on plaintiff was entered into between plaintiff and the EPA on June 3, 1986. Id. at 8-9 (citing exhibit A, consent order). As a result of this consent order, plaintiff alleges that it has and will incur substantial costs. Id. at 9-10.

Plaintiff claims that defendant is responsible for all or part of the total cost of implementing the consent order, charging the defendant with responsibility for the existence of hazardous substances on the site and possibly on adjacent properties and waterways. Plaintiff seeks the following relief:

Count I — reimbursement from defendant for all of the consent order costs charged to and incurred or to be incurred by plaintiff pursuant to 42 U.S.C. § 9607(a);
Count II — declaratory judgment and contribution pursuant to 42 U.S.C. § 9613(f)(1);
Count III — declaratory judgment and liability pursuant to the Superfund Amendments and Reauthorization Act (SARA), 42 U.S.C. § 9601(35)(C);
Count IV — common-law liability for indemnity for abatement of nuisance;
Count V — common-law liability for contribution for abatement of nuisance;
Count VI — common-law liability for indemnity;
Count VII — common-law liability for contribution and;
Count VIII — declaratory judgment on the indemnity agreement.

On April 16, 1990, plaintiff amended its complaint to assert the following two additional causes of action:

Count IX — strict liability under CERCLA; and
Count X — common-law strict liability.

Although these last two claims were raised after defendant filed its motion for summary judgment on February 21, 1990, the court believes that the scope of defendant's motion encompasses the latter-raised claims as well and will include these claims in its analysis. See also plaintiff's brief in response to defendant's motion for summary judgment, filed April 12, 1990, at 38-43 (addressing Counts IX and X).1

I. Motion for summary judgment

Defendant moves for summary judgment on all of plaintiff's claims directed at KCPL, alleging that an indemnification agreement signed by the parties when plaintiff purchased the property is sufficient as a matter of law, under both CERCLA and Iowa law, to bar plaintiff's action.

A motion for summary judgment may be granted only if, after examining all of the evidence in the light most favorable to the nonmoving party, the court finds that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Kegel v. Runnels, 793 F.2d 924, 926 (8th Cir.1986). Once the movant has properly supported its motion, the non-movant "may not rest upon the mere allegations or denials of its pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e). The nonmovant "may not simply rest on the hope of discrediting the movant's evidence at trial." Matter of Citizens Loan & Sav. Co., 621 F.2d 911, 913 (8th Cir.1980). "To preclude the entry of summary judgment, the nonmovant must show that, on an element essential to its case and on which it will bear the burden of proof at trial, there are genuine issues of material fact." Noll v. Petrovsky, 828 F.2d 461, 462 (8th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)), cert. denied, 484 U.S. 1014, 108 S.Ct. 718, 98 L.Ed.2d 668 (1988).

Although "direct proof is not required to create a jury question, ... to avoid summary judgment, `the facts and circumstances relied upon must attain the dignity of substantial evidence and must not be such as merely to create a suspicion.'" Metge v. Baehler, 762 F.2d 621, 625 (8th Cir.1985) (quoting Impro Products, Inc. v. Herrick, 715 F.2d 1267, 1272 (8th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1282, 79 L.Ed.2d 686 (1984)), cert. denied, 474 U.S. 1057, 106 S.Ct. 798, 88 L.Ed.2d 774 (1986). In applying these standards, the court must give the nonmoving party the benefit of all reasonable inferences to be drawn from the evidence. Krause v. Perryman, 827 F.2d 346, 350 (8th Cir.1987).

The indemnification agreement contained within the 1957 contract to sell KCPL's business and physical properties to IPC provides:

(c) Covenants: The Buyer IPC covenants and agrees with the Seller KCPL that the Buyer will take possession and control of the Iowa Properties at 5:00 p.m., Central Standard Time, on the Closing Date and that from and after such time the Buyer will assume and will indemnify the Seller against all liabilities and obligations of every kind and character whatsoever arising subsequent to the closing date as pertain to the business and operations of the Iowa Properties, including obligations and liabilities arising subsequent to the Closing Date on account of contracts and other commitments made by the Seller in the ordinary course of business prior to the Closing Date, except any liability arising out of certain litigation now pending in the United States Court of Appeals for the Eighth Circuit, entitled First Iowa Hydro Electric Cooperative, et al., v. Iowa-Illinois Gas and Electric Company, et al., Civil Nos. 15548 and 15549.

Defendant's...

To continue reading

Request your trial
7 cases
  • Jones v. Hubbard, 25
    • United States
    • Court of Appeals of Maryland
    • November 16, 1999
    ...courts in other jurisdictions define "rendition of judgment" consistent with this interpretation. Interstate Power Co. v. Kansas City Power & Light Co., 909 F.Supp. 1224, 1238 (N.D.Iowa 1991) ("[A] judgment is rendered `when it is announced, or when the judge signs an enrolled judgment orde......
  • Canadyne-Georgia Corp. v. Cleveland, 5:96-CV-114-1 DF.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Georgia
    • September 30, 1999
    ...agreement did not evidence an intent to transfer environmental liability. See id. see also Interstate Power Co. v. Kansas City Power & Light Co., 909 F.Supp. 1224, 1232-33 (N.D.Iowa 1991) (absent clear, unambiguous reference to environmental or contingent liability, court would not recogniz......
  • Kennedy Building Associates v. Viacom, Inc., 03-1520.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 15, 2004
    ...Hanlin Group, Inc. v. Int'l Minerals & Chem. Corp., 759 F.Supp. 925, 934 (D.Me.1990); see also Interstate Power Co. v. Kansas City Power & Light Co., 909 F.Supp. 1224, 1240 (N.D.Iowa 1991) (denying summary judgment on strict liability claim brought by land-owner against predecessor in title......
  • Briggs & Stratton Corp. v. Concrete Sales & Services, 5:95-CV-525-1 (WDO).
    • United States
    • United States District Courts. 11th Circuit. Middle District of Georgia
    • December 10, 1998
    ...See Akzo Coatings of America, Inc. v. American Renovating, 842 F.Supp. 267, 273 (E.D.Mich. 1993); Interstate Power Co. v. Kansas City Power & Light Co., 909 F.Supp. 1224, 1239 (N.D.Iowa 1991); Westwood Pharmaceuticals v. National Fuel Gas Distr. Corp., 737 F.Supp. 1272, 1281 ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT