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Witco Corp. v. Beekhuis

filed: October 21, 1994; As Amended October 25, 1994.

WITCO CORPORATION, APPELLANT
v.
JEANNE V. BEEKHUIS, EXECUTRIX FOR THE ESTATE OF H. ALBERT BEEKHUIS; BRANDYWINE CHEMICAL COMPANY; WILMINGTON TRUST COMPANY, AS TRUSTEE FOR THE TRUST AGREEMENT DATED AUGUST 9, 1985 BETWEEN H. ALBERT BEEKHUIS AND WILMINGTON TRUST COMPANY; AND JEANNE V. BEEKHUIS, INDIVIDUALLY



Appeal from the United States District Court for the District of Delaware. (D.C. Civ. No. 92-cv-00301)

Before: Mansmann, Cowen and McKEE, Circuit Judges

Author: Cowen

COWEN, Circuit Judge.

In this action for contribution under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601, et seq., ("CERCLA"), Witco Corporation ("Witco") asserts its claim against: Jeanne V. Beekhuis (daughter of Dr. H. Albert Beekhuis and executrix for his estate); Wilmington Trust Company ("WTC") (trustee of two trusts created by Dr. Beekhuis); and Brandywine Chemical Company ("Brandywine Chemical") (collectively, "the defendants").

Witco's claim relates to a parcel of land ("the site") previously owned by Halby Products and Halby Chemical Company (collectively, "Halby"). Dr. Beekhuis was an officer, director and majority stockholder of Halby. The site became Witco's property in 1972 when Halby merged into Witco's subsidiary. In 1977, the site was sold to Brandywine Chemical. Thereafter, because the site was contaminated with various chemicals, the U.S. Environmental Protection Agency ("EPA") placed the site on the CERCLA National Priorities List.

In 1992, Witco entered into a consent decree with the EPA to provide for the cleanup of the site. Witco now seeks contribution from the defendants for the costs associated with cleaning the site. Witco's claim against Jeanne Beekhuis is in her representative capacity as executrix of the estate of Dr. Beekhuis, and its claim against WTC is in its capacity of trustee, charged with the responsibility of paying the debts of the estate of Dr. Beekhuis.

The district court entered two orders which are at issue in this appeal. In the first order dated May 20, 1993, the court held that the CERCLA statute of limitations for contribution did not preempt Delaware probate law. In a second order dated November 24, 1993, the district court held that the Estate was entitled to statutory indemnification from Witco. Although these two orders did not terminate the litigation, the district court by order entered on November 29, 1993, directed that judgment be entered on both orders. See Fed. R. Civ. P. 54(b).

This appeal raises one issue of first impression at the federal appellate level, and one issue of first impression in the Court of Appeals for the Third Circuit. The former is whether the three-year statute of limitations established by Congress for contribution claims under CERCLA preempts state nonclaim statutes that govern the administration of decedents' estates. The latter issue is whether under CERCLA an estate of a "potentially responsible party" can properly establish an indemnity claim pursuant to Delaware General Corporation Law. We hold that CERCLA does not preempt state nonclaim statutes, and will affirm the order of the district court granting summary judgment to the defendants. We also hold that statutory indemnification pursuant to Delaware General Corporation Law is not affected by CERCLA, and also will affirm the order of the district court granting summary judgment on the issue of indemnification.

I.

Dr. H. Albert Beekhuis was an officer, director and majority shareholder of Halby Products and Halby Chemical Company, both of which were Delaware corporations. Halby operated a chemical manufacturing and distribution business on land it owned. In 1972, Halby was merged into a Witco subsidiary, Argus Chemical Company ("Argus"), which subsequently was merged into Witco. Witco is a Delaware corporation. Argus continued to use the site in its chemical business until it sold the site to Brandywine Chemical in 1977. From that time until the present, Brandywine Chemical has used the site as a storage and repackaging facility for chemicals.

In August, 1985, Dr. Beekhuis entered into a trust agreement creating two separate inter vivos trusts, with WTC as the trustee for each trust. The first trust, into which Dr. Beekhuis placed substantially all of his assets, was to provide for income and maintenance for Dr. Beekhuis and his dependents during his lifetime. It was also to provide his estate upon his death with funds to pay debts and other expenses associated with settling his estate. The second trust was a residuary trust which was funded by property remaining after the first trust had been closed subsequent to the administration of his estate. Jeanne Beekhuis, the daughter of Dr. Beekhuis, is the primary life beneficiary of the residuary trust. Upon her death, the trust assets will be distributed to various charities.

Witco has been aware of potential environmental problems on the site since at least June of 1985, when the EPA requested information from the company in connection with its investigation of the site. In April of 1986, Witco received a Special Notice Letter from the EPA inviting it to perform a Remedial Investigation/Feasibility Study (RI/FS) Report for the site. The EPA subsequently placed the site on the CERCLA National Priorities List because it had detected various hazardous chemicals, such as lead, mercury, cyanide and arsenic in the soil at the site. In October of 1988, because of a release or a substantial threat of a release of hazardous substances at the site, the EPA commenced the RI/FS.

On October 28, 1988, Witco notified Dr. Beekhuis of his potential liability under CERCLA. Witco also requested certain insurance information from Dr. Beekhuis and informed him that the EPA had already spent approximately $700,000 investigating the site. On January 21, 1989, Dr. Beekhuis responded through his attorney by providing the requested insurance information.

On March 21, 1989, Dr. Beekhuis died. Jeanne Beekhuis, Dr. Beekhuis' daughter, was appointed executrix of the estate. Eight months later, after paying the debts of the estate and after the Delaware statute of limitations for claims against the estate had run, the trustee of the first trust placed all of the property remaining in the first trust into the residuary trust. Between the date of Dr. Beekhuis' death and November 21, 1989, Witco took no action with respect to any possible CERCLA contribution claim against the estate of Dr. Beekhuis.

On January 18, 1990, Witco wrote to the lawyer for Dr. Beekhuis' estate, apprising him of Witco's potential claim for contribution, and seeking the imposition of a constructive trust on the estate's assets pending resolution of the environmental problem at the site. The attorney advised Witco that it was premature to request the imposition of a constructive trust as no claim had yet been asserted by the EPA against Witco.

On December 4, 1990, Witco filed in Delaware state court a petition for a constructive trust on the assets in Dr. Beekhuis' estate. The court dismissed the action for failure to state a claim. In re: Estate of H. Albert Beekhuis, No. 11,853, 1992 WL 5689 (Del. Ch. Jan. 13, 1992).

On June 28, 1991, the EPA published its Final Record of Decision ("ROD") recommending remedial action for the site. The ROD recommended excavation, stabilization, backfill, and capping of contaminated surface soil at the site. In August of 1991, the EPA notified Witco, Argus, Brandywine Chemical, and the estate of Dr. Beekhuis that each was a potentially responsible party ("PRP") for the discharge of hazardous waste at the site. Each party named as a PRP was given the opportunity to participate in the planned remedial process for the site. Witco subsequently executed a consent decree with the EPA for the remediation of the contaminated soil. United States v. Witco Corp., Consent Decree, C.A. 92-93 (D. Del. April 9, 1992). Pursuant to the consent decree and the ROD, Witco has incurred remedial response costs and expenses for the site.

After executing a consent decree with the EPA for remediation of the site, Witco filed its claim and thereafter its amended claim for contribution against Jeanne Beekhuis, as executrix of the estate; WTC, as trustee; and Brandywine Chemical. The Executrix filed an answer and an amended answer to the amended complaint asserting a counterclaim against Witco for indemnification for all expenses, including attorney's fees incurred in connection with this action, the civil action in the Delaware state court, and any threatened, pending or completed EPA actions, suits, or proceedings.

The district court granted the motions of the Executrix and WTC for summary judgment on the CERCLA contribution claims. Witco Corp. v. Beekhuis, 822 F.Supp. 1084 (D. Del. 1993). In a subsequent opinion, the district court granted the Executrix's motion for summary judgment on the counterclaim against Witco for indemnification. Witco Corp. v. Beekhuis, Mem. Op., C.A. No. 92-301-RRM (D. Del. Oct. 22, 1993).

II.

A.

The district court exercised its jurisdiction pursuant to 28 U.S.C. §§ 1331, 2201, and 2202, and under 42 U.S.C. § 9613(b). We have appellate jurisdiction under 28 U.S.C. § 1291 and Fed. R. Civ. P. 54(b), in that this is an appeal from a final judgment as to some but not all parties and issues involved in the district court proceedings. On November 24, 1993, the district court ...


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