ELR Citation: ELR 20189
No(s). C 04-4357 PJH (N.D. Cal. Sep 19, 2005)

The court denies an insurance company's motion to dismiss individuals' action for "recovery of response costs" under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The insurance company argued that because the individuals did not assert their CERCLA claim for contribution during or following a civil action under §§106 or 107(a), the claim must be dismissed for lack of subject matter jurisdiction. In Cooper Industries, Inc. v. Aviall Services, Inc., 125 S. Ct. 577, 34 ELR 20154 (2004), the U.S. Supreme Court barred a §113(f) claim in the absence of a prior action under §§106 or 107(a) or a judicially approved settlement. Yet the Court expressly left open the question of whether §107(a) provides an avenue for recovery by potentially responsible parties (PRPs) such as the plaintiffs here. Because Ninth Circuit precedent provides that CERCLA §107(a) provides an implied right of contribution for PRPs, and because this implied right of contribution was not overruled by Aviall, the court has jurisdiction and the insurance company's motion to dismiss was denied.