ELR Citation: ELR 21009
No(s). 91-CV-364S(F) (W.D.N.Y. Feb 26, 1997)

The court refuses to certify for interlocutory appeal questions on the standard of due care required under the Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA's) third-party defense and on whether CERCLA preempts state law on a dissolved corporation's capacity to be sued. The court first denies the request of two defendant corporations—a dissolved corporation and its parent—to certify the question whether failure to implement site perimeter security measures, or to prevent rain from causing contaminants to migrate, constitutes failure to take due care under the third-party defense. Although this issue could materially affect the outcome of the case, there is no basis to find that a substantial ground for a difference of opinion exists on this issue, because the Second Circuit has agreed with the principle that due care requires an affirmative response. In addition, the question that the corporations seek to certify does not fully state the grounds on which the court relied when it found that they were not entitled to raise the third-party defense. The court rejects the corporations' argument that some courts are uncertain what due care requires and prefer to leave the issue to a jury. The Second Circuit does not require that this issue go to a jury. The court further notes that proceeding immediately to appeal of this issue will prolong the time that it takes to go to trial.

The court next denies the corporations' request to certify the question whether CERCLA preempts state capacity laws so that a corporation that has been properly dissolved under state law may be sued under CERCLA. The court has already determined that CERCLA preempts relevant state law on this issue. Although the issue is controlling and there is a split of authority on it, certification will not materially advance the ultimate termination of the litigation. Even if the Second Circuit were to agree with defendants, a party would argue that the defendant dissolved corporation was improperly dissolved and is still subject to CERCLA liability. To dismiss the dissolved corporation from this lawsuit, to continue the proceedings with the remaining parties, and then to litigate the question of the propriety of the corporation's dissolution, with the possibility that the corporation would be subject to CERCLA liability, would prolong the litigation.

[Other opinions in this litigation are published at 26 ELR 21027 and 27 ELR 21003.]

Counsel for Plaintiffs
Robert E. Glanville
Phillips, Lytle, Hitchcock, Blaine & Huber
3400 Marine Midland Ctr., Buffalo NY 14203
(716) 847-8400

Counsel for Defendants
Peter G. Ruppar
Duke, Holzman, Yaeger & Photiadis
2500 Main Pl. Tower, Buffalo NY 14202
(716) 855-1111