ELR Citation: ELR 20916
No(s). 5-95-298 (PAM/RLE) (D. Minn. Feb 5, 1997)

The court holds that under Minnesota law, public policy prohibits a contractor that demolished a city-owned warehouse and allegedly violated the Clean Air Act's (CAA's) asbestos regulations from asserting a third-party claim for indemnity against the city. The court first holds that because the contractor's complaint against the city is not itself based on federal law, it must be determined under Minnesota's law of indemnification. Minnesota law does not allow indemnification if its application would violate public policy. Given the importance that Congress has placed on air quality—as reflected by the CAA's application of strict liability to offending owners and operators—the court concludes that an operator's action for indemnification is not cognizable under Minnesota law. Further, under Minnesota law, a contract may not relieve a person from the discharge of an absolute duty that has been imposed by law for the protection of others. The contractor seeks indemnification in an effort to relieve itself from the consequences of having allegedly violated a statutory duty that has been imposed for the protection of others. In addition, to permit indemnification in this instance would undermine the policies fostered by the CAA, for Congress concluded that both owners and operators should be held responsible for ensuring compliance with the asbestos regulations. Moreover, allowing the contractor to indemnify itself for any strict liability penalties could effectively remove any incentive on the contractor's part to comply with the governing air quality regulations. And even if the city is primarily liable for the alleged violations, the contractor will not be prejudiced by the court's order, because §113(e) requires the court to consider a variety of specific criteria in assessing the amount of any civil penalty.

Counsel for Plaintiff
Friedrich A.P. Siekert, Ass't U.S. Attorney
U.S. Attorney's Office
234 U.S. CtHse.
110 S. 4th St., Minneapolis MN 55401
(612) 348-1500

Counsel for Defendant
Carrier A. Green
Fabyanske, Svoboda, Westra & Hart
920 Second Ave. S., Ste. 1100, Minneapolis MN 55402
(612) 338-0115