Ford Motor Company v. United States

SCHALL, Circuit Judge,

dissenting.

I agree with the majority that the Contract Settlement Act of 1944 applies to Ford’s claim, and that Ford’s complaint was timely filed. I am unable to agree, however, that Ford is entitled to recover its contribution to the CERCLA settlement under the terms of the War Contract. Because I do not agree with the majority’s interpretation of the War Contract, I respectfully dissent from its conclusion that pursuant to the indemnification clause in the Termination Agreement, the government must reimburse Ford for its contribution to the CERCLA settlement. I therefore would affirm the judgment of the Court of Federal Claims.

In cases in which the United States is a party to a contract, we apply general rules of contract construction. Scott Timber Co. v. United States, 333 F.3d 1358, 1366 (Fed.Cir.2003) (citing Lockheed Martin IR Imaging Sys., Inc. v. West, 108 F.3d 319, 322 (Fed.Cir.1997)). “When the United States *1321enters into contract relations, its rights and duties therein are governed generally by the law applicable to contracts between private individuals.” United States v. Winstar Corp., 518 U.S. 839, 895, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996) (quoting Lynch v. United States, 292 U.S. 571, 579, 54 S.Ct. 840, 78 L.Ed. 1434 (1934)). “A principal objective in deciding what contractual language means is to discern the parties’ intent at the time the contract was signed.” Winstar Corp. v. United States, 64 F.3d 1531, 1540 (Fed.Cir.1995) (en banc) (citing Arizona v. United States, 216 Ct.Cl. 221, 575 F.2d 855, 863 (1978)). In this case, it cannot be questioned that neither Ford nor the government could have intended for the indemnification clause in the Termination Agreement to cover claims against Ford based on CERCLA liability. CERCLA was not enacted until 1980, thirty-three years after the termination of the War Contract. This fact does not alone, however, preclude the indemnity from encompassing Ford’s claims against the government for reimbursement of its contribution to the CERCLA settlement.

It is one thing to interpret CERCLA section 107(e)(1), as we have, as permitting the government to indemnify a private party for costs assessed pursuant to CERCLA. E.I. DuPont de Nemours & Co. v. United States, 365 F.3d 1367, 1372 n. 10 (Fed.Cir.2004) (interpreting 42 U.S.C. § 9607(e)(1) (2000)).2 It is another question altogether, however, whether an indemnification provision entered into more than thirty years prior to the passage of CERCLA can encompass CERC-LA costs. While I agree with the courts that allow for the possibility of CERCLA costs being within the scope of an indemnification provision executed before the passage of CERCLA, I do not think that the contract language in the Termination Agreement and War Contract in this case is sufficient to accomplish that result.

As noted above, the laws of contracts generally applicable to private parties also determine the government’s rights and responsibilities when it enters into contracts. See Winstar, 518 U.S. at 895, 116 S.Ct. 2432. Courts have held that indemnification provisions entered into between private parties prior to the passage of CERC-LA may cover costs assessed pursuant to that statute. See, e.g., Dent v. Beazer Materials & Servs., Inc., 156 F.3d 523, 534 (4th Cir.1998); Beazer E., Inc. v. Mead Corp., 34 F.3d 206, 211 (3d Cir.1994), cert. denied, 514 U.S. 1065, 115 S.Ct. 1696, 131 L.Ed.2d 559 (1995); Kerr-McGee Chem. Corp. v. Lefton Iron & Metal Co., 14 F.3d 321, 327 (7th Cir.1994); Mobay Corp. v. Allied-Signal, Inc., 761 F.Supp. 345, 356-58 (D.N.J.1991). One of two types of indemnification provisions is required. The indemnification language must either be “specific enough to include CERCLA liability or general enough to include any and *1322all environmental liability....” Beazer E., 34 F.3d at 211. The key is whether the indemnity contains limiting language, or whether it demonstrates an intent to allocate all possible liabilities among the parties. See Elf Atochem N. Am. v. United States, 866 F.Supp. 868, 870-71 (E.D.Pa.1994). If there is limiting language in the indemnity, without a specific provision for CERCLA costs, it does not encompass them. Id. (citing Purolator Prods. Corp. v. Allied-Signal, Inc., 772 F.Supp. 124, 130 (W.D.N.Y.1991)).

The indemnification provision in the Termination Agreement preserves

(4) Claims of [Ford] against the Government which are based upon responsibility of [Ford] to Third parties ... and which involve costs reimbursable under the Contract, including without being limited thereto, wage adjustments which are approved by properly constituted Government Departments or Agencies or determined to be payable under the Davis-Bacon Act, but which are not now known to the Officers, Directors, or other personnel of [Ford]....
‡ # # sfc # Hí
(1) In addition to the payment of the sum provided for in Article 4, the government will reimburse [Ford] for costs incurred in discharging claims described in subparagraphs (c)(1), (c)(3), (c)(4), (c)(6), (c)(7), and (c)(16) of said Article.

Supplemental Agreement No. 69, arts. 4(c)(4), 5(1) (May 7, 1946) (emphases added). In other words, upon the termination of the War Contract, Ford retained its claims against the government for costs that were reimbursable under the War Contract but were not known at the time of the Termination Agreement. This indemnity provision thereby directs the court to the reimbursable costs provisions of the War Contract. Ford contends that the following provision from the War Contract encompasses its contribution to the CERCLA settlement:

(13) ... costs and expenses incurred in the defense and/or discharge of such claims of others on account of death or bodily injury of persons or loss or destruction of or damage to property as may arise out of or in connection with the performance of the work under this contract shall be an allowable item of cost hereunder....

Supplemental Agreement No. 4, art. 3(b)(13) (emphasis added). According to Ford, costs assessed pursuant to CERC-LA fall within the “loss or destruction of or damage to property” clause in this provision because they arose as a direct result of Ford’s performance of the War Contract.

I do not agree. This language fails to transfer the responsibility for paying Ford’s CERCLA costs to the government. It neither specifically mentions CERCLA, nor is it broad enough to include “any and all environmental liability.... ” Beazer E., 34 F.3d at 211. The provision is one of fourteen reimbursable cost provisions in article 3(b) of the War Contract. In these provisions, the parties to the contract set forth in detail the specific costs for which the government would reimburse Ford. The reimbursable cost provisions demonstrate that the parties to the War Contract did not intend to shift all liabilities to the government, but only those explicitly listed in the War Contract as reimbursable. Moreover, the language of article 3(b)(13) is limiting. Only costs for the “loss or destruction of or damage to property” are reimbursable. Under these circumstances, CERCLA costs do not fall within the ambit of “costs reimbursable under the Contract” under the Termination Agreement. Accordingly, I would rule that the indemnification provision in this case is insufficient to transfer the financial responsibility for Ford’s CERCLA costs to the United States.

*1323My conclusion is consistent with this court’s recent decision in DuPont. The language of the indemnification clause in DuPont included claims against “any loss, expense (including expense of litigation), or damage (including damage to third persons because of death, bodily injury or property injury or destruction or otherwise) of any kind whatsoever....” 365 F.3d at 1372. We concluded that such limitless language was sufficiently broad to include the contractor’s CERCLA liability. Id. at 1372-73 (citing, inter alia, Beazer E., 34 F.3d at 210; Elf Atochem, 866 F.Supp. at 870). In my view, the narrow indemnification language in this case compels a contrary conclusion. My view is also consistent with Elf Atochem, which this court cited in DuPont and which also involved a party (the government) claiming reimbursement for CERCLA costs pursuant to a World War II contract. 866 F.Supp. 868. Similar to the one in this case, the indemnity clause there provided that

Lessee [Elf Atochem] agrees to save Defense Corporation [United States] harmless against any liability whatsoever because of accidents or injury to persons or property occurring in the operation or use of the [leased] Machinery by Lessee....

Id. at 870. The government argued that this indemnity covered Lability under CERCLA. Id. Relying on Beazer East, 34 F.3d 206, the court determined that this language did not “clearly or unequivocally” allocate “all present and future claims”: “It is not a broad waiver of ‘all liabilities of any type whatsoever,’ but rather a waiver of all liabilities of a specific nature.” Id. at 871. Because the clause did not specifically include CERCLA, the court concluded that the clause did not indemnify the United States for CERCLA costs.3 Id.

The court in Elf Atochem further relied on Mobay, which also involved indemnification language very similar to the reimbursable costs provision in Ford’s War Contract. In Mobay, Harmon Color Works, which later merged into Mobay Corporation, had purchased the site at issue from Allied Chemical Corporation, a predecessor of Allied-Signal, Inc., pursuant to a purchase agreement dated 1976 and an assumption agreement dated 1977. 761 F.Supp. at 348. The agreement stated that Harmon Color Works would indemnify Allied Chemical from

(2)(b) all obligations and liabilities relating to the Haledon Plant or Haledon Products arising out of claims made, or suits brought, on or after the Closing Date for (i) injury, sickness, disease or death of any person, or (ii) any damages to any property, in either case which is ultimately determined by the finder of fact to have resulted from any condition existing, substance consumed or dis*1324charged, product manufactured or action taken or omitted....

Id. (emphasis added). Allied-Signal asserted that the assumption agreement transferred liabilities for environmental claims to Harmon Color Works. Id. at 355. The court concluded that the indemnification did not encompass environmental liabilities, for it neither mentioned environmental liabilities specifically nor broadly waived all liabilities. Id. at 355-58, 358 n. 15. Rather, “Mobay’s predecessor only assumed liabilities for personal injury and property damage to third parties.... ”4 Id. at 358.

Accordingly, because I do not agree with the majority’s interpretation of the Termination Agreement and War Contract, I respectfully dissent from the majority’s conclusion that pursuant to the indemnification in the Termination Agreement, the government must reimburse Ford for its contribution to the CERCLA settlement. As indicated above, I therefore would affirm the judgment of the Court of Federal Claims.

. Section 107(e)(1) of CERCLA reads as follows:

No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or operator of any vessel or facility or from any person who may be liable for a release or threat of release under this section, to any other person the liability imposed under this section. Nothing in this subsection shall bar any agreement to insure, hold harmless, or indemnify a party to such agreement for any liability under this section.

42 U.S.C. § 9607(e)(1). For a listing of cases interpreting this language to prohibit a party from escaping liability to the government, while at the same time permitting contractual transfers of financial responsibility among private parties, see Interstate Power Co. v. Kansas City Power & Light Co., 909 F.Supp. 1241, 1264 (N.D.Iowa 1993), which lists each circuit that has come to that conclusion. But see Olin Corp. v. Consol. Aluminum Corp., 807 F.Supp. 1133, 1137-39 (S.D.N.Y.1992) (discussing three different approaches before settling on the approach from Interstate Power).

. But see Olin Corp. v. Yeargin Inc., 146 F.3d 398, 408-09 (6th Cir.1998) ("Applying these rules to the indemnification agreement in the instant case, we find that, while there is no specific reference in the agreement to environmental liability, the language is sufficiently broad to encompass the environmental liabilities suffered here. In the contract, Yeargin agrees to ‘indemnify and hold Owner harmless from any and all loss, damage, liability, claims, demands, costs, or suits of any nature whatsoever asserted by employees of Contractor or any third persons ... for property damage, personal injury or death, or otherwise.' ” (emphasis in original)) (Contie, L, dissenting (relying on Beazer East, Elf Atochem, and Mobay to conclude that the indemnity did not extend to CERCLA liabilities)); Joslyn Mfg. Co. v. Koppers Co., Inc., 40 F.3d 750, 754-55 (5th Cir.1994) (construing similarly worded indemnities in lease agreements executed prior to 1950 for, in part, "death, injury, loss or damage, resulting to the ... employees or property” and for "injury, death, damage, loss or destruction (a) suffered or caused by or to any person or property” as encompassing CERCLA liability).

. My conclusion is also consistent with the holdings of various courts extending the scope of extremely broad pre-CERCLA indemnification provisions to reach CERCLA costs. See, e.g., White Consol. Indus., Inc. v. Westinghouse Elec. Corp., 179 F.3d 403, 409-10 (6th Cir.1999) ("All obligations and liabilities of the Business, contingent, or otherwise, which are not disclosed or known....”); Dent, 156 F.3d at 534 ("[Beazer] agrees to save [Conoco] harmless from any and every claim arising out of the use by [Beazer] of the demised premises....”); SmithKline Beecham Corp. v. Rohm & Haas Co., 89 F.3d 154, 159-60 (3d Cir.1996) ("All material liabilities relating to the conduct of the Business .. .”; "All losses, liabilities, damages or deficiencies ... resulting from the operation of the Business....”); Olin, 807 F.Supp. at 1142-43 ("[A]ll claims of any nature which Conalco now has or hereafter could have against Olin ... under or arising out of the Purchase Agreement....”); Purolator Prods., 772 F.Supp. at 131-32 ("Facet hereby assumes and agrees to satisfy all liabilities and obligations of Bendix ... relating to or arising out of the Assets ....”); see also Kerr-McGee, 14 F.3d at 326-28 (finding the indemnification language "any and all claims, damages, judgments, fines, penalties, assessments, losses, expenses, including interest, court costs and attorney fees ... arising out of or resulting from, directly or indirectly ... (b) the maintenance of any action, claim or order concerning pollution or nuisance” sufficient to cover CERCLA costs because it expressly referred to "pollution or nuisance”).