United States District Court, D. Arizona
Motion to Dismiss
H. RUSSEL HOLLAND, District Judge.
Defendant Viad Corporation moves to dismiss plaintiff's first amended complaint. This motion is opposed. Oral argument was not requested and is not deemed necessary.
Plaintiff is Greyhound Lines, Inc. Defendant is Viad Corporation.
On December 22, 1986, the parties' corporate predecessors entered into an Acquisition Agreement, whereby plaintiff acquired real estate and other assets owned by defendant. "The Acquisition Agreement provided that [d]efendant would indemnify [p]laintiff for any liability or obligation of [d]efendant, as well as [for] any claim for property damage resulting from [d]efendant's prior activities at the transferred properties."
On March 18, 1987, the parties entered into a Third Amendment to the Acquisition Agreement which "provided that [d]efendant would indemnify [p]laintiff for [d]efendant's proportionate share of costs, fees, expenses, fines, penalties, or any governmental levies associated with environmental remediation necessitated by leaking underground storage tanks and other hazardous substances located at properties previously owned by [d]efendant which had been sold to [p]laintiff."
In August 1991, the parties entered into "a Claims Treatment Agreement which modified the indemnity provisions of the Third Amendment. The Claims Treatment Agreement required [d]efendant to indemnify [p]laintiff for environmental liabilities which were identified prior to March 1, 1992." "On October 1, 1991, [d]efendant confirmed by letter sent to [p]laintiff, the proportionate allocation of [d]efendant's liability and obligation to pay for environmental assessment and remediation costs associated with forty-one (41) identified properties...."
"On March 10, 1999, [p]laintiff and [d]efendant entered into a Settlement Agreement... whereby [d]efendant confirmed its indemnity obligations to [p]laintiff for properties where [d]efendant was notified about contamination prior to March 1, 1992." The Settlement Agreement provides that plaintiff "shall be liable for and shall perform all Environmental Obligations with respect to all Properties, except for Environmental Obligations which" defendant was notified about prior to March 1, 1992. The Settlement Agreement further provides that defendant continues to be liable for Environmental Obligations about which it was notified prior to March 1, 1992. "Environmental Obligations" are defined in the 1999 Settlement Agreement as:
any and all liabilities and obligations, whether statutory, regulatory, contractual, legal, financial or otherwise, relating to the physical or environmental condition of a Property..., including but not limited to the presence, use or release of Hazardous Materials... at a Property, the migration of Hazardous Materials to or from a Property, the transportation of Hazardous Materials from a Property, or off-site disposal of Hazardous Materials which were kept, used or stored at a Property, regardless of whether such liability or obligation is predicated upon tort, contract, strict liability, warranty, Superfund, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980..., the Resource Conservation and Recovery Act, ... or any other state or federal statute, law, ordinance, or other basis of liability for damage to the environment[.
Plaintiff alleges that it "has incurred and continues to incur substantial costs associated with the performance of assessment and remediation of contamination at the Listed Properties, which contamination was identified prior to March 1, 1992, and of which [d]efendant had actual knowledge prior to March 1, 1992." Plaintiff further alleges that it "has notified [d]efendant of its indemnification obligation and demanded indemnification" but that "[d]efendant has failed to provide any response to [p]laintiff's demands for indemnification."
On November 12, 2013, plaintiff commenced this action in which it seeks to recover the remediation costs it has incurred in connection with the 41 Listed Properties. In its amended complaint, plaintiff asserts a CERCLA cost recovery claim, a breach of contract claim, an express contractual indemnity claim, and a claim for declaratory relief in which plaintiff asks the court to declare, based on its agreements with defendant, that "[d]efendant is liable for all past and future response costs or other costs, liabilities or damages arising from the contamination originating on the Listed Properties[.]"
Pursuant to Rules 12(b)(1) and 12(b)(6), Federal Rules of Civil Procedure, defendant now moves to dismiss ...