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December 21, 1992

ALUMINUM COMPANY OF AMERICA, Defendant and Third-Party Plaintiff v. TRI-TERMINAL CORPORATION; EDITH MAIDMAN, as Executrix of the Estate of Irving Maidman; DONALD STEINBERG, as Executor of the Estate of Irving Maidman; 700 RIVER ROAD REALTY, INC.; EDGEWATER ASSOCIATES; CITIBANK, N.A., MONSANTO COMPANY; DOES 1 THROUGH 10, Third-Party Defendants

The opinion of the court was delivered by: MARYANNE TRUMP BARRY



 This case arises out of the environmental contamination of a parcel of land in Edgewater, New Jersey. The litigation over liability for this contamination has been waged now for more than six years. Presently under consideration is the latest round of cross-motions between Amland Properties Corp. ("Amland") and Aluminum Company of America ("Alcoa"), originally plaintiff and defendant but acting in concert since the settlement of the claims between them in mid-1991, and third-party defendants 700 River Road Realty, Inc. and Citibank, N.A. (together "Citibank"), Edgewater Associates ("Edgewater"), and Monsanto Company ("Monsanto"). Amland has moved for leave to file what it terms a "Rule 14(a) complaint" against the third party defendants. *fn1" The third-party defendants oppose the Rule 14(a) motion, asserting arguments which relate largely to the timeliness of such claims. In addition, Citibank, Edgewater Associates, and Monsanto have all moved for summary judgment dismissing the extant claims of Alcoa for contribution and indemnification.

 II. Background

 Amland initiated this action by filing a complaint against Alcoa on May 9, 1986 in which it sought to recover damages as a result of Alcoa's alleged contamination of its former manufacturing facility in Edgewater, New Jersey. The complaint alleged ultrahazardous and abnormally dangerous activity, negligence, gross negligence, private and public nuisance, and violations of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. ยง 9601 et seq., relating to Alcoa's use, discharge, disposal, storage, and containment of polychlorinated biphenyls ("PCBs"). On July 21, 1986, Alcoa filed a third-party complaint seeking contribution and indemnification against those parties who had owned the property in the time between Alcoa and Amland's ownership, namely Tri-Terminal Corp., Edith Maidman, as executrix of the estate of Irving Maidman, Donald Steinberg, as executor of the estate of Irving Maidman, 700 River Road Realty, Inc., and Edgewater Associates. Alcoa sought indemnification and contribution both under common law and under CERCLA. On May 21, 1987, Alcoa filed a third-party complaint for contribution and indemnity under the same theories against Citibank, N.A., with whom 700 River Road Realty, Inc. is affiliated. On July 25, 1989, Alcoa filed a third-party complaint against Monsanto seeking contribution and indemnification. Because Monsanto was implicated as the alleged supplier of the materials containing PCBs, rather than as a former title holder to the Edgewater site, making CERCLA recovery unavailable against it, Alcoa brought only common law contribution and indemnity claims against Monsanto. Citibank, Edgewater Associates, and Monsanto have all brought counter-claims and cross-claims against Amland, Alcoa, and each other. *fn2"

 In April, 1991, Amland and Alcoa settled the claims between them. The terms of the settlement provided for, inter alia, a sale of the property from Amland to Alcoa (with an option for Amland to repurchase the property within five years) and the assignment to Amland by Alcoa of its contribution and indemnity claims against the third-party defendants. The settlement was reduced to a consent order dated July 8, 1991, although the order provided to and signed by the court did not, as became evident only later, embody all the terms of the settlement between Amland and Alcoa or incorporate, by reference or otherwise, the much more complex settlement agreement entered into between Amland and Alcoa.

 On December 6, 1991, the court issued an opinion from the bench in which it denied Monsanto's motion for reconsideration of the July 8, 1991 consent order, denied the motion of Amland and Alcoa for partial summary judgment and for an order that the jurisdictional predicates of the New Jersey Joint Tortfeasors Contribution Act, N.J.S.A. 2A:53A-1 et seq., had been met, and granted the cross-motions for partial summary judgment of Citibank, Edgewater Associates, and Monsanto, holding that Alcoa's common law contribution claims had been extinguished. Alcoa's indemnification and CERCLA contribution claims were not before the court at that time, and the court expressed no opinion as to the viability of such claims. See Order dated March 2, 1992 (embodying the court's December 6, 1991 ruling from the bench). *fn3"

 Thus, currently left in this action and, as noted earlier, now before the court are Amland's Rule 14(a) motion by which it seeks to bring claims directly against the third-party defendants for the first time and the motions of Monsanto, Citibank, and Edgewater Associates for summary judgment as to Alcoa's yet outstanding claims of CERCLA contribution and common law indemnity.

 III. Amland's Rule 14(a) Motion

 In December, 1991, Amland moved for leave to file claims directly against the third-party defendants for the first time in the then five and a half years of litigation in this case, a delay of Rip Van Winkle-like proportions. In its proposed complaint, Amland seeks to bring claims against Monsanto for strict liability for the abnormally dangerous activity, defective product design, failure to warn, intentional breach of its duty to property owners, and negligence. In addition, Amland seeks to bring claims against the other third-party defendants for abnormally dangerous activity in the storage, use, disposal, and handling of PCBs, negligent maintenance and failure to clean up the Edgewater property, and CERCLA contribution and response costs.

 Initially, it should be noted that the third-party defendants differ in their approach as to how the Rule 14(a) motion should be treated. Monsanto contends that leave of the court is unnecessary to file the new complaint, but that the court should deem the complaint filed and grant summary judgment as to all the new claims. Citibank and Edgewater Associates, on the other hand, argue that the strength of their positions as a matter of fact and of law is sufficient ground for the court to deny leave to file the complaint. Under either guise, the substantive arguments made, if successful, would bar the claims now asserted by Amland.

 The third-party defendants oppose Amland's "Rule 14(a) complaint" on numerous grounds, including statute of limitations, laches, judicial estoppel, law of the case, preemption, and the entire controversy doctrine. The most substantial of the third-party defendants' numerous substantial objections is that Amland's proposed claims are barred by the applicable statute of limitations.

 A. Statute of Limitations

 1. State Law Causes of Action

 Amland filed its motion for leave to file the "Rule 14(a) complaint" on December 2, 1991. There is no dispute among the parties that the calculation of the timeliness of the complaint will relate back from this date. In addition, the parties do not dispute that the common law tort claims, which include all the claims against Monsanto and all the non-CERCLA claims against the non-Monsanto third-party defendants, are subject to New Jersey's six-year statute of limitations. See N.J.S.A. 2A:14-1 ("Every action at law . . . for any tortious injury to real or personal property . . . shall be commenced within 6 years next after the cause of any such action shall have accrued."). Any cause of action now raised by Amland which accrued before December 2, 1985 would be time barred. The court's inquiry must focus, then, on when the asserted causes of action accrued. See Aruta v. Keller, 134 N.J. Super. 522, 527, 342 A.2d 231 (App. Div. 1975) (determination of when a cause of action accrued is left to the court).

 Ordinarily, the statute of limitations for an action begins to run when all the elements of the cause of action are present or, more plainly, "from the moment of the wrong." Lopez v. Swyer, 62 N.J. 267, 274, 300 A.2d 563 (1973). However, New Jersey recognizes the "discovery rule," an equitable rule which seeks to "avoid harsh results that otherwise would flow from mechanical application of the statute of limitations." Vispisiano v. Ashland Chemical Co., 107 N.J. 416, 426, 527 A.2d 66 (1987); see also Lopez, 62 N.J. at 273-74. As Monsanto aptly notes, application of the discovery rule is not automatic and is not Amland's merely for the taking. Rather, it is the province of the court to take into account and balance all the equities of each case for purposes of determining whether the party invoking the rule is equitably entitled to its benefit. Lopez, ...

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