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AM PROPERTIES CORP. v. GTE PRODS. CORP.

February 15, 1994

AM PROPERTIES CORPORATION, Plaintiff,
v.
GTE PRODUCTS CORPORATION, GTE PRODUCTS OF CONNECTICUT CORPORATION, GTE SYLVANIA WIRING DEVICES INC., AND CIRFICO HOLDINGS CORPORATION, Defendants.



The opinion of the court was delivered by: MARY LITTLE PARELL

 PARELL, District Judge

 This matter comes before the Court on the renewed motion of defendant Cirfico Holdings Corporation ("Cirfico") for summary judgment. Plaintiff Am Properties Corporation ("APC") and defendants GTE Products Corporation, GTE Products of Connecticut Corporation and GTE Sylvania Wiring Devices Incorporated (collectively "GTE") oppose the motion in separate memoranda. For the reasons stated, the motion is granted.

 BACKGROUND

 A. Procedural History

 This action concerns claims arising from alleged environmental liabilities for the clean-up of several properties, including those formerly owned by Cirfico. Cirfico is a dissolved Delaware corporation. Plaintiff APC has or had an ownership in these properties. (Compl. P 10.)

 APC commenced this action on April 23, 1992 under the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA") 42 U.S.C. § 9601 et seq. APC sought to recover costs it incurred and will incur for the investigation and/or remediation of environmental contamination of the subject properties. Defendants in this action are GTE and Cirfico.

 The Complaint contained the following relevant counts: (1) cost recovery under CERCLA section 107(a); (2) contribution under CERCLA section 113; (5) negligence; (6) ultrahazardous activity; (7) contribution and indemnification; (8) New Jersey Spill Act Contribution, N.J. Stat. Ann. 58:10-23.11; and, (9) damages under the Connecticut Transfer Act, Conn. Gen. § 22a-452. GTE filed cross-claims for indemnification and contribution against Cirfico.

 By Memorandum and Order filed December 4, 1992, the Court dismissed, on motion of Cirfico, the state statute and common law claims against Cirfico because a dissolved Delaware corporation is only subject to suit for a three year period after dissolution. The Court, however, denied Cirfico's motion for summary judgment on APC's CERCLA claims. The Court found that Cirfico could still be liable under CERCLA because CERCLA preempts state statutes governing the capacity of a dissolved corporation to be sued, and provided the parties with the opportunity to have discovery in order to determine whether Cirfico possessed assets that subject it to CERCLA liability. The parties have since conducted discovery on what assets, if any, Cirfico still holds.

 B. Cirfico's "Assets"

 Cirfico was a corporation, incorporated under the laws of Delaware as Circle F. Industries, Inc. in 1971. (Ring Aff.) Circle F, or its predecessors, allegedly owned the Meade Street Property, the Monmouth Street Property (both located in Trenton, New Jersey) and the Plainville, Connecticut Property (collectively, the "subject properties"). (Compl. PP 18, 26 & 34.) GTE Products and Circle F entered into a September 20, 1979 agreement pursuant to which the subject properties, among others, were transferred to GTE Sylvania. Cirfico had a contractual right to indemnification from GTE as a result of that agreement. (APC's Br. at 2, 6; Gentile Cert. P 3, Ex. B.) On December 14, 1979, Circle F filed a Certificate of Amendment changing its corporate name to Cirfico. (Ring Aff.)

 Circle F had various insurance policies between 1968 and 1980. (APC's Br. at 2, n.1.; Gentile Cert. P 1.) According to APC, Cirfico paid more than $ 100,000 in premiums for general liability and insurance coverage in 1979. (Gentile Cert. P 2, Ex. A.) APC contends that these policies may provide coverage for the claims asserted in this litigation. (APC's Br. at 2.)

 On March 12, 1984, Cirfico's Board of Directors adopted a Plan of Dissolution and Liquidation. The Plan, which provided for liquidation on or before May 13, 1985, was approved by Cirfico's stockholders on May 14, 1984. On June 18, 1984, Cirfico distributed by way of liquidation a total of $ 7,609,420 to its stockholders, retaining approximately $ 3,800,000, of which $ 1,140,000 was transferred to a liquidating trust to satisfy liabilities upon dissolution. The co-trustees were Victor Seidman and Edward Ring. (Ring Aff.)

 Cirfico filed for dissolution in June 1984. On July 23, 1984, the Secretary of State of the State of Delaware certified that Cirfico was dissolved in accordance with the law of Delaware. In the meanwhile, Cirfico continued the liquidation of its assets. On April 8, 1985, Cirfico's Board of Directors directed payment of a final liquidating distribution to stockholders of record as of May 8, 1985 in the amount of $ 2.50 per share or $ 2,717,650 aggregate. Cirfico's Stock Transfer book was permanently closed that same day. In December 1988, the Liquidating Trust terminated and final distribution was made to the stockholders of all assets that had been retained in the liquidating trust. (Ring Aff.)

 C. Present Motion

 Cirfico argues in this motion that none of the facts discussed above suggest that it is a proper defendant in this CERCLA case. Cirfico, a dissolved corporation, requests summary judgment on the ground that it does not possess ...


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