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 assets that would render it amenable to suit under CERCLA.
In response, APC argues that Cirfico's insurance policies and contractual indemnification rights constitute assets of Cirfico, such that Cirfico, a dissolved corporation, may properly be sued under CERCLA. GTE similarly contends in opposition to Cirfico's motion that the insurance policies are assets of Cirfico for purposes of this CERCLA case. GTE argues in the alternative that if Cirfico's insurance policies are not assets, Cirfico should be dismissed subject to the limited right of GTE to assert CERCLA claims against Cirfico to protect potential claims, allegedly permitted under Delaware law, against Cirfico's former shareholders.
SUMMARY JUDGMENT STANDARD
A court shall enter summary judgment under Federal Rule of Civil Procedure 56(c) when the moving party demonstrates that there is no genuine issue of material fact and that the evidence establishes the moving party's entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the moving party has satisfied this initial burden, the opposing party must establish that a genuine issue of fact exists. Jersey Cent. Power & Light Co. v. Lacey Township, 772 F.2d 1103, 1109 (3d Cir. 1985), cert. denied, 475 U.S. 1013, 89 L. Ed. 2d 305, 106 S. Ct. 1190 (1986). The opposing party cannot rest on mere allegation; it must present actual evidence that creates a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (citing First Nat'l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)). Issues of fact are genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248.
A. Non-CERCLA Claims
It has previously been determined in this litigation that Cirfico is not subject to suit under common law and state statute theories of liability. Fed. R. Civ. P. 17(b) provides in relevant part that
the capacity of a corporation to sue or be sued shall be determined by the law under which it is organized.
Cirfico was organized under the laws of the State of Delaware, which provide that a dissolving corporation is generally only subject to suit for a three year period after dissolution. Del. Code Ann. tit. 8, § 278.
Cirfico dissolved in 1984, more than three years prior to the present suit. Accordingly, the common law and state statute claims against Cirfico have been dismissed pursuant to Fed. R. Civ. P. 17(b).
B. CERCLA Claims
This Court has also already addressed, in this litigation, the issue of whether Cirfico's non-amenability to suit under Delaware law shields it from suit under CERCLA. CERCLA broadly establishes the liability of owners and operators of hazardous waste processing and disposal facilities. CERCLA provides in relevant part:
Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section --