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Kleen Laundry & Dry Cleaning Servs., Inc. v. Total Waste Management Corp.

ELR Citation: 24 ELR 21411
Nos. No. 91-493-JD, 817 F. Supp. 225/(D.N.H., 03/19/1993)

The court holds that the buyer of assets of three business entities that had leased underground oil storage tanks from a property owner may be held liable for the property owner's hazardous waste cleanup costs as a successor to one of the three predecessor corporations. The court first holds that statements made by an officer of the buyer of assets at a pretrial "settlement-like" conference may not be used in support of a motion for summary judgment pursuant to Fed. R. Evid. 408. Even though the statements are otherwise discoverable, the property owner presented the statements only in the context of the settlement conference. The court next holds that fact questions exist as to whether the asset buyer is a successor corporation that became responsible for the liabilities of one of the predecessor corporations under the de facto merger or mere continuation exception. The court holds that the property owner has shown sufficient connections between two of the predecessor businesses and the owner's property to demonstrate a material question of fact. The court then holds that the property owner failed to show that the defendant is liable as a successor to one of the predecessor businesses, but a material question of fact exists as to whether in substance if not in form, the defendant is liable as a successor corporation to the other predecessor business. Finally, the court holds that the property owner's state statutory and common-law claims against the defendant for the defendant's own alleged negligence in removing the underground oil storage tanks are not barred by the statute of limitations because under the discovery rule the cause of action did not accrue until the property owner discovered the causal relationship between the defendant's actions and the contamination.

Counsel for Plaintiff
Franklin G. Stearns
Brown, Rudnick, Freed & Gesmer
One Financial Ctr., Boston MA 02111
(617) 330-9000

Counsel for Defendant
Andrew W. Serell
Rath, Young, Pignatelli & Oyer
Two Capital Plaza, P.O. Box 854, Concord NH 03302
(603) 226-2600