Olin Corp. v. Caddo Bossier Parishes Port Commission

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 20, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30314
OLIN CORP
Plaintiff - Counter Defendant - Appellee
v.
CADDO BOSSIER PARISHES PORT COMMISSION
Defendant - Counter Claimant - Appellant
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Appeal from the United States District Court
for the Western District of Louisiana, Shreveport
USDC No. 01-CV-2270
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Before KING, Chief Judge, and BENAVIDES and CLEMENT, Circuit
Judges.
PER CURIAM:*
The district court granted summary judgment to Olin
Corporation (“Olin”), holding that the Caddo-Bossier Parishes
Port Commission (the “Port”) was obligated to defend, indemnify
and hold Olin harmless from the claims and demands of the
Louisiana Department of Environmental Quality (“LDEQ”) for the
investigation and remediation of property purchased by the Port
from Olin and for reimbursement for oversight costs to the LDEQ
incurred in connection with the property. We agree with the
district court that the plain language of the indemnity agreement
included in the Sale Contract and Warranty Deed entered into
between Olin and the Port covering the sale of the property from
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Olin to the Port compels this result. The investigation and
remediation costs at issue here fall squarely within the
contractual provision obligating the Port to “indemnify and
defend [Olin] . . . and hold [Olin] harmless from any and all
claims with respect to any actual and/or alleged . . . damage to
any property arising out of or related to, [or] in connection
with the Property including the landfill, and from contaminants
emanating from the landfill.” Although the LDEQ’s claims are
technically for reimbursement, investigation, and remediation,
the claims arose because of damage to the property. The broad
language “with respect to” encompasses claims that are premised
on property damages, such as the claims at issue in this case.1
See Olin Corp. v. Yeargin Inc., 146 F.3d 398, 408-09 (6th Cir.
1998)(holding that, under Tennessee law, an indemnification
agreement covering “all loss, damage, liability, claims, demands,
costs, or suits” for “property damage” and “personal injury”
included claims under CERCLA and other environmental statutes
resulting from the release of hazardous substances).
The judgment of the district court is AFFIRMED.
1
Our conclusion in this respect is bolstered (although
it need not be) by the pains Olin took to be sure that the Port
understood the various hazardous chemicals that Olin had placed
in the landfill, by the “As Is” nature of the sale, and by the
fact that CERCLA predated the sale transaction by three years,
all of which suggest that the parties specifically contemplated
possible environmental liability.
2