Trustees of Michigan Laborers' Health Care Fund v. Gibbons

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0128P (6th Cir.)
File Name: 00a0128p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;

TRUSTEES OF THE MICHIGAN

LABORERS’ HEALTH CARE

FUND; MICHIGAN LABORERS’

No. 98-1975
DISTRICT COUNCIL PENSION

FUND; MICHIGAN LABORERS’ >
VACATION FUND; MICHIGAN 


LABORERS’ TRAINING FUND;

CONSTRUCTION INDUSTRY

ADVANCEMENT FUND,

Plaintiffs-Appellants,



v.
MICHAEL GIBBONS; WILLIAM 


GIBBONS; GIBBONS

BROTHERS MASONRY,
Defendants-Appellees. 
1
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 97-71315—Bernard A. Friedman, District Judge.
Argued: November 5, 1999
Decided and Filed: April 7, 2000
1
2 Trustees of the MI Laborers’ Health No. 98-1975 No. 98-1975 Trustees of the MI Laborers’ Health 15
Care Fund, et al. v. Gibbons, et al. Care Fund, et al. v. Gibbons, et al.
Before: MARTIN, Chief Judge; DAUGHTREY, Circuit defendants’ ERISA liability, to order the defendants to permit
Judge; KATZ,* District Judge. the requested audit of their books, and to further determine
those monies due to the Trustees.
_________________
COUNSEL
ARGUED: Christopher P. Legghio, MARTENS, ICE,
GEARY, KLASS, LEGGHIO, ISRAEL & GORCHOW,
Southfield, Michigan, for Appellants. Michael J. Olson,
KIZER LAW FIRM, Howell, Michigan, for Appellees.
ON BRIEF: Kenneth J. Fiott, CAMERON MILLER &
ASSOCIATES, Plymouth, Michigan, for Appellants.
Thomas J. Kizer, KIZER LAW FIRM, Howell, Michigan, for
Appellees.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. The
plaintiffs here are trustees of various employment benefit
funds established by collective bargaining agreements
between construction-industry employer associations and
unions representing their employees. They filed suit pursuant
to § 515 of the Employee Retirement Income Security Act of
1974 (ERISA), 29 U.S.C. § 1145 (1994), against the
defendants, Michael Gibbons, William Gibbons, and Gibbons
Brothers Masonry, seeking recovery of unpaid contributions
and other equitable relief. Following cross-motions for
summary judgment, the district court denied the plaintiffs’
motion and granted summary judgment to the defendants,
finding that the plaintiffs were equitably estopped from
recovering fringe benefits under the circumstances of this
case. The plaintiffs appeal, assigning as error only the grant
*
The Honorable David A. Katz, United States District Judge for the
Northern District of Ohio, sitting by designation.
14 Trustees of the MI Laborers’ Health No. 98-1975 No. 98-1975 Trustees of the MI Laborers’ Health 3
Care Fund, et al. v. Gibbons, et al. Care Fund, et al. v. Gibbons, et al.
is not a case in which the parties have not had a chance to of summary judgment to the defendants. Because we
dispute facts material to the plaintiffs’ claim, see Fountain v. conclude that the district court erred in its application of the
Filson, 336 U.S. 681, 683 (1949); indeed, the defendants five-part test developed by this court in Apponi v. Sunshine
acknowledged in their motion for summary judgment that no Biscuits, Inc., 809 F.2d 1210 (6th Cir. 1987), and reiterated in
genuine issue of material fact existed. The undisputed facts Armistead v. Vernitron Corp., 944 F.2d 1287 (6th Cir. 1991),
show that the defendants have failed to make contributions to we find it necessary to reverse the judgment of the district
the trust funds in question according to the terms of valid court.
collective bargaining agreements, in so doing violating § 515
of ERISA. We have examined the record below and find no FACTUAL AND PROCEDURAL BACKGROUND
merit to any of the defendants’ asserted legal defenses to their
duties under the agreements. We therefore remand this case Defendants Michael and William Gibbons, doing business
to the district court to order partial summary judgment to the as Gibbons Brothers Masonry, are contractors in the
Trustees, oversee the audit of the defendants’ record, and construction industry. Between 1986 and 1990, the
determine what award of unpaid contributions and other defendants entered into collective bargaining agreements with
damages, if any, is due to the Trustees acting on behalf of the various local chapters of the State of Michigan Laborers’
ERISA funds. District Council of the Laborers’ International Union of North
America. The agreements required the defendants to
CONCLUSION contribute specific sums of money to several employee
pension and welfare benefit funds governed by ERISA.
In this case the defendants, engaged in the construction These funds, the trustees of which are plaintiffs here, included
industry for at least the last 15 years, claim ignorance of their the Michigan Laborers’ Health Care Fund; the Michigan
obligations to ERISA trust funds and seek to estop plaintiffs Laborers’ District Council Pension Fund; the Michigan
from enforcing these obligations. As a matter of policy, we Laborers’ Vacation Fund; the Michigan Laborers’ Training
think that equitable estoppel of third party enforcement of Fund; and the Construction Industry Advancement Fund.
collective bargaining agreements governed by ERISA may Each agreement also included an “evergreen” clause,
well conflict with Congress’s objectives in enacting ERISA, automatically renewing the agreement each year unless a party
i.e., that establishment of employee benefits funds by such to the agreement submitted written notice of intent to
plans be in writing and that the funds’ fiscal health remain terminate or amend at least 60 days before the agreement’s
secure. Even if estoppel should be available to defendant expiration date.
employers in some cases, in order for these defendants to
estop the plaintiffs from enforcing the collective bargaining In 1990, an audit of the defendants’ payroll records
agreements at issue here, all the elements of this circuit’s indicated that the defendants owed thousands of dollars in
common law test must have been established. We conclude unpaid contributions to the Funds. After protracted
that, as a matter of law, the defendants cannot establish all the negotiations over payment of these monies failed, in 1991
elements of equitable estoppel on these facts. Because the plaintiffs filed a lawsuit under ERISA’s civil enforcement
district court erred in ruling that the defendants made such a
showing, we hold that the district court’s judgment must be
REVERSED. We direct the district court on remand to enter
partial summary judgment for the Trustees as to the
4 Trustees of the MI Laborers’ Health No. 98-1975 No. 98-1975 Trustees of the MI Laborers’ Health 13
Care Fund, et al. v. Gibbons, et al. Care Fund, et al. v. Gibbons, et al.
provisions to recover the unpaid amount.1 The district court silence by a party who claims not to have known where
entered a default judgment against the defendants for defendant was or whether or not defendant was infringing”).
approximately $70,000, covering the plaintiffs’ claims
through September 1990. The defendants’ business and We hold that the district court erred in concluding that the
personal bank accounts were garnished to satisfy the Trustees should be estopped from enforcing the agreements
judgment. for either the period between the 1991 judgment and the 1994
Aldrich-Gibbons communications or the period since those
After the 1991 judgments, the defendants made no further communications, and that the order incorporating this
payments into the Funds. In 1994, an auditor for the Funds, estoppel must be reversed. We note that the Trustees do not
Dawn Aldrich, contacted the defendants by mail and by phone appeal the district court’s denial of their summary judgment
requesting access to payroll records in order to perform motion; nevertheless, after careful review of the record, we
another audit. At that time defendant William Gibbons believe a grant of summary judgment as to the defendants’
informed Aldrich of his belief that the 1991 judgment ERISA liability is appropriate now. We have jurisdiction to
terminated the collective bargaining agreements. Aldrich, review the court’s denial of summary judgment, often not
whose office had received no report confirming that the appealable as an interlocutory decision, because it has merged
agreements had been terminated, told Gibbons that she “was into the final judgment in the case. See, e.g., Santaella v.
sure that he had agreements” with the union requiring Metropolitan Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997).
continued payments into the Funds. We have the discretion to so direct an alternative order of
judgment pursuant to 28 U.S.C. § 2106, which allow federal
Both Aldrich and Gibbons expressed an intent to check appeals courts to “affirm, modify, vacate, set aside or reverse
their files to ascertain the status of the agreements. any judgment, decree, or order of a court lawfully brought
Nevertheless, no contact occurred between the parties until before it for review,” and to “remand the cause and direct the
September 1996, when Aldrich again attempted to schedule entry of such appropriate judgment, decree, or order, or
an audit with the defendants. They refused to permit the require such further proceedings to be had as may be just
audit, and the trustees filed another complaint, this time under the circumstances.”5 Our direction to the district court
seeking an order to compel the audit and to enforce the to order summary judgment is appropriate here because this
defendants’ obligations to make contributions to the Funds.
5
We have not hesitated in the past to assert this power when
1 appropriate by directing an order of summary judgment to a party
Section 515 of ERISA states: appealing the grant of the same to an adversary, see Garner v. Memphis
Every employer who is obligated to make contributions to a Police Dep’t, 8 F.3d 358, 366 (6th Cir. 1993), and now join those
multiemployer plan under the terms of the plan or under the appellate courts that have done so even where the losing party below did
terms of a collectively bargained agreement shall, to the extent not argue on appeal for a grant of summary judgment. See, e.g., Fabric
not inconsistent with law, make such contributions in accordance v. Provident Life & Accident Ins. Co., 115 F.3d 908, 914-915 (11th Cir.
with the terms and conditions of such plan or such agreement. 1997); O’Neill v. Continental Airlines, Inc. (In re Continental Airlines),
29 U.S.C. § 1145 (1994). ERISA requires courts to award parties 981 F.2d 1450, 1458-59 (5th Cir. 1993); Dickeson v. Quarberg, 844 F.2d
victorious in actions pursuant to § 515 unpaid contributions and accrued 1435, 1444 n.8 (10th Cir. 1988); Martinez v. United States, 669 F.2d 568,
interest, liquidated damages, attorneys’ fees and costs, and “such other 570 (9th Cir. 1982); Morgan Guaranty Trust Co. v. Martin, 466 F.2d 593,
legal or equitable relief as the court deems appropriate.” 29 U.S.C. 600 (7th Cir. 1972); First Nat’l Bank v. Maryland Cas. Co., 290 F.2d
§ 1132(g). 246, 251-52 (2d Cir. 1961).
12 Trustees of the MI Laborers’ Health No. 98-1975 No. 98-1975 Trustees of the MI Laborers’ Health 5
Care Fund, et al. v. Gibbons, et al. Care Fund, et al. v. Gibbons, et al.
348, 749 F.2d at 319; see also Sprague v. General Motors In this second lawsuit, the instant case, both the plaintiffs
Corp., 133 F.3d 388, 404 (6th Cir.) (en banc), cert. denied, and the defendants moved for summary judgment on the issue
118 S. Ct. 2312 (1998) (“[R]eliance can seldom, if ever, be of the defendants’ liability to the funds. Both parties argued
reasonable or justifiable if it is inconsistent with the clear and that there were no genuine issues of material fact. The
unambiguous terms of plan documents available to or defendants, for their part, insisted that the plaintiffs should be
furnished to the party.”). Similarly, the defendants here either prevented from enforcing the agreements under the equitable
were or should have been aware of their obligations under the doctrines of laches and estoppel and that the agreements
written agreements, if by no other means than the first, themselves were void due to fraud in the execution. At the
successful recovery action against them. They cannot claim hearing on the motions, the district court denied summary
justifiable reliance on the equivocal statements and ensuing judgment to the plaintiffs and held for the defendants,
delay of an auditor in attempting to escape their referring to both laches and equitable estoppel as grounds for
responsibilities now. denying the plaintiffs’ prayer for relief. In its opinion denying
the plaintiffs’ later motion for reconsideration, the court held
The lack of soundness in the district court’s estoppel that the plaintiffs should be estopped from enforcing the
analysis is epitomized by its holding that the plaintiffs should collective bargaining agreements because the defendants had
be estopped from enforcing the agreements from the time of shown all the elements of equitable estoppel required by this
the 1991 judgment onward. Even if Aldrich’s conduct could court. The plaintiffs appeal from this order.
be said to estop plaintiffs from enforcing the agreements after
Aldrich’s communications with William Gibbons in April DISCUSSION
1994, it should be obvious that the plaintiffs could not be
estopped from collecting unpaid contributions for the period We review a district court’s grant of summary judgment de
before the Aldrich-Gibbons conversation, from September novo. See Tregoning v. American Community Mut. Ins. Co.,
1990 to April 1994. As we have previously indicated, the 12 F.3d 79, 81 (6th Cir. 1993). We may affirm the decision
agreements clearly directed the defendants to make monthly below only if we determine that the pleadings, affidavits, and
payments into the Funds. The 1991 judgment itself should other submissions show “that there is no genuine issue as to
have put the plaintiffs on notice as to their obligations to the any material fact and that the moving party is entitled to a
Funds. See Michigan Laborers’ Health Care Fund v. judgment as a matter of law.” Fed. R. Civ. P. 56(c). All
Grimaldi Concrete, Inc., 30 F.3d 692, 695 (6th Cir. 1994). inferences drawn from the submissions to the court must be
The record is utterly devoid of any evidence that the plaintiffs viewed in the light most favorable to the non-movant. See
engaged in conduct at the time of the 1991 default judgment Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
that could work to misrepresent defendants’ duties to continue U.S. 574, 587-88 (1986). Summary judgment is inappropriate
making payments. The mere fact of the plaintiffs’ silence if “the evidence is such that a reasonable jury could return a
between the judgment and April 1994, without more, cannot verdict for the [nonmovant].” Sowards v. London County,
be grounds for estoppel. See Watkins v. Northwestern Ohio 203 F.3d 426, 431 (6th Cir. 2000) (citing Anderson v. Liberty
Tractor Pullers Ass’n, Inc., 630 F.2d 1155, 1160 (6th Cir. Lobby, Inc., 477 U.S. 242, 249-50 (1986)).
1980) (holding in patent infringement action that “[f]or
silence to work an estoppel, it must be sufficiently misleading Well over a century ago, the Supreme Court held that the
to amount to an estoppel. . . . [a]t most, the record shows beneficiary of a contract may be estopped from enforcing that
contract when he has “by his representations or his conduct
6 Trustees of the MI Laborers’ Health No. 98-1975 No. 98-1975 Trustees of the MI Laborers’ Health 11
Care Fund, et al. v. Gibbons, et al. Care Fund, et al. v. Gibbons, et al.
induced the other party . . . to give him an advantage which it S.W.2d 942, 948 (Tex. Civ. App. 1974) (stating that “[i]n no
would be against equity and good conscience for him to event can an estoppel arise in favor of one who has been
assert.” Insurance Co. v. Wilkinson, 80 U.S. 222, 233 (1871). guilty of contributory negligence” and citing Sheffield Car
The Sixth Circuit has followed the nation’s highest court in Co. v. Constantine Hydraulic Co., 137 N.W. 305 (Mich.
requiring that such representations must contain an element 1912)).
of fraud, either intended deception or “such gross negligence
. . . as to amount to constructive fraud.” Brant v. Virginia As for the final factor, detrimental, justifiable reliance by
Coal and Iron Co., 93 U.S. 326, 335 (1876); see also TWM the party asserting estoppel, the district court never
Mfg. Co., Inc. v. Dura Corp., 592 F.2d 346, 350 (6th Cir. articulated, either in the hearing on the parties’ motions for
1979) (requiring a showing of either “misrepresentations, summary judgment or in its opinion denying plaintiffs’
affirmative acts of misconduct, or intentionally misleading motion for reconsideration, how the defendants’ reliance on
silence” to establish estoppel). Fraudulent conduct alone is the conduct of the plaintiffs and its agents was both
not enough, however; the party asserting estoppel must not substantially detrimental and justifiable. The defendants
know the truth behind the other party’s representations, see assert that they made other fringe benefit arrangements for
Heckler v. Community Health Servs., 467 U.S. 51, 59 n.10 their employees after the 1991 judgment, and that to have to
(1984), must reasonably rely on the other’s actions, see id. at pay monies into the Funds now would work a detrimental
59, and must suffer substantial detriment as a result. See change in position. But this purported reliance on plaintiffs’
Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 323 conduct, in the face of the explicit terms of the agreements
(1936); see also Teamster’s Local 348 Health and Welfare establishing the defendants’ duty to make monthly payments
Fund v. Kohn Beverage Co., 749 F.2d 315, 319 (6th Cir. to the Funds, simply cannot be described as justifiable. The
1984) (“Estoppel requires a representation, to a party without defendants could reasonably have had no more than a mere
knowledge of the facts and without the means to ascertain hope that Dawn Aldrich’s conduct, including her 1994
them, upon which the party asserting the estoppel justifiably statements and ensuing delay in attempting to schedule an
relies in good faith to his detriment.”). audit, meant that the plaintiffs were not going to enforce the
defendants’ duty to make the monthly payments.
The plaintiffs argue that equitable estoppel should not be
available as a defense in this case, because to claim that the These facts resemble those at issue in Teamster’s Local
plaintiffs’ agent’s oral representations and silence worked to 348, in which a union representative told non-union
estop enforcement of the collective bargaining agreements employees of the defendant employer that they would not be
would contravene ERISA’s mandate that benefit plans must eligible for benefits from fringe benefit funds established by
be in writing, so that beneficiaries may determine with prior collective bargaining agreements. The defendant
certainty exactly what rights and obligations the plan sets claimed that, because they relied on the union representative’s
forth. See Musto v. American Gen. Corp., 861 F.2d 897, 910 statements and provided alternative benefits to the non-union
(6th Cir. 1988) (citing H.R. Rep. No. 93-1280 (1974), employees, the funds should be estopped from seeking
reprinted in 1974 U.S.C.C.A.N. 5038, 5077-78). We find it contributions under the agreements. The court held for the
unnecessary, however, to decide whether or not equitable plaintiff funds, stating that “[t]he estoppel defense fails
estoppel should generally be available as a defense to because [the defendant] had knowledge about the plans and
contribution recovery actions, because in this case the its obligations thereunder, and did not reasonably rely on [the
defendants cannot establish a basis to estop recovery. union representative’s] representations.” Teamster’s Local
10 Trustees of the MI Laborers’ Health No. 98-1975 No. 98-1975 Trustees of the MI Laborers’ Health 7
Care Fund, et al. v. Gibbons, et al. Care Fund, et al. v. Gibbons, et al.
diligence he could acquire the knowledge so that it In past ERISA cases involving a claim of equitable
would be negligence on his part to remain ignorant by estoppel, we have required a showing of five common-law2
not using those means, he cannot claim to have been elements:
misled by relying upon the representation or
concealment. 1) conduct or language amounting to a representation of
material fact;
Community Health Servs., 467 U.S. at 59 n.10 (emphasis
added); see also Teamster’s Local 348, 749 F.2d at 319 2) awareness of the true facts by the party to be
(stating that, for estoppel to apply, representation must be estopped;
made “to a party without knowledge of the facts and without
the means to ascertain them”) (emphasis added). Gibbons 3) an intention on the part of the party to be estopped
testified that he believed he received and retained copies of that the representation be acted on, or conduct toward the
the agreements after signing them. Dawn Aldrich testified party asserting the estoppel such that the latter has a right
that Gibbons told her that he would check to see if he had to believe that the former’s conduct is so intended;
letters terminating the agreements. Gibbons thus apparently
had adequate means, through the agreements themselves, the 4) unawareness of the true facts by the party asserting
presence or absence of letters terminating the agreements, and the estoppel; and
communication with union officials to acquire knowledge by
reasonable diligence as to whether the agreements were still 5) detrimental and justifiable reliance by the party
in effect. Many courts deciding contribution recovery cases asserting estoppel on the representation.
have held that an employer’s failure to read accessible Armistead, 944 F.2d at 1298 (citing Apponi, 809 F.2d at
collective bargaining agreements defeats a claim of ignorance. 1217). All of these elements must be present before the court
See, e.g., Audit Servs., Inc. v. Rolfson, 641 F.2d 757, 762 (9th may order estoppel. We believe that no reasonable jury could
Cir. 1981) (“We have determined that the collective return a verdict finding that each of the factors was satisfied
bargaining agreement unambiguously called for the payment here, and we therefore hold that the defendants’ equitable
of the contributions . . . . [e]ven if we could somehow find estoppel argument fails as a matter of law.
that the trustees intended to mislead the defendants, and
nothing in the record indicates such an intent, we cannot agree In deciding for the defendants on the third equitable
that the defendants were ‘ignorant’ of their responsibility estoppel factor, either an intention on the part of the party to
under the agreement.”); Chicago Dist. Council of Carpenters be estopped that its representation be acted upon or conduct
Pension Fund v. Monarch Roofing Co., Inc., 601 F. Supp. such that the party asserting estoppel “has a right to believe”
1112, 1117 (N.D. Ill. 1984) (holding no estoppel where the party to be estopped so intends, see Armistead, 944 F.2d
defendant “had ready access to [copies of the agreements,] at 1298, the district court found “that plaintiffs’ auditor’s
and thus had easy access to facts contrary to those on which
it might have relied”). The failure of the defendants in this
case to do so since 1991 could, without exaggeration, be
called contributory negligence. Certainly, the resulting 2
ERISA authorizes the federal courts to fashion a body of federal
ignorance creates no basis for equitable estoppel. See El Paso common law to enforce agreements governed by the statute. See
Nat’l Bank v. Southwest Numismatic Inv. Group, Ltd., 548 Armistead, 944 F.2d at 1298 (citing Lingle v. Norge Div. of Magic Chef,
Inc., 486 U.S. 399, 403 (1988)).
8 Trustees of the MI Laborers’ Health No. 98-1975 No. 98-1975 Trustees of the MI Laborers’ Health 9
Care Fund, et al. v. Gibbons, et al. Care Fund, et al. v. Gibbons, et al.
conduct gave defendants a right to believe plaintiffs would a matter of law, the defendants had no right to believe they
not be pursuing further pension contributions.” (The court would be excused from further contributions to the funds.4
did not make a finding that the plaintiffs intended defendants
should act upon Aldrich’s conduct.) Specifically, the court’s We find even more substantial deficiencies in the district
order characterized Dawn Aldrich’s telling William Gibbons court’s analysis of the fourth and fifth equitable estoppel
that she would check her files regarding the collective factors. The court found “little doubt” that the defendants
bargaining agreements and then neglecting to take further satisfied the fourth factor, unawareness of the true facts by the
action as conduct leading the defendants to believe that the party asserting the estoppel, since William Gibbons testified
Trustees would not enforce the agreements. The definitional “that he believed the earlier lawsuit terminated the collective
language regarding the “rights” of the party claiming estoppel, bargaining agreements.” In Community Health Servs., the
developed and adopted by many courts over the years, appears Supreme Court discussed this factor and how to satisfy it:
to be an attempt to capture not only affirmative
misrepresentations or other misconduct, but also the “gross The truth concerning these material facts must be
negligence” the Supreme Court identified in Brant as grounds unknown to the other party claiming the benefit of the
for estoppel. Brant, 93 U.S. at 335; see also 28 Am. Jur. 2d estoppel, not only at the time of the conduct which
Estoppel and Waiver § 61 (1999) (tracing development of amounts to a representation or concealment, but also at
common law equitable estoppel definition). Here, the the time when that conduct is acted upon by him. If, at
defendants apparently claim that Aldrich’s delay after sending the time when he acted, such party had knowledge of the
mixed messages as to her knowledge of the agreements’ truth, or had the means by which with reasonable
validity constituted such gross negligence. Yet, to bring an
estoppel defense based on negligence, “it is not enough to
show that [a party] was careless. He must have been careless with.
in respect of some duty owing to the [defendant] or the Q. Could those letters exist without your knowledge?
public.” People’s Trust Co. v. Smith, 109 N.E. 561, 562 A. Yes, they could.
(N.Y. 1915) (Cardozo, J.). The collective bargaining Q. Are they likely to exist without your knowledge?
agreements signed by the defendants created a duty to make A. It’s possible. I asked him.
monthly payments into the Funds and established that the Q. You asked?
A. Mr. Gibbons.
plaintiffs would oversee those payments; they did not, Q. And what –
however, create a legal duty in the plaintiffs, as trustees for A. If he had letters.
the Funds, to the defendants to remind them of the need to Q. And he said no?
make payments. Nor did Aldrich’s conduct, in the face of A. He said he wasn’t sure. He would have to check.
Gibbons’s assertions that he would check his records 4
regarding the agreements, create 3such a duty, or appear to us The Trustees’ delay in bringing this action does not support a
to be otherwise grossly negligent. We therefore hold that, as finding of gross negligence. While a consideration of the appropriateness
of equitable estoppel in any case must be based upon the specific factual
circumstances of that case, other courts deciding contribution recovery
claims have found much longer delays no prohibition to enforcement.
3 See, e.g., Operating Eng’rs Pension Trust v. Cecil Backhoe Serv., Inc.,
Aldrich testified: 795 F.2d 1501, 1507 (9th Cir. 1986) (seven years); Teamsters Local 251,
A. To my knowledge we never received letters terminating the Health Servs. and Ins. Fund v. Teamsters Local 251, 689 F. Supp. 48, 52
agreements with the locals that he has signed signature pages (D.R.I. 1988) (20 years).