Melvyn D. SPURGEON, Plaintiff,

v.

CERTAIN UNDERWRITERS AT LLOYD’S, LONDON, Defendant.

Jan. 2, 2008.

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT

JOHN PRESTON BAILEY, District Judge.

On this day, the above-styled matter came before the Court for consideration of the Defendant’s Motion for Summary Judgment, filed May 4, 2007 (Doc. 48). The defendant filed an earlier motion for summary judgment on June 15, 2006 (Doc. 18). On October 20, 2006, the plaintiff filed his response in opposition (Document No. 24). The defendant then filed a reply to plaintiff’s response on October 30, 2006 (Document No. 26). This Court, after reviewing the above, granted in part and denied in part the earlier motion (Doc. 38). With regard to the present motion, the plaintiff determined to stand on his earlier response (Doc. 24). The defendant filed a new reply to the response on September 19, 2007. The second motion having been fully briefed, the same is ripe for decision.

Based upon a review of the second motion for summary judgment, this Court is of the opinion that the Defendant’s Motion for Summary Judgment [Doc. 48] should be, and is, hereby ORDERED GRANTED IN PART AND DENIED IN PART.

SUMMARY JUDGMENT STANDARD

Under Fed.R.Civ.P. 56(c), summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law.”The party seeking summary judgment bears the initial burden of showing the absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). However, as the United States Supreme Court noted in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), Rule 56(c) itself provides that “a party opposing a properly supported motion for summary judgment ‘may not rest upon mere allegations or denials of [the] pleading, but must set forth specific facts showing that there is a genuine issue for trial.’ “ “The inquiry performed is the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250 (See also Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979) (summary judgment “should be granted only in those cases where it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law”) (quoting Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.1950)).

In Celotex, the Supreme Court stated that “the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”Celotex Corp. v. Catrett, 477 U.S. at 322. In reviewing the supported underlying facts, all inferences must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986).

FACTS

The defendant, Certain Underwriters at Lloyd’s, London (hereinafter “Underwriters”), issued an insurance policy to Melvyn D. Spurgeon (hereinafter “Spurgeon”). On January 29, 2003, within the applicable policy period, Spurgeon’s tractor-trailer was involved in a motor vehicle accident in New Jersey. Both the tractor and trailer were covered by the policy issued by Underwriters.

The tractor and trailer were towed to a facility in Morristown, New Jersey, on the day of the accident. Despite the fact that the accident occurred on January 29, 2003, Underwriters did not resolve the claim until July 25, 2005. As a result, the charge for the storage of the vehicle is relatively large.

It is the charge for towing and storage that is primarily at issue in this case. On November 23, 2003, the towing and storage company filed suit against Spurgeon in New Jersey to recover payment for the towing and storage charges. Underwriters refused to pay the charges and refused to defend Spurgeon in the case, claiming that there was no coverage for towing and storage charges.

ANALYSIS

In its motion for summary judgment, Underwriters seeks judgment on three bases; first, that there is no coverage for towing and storage; second, that there was no duty to defend Spurgeon; and third, that there is no longer any claim for damages to the tractor and trailer, inasmuch as Underwriters has paid the lienholders for the damages and secured releases from each.

With respect to the first issue, Underwriters contends that the Court should grant summary judgment because Spurgeon only purchased physical damage comprehensive coverage and physical damage collision coverage; there is no coverage for towing or storage. Underwriters argues that because there is no policy provision providing for the payment of towing and storage, there is no obligation to pay those charges.

Underwriters overlooks the fact that the policy imposes a duty upon the insured to “[t]ake all reasonable steps to protect the covered ‘auto’ from further loss or damage and any such other or further loss or damage due directly or indirectly to the Assured’s failure to protect shall not be recoverable hereunder.”(Policy, Section VI-Trucker’s Conditions, ¶ 7(d)(2)).

“The issue of recovery under a property insurance policy for the insured’s own expenses in preventing, minimizing, or investigating a loss is generally determined in part by the terms of the policy, in part by application of historical common law principles of mitigation, and, potentially, by the terms of statutes of various types. While the very recitation of these factors indicates that true general principles are hard to come by, it is safe to say that the insured will generally be allowed to recover expense items that can be shown to have, or to have likely, inured to the insurer’s own benefit by preventing or minimizing a loss for which the insurer would have been liable. The rationale for this principle is virtually common sense: any other rule would provide the insured with the economic incentive to allow the loss to occur, to the detriment of the insurer, quite possibly the insured, and in a fair number of cases, to the general public, as well.

“Thus, a common law duty on the part of the insured to mitigate covered losses, either by preventing them or minimizing their extent, and a corresponding common law right to recompense from the insurer for the cost of these efforts have often been recognized, even though the items involved may be ones as to which there is no express policy coverage.

“Conversely, if the insured fails to mitigate the loss, the insurer is not liable for any portion of the loss which it can prove is attributable to that failure. Many policies contractually impose the same duty on the part of the insured to take necessary steps and spend sums to prevent further loss or prevent the occurrence of a loss.”Couch on Insurance 3d, § 178:10. (Citations omitted).

“A policy provision requiring the insured to protect the vehicle from harm or damage following a collision permits the insured to recover expenses of towing the vehicle to a place of safety.”Couch, supra at 178:12, citing City Coal & Supply Co. v. American Auto. Ins. Co., 99 Ohio App. 368, 59 Ohio Op. 143, 133 N.E.2d 415 (7th Dist. Mahoning County 1954); Southwestern Fire & Cas. Co. v. Kendrick, 281 S.W.2d 344 (Tex.Civ.App. Fort Worth 1955); Aetna Cas. & Sur. Co. v. Eberheim, 41 Conn. Supp. 125, 556 A.2d 1067 (Super.Ct.1988); Hulsing v. Iowa Nat. Mut. Ins. Co., 329 N.W.2d 5 (Iowa 1983); Myers v. American Indem. Co., 457 S.W.2d 468 (Mo.Ct.App.1970); Emmco Ins. Co. v. Burrows, 419 S.W.2d 665 (Tex.Civ.App. Tyler 1967).

A similar issue was presented in State Farm Mutual Automobile Ins. Co. v. Toro, 127 N.J.Super. 223, 316 A.2d 745 (1974). In that case, the court stated:

In the instant case defendant seeks compensation for towing and storage charges as part of his consequential damages. Such charges were clearly sustained as the proximate result of the damage to his vehicle. Many policies of automobile insurance obviate the need to resort to a common-law damage formula by including a ‘protection of salvage’ or ‘duty to protect’ clause, under which any act of the insured in recovering, saving and preserving the property, in case of loss or damage, shall be considered as done for the benefit of all concerned, and all reasonable expenses thus incurred constitute a claim under the policy. Under such a provision towing and storage charges have uniformly been held to be recoverable. See, E.g., Parodi v. Universal Ins. Co., [128 N.J.L. 433, 26 A.2d 557 (Sup.Ct.1942) ]; Harper v. Pelican Trucking Co., 176 So.2d 767 (La.Ct.App.1965); Buxton v. International Indem. Co., 47 Cal.App. 583, 191 P. 84 (D.Ct.App.1920); Southwestern Fire & Cas. Co. v. Kendrick, 281 S.W.2d 344 (Tex.Civ.App.1955); City Coal & Supply Co. v. Amer. Auto Ins. Co., 99 Ohio App. 368, 133 N.E.2d 415 (Ct.App.1954). The towing and storage charges herein sought would have been covered by the ‘duty to protect’ clause contained in the general section of the State Farm policy but for the fact that the insured was involved in an accident with an Uninsured motorist. In the absence of a ‘duty to protect’ clause applicable to the uninsured motorist endorsement the court considers the towing and storage charges to have been naturally and proximately caused by the accident under the rule of Hintz v. Roberts, Supra.They are damages which the insured is ‘legally entitled to recover.’ It is highly foreseeable that the owner of a damaged vehicle will have to tow it from the scene of an accident and store it at some location to await repair. Policy exclusions notwithstanding, an insured is entitled as part of his property damage claim to reimbursement of the expenses incurred in protecting his insurer against further property loss and safeguarding the damaged vehicle by application of general principles of law. A tortfeasor, as well, would expect his victim to take reasonable measures to safeguard damaged property. Harper v. Pelican Trucking Co., Supra, 176 So.2d at 773;Myers v. Amer. Indem. Co., 457 S.W.2d 468, 471 (Mo.Ct.App.1970); 15 Blashfield, Automobile Law and Practice, § 480.13 at 45 (1969); 7 Appleman, Insurance Law and Practice, § 4327 at 110 (1971 pocket part).

*4127 N.J.Super. at 227-28;316 A.2d at 747-48.

Based upon the foregoing authorities, this Court is of the opinion that Underwriters is responsible for the towing and storage charges as a matter of law.

“[S]ummary judgment may be rendered in favor of the nonmoving party, even though that party has made no formal motion under Federal Rule of Civil Procedure 56. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986); Dickeson v. Quarberg, 844 F .2d 1435, 1444 n. 8 (10th Cir.1988); National Expositions, Inc. v. Crowley Maritime Corp., 824 F.2d 131, 133 (1st Cir.1987); see also Dabney v. Cunningham, 317 F.Supp. 57 (E.D.Va.1970); 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 3d § 2720, at 351-52 (1998).”Sentara Virginia Beach Gen. Hosp. v. LeBeau, 188 F.Supp.2d 623 (E.D.Va.2002).Accord, Calvert v. West Virginia Legal Services Plan, Inc., 464 F.Supp. 789 (S.D.W.Va.1979).

Accordingly, this Court will grant summary judgment to the plaintiff on this issue.

The resolution of the first issue makes the second issue simpler. Inasmuch as the costs for towing and storage are the responsibility of Underwriters, it had the duty to defend Spurgeon in the New Jersey action. Tackett v. American Motorists Ins. Co., 213 W.Va. 524, 584 S.E.2d 158 (2003). Summary judgment will be granted to the plaintiff on this issue as well.

The final issue is whether there remains a claim for the damages to the tractor and trailer. While Underwriters asserts that it has satisfied its duty by paying off the liens on the tractor and trailer, it has not contended that it has paid the actual cash value at the time of loss. There also remains the issue of whether the payment for the trailer on July 25, 2005, was triggered by the institution of this action on January 31, 2005.

CONCLUSION

For the reasons stated above, the plaintiff is hereby granted summary judgment on the issue of whether Underwriters is legally responsible for the payment of the towing and storage charges. Spurgeon is GRANTED judgment against Underwriters for the full amount of the towing and storage charges together with interest at the legal rate from January 29, 2003, to the present. The plaintiff is also GRANTED summary judgment on the issue of whether Underwriters had a duty to defend Spurgeon in the New Jersey action. Damages on this issue will be assessed at the trial on the bad faith aspects of this case. Finally, summary judgment is DENIED on the issue of whether the defendant has fulfilled its duty with regard to the payment of actual cash value for the tractor and trailer.

Defendant’s Motion for Summary Judgment (Document No. 48) is hereby GRANTED IN PART and DENIED IN PART.Scheduling for the remainder of this action will be set at a telephonic scheduling conference which will be held on January 11, 2008, at 11:00 a.m. The Court will initiate the conference call.

It is so ORDERED.

The Clerk is directed to transmit copies of this Order to all counsel of record herein.

PHARMACIA CORPORATION, (f/k/a Monsanto Company), Plaintiff

v.

MOTOR CARRIER SERVICES CORP., CSX Intermodal, Inc., CSX Corporation, G.O.D., Inc., and Riley Leasing Corp., Defendants.

Civ. No. 04-3724 (GEB).

Jan. 9, 2008.

MEMORANDUM OPINION

BROWN, Chief District Judge.

This matter comes before the Court upon Plaintiff Pharmacia Corporation’s (“Pharmacia” or “Plaintiff”) Motion for Attorneys’ Fees against Motor Carrier Services Corp. (“Motor Carrier”), CSX Intermodal, Inc. (“Intermodal”) and CSX Corporation’s (“CSX”) (collectively, the “CSX Defendants”); and the CSX Defendants’ Motion for Allocation and Award of Contribution from Defendants G.O.D., Inc. (“G.O.D.”) and Riley Leasing Corp. (“Riley”) (collectively, the “Riley Defendants”). The Court has reviewed the parties’ submissions and decided the motions without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, the Court will grant Pharmacia’s motion and deny the CSX Defendants’ motion.

BACKGROUND

The Court conducted a non-jury trial in this matter from January 3 to January 11, 2007. The relevant facts of this case are set out in detail in this Court’s June 20, 2007 Findings of Fact and Conclusions of Law. (Docket No. 155.)On September 17, 2007 the Court denied without prejudice Plaintiff’s First Motion for Attorney’s fees. (Docket No. 180.)That opinion held that the 1997 agreement for the sale of the Kearny Site (the “Agreement”) did not rule out compensation for the attorney fees incurred by Pharmacia in the agency proceedings before the United States Environmental Protection Agency (“EPA”) and the New Jersey Department of Environmental Protection (“NJDEP”).(Id.) This Court declined, however, to award the attorneys’ fees sought by Pharmacia because of Plaintiff’s “troubling … failure to submit reasonably detailed evidence of its attorneys’ fees.”(Id . at 10.)On October 5, 2007 Plaintiff filed a renewed motion for attorneys’ fees, and on October 8, 2007 the CSX Defendants filed a motion for allocation and award of contribution.

DISCUSSION

A. Pharmacia’s Motion for Attorneys’ Fees

Plaintiff submits that it is entitled to attorneys’ fees in the amount of $469,360.24 incurred primarily in connection with the EPA and NJDEP investigations. (Pl. Br. at 8-9.) The Court agrees.

As explained in the September 17, 2007 Opinion, “[i]n New Jersey, [courts] accept … the premise of the American Rule that ordinarily society is best served when the parties to litigation each bear their own legal expenses.”Coleman v. Fiore Bros., Inc., 113 N.J. 594, 596 (1989), citing Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975).“Consistent with this policy, attorney’s fees are not recoverable absent express authorization by statute, court rule or contract.” First Atl. Fed. Credit Union v. Perez, 391 N.J.Super. 419, 425 (N.J.Super.Ct.App.Div.2007) (emphasis added), citing State of New Jersey, D.E.P. v. Ventron Corp., 94 N.J. 473, 505 (1983). “Because of the general policy disfavoring fee-shifting arrangements, however, contractual provisions establishing such arrangements are strictly construed.”Kellam Assocs., Inc. v. Angel Projects, LLC, 357 N.J.Super. 132, 137 (N.J.Super.Ct.App.Div.2003), citing McGuire v. City of Jersey City, 125 N.J. 310, 326-27 (1991).

This Court then held that:

[r]eviewing the plain meaning of the language of the Agreement and construing its provisions narrowly, the Court finds that Defendants need not reimburse Pharmacia’s attorneys’ fees in the Litigation, but that the Agreement does not rule out such compensation for fees incurred in the Agency Proceedings. Indeed, the attorneys’ costs incurred in connection with the Agency Proceedings were undeniably costs of Clean-Up as defined in the Agreement because they arose during the representation of Pharmacia in discussions and negotiations with the relevant environmental agencies, at a time when those agencies were assessing the environmental damage sustained at the Kearny Site and the Lower Passaic River and were trying to attribute liability for such damage. The attorneys’ fees incurred in connection with the Litigation, however, do not qualify as costs of Clean-Up under the Agreement, and are in fact only tangentially related to the clean-up of the Kearny Site.

(Docket No. 180, at 9.) The Court declined to rule upon the reasonableness of the fees requested by Pharmacia, noting that “[a] more detailed breakdown of the amounts billed and services performed would allow the adversary to respond and the Court to make that determination.”(Id. at 10.)Indeed, [u]nder Local Civil Rule 54.2, this Court requires an affidavit setting forth:(1) the nature of the services rendered, the amount of the estate or fund in court, if any, the responsibility assumed, the results obtained, any particular novelty or difficulty about the matter, and other factors pertinent to the evaluation of the services rendered;

(2) a record of the dates of services rendered;

(3) a description of the services rendered on each of such dates by each person of that firm including the identity of the person rendering the service and a brief description of that person’s professional experience;

(4) the time spent in the rendering of each such services; and

(5) the normal billing rate for each of said persons for the type of work performed.

L. CIV. R. 54.2. Once Pharmacia provides such evidence, “the burden shifts to [the CSX Defendants] to contest, with sufficient specificity, the reasonableness of the hourly rate or the reasonableness of the hours expended.”Microsoft Corp. v. United Computer Resources of N.J., Inc., 216 F.Supp.2d 383, 387 (D.N.J.2002).

The CSX Defendants oppose Plaintiff’s renewed motion for fees, arguing that the Agreement provides only for the reimbursement of attorney fees that are “reasonable”, and that Pharmacia’s claimed attorney fees fail to meet that standard. (CSX Def. Opp’n at 4.) Indeed, the CSX Defendants suggest that:

[a] side-by-side comparison of the rates charged by Pharmacia’s attorneys with the rates charged by attorneys of similar experience at the firm of Defendants’ counsel shows that the rates of Pharmacia’s counsel are almost invariably, and often substantially higher-sometimes by well over $100 per hour.

(Id. at 6,citing Certification of Ed McTiernan (“McTiernan Cert.”) ¶¶ 2-10.) The CSX Defendants concede that part of the difference is attributable to the fact that some of Plaintiff’s attorneys were billing at Washington, D.C. rates, rather than New Jersey rates, but nonetheless recommend that the Court reduce the billing rates by $100 per hour for each member of the Plaintiff’s legal team. (CSX Def. Opp’n at 6-7.)

Second, the CSX Defendants contend that the number of attorneys assigned to the EPA matter (14) suggests “inefficient staffing, duplicative work, and unproductive ‘learning time’….”(Id. at 7.) Conversely, they also claim that the fees sought by Pharmacia are unreasonable because high-billing senior attorneys performed most of the work, including work that should have been performed by more junior attorneys. (Id. at 8.) The CSX Defendants further decry the allegedly unexplained peaks in the number of hours billed between June 1, 2007 and August 31, 2007, and suggest that the “bills for that three-month period are so filled with acronyms and so lacking in detail as to make meaningful analysis of them difficult if not impossible.”(Id. at 10.)

Third, the CSX Defendants allege that the bills for that period include references to matters for which Pharmacia is not entitled to attorney fees. In particular, the CSX Defendants suggest that Pharmacia is not entitled to attorney fees in connection with the claim asserted by the National Oceanic Atmospheric Administration (“NOAA”).(Id. at 11.)Similarly, they object to the recovery of attorney fees for what they claim is the “development and implementation of so-called ‘political’ strategies.”(Id.)

Finally, the CSX Defendants note that “Pharmacia did not include any documents regarding attorneys’ fees or other legal expenses” among the proposed trial exhibits listed in the Joint Final Pretrial Order. (Id. at 13.)The CSX Defendants conclude that this Court must deny Plaintiff’s motion because it cannot take into consideration documents that were not so included. (Id.)

Pharmacia, in response, submits that it has now provided the Court with the documentation it requested on September 17, 2007 and that it should therefore be granted the attorney fees it seeks. First, Plaintiff argues that it was not unreasonable for Pharmacia to have most of its work on this case assigned to senior attorneys such as John McGahren and John Corbett. (Pl. Reply at 2.) In fact, Pharmacia argues that it was the prudent thing to do given the magnitude of the potential liability to which it might be exposed and because of the institutional knowledge accumulated by these senior lawyers as a result of their involvement with the Lower Passaic River Study Area Cooperating Parties Group (“CPG”) and the first EPA settlement. (Id. at 3.) Pharmacia also insists that “nearly every other member of the … CPG represented by outside counsel retain[ed] attorneys who are equal or senior to Messrs. McGahren and Corbett.”(Id. at 4.)

Second, Plaintiff explains that “Latham and Patton Boggs have charged Pharmacia at rates that are reasonable and comparable to those charged by other New Jersey/New York metropolitan area firms working on complex environmental matters….” (Pl. Br. at 7.) Plaintiff dismisses the CSX Defendants’ argument that its fees are unreasonable when compared to those of Gibbons, P.C. Indeed, Plaintiff explains that their argument “erroneously assumes that an attorney’s date of graduation from law school is dispositive of the rate that attorney should charge,” and notes that counsel for the CSX Defendants billed as much as $600 per hour in 2002.(Pl. Reply at 7, citing Charles Toutant, Firms Hike Rates, Weak Economy Notwithstanding, 170 N.J.L.J. 1025 (Dec. 23, 2002).)

Finally, Pharmacia suggests that the Court should dismiss the CSX Defendants’ request that the Court disregard any materials submitted in support of the instant motion that was not listed in the Joint Final Pretrial Order. Indeed, Pharmacia argues that this argument is precluded by this Court’s acknowledgment, in its September 17, 2007 Opinion, that it had ordered the damages section of this trial to be bifurcated. (Pl. Reply at 8.)

Having reviewed the parties’ submissions, the Court holds that the hourly rates billed by Pharmacia’s attorney are not unreasonable in light of recent Court of Appeals opinions on the issue. See Tenafly Eruv Ass’n v. Borough of Tenafly 195 Fed. App’x 93 (3d Cir .2006) (deeming hourly rates of $550 reasonable for the New Jersey market in 2002). The side-by-side comparison of the billing rates of Patton Boggs, LLP and Gibbons, P.C., advocated by the CSX Defendants, is not particularly informative and is of little relevance here. The Court has reviewed the invoices submitted by Pharmacia and holds that they comply with the requirements of Local Civil Rule 54.2 and do not corroborate the CSX Defendants’ claims of over-billing.

The Court finds unpersuasive the CSX Defendants’ suggestion that the billing patterns of Plaintiff’s counsel are suspect because two senior attorneys account for the vast majority of the fees attributable to a team of over a dozen attorneys. Mr. McGahren and Mr. Corbett have been involved with the legal proceedings arising out of the environmental impact of the Kearny Site for an extended period of time. Given the level of institutionalized knowledge they have accumulated over that time, their billing patterns do not seem unreasonable to the Court.

The Court finds meritless the CSX Defendants’ claim that the invoices for the period between June 1, 2007 and August 31, 2007 are “so filled with acronyms and so lacking in detail as to make meaningful analysis of them difficult if not impossible.”(CSX Def. Opp’n at 10.) The Court has reviewed the entries at issue-they are neither unduly cryptic nor vague.

The Court also rejects the CSX Defendants’ claims that Plaintiff should not be awarded attorneys’ fees incurred in connection with the NOAA investigation. This Court held on June 20, 2007 that:

Motor Carrier, CSX and Intermodal shall indemnify Pharmacia pursuant to the Agreement for any and all costs for which Pharmacia is or becomes liable to NJDEP and USEPA pursuant to the NJDEP Directive, the USEPA Order as amended by Amendment No. 1, or any future action by NJDEP, USEPA or any other regulatory agency related to the remediation of the Lower Passaic River, and for future cleanup of the Kearny Site.

(Docket No. 155, at 36 (emphasis added).) NOAA is a federal agency focused on the condition of the oceans and the atmosphere. See NOAA website, available at www.noaa.gov/about-noa.html. NOAA’s August 2007 letter to Pharmacia explained that it invited Pharmacia to “investigate damage to natural resources in the Lower Passaic River in partnership with NOAA.”(Docket No. 190, at 2.) Costs arising in connection with the NOAA investigation thus fall under the purview of this Court’s Findings of Facts and Conclusions of Law assigning liability to the CSX and Riley Defendants. Moreover, the attorneys’ fees incurred in connection with the investigation must-under the rationale adopted by this Court on September 17, 2007-be considered “costs of cleanup” under the Agreement for which Pharmacia is entitled to reimbursement.

Finally, the Court rejects the argument that it cannot, at this juncture, take into consideration documents that were not appended to the Pretrial Order. As the Court explained in its September 17, 2007 Opinion, we specifically requested that the damages portion of this matter be bifurcated. Pharmacia shall not be penalized for complying with this Court’s Order.

B. Motion for Allocation and Award of Contribution

The CSX Defendants contend that the Court should “enter a judgment allocating to the Riley Defendants all of the damages (excluding Pharmacia’s attorneys’ fees) awarded against the CSX Defendants in this action.”(CSX Def. Br. at 2.) The Court disagrees.

On September 17, 2007, this Court issued its Opinion on Plaintiff’s First Motion for Attorney Fees and both Plaintiff’s and Defendants’ motions for default judgment. That opinion stated that the Court was:

[t]hereby only deciding that [the CSX] Defendants have prevailed on the specific cross-claims they have put forward against G.O.D. and Riley [and that we] need not decide at th[at] juncture whether the damages awarded against Defendants as a result of this Court’s Findings of Fact and Conclusions of Law qualify as damages for which Defendants are entitled to contribution under those cross-claims.

(Docket No. 180, at 14.)The cross-claims put forward by the CSX Defendants against G.O.D. and Riley were for contribution under Section 113 of CERCLA, 42U.S.C. § 9607, and under the New Jersey Spill Compensation and Control Act. (Docket Entry No. 19, at 6-9.)

Pharmacia objects to the CSX Defendants’ motion on several levels. First, it submits to the Court that “Pharmacia’s right to recovery from CSX under the Court’s June 22, 2007 Order is unaffected by any judgment that CSX may obtain against [the Riley Defendants]” (Pl. Opp’n at 1.) Pharmacia insists that this latest motion by the CSX Defendants is nothing but an attempt to thwart or delay the enforcement of this Court’s Order against the CSX Defendants.(Id .)

Second, Pharmacia argues that the CSX Defendants have no legal basis to assert a claim for contribution against G.O.D. and Riley. (Id. at 2.) Indeed, Pharmacia claims that neither CERCLA nor the New Jersey Spill Compensation Act entitle them to the relief they seek. (Id.)

Third, Pharmacia submits that the CSX Defendants’ motion is also improper because it “is in essence a newly-asserted claim for fraud and summary judgment motion against Walter Riley, former president and majority shareholder of G.O.D., Riley Leasing, and Motor Carrier, who is not a defendant or cross-claim defendant in this action.”(Id.) Pharmacia adds that it is now too late to set forth claims against G.O.D. under the New Jersey Assignment for the Benefit of Creditors Act, and against Mr. Riley pursuant to his Chapter 7 bankruptcy proceeding. (Id.)

Fourth, Pharmacia posits that the CSX Defendants’ fraud claim against Walter Riley cannot stand, because it amounts to a claim that G.O.D. and Riley Leasing should be held responsible for Mr. Riley’s alleged representations to CSX Intermodal in 1997 and 1998. Plaintiff suggests that the CSX Defendants argue, in essence, that the Riley Defendants induced CSX to purchase Motor Carrier, “merely because Mr. Riley was the president and majority shareholder of these two corporate entities who were not parties to the CSX/Motor Carrier transaction.”(Id. at 3.) Pharmacia insists that this position has no support in the case-law, and should be disregarded by the Court.

Finally, Pharmacia submits that the CSX Defendants do not set forth any facts to support their right of contribution under the cross-claims against the Riley Defendants. According to Pharmacia:

the cross-claims rely solely on allegations concerning G.O.D.’s and Riley Leasing’s activities at the Kearny Site between 1994 and 1998…. CSX’s cross-claims make no mention of Walter Riley, his sale of Motor Carrier stock to CSX in 1998, or any alleged misrepresentations in connection thereto.

(Id. at 3.)

The CSX Defendants respond, as a threshold matter, that Pharmacia does not have standing to object to its motion for allocation and contribution from G.O.D., Inc. and Riley Leasing Corp. (CSX Def. Reply at 1.) They conclude that “the Court should disregard Pharmacia’s submission in its entirety, and order it stricken from the docket.”(Id.)

Turning to the merits of the motion, the CSX Defendants argue that “clean-up costs-whether denominated as ‘costs or [sic] removal or remedial action’ or ‘costs of response’ under CERCLA, or as ‘cleanup and removal costs’ under the Spill Act-are clearly recoverable under both of the statutes invoked by [their] cross-claims.”(CSX Def. Br. at 12.) They add that the same is true of the costs incurred by Pharmacia in connection with the CPG. (Id. at 13-14.)

The CSX Defendants insist, moreover, that the Riley Defendants’ equitable share of liability is 100%. (Id. at 15.)Indeed, the CSX Defendants explain that the “[a]llocation of liability in both CERCLA and Spill Act contribution actions is an equitable process.”(Id.) Applying that standard to the case at bar, the CSX Defendants submit that the “single most important equitable factor relevant to the allocation of clean-up costs between the CSX Defendants and the Riley Defendants” is the 1997 Agreement. (Id. at 16-17.)As interpreted by the CSX Defendants,

it provides Motor Carrier with a complete indemnification for all losses ‘caused by or arising in connection with … any material misrepresentation … on the part of the Sellers under this Agreement,’including Walter Riley.

(Id. at 17 (emphasis added).) According to the CSX Defendants, “[t]he Sellers undertook this obligation jointly and severally….”(Id.)

The CSX Defendants contend that Walter Riley triggered the indemnification clause of the Agreement when he, along with his fellow shareholders, allegedly represented to Intermodal that there was “no action, suit, arbitration proceeding, investigation, or inquiry pending or threatened against [Motor Carrier] or any Subsidiary.”(Id. at 17-18,citing 1997 Agreement § 3.14.) In addition, the CSX Defendants claim that Walter Riley and his fellow shareholders also made misrepresentations to them when:

[d]espite their [alleged] awareness of the EPA claim, they … represented and warranted that with the exception of those imposed by Motor Carrier’s 1994 Kearny Site Purchase and Sale Agreement with Pharmacia (the ‘1994 Agreement’) …‘neither Motor Carrier, nor any Person for whose conduct it is or may be held responsible has any Environmental, Health, or Safety Liabilities with respect to the Property,’ and that there were ‘no pending or threatened litigation, enforcement actions, notices of violation, directives or administrative orders involving [Motor Carrier] or the Property with respect to any Environmental Laws and neither [Motor Carrier], nor any Person for whose conduct it may be held responsible, has received any notice, request for information, claim, demand or other notification with respect to any Environmental Laws.

(Id. at 18-19,citing 1997 Agreement §§ 3.15(c)(i), 3.15(c)(4).) The CSX Defendants conclude that principles of equity warrant the shifting of 100% of the liability to the Riley Defendants. (Id. at 19.)The CSX Defendants add that “[i]t is of no moment that the 1997 Agreement was executed by Walter Riley rather than the companies he controlled.”(Id. at 19.)

As a threshold matter, the Court agrees with the CSX Defendants that Pharmacia lacks standing to oppose the motion for contribution and allocation. As we explained in our September 17, 2007 Opinion, the constitutional limitations of standing derive from Article III of the Constitution, which limits the jurisdiction of the federal courts to deciding “actual cases and controversies. SeeU.S. CONST. ART. III. “To meet the Article III standing requirements, a plaintiff himself must have ‘suffered some threatened or actual injury resulting from the putatively illegal action.’ “ Scanlin v. TD Waterhouse, Inc., No. 05-2458, 2006 U .S. Dist. LEXIS 86849, at(M.D.Pa. Nov. 30, 2006), citing Warth v. Seldin, 422 U.S. 490, 499 (1975). As for the prudential requirements, they dictate that a plaintiff “cannot rest his claim to relief on the legal rights or interests of third parties.” Warth, at 499.

There has been no indication in the record-and indeed no allegation by Plaintiff-that the issue of contribution from the Riley Defendants has any impact on its right to contribution from the CSX Defendants. Pharmacia has no standing to put forward the arguments it presented to the Court in its Brief in Opposition to the CSX Defendants’ Motion for Allocation and Contribution.

While the Court might nonetheless consider a Pharmacia submission in the nature of an amicus brief, it need not address the various points raised there, because it is not persuaded that the CSX Defendants are entitled to the contribution they seek from the Riley Defendants. The Supreme Court in Cooper Indus., Inc. v. Aviall Serv., Inc., 543 U.S. 157 (2004) held that a private party who had not been sued under Sections 106 or 107(a) of CERCLA could not obtain contribution under Section 113(f)(1) from other liable parties. Id. at 160.In the case at bar, the CSX Defendants cannot claim to have been the target of a Section 106 or 107 suit. They may not, therefore, seek contribution from the Riley Defendants under Section 113(f)(1). Similarly, the Court holds that since CSX has not conducted any “clean up” of the Kearny Site, it cannot seek contribution under N.J.S.A. § 58:10-23.11f(2)(a). The plain meaning of that provision excludes the CSX Defendants from its purview.The Court acknowledges that it had held the CSX Defendants to have prevailed under their cross-claims against the Riley Defendants. That decision, however, focused exclusively on the CSX Defendants’ right to a default judgment. An analysis of the nature of the cross-claims reveals that they cannot stand.

The provision states, in relevant part:

Whenever one or more dischargers or persons cleans up and removes a discharge of a hazardous substance, those dischargers and persons shall have a right of contribution against all other dischargers and persons in any way responsible for a discharged hazardous substance or other persons who are liable for the cost of the cleanup and removal of that discharge of a hazardous substance.

N.J.S.A. § 58:10-23.11f(2)(a).

The Court need not rule on the allegations of fraud set out in the CSX Defendants’ motion for contribution. These claims made their first appearance in that filing, and were never set forth as cross-claims against the Riley Defendants. Even if they had been, however, the Court would not be inclined to find for the CSX Defendants. Indeed, their fraud claims appear to be based on the principle that the Riley Defendants should be held responsible for alleged fraudulent representations made by Mr. Riley simply because he is one of their shareholders-even though neither Riley Defendant was a party to the Agreement between CSX, Mr. Riley and Motor Carrier. That position has, to the Court’s knowledge, no grounding in the case-law. Tellingly, the CSX Defendants offer no authority to support it.

CONCLUSION

Having reviewed the breakdown of attorneys’ fees offered by Pharmacia, and for the reasons set forth above, the Court holds that Pharmacia is entitled to attorneys’ fees in the amount of $469,360.24. The Court will therefore grant Pharmacia’s motion for attorneys’ fees. The Court will, however, deny the CSX Defendants’ motion for allocation and award of contribution. An appropriate form of Order accompanies this Opinion.

D.N.J.,2008.

Pharmacia Corp. v. Motor Carrier Services Corp.