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Vaid Corp v. United States Steel Corp.

Court of Appeals of Georgia, Fifth Division

October 31, 2017

VIAD CORP
v.
UNITED STATES STEEL CORPORATION.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          BRANCH, JUDGE

         From 1908 to 1937, the predecessors of appellant Viad Corp produced sulfuric acid and a waste product known as "pyrite cinders, " which are mostly iron oxide but also contain lead and arsenic, at a 25-acre plant in Albany, Georgia. In April 1968, Viad's predecessors agreed to sell the property to U.S. Steel (in a "Sale Contract"), with the sale memorialized on June 29, 1968 (in an "Assumption Agreement"). Under the reciprocal indemnification provisions of the Assumption Agreement, Viad's predecessors agreed to indemnify U.S. Steel's predecessor for liabilities "resulting] from acts, omissions, or obligations" of the predecessors "prior to the close of business" on January 27, 1968, whereas U.S. Steel's predecessor agreed to indemnify Viad's predecessors for liabilities "arising out of the ownership or operation" of the property after the date of the Assumption Agreement. After the State of Georgia required both Viad and U.S. Steel to pay for environmental remediation of the property, which had taken place by 2006, these parties sued each other for indemnification, and the trial court later granted summary judgment to U.S. Steel.

         On appeal from that judgment, Viad argues that the trial court misinterpreted the 1968 agreements, that material questions of fact remain under a correct construction of them, and that summary judgment was improperly granted before the completion of material discovery. Because we conclude that the 1968 agreements do not indemnify U.S. Steel for the consequences of its own negligence, if any, after taking possession of the property, we reverse in part, vacate in part, and remand for further proceedings.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff s case.

Lau's Corp. v. Haskins, 261 Ga. 491 (405 S.E.2d 474) (1991).

         Although the parties disagree about the history of contamination at the Albany site, the facts relevant to their indemnification claims are not in dispute. Between approximately 1908 and 1968, the property at issue was owed by Viad's predecessors, including Armour and Company and Armour Agricultural Chemical Company (AACC) ("the Armour entities"). From 1908 to 1937, Armour manufactured sulfuric acid on the property by burning pyrite in a closed system, which released the acid and also created a magenta-colored ash residue, known as "pyrite cinders, " consisting of sand and gravel-sized particles. These cinders are composed primarily of iron oxide but also contain traces of other materials, including arsenic and lead. Once created, the cinders were removed from the closed system and stored in above-ground piles on the property. In 1937 or so, Armour changed its manufacturing processes and stopped producing the cinders.

         USS Agri-Chemicals acquired the property in June 1968 and merged into U.S. Steel in 1969, at which time the property was deeded to U.S. Steel. The Sale Contract, executed in April, had provided in relevant part that " U.S. Steel does not assume and will not be liable for and [the Armour entities] expressly agree to remain liable for and discharge all liabilities of any nature whatsoever which are not expressly assumed by XJ. S. Steel." (Emphasis supplied.) The Sale Contract went on to specify that

[w]ithout in any way affecting the generality of the limitations on the obligations and liabilities to be assumed by U.S. Steel hereunder . .., it is agreed that U.S. Steel shall not assume nor agree to pay, perform, fulfull, or discharge, nor to indemnify and hold harmless [the Armour entities] with respect to any of the following debts, liabilities, and obligations of [the Armour entities, which] shall indemnify and hold harmless U.S. Steel from and against any claim, loss, damage, cost, or expense of any kind or character arising out of or resulting from the following Excluded Liabilities:
(i) Any debts, liabilities and obligations of [the Armour entities] . . . which were attributable to periods prior to the close of business on January 27, 1968, or which result from acts, omissions, or obligations of [the Armour entities] prior to such date, including but not limited to any litigation pending as of the close of business on January 27, 1968 or thereafter instituted with respect to any such debt, liability or obligation[.]

(Emphasis supplied.) The Sale Contract also promised, however, that U.S. Steel would deliver "an instrument of assumption ... under the terms of which U.S. Steel shall assume and agree in due course" to indemnify the Armour entities for "[a]ll debts, liabilities, and obligations" of the Armour entities "attributable to the period after the close of business on January 27, 1968 and prior to the Closing Date" as well as "attributable to the period on or after the Closing Date and arts[ing] from acts or omissions of U.S. Steel occurring on or after said date." (Emphasis supplied.)

         As envisioned in the Sale Contract, and referring to that document, [1] Paragraph 1 (b) of the Assumption Agreement states the specific extent to which U.S. Steel indemnifies the Armour entities:

WHEREAS, . . . U.S. Steel agreed [in the Sale Contract] ... to indemnify and hold harmless [the Armour entities]... from and against any claim, loss, damage, cost or expense of any kind or character arising out of or resulting from debts, liabilities and obligations of [the Armour entities] being assumed herein[, ] . . .
1. USS [Agri-Chemicals], as part of the consideration for the sale and transfer to it by [the Armour entities] of the aforesaid Net Assets, does hereby assume and agree to pay, perform, fulfill and discharge the debts, liabilities, and obligations of [the Armour entities] (except Excluded Liabilities hereinafter listed), primary or ...

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