                                           [PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT



                             No. 96-2730

                D. C. Docket No. 87-116-CIV-J-PHM




GLORIA J. ANDREWS, et al.,

                                           Plaintiffs,

DONALD ROBERT WOODMAN, Individually
and as Next Friend of Scott Forrest Woodman
and as personal representative for the
Estate of Yvonne E. Woodman,
YVONNE E. WOODMAN, Deceased, SCOTT FORREST
WOODMAN, CANDRA DAWN WOODMAN, STEVEN DWIGHT
WOODMAN, Seaman Apprentice,

                                            Plaintiffs-Appellees-
                                            Cross-Appellants,

                               versus

USA,

                                            Defendant-Cross-Claimant-
                                            Counter-Claimant-Appellant,
                                            Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,

                                            Defendants-Cross-Claimants-
                                            Counter-Defendants-
                                            Cross-Defendants,

RUFUSE SERVICES, INC.,

                                            Defendant-Cross-Claimant-
                                            Counter-Defendant,
DUVAL GARBAGE COMPANY,

                                           Defendant.



                         _____________________

                           No. 96-2731
                      _____________________
                D.C. Docket No. 90-824-CIV-J-PHM


ALVIN LINDSEY SPEICHER,
GAIL P. SPEICHER,
ALVIN LINDSEY SPEICHER, JR.,

                                           Plaintiffs-Appellees-
                                           Cross-Appellants,

SKYLER R. SPEICHER,

                                           Plaintiff,

                                versus

USA,

                                           Defendant-Cross-
                                           Defendant-Cross-
                                           Claimant-Counter-
                                           Claimant-Appellant-
                                           Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                           Defendants-Cross-
                                           Claimants-Cross-
                                           Defendants-Counter-
                                           Defendants.




                                   2
                       __________________

                           No. 96-2732
                       __________________
              D.C. Docket No. 90-825-CIV-J-12(PHM)


VIRGINIA HANSEN SMITH, as personal
representative for the Estate of
Michael Stramel, deceased,

                                       Plaintiff-Appellee-
                                       Cross-Appellant,

MICHAEL STRAMEL,

                                       Plaintiff,

TINA M. MCBETH, CHRIS HANSEN,
JILL HANSEN LESLIE, EVA E. STRAMEL,

                                       Plaintiffs-Appellees-
                                       Cross-Appellants,

                             versus

USA,

                                       Defendant-Cross-
                                       Defendant, Cross-
                                       Claimant, Appellant-
                                       Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                       Defendants-Cross-
                                       Claimants, Cross-
                                       Defendants.




                                  3
                         ___________________

                           No. 96-2733
                       ___________________
                D.C. Docket No. 90-828-CIV-J-PHM


ROBERT C. RICHARDS,
VICKI L. RICHARDS,
MICHAEL B. HARTSFIELD, JR.,

                                          Plaintiffs-Appellees,
                                          Cross-Appellants,

                               versus

USA,

                                          Defendant-Cross-
                                          Defendant, Cross-
                                          Claimant, Counter-
                                          Claimant, Appellant-
                                          Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,

                                          Defendants-Cross-
                                          Claimants, Cross-
                                          Defendants, Counter-
                                          Defendants,

REFUSE SERVICES, INC.,

                                          Defendant-Cross-
                                          Defendant, Counter-
                                          Defendant.


                         ___________________

                           No. 96-2734
                       ___________________
                D.C. Docket No. 90-830-CIV-J-PHM


ROBERT S. POWELL,
                                          Plaintiff-Appellee,
                                          Cross-Appellant,

                                  4
                             versus

USA,

                                       Defendant-Cross-
                                       Defendant, Cross-
                                       Claimant, Appellant-
                                       Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                       Defendants-Cross
                                       Claimants, Cross-
                                       Defendants.



                        _________________
                           No. 96-2735
                        _________________
                D.C. Docket No. 90-831-CIV-J-PHM


CARROLL PITTMAN,
CAROLYN J. PITTMAN,
MICHAEL K. PITTMAN,

                                       Plaintiffs-Appellees,
                                       Cross-Appellants,

                             versus

USA,

                                       Defendant-Cross-
                                       Defendant, Cross-
                                       Claimant, Appellant-
                                       Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                       Defendants-Cross-
                                       Claimants, Cross-
                                       Defendants.




                                  5
                        _________________

                           No. 96-2736
                        _________________
                D.C. Docket No. 90-829-CIV-J-PHM


DONALD MICHAEL RENTZ,
ANNETTE RENTZ,
HELEN GOODWYNE, Deceased,

                                        Plaintiffs-Appellees,
                                        Cross-Appellants,

                             versus

USA,

                                        Defendant-Cross-
                                        Defendant, Cross-
                                        Claimant, Appellant-
                                        Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                        Defendants-Cross-
                                        Claimants, Cross-
                                        Defendants.



                        _________________

                           No. 96-2737
                        _________________
                D.C. Docket No. 90-832-CIV-J-PHM


TRACY L. PATILLO,
CONNIE S. PATILLO,


                                        Plaintiffs-Appellees,
                                        Cross-Appellants,
                             versus



                                  6
USA,

                                        Defendant-Cross-
                                        Defendant, Cross-
                                        Claimant, Appellant-
                                        Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                        Defendants-Cross-
                                        Claimants, Cross-
                                        Defendants.



                        _________________

                           No. 96-2738
                        _________________
                D.C. Docket No. 90-834-CIV-J-PHM


KENNETH BELL, SR., DEBORAH BELL,
ROBERT BELL, KENNETH BELL, JR.,
JIMMY BELL, JERRY BELL,
PATRICIA J. BELL, MATTHEW BELL,
MICHELLE BELL, HENRY BELL,
DOLLY BELL, deceased, JAMES RICHARD BELL,
VICTORIA MAE BELL, JAMES R. BELL, JR.,
JAMIE MICHELLE BELL,

                                        Plaintiffs-Appellees,
                                        Cross-Appellants,

                             versus

USA,

                                        Defendant-Cross-
                                        Defendant, Cross-
                                        Claimant, Appellant-
                                        Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
                                        Defendants-Cross-
                                        Claimants, Cross-

                                  7
                                           Defendants.



                         _______________

                           No. 96-2739
                         _______________
                D.C. Docket No. 90-835-CIV-J-PHM


LAWRENCE E. KERSHAW,

                                           Plaintiff-Appellee,
                                           Cross-Appellant,

                             versus

USA,

                                           Defendant-Cross-
                                           Defendant, Cross-
                                           Claimant, Appellant-
                                           Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                           Defendants-Cross-
                                           Claimants, Cross-
                                           Defendants.

                       __________________

                           No. 96-2740
                       __________________
                D.C. Docket No. 90-836-CIV-J-PHM


IDA MAE KIRK,
MICHAEL A. KIRK, Deceased,
EDMONDS WALLIS KIRK,

                                           Plaintiffs-Appellees,
                                           Cross-Appellants,

                             versus
USA,
                                           Defendant-Cross-
                                           Defendant, Cross-

                                  8
                                        Claimant, Counter-
                                        Claimant, Appellant-
                                        Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                        Defendants-Cross-
                                        Claimants, Cross-
                                        Defendants, Counter-
                                        Defendants.



                       __________________

                           No. 96-2741
                       ___________________
                D.C. Docket No. 90-837-CIV-J-PHM


DONALD E. LEONARD, JR.,
VIRGINIA M. LEONARD,
DONALD E. LEONARD, Deceased,
WANDA LEONARD HARRISON,

                                        Plaintiffs-Appellees,
                                        Cross-Appellants,

                               versus

USA,

                                        Defendant-Cross-
                                        Defendant, Cross-
                                        Claimant, Appellant-
                                        Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                        Defendants-Cross-
                                        Claimants, Cross-
                                        Defendants.




                                  9
                         ___________________

                           No. 96-2742
                       ___________________
                D.C. Docket No. 90-838-CIV-J-PHM


JAMES E. JOHNSON,
DOROTHY T. JOHNSON,
TERRANCE C. JOHNSON,
JIMMY E. JOHNSON,
JIMMY E. JOHNSON, JR.,
EUGENE B. JOHNSON,

                                          Plaintiffs-Appellees,
                                          Cross-Appellants,

                               versus

USA,

                                          Defendant-Cross-
                                          Defendant, Cross-
                                          Claimant, Appellant-
                                          Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                          Defendants-Cross-
                                          Claimants, Cross-
                                          Defendants.



                         __________________

                           No. 96-2743
                       __________________
                D.C. Docket No. 90-839-CIV-J-PHM


STANLEY C. LEVEROCK, SR.,
LINDA S. LEVEROCK,
VIOLET LEVEROCK,
STANLEY LEVEROCK, JR.,

                                          Plaintiffs-Appellees,
                                          Cross-Appellants,

                               versus

                                  10
USA,

                                       Defendant-Cross-
                                       Defendant, Cross-
                                       Claimant, Appellant-
                                       Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                       Defendants-Cross-
                                       Claimants, Cross-
                                       Defendants.



                       __________________

                           No. 96-2744
                       ___________________
                D.C. Docket No. 90-841-CIV-J-PHM


DONALD RAY THREADGILL,
BARBARA A. THREADGILL,
RONNIE WAYNE THREADGILL,

                                       Plaintiffs-Appellees,
                                       Cross-Appellants,

                             versus

USA,

                                       Defendant-Cross-
                                       Defendant, Cross-
                                       Claimant, Appellant-
                                       Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                       Defendants-Cross-
                                       Claimants, Cross-
                                       Defendants.




                                  11
                          ________________

                             No. 96-2745
                          ________________
                  D.C. Docket No. 90-842-CIV-J-PHM


CLIFTON A. TODD,
JEANETTE A. TODD,
TROY A. TODD,

                                         Plaintiffs-Appellees,
                                         Cross-Appellants,

                               versus

USA,

                                         Defendant-Cross-
                                         Defendant, Cross-
                                         Claimant, Counter-
                                         Claimant, Appellant-
                                         Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                         Defendants-Cross-
                                         Claimants, Cross-
                                         Defendants, Counter-
                                         Defendants.



                        ___________________

                             No. 96-2746
                         ___________________
                  D.C. Docket No. 90-844-CIV-J-PHM


NEAL THOMSEN,
JEWELL THOMSEN,

                                         Plaintiffs-Appellees,
                                         Cross-Appellants,

                               versus



                                  12
USA,

                                           Defendant-Cross-
                                           Defendant, Cross-
                                           Claimant, Appellant-
                                           Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                           Defendants-Cross-
                                           Claimants, Cross-
                                           Defendants.



                           _________________

                           No. 96-2747
                       __________________
                D.C. Docket No. 90-843-CIV-J-PHM


ALBERT IKE NOLAN,
JEANNE NOLAN,
CAROL LYNN NOLAN,
ADRIENNE PATIENCE NOLAN,

                                           Plaintiffs-Appellees,

                                versus

USA,

                                           Defendant-Cross-
                                           Defendant, Cross-
                                           Claimant, Appellant-
                                           Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                           Defendants-Cross-
                                           Claimants, Cross-
                                           Defendants.




                                  13
                         ___________________

                           No. 96-2748
                       ___________________
                D.C. Docket No. 90-857-CIV-J-PHM


ROBERT D. STALEY,

                                          Plaintiff-Appellee,
                                          Cross-Appellant,

                               versus

USA,

                                          Defendant-Cross-
                                          Defendant, Cross-
                                          Claimant, Appellant-
                                          Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                          Defendants-Cross-
                                          Claimants, Cross-
                                          Defendants.



                         ___________________

                           No. 96-2749
                       ___________________
                D.C. Docket No. 90-846-CIV-J-PHM


CLAUDE DANIEL OGLESBY,
MARGARET OGLESBY,

                                          Plaintiffs-Appellees,
                                          Cross-Appellants,

                               versus

USA,

                                          Defendant-Cross-
                                          Defendant, Cross-
                                          Claimant,Appellant-
                                          Cross-Appellee,

                                  14
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                           Defendants-Cross-
                                           Claimants, Cross-
                                           Defendants.



                           _________________

                           No. 96-2750
                        _________________
                D.C. Docket No. 90-848-CIV-J-PHM


BOY ELIJAH O’STEEN, JR.,
JOAN MARIE O’STEEN,
BOY ELIJAH O’STEEN, III,

                                           Plaintiffs-Appellees,
                                           Cross-Appellants,

                                versus

USA,

                                           Defendant-Cross-
                                           Defendant, Cross-
                                           Claimant, Appellant-
                                           Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                           Defendants-Cross-
                                           Claimants, Cross-
                                           Defendants.




                                  15
                          __________________

                              No. 96-2751
                          __________________
                    D.C. Docket No. 90-851-CIV-PHM


JOSEPH D. STRANGE,
SHIRLEY A. STRANGE,
JOSEPH D. STRANGE, JR.,
LAURA A. STRANGE,

                                          Plaintiffs-Appellees,
                                          Cross-Appellants,

                                versus

USA,

                                          Defendant-Cross
                                          Defendant, Cross-
                                          Claimant, Appellant-
                                          Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                          Defendants-Cross-
                                          Claimants, Cross-
                                          Defendants.



                          __________________

                           No. 96-2752
                       __________________
                D.C. Docket No. 90-852-CIV-J-PHM


JANIE L. HANSLEY,
JANIE P. HANSLEY,

                                          Plaintiffs-Appellees,
                                          Cross-Appellants,

                                versus




                                  16
USA,

                                        Defendant-Cross-
                                        Defendant, Cross-
                                        Claimant, Counter-
                                        Claimant, Appellant-
                                        Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                        Defendants-Cross-
                                        Claimants, Cross-
                                        Defendants, Counter-
                                        Defendants.



                       ___________________

                           No. 96-2753
                       __________________
                D.C. Docket No. 90-854-CIV-J-PHM


NEIL HANSEN,
GRETCHEN HANSEN,
TRAVIS EARL THORNTON, JR.,

                                        Plaintiffs-Appellees,
                                        Cross-Appellants,

                             versus

USA,

                                        Defendant-Cross-
                                        Defendant, Cross-
                                        Claimant, Appellant-
                                        Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                        Defendants-Cross-
                                        Claimants, Cross-
                                        Defendants.



                                  17
                         _________________

                             No. 96-2754
                          _________________
                  D.C. Docket No. 90-858-CIV-J-PHM


HENRY VORPE, JR.,
JUDY VORPE,
CHRISTI D. VORPE,

                                         Plaintiffs-Appellees,
                                         Cross-Appellants,

                               versus

USA,

                                         Defendant-Cross-
                                         Defendant, Cross-
                                         Claimant, Appellant-
                                         Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                         Defendants-Cross-
                                         Claimants, Cross-
                                         Defendants.



                         __________________

                             No. 96-2755
                         __________________
                  D.C. Docket No. 90-859-CIV-J-PHM


VIVIAN E. GORE,
WILEY H. GORE,

                                         Plaintiffs-Appellees,
                                         Cross-Appellants,

                               versus

USA,
                                         Defendant-Cross-
                                         Defendant, Cross-

                                  18
                                          Claimant, Appellant-
                                          Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                          Defendants-Cross-
                                          Claimants, Cross-
                                          Defendants.



                         ___________________

                              No. 96-2756
                          ___________________
                   D.C. Docket No. 90-861-CIV-J-PHM


DORIS F. WALKER,
GARY W. WALKER,

                                          Plaintiffs-Appellees,
                                          Cross-Appellants,

                                versus

USA,

                                          Defendant-Cross-
                                          Defendant, Cross-
                                          Claimant, Appellant-
                                          Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                          Defendants-Cross-
                                          Claimants, Cross-
                                          Defendants.




                                  19
                        _____________________

                           No. 96-2757
                      _____________________
                D.C. Docket No. 90-862-CIV-J-PHM


EDDIE WILLIAMS,
LILA M. WILLIAMS,
PENNY WILLIAMS NEWMANS,
CHRISTINE MICHELLE WILLIAMS,
REBECCA LYNN WILLIAMS,
EDDIE MICHAEL WILLIAMS,
EDDIE MICHAEL WILLIAMS, JR.,

                                             Plaintiffs-Appellees,
                                             Cross-Appellants,

                               versus

USA,

                                             Defendant-Cross-
                                             Defendant, Cross-
                                             Claimant, Appellant-
                                             Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                             Defendants-Cross-
                                             Claimants, Cross-
                                             Defendants.



                           _______________

                           No. 96-2758
                        ________________
                D.C. Docket No. 90-864-CIV-J-PHM


ALICE M. ANDERSON,
STEPHEN E. ANDERSON,
TERRENCE L. ANDERSON,

                                             Plaintiffs-Appellees,
                                             Cross-Appellants,

                               versus

                                  20
USA,

                                        Defendant-Cross-
                                        Defendant, Cross-
                                        Claimant, Appellant-
                                        Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                        Defendants-Cross-
                                        Claimants, Cross-
                                        Defendants.



                       ___________________

                           No. 96-2759
                       ___________________
                D.C. Docket No. 90-865-CIV-J-PHM


LEWIS D. BOWEN,
SARAH CHRISTINE FLINK BOWEN,

                                        Plaintiffs-Appellees,
                                        Cross-Appellants,

                               versus

USA,

                                        Defendant-Cross-
                                        Defendant, Cross-
                                        Claimant, Appellant-
                                        Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.
WASTE MANAGEMENT, INC.
REFUSE SERVICES, INC.,

                                        Defendants-Cross-
                                        Claimants, Cross-
                                        Defendants.


                        _________________
                           No. 96-2760
                       __________________

                                  21
                D.C. Docket No. 90-866-CIV-J-PHM


JOHN P. BUETTGEN,
JANICE BEUTTGEN,
DAWN BUETTGEN,
JODY BUETTGEN,
KENNETH BUETTGEN,

                                        Plaintiffs-Appellees,
                                        Cross-Appellants,

                             versus

USA,

                                        Defendant-Cross-
                                        Defendant, Cross-
                                        Claimant, Appellant-
                                        Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.
WASTE MANAGEMENT, INC.
REFUSE SERVICES, INC.,

                                        Defendants-Cross-
                                        Claimants, Cross-
                                        Defendants.



                       ___________________

                           No. 96-2761
                       ___________________
                D.C. Docket No. 90-867-CIV-J-PHM


STEPHEN BRANNEN,
MISTY VELL BRANNEN,
STEPHANIE JO BRANNEN,
SHERRIE FAYE BRANNEN,
MELISSA BRANNEN MCDANIEL,

                                        Plaintiffs-Appellees,
                                        Cross-Appellants,

                             versus
USA,

                                        Defendant-Cross-

                                 22
                                       Claimant, Appellant-
                                       Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                       Defendants-Cross-
                                       Defendants.



                        ________________

                           No. 96-2762
                        _________________
                D.C. Docket No. 90-869-CIV-J-PHM


JOHN M. FLORES,
FLORENCE FLORES,
PATRICIA JO BELL, as personal
representative for the Estate of
Florence Flores, deceased,

                                       Plaintiffs-Appellees,
                                       Cross-Appellants,

                             versus

USA,

                                       Defendant-Cross-
                                       Defendant, Cross-
                                       Claimant, Appellant-
                                       Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                       Defendants-Cross-
                                       Claimants, Cross-
                                       Defendants.

                       __________________

                           No. 96-2763
                       __________________
                D.C. Docket No. 90-872-CIV-J-PHM



                                  23
ALBERT G. BELZ,
BETTY BELZ,
JOHN CLARENCE BELZ,
FREDERICK G. BELZ, I,
FREDERICK G. BELZ, II,
SUZANNE E. BELZ,
ROBERT J. BELZ,
WILLIAM B. BELZ,
FREDERICK G. BELZ, III,
MARY M. BELZ,
JOSHUA BELZ,

                                           Plaintiffs-Appellees,
                                           Cross-Appellants,

                                versus

USA,

                                           Defendant-Cross-
                                           Defendant, Cross-
                                           Claimant, Appellant-
                                           Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                           Defendants-Cross-
                                           Claimants, Cross-
                                           Defendants.

                          ___________________

                           No. 96-2764
                       ___________________
                D.C. Docket No. 90-874-CIV-J-PHM


WAYNE K. HAZEN,
PATRICIA CHRISTOPHER,

                                           Plaintiffs-Appellees,
                                           Cross-Appellants,

                                versus

USA,
                                           Defendant-Cross-
                                           Defendant, Cross-
                                           Claimant, Appellant-

                                  24
                                                       Cross-Appellee,

WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,

                                                       Defendants-Cross-
                                                       Claimants-Cross-
                                                       Defendants.


                         ____________________________

            Appeals from the United States District Court
                 for the Middle Disitrict of Florida
                     ____________________________
                             (September 19, 1997)

Before DUBINA, Circuit Judge, HILL and GIBSON*, Senior Circuit
Judges.


DUBINA, Circuit Judge:




________________________
*Honorable John R. Gibson, Senior U.S. Circuit Judge for the
Eighth Circuit sitting by designation.



     The United States appeals the district court’s award of

attorneys’        fees      to         plaintiffs/appellees/cross-appellants

(“plaintiffs”)     pursuant       to    the    Equal    Access    to   Justice    Act

(“EAJA”),    28   U.S.C.    §    2412,    on   plaintiffs'       claims   under   the

Comprehensive Environmental Response, Compensation, and Liability

Act of 1980 (“CERCLA”),            42 U.S.C. § 960(a).             The government

contends the fee award was disproportionately high.                       Plaintiffs
cross-appeal, claiming the award was too low.                    We agree with the

government and remand for a redetermination of attorney's fees.

                                          25
I.      BACKGROUND

        The opinion we issue today is one in a series of related

appeals which detail the facts of this case.             See Woodman v. United

States, ___ F.3d ___, ___-___ (11th Cir. 1997). We summarize those

facts here, and we set forth additional procedural history relevant

to the issues in these appeals.

     The United States Navy contracted with a private company,

Waste    Control     of    Florida,    Inc.   (“Waste   Control”),    to    remove

hazardous chemical waste from two Jacksonville-area naval bases in

the 1960s.     For nearly two years, Waste Control dumped Navy waste

at a swampy landfill in southwest Jacksonville.               Nearby residents

drew their water from wells.            Toxic chemicals from the Navy waste

leached into the groundwater and polluted the wells. The residents

sued the United States under the Federal Tort Claims Act (“FTCA”),

28 U.S.C. §§ 2671-2680, and CERCLA.              They sued Waste Control and

two of its affiliates under CERCLA and Florida law.

     Plaintiffs sought damages under CERCLA for (1) future medical

monitoring costs, (2) statutory attorneys' fees, and (3) the

expenses of obtaining alternate water supplies.                    Early in the

litigation,    the        district    court   ruled   that   the   only    damages

plaintiffs could recover under CERCLA were “their expenditures for

connecting to the water line provided by the City of Jacksonville

and their expenditures for bottled water.”                   Woodman v. United

States, 764 F. Supp. 1467, 1470 (M.D. Fla. 1991).              In a subsequent,

unpublished order, the district court ruled that plaintiffs could

not recover attorneys' fees directly under CERCLA in light of the


                                         26
Supreme Court's decision in Key Tronic Corp. v. United States, 114

S. Ct. 1960 (1994).      In   Key Tronic, the Court held that CERLCA

“does not provide for the award of private litigants' attorney's

fees associated with bringing a cost recovery action.”                 Id. at

1967.     Plaintiffs do not appeal either of these district court

rulings.

       Prior to trial, the government and the private contractors

took the unusual step of filing motions for summary judgment on

behalf of plaintiffs on the CERCLA claims.                  The district court

granted the motions and entered findings of fact no longer in

dispute, pursuant to FED. R. CIV. P. 56(d).         The government objected

to these findings on the ground that they established elements of

the unresolved FTCA claims.        The district court then vacated its

order entering summary judgment, and litigation proceeded on all

claims.

        Plaintiffs settled with the private contractors on the eve of

trial for $8.5 million.          According to plaintiffs, the parties

allocated $2.5 million of that settlement for attorneys' fees.

They    designated   one-third    of   that     sum,   or    $833,333.33,   for

attorneys' fees on the CERCLA claims. A five-phase trial proceeded

on plaintiffs' claims against the United States.               After the first

phase of trial, the district court found the government liable

under both the FTCA and CERCLA.             Rather than litigate the CERCLA

damages, the parties stipulated to a schedule of response costs

that the United States would pay to 39 of the 171 plaintiffs.               The

stipulated costs totaled $49,549.00 for obtaining alternate water

                                       27
supplies.      The district court entered judgment against the United

States on the CERCLA claims and reduced the stipulated costs by the

amount of the CERCLA settlement with the private contractors.

After the set-off, only one plaintiff obtained a CERCLA award

against the government, in the amount of $700.

       Plaintiffs applied to the district court pursuant to the EAJA

for attorneys' fees and costs incurred in litigating their CERCLA

claims.      According to plaintiffs' fee application, their attorneys

and paralegals spent approximately 30,000 hours litigating this

case.       Plaintiffs sought compensation for half of that time, plus

half    of    their     total   costs,       for   a   total    of   $1,462,298.84.1

Plaintiffs argued that the CERCLA and FTCA claims overlapped so

extensively      that    the    best   way    to    determine    which   hours   were

attributable to the CERCLA claims was simply to divide the total

hours in half.

       The district court made a preliminary finding that the EAJA

applied because the government's position on the CERCLA claims was

not “substantially justified.” See 28 U.S.C. § 2412(d). The court

found that the total number of hours expended and amount of

expenses incurred were reasonable.                 However, the court ruled that

plaintiffs were entitled under the EAJA only to one-third, not one-

half, of those hours and expenses.                     The court reasoned that

plaintiffs had allocated one-third of the fees and costs portion of

their settlement with the private contractors to CERCLA fees and

        1
      Plaintiffs computed the total figure by multiplying 15,000
hours times hourly rates not exceeding the EAJA's statutory cap.
Those hourly rates are not at issue in this appeal.

                                         28
costs, and the same division should apply to their CERCLA claims

against the United States.     Then, the district court reduced the

one-third by a further 78% because only 22% of the individual

plaintiffs had prevailed on their CERCLA claims.      Ultimately, the

judge awarded plaintiffs $180,880 in CERCLA fees and expenses,

approximately 12% of the amount they requested.

      The government appeals, claiming that the number of hours for

which   plaintiffs'     attorneys    sought   reimbursement   was   so

unreasonable that the district court should have denied the fee

application outright.     Alternatively, the government argues that

the award is too high.   The government does not appeal the district

court's finding that its position on the CERCLA claims was not

substantially justified.     Plaintiffs cross-appeal.    They do not

contest the district court's decision to allocate one-third of

their hours to the CERCLA claims, but they argue that the district

court erred by reducing their award by 78%.
II.   DISCUSSION

      We review the district court's award of attorneys' fees and

costs under the EAJA for abuse of discretion. Pierce v. Underwood,

487 U.S. 552 (1988).

      The EAJA permits parties who prevail against the United States

in a civil action to recover attorneys' fees and costs unless the

government's position was “substantially justified.”      28 U.S.C. §

2412(d); see also Commissioner, I.N.S. v. Jean, 496 U.S. 156, 158
(1990). The EAJA specifically excludes recovery for fees and costs

expended on tort claims.     See 28 U.S.C. § 2412(d)(1)(A); Joe v.


                                    29
United States, 772 F.2d 1535 (11th Cir. 1985).               Thus, the EAJA

allows plaintiffs to recover fees and costs incurred in litigating

their CERCLA claims, but not their FTCA claims.2

     The government's first argument is that the district court

should have rejected plaintiffs' fee application outright because

it was so outrageous.      According to the government, “[t]he CERCLA

claims were not sufficiently complex, nor sufficiently contested,

to require anything close to 15,000 of attorney and paralegal

time.”     Br. for Appellant at 16.           The government argues that

outright    denial   of   plaintiffs'   fee    application    would   induce

claimants to submit reasonable, carefully calculated fee demands.

Although the Eleventh Circuit has not decided the issue, the

government cites cases from several other circuits holding that

district courts do not abuse their discretion by denying in their

entirety fee applications that are grossly inflated.             See, e.g.,

Environmental Defense Fund, Inc. v. Reilly, 1 F.3d 1254, 1258 (D.C.

Cir. 1993); Fair Housing Council v. Landow, 999 F.2d 92, 96-97 (4th

Cir. 1993); Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir. 1980);

see also Loranger v. Stierheim, 10 F.3d 776, 782 n. 8 (11th Cir.

1994) (recognizing that other circuits permit outright denial but

not deciding the question).

     Even if we adopted such a rule, it would not provide a basis

for vacating the district court's fee award in this case.                The

     2
      We   note also that plaintiffs may not recover fees and costs
expended    on their FTCA claims in light of our decision in the
related    appeals that plaintiffs cannot prevail on their FTCA
claims.     See Woodman v. United States, ___ F.3d ___ (11th Cir.
1997).

                                   30
district court expressly found that the government's unjustified

refusal to admit any of the CERCLA allegations “bordered on bad

faith”     and   necessitated       “extensive    pretrial    investigation,

discovery and preparation.”          R-7-904, Dist. Ct. Mem. Op. at 6-7.

The district court also found that the total hours expended by

plaintiffs' counsel were reasonable and that the government only

challenged 3,000, or 10%, of them.            The government fails to show

that these findings were clearly erroneous. Therefore, there is no

evidence    that     plaintiffs     egregiously    exaggerated      their   fee

application.       The district court did not abuse its discretion by

rejecting the government's bid for an outright denial of attorneys'

fees.

      Next, the government argues that the district court abused its

discretion by failing to consider the limited success plaintiffs

achieved    on   their     CERCLA   claims.       The   starting    point   for

determining a reasonable fee award is multiplying the number of

attorney hours reasonably expended by a reasonable hourly rate.

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Norman v. Housing

Auth. of City of Montgomery, 836 F.2d 1292, 1302 (11th Cir. 1988).

The   district     court   may   then   adjust   the    resulting   “lodestar”

depending upon a variety of factors, the most important of which is

the degree of the plaintiff's success in the lawsuit. Hensley, 461
U.S. at 433.       “[W]here the plaintiff has achieved only limited

success, the district court should award only that amount of fees

that is reasonable in relation to the results obtained.”                Id. at




                                        31
440.       We agree that the district court abused its discretion by not

giving greater weight to plaintiffs' limited success.3
       Plaintiffs' success on their CERCLA claims was minimal by any

measure.        First, the CERCLA damages the court awarded plaintiffs

were infinitesimal compared with those they requested.       Plaintiffs

sought more than $3.5 million for three types of CERCLA damages:

(1) future medical monitoring expenses, which the court valued at

$2.1 million; (2) statutory attorneys' fees, which plaintiffs

valued at $1.4 million, and (3) alternative water supply expenses.

Plaintiffs were awarded only the last category of damages--and only

$49,549.4        This figure represents less than 1% of the amount

plaintiffs sought.       Second, plaintiffs' CERCLA damages were slight

in comparison with plaintiffs' overall award.          The CERCLA award

accounted for only 3% of the total award.            Third, the CERCLA

victory was not successful in the sense that it vindicated an

important non-monetary principle, as may be the case with civil

rights litigation. See, e.g., Popham v. City of Kennesaw, 820 F.2d

            3
        In light of this decision, we do not reach the other
arguments advanced by the government, nor do we consider
plaintiffs' cross-appeal.
       4
     This figure dropped to $700 after the set-off for plaintiffs'
settlement with the private contractors.      Although we have not
considered this issue, the Third Circuit has held that set-offs
should not be considered in determining a prevailing party's degree
of success for fee application purposes.        See Gulfstream III
Assocs., Inc. v. Gulfstream Aerospace Corp., 995 F.2d 414, 423 (3rd
Cir. 1993) (“[T]he reduction of a plaintiff's net recovery due to
the offset of a jury verdict by prior settlements does not indicate
that plaintiff failed to prove any of its claims at trial. It may
merely reflect plaintiff's skill as a negotiator with the other
defendants . . .”). We need not resolve this issue here because
plaintiffs' CERCLA success was slight whether measured before or
after the set-off.

                                     32
1570, 1580 (11th Cir. 1987) (“The affirmation of constitutional

principles produces an undoubted public benefit that courts must

consider in awarding attorneys' fees . . .”).

     Plaintiffs argue that they achieved substantial success on

their CERCLA claims.    They point out that they succeeded on their

medical monitoring claims, albeit under the FTCA rather than

CERCLA.     There are two problems with this argument.          First, we

reversed plaintiffs' victory on medical monitoring damages under

the FTCA.     See Woodman, ___ F.3d ___ (11th Cir. 1997).          Second,

even if plaintiffs had succeeded on their medical monitoring claims

under the rubric of the FTCA, that success could not count for the

purpose of calculating an EAJA fee award because the EAJA does not

permit recovery of fees and costs expended on tort claims.

     The district court did consider plaintiffs' limited success in

one respect:    the court reduced the amount of the fee award by 78%

because only 22% of the plaintiffs won a CERCLA award.            However,

the district court did not consider that plaintiffs prevailed on

only one of their three CERCLA claims and their monetary award on

that claim was quite small.      Instead, the district court awarded

plaintiffs fees and costs totaling nearly four times the amount of

their CERCLA award. Although the Supreme Court has “reject[ed] the

proposition    that   fee   awards   .    .   .   should   necessarily   be

proportionate to the amount of damages a civil rights plaintiff

actually recovers,” Riverside v. Rivera, 477 U.S. 561, 574 (1986);

see also Cullens v. Georgia Dep't of Transp., 29 F.3d 1489, 1493

(11th Cir. 1994) (discussing Riverside), this was not a civil


                                     33
rights action.   As noted, the best--and perhaps only--measure of

plaintiffs' success on their CERCLA claims was their monetary

damages award.

     The district court's failure to consider plaintiffs' minimal

CERCLA success was an abuse of discretion.   Accordingly, we vacate

the district court's award of fees and costs under the EAJA and

remand for recalculation.

VACATED and REMANDED.




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