                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                         DEC 18 2000
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 In re: FRANK MARION CHELF, JR.,
 AND DAVID ALAN CHELF,

           Debtors,                                    No. 99-1539
                                                   (D.C. No. 96-M-671)
 ----------------------                                 (D. Colo.)

 EMPIRE GAS CORPORATION;
 SALGAS INC. OF CRESTED
 BUTTE,

           Appellants,

 v.

 HAROLD CLIFTON GOSS, as
 Liquidating Trustee of the Frank M.
 Chelf, Jr. Liquidating Trust and David
 A. Chelf Liquidating Trust; ROXIE
 LYPPS; H. CLIFTON GOSS; DONA
 GOSS; EDWARD CLARK
 GILLESPIE, JR.; VASTENE SILVA;
 WILLIAM DAVID SMITH; JAMES P.
 SCOTT; COLLEEN RAFFERTY,
 Creditors,

           Appellees.


                             ORDER AND JUDGMENT *


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before BRORBY, MCWILLIAMS, and KELLY, Circuit Judges.


      Appellants Empire Gas Corporation and Salgas, Inc. of Crested Butte

appeal from the district court’s disallowance of their bankruptcy claims against

the estate of Frank and David Chelf. Our jurisdiction arises under 28 U.S.C. §

1291, and we affirm.   1




                                     Background

      The parties are familiar with the facts and the procedural history of this

case. We will therefore refer to the facts and procedural history only as is

necessary for our analysis. The appellees in this case are the trustee and certain

creditors who objected to Empire’s bankruptcy claims against the Chelfs’ estate

(the “Objecting Parties”).

      On appeal, Empire asserts that the district court’s disallowance of its

bankruptcy claims was erroneous because (1) the Colorado Court of Appeals

determined that Empire’s claim for indemnity was valid,   (2) Colorado law


      1
        The procedural history of this case includes actions brought by and against
not only the Chelfs as individuals, but also two corporations of which the Chelfs
were majority shareholders and Chelf Enterprises, a partnership of which the
Chelfs were partners. For the sake of convenience, we refer to these entities and
the Chelfs collectively as “the Chelfs.” Similarly, the procedural history of this
case involves not only Empire, but several Empire subsidiaries. We refer to these
entities collectively as “Empire.”

                                         -2-
entitles Empire to seek indemnification for the settlements it reached,         (3) the

doctrine of collateral estoppel precluded the district court from ruling that the

Chelfs were not liable because the Chelfs’ liability was determined in the Goss

trial, and (4) in the alternative, Empire’s claims should have survived summary

judgment. We address each argument in turn.



                                       Discussion

       We review the district court’s grant of summary judgment de novo.            Simms

v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs.             , 165 F.3d

1321, 1326 (10th Cir. 1999),    cert denied , 120 S. Ct. 53 (1999). Contrary to the

Objecting Parties’ contention, the standard is not one of clear error. Summary

judgment is appropriate “if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.”     Id. (quoting F   ED .   R. C IV . P. 56(c) (2000)). This

standard applies to bankruptcy proceedings.        F ED . R. B ANKR . P. 7056. “When

applying this standard, we view the evidence and draw reasonable inferences

therefrom in the light most favorable to the nonmoving party.”            Simms , 165 F.3d

at 1326.

       “A claim cannot be allowed [under 11 U.S.C. § 502(b)(1)] if it is


                                           -3-
unenforceable under nonbankruptcy law.”            In re G.I. Indust., Inc. , 204 F.3d 1276,

1281 (9th Cir. 2000) (quoting       In re S. Cal. Plastics, Inc. , 165 F.3d 1243, 1247

(9th Cir. 1999)) (internal quotations omitted);       see also 4 C OLLIER ON

B ANKRUPTCY § 502.03[2][b][ii]. “A trustee is therefore allowed to raise any

state law defenses to the claim.”      In re G.I. Indust., Inc. , 204 F.3d at 1281.

Accordingly, we must resolve whether Empire’s claims were enforceable under

Colorado law.

The Colorado Court of Appeals’ Decision

       The state appellate court held that the plain language of the asset purchase

agreement required the Chelfs to indemnify Empire for all of the Chelfs’

liabilities, if any such liabilities existed. II Aplt. App. at 472. Empire argues

that in light of this decision and under the law of the case doctrine, the district

court should have held that Empire was entitled to indemnification, presumably

for the settlements, Cox judgment, and remediation expenses. Aplt. Br. at 20

(“In this case, the Colorado Court of Appeals determined that Empire/Salgas is

‘entitled to indemnification for     the sellers’ liabilities. . . .’” Thus, the District

Court’s ruling to the contrary is erroneous.”). We disagree. Empire misconstrues

the state appellate court’s holding. The court held that Empire’s rights under the

indemnification agreement included all of the Chelfs’ liabilities. However, the

court did not reach the issue before us: whether the Chelfs are in fact liable for


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the settlements, Cox judgment, and remediation expenses. Thus, even assuming

that the district court was bound by law of the case (an issue we need not

address), the state appellate court decision itself affords no basis upon which the

Chelfs’ liability can be quantified for these expenses, if any such liability exists.

       Presumably in the alternative, after conceding that the state appellate court

never ruled upon the extent of the Chelfs’ liability, Empire argues the state

district court “ would have ” allocated fifty percent liability to the Chelfs had the

Chelfs not filed for bankruptcy. Aplt. Reply Br. at 9. Empire points to the

appellate court rejecting Empire’s contribution claim by relying upon the jury’s

findings in the Goss trial and the Chelfs’ request that the appellate court take

judicial notice of the Goss trial results. We decline to speculate as to how the

state court would have ruled.

Indemnification for Settlements under Colorado Law

       Under the asset purchase agreement, Empire is entitled to indemnification

only for amounts paid for the Chelfs’ liabilities. I Aplt. App. at 142. The

settlement agreements Empire entered into with several plaintiffs before the Goss

trial (the “Settling Plaintiffs”) settled only         Empire’s liability for the Settling

Plaintiffs’ injuries.   Id. at 286, 300, 308, 317. The Settling Plaintiffs reserved

the right to prosecute their claims against the Chelfs and the Chelf Entities.               Id. at

287, 300, 309, 317. Accordingly, because Empire did not pay the Settling


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Plaintiffs for the Chelfs’ liability, Empire is not entitled to indemnification.

       For this same reason,   Burlington Northern R.R. Co. v. Stone Container

Corp. , 934 P.2d 902 (Ct. App. 1997), is distinguishable. In that case, the

settlement for which indemnification was sought       “expressly included any claims”

the injured party had.    Id. at 904 (emphasis added). Therefore, the settlement

encompassed not only the settling party’s liability, but also the liability of any

other responsible party. By way of contrast and as explained above, Empire

reached settlement only with regard to its     own liability for the plaintiffs’ injuries.

Even if the Goss judgment established that the Chelfs were liable for fifty percent

of the Settling Plaintiffs’ injuries (or ninety percent for that matter), Empire

cannot obtain indemnification from the Chelfs under a theory of collateral

estoppel because the settlement agreements addressed only Empire’s liability, not

the Chelfs’. Finally, even assuming some precedential value, the Florida Court

of Appeals’ decision in    Hyatt Legal Serv’s v. Ruppitz   , 620 So.2d 1134 (Fla. Ct.

App. 1993), upon which Empire relies is factually inapposite to the case at bar.

The Cox Judgment

       With respect to the Cox judgment, the district court concluded that Empire

“waived its right to seek indemnification from the Chelf[s] by agreeing to accept

sole liability for compensatory damages in exchange for the avoidance of

exposure to punitive damages in the Cox trial.” II Aplt. App. at 699. We agree.


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As explained, Empire is entitled to indemnification only if it paid for the Chelfs’

liabilities. I Aplt. App. at 142. Because the Chelfs were dismissed as defendants

and Empire confessed liability in a pre-trial stipulation,   id. at 327, Empire paid

compensatory damages to the Cox plaintiffs only for its      own liability. Id. at 332.

Empire is therefore not entitled to indemnification for the Cox judgment. For

this same reason, the Goss judgment provides no basis for assigning liability for

the Cox judgment to the Chelfs under a theory of collateral estoppel.

Remediation Expenses

       With respect to Empire’s claim of indemnification for remediation

expenses, the district court held that the “costs incurred by Empire were directly

in response to the PUC order. The Chelfs and Chelf entities were not then

subject to the jurisdiction of the PUC.” II Aplt. App. at 699. We agree.      2
                                                                                  The

remediation orders “required solely Empire . . . to remove saturation of propane

gas.” Id. at 487. Therefore, as Empire is entitled to indemnification only for

expenses paid for the Chelfs’s liability, the remediation orders provide no basis

for indemnification.

       The district court’s holding is not “in conflict with environmental

indemnity claims being upheld across the country.” Aplt. Br. at 25 (citing        Kerr-


       2
        Because the parties did not include the remediation order in the record, we
rely solely upon the parties’ Stipulation of Facts relating to the remediation order.
II Aplt. App. at 486-87.

                                             -7-
McGee Chemical Corp. v. Lefton Iron & Metal Co.        , 14 F.3d 321, 327-28 (7th

Cir. 1994)). Granted, CERCLA permits an action for contribution against liable

or potentially responsible persons, 42 U.S.C. § 9613(f)(1);    Tosco Corp. v. Koch

Indust., Inc. , 216 F.3d 886, 891-93 (10th Cir. 2000), and the action may be

brought in a bankruptcy case.     Al Tech Specialty Steel v. Allegheny Int’l Credit

Corp. , 104 F.3d 601 (3d Cir. 1997). Empire’s indemnification claim fails,

however, for the simple reason that Empire did      not seek contribution under

CERCLA and the indemnification agreement under which it seeks recovery

provides no basis for indemnification absent an allocation of liability to the

Chelfs. For these same reasons,     Kerr-McGee is not dispositive. Unlike the

plaintiff in Kerr-McGee , Empire does not seek indemnification under CERCLA.

Furthermore, indemnification under the indemnity agreement at issue in      Kerr-

McGee was not dependent upon the indemnitor’s liability. The indemnitor

agreed to indemnify the indemnitee for expenses “     however the same may be

caused.” 3 14 F.3d at 37 (emphasis added). We therefore turn to the final basis

upon which Empire seeks indemnification: collateral estoppel.



      3
        The agreement provided in part that the indemnitor would indemnify the
indemnitee for “any and all claims, damages, judgments, fines, penalties,
assessments, losses, expenses . . . , however the same may be caused, arising out
of or resulting from . . . (b) the maintenance of any action, claim or order
concerning pollution or nuisance . . . .” Kerr-McGee , 14 F.3d at 327 (emphasis
added).

                                           -8-
       Empire’s attempt to utilize the Goss judgment to establish the Chelfs’

liability under a theory of collateral estoppel is equally unavailing. The case

management order expressly prohibited the assertion of collateral estoppel in

proceedings subsequent to the Cox trial: “Trial of each and all of [the] other

remaining plaintiffs’ claims shall be held on February 3, 1992, and immediately

thereafter as necessary until completion of     all matters .” I Aplt. App. at 274

(emphasis added). Given the foregoing language, the reference to the “second

trial proceeding,” should not be construed as allowing assertions of collateral

estoppel in proceedings that might follow the second trial. We look to the entire

order to determine the parties’ intentions.     Blecker v. Kofoed , 672 P.2d 526, 528

(Colo. 1983) (en banc) (“[S]ame rules or interpretation apply in ascertaining the

meaning of an ambiguous court order as in interpreting any other ambiguous

writing or instrument . . . ”);   Concerning the Application for Water Rights of the

Town of Estes Park v. Northern Colorado Water Conservancy Dist.           , 677 P.2d

320, 326 (Colo. 1984) (en banc) (“In order to determine intent, a contract must be

construed as a whole . . . ”). The order clearly encompasses all remaining matters

including the Chelfs’ claim on the promissory note and non-competition

agreement as well as Empire’s counterclaims.

       Therefore, upon consolidation with the Goss and Cox plaintiffs’ action, the

Chelfs’ claims and Empire’s counterclaim for indemnification necessarily became


                                              -9-
subject to the case management order. Had Empire prosecuted its counterclaim

before the Chelfs filed for bankruptcy, Empire could not have asserted collateral

estoppel on the basis of the Goss judgment. It would therefore be anomalous to

allow Empire to rely upon the Goss judgment to establish the Chelfs’ liability for

remediation expenses once the Chelfs filed for bankruptcy.

Summary Judgment

      In the alternative, Empire argues that summary judgment was improper

because the extent of the Chelfs’ liability was a genuine issue of material fact.

Aplt. Br. at 34. We disagree. As explained, the settlement agreements, Cox

judgment, and remediation orders relate only to   Empire’s liability. Furthermore,

the Goss judgment provides no basis for allocating liability to the Chelfs for

Empire’s remediation expenses. Contrary to Empire’s contention, Empire

assumed no liabilities of the Chelfs. There is therefore no dispute as to the

extent of the Chelfs’ liability for these expenses.

      AFFIRMED.


                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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