       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206
   ELECTRONIC CITATION: 2000 FED App. 0128P (6th Cir.)
               File Name: 00a0128p.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                                 ;
                                  
TRUSTEES OF THE MICHIGAN
                                  
LABORERS’ HEALTH CARE
                                  
FUND; MICHIGAN LABORERS’
                                  
                                     No. 98-1975
DISTRICT COUNCIL PENSION
                                  
FUND; MICHIGAN LABORERS’           >
VACATION FUND; MICHIGAN           
                                  
                                  
LABORERS’ TRAINING FUND;

                                  
CONSTRUCTION INDUSTRY
                                  
ADVANCEMENT FUND,
                                  
        Plaintiffs-Appellants,
                                  
                                  
                                  
          v.

MICHAEL GIBBONS; WILLIAM 
                                  
                                  
GIBBONS; GIBBONS
                                  
BROTHERS MASONRY,
      Defendants-Appellees. 
                                 1
     Appeal from the United States District Court
    for the Eastern District of Michigan at Detroit.
 No. 97-71315—Bernard A. Friedman, District Judge.
              Argued: November 5, 1999
           Decided and Filed: April 7, 2000



                           1
2        Trustees of the MI Laborers’ Health           No. 98-1975       No. 98-1975       Trustees of the MI Laborers’ Health      15
         Care Fund, et al. v. Gibbons, et al.                                               Care Fund, et al. v. Gibbons, et al.

    Before: MARTIN, Chief Judge; DAUGHTREY, Circuit                      defendants’ ERISA liability, to order the defendants to permit
              Judge; KATZ,* District Judge.                              the requested audit of their books, and to further determine
                                                                         those monies due to the Trustees.
                      _________________
                           COUNSEL
ARGUED: Christopher P. Legghio, MARTENS, ICE,
GEARY, KLASS, LEGGHIO, ISRAEL & GORCHOW,
Southfield, Michigan, for Appellants. Michael J. Olson,
KIZER LAW FIRM, Howell, Michigan, for Appellees.
ON BRIEF: Kenneth J. Fiott, CAMERON MILLER &
ASSOCIATES, Plymouth, Michigan, for Appellants.
Thomas J. Kizer, KIZER LAW FIRM, Howell, Michigan, for
Appellees.
                      _________________
                          OPINION
                      _________________
   MARTHA CRAIG DAUGHTREY, Circuit Judge. The
plaintiffs here are trustees of various employment benefit
funds established by collective bargaining agreements
between construction-industry employer associations and
unions representing their employees. They filed suit pursuant
to § 515 of the Employee Retirement Income Security Act of
1974 (ERISA), 29 U.S.C. § 1145 (1994), against the
defendants, Michael Gibbons, William Gibbons, and Gibbons
Brothers Masonry, seeking recovery of unpaid contributions
and other equitable relief. Following cross-motions for
summary judgment, the district court denied the plaintiffs’
motion and granted summary judgment to the defendants,
finding that the plaintiffs were equitably estopped from
recovering fringe benefits under the circumstances of this
case. The plaintiffs appeal, assigning as error only the grant

     *
     The Honorable David A. Katz, United States District Judge for the
Northern District of Ohio, sitting by designation.
14    Trustees of the MI Laborers’ Health          No. 98-1975      No. 98-1975        Trustees of the MI Laborers’ Health        3
      Care Fund, et al. v. Gibbons, et al.                                              Care Fund, et al. v. Gibbons, et al.

is not a case in which the parties have not had a chance to         of summary judgment to the defendants. Because we
dispute facts material to the plaintiffs’ claim, see Fountain v.    conclude that the district court erred in its application of the
Filson, 336 U.S. 681, 683 (1949); indeed, the defendants            five-part test developed by this court in Apponi v. Sunshine
acknowledged in their motion for summary judgment that no           Biscuits, Inc., 809 F.2d 1210 (6th Cir. 1987), and reiterated in
genuine issue of material fact existed. The undisputed facts        Armistead v. Vernitron Corp., 944 F.2d 1287 (6th Cir. 1991),
show that the defendants have failed to make contributions to       we find it necessary to reverse the judgment of the district
the trust funds in question according to the terms of valid         court.
collective bargaining agreements, in so doing violating § 515
of ERISA. We have examined the record below and find no                FACTUAL AND PROCEDURAL BACKGROUND
merit to any of the defendants’ asserted legal defenses to their
duties under the agreements. We therefore remand this case             Defendants Michael and William Gibbons, doing business
to the district court to order partial summary judgment to the      as Gibbons Brothers Masonry, are contractors in the
Trustees, oversee the audit of the defendants’ record, and          construction industry. Between 1986 and 1990, the
determine what award of unpaid contributions and other              defendants entered into collective bargaining agreements with
damages, if any, is due to the Trustees acting on behalf of the     various local chapters of the State of Michigan Laborers’
ERISA funds.                                                        District Council of the Laborers’ International Union of North
                                                                    America. The agreements required the defendants to
                       CONCLUSION                                   contribute specific sums of money to several employee
                                                                    pension and welfare benefit funds governed by ERISA.
   In this case the defendants, engaged in the construction         These funds, the trustees of which are plaintiffs here, included
industry for at least the last 15 years, claim ignorance of their   the Michigan Laborers’ Health Care Fund; the Michigan
obligations to ERISA trust funds and seek to estop plaintiffs       Laborers’ District Council Pension Fund; the Michigan
from enforcing these obligations. As a matter of policy, we         Laborers’ Vacation Fund; the Michigan Laborers’ Training
think that equitable estoppel of third party enforcement of         Fund; and the Construction Industry Advancement Fund.
collective bargaining agreements governed by ERISA may              Each agreement also included an “evergreen” clause,
well conflict with Congress’s objectives in enacting ERISA,         automatically renewing the agreement each year unless a party
i.e., that establishment of employee benefits funds by such         to the agreement submitted written notice of intent to
plans be in writing and that the funds’ fiscal health remain        terminate or amend at least 60 days before the agreement’s
secure. Even if estoppel should be available to defendant           expiration date.
employers in some cases, in order for these defendants to
estop the plaintiffs from enforcing the collective bargaining         In 1990, an audit of the defendants’ payroll records
agreements at issue here, all the elements of this circuit’s        indicated that the defendants owed thousands of dollars in
common law test must have been established. We conclude             unpaid contributions to the Funds. After protracted
that, as a matter of law, the defendants cannot establish all the   negotiations over payment of these monies failed, in 1991
elements of equitable estoppel on these facts. Because the          plaintiffs filed a lawsuit under ERISA’s civil enforcement
district court erred in ruling that the defendants made such a
showing, we hold that the district court’s judgment must be
REVERSED. We direct the district court on remand to enter
partial summary judgment for the Trustees as to the
4       Trustees of the MI Laborers’ Health             No. 98-1975        No. 98-1975           Trustees of the MI Laborers’ Health             13
        Care Fund, et al. v. Gibbons, et al.                                                      Care Fund, et al. v. Gibbons, et al.

provisions to recover the unpaid amount.1 The district court               silence by a party who claims not to have known where
entered a default judgment against the defendants for                      defendant was or whether or not defendant was infringing”).
approximately $70,000, covering the plaintiffs’ claims
through September 1990. The defendants’ business and                         We hold that the district court erred in concluding that the
personal bank accounts were garnished to satisfy the                       Trustees should be estopped from enforcing the agreements
judgment.                                                                  for either the period between the 1991 judgment and the 1994
                                                                           Aldrich-Gibbons communications or the period since those
   After the 1991 judgments, the defendants made no further                communications, and that the order incorporating this
payments into the Funds. In 1994, an auditor for the Funds,                estoppel must be reversed. We note that the Trustees do not
Dawn Aldrich, contacted the defendants by mail and by phone                appeal the district court’s denial of their summary judgment
requesting access to payroll records in order to perform                   motion; nevertheless, after careful review of the record, we
another audit. At that time defendant William Gibbons                      believe a grant of summary judgment as to the defendants’
informed Aldrich of his belief that the 1991 judgment                      ERISA liability is appropriate now. We have jurisdiction to
terminated the collective bargaining agreements. Aldrich,                  review the court’s denial of summary judgment, often not
whose office had received no report confirming that the                    appealable as an interlocutory decision, because it has merged
agreements had been terminated, told Gibbons that she “was                 into the final judgment in the case. See, e.g., Santaella v.
sure that he had agreements” with the union requiring                      Metropolitan Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997).
continued payments into the Funds.                                         We have the discretion to so direct an alternative order of
                                                                           judgment pursuant to 28 U.S.C. § 2106, which allow federal
  Both Aldrich and Gibbons expressed an intent to check                    appeals courts to “affirm, modify, vacate, set aside or reverse
their files to ascertain the status of the agreements.                     any judgment, decree, or order of a court lawfully brought
Nevertheless, no contact occurred between the parties until                before it for review,” and to “remand the cause and direct the
September 1996, when Aldrich again attempted to schedule                   entry of such appropriate judgment, decree, or order, or
an audit with the defendants. They refused to permit the                   require such further proceedings    to be had as may be just
audit, and the trustees filed another complaint, this time                 under the circumstances.”5 Our direction to the district court
seeking an order to compel the audit and to enforce the                    to order summary judgment is appropriate here because this
defendants’ obligations to make contributions to the Funds.

                                                                               5
                                                                                 We have not hesitated in the past to assert this power when
    1                                                                      appropriate by directing an order of summary judgment to a party
      Section 515 of ERISA states:                                         appealing the grant of the same to an adversary, see Garner v. Memphis
     Every employer who is obligated to make contributions to a            Police Dep’t, 8 F.3d 358, 366 (6th Cir. 1993), and now join those
     multiemployer plan under the terms of the plan or under the           appellate courts that have done so even where the losing party below did
     terms of a collectively bargained agreement shall, to the extent      not argue on appeal for a grant of summary judgment. See, e.g., Fabric
     not inconsistent with law, make such contributions in accordance      v. Provident Life & Accident Ins. Co., 115 F.3d 908, 914-915 (11th Cir.
     with the terms and conditions of such plan or such agreement.         1997); O’Neill v. Continental Airlines, Inc. (In re Continental Airlines),
29 U.S.C. § 1145 (1994). ERISA requires courts to award parties            981 F.2d 1450, 1458-59 (5th Cir. 1993); Dickeson v. Quarberg, 844 F.2d
victorious in actions pursuant to § 515 unpaid contributions and accrued   1435, 1444 n.8 (10th Cir. 1988); Martinez v. United States, 669 F.2d 568,
interest, liquidated damages, attorneys’ fees and costs, and “such other   570 (9th Cir. 1982); Morgan Guaranty Trust Co. v. Martin, 466 F.2d 593,
legal or equitable relief as the court deems appropriate.” 29 U.S.C.       600 (7th Cir. 1972); First Nat’l Bank v. Maryland Cas. Co., 290 F.2d
§ 1132(g).                                                                 246, 251-52 (2d Cir. 1961).
12    Trustees of the MI Laborers’ Health           No. 98-1975      No. 98-1975        Trustees of the MI Laborers’ Health          5
      Care Fund, et al. v. Gibbons, et al.                                               Care Fund, et al. v. Gibbons, et al.

348, 749 F.2d at 319; see also Sprague v. General Motors               In this second lawsuit, the instant case, both the plaintiffs
Corp., 133 F.3d 388, 404 (6th Cir.) (en banc), cert. denied,         and the defendants moved for summary judgment on the issue
118 S.Ct. 2312 (1998) (“[R]eliance can seldom, if ever, be           of the defendants’ liability to the funds. Both parties argued
reasonable or justifiable if it is inconsistent with the clear and   that there were no genuine issues of material fact. The
unambiguous terms of plan documents available to or                  defendants, for their part, insisted that the plaintiffs should be
furnished to the party.”). Similarly, the defendants here either     prevented from enforcing the agreements under the equitable
were or should have been aware of their obligations under the        doctrines of laches and estoppel and that the agreements
written agreements, if by no other means than the first,             themselves were void due to fraud in the execution. At the
successful recovery action against them. They cannot claim           hearing on the motions, the district court denied summary
justifiable reliance on the equivocal statements and ensuing         judgment to the plaintiffs and held for the defendants,
delay of an auditor in attempting to escape their                    referring to both laches and equitable estoppel as grounds for
responsibilities now.                                                denying the plaintiffs’ prayer for relief. In its opinion denying
                                                                     the plaintiffs’ later motion for reconsideration, the court held
   The lack of soundness in the district court’s estoppel            that the plaintiffs should be estopped from enforcing the
analysis is epitomized by its holding that the plaintiffs should     collective bargaining agreements because the defendants had
be estopped from enforcing the agreements from the time of           shown all the elements of equitable estoppel required by this
the 1991 judgment onward. Even if Aldrich’s conduct could            court. The plaintiffs appeal from this order.
be said to estop plaintiffs from enforcing the agreements after
Aldrich’s communications with William Gibbons in April                                       DISCUSSION
1994, it should be obvious that the plaintiffs could not be
estopped from collecting unpaid contributions for the period            We review a district court’s grant of summary judgment de
before the Aldrich-Gibbons conversation, from September              novo. See Tregoning v. American Community Mut. Ins. Co.,
1990 to April 1994. As we have previously indicated, the             12 F.3d 79, 81 (6th Cir. 1993). We may affirm the decision
agreements clearly directed the defendants to make monthly           below only if we determine that the pleadings, affidavits, and
payments into the Funds. The 1991 judgment itself should             other submissions show “that there is no genuine issue as to
have put the plaintiffs on notice as to their obligations to the     any material fact and that the moving party is entitled to a
Funds. See Michigan Laborers’ Health Care Fund v.                    judgment as a matter of law.” Fed. R. Civ. P. 56(c). All
Grimaldi Concrete, Inc., 30 F.3d 692, 695 (6th Cir. 1994).           inferences drawn from the submissions to the court must be
The record is utterly devoid of any evidence that the plaintiffs     viewed in the light most favorable to the non-movant. See
engaged in conduct at the time of the 1991 default judgment          Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
that could work to misrepresent defendants’ duties to continue       U.S. 574, 587-88 (1986). Summary judgment is inappropriate
making payments. The mere fact of the plaintiffs’ silence            if “the evidence is such that a reasonable jury could return a
between the judgment and April 1994, without more, cannot            verdict for the [nonmovant].” Sowards v. London County,
be grounds for estoppel. See Watkins v. Northwestern Ohio            203 F.3d 426, 431 (6th Cir. 2000) (citing Anderson v. Liberty
Tractor Pullers Ass’n, Inc., 630 F.2d 1155, 1160 (6th Cir.           Lobby, Inc., 477 U.S. 242, 249-50 (1986)).
1980) (holding in patent infringement action that “[f]or
silence to work an estoppel, it must be sufficiently misleading        Well over a century ago, the Supreme Court held that the
to amount to an estoppel. . . . [a]t most, the record shows          beneficiary of a contract may be estopped from enforcing that
                                                                     contract when he has “by his representations or his conduct
6    Trustees of the MI Laborers’ Health         No. 98-1975      No. 98-1975        Trustees of the MI Laborers’ Health       11
     Care Fund, et al. v. Gibbons, et al.                                             Care Fund, et al. v. Gibbons, et al.

induced the other party . . . to give him an advantage which it   S.W.2d 942, 948 (Tex. Civ. App. 1974) (stating that “[i]n no
would be against equity and good conscience for him to            event can an estoppel arise in favor of one who has been
assert.” Insurance Co. v. Wilkinson, 80 U.S. 222, 233 (1871).     guilty of contributory negligence” and citing Sheffield Car
The Sixth Circuit has followed the nation’s highest court in      Co. v. Constantine Hydraulic Co., 137 N.W. 305 (Mich.
requiring that such representations must contain an element       1912)).
of fraud, either intended deception or “such gross negligence
. . . as to amount to constructive fraud.” Brant v. Virginia         As for the final factor, detrimental, justifiable reliance by
Coal and Iron Co., 93 U.S. 326, 335 (1876); see also TWM          the party asserting estoppel, the district court never
Mfg. Co., Inc. v. Dura Corp., 592 F.2d 346, 350 (6th Cir.         articulated, either in the hearing on the parties’ motions for
1979) (requiring a showing of either “misrepresentations,         summary judgment or in its opinion denying plaintiffs’
affirmative acts of misconduct, or intentionally misleading       motion for reconsideration, how the defendants’ reliance on
silence” to establish estoppel). Fraudulent conduct alone is      the conduct of the plaintiffs and its agents was both
not enough, however; the party asserting estoppel must not        substantially detrimental and justifiable. The defendants
know the truth behind the other party’s representations, see      assert that they made other fringe benefit arrangements for
Heckler v. Community Health Servs., 467 U.S. 51, 59 n.10          their employees after the 1991 judgment, and that to have to
(1984), must reasonably rely on the other’s actions, see id. at   pay monies into the Funds now would work a detrimental
59, and must suffer substantial detriment as a result. See        change in position. But this purported reliance on plaintiffs’
Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 323            conduct, in the face of the explicit terms of the agreements
(1936); see also Teamster’s Local 348 Health and Welfare          establishing the defendants’ duty to make monthly payments
Fund v. Kohn Beverage Co., 749 F.2d 315, 319 (6th Cir.            to the Funds, simply cannot be described as justifiable. The
1984) (“Estoppel requires a representation, to a party without    defendants could reasonably have had no more than a mere
knowledge of the facts and without the means to ascertain         hope that Dawn Aldrich’s conduct, including her 1994
them, upon which the party asserting the estoppel justifiably     statements and ensuing delay in attempting to schedule an
relies in good faith to his detriment.”).                         audit, meant that the plaintiffs were not going to enforce the
                                                                  defendants’ duty to make the monthly payments.
  The plaintiffs argue that equitable estoppel should not be
available as a defense in this case, because to claim that the       These facts resemble those at issue in Teamster’s Local
plaintiffs’ agent’s oral representations and silence worked to    348, in which a union representative told non-union
estop enforcement of the collective bargaining agreements         employees of the defendant employer that they would not be
would contravene ERISA’s mandate that benefit plans must          eligible for benefits from fringe benefit funds established by
be in writing, so that beneficiaries may determine with           prior collective bargaining agreements. The defendant
certainty exactly what rights and obligations the plan sets       claimed that, because they relied on the union representative’s
forth. See Musto v. American Gen. Corp., 861 F.2d 897, 910        statements and provided alternative benefits to the non-union
(6th Cir. 1988) (citing H.R. Rep. No. 93-1280 (1974),             employees, the funds should be estopped from seeking
reprinted in 1974 U.S.C.C.A.N. 5038, 5077-78). We find it         contributions under the agreements. The court held for the
unnecessary, however, to decide whether or not equitable          plaintiff funds, stating that “[t]he estoppel defense fails
estoppel should generally be available as a defense to            because [the defendant] had knowledge about the plans and
contribution recovery actions, because in this case the           its obligations thereunder, and did not reasonably rely on [the
defendants cannot establish a basis to estop recovery.            union representative’s] representations.” Teamster’s Local
10   Trustees of the MI Laborers’ Health          No. 98-1975      No. 98-1975          Trustees of the MI Laborers’ Health             7
     Care Fund, et al. v. Gibbons, et al.                                                Care Fund, et al. v. Gibbons, et al.

  diligence he could acquire the knowledge so that it                In past ERISA cases involving a claim of equitable
  would be negligence on his part to remain ignorant by            estoppel, we have required a showing of five common-law2
  not using those means, he cannot claim to have been              elements:
  misled by relying upon the representation or
  concealment.                                                       1) conduct or language amounting to a representation of
                                                                     material fact;
Community Health Servs., 467 U.S. at 59 n.10 (emphasis
added); see also Teamster’s Local 348, 749 F.2d at 319               2) awareness of the true facts by the party to be
(stating that, for estoppel to apply, representation must be         estopped;
made “to a party without knowledge of the facts and without
the means to ascertain them”) (emphasis added). Gibbons              3) an intention on the part of the party to be estopped
testified that he believed he received and retained copies of        that the representation be acted on, or conduct toward the
the agreements after signing them. Dawn Aldrich testified            party asserting the estoppel such that the latter has a right
that Gibbons told her that he would check to see if he had           to believe that the former’s conduct is so intended;
letters terminating the agreements. Gibbons thus apparently
had adequate means, through the agreements themselves, the           4) unawareness of the true facts by the party asserting
presence or absence of letters terminating the agreements, and       the estoppel; and
communication with union officials to acquire knowledge by
reasonable diligence as to whether the agreements were still         5) detrimental and justifiable reliance by the party
in effect. Many courts deciding contribution recovery cases          asserting estoppel on the representation.
have held that an employer’s failure to read accessible            Armistead, 944 F.2d at 1298 (citing Apponi, 809 F.2d at
collective bargaining agreements defeats a claim of ignorance.     1217). All of these elements must be present before the court
See, e.g., Audit Servs., Inc. v. Rolfson, 641 F.2d 757, 762 (9th   may order estoppel. We believe that no reasonable jury could
Cir. 1981) (“We have determined that the collective                return a verdict finding that each of the factors was satisfied
bargaining agreement unambiguously called for the payment          here, and we therefore hold that the defendants’ equitable
of the contributions . . . . [e]ven if we could somehow find       estoppel argument fails as a matter of law.
that the trustees intended to mislead the defendants, and
nothing in the record indicates such an intent, we cannot agree      In deciding for the defendants on the third equitable
that the defendants were ‘ignorant’ of their responsibility        estoppel factor, either an intention on the part of the party to
under the agreement.”); Chicago Dist. Council of Carpenters        be estopped that its representation be acted upon or conduct
Pension Fund v. Monarch Roofing Co., Inc., 601 F. Supp.            such that the party asserting estoppel “has a right to believe”
1112, 1117 (N.D. Ill. 1984) (holding no estoppel where             the party to be estopped so intends, see Armistead, 944 F.2d
defendant “had ready access to [copies of the agreements,]         at 1298, the district court found “that plaintiffs’ auditor’s
and thus had easy access to facts contrary to those on which
it might have relied”). The failure of the defendants in this
case to do so since 1991 could, without exaggeration, be
called contributory negligence. Certainly, the resulting               2
                                                                         ERISA authorizes the federal courts to fashion a body of federal
ignorance creates no basis for equitable estoppel. See El Paso     common law to enforce agreements governed by the statute. See
Nat’l Bank v. Southwest Numismatic Inv. Group, Ltd., 548           Armistead, 944 F.2d at 1298 (citing Lingle v. Norge Div. of Magic Chef,
                                                                   Inc., 486 U.S. 399, 403 (1988)).
8       Trustees of the MI Laborers’ Health           No. 98-1975   No. 98-1975          Trustees of the MI Laborers’ Health               9
        Care Fund, et al. v. Gibbons, et al.                                              Care Fund, et al. v. Gibbons, et al.

conduct gave defendants a right to believe plaintiffs would         a matter of law, the defendants had no right to believe they
not be pursuing further pension contributions.” (The court          would be excused from further contributions to the funds.4
did not make a finding that the plaintiffs intended defendants
should act upon Aldrich’s conduct.) Specifically, the court’s         We find even more substantial deficiencies in the district
order characterized Dawn Aldrich’s telling William Gibbons          court’s analysis of the fourth and fifth equitable estoppel
that she would check her files regarding the collective             factors. The court found “little doubt” that the defendants
bargaining agreements and then neglecting to take further           satisfied the fourth factor, unawareness of the true facts by the
action as conduct leading the defendants to believe that the        party asserting the estoppel, since William Gibbons testified
Trustees would not enforce the agreements. The definitional         “that he believed the earlier lawsuit terminated the collective
language regarding the “rights” of the party claiming estoppel,     bargaining agreements.” In Community Health Servs., the
developed and adopted by many courts over the years, appears        Supreme Court discussed this factor and how to satisfy it:
to be an attempt to capture not only affirmative
misrepresentations or other misconduct, but also the “gross           The truth concerning these material facts must be
negligence” the Supreme Court identified in Brant as grounds          unknown to the other party claiming the benefit of the
for estoppel. Brant, 93 U.S. at 335; see also 28 Am. Jur. 2d          estoppel, not only at the time of the conduct which
Estoppel and Waiver § 61 (1999) (tracing development of               amounts to a representation or concealment, but also at
common law equitable estoppel definition). Here, the                  the time when that conduct is acted upon by him. If, at
defendants apparently claim that Aldrich’s delay after sending        the time when he acted, such party had knowledge of the
mixed messages as to her knowledge of the agreements’                 truth, or had the means by which with reasonable
validity constituted such gross negligence. Yet, to bring an
estoppel defense based on negligence, “it is not enough to
show that [a party] was careless. He must have been careless            with.
in respect of some duty owing to the [defendant] or the                 Q. Could those letters exist without your knowledge?
public.” People’s Trust Co. v. Smith, 109 N.E. 561, 562                 A. Yes, they could.
(N.Y. 1915) (Cardozo, J.). The collective bargaining                    Q. Are they likely to exist without your knowledge?
agreements signed by the defendants created a duty to make              A. It’s possible. I asked him.
monthly payments into the Funds and established that the                Q. You asked?
                                                                        A. Mr. Gibbons.
plaintiffs would oversee those payments; they did not,                  Q. And what –
however, create a legal duty in the plaintiffs, as trustees for         A. If he had letters.
the Funds, to the defendants to remind them of the need to              Q. And he said no?
make payments. Nor did Aldrich’s conduct, in the face of                A. He said he wasn’t sure. He would have to check.
Gibbons’s assertions that he would check his records                    4
regarding the agreements, create 3such a duty, or appear to us            The Trustees’ delay in bringing this action does not support a
to be otherwise grossly negligent. We therefore hold that, as       finding of gross negligence. While a consideration of the appropriateness
                                                                    of equitable estoppel in any case must be based upon the specific factual
                                                                    circumstances of that case, other courts deciding contribution recovery
                                                                    claims have found much longer delays no prohibition to enforcement.
    3                                                               See, e.g., Operating Eng’rs Pension Trust v. Cecil Backhoe Serv., Inc.,
     Aldrich testified:                                             795 F.2d 1501, 1507 (9th Cir. 1986) (seven years); Teamsters Local 251,
    A. To my knowledge we never received letters terminating the    Health Servs. and Ins. Fund v. Teamsters Local 251, 689 F. Supp. 48, 52
    agreements with the locals that he has signed signature pages   (D.R.I. 1988) (20 years).
