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TRUSTEES OF UMW 1974 PENSION PLAN v. MORRISON KNUD

June 11, 1996

TRUSTEES OF THE UNITED MINE WORKERS OF AMERICA 1974 PENSION PLAN, Plaintiffs,
v.
MORRISON KNUDSEN CORP., Defendant.



The opinion of the court was delivered by: FRIEDMAN

 The Trustees of the United Mine Workers of America ("UMWA") 1974 Pension Plan have brought this action against Morrison Knudsen Corporation under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001-1368, as amended by the Multiemployer Pension Plan Amendments Act of 1980 ("MPPAA"), 29 U.S.C. §§ 1381-1461. Plaintiffs allege that Morrison Knudsen withdrew from the UMWA multiemployer pension plan in August 1991 and failed to make interim withdrawal liability payments as required under 29 U.S.C. §§ 1399(c)(2) and 1401(d). Defendant has counterclaimed for declaratory relief. Before the Court is Plaintiffs' Motion for Summary Judgment.

 I. FACTUAL BACKGROUND

 Kanawha Mining Company, Inc., was a Nevada corporation engaged in surface mining in West Virginia. Its employees were members of the United Mine Workers of America and Kanawha was a signatory to the National Bituminous Coal Wage Agreements of 1984 and 1988 under which it was obligated to contribute to the UMWA 1974 Pension Plan (the "Plan"). Def.'s Opp'n at 3-4; Pls.' Statement of Material Fact ("Pls.' Stmt") PP 2-3. Morrison Knudsen is a Delaware corporation that, until December 31, 1991, owned 100 percent of Kanawha. Def.'s Controversion of the Plaintiffs' Statement of Material Facts ("Def.'s Controversion") P 6; Pls.' Stmt. PP 4-5. Aside from its relationship with Kanawha, Morrison Knudsen was not itself a participating employer in the Plan. Pls.' Stmt P 4.

 In August 1991, contributions for Kanawha's covered operations ceased being made to the Plan. Affidavit of Dianne M. Duffin ("Duffin Aff.") P 5 (Mar. 13, 1996); Pls.' Stmt P 7; Def.'s Controversion P 7. The Plan mailed letters and questionnaires to Kanawha at its last known address. Duffin Aff. P 5. On October 15, 1992, the Plan received a letter from Morrison Knudsen stating that Kanawha's correct new address was "c/o Mullins, 405 Capitol Street, Suite 607, Charleston, WV 25301." Pls.' Ex. A. The Plan remailed the letters and questionnaires to the new address but did not receive the information requested. The Plan subsequently determined pursuant to its duties under 29 U.S.C. § 1381 that Kanawha had ceased covered operations and had withdrawn from the Plan as of August 1991. Duffin Aff. P 6; Pls.' Stmt P 8. *fn1"

 On January 29, 1993, the Plan notified Kanawha by letter of its withdrawal liability. The Plan subsequently learned that Morrison Knudsen had sold its Kanawha stock. Duffin Aff. P 8. On May 31, 1994, the Plan forwarded a copy of the January 29, 1993 letter to Morrison Knudsen. On August 25, 1994, Morrison Knudsen requested that the Plan review its determination of withdrawal liability; the Plan did not formally respond. Duffin Aff. P 9. On December 27, 1994, Morrison Knudsen filed a demand for arbitration. See 29 U.S.C. § 1401.

 On December 22, 1992, Mullins Coal Company filed for bankruptcy and plaintiffs filed a claim against it for Kanawha's withdrawal liability payments. Def.'s Ex. A. As part of the reorganization plan, administrative priority was given to a sum of $ 3,315,000 owed to the UMWA Pension Plan to be classified as a Class 4 claim. Another sum ( $ 2,012,117.88) was classified as a general unsecured debt to be paid as a Class 9 claim. In re Hawks Nest Mining Company, Case No. 92-21140 (Bankr. S.D.W.Va. Nov. 8, 1994), Plan of Reorganization § 3.04, Pls.' Ex.3; Def.'s Ex. B. This Class 9 general unsecured debt included the Kanawha withdrawal liability payments. Def.'s Ex. B; Pls.' Reply Mem. at 11. To date, payments of $ 160,000 have been made to plaintiffs under the reorganization plan, Pls.' Reply at 11 n.8; Fulton Aff. P 6, although the parties dispute the proper allocation of these funds.

 II. DISCUSSION

 A. Common Control Under ERISA

 Employers that withdraw from pension funds are liable for their proportional share of unfunded vested benefits. 29 U.S.C. § 1391; see Connors v. Incoal, Inc., 301 U.S. App. D.C. 345, 995 F.2d 245, 248 (D.C. Cir. 1993). 29 U.S.C. § 1301(b)(1) states that "all employees of trades or businesses ... which are under common control shall be treated as employed by a single employer and all such trades and businesses as a single employer." Common control is defined by reference to Treasury Regulation 1.414(c), see 29 C.F.R. § 2612, that defines trade or business under common control to include "any group of trades or businesses which is ... a 'parent-subsidiary group of trades or businesses under common control' as defined in paragraph (b) of this section." 26 C.F.R. § 1.414(c)-2. Paragraph (b) of the Treasury Regulation defines a parent-subsidiary as "one or more chains of organizations conducting trades or businesses connected through ownership of a controlling interest with a common parent organization if ... the common parent organization owns ... a controlling interest in at least one of the other organizations." 29 C.F.R. § 1.414(c)-2(b).

 Under this standard, Morrison Knudsen and Kanawha were under common control prior to December 31, 1991. Since any enterprise that is a trade or business and under common control with the withdrawing employer is jointly and severally liable for the principal employer's withdrawal liability, Connors v. Incoal, Inc., 995 F.2d at 249, Morrison Knudsen is jointly and severally liable for Kanawha's withdrawal liability.

 B. Date of Withdrawal

 Defendant asserts that even if it was under common control with Kanawha until December 31, 1991, plaintiffs have not proven that withdrawal actually occurred in August 1991 and that discovery is needed to determine the precise date of withdrawal and whether it took place after December 31, 1991. More specifically, defendant argues that if Mullins Coal in fact made contributions to the plan after Kanawha stopped contributing, then withdrawal did not take place until after Morrison Knudsen was out of the control group. Defendant points to no evidence, however, that this actually occurred. Defendant cites the affidavit of Mr. Fulton in support of this claim, Def.'s Statement of Material ...


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