In Re: Maya Construction Company, Id 86-0352941, Debtor. Alan L. Levin v. Maya Construction

This is a chapter 11 bankruptcy case. The debtor did not timely list a creditor known to him, and the reorganization plan was confirmed before the creditor attacked it. The question is whether the creditor is bound by the confirmation of the plan.

FACTS

Mr. Levin and Maya Construction agreed that Maya would place fill dirt excavated elsewhere on Levin’s land. The soil, excavated at a local bridge project Maya was working on, turned out to be contaminated with diesel fuel. Mr. Levin’s lawyer wrote to Maya in November of 1990 demanding that, pursuant to its contract, Maya defend, indemnify and hold harmless Mr. Levin from all consequences of the contaminated soil, and proceed with an environmental assessment by a qualified person on Mr. Levin’s behalf.

Subsequent to the contamination, there were conversations between Mr. Levin and Mr. Ruiz, the president of Maya. There is some ambiguity about exactly what they said to each other concerning the possibility of Mr. Levin suing Maya. Mr. Ruiz said in his affidavit that Mr. Levin told him either that Mr. Levin recognized that he had no claim, or that he preferred to sue a third party and have Maya as an ally instead of an…