963 F.2d 599 (3rd Cir. 1992), 91-5668, Clement v. Consolidated Rail Corp.

Docket Nº:91-5668.
Citation:963 F.2d 599
Party Name:Susan E. CLEMENT, Administratrix Ad Prosequendum of the Estate of Thomas Allen Clement, Deceased, Individually, and as Legal Guardian for and on Behalf of Matthew Gordon Clement and Elizabeth Anne Clement, Minor Children v. CONSOLIDATED RAIL CORPORATION, Pennsylvania Truck Lines, Inc., American Presidents, Inc., Theurer, Inc.; and John Does 1 throu
Case Date:May 12, 1992
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 599

963 F.2d 599 (3rd Cir. 1992)

Susan E. CLEMENT, Administratrix Ad Prosequendum of the

Estate of Thomas Allen Clement, Deceased, Individually, and

as Legal Guardian for and on Behalf of Matthew Gordon

Clement and Elizabeth Anne Clement, Minor Children

v.

CONSOLIDATED RAIL CORPORATION, Pennsylvania Truck Lines,

Inc., American Presidents, Inc., Theurer, Inc.;

and John Does 1 through 10,

Consolidated Rail Corporation, Appellant.

No. 91-5668.

United States Court of Appeals, Third Circuit

May 12, 1992

Argued Feb. 27, 1992.

Page 600

Samuel D. Lord (argued), Connell, Foley & Geiser, Roseland, N.J., for appellant.

Peter R. Freed (argued), Smith, Stratton, Wise, Heher & Brennan, Trenton, N.J., for appellee.

Before: SLOVITER, Chief Judge, and SCIRICA and NYGAARD, Circuit Judges.

OPINION

NYGAARD, Circuit Judge.

One night Thomas Allen Clement was killed when he drove his pickup truck into a disabled flatbed trailer that had been dragged onto and left in the roadway. He was working at the time of the collision for Pennsylvania Truck Lines, Inc. ("PTL"), a wholly owned subsidiary of Consolidated Rail Corporation ("Conrail"). Clement's widow sued PTL, Conrail and others 1 on behalf of their children and herself. Conrail crossclaimed against PTL on an indemnification agreement between them. The district court granted PTL's motion for summary judgment on plaintiff's claim because her exclusive remedy was under the New Jersey's Workers' Compensation Act, N.J.Stat.Ann. §§ 34:15-1 to 15-128 (West 1991). This judgment was not appealed. She then settled her claim against Conrail. The district court next granted PTL's motion for summary judgment on the crossclaim, 745 F.Supp. 266, holding that Conrail was not entitled to any indemnification. Conrail appeals this judgment. We conclude that the agreement affords Conrail some indemnity if the events causing Clement's death arose from PTL's acts while PTL was performing duties under the agreement. Because the district court erred in construing the agreement and disputed issues of material fact remain, we will reverse the judgment and remand the cause for trial.

I.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary review of the order granting summary judgment. Philadelphia and Reading Corp. v. United States, 944 F.2d 1063, 1070 (3d Cir.1991). We apply the same test as the district court should have applied in the first instance, that is, we ask whether there remains a genuine issue of material fact, and if not, whether movant is entitled to judgment as a matter of law. Int'l Union, United Mineworkers v. Racho Trucking Co., 897 F.2d 1248, 1252 (3d Cir.1990). We must view all facts and all inferences in the light most favorable to the nonmoving party. Erie Telecommunications, Inc. v. Erie, 853 F.2d 1084, 1093 (3d Cir.1988).

Also, in determining whether the Terminal Services Agreement between Conrail and PTL is ambiguous, we exercise plenary review determining "as a matter of law which category written contract terms fall into--clear or ambiguous." Mellon...

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