CSX Transp., Inc. v. Total Grain Mktg., LLC, CASE NO. 11-CV-171-WDS

• Court: United States District Courts. 7th Circuit. Southern District of Illinois
• Parties: CSX TRANSPORTATION, INC., Plaintiff, v. TOTAL GRAIN MARKETING, LLC, Defendant.
• Docket Number: CASE NO. 11-CV-171-WDS
• Decision Date: 29 March 2013

CSX TRANSPORTATION, INC., Plaintiff,
v.
TOTAL GRAIN MARKETING, LLC, Defendant.

CASE NO. 11-CV-171-WDS

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

DATE: March 29, 2013

MEMORANDUM & ORDER

STIEHL, District Judge:

Before the Court is plaintiff's motion for partial summary judgment (Doc. 64), to which defendant has filed a response (Doc. 82), and plaintiff a reply (Doc. 84). Also before the Court is plaintiff's motion for partial summary judgment based on federal preemption (Doc. 90), to which defendant has filed a response (Doc. 100), and plaintiff a reply (Doc. 101). Defendant has also filed a motion for summary judgment (Doc. 92), to which plaintiff has filed a response (Doc. 103), and defendant a reply (Doc. 105).

This series of motions is less than a model of clarity. These motions in essence, ask the Court to decide who, based on contractual agreements between the parties, bears responsibility for and, therefore, the costs of a 2009 train derailment. The contractual agreements involved in the parties' ultimate agreement are many. In 2006 TGM was the recipient of an "Assignment" of rights from a non-party, Huisinga Grain, Inc. ("Huisinga"), of Huisinga's rights under agreements (from 1972 and 1983) with CSX (or its predecessor in interest). TGM then executed a 2006 "Assumption" of those rights, subject to certain amendments listed in the 2006 Assumption. In 2007 CSX signed a "Consent" agreeing to the terms of the Assignment and Assumption. All of these agreements, including the 1972 and 1983 Agreements, republished according to the terms of

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the 2006 Assumption, created one clumsy final agreement between TGM and CSX.

BACKGROUND

Plaintiff, CSX Transportation, Inc. ("CSX"), brought this action to recover approximately $77,000 in property damage that was allegedly caused by a train derailment. Defendant, Total Grain Marketing, LLC ("TGM"), has filed a five-count counterclaim seeking to recover approximately $40,000 in property damage allegedly caused by the same derailment.

I. The Derailment

On July 3, 2009, a CSX crew, consisting of an engineer and a conductor, was retrieving a train of sixty-six (66) rail cars that TGM had placed on the industry track the previous evening after loading them with grain from their grain elevator located adjacent to the track in Casey, Illinois. When the CSX crew attempted to pull the train toward the main line, 6 railcars derailed as they passed over a switch that was allegedly not properly aligned, and, had been "run through," thereby damaging the switch so that railcars passing over the switch would move in an unintended direction. According to TGM, a "run through" in these circumstances means that the switch was lined for cars west of the switch to go southeast onto the industry track from the sidetrack; however, cars on the east side of the switch on the sidetrack were instead pushed backwards through the switch in a westerly direction (also called a "trailing point move") causing damage to the switch. When the CSX engineer pulled the railcars eastward, the cars derailed due to the damage caused to the switch by the prior run-through.

The switch was located in a turnout where the western side of the industry track (also referred to by the parties as the "loading track," and "Track No. 80") split south from the sidetrack (also referred to by the parties as the "leased track" and "Track No. 9"). In its motion for summary judgment, TGM provided the following diagram of the tracks and switch where the

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derailment occurred. There is no indication of the scale of the drawing or particular measurements, but a visual depiction of the tracks and switch at issue is a helpful aide in understanding the issues of this case. CSX has not objected to this depiction of the site. The Court will refer to the particular tracks as indicated below as the "industry track," the "sidetrack," and the "main line."

On July 2, 2009 (the day before the derailment), TGM personnel had operated that switch while loading the railcars with grain. During the loading process, the railcars would have passed over or through that switch approximately eight times. The railcars were left parked on top of the switch overnight. From the close of business on July 2, 2009, until sometime after the derailment on July 3, 2009, TGM personnel did not control or exercise control over the switch at which the derailment occurred.

On July 3, 2009, prior to moving the train, the CSX conductor manipulated a different switch, which allowed the train to move onto the main line. The conductor did not inspect the switch located under the train, although TGM alleges he was required to do so pursuant to CSX's Operating Rules. The locomotive pulling the train was several hundred feet to the east of the switch, and the rear of the train was several hundred feet to the west of the switch. The CSX crew backed the train over the switch at issue 112 feet, in an alleged trailing point move, before moving

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forward, at which time, the railcars derailed. The CSX engineer who operated the train during the derailment failed to shut off the engines upon first feeling resistance in the pull of the train, although TGM alleges he was required to do so pursuant to CSX's Operating Rules. The CSX engineer allowed the train to come to a stop on its own as a result of the further derailment of the cars. The CSX engineer then accelerated the engines, even though he had received confirmation from the conductor that the air brakes were not the issue, moving the train farther forward until the engines were allegedly hopping up and down and could go no further.

The train was equipped with an on-board event data recorder.¹ CSX initially asserted that the data was not downloaded from the event recorder in this instance, and no longer retrievable. CSX has subsequently asserted, however, that it has located the data from the event recorder and produced it to TGM during discovery. (Doc. 91).

Data recorded by the electronic monitoring device aboard the train, and disclosed by CSX, confirmed that the CSX engineer allowed the train to travel over 100 feet after feeling resistance, and before applying the brakes or shutting down the engines, and accelerated the train after it came to a stop. CSX disputes the allegation that the engineer's acceleration of the train caused the engines to hop up and down. The data recorder also confirmed that the CSX crew backed the train over the switch 112 feet before proceeding forward and derailing the 6 railcars.

TGM claims that video footage from a video recorder on the locomotive may have been recorded on the date of the derailment, but that CSX did not preserve the footage, and TGM raises a spoliation claim on this basis. TGM asserts that the video footage would show that the engineer's actions in fact caused the engines to hop up and down, and that the engineer caused the train to further move forward a short distance after the train had come to a stop on its own, despite

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previously confirming with the conductor that the air brakes were not the cause of the stoppage. TGM claims that CSX failed to preserve the video recording, although it was required to retain the video recordings until at least December of 2012, in accordance with its general retention policies with respect to investigative material and information from the derailment. TGM claims that it has been unable to fully develop this claim however, and obtain information regarding CSX's retention policy with respect to these video recordings specifically, because CSX has failed to designate a witness or provide information in accordance with TGM's supplemental Rule 30(b)(6) Deposition Notice and the Court's corresponding order, with respect to video recording devices about the locomotive and preservation of video taken by the devices.

CSX employees who investigated the derailment and coordinated the re-railing of the derailed cars concluded that the cause of the derailment was that the switch had been "run through" by TGM. TGM asserts, however, that CSX has not produced and cannot produce sufficient evidence creating a genuine issue of material fact that anyone from TGM ran through the switch on July 2, 2009. TGM asserts that vandals could have moved the switches to the wrong position, a proposition that has not been ruled out. Additionally, TGM asserts that because the CSX crew backed the train up 112 feet prior to forward movement, pushing cars through the switch at issue, it could have been CSX that ran through the switch at issue and caused the damage which caused the derailment.

II. Agreements

TGM began operations at the Casey, Illinois location pursuant to a September 2006 Assignment and Assumption between TGM and Huisinga. Huisinga was the previous grain elevator operator. CSX agreed to and consented to the assignment and assumption, by executing a "Consent" in 2007, and, in fact, prepared and drafted both the 2006 Assignment and Assumption

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executed by TGM and Huisinga.

Pursuant to the 2006 Assignment, Huisinga Grain assigned its rights and interests to TGM in the three agreements identified in Schedule A of the Assignment. Pursuant to the 2006 Assumption Agreement, ("2006 Assumption"), TGM agreed to assume the...