Fox v. Csx Transp. Inc
| Decision Date | 09 December 2010 |
| Docket Number | Civil No. 09-55-GFVT |
| Parties | MICHAEL R. FOX, Plaintiff, v. CSX TRANSPORTATION, INC., Defendant/Third Party Plaintiff, v. ICG HAZARD, LLC, Third Party Defendant. |
| Court | U.S. District Court — Eastern District of Kentucky |
This matter is currently before the Court on the cross-motions for summary judgment filed by Third Party Plaintiff, CSX Transportation, Inc., and Third Party Defendant, ICG Hazard, LLC. [See R. 30, 31.] The parties have filed responses [see R. 34, 35] and replies [see R. 36, 37] to the cross-motions. For the reasons set forth below, and pursuant to Federal Rule of Civil Procedure 56, the Court will grant summary judgment in favor of CSX and deny ICG's motion for summary judgment.
The basic facts of the case are straightforward and essentially undisputed. Michael R. Fox worked for CSX as a train conductor. On August 22, 2007, he and his crew traveled to ICG Hazard1 to load approximately one hundred empty coal cars with coal. During the loading process, Fox dismounted the train to uncouple coal cars from the locomotive as part of a switching maneuver. He subsequently fell as he walked along the walkway adjacent to the track. According to Fox, he became entangled in kudzu vines which had grown over the walkway and even onto the track. Fox allegedly tripped in those vines and then fell against the steps of the train, injuring his neck and shoulder.
Fox later filed suit against CSX, alleging negligence under the Federal Employees Liability Act ("FELA"), 45 U.S.C. § 51, et seq., for failing to provide him with a safe workplace. He also sued for strict liability under the Federal Railroad Safety Act ("FRSA"), 49 U.S.C. § 20101, et seq., for failing to control vegetation in the railroad bed adjacent to the track. See also 49 CFR Part 213.37.
CSX, in turn, filed a third party complaint against ICG claiming indemnity or contribution under a Mine Track Agreement with Aceco, Inc. (ICG's predecessor in interest), dated December 11, 1981. The Track Agreement states, in pertinent part:
9. The Industry [ICG] agrees... to exercise reasonable care to keep the clearance area, and the environs thereof which the Railroad's [CSX's] train-service employees may reasonably be expected to use in serving the Industry, free of obstruction that may endanger the safety of the Railroad's employees or interfere with the safe operation of engines or cars. Knowledge of or notice to the Railroad of a breach of the foregoing covenants and its continued operation of the trackage thereafter shall not constitute a waiver of either of them. The Industry agrees to indemnify and hold harmless the Railroad from and against any and all claims for loss of or damage to property or injury to person (including death) resulting from any failure of the Industry to perform or abide by either of the foregoing covenants.
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11. The Industry also agrees to indemnify and hold harmless the Railroad from and against any and all claims for loss, damage, injury or death to the person or property of the parties hereto, their officers, agents and employees, and to the person or property of any other person or corporation, while on or about said trackage, resulting from any wrongful act or omission of the Industry, its officers, agents or employees. If any claim or liability shall arise from the joint or concurring negligence of both parties hereto, their officers, agents or employees, it shall be borne by the parties equally.
Based on the Track Agreement, CSX claims that it is entitled to indemnity or contribution from ICG. ICG disputes that claim, and the third party litigants have filed cross-motions for summary judgment. [See R. 30, 31.] Those motions, fully briefed, are ready for review.
Federal Rule of Civil Procedure 56(c) provides that judgment for the moving party is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See also Browning v. Dep't of Army, 436 F.3d 692, 695 (6th Cir. 2006). While all inferences are drawn in favor of the non-moving party, that party still must present some affirmative evidence supporting its position to defeat an otherwise appropriate motion for summary judgment. See id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986) () (citations omitted); Celotex Corp. v. Catrett, 477 U.S. 317, 324-325 (1986). Stated alternatively, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
In this case, the existence and validity of the Track Agreement is not at issue. CSX seeks to enforce the Agreement, which, it contends, requires ICG to provide contribution and/or indemnification if CSX is found liable to Fox as a result of his alleged fall and resulting injuries. ICG does not dispute the existence of the Track Agreement and in fact concedes that it is the proper party to that Agreement. [See R. 25.] ICG does however contest the applicability and enforceability of the Track Agreement. For purposes of the instant motions, the parties have accepted Fox's allegations as true. In other words, CSX and ICG are operating under the assumption that there was an overgrowth of vegetation on the walkway adjacent to the track in which Fox tripped and fell and was injured.
Under FELA, CSX "has the nondelegable duty to provide an employee with a safe place to work." Parsons v. Sorg Paper Co., 942 F.2d 1048, 1050 (6th Cir. 1991) (quoting Schiller v. Penn Cent. Transp. Co., 509 F.2d 263, 269 (6th Cir. 1975)). While CSX may not evade its nondelegable duty, courts have recognized that through indemnification provisions railroads may seek contribution from third party industries. Id. (citing Burlington N., Inc. v. Hughes Bros., Inc., 671 F.2d 279 (8th Cir. 1982)). The parties correctly note that Kentucky law controls, and such contracts have generally been held valid and enforceable in Kentucky. See, e.g., Fosson v. Ashland Oil & Ref. Co., 309 S.W.2d 176, 178 (Ky. 1957).
ICG contends, however, that the Track Agreement in this case is unenforceable. Central to ICG's summary judgment motion is its argument that common law indemnity standards prevent CSX from recovering indemnification and/or contribution. Common law indemnity arises where "one of two parties does an act or creates a hazard and the other, while not concurrently joining in the act, is nevertheless, thereby exposed to liability." ARA Servs., Inc. v. Pineville Community Hosp., 2 S.W.3d 104, 106 (Ky. Ct. App. 1999) (citation omitted). According to ICG, Kentucky law precludes indemnification of a party who was actively negligent. Because CSX was aware of the overgrowth, ICG argues, CSX was actively negligent and therefore is not entitled to indemnity. In support of this argument, ICG cites several cases which distinguish between active and passive negligence. See, e.g., Brown Hotel v. Pittsburgh Fuel Co., 224 S.W.2d 165 (1949); Lexington Country Club v. Stevenson, Ky., 390 S.W.2d 137, 143 (1965).
For example, in Brown Hotel, the hotel was found liable for injuries sustained by a delivery man when he fell through an unsecured manhole cover. The court found that the fuel company's employee was negligent in failing to replace a lid over a hole in the sidewalk after a coal delivery. The court deemed the Brown Hotel passively negligent for failing to check to see if the area was secured following the delivery. Brown Hotel, 224 S.W.2d at 167. Extrapolating from this distinction, ICG argues that CSX was not passively negligent for simply failing "to perform some legal duty of inspection and remedying the hazard...." Id. Instead, ICG maintains that CSX inspected the premises many times and had equal knowledge of the condition of the track. That knowledge, according to ICG, makes CSX actively negligent and precludes its ability to obtain indemnification.
But distinctions based on active or passive negligence have been criticized by the Kentucky Supreme Court. In Crime Fighters Patrol v. Hines, Ky., 740 S.W.2d 936 (1987), that court noted that the difficulty in applying the principle enunciated in Brown Hotel "stems from a mistaken analytical approach, proceeding from labels, or pigeonholes, rather than from the underlying equitable principles and the operative facts behind those labels." Id. at 938. The Kentucky Supreme Court continued, noting that the problem with classifications such as affirmative/negative, active/passive, misfeasance/nonfeasance, omission/commission, negligent/intentional, primary/secondary is that they are "not in themselves definitive, but only conclusions which should be arrived at after analyzing the facts, and not intuitively." Id. See also Rice v. Cincinnati, New Orleans & Pacific Railway Co., 920 F. Supp. 732, 736 (E.D. Ky. 1996) ().
Perhaps more important than the problem with applying such labels is the fact that these cases deal only with claims for common law indemnity. They do not discuss or address contractual indemnity provisions. And, critically, Kentucky law distinguishes between indemnification that arises out of the common law and indemnification that is "assumed contractually." Crime Fighters Patrol, 740 S.W.2d at 938. It is black letter law that "contracts are, of course, to be construed according to their terms." Blue Diamond Coal Co. v. Robertson, 243...
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