General Television Arts, Inc. v. Southern Ry. Co., No. 83-7054

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore JOHNSON and ANDERSON, Circuit Judges, and TUTTLE; JOHNSON
Citation725 F.2d 1327
PartiesGENERAL TELEVISION ARTS, INC., Defendant-Appellant, v. SOUTHERN RAILWAY COMPANY, Plaintiff-Appellee.
Decision Date02 March 1984
Docket NumberNo. 83-7054

Page 1327

725 F.2d 1327
GENERAL TELEVISION ARTS, INC., Defendant-Appellant,
v.
SOUTHERN RAILWAY COMPANY, Plaintiff-Appellee.
No. 83-7054.
United States Court of Appeals,
Eleventh Circuit.
March 2, 1984.

Page 1329

Eugene D. Martenson, Birmingham, Ala., for defendant-appellant.

Larry B. Childs, Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before JOHNSON and ANDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

JOHNSON, Circuit Judge:

This is an appeal from a summary judgment issued by the United States District Court for the Northern District of Alabama. Because we find ourselves without jurisdiction, we dismiss the appeal.

The appellant, General Television Arts, Inc. ("GTA"), intended to produce a Wrangler Jeans advertisement for which it required an old-fashioned steam locomotive. GTA negotiated an agreement with Southern Railway Company ("Southern") whereby GTA would rent a locomotive and crew for two days of filming at a cost of $6,000. The rental agreement was contained in a two-page letter from an assistant to the president of Southern, James Bistline, to Harold Ceasar of GTA. Among its provisions was the following:

It is understood and agreed that Southern shall not be held liable for or on account of any injury or death of employees of either company, or for or on account of any injury to the person or property of any other individual or individuals, company or companies, corporation or corporations whatsoever, which may be incurred or sustained by reason of or growing out of the subject matter of this letter agreement or otherwise, it being understood and agreed that all risk of loss, damage, injury and death shall be and is hereby assumed by [GTA] and said [GTA] shall and will protect, indemnify, defend and hold harmless Southern Railway from and against all claims for such loss, damage, injury or death....

(emphasis supplied).

The first day of shooting was completed and the Southern crew returned the locomotive to the railyard. Upon entering the yard, the crew ran the locomotive into another engine, which was standing in the yard. Extensive damage to both engines and injury to two Southern employees resulted. It is assumed that the accident occurred while the locomotives were under the sole control of Southern and was entirely due to Southern's negligence.

Southern filed this suit in the Northern District of Alabama seeking indemnity from GTA. Jurisdiction was based on diversity. 28 U.S.C.A. Sec. 1332. Southern sought a declaration requiring GTA to indemnify it for damages suffered in the action as well as monetary damages to cover payments that Southern had made to settle third party claims. GTA filed a motion for summary judgment along with an affidavit of Harold Ceasar, which outlined the facts surrounding the accident and the execution of the contract as well as his understanding of the intent and scope of the contract.

On November 9, 1982, the district court entered a partial summary judgment in favor of Southern on the question of liability under the indemnity clause of the agreement and struck the affidavit of Mr. Ceasar. Next day, the court entered an order to that effect, which further ordered "that this cause proceed to trial on the issue of

Page 1330

damages." On November 22, 1982, GTA moved the court to make the partial summary judgment a "Final Summary Judgment pursuant to Rule 54(b) F.R.C.P." 1 so that GTA could perfect an immediate appeal to this Court. On December 23, 1982, the district court entered an order denying GTA's request for entry of a Rule 54(b) final judgment, concluding that under the terms of that rule it could not designate a partial summary judgment on the issue of liability "final". Instead, the court certified its November 10 order for an interlocutory appeal pursuant to 28 U.S.C.A. Sec. 1292(b). 2

On January 19, 1983, GTA filed a "Notice of Appeal" in the district court, which purported to appeal "from the Final Judgment and Order entered on...

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26 practice notes
  • Baldwin County Welcome Center v. Brown, No. 83-181
    • United States
    • United States Supreme Court
    • April 16, 1984
    ...to waiver and tolling. There was neither waiver nor tolling in this case. 1 E.g., General Television Arts, Inc. v. Southern R. Co., 725 F.2d 1327, 1330 (CA11 1984); Nuclear Engineering Co. v. Scott, 660 F.2d 241, 245-248 (CA7 1981), cert. denied sub nom. Nuclear Engineering Co. v. Fahner, 4......
  • Robinson v. Tanner, No. 85-7456
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 9, 1986
    ...judgment. Id. This rule has been used in at least three other decisions of this court. General Television Arts, Inc. v. Southern Railway, 725 F.2d 1327, 1331 (11th Cir.1984) (citing Taylor; no new notice filed after final judgment); Aeromar, C. Por A. v. Department of Transportation, 767 F.......
  • Hydro-Dyne, Inc. v. Ecodyne Corp., HYDRO-DYN
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 13, 1987
    ...See, e.g., Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 744 (1976); General Television Arts, Inc. v. Southern Railway Co., 725 F.2d 1327, 1331 (11th Cir.1984); R.J. Wolf v. Banco Nacional de Mexico, S.A., 721 F.2d 660, 662 (9th Cir.1983). See generally, 10A, C. Wright, A. Miller an......
  • Nationwide Mut. Ins. Co. v. Hall
    • United States
    • Supreme Court of Alabama
    • April 1, 1994
    ...276 (1972); Republic Steel Corp. v. Payne, 272 Ala. 483, 132 So.2d 581 (1961); see also General Television Arts, Inc. v. Southern Ry., 725 F.2d 1327, 1331 n. 6 (11th Cir.1984) (noting that under Alabama law absence of language in indemnity agreement specifically referring to indemnitee's ow......
  • Request a trial to view additional results
26 cases
  • Baldwin County Welcome Center v. Brown, No. 83-181
    • United States
    • United States Supreme Court
    • April 16, 1984
    ...to waiver and tolling. There was neither waiver nor tolling in this case. 1 E.g., General Television Arts, Inc. v. Southern R. Co., 725 F.2d 1327, 1330 (CA11 1984); Nuclear Engineering Co. v. Scott, 660 F.2d 241, 245-248 (CA7 1981), cert. denied sub nom. Nuclear Engineering Co. v. Fahner, 4......
  • Robinson v. Tanner, No. 85-7456
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 9, 1986
    ...judgment. Id. This rule has been used in at least three other decisions of this court. General Television Arts, Inc. v. Southern Railway, 725 F.2d 1327, 1331 (11th Cir.1984) (citing Taylor; no new notice filed after final judgment); Aeromar, C. Por A. v. Department of Transportation, 767 F.......
  • Hydro-Dyne, Inc. v. Ecodyne Corp., HYDRO-DYN
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 13, 1987
    ...See, e.g., Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 744 (1976); General Television Arts, Inc. v. Southern Railway Co., 725 F.2d 1327, 1331 (11th Cir.1984); R.J. Wolf v. Banco Nacional de Mexico, S.A., 721 F.2d 660, 662 (9th Cir.1983). See generally, 10A, C. Wright, A. Miller an......
  • Nationwide Mut. Ins. Co. v. Hall
    • United States
    • Supreme Court of Alabama
    • April 1, 1994
    ...276 (1972); Republic Steel Corp. v. Payne, 272 Ala. 483, 132 So.2d 581 (1961); see also General Television Arts, Inc. v. Southern Ry., 725 F.2d 1327, 1331 n. 6 (11th Cir.1984) (noting that under Alabama law absence of language in indemnity agreement specifically referring to indemnitee's ow......
  • Request a trial to view additional results

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