Madden v. Antonov, 4:12–CV–3090.

Decision Date19 August 2013
Docket NumberNo. 4:12–CV–3090.,4:12–CV–3090.
Citation966 F.Supp.2d 851
PartiesRonald D. MADDEN, Plaintiff, v. Anton ANTONOV & AV Transportation, Inc., and BNSF Railway Company, Defendants.
CourtU.S. District Court — District of Nebraska


Donald F. D'Antuono, Schnell, D'Antuono Law Firm, Denver, CO, Jeffrey E. Chod, Patrick S. O'Brien, O'Brien, Chod Law Firm, St. Louis, MO, for Plaintiff.

David C. Mullin, Fraser, Stryker Law Firm, Omaha, NE, Nichole S. Bogen, Sattler, Bogen Law Firm, Thomas C. Sattler, Lincoln, NE, for Defendants.


JOHN M. GERRARD, District Judge.

This case arises from a collision between a train belonging to BNSF Railway Company and conducted by plaintiff Ronald D. Madden, and a truck driven by defendant Anton Antonov for AV Transportation (collectively, Antonov). This matter is before the Court on Antonov's motion to dismiss or strike (filing 61) portions of BNSF's cross-claim (filing 33). For the reasons discussed below, the Court will deny Antonov's motion.


The following facts are drawn from Madden's operative complaint (filing 18) for background purposes only. On February 15, 2012, Madden was conducting a BNSF locomotive, heading toward a railroad crossing in Custer County, Nebraska. Filing 18 at ¶ 5. At that time, a large grain silo facility was being built adjacent to the railroad crossing. Filing 18 at ¶ 17–18. The facility was being built by BNSF togetherwith The Andersons, Inc. 1

As the train being conducted by Madden was heading toward the crossing, Antonov's truck was crossing the tracks. Filing 18 at ¶ 5. Antonov was hauling a piece of large equipment, and although his truck made it across the tracks in time, his trailer did not, and it was struck by the train. Madden suffered serious injuries as a result of the collision. Filing 18 at ¶ 5.

Madden brings state common law negligence claims against Antonov, and a claim against BNSF under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq. Madden alleges that Antonov was negligent in, among other ways, failing to maintain a proper lookout and failing to stop at the crossing. Filing 18 at ¶¶ 9–12. Madden's FELA claim alleges, among other things, that BNSF failed to provide him with a reasonably safe place to work. Filing 18 at ¶ 33. Madden also alleges that the layout of the crossing at issue made it particularly dangerous, especially given the increased traffic due to construction near the intersection. Filing 18 at ¶ 6. So, Madden claims, BSNF should have taken steps to prevent this accident, such as implementing a “slow order” for trains, placing better warning devices or signs at the crossing, and coordinating with The Andersons or other authorities to maintain a lookout or safety signal and to generally improve safety at the crossing. Filing 18 at ¶ 33.

BNSF brings cross-claims against Antonov for negligence, equitable indemnification, equitable subrogation, and contribution. Filing 33 at ¶¶ 35–43. BNSF claims that it has incurred, and will continue to incur, damages in the form of Madden's medical bills and in attorney fees and costs spent investigating and defending Madden's claims. Filing 33 at 32–34, 40. In addition to requesting an award of fees incurred in defending Madden's claims, BNSF also seeks an award of fees spent prosecuting its cross-claim against Antonov. In response, Antonov has moved to dismiss or strike BNSF's claims for equitable indemnification and subrogation (but not its claim for contribution), as well as both parts of BNSF's request for attorney fees.

I. Motion to DismissRule 12(b)(6)

A complaint must set forth a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). The plaintiff (or here, cross-claimant) must plead factual content that allows the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Hamilton v. Palm, 621 F.3d 816, 817 (8th Cir.2010). The complaint need not contain detailed factual allegations, but must provide more than labels and conclusions; and a formulaic recitation of the elements of a cause of action will not suffice. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

The Court must assume the truth of the plaintiff's factual allegations, and a well-pleaded complaint may proceed, even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely. Id. at 555–57, 127 S.Ct. 1955. In contrast to factual allegations, courts are not required to accept as true a plaintiff's legal conclusions. Brown v. Medtronic, Inc., 628 F.3d 451, 459 (8th Cir.2010).

To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must contain sufficient factual matter, that if accepted as true, states a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The facts alleged must raise a reasonable expectation that discovery will reveal evidence to substantiate the necessary elements of the plaintiff's claim. Twombly, 550 U.S. at 556, 127 S.Ct. 1955.

II. Motion to StrikeRule 12(f)

Antonov has also filed a motion to strike the same portions of BNSF's cross-claim. The Court notes at the outset that this adds nothing to Antonov's motion to dismiss under Rule 12(b)(6), and finds that the motion to strike should be denied. Rule 12(f) provides that the Court may “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” While the Court has considerable discretion to strike pleadings under Rule 12(f), striking a party's pleading is an extreme and disfavored measure. BJC Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir.2007).

The matters Antonov seeks to strike—claims for indemnity or subrogation and a request of attorney fees—are not defenses, and they are not redundant, impertinent, or scandalous. Nor are these matters immaterial. “Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being [pleaded].” Whittlestone, Inc. v. Handi–Craft Co., 618 F.3d 970, 974 (9th Cir.2010). Instead, Antonov's motion is simply an attempt to have portions of BNSF's complaint dismissed as lacking a basis in law—but the proper vehicle for such a challenge is a motion to dismiss or for summary judgment. Id. at 974–75. As such, Antonov's motion to strike will be denied.

I. BNSF's Claim for Equitable Indemnification

Antonov first argues that BNSF fails to state a claim for equitable indemnification under Nebraska law. Before turning to the specifics of Antonov's several arguments, it will help to review the two basic frameworks governing this claim: FELA and Nebraska indemnity law.

FELA makes a common carrier engaged in interstate commerce “liable in damages to any person suffering injury while he is employed by such carrier in such commerce, ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier....” 45 U.S.C. § 51. FELA does not provide for apportionment of damages among potentially liable tortfeasors—the employer will be held entirely responsible, that is, jointly and severally liable, for the entire amount of the worker's damages. Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 161–62, 123 S.Ct. 1210, 155 L.Ed.2d 261 (2003). So, an employee who suffers injury caused in whole or in part by a railroad employer's negligence may recover his full damages from the railroad, regardless of whether the injury was actually (or also) caused by the negligence of a third party. Id. at 161, 165–66, 123 S.Ct. 1210.

That said, FELA does not bar railroads from seeking indemnity from third parties. Ellison v. Shell Oil Co., 882 F.2d 349, 353 (9th Cir.1989); Ala. Great S. R.R. Co. v. Chicago & N.W. Ry. Co., 493 F.2d 979, 983 (8th Cir.1974). The purpose of FELA is to provide recovery for injured workers, and this purpose is not defeated by permitting an employer to recoup its losses, in part or in full, from third parties. Ellison, 882 F.2d at 353.

State law governs a railroad's right to recover indemnity or contribution from a third party for liability incurred under FELA.2Ala. Great S. R.R. Co., 493 F.2d at 983;see also Ayers, 538 U.S. at 162 & n. 21, 123 S.Ct. 1210. Both parties agree that Nebraska law governs, because the accident underlying this case occurred in Nebraska. See Johnson v. U.S. Fid. and Guar. Co., 269 Neb. 731, 696 N.W.2d 431, 438 (2005) (citing Restatement (Second) of Conflict of Laws § 146 (1971)).

Under Nebraska law, indemnification is available when one party is compelled to pay money which in justice another ought to pay or has agreed to pay. Kuhn v. Wells Fargo Bank of Neb., 278 Neb. 428, 771 N.W.2d 103, 112 (2009); Warner v. Reagan Buick, Inc., 240 Neb. 668, 483 N.W.2d 764, 771 (1992). Indemnity is a form of restitution which shifts the entire liability from one legally responsible party to another. Wells Dairy, Inc. v. American Indus. Refrigeration, Inc., 762 N.W.2d 463 (Iowa 2009). Three types of indemnity are generally recognized: express (or contractual), implied contractual (also known as “implied-in-fact” indemnity), and equitable (also known as “implied-in-law” indemnity). Kuhn, 771 N.W.2d at 119–20;Warner, 483 N.W.2d at 770;see also Schneider Nat'l., Inc. v. Holland Hitch Co., 843 P.2d 561, 573 (Wyo.1992). Only the equitable variety is at issue in this case.

The doctrine of equitable indemnification, as its name suggests, is not based on an implied contract, but finds its roots in principles of equity. Warner, 483 N.W.2d at 770;City of Wood River v. Geer–Melkus Constr. Co., 233 Neb. 179, 444 N.W.2d 305, 310 (1989). Under this doctrine, where one party is compelled to pay money which in justice another ought to pay, the former may recover from the latter the sums so paid,...

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