National R.R. Passenger v. Rountree Transport, 00-13811.

• Decision Date: 01 September 2005
• Docket Number: No. 00-13986.,No. 00-13811.,00-13811.,00-13986.
• Parties: NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK), CSX Transportation, Inc., Plaintiffs-Cross-Defendants-Counter-Defendants-Cross-Appellants-Cross-Appellees, American Home Assurance Company, f.u.b.o. Stewart and Stevenson Services, Inc., Plaintiff-Appellant-Cross-Appellee, v. ROUNTREE TRANSPORT AND RIGGING, INC., Defendant-Cross-Defendant-Appellee, Kissimmee Utility Authority, Defendant-Cross-Claimant-Cross-Defendant-Counter-Claimant-Counter-Defendant-Third-Party-Plaintiff-Third-Party-Defendant-Appellee-Cross-Appellant, WOKO Transportation, Black and Veatch, et al., Defendants-Cross-Claimants-Cross-Defendants-Counter-Claimants-Counter-Defendants-Third-Party-Plaintiffs-Third-Party-Defendants-Appellees, Florida Municipal Power Agency, Defendant-Cross-Claimant-Cross-Defendant-Counter-Claimant-Counter-Defendant-Third-Party-Plaintiff-Third-Party-Defendant-Appellee-Cross-Appellant, General Electric Company, Inc., Consolidated Defendant-Third-Party Defendant-Appellee-Cross-Appellant, Stewart and Stevenson Services, Inc., Movant-Cross-Appellant. American Home Assurance Company, f.u.b.o. Stewart and Stevenson Services, Inc., Plaintiff-Counter-Defendant-Appellant-Cross-Appellee, v. National Railroad Passenger Corporation (Amtrak), CSX Transportation, Inc., et al., Defendants-Appellees-Cross-Appellants, Rountree Transport and Rigging, Inc., Defendant-Cross-Defendant-Appellee, Kissimmee Utility Authority, Defendant-Appellee-Cross-Appellant, Florida Municipal Power Agency, Movant-Appellee-Cross-Appellant, General Electric Co., Movant-Appellee-Cross-Appellant, Stewart and Stevenson Services, Inc., Movant-Cross-Appellant. National Railroad Passenger Corporation (Amtrak), CSX Transportation, Inc., Plaintiffs-Cross-Defendants-Counter-Defendants, v. Rountree Transport and Rigging, Inc., Defendant-Cross-Defendant-Appellee, Kissimmee Utility Authority, Defendant-Cross-Claimant-Cross-Defendant-Counter-Claimant-Counter-Defendant-Third-Party-Plaintiff-Third-Party-Defendant, WOKO Transportation, Defendant-Cross-Claimant-Cross-Defendant-Counter-Claimant-Counter-Defendant-Third-Party-Plaintiff-Third-Party-Defendant, Black and Veatch, et al., Defendants-Cross-Claimants-Cross-Defendants-Counter-Claimants-Counter-Defendants-Third-Party-Plaintiffs-Third-Party-Defendants-Appellants, Florida Municipal Power Agency, Defendant-Cross-Claimant-Cross-Defendant-Counter-Claimant-Counter-Defendant-Third-Party-Plaintiff-Third-Party-Defendant, General Electric Co., Third-Party-Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

422 F.3d 1275

NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK), CSX Transportation, Inc., Plaintiffs-Cross-Defendants-Counter-Defendants-Cross-Appellants-Cross-Appellees, American Home Assurance Company, f.u.b.o. Stewart and Stevenson Services, Inc., Plaintiff-Appellant-Cross-Appellee, v. ROUNTREE TRANSPORT AND RIGGING, INC., Defendant-Cross-Defendant-Appellee, Kissimmee Utility Authority, Defendant-Cross-Claimant-Cross-Defendant-Counter-Claimant-Counter-Defendant-Third-Party-Plaintiff-Third-Party-Defendant-Appellee-Cross-Appellant, WOKO Transportation, Black and Veatch, et al., Defendants-Cross-Claimants-Cross-Defendants-Counter-Claimants-Counter-Defendants-Third-Party-Plaintiffs-Third-Party-Defendants-Appellees, Florida Municipal Power Agency, Defendant-Cross-Claimant-Cross-Defendant-Counter-Claimant-Counter-Defendant-Third-Party-Plaintiff-Third-Party-Defendant-Appellee-Cross-Appellant,

General Electric Company, Inc., Consolidated Defendant-Third-Party Defendant-Appellee-Cross-Appellant,

Stewart and Stevenson Services, Inc., Movant-Cross-Appellant.

American Home Assurance Company, f.u.b.o. Stewart and Stevenson Services, Inc., Plaintiff-Counter-Defendant-Appellant-Cross-Appellee, v. National Railroad Passenger Corporation (Amtrak), CSX Transportation, Inc., et al., Defendants-Appellees-Cross-Appellants, Rountree Transport and Rigging, Inc., Defendant-Cross-Defendant-Appellee, Kissimmee Utility Authority, Defendant-Appellee-Cross-Appellant, Florida Municipal Power Agency, Movant-Appellee-Cross-Appellant,

General Electric Co., Movant-Appellee-Cross-Appellant,

Stewart and Stevenson Services, Inc., Movant-Cross-Appellant.

National Railroad Passenger Corporation (Amtrak), CSX Transportation, Inc., Plaintiffs-Cross-Defendants-Counter-Defendants, v. Rountree Transport and Rigging, Inc., Defendant-Cross-Defendant-Appellee, Kissimmee Utility Authority, Defendant-Cross-Claimant-Cross-Defendant-Counter-Claimant-Counter-Defendant-Third-Party-Plaintiff-Third-Party-Defendant, WOKO Transportation, Defendant-Cross-Claimant-Cross-Defendant-Counter-Claimant-Counter-Defendant-Third-Party-Plaintiff-Third-Party-Defendant, Black and Veatch, et al., Defendants-Cross-Claimants-Cross-Defendants-Counter-Claimants-Counter-Defendants-Third-Party-Plaintiffs-Third-Party-Defendants-Appellants,

Florida Municipal Power Agency, Defendant-Cross-Claimant-Cross-Defendant-Counter-Claimant-Counter-Defendant-Third-Party-Plaintiff-Third-Party-Defendant,

General Electric Co., Third-Party-Defendant-Appellee.

No. 00-13811.

No. 00-13986.

United States Court of Appeals, Eleventh Circuit.

September 1, 2005.

COPYRIGHT MATERIAL OMITTED

Michael Ramer Karcher, Underwood, Karcher & Karcher, P.A., Coral Gables, FL, William L. Eagan, Arnold, Matheny & Eagan, P.A., Orlando, FL, for American Home Assur. Co.

Sutton G. Hilyard, Jr., Bobby G. Palmer, Jr., Hilyard, Bogan, Palmer, P.A., Michael J. Roper, Ernest H. Kohlmyer, III, Bell, Leeper & Roper, P.A., Alton G. Pitts, Alton G. Pitts, P.A., Thomas M. Burke, Holland & Knight, LLP, John W. Bussey, III, Bussey, White, McDonough and Freeman, P.A., Richards H. Ford, Michael R. D'Lugo, Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Ford, P.A., J. Charles Ingram, Hannah, Estes & Ingram, P.A., Orlando, FL, Daniel John Fleming, Melkus, Fleming & Gutierrez, Tampa, FL, L. Lee Williams, Jr., Williams & Gautier, PA, Tallahassee, FL, James M. Warden, Shawnee Mission, KS, for Rountree Transport and Rigging, Inc., Kissimmee Utility Authority, Black and Veatch, Florida Municipal Power Agency, CSX Transp., Inc. National R.R. Passenger Corp. and General Elec. Co.

Thomas E. Warner, Carlton Fields, West Palm Beach, FL, for Atty. Gen. of Florida, Amicus Curiae.

Appeals from the United States District Court for the Middle District of Florida.

Before TJOFLAT and BIRCH, Circuit Judges, and GOLDBERG^*, Judge.

BIRCH, Circuit Judge:

This case returns to us for disposition from the Supreme Court of Florida, to which we certified four questions of Florida state law. See National R.R. Passenger Corp. v. Rountree Transp. & Rigging, Inc., 286 F.3d 1233, 1258, 1269 (11th Cir.2002). Based on the Florida Supreme Court's responses to the certified questions see American Home Assurance Co. v. National R.R. Passenger Corp., 908 So.2d 459 (Fla.2005)(per curiam), the district court's disposition of the certified issues is AFFIRMED.

I. BACKGROUND

This appeal arises from a series of lawsuits that were filed after a passenger train of the National Railroad Passenger Corporation ("Amtrak") collided with a hauler rig, owned and operated by Rountree Transport and Rigging, Inc. ("Rountree"), on railroad tracks, owned by CSX Transportation, Inc. ("CSX") and licensed to Kissimmee Utility Authority ("KUA"). While the facts of the case are fully described in our previous opinion, see National R.R. Passenger Corp., 286 F.3d at 1237-42, we will recount here relevant facts to provide context for our disposition of the case.

KUA, a municipal agency charged with constructing and operating the electrical utilities of the City of Kissimmee, Florida, was responsible for the construction of the Cane Island Power Plant ("Plant"). To finance the Plant's construction, KUA partnered with the Florida Municipal Power Agency ("FMPA"), which acquired a 50% ownership interest in the Plant as a result of its participation. Because pedestrian and vehicular access to the Plant would require crossing railroad tracks owned by CSX, KUA entered into a Private Road Grade Crossing Agreement ("Crossing Agreement") with CSX in which CSX gave KUA a license to construct, use, and maintain a private road grade crossing over CSX's railroad tracks. In exchange for the license, KUA agreed in the Crossing Agreement to "defend, indemnify, protect and save [CSX] harmless from and against [designated losses and casualties]." Id. at 1238. In addition, KUA agreed in the Crossing Agreement to "defend and indemnify any company whose property was `operated' by CSX at the railroad crossing." Id.

In order to outfit the Plant, KUA contracted with General Electric Company ("GE") for the purchase and delivery of a combustion turbine and its components. In their agreement, GE promised to defend and indemnify KUA "to the extent of and on account of any negligent act or omission of [GE] in" purchasing and delivering the turbine. Id. (internal quotations omitted). GE then contracted with Stewart and Stevenson Services, Inc. ("S&S") for the purchase and customization of the turbine and related parts. S&S in turn contracted with WOKO Transportation ("WOKO"), a transportation broker, to deliver the customized turbine equipment. WOKO ultimately contracted with Rountree to have the turbine and its housing enclosure delivered to the Plant.

On 30 November 1993, en route to the Plant with the turbine and its enclosure, Rountree came to the railroad crossing licensed to KUA by CSX. Realizing that the height of the rig would have to be adjusted prior to traversing the crossing, the Rountree workers stopped the rig on the tracks to make the necessary adjustments. Before the rig was removed from the tracks, however, an Amtrak passenger train collided with the rig, destroying the rig, the turbine, and its enclosure, as well as causing damage to the train and some of its passengers.

Litigation ensued. After a three-week jury trial on the issue of liability for all claimants and all defendants in the consolidated cases, the jury found Rountree was 59% at fault for the collision, CSX was 33% at fault, and Amtrak was 8% at fault. In addition, the district court found that the transportation of the turbine was an inherently dangerous activity, and therefore WOKO, S&S, and GE were vicariously liable for Rountree's negligence. The district court had also granted summary judgment in favor of CSX and Amtrak on their arguments that KUA was contractually obligated under the Crossing Agreement to defend and indemnify them in this litigation. Further, the district court granted summary judgment in favor of GE on the claims of KUA and FMPA that GE was obligated to indemnify them for their expenses in defending themselves in the turbine litigation. A jury trial on the issue of damages followed, after which many of the parties settled their claims. The American Home Assurance Corporation ("AHA"), however, which was the subrogee of S&S, had not settled its claims. After AHA rested its case-in-chief as to its damages, several parties moved for the district court to direct a verdict in favor of AHA against Rountree, CSX, and Amtrak in the amount of $1,851,822.40, which represented 41% of the damages they argued AHA had proven at trial.¹ The district court granted the motion and entered judgment in favor of AHA in the amount of $1,851,822.40.

This appeal followed. AHA appealed, the district court's determination that FLA. STAT. ch. 768.81 applied and limited its recovery to 41% of its proven damages. In addition, KUA and FMPA appealed the district court's determination that the Crossing Agreement contractually obligated them to defend and indemnify CSX and Amtrak. They also argued, that sovereign immunity precluded the enforcement of the terms of the Crossing Agreement. Because these issues presented unanswered questions of Florida law that were not specifically addressed by Florida precedent, we certified four questions to the Supreme Court of Florida. We address the certified questions and the Florida Supreme Court's responses in turn.

II. DISCUSSION

A. Florida's Comparative Fault Statute

On appeal, AHA argued that the district court improperly applied Florida's comparative fault statute, FLA. STAT. ch. 768.81, in determining that its recovery was limited to 41% of its proven damages. Particularly, AHA argued that the fault of Rountree, an active tortfeasor, could not be apportioned to AHA, which was vicariously liable, under the comparative fault statute because "§ 768.81 applies solely to parties who are directly negligent,...