National R.R. Passenger Corp. v. Catlett Volunteer Fire Co., Inc.

• Court: Virginia Supreme Court
• Writing for the Court: CARRICO
• Citation: National R.R. Passenger Corp. v. Catlett Volunteer Fire Co., Inc., 404 S.E.2d 216, 241 Va. 402 (1991)
• Decision Date: 19 April 1991
• Docket Number: No. 901527,901527
• Parties: NATIONAL RAILROAD PASSENGER CORPORATION v. CATLETT VOLUNTEER FIRE COMPANY, INCORPORATED, et al. Record

Page 216

404 S.E.2d 216

241 Va. 402

NATIONAL RAILROAD PASSENGER CORPORATION v. CATLETT VOLUNTEER FIRE COMPANY, INCORPORATED, et al.

Record No. 901527.

Supreme Court of Virginia.

April 19, 1991.

Stephen Earl Baril, John L. Walker, III (Samuel W. Hixon, III, George W. Marget, III, Williams, Mullen, Christian & Dobbins, Richmond, on briefs), for appellant.

Julia B. Judkins (Richard H. Lewis, Fairfax, Kevin Lee Locklin, Merrifield, Randolph E. Trow, Jr., Richmond, Lewis, Trichilo & Bancroft, Fairfax, Slenker, Brandt, Jennings & Johnson, Merrifield, Poole & Poole, Richmond, on brief), for appellees.

Present: All the Justices.

CARRICO, Chief Justice.

Following a railway crossing collision between a passenger train and a fire truck, National Railroad Passenger Corporation (Amtrak), owner of the train, filed a complaint in the United States District Court for the Eastern District of Virginia against Catlett Volunteer Fire Company, Incorporated, owner of the fire truck (Catlett), and the estate of Mark Jay Miller, a volunteer fireman who was operating the fire truck and who was killed in the collision (Miller). In the complaint, Amtrak sought recovery of the sum of $910,000 for property damage allegedly sustained by the train in the collision.

In the District Court, Catlett and Miller's estate filed answers alleging they were immune from liability under the doctrine of sovereign immunity. Later, Catlett and Miller's estate filed motions for summary judgment on the immunity issue. The court granted Catlett's motion for summary judgment in full. Initially, the court denied the motion filed by Miller's estate but, upon reconsideration, granted the motion in part, holding that the estate could be held liable only if Miller's conduct constituted gross negligence.

Upon appeal to the Fourth Circuit, Amtrak filed a motion for certification of state law questions to this Court pursuant to our Rule 5:42, and Catlett and Miller's estate filed a response in support of the motion. Accordingly, the Fourth Circuit certified to this Court the following questions:

a. [Is] Catlett ... immune from suit pursuant to Virginia Code § 27-23.6, 1950 as amended?

b. [Does] Miller [have] qualified immunity and can only be liable if his actions are found to constitute gross negligence?

The pertinent facts are set forth in the Fourth Circuit's order of certification:

On September 28, 1989, members of Catlett responded to the scene of a car fire on private property adjacent to Route 28 in Fauquier County, Virginia. Miller, the volunteer fireman who was driving the lead fire truck, discovered through radio communications that he had driven past the driveway leading into the property where the car fire was burning. He then turned around and proceeded back on the same highway towards the driveway entrance. Again, Miller overshot the driveway. He stopped the fire truck just beyond the driveway entrance to his right and backed up in order to make a right turn. He then made a wide right turn into the driveway. The driveway is unpaved and crosses over the railroad tracks. After Miller turned onto the driveway, he drove slowly up the drive's incline towards the train tracks and proceeded to cross. The truck's emergency lights and headlights were operating at all times during the response to this call. As the fire truck was crossing the railroad tracks, it was hit by a southbound Amtrak train.

Prior to the accident, Catlett required its member drivers, including Miller, to undergo extensive in-house training as to the safe operation of the fire company's vehicles. Clyde M. Lomax, the fire company's chief, instructed the volunteer firemen of the company that they must obey all traffic laws without exception when responding to a call. Lomax specifically recalls instructing his drivers, including Miller, to stop and look both ways before crossing any railroad tracks.

Catlett is a non-profit corporation that exists independently of Fauquier County (the "County"). Catlett's members are volunteers, whom neither Catlett nor the County compensates for firefighting. Catlett owns its station house and the vehicles that it uses. The County does not control or supervise the daily operations of Catlett and the County is not involved in the selection of Catlett's members, officers or drivers. The County provides no direct funding to Catlett. The only cash disbursement that Catlett receives from the County is a one-thirteenth ( 1/13) share of a lump sum grant that the County makes available to the Fauquier County Fire and Rescue Association (the "Association"), an unincorporated association that is comprised of appointed members from the thirteen volunteer fire and rescue companies that operate within the County. The County neither directs the Association as to how this grant should be distributed nor requires the Association to account for how the grant is disbursed. The remaining expenditures that the County makes on behalf of the Association are for the payment of bills that the Association submits to the County.

I. Is Catlett Immune from Suit Pursuant to Code § 27-23.6?

In pertinent part, Code § 27-23.6 provides as follows:

Any county may contract with any volunteer fire-fighting companies or associations in the county or towns therein for the fighting of fire in any county so contracting.... If any contract be entered into by a county the fire-fighting company shall be deemed to be an instrumentality of the contracting county and as such exempt from suit for damages done incident to fighting fires therein.

Amtrak contends that Code § 27-23.6 does not exempt Catlett from liability because the statute requires the existence of a contract between Catlett and the County and no contract was entered into between these parties. Amtrak also contends that the statute only applies when property is damaged incident to the actual fighting of a fire and, hence, does not apply to damage caused by the negligent operation of a fire truck en route to the scene of a fire.

A. The Contract Question

In granting summary judgment in favor of Catlett and Miller's estate, the District Court held that there was no express contract between Catlett and the County but that an implied contract existed between them. Amtrak argues that the District Court correctly found that no express contract existed between Catlett and the County yet "erred in imposing an implied-in-fact contract between them to the detriment of Amtrak."

In finding the existence of an implied-in-fact contract, the district judge stated:

Where an express contract is not made, but might have been, or in equity and good conscience should have been made, the law will impose the duty and infer the necessary promises to effect a contractual relation between the parties. Virginia Block Co. v. Virginia Mutual Insurance Agency, Inc., 16 B.R. 771 (W.D.Va.1982), quoting from volume 4B Mich.J., Contracts, Section 99.

After making this statement, the district judge surveyed the Virginia statutes concerning volunteer fire companies, reviewed the evidence supplied by Catlett concerning "the ongoing [close working] relationship between Catlett and [Fauquier County]," and noted the requirement in Acts 1970, ch. 187, of which Code § 27-23.6 is a part, that "the Act shall be liberally construed." Concluding, the judge said: "Liberally construing Section 27-23.6 in light of the evidence before this court regarding the relationship between Fauquier County and Catlett, the Court finds an implied contract does indeed exist between these two parties."

We think the District Court correctly stated Virginia law on the subject of implied contracts. See Hendrickson v. Meredith, 161 Va. 193, 200-01, 170 S.E. 602, 605 (1933); Norfolk v. Norfolk County, 120 Va. 356, 361-62, 91 S.E. 820, 821-22 (1917). We also think the Court properly applied that law to the evidence before it. Accordingly, for the purpose of responding to the remaining questions relating to the application of Code § 27-23.6, we will adopt the District Court's views as our own and find the existence of a contract between Catlett and Fauquier County.

B.

The Meaning of "Incident To"

One of the remaining questions relating to the application of Code § 27-23.6 is whether the exemption from suit for "damages done incident to fighting fires" encompasses damages resulting from the operation of a fire truck en route to a fire. Amtrak argues that the statute "only exempts a volunteer fire company from suit for property damages 'done incident to' the actual act of fighting a fire." (Emphasis in original.)

Amtrak draws this argument from a number of related statutes. Amtrak cites Code § 27-20, which authorizes a fire chief to destroy property in order to prevent the spread of fire, and Code §§ 27-21 and -22, which establish a procedure for recovery of such property damage from the city, town, or county involved. Then, Amtrak cites Code § 27-41, which provides financial relief to volunteer fire fighters killed or injured while fighting fire or "while responding to an alarm or returning from the scene of a fire." "This distinction," Amtrak states, "demonstrates that the drafters of Section 27-23.6 intended for the limited language 'incident to fighting fires' to literally mean fighting fires and to exclude a fire company member's operation of a fire truck to and from the scene of a fire." ¹

We disagree with Amtrak's argument concerning the operation of a fire truck en route to the scene of a fire. The word "incident" is defined as

[s]omething dependent upon, appertaining or subordinate to, or accompanying something else of greater or principal importance, something arising or resulting from something else of greater or principal importance. Used both substantively and adjectively of a thing which, either usually or naturally and inseparably, depends upon, appertains to, or follows another that is more worthy. Used as a noun, it denotes anything which inseparably belongs...