National R.R. Passenger v. Rountree Transport

Decision Date26 March 2002
Docket NumberNo. 00-13986.,No. 00-13811.,00-13811.,00-13986.
Citation286 F.3d 1233
PartiesNATIONAL 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, J.E. Bedgood, Jr., Linda Bedgood, et al., American Home Assurance Company, f.u.b.o. Stewart and Stevenson Services, Inc., Plaintiffs, 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.
CourtU.S. Court of Appeals — Eleventh Circuit

Michael Ramer Karcher, Underwood, Karcher, Karcher & Anderson, PA, Miami, FL, William L. Eagan, Arnold, Matheny & Eagan, P.A., Orlando, FL, James M. Warden, Shawnee Mission, KS, Richards H. Ford, Michael R. D'Lugo, Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Ford, PA, J. Charles Ingram, Orlando, FL, for Appellants.

Sutton G. Hilyard, Jr., Hilyard, Bogan, Palmer & Lockeby, 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, Johnson & Bussey, Bobby G. Palmer, Jr., Orlando, FL, Daniel John Fleming, Melkus & Fleming, Tampa, FL, L. Lee Williams, Jr., Williams & Gautier, PA, Tallahassee, FL, for Appellees.

Thomas E. Warner, Tallahassee, FL, for Amicus Curiae, State of Florida.

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:

These consolidated appeals arise from the district court's final judgment resolving a series of cases that were filed after a passenger train of the National Railroad Passenger Corporation ("Amtrak"), as it moved on the railroad track of CSX Transportation, Inc. ("CSX"), collided with a hauler rig owned by Rountree Transport and Rigging, Inc. ("Rountree"). The Rountree vehicle had become immobilized on a railroad crossing as it attempted to transport a combustion turbine and a turbine enclosure to a power plant of the Kissimmee Utility Authority ("KUA") near Kissimmee, Florida. American Home Assurance Corporation ("AHA"), subrogee of Stewart and Stevenson Services, Inc. ("S&S"), commenced these appeals to challenge several district court rulings that affected its entitlement to damages flowing from the collision. The issues in this aspect of the appeal include: (1) the propriety of excluding certain evidence offered by AHA to prove its damages; (2) whether transport of the combustion turbine properly was deemed an inherently dangerous work activity; (3) the propriety of reducing AHA's damages under the Florida comparative fault statute; and (4) whether AHA should have been denied prejudgment interest on its damages. We AFFIRM the district court's rulings with regard to the first, second, and fourth issues. The third issue, however, raises unsettled questions of state law which we certify to the Florida Supreme Court for resolution.

In addition to AHA's appeal, KUA, Florida Municipal Power Agency ("FMPA"), and Black & Veatch ("B&V") have appealed the decision by the district court that General Electric Company ("GE") did not have to defend and indemnify them for the collision. We AFFIRM the district court's decision. KUA and FMPA also have appealed the district court's decision requiring them to defend and indemnify CSX and Amtrak. Within this latter appeal, KUA and FMPA have raised the issue of whether state law sovereign immunity shields them from being required to defend and indemnify CSX and Amtrak. Because the sovereign immunity issue involves unsettled questions of state law, we certify the issue to the Florida Supreme Court for review. In sum, we have decided that with respect to these consolidated appeals, we AFFIRM in part but STAY all further proceedings, pending the Florida Supreme Court's resolution of our certified questions.

A. Construction of the Cane Island Power Plant

KUA is an municipal agency created by the city of Kissimmee, Florida, to construct, operate, and manage the city's municipal electrical utility systems. As part of its charge, KUA oversaw the construction of the electrical facility known as the Cane Island Power Plant (the "Plant") near Kissimmee, Florida. To effectuate the construction, KUA contracted with B&V, who agreed to serve as project engineer. KUA also entered into a Participation Agreement with FMPA, a joint-action agency organized under Florida law with authority to undertake and finance electric projects. By entering into the Participation Agreement, FMPA acquired a 50% ownership interest in the Plant and agreed to share with KUA the production costs of electricity.

In overseeing the construction, KUA took steps to ensure that there would be vehicular and pedestrian access to the Plant. Accordingly, KUA entered into a Private Road Grade Crossing Agreement (the "Crossing Agreement") with CSX, who granted the utility a license to construct, use, and maintain a private road grade crossing over CSX's railroad tracks. In return for the license, KUA was required under the Crossing Agreement to "defend, indemnify, protect and save [CSX] harmless from and against [designated losses and casualties]." R53-1172 Exh. A at 14.2. The Crossing Agreement further mandated that KUA defend and indemnify any company whose property was "operated" by CSX at the railroad crossing. Id. at 1.2.

In its oversight role, KUA also contracted with GE for purchase and delivery of certain customized power generation equipment, including a combustion turbine. KUA and GE entered into a Turbine Purchasing Agreement (the "Purchasing Agreement"), which included an indemnification provision under which GE promised to defend and indemnify KUA, its agents, and B&V "to the extent of and on account of any negligent act or omission of [GE] in performing the work under the Contract." R104-2060 Exh. A at GC.29.

Upon entering into the Purchasing Agreement, GE contracted with S&S, who agreed to purchase and then customize the equipment that would be delivered to the Plant. In turn, S&S contracted with a "transportation broker," WOKO Transportation ("WOKO"), who arranged for transport of the customized turbine equipment. WOKO contracted with Rountree to have certain pieces of the customized equipment — the combustion turbine and an enclosure for housing it — transported to the Plant on 30 November 1993. The combustion turbine and its enclosure made up only one out of forty-five boxes of customized turbine equipment transported to the Plant. Not included in the November shipment were boxes 2-45, which contained additional equipment customized by S&S, including, among other things, an air filter, turbine generator controls, a control house, and lube oil cooler fans.

B. The Collision

Because the combustion turbine weighed 82 tons, Rountree transported the turbine and its enclosure by using a road tractor that pulled a hauler rig. The height of the hauler rig could be adjusted to deal with gradations in the terrain. The underlying casualty occurred on 30 November 1993 as Rountree, while transporting the combustion turbine and its enclosure to the Plant, attempted to adjust the height of the rig at the railroad crossing licensed to KUA from CSX. The railroad tracks at the crossing were on an elevated grade. As the hauler rig was driven onto the crossing, the hauler crew realized that the rig would be unable to negotiate the elevated terrain without its height first being adjusted. The crew adjusted the height of the rig without first removing the rig from the railroad tracks. Before the rig was removed from the tracks, an Amtrak passenger train collided with it. The collision destroyed the...

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