Free Objection - District Court of Arizona - Arizona

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FENNEMORE CRAIG, P.C. William L. Thorpe (No. 005641) Sal J. Rivera (No. 016728) Melissa W. Rawlinson (No. 021285) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 [email protected] [email protected] [email protected] Attorneys for BNSF

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Steven Schrum, Plaintiff, v. The Burlington Northern Santa Fe Railway Company, Defendant. No. CIV04-619-PHX-RCB BNSF' OBJECTIONS TO CHEMICAL S LIME' STATEMENT OF MATERIAL S FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: (1) NO PROOF OF NEGLIGENCE; (2) NO PROOF OF PROXIMATE CAUSATION; (3) NO FACTS TRIGGERING ANY INDEMNITY OBLIGATION AND

16 17 18 19 Third Party Plaintiff 20 v, 21 22 23 Third Party Defendants 24 25 26
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The Burlington Northern Santa Fe Railway Company, a corporation,

BNSF' SEPARATE STATEMENT OF S FACTS IN SUPPORT OF ITS RESPONSE TO CHEMICAL LIME' MOTION FOR S SUMMARY JUDGMENT (Oral Argument Requested)

Chemical Lime Company of Arizona, a corporation; ABC Corporations I-IV, fictitious corporations,

Pursuant to Rule 56.1, Local Rules of the United States District Court for the

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District of Arizona, Defendant BNSF Railway Company ("BNSF") submits its Objections to Chemical Lime' Statement of Material Facts in Support of Its Motion for Summary s Judgment and BNSF' Separate Statement of Facts in Support of BNSF' Response to s s Chemical Lime' Motion. s I. 1. Objections to Chemical Lime' Statement of Facts s BNSF agrees that Frank Burg gave the quoted testimony but objects to Moreover, Mr.

Chemical Lime' description and characterization of the testimony. s

Burg' testimony is irrelevant to Chemical Lime' duty to defend and indemnify BNSF. s s 2. 3. 4. 5. 6. 7. See response to paragraph No. 1. No objection. No objection. No objection. No objection. BNSF does not dispute that it tendered its defense to Chemical Lime under

the 1991 Track Agreement. However, Chemical Lime misquotes paragraph 4(b) of the 1991 Track Agreement. Paragraph 4(b) of the 1991 Track Agreement, which applies here, actually provides: Regardless of any negligence or alleged negligence of [BNSF], [Chemical Lime] shall indemnify and hold harmless [BNSF] from any liability or claimed liability arising under the Federal Employers Liability Act (45 U.S.C. § 51, et. seq.) for any incident caused, wholly or in part, by property, equipment, fixtures or conditions belonging to or under the control of [Chemical Lime]. (Language omitted by Chemical Lime is added in bolded and underlined text.) In addition, Chemical Lime omitted a key provision of the Track Agreement, Article I, paragraph 7, which provides: "It is the intention of the parties that [BNSF]' s right to indemnity contained in Sections 4(b), 5(e), and 6(a) shall be valid and enforceable against Industry regardless of negligence (whether active, passive, derivative, joint,
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concurring or comparative) on the part of [BNSF], its officers, agents and employes [sic]." 8. 9. No objection. BNSF does not dispute that the 2002 agreement contains the quoted

language. However, BNSF objects to this paragraph to the extent it suggests that the 2002 industry track agreement applies in this case. Both BNSF and Chemical Lime agree that the 1991 Track Agreement is the one that applies here. Additionally, BNSF tendered its defense pursuant to the 1991 Track Agreement. 10. 11. See response to paragraph No. 9. BNSF objects to this paragraph on the grounds that it misstates Mr. Burg' s

deposition testimony. BNSF also objects to this paragraph on the grounds that this paragraph is irrelevant to Chemical Lime' duty to defend and indemnify BNSF. Finally, s Mr. Burg' unsupported and unfounded opinion is untimely, inadmissible, irrelevant and s the subject of BNSF' Motion to Strike, previously filed with the Court. s 12. 13. 14. No objection. No objection. No objection. Plaintiff also testified that his claims are based on alleged

conditions at the Plant. Q: But again, just so we are on the same page on a moving-forward basis, all of these alleged exposures that you are complaining about occurred at the Chemical Lime plant; correct? A: Yes.

Q: In other words, it wasn' your work in San Bernardino t that you contend made you ill in some manner, and that is at issue in this case? A: I believe that the lime dust exposure and the coal and coke dust exposure from Chemical Lime is what has hurt me more than anything else. Q: Okay. And all of those claims arise out of the exposures that occurred at the Chemical Lime plant; correct?
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A:

Yes.

(BNSF' Statement of Facts in support of its motion for summary judgment re s indemnification, ¶ 10.) 15. II. No objection.

BNSF' Separate Statement of Facts S 1. The relevant provision of the Track Agreement clearly requires Chemical

Lime to indemnify BNSF: Regardless of any negligence or alleged negligence of [BNSF], [Chemical Lime] shall indemnify and hold harmless [BNSF] from any liability or claimed liability arising under the Federal Employers Liability Act (45 U.S.C. § 51, et. seq.) for any incident caused, wholly or in part, by property, equipment, fixtures or conditions belonging to or under the control of [Chemical Lime]. See Industry Track Agreement, attached as Exhibit A, ¶ 4(b) (Emphasis added). 2. Plaintiff testified that his claims are based on alleged conditions at the Plant. Q: But again, just so we are on the same page on a moving-forward basis, all of these alleged exposures that you are complaining about occurred at the Chemical Lime plant; correct? A: Yes.

Q: In other words, it wasn' your work in San Bernardino t that you contend made you ill in some manner, and that is at issue in this case? A: I believe that the lime dust exposure and the coal and coke dust exposure from Chemical Lime is what has hurt me more than anything else. Q: Okay. And all of those claims arise out of the exposures that occurred at the Chemical Lime plant; correct? A: Yes.

(Schrum Deposition at 64:3-17, attached as Exhibit B.) 3. When asked if he believed that Chemical Lime had "any responsibility for

[his] alleged injuries," he responded "Yes. I believe so." (Exhibit B at 163:1-3.)
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4.

Plaintiff' complaint alleges that his injuries were caused by the "unsafe s

condition of the air at the plant." (Complaint, ¶ 9(b).) 5. Article I, Paragraph 7 of the Track Agreement provides, "It is the intention

of the parties that [BNSF]' right to indemnity contained in Sections 4(b), 5(e), and 6(a) s shall be valid and enforceable against Industry regardless of negligence (whether active, passive, derivative, joint, concurring or comparative) on the part of [BNSF], its officers, agents and employes [sic]." (Exhibit A.) DATED this 21st day of February, 2006. FENNEMORE CRAIG, P.C.

By s/Melissa W. Rawlinson Sal J. Rivera William L. Thorpe Melissa W. Rawlinson Attorneys for BNSF

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CERTIFICATE OF SERVICE I hereby certify that on February 21, 2006, I electronically transmitted the attached document to the Clerk' Office using the CM/ECF System for s filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: George T. Brugess Hoey & Farina, P.C. 542 S. Dearborn, Suite 200 Chicago, IL 60605 Attorneys for Plaintiff Charles D. Onofry ReNae A. Nachman Schneider & Onofry, P.C. 3101 N. Central Ave., Ste. 600 Phoenix, AZ 85012 Attorneys for Third-Party Defendant Chemical Lime I hereby certify that on February 21, 2006, I served the attached document by facsimile and U.S. mail on the following, who are not registered participants of the CM/ECF System: William D. Black One East Camelback Road Suite 630 Phoenix, Arizona 85012-1658

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