Free Response in Opposition to Motion - 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' RESPONSE TO CHEMICAL S LIME' MOTION FOR SUMMARY S JUDGMENT RE: (1) NO PROOF OF NEGLIGENCE; (2) NO PROOF OF PROXIMATE CAUSATION; AND (3) NO FACTS TRIGGERING ANY INDEMNITY OBLIGATION (Oral Argument Requested) The Burlington Northern Santa Fe Railway Company, a corporation, Third Party Plaintiff

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

BNSF agrees that plaintiff cannot establish a prima facie FELA case and that the Court should grant summary judgment on plaintiff' claims. s The Court should

nevertheless deny Chemical Lime' request for summary judgment on BNSF' s s

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indemnification claim because the plain language of the parties' Industry Track Agreement (the "Track Agreement") refutes Chemical Lime' motion. Indeed, paragraph s 4(b) of the applicable Track Agreement clearly provides that BNSF is entitled to indemnification for all claims arising from conditions at Chemical Lime' Plant. It is s undisputed that plaintiff' claims, however misguided, arise out of conditions at the Plant. s The Court should therefore deny Chemical Lime' motion as it relates to BNSF' s s indemnification claim, grant BNSF' separate motion for summary judgment and order s Chemical Lime to defend and indemnify BNSF. BNSF' response is supported by the s following Memorandum of Points and Authorities, BNSF' separately filed objections to s Chemical Lime' statement of facts and separate statement of facts in support of its s response to Chemical Lime' motion ("SSOF"), BNSF' previously filed BNSF' Motion s s s for Summary Judgment on Indemnification and BNSF' statement of facts in support of s its Motion. MEMORANDUM OF POINTS AND AUTHORITIES I. The Court should grant summary judgment on plaintiff' claims. s BNSF agrees with Chemical Lime that plaintiff' claim fails as a matter of law.1 s As Chemical Lime correctly notes, there is no evidence that plaintiff was exposed to lime or coal dust in excess of permissible limits or that his alleged exposures caused his alleged injuries. Plaintiff therefore cannot establish a prima facie case. Moreover, expert

testimony is required to establish causation in this type of case, but plaintiff has no expert testimony to establish that defendants caused his alleged injuries. The Court should therefore grant summary judgment on plaintiff' claims. s

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BNSF' own assertion that plaintiff cannot establish a prima facie case is fully set forth in BNSF' s s previously filed Motion for Summary Judgment on Plaintiff' Claims. BNSF incorporates its Motion for s Summary Judgment on Plaintiff' claims herein by reference. s

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II.

The Court should deny Chemical Lime' motion for summary judgment on s BNSF' indemnification claim. s While the Court should grant summary judgment on plaintiff' claims, it should s

deny that portion of Chemical Lime' motion that seeks summary judgment on BNSF' s s indemnification claim. The interpretation of the Track Agreement is a question of law for the Court. Hadley v. Southwest Properties, Inc., 116 Ariz. 503, 506, 570 P.2d 190, 193 (Ariz. 1977) (citing C & T Land & Development Co. v. Bushnell, 106 Ariz. 21, 470 P.2d 102 (1970)).2 Where the language of the contract is clear and unambiguous, it must be given effect as it is written. Id. (citing Vinnell Corp. v. State ex rel. Bob Skousen Contr. Inc., 109 Ariz. 87, 505 P.2d 547 (1973)). Here, the relevant provision of the plain and unambiguous 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]. SSOF, ¶ 1. Notwithstanding the clarity of the Track Agreement and the fact that plaintiff' s claims fit squarely within paragraph 4(b), Chemical Lime argues that the indemnification provision is not triggered because: (1) plaintiff has not alleged any negligence by Chemical Lime that would trigger the provision, and (2) BNSF' conduct was willful, thus s precluding indemnity. Both arguments fail. A. Plaintiff' claims clearly arise out of conditions at the Plant. s

Chemical Lime first argues that it is not required to indemnify BNSF because there is no evidence that Chemical Lime was negligent. BNSF agrees that plaintiff has not
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By moving for summary judgment, Chemical Lime concedes that the Court can rule on this issue as a matter of law.
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offered any evidence that defendants were negligent, but this is irrelevant to BNSF' s indemnification claim. Instead, Paragraph 4(b) of the Track Agreement requires

Chemical Lime to indemnify BNSF when a BNSF employee asserts a FELA claim arising out of conditions at the Plant. That is precisely what happened here. It is undisputed that plaintiff' FELA claim is based on the theory that he suffered s respiratory injuries as a result of his exposure to chemicals at the Plant. Among other things, plaintiff testified, "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." SSOF, ¶ 2. Plaintiff also testified that all of his claims arise out of exposures that occurred at the s Plant. Id. Clearly, plaintiff' claim arises out of conditions at the Plant. Thus, there is no question that plaintiff' FELA claim falls under the indemnification provisions of s paragraph 4(b) of the Track Agreement. Notwithstanding this clear testimony and the very nature of plaintiff' claim, s Chemical Lime next suggests that BNSF is not entitled to indemnification because plaintiff has not alleged any negligence on Chemical Lime' part. This argument fails for s at least three reasons. First, the Track Agreement does not require that a BNSF employee allege that Chemical Lime was negligent to trigger Chemical Lime' duty to indemnify s BNSF. It only requires that a BNSF employee claim an injury arising out of conditions at the Plant, which is exactly what plaintiff has done in this case. Second, Chemical Lime' s argument ignores plaintiff' testimony that his claims are based on conditions at the Plant s and that the exposure from Chemical Lime "hurt him more than anything else." SSOF, ¶ 2. Indeed, when asked if he believed that Chemical Lime had "any responsibility for [his] alleged injuries," he responded "Yes. I believe so." SSOF, ¶ 3. Third, plaintiff' s complaint alleges that his injuries were caused by the "unsafe condition of the air at the plant." SSOF, ¶ 4. In short, plaintiff has alleged that Chemical Lime was negligent; he just has not established it. While this may entitle BNSF and Chemical Lime to summary
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judgment on plaintiff' claim, it does not excuse Chemical Lime from defending and s indemnifying BNSF. Chemical Lime also erroneously concludes that there must be some negligence actually "committed" by Chemical Lime in order to trigger Chemical Lime' duty to s indemnify BNSF. Again, the Track Agreement refutes this argument. Indeed, to reach this result, the Track Agreement would have to say that Chemical Lime is only required to defend and BNSF in cases where the plaintiff has already established liability. The Track Agreement does not support this strained interpretation.3 The agreement itself provides: "[r]egardless of any negligence or alleged negligence of Santa Fe, Industry shall indemnify and hold harmless Santa Fe from any liability or claimed liability arising under the Federal Employees Liability Act (45 U.S.C. § 51, et. seq.)" SSOF, ¶ 1. Pursuant to the Track Agreement' clear and unambiguous terms, the only "triggering" s event is the assertion of the FELA claim, however misguided or weak the claim might be. Chemical Lime is still required to defend and indemnify BNSF even though plaintiff cannot establish a prima facie claim. B. Chemical Lime must defend and indemnify BNSF even though plaintiff' expert opined that BNSF was independently negligent. s

Chemical Lime next claims that it is not required to defend and indemnify BNSF because plaintiff' expert opined that BNSF was independently negligent.4 s Chemical Lime is wrong. BNSF denies that it was negligent. Again

Nevertheless, even

assuming for the sake of argument that it was negligent (which it was not), Chemical Lime would still be required to indemnify BNSF. Section 4(b) expressly states that the
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In the case of indemnification agreements, the extent of a contractual duty to indemnify must be determined from the agreement itself. Superior Companies v. Kaiser Cement Corp., 152 Ariz. 575, 577, 733 P.2d 1158, 1160 (App. 1986); Estes Co. v. Aztec Constr., Inc., 139 Ariz. 166, 168, 677 P.2d 939, 941 (App. 1983). 4 Again BNSF denies that it was negligent and denies Mr. Burg' unsupported allegations. Nevertheless, s as set forth herein, Mr. Burg' opinions are irrelevant because the Track Agreement requires Chemical s Lime to indemnify BNSF even if BNSF was negligent.
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indemnification duty applies "[r]egardless of any negligence" of BNSF. SSOF, ¶ 1. (emphasis added). Moreover, paragraph 7 of the Track Agreement provides that "it is the intention of the parties" that BNSF' right to indemnity under paragraph 4(b) applies s "regardless of negligence (whether active, passive, derivative, joint, concurring or comparative)" on BNSF' part. SSOF, ¶ 5. (emphasis added.) Based on the clear and s unambiguous Track Agreement, Chemical Lime therefore has a duty to defend and indemnify BNSF even if BNSF was independently negligent. In a last ditch effort to avoid its duty to defend and indemnify BNSF, Chemical Lime takes out of context language in the parties' 2002 industry track agreement to suggest that it is not required to indemnify BNSF if BNSF' conduct was "willful." This s argument fails for the simple reason that the parties agree that the 1991 Track Agreement applies and the 1991 Track Agreement does not make an exception for such conduct. Once more, paragraph 4(b) specifically provides that Chemical Lime must indemnify BNSF regardless of "any" negligence by BNSF and paragraph 7 of the Track Agreement provides that BNSF' right to indemnity applies "regardless of negligence (whether s active, passive, derivative, joint, concurring or comparative)" on BNSF' part.5 SSOF, s ¶ ¶ 1, 5. Again, the applicable Track Agreement simply does not support Chemical

Lime' creative advocacy. s It is undisputed that Chemical Lime entered into the Track Agreement and received the benefits of the Track Agreement for many years. Now, Chemical Lime wants to avoid its clear contractual obligations under the Track Agreement. The Court should deny these efforts and order Chemical Lime to defend and indemnify BNSF.

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Chemical Lime' reliance on Mr. Burg' untimely and unsupported opinion that BNSF' conduct s s s constituted gross, willful or criminal negligence is also misplaced. Mr. Burg' unsupported and unfounded s opinion is untimely, inadmissible, irrelevant and the subject of BNSF' Motion to Strike. BNSF hereby s incorporates by reference the arguments set forth therein.
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III.

Conclusion Based on the foregoing, BNSF agrees that the Court should dismiss plaintiff' s

claims.

The Court should also deny Chemical Lime' motion related to BNSF' s s

indemnification claim and grant BNSF' Motion for Summary Judgment on s Indemnification. 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 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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