ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
DAVID W. WEIGLE HAROLD ABRAHAMSON
Hammond, Indiana Abrahamson & Reed
GEORGE W. GESSLER
MARK A. PELLEGRINO
Gessler, Hughes & Socol, Ltd.
IN THE COURT OF APPEALS OF INDIANA
BETHLEHEM STEEL CORPORATION, ) ) Appellant-Defendant, ) ) vs. ) No. 45A03-0004-CV-130 ) CONSOLIDATED RAIL CORPORATION, ) ) Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable James J. Richards, Judge
Cause No. 45D05-9202-CP-267
December 14, 2000
OPINION - FOR PUBLICATION
Said sidetrack shall be maintained (including removal of ice, snow, weeds and debris)
and renewed to the satisfaction of the Railroad [Conrail]; the work shall be
performed and the cost thereof borne as follows:
By the Railroad, at its expense, that portion on Railroad right of way.
By the Industry [Bethlehem], at its expense, that portion beyond Railroad right of
The Industry shall not permit any obstruction over said sidetrack, less than
22 feet above top of rail, or alongside
of said sidetrack less than 8 feet
from center of track, with the necessary additional clearances on curves.
The minimum clearances herein specified may be changed by the Railroad to meet
changes in operating requirements and conditions or legal requirements, and the Industry shall,
upon written notice by the Railroad make such changes in its tracks and
facilities of the Industry, as may be necessary.
The Industry shall observe and comply with all rules and regulations of the
Railroad now in effect and as from time to time amended, governing the
handling of flammable liquids and compressed gases, including loading and unloading of tanks
cars, the location of racks and storage tanks, and protection of oil sidings
from danger due to stray electric currents and other causes; said rules and
regulations, designated as the current issue of General Notice No. 201 (basic number),
attached hereto and by this reference made a part hereof. (Copy to
be attached when track is to be used to handle flammable liquids and
8. Liability in Connection with Sidetrack
(b) Other Liability. Except as herein otherwise specifically provided, in respect of all
loss or damage to property, other than by fire as aforesaid, or in
respect of injury to or death of persons, caused by or in connection
with the construction, operation, maintenance, use presence or removal of said sidetrack, as
between the parties hereto;
(i) The Railroad shall assume responsibility for and hold the Industry harmless and defend
the Industry from all losses (including claims for injuries to employees of the
Industry or of the Railroad), expenses, attorneys fees, damages, claims and judgments arising
from or growing out of the actionable acts or omissions of the Railroad,
its agents or employes [sic] solely or in conjunction with a third person;
(ii) The Industry shall assume responsibility for and hold Railroad harmless and defend the
Railroad from all losses (including claims for injuries to employes [sic] of the
Industry or of the Railroad), expenses, attorneys fees, damages, claims and judgments arising
from or growing out of actionable acts or omissions of the Industry, its
agents or employes [sic], solely or in conjunction with a third person; and
(iii) The parties hereto shall equally bear all losses (including claims for injuries to
employes [sic] of the Industry or of the Railroad), expenses, attorneys fees, damages,
claims and judgments arising from or growing out of the joint or concurring
actionable acts or omissions of both parties hereto, their respective agents or employes
(iv) Notwithstanding anything contained in this Section 8 (b), and irrespective of any joint
or concurring negligence of the Railroad, the Industry assumes sole responsibility for and
agrees to indemnify, save harmless and defend the Railroad from and against all
claims, actions or legal proceedings arising, in whole or in part, from (a)
the failure of the Industry to comply with requirements set forth in Sections
3 and 7 hereof, or (b) any claims, actions or legal proceedings under
the Federal Employers Liability Act and any amendments to said Act now or
hereafter in effect, alleging or claiming, in legal effect, that the Railroad failed
to correct or guard against an unsafe condition if the unsafe place to
work or the condition resulted in whole or in part from any act
or omission of the Industry, its agents, employes [sic], tenants, licensees or invitees.
On November 23, 1990, Gregory Seckler (Seckler), a Conrail employee, was killed when he was caught between a moving Conrail train and a loading dock at Bethlehems Burns Harbor Plant in Porter County, Indiana. Following the accident, Conrail investigated the accident. M.A. Love (Love), a senior officer from Conrails Division Headquarters in Dearborn, Michigan, conducted the investigation. Conrail took statements from crew members and supervisors, inspected and photographed the railroad cars and the scene, inspected and tested equipment, took measurements, and conducted two reenactments. Subsequently, Love issued the following report:
On Friday November 23, 1990 the yard crew YDBH03 on duty at 8:00 AM CST at Burns Harbor Yard with the crew of Engineer J.K. Evans, Conductor G.L. Seckler, and Trainman J.W. Fields were switching the Bethlehem Steel Plant at approximately 3:10 PM CST. When Conductor G.L. Seckler was rolled between the CR 607070 empty gondola and loading dock.
Mr. Seckler received a contusion to left shoulder, fractured right forearm, fractured ribs
both front and back, and interior laceration of both liver and spleen which
Mr. Seckler caused his own injuries as a result of the following.
1. Placing himself in the close clearance situation of which he was aware of.
2. By working on the east side of track #540 when there was no
reason to due [sic] so.
3. He was in clear view of the Brakeman while the shoving into the
building started and crossed from west to east in front of moving equipment
in a matter of 30 to 60 seconds. For which there was
no reason to do so.
4. Mr. Seckler and his Brakeman Fields had an understanding (which was obtained through
the statements) that neither of them would work on the east side and
thats [sic] where he was found.
5. Not paying attention to the instruction he set for his own crew.
6. The entire move could have been performed from the west side of the
track without incident and should have been done so.
All close clearance situation in Bethlehem Steel Plant will be identified and
those without visible clearance signs as track 540 was, will have signs installed.
Personal contact with all crews going on duty at Burns Harbor to identity
[sic] close clearance inside the mill.
Issue instructions that under no circumstance are employees to be allowed to position
between the dock and dock track regardless of clearances.
Personal contact with all crews through their Trainmaster discussing close clearance situations in
their assigned territory.
Conrail promptly contacted Secklers widow and commenced settlement negotiations with her. Within two months, Conrail reached a $620,000 settlement agreement with the widow. Secklers widow never retained a lawyer and did not file suit against Conrail. After agreeing to settle, Conrail demanded indemnity from Bethlehem under their agreement. Bethlehem declined to indemnify Conrail for the accident. Conrail then brought action against Bethlehem for indemnification.
On April 20, 1998, Conrails expert, William Pugh (Pugh), was deposed by Bethlehem. Pugh, a former National Transportation Safety Board examiner, was asked, [w]hat if any blame do you assess to Bethlehem in this case? (R. 928). Pugh responded by stating, Lack of clearance signs and sufficient lighting. Everyone talked about it being dark in there and the clearance sign was gone. A clearance sign is just another caution warning. And lighting, of course, you can see better where you are going, what you are doing, particularly coming from the outside, walking in on a bright day or something. They all talked about it being dark. (R. 928-929).
On May 12, 1998, Conrail filed a motion for partial summary judgment on liability. The motion contended that the terms and conditions of the agreement between Conrail and Bethlehem required that Bethlehem assume full responsibility for and indemnify, and save harmless the railroad from any claims, actions or legal proceedings under the Federal Employers Liability Act. (R. 31-32). Bethlehem responded and asserted that Conrails motion was not supported by the law or facts. Furthermore, Bethlehem maintained that multiple issues of fact exist, requiring determination by a jury. On November 4, 1998, the trial court entered an order determining that the indemnity agreement was unambiguous and valid and that Bethlehem failed to object to the settlement. The trial court further held that Conrail was entitled to indemnity in the full amount; and the only remaining issue was the question of reasonableness of the settlement amount.
A jury trial commenced on December 13, 1999. After trial, the jury returned a verdict in favor of Conrail in the amount of $403,000. On February 28, 2000, a hearing was held on the issues of attorneys fees, costs and pre-judgment interest. The trial court awarded Conrail attorneys fees, costs and pre-judgment interest. This appeal followed.
ANSWER : Bethlehem admits the allegations contained in paragraph six.
(R. 24). Bethlehem responded to this assertion by maintaining that there was no claim, action, or legal proceeding arising, in whole or in part, from a violation of either section 3 or 7 of the agreement.
Neither party mentions any violation of section 3 of the agreement. Bethlehem insists that it did not violate section 7. The minimum clearances were, in fact, changed by Conrail, when Conrail and Bethlehem filed their joint petition with the Indiana Public Service Commission. The Commission granted the petition and the permissible lateral clearance was reduced from eight feet to six feet. As part of its accident investigation, Conrail measured the clearances and found them all to be greater than the required six feet. Therefore, Bethlehem argues that there was no violation of section 7. Because Bethlehem admitted to the allegations contained in paragraph six of Conrails complaint does not mean that Bethlehem admitted to violating either section 3 or 7 of the agreement. Consequently, we find that Bethlehem raises genuine issues of material fact that it did not violate either of these sections.
Bethlehem also contends that there has been no claim, action or legal proceeding under the Federal Employers Liability Act (FELA). The plain language of this subsection requires Conrail to prove that Conrail failed to correct or guard against an unsafe condition, and that the alleged unsafe condition resulted in whole or in part from any act or omission of Bethlehem. There has been no allegation that the accident occurred because Conrail failed to correct or guard against an unsafe condition.
Conrail responds by stating that Seckler was covered under FELA. Under FELA, the railroad is liable to its employees if its negligence played any part, however small, in the injury or death which is the subject of the suit. Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 508 (1957). Conrail believes that Bethlehem has unambiguously agreed to indemnify the railroad for any claim brought under FELA. We disagree.
FELA is not a no-fault statute and damages are not owed because an employee is injured. The United States Supreme Court has held that although FELA is to be liberally construed, it does not mean that it is a workers' compensation statute. Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994). The Supreme Court has insisted that FELA "does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur." Id. (quoting Ellis v. Union Pacific R.R. Co., 329 U.S. 649, 653 (1947)).
We find that section 8(b)(iv)(b) of the agreement requires the following: 1) there must be a claim, action or legal proceeding under FELA; 2) Conrail failed to correct or guard against an unsafe condition; and 3) the alleged unsafe condition resulted in whole or in part from any act or omission of Bethlehem. There are factual disputes concerning whether these requirements have been met. Consequently, we find that the trial courts grant of Conrails motion for partial summary judgment was improper.