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Robert C. Campbell and Brenda Southern, Individually and As Husband and Wife v. Bnsf Railway Company

December 21, 2010

ROBERT C. CAMPBELL AND BRENDA SOUTHERN, INDIVIDUALLY AND AS HUSBAND AND WIFE, PLAINTIFFS,
v.
BNSF RAILWAY COMPANY, A DELAWARE CORPORATION; ROLAND S. PEDERSON;
KC TRANSPORT, LLC, A MONTANA CORPORATION; AND BERTHOLD FARMERS' ELEVATOR LLC, A NORTH DAKOTA CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court

ORDER

Before the Court is Defendants KC Transport, LLC and Roland S. Pederson's motion for partial summary judgment on various cross-claims filed on November 12, 2010. See Docket No. 77. Defendant BNSF Railway Company filed a response in opposition to the motion on December 2, 2010. See Docket No. 87. Defendant Berthold Farmers' Elevator, LLC did not file a response. For the reasons stated below, the Court denies in part and grants in part KC Transport, LLC and Roland S. Pederson's motion.

I. BACKGROUND

On November 5, 2008, the plaintiff, Robert C. Campbell, was working as a conductor for BNSF Railway Company ("BNSF"). Campbell was operating a train headed westbound near the City of Berthold, North Dakota. As the train approached a crossing, a tractor trailer owned by KC Transport, LLC ("KC Transport") and operated by Roland S. Pederson drove onto the tracks. The train collided with the back end of the tractor trailer. An employee of Berthold Farmers' Elevator, LLC had placed boxcars near the intersection, allegedly restricting Pederson's view of the crossing. Campbell suffered injuries as a result of the collision. The entire accident was captured on videotape.

On February 2, 2010, BNSF filed an amended cross-claim against KC Transport and Pederson. BNSF alleges:

As the sole proximate result of the negligence of KC Transport and it[s] agent and/or employee driver Pederson, the BNSF suffered property damage to its train and other property in an amount to be proven at trial. In addition, because the conduct of KC Transport and Pederson was the sole active cause of Plaintiff's injuries, the BNSF is entitled to indemnification from KC Transport and Pederson for any damages awarded against the BNSF, as well as its costs, disbursements and attorney's fees.

See Docket No. 24. On February 24, 2010, Berthold Farmers' Elevator filed a cross-claim against the other defendants:

46. Berthold Farmers Elevator alleges that if plaintiffs sustained injuries or damages as alleged in the amended complaint, the same may have been caused by the fault or negligence of defendants BNSF Railway Company, Roland S. Pederson and KC Transport, LLC, as described in the amended complaint.

47. Berthold Farmers Elevator alleges that if plaintiffs obtain a judgment or verdict against the Elevator, then the Elevator prays for contribution or indemnity against defendants BNSF Railway Company, Roland S. Pederson and KC Transport, LLC, according to the common law and equitable principles.

See Docket No. 29.

On November 12, 2010, KC Transport and Pederson filed a motion for partial summary judgment seeking dismissal of Berthold Farmers' Elevator's cross-claim and the portion of BNSF's cross-claim that alleges indemnification. See Docket No. 77. KC Transport and Pederson contend there is no basis in North Dakota law to require them to indemnify either BNSF or Berthold Farmers' Elevator. BNSF essentially contends that genuine issues of material fact exist because implied indemnity may arise when there is great disparity in fault between the parties.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the evidence, viewed in a light most favorable to the non-moving party, indicates that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Davison v. City of Minneapolis, Minn., 490 F.3d 648, 654 (8th Cir. 2007); see Fed. R. Civ. P. 56(c). Summary judgment is not appropriate if there are factual disputes that may affect the outcome of the case under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine if the evidence would allow a reasonable jury to return a verdict for the non-moving party. Id.

The Court must inquire whether the evidence presents a sufficient disagreement to require the submission of the case to a jury or whether the evidence is so one-sided that one party must prevail as a matter of law. Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005). The moving party bears the burden of demonstrating an absence of a genuine issue of material fact. Simpson v. Des Moines Water Works, 425 F.3d 538, 541 (8th Cir. 2005). The non-moving party "may not rely merely on allegations or denials in ...


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