The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court
ORDER GRANTING IN PART AND DENYING IN PART BNSF RAILWAY COMPANY'S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant BNSF Railway Company's motion for summary judgment filed on November 11, 2010. See Docket No. 73. Defendant Berthold Farmers' Elevator LLC filed a response in opposition to the motion on December 2, 2010. See Docket No. 84. Defendants KC Transport, LLC and Roland S. Pederson filed a response in opposition to the motion on December 8, 2010. See Docket No. 91. The Plaintiffs filed a response in opposition to the motion on December 8, 2010. See Docket No. 97. BNSF Railway Company filed a reply to Berthold Farmers' Elevator's response on December 16, 2010. See Docket No. 100. BNSF Railway Company filed replies to KC Transport, LLC, Roland S. Pederson, and the Plaintiffs' responses on December 22, 2010. See Docket Nos. 102 and 104. Berthold Farmers' Elevator filed a brief in response to KC Transport, LLC and Roland S. Pederson's response on December 22, 2010. See Docket No. 108. Oral argument on the motion was held in Minot, North Dakota on January 20, 2011. For the reasons stated below, the Court grants in part and denies in part BNSF's motion.
On November 5, 2008, 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. The train approached a crossing near Berthold known as the "cemetery crossing." There are four tracks at the cemetery crossing. The two southernmost tracks are used by Berthold Farmers' Elevator ("the Elevator"), and are referred to as "industry track." The third track is the mainline track, used by BNSF and Amtrak. The northernmost track is used only when trains need to pass each other. Campbell's train was using the mainline track. The Elevator had placed empty railcars on the industry track at an unknown distance from the cemetery crossing. As the train approached the cemetery 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. Campbell suffered injuries as a result of the collision.
On October 5, 1999, BNSF and the Elevator entered into a "Lease of Land for Construction/Rehabilitation of Track" ("Land Lease") by which the Elevator leased land from BNSF to build two tracks. See Docket No. 23-1. The Land Lease includes the following provision: 8. (a) Except as set forth in Section 8 (b), Lessee shall indemnify and hold harmless Lessor for all losses, damages, injuries or death to any person, as well as expenses, and claims under the Federal Employers' Liability Act, or any applicable safety act, (45 U.S.C. 51 et. seq.), arising in any manner out of the failure of Lessee to take any action required by this Lease, the condition of the Premises or any equipment or improvements thereon, or any act or omission of Lessee, its employees, agents, contractors or invitees ("Lessee's Parties"), regardless of whether such loss, damage, injury, death or expense is caused or contributed to by the negligence or alleged negligence of Lessor, except to the extent any such loss, damage, injury or death to any person, or expense is proximately caused by Lessor's gross negligence or intentional misconduct.
On April 4, 2000, BNSF and the Elevator entered into an "Industry Track Agreement," allowing the Elevator to use the two southernmost tracks near the cemetery crossing. See Docket No. 23-2. The Industry Track Agreement includes the following provisions:
Section 3.(g) Industry's use of the Track for the purpose of intraplant switching of railroad cars with an on-track unit, hereinafter called "Trackmobile", shall be subject to the following terms and conditions: . . . .
Industry further agrees to indemnify and hold Railroad harmless from any and all loss, damage, injury or death alleged to have been caused or contributed to by reason of Industry's movement over road crossings or the mere presence of freight cars or Industry's Trackmobile at or near road crossings of the Track.
Section 9.(a) Industry shall indemnify and save harmless Railroad from any and all claims, demands, suits, losses, judgments, costs, damages, or expenses on account of injuries to or death of any and all persons whomsoever, and any and all loss or destruction of or damage to property to whomsoever belonging, including property owned by, leased or rented to, or in the care, custody or control of the parties hereto, arising or growing out of or in any manner connected with the maintenance, operation, and use of the Track and crossing covered by this Agreement, or caused or occasioned, in whole or in part, by reason of or arising during the presence of the person of Industry, its subcontractors, the employees or agents of either, or third parties upon or in proximity to the Track covered by this Agreement. If any claim or liability shall arise from the joint or concurring negligence of the parties hereto, it shall be borne by them in proportion to the degree of fault or negligence of both of them as provided by law. See Docket No. 23-2.
Rule 6.32.4 of BNSF's General Code of Operating Rules states, "Leave cars, engines, or equipment clear of road crossings and crossing signal circuits. When practical, avoid leaving cars, engines, or equipment standing closer than 250 feet from the road crossing when there is an adjacent track." See Docket No. 75-6.
On June 21, 1999, Michele S. Keller, BNSF's Manager of Industrial Development, wrote a letter to Dan DeRouchy, Manager of the Elevator, regarding a proposed expansion of the Elevator. The letter states, in part:
Under your current agreement, your elevator has had the permission of the Berthold City Council to close the crossing next to your load-out for a period of up to 10 hours. Your proposed expansion will affect not only this crossing but also the crossing to the west.
For this proposal to receive approval as presented, both crossings should be permanently closed. If that is not feasible, you will need to secure City Council approval to close the crossing next to your load-out for 15 hours. This corresponds to the number of hours you will have to load the shuttle trains. You must secure permission from the governing authority (county, township, etc.) for the western crossing to be closed for the time the train is on site. . . . This crossing could be closed for up to 20 hours and maybe more.
In the event this is not a practical solution, then your plan must allow for visual clearance of 250' on either side of this crossing during loading. . . .
See Docket No. 75-7 (emphasis added).
On October 18, 2000, Cheri Bonebrake, BNSF's Grade Crossing Coordinator, wrote a letter to DeRouchy, stating in part:
This letter is in response to our telephone conversation with Ms. Michele Keller, Industrial Development on October 16, 2000, regarding the Main Street and 296th Street ("Cemetery") grade crossing in Berthold, North Dakota.
On behalf of Ms. Keller, I would like to reinforce an item covered in BNSF's letter agreement with the Berthold Farmers Elevator dated June 21, 1999 which mandates a visual clearance of 250 feet on either side of the above-mentioned crossings. As we discussed, the Elevator is not presently complying with this setback requirement. See Docket No. 75-7 (emphasis in original).
On December 1, 2000, Gary Springer, the Elevator's Safety Director, wrote a letter to Rob Roy, BNSF's Director of Grade Crossing Safety, asserting the Elevator was in compliance with the 250-foot clearance requirement. See Docket No. 75-8.
On January 25, 2010, Campbell and Brenda Southern filed an amended complaint in which Campbell asserts two claims against BNSF. In count one, Campbell alleges he was injured as a result of BNSF's negligence in violation of the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51-60. See Docket No. 19. In count two, Campbell alleges he was injured as a result of BNSF's violation of the Locomotive Inspection Act, 49 U.S.C. § 20701. See Docket No. 19.
On February 8, 2010, BNSF filed a cross-claim against the Elevator for indemnification. See Docket No. 23. On February 24, 2010, the Elevator filed a cross-claim for contribution or indemnity against BNSF, KC Transport, and Pederson. See Docket No. 29. On February 26, 2010, KC Transport filed a cross-claim against BNSF and the Elevator for damage caused to its tractor trailer. See Docket No. 38.
On November 11, 2010, BNSF filed a motion for summary judgment seeking:
1. Judgment of Dismissal of Count Two of the Amended Complaint of Plaintiff Robert C. Campbell ("Campbell") alleging BNSF's violation of the Locomotive Inspection Act ("LIA");
2. Judgment of Dismissal of Count One of Campbell's Amended Complaint for damages under the Federal Employee Liability Act ("FELA");
3. Judgment in favor of BNSF on its Cross-claim against Berthold Farmers Elevator LLC ("Berthold Elevator") for indemnity and a defense;
4. Judgment of Dismissal of Berthold Elevator's Cross-claim against BNSF; and
5. Judgment of Dismissal of the Cross-claim of KC Transport, LLC ("KC Transport") against BNSF.
The Plaintiffs do not oppose BNSF's motion for summary judgment regarding count two of the complaint which relates to claims under the Locomotive Inspection Act. See Docket No. 97. As to count one of the complaint, BNSF contends that Campbell has no claim under FELA that the train was not crashworthy or that BNSF failed to provide him with adequate emergency procedure training. BNSF also contends it cannot be held liable for the Elevator's placement of railcars near the cemetery crossing. The Plaintiffs contend there are genuine issues of material fact as to whether BNSF breached a non-delegable duty to provide Campbell with a safe place to work.
As to BNSF's cross-claim against the Elevator, BNSF argues it is entitled to indemnification from the Elevator under the Land Lease and Industry Track Agreements because Campbell was injured as a result of the Elevator's placement of railcars near the cemetery crossing. The Elevator contends the indemnity agreements with BNSF are void under N.D.C.C. § 49-16-01.1.
As to the Elevator's cross-claim against BNSF, BNSF contends the indemnity agreements with the Elevator preclude the Elevator's cross-claim for indemnification, and that N.D.C.C. § 32-03.2-02 precludes the Elevator's cross-claim for contribution. The Elevator has failed to address BNSF's motion as to the Elevator's cross-claim. See Docket No. 84.
As to KC Transport's cross-claim against BNSF, BNSF contends there is no factual basis upon which to claim BNSF was negligent or is liable for the Elevator's negligence in placing railcars near the cemetery crossing. KC Transport contends there are genuine issues of material fact as to whether BNSF's negligence was a cause of the collision.
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 ...