United States District Court, D. North Dakota
ORDER DENYING BNSF'S MOTION FOR SUMMARY JUDGMENT
L. Hovland, Chief Judge.
the Court is “BNSF Railway Company's Motion for
Partial Summary Judgment Re: Offset” filed on September
28, 2016. See Docket No. 131. Defendants Corrie
Burckhard and Maria Mack filed a response in opposition to
the motion on October 19, 2016. See Docket No. 135.
BNSF Railway Company filed a reply brief on October 31, 2016.
See Docket No. 137. For the reasons set forth below,
the motion is denied.
case arises out of an underlying action in which Corrie
Burckhard, as Personal Representative for the Estate of Todd
Burckhard, and Maria Mack, as Personal Representative for the
Estate of Blaine H. Mack filed suit against BNSF Railway
Company (“BNSF”) and CUSA ES, LLC (“Coach
America”) to recover for the wrongful deaths of their
husbands. See Case No. 4:13-cv-038 (D.N.D. March 28,
2013). On August 19, 2011, a Coach America driver was driving
a motor vehicle and transporting the decedents, Todd
Burckhard and Blaine Mack, both employees of BNSF, to
Glasgow, Montana. While traveling west on Highway 2, a
vehicle driven by Ronald Keiser collided with the vehicle
Rennick was driving. As a result of the collision, both
Burckhard and Mack were killed. At the time of the accident,
Keiser had an insurance policy with QBE Insurance Corporation
underlying action proceeded to trial on December 11, 2014.
See Docket No. 167 (Case No. 4:13-cv-038). At the
conclusion of eight days of trial, the jury returned a
verdict and found BNSF was negligent under FELA and such
negligence caused the deaths of Todd Burckhard and Blaine
Mack. The jury awarded damages in the amount of $2, 668,
943.00 to Corrie Burckhard and damages in the amount of $987,
690.00 to Maria Mack. The jury further found Coach America
and/or its employee, Timothy Rennick, were negligent, but
such negligence did not play a substantial role in causing
the deaths of Todd Burckhard and Blaine Mack.
January 5, 2015, BNSF and Coach America filed a motion in the
underlying action to alter or amend the judgement in favor of
Burckhard and Mack to reduce the amount payable to the
Plaintiffs by $300, 000 for each Plaintiff. See
Docket No. 168 (Case No. 4:13-cv-038). BNSF and Coach
America's request was based upon the language of an
“Off Track Vehicle Accident Benefits Agreement”
It is intended that this Article V is to provide a guaranteed
recovery by an employee or his personal representative under
the circumstances described, and that receipt of payment
thereunder shall not bar the employee or his personal
representative from pursing [sic] any remedy under the
Federal Employer Liabilities Act or any other law; provided,
however, that any amount received by such employee or his
personal representative under this Article may be applied as
an offset by the railroad against recovery that is obtained.
See Docket No. 132-2 at 6. The Court denied BNSF and
Coach America's motion to amend or alter the judgment
because the issue of whether BNSF may be entitled to an
offset under the “Off Track Vehicle Accident Benefits
Agreement” was collateral to the merits of the
underlying case. See Docket No. 180 (Case No.
4:13-cv-038). On appeal, the Eighth Circuit Court of Appeals
affirmed the Court's decision in the underlying action to
not alter or amend the judgment, emphasizing the amounts paid
by BNSF to Burckhard and Mack “may be applied
as an offset by the railroad against recovery that is
obtained” under the “Off Track Vehicle Accident
Benefits Agreement.” See Docket No. 216-1 at
11 (Case No. 4:13-cv-038) (emphasis in original). The Eighth
Circuit specifically agreed with the rational of this Court
in denying the motion, concluding there was no abuse of
discretion upon denying the request to alter or amend the
The action before the district court, and tried to the jury,
encompassed only claims under FELA and negligence under
Montana common law. The agreement was not encompassed within
the decision on the merits of plaintiffs['] FELA case.
Moreover, the agreement has the potential to spawn additional
litigation over the use of the word “may.”
Id. at 12.
November 1, 2013, QBE Insurance Corporation filed this
interpleader action against Corrie Burckard, as personal
representative for the estate of Todd Burckhard; Maria Mack,
as personal representative for the estate of Blaine H. Mack;
BNSF; and Coach America in an effort to resolve any claims
against it arising from the underlying action. See
Docket No. 3. On February 18, 2015, Coach America and BNSF
filed a counterclaim against QBE Insurance as well as a cross
claim against Burckhard and Mack. See Docket No. 49.
In the cross claim, BNSF and Coach America allege “BNSF
and Coach America are entitled to declaratory relief
affirming their right to an offset or credit to the damages
awarded (described in Paragraphs 21 and 22) by the Jury in
Case No.: 4.13-cv-038 based on the Off Track Vehicle Benefits
Agreement payments of $300, 000 to each Estate.”
Id. at 10. On March 10, 2015, Burckhard and Mack
then filed a crossclaim against BNSF and Coach America.
See Docket No. 55. As part of their crossclaim,
Burckhard and Mack allege:
21. Coach America has never made payment on the Off-Track
Vehicle Agreement and is not entitled to the benefit of the
Off-Track Vehicle Agreement offset.
22. BNSF, and only BNSF, is entitled to an offset by the
amount paid for the Off-Track Vehicle Agreement. However,
because BNSF has tendered the defense and indemnity
obligations to Coach America and AIG, BNSF will not be paying
the verdict and therefore is not entitled to an offset. BNSF
is entitled to a subrogation claim against Coach America for
the off track vehicle payment or against other at fault
individuals including in their claims against the bar and
other insurance, but only to the extent the ...