Free Statement - District Court of Arizona - Arizona

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Charles D. Onofry ­ 012837 ReNae A. Nachman ­ 022614 SCHNEIDER & ONOFRY, P.C. 3101 North Central Avenue Suite 600 Phoenix, Arizona 85012-2658 Telephone: (602) 200-1280 Fax: (602) 230-8985 E-mail: [email protected] Attorneys for Third-Party Defendant Chemical Lime Company of Arizona IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CIV04-619-PHX-RCB STEVEN SCHRUM, Plaintiff, THIRD-PARTY DEFENDANT CHEMICAL LIME'S CONTROVERTING STATEMENT OF MATERIAL FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: (1) NO PROOF OF NEGLIGENCE; (2) NO PROOF OF PROXIMATE CAUSATION; AND (3) NO FACTS TRIGGERING ANY INDEMNITY OBLIGATION AND

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vs.
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THE BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, a corporation, Defendant.

THE BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, a corporation, Third-Party Plaintiff,

RESPONSE TO BNSF'S MOTION FOR SUMMARYJUDGMENT REGARDING INDEMNITY (Assigned to the Honorable Robert C. Broomfield)

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vs.
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CHEMICAL LIME COMPANY OF ARIZONA, a corporation, ABC Corporations I-IV, fictitious corporations, Third-Party Defendant.

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Third-Party Defendant Chemical Lime Company, by and through undersigned counsel, hereby submits its Controverting Statement of Material Facts in support of its Motion for Summary Judgment Re: (1) No Proof of Negligence; (2) No

Case 2:04-cv-00619-RCB

Document 79

Filed 02/16/2006

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Proof of Proximate Causation; and (3) No Facts Triggering Any Indemnity Obligation and Response to BNSF's Motion for Summary Judgment. CONTROVERTING STATEMENT OF MATERIAL FACTS 1. BNSF SOF #1: Disputed. BNSF and Chemical Lime are not the The 1991

named parties to the 1991 Contract for Industry Track ("Agreement"). Contract for Industry Track provides:

All the covenants and provisions of this Agreement shall be binding on the successors, heirs, legal representatives and assigns of Industry. . .provided, however, no assignment hereof by Industry, its successors, heirs, legal representatives or assigns, or any subsequent assignee, shall be binding upon Santa Fe without the written consent of Santa Fe in each instance. (Exhibit A ­ Contract for Industry Track at p. 6, Article III, ¶ 6.) There is no evidence there is an assignment by Chemstar Lime Company to Chemical Lime Company, nor is there evidence of written consent by Santa Fe to an assignment, if any exists. 2. BNSF SOF #3: Admit in part. The basis for the negligence in this

case defined by Plaintiff's expert is BNSF's failure to investigate the conditions at Chemical Lime Company and/or the failure to provide a respirator to Plaintiff ­ not the actual exposure. See, Defendant's SOF MSJ Re: No Facts Triggering Any Indemnity Obligation at ¶¶ 1 and 2. 3. 4. 5. BNSF SOF #5: See, response to CSOF #1. BNSF SOF #6: See, response to CSOF #1. BNSF SOF #7: The 1991 Agreement speaks for itself. See,

response to CSOF #1. 6. BNSF SOF #8: The 1991 Agreement speaks for itself. See,

response to CSOF #1. 7. BNSF SOF #9: The 1991 Agreement speaks for itself. See,

response to CSOF #1. Case 2:04-cv-00619-RCB Document -79 2 Filed 02/16/2006 Page 2 of 3

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8.

BNSF SOF #10: Plaintiff's testimony speaks for itself. The basis

for the alleged negligence as defined by Plaintiff's expert is the failure on the part of BNSF to investigate the conditions and/or the failure to provide Plaintiff with a respirator ­ not the exposure itself. STATEMENT OF ADDITIONAL MATERIAL FACTS 1. Plaintiff listed his alleged injuries in his Answers to Defendant's

Interrogatories dated April 7, 2006, attached as Exhibit B at p. 6). Dated this ___ day of February, 2006. SCHNEIDER & ONOFRY, P.C. By /s Charles D. Onofry Charles D. Onofry ReNae A. Nachman 3101 North Central Avenue, Suite 600 Phoenix, Arizona 85012-2658 Attorneys for Third-Party Defendant Chemical Lime Company of Arizona

COPY of the foregoing e-served on this ___ day of February, 2006, to: George T. Burgess, Esq. HOEY & FARINA, PC 542 South Dearborn, Suite 200 Chicago, Illinois 60605 Attorneys for Plaintiff William L. Thorpe, Esq. Sal J. Rivera, Esq. FENNEMORE CRAIG 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for BNSF By /s Janice Froechte

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