Free Response to Motion - 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 STEVEN SCHRUM, Plaintiff, vs. THE BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, a corporation, Defendant. No. CIV04-619-PHX-RCB THIRD-PARTY DEFENDANT CHEMICAL LIME'S RESPONSE TO BNSF'S MOTION FOR SUMMARY JUDGMENT ON INDEMNIFICATION CLAIM

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THE BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, a corporation, Third-Party Plaintiff, vs. CHEMICAL LIME COMPANY OF ARIZONA, a corporation, ABC Corporations I-IV, fictitious corporations, Third-Party Defendant.

(Assigned to the Honorable Robert C. Broomfield) (Oral argument requested)

Third-Party Defendant Chemical Lime Company ("Chemical Lime"), by and through undersigned counsel, hereby submits its Response to BNSF's Motion for Summary Judgment on its Indemnification Claim Against Chemical Lime. In addition to

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this Response, Chemical Lime incorporates the arguments and facts set forth in its separate Motion for Summary Judgment on this same issue. In short, this indemnity provision does not apply for the simple reason that nothing about Chemical Lime's plant or operations "caused" or are alleged to be the negligence causing Plaintiff's injuries. This Response is supported by the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES BNSF argues that it is entitled to indemnity based on Article 1, 4(b) of the 1991 Contract for Industry Track between Chemstar Lime Company and The Atchison, Topeka and Santa Fe Railway Company. 1 The 1991 Agreement provides as follows: Regardless of any negligence or alleged negligence of Santa Fe, Industry shall indemnify and hold harmless Santa Fe from any liability or claimed liability arising under the Federal Employees Liability Act (45 U.S.C. §51 et.seq.) for any incident caused, wholly or in part, by property, equipment, fixtures or conditions belonging to or under the control of Industry. (10/15/1991 Contract for Industry Track ("1991 Agreement"), Article 1, 4(b) (Emphasis Added).2 To trigger this indemnity provision, BNSF must prove that Chemical Lime was negligent and that its negligence caused its liability under the FELA. This provision is not triggered for several reasons. First, it is not Plaintiff's allegation that there was some negligence by Chemical Lime that caused his injuries. Indeed, Plaintiff's expert freely admitted that he has no information as to the extent of the claimed exposure and whether there is any

BNSF's motion assumes that this is the applicable contract and applies to the parties. In fact, neither Chemical Lime Company, nor BNSF are named parties to the 10/15/1991 Contract for Industry Track. As part of Chemical Lime's controverting statement of facts, it has denied that this indemnity provision necessarily applies to the parties as there is no evidence that the rights and obligations have been assigned and/or consented to. 2 See, Defendant Chemical Lime Company's SOF at ¶ 7.

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medical causation between his exposure to the lime dust and his claimed symptoms. Rather, the negligence which Plaintiff alleges is BNSF's failure to investigate Plaintiff's complaints regarding the dust exposure and failing to provide him with a respirator. These allegations of negligence are completely different than an allegation that Plaintiff was exposed to impermissibly high levels of some airborne contaminant. For whatever reason, this is not Plaintiff's allegation. As to the alleged negligence (failure to

investigate and failure to provide respirators, Chemical Lime has absolutely no control over these matters. For this very same reason, Chemical Lime can never be held liable for indemnity to BNSF because, by definition, if Plaintiff were to recover, it would be due to BNSF's sole negligence. Under the very provision BNSF cites and relies on, it

expressly provides that there is no duty to indemnify where the loss arises "from the sole negligence" of BNSF. See also Chemical Lime's separate motion for summary judgment. These very same arguments establish that Plaintiff's FELA claim was not "caused, wholly or in part, by property, equipment, fixtures, or conditions belonging to [Chemical Lime]." Once again, the "cause" is the alleged failure by BNSF to investigate the conditions and to provide a respirator. Chemical Lime Company does not control the actions of BNSF. BNSF's failure to investigate the exposure is not a condition "belonging to or under the control of Chemical Lime." It is the failure to investigate that Plaintiff alleges is the negligence in this case, not the actual exposure to lime and coal dust. Plaintiff claims he was not provided a respirator by BNSF. Whether it was BNSF's failure to investigate the conditions at Chemical Lime, or Plaintiff's failure to wear a respirator there still is no evidence Plaintiff's injuries were caused by a condition

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belonging to or under the control of Chemical Lime. Plaintiff was not an employee of Chemical Lime - Chemical Lime had no control over Plaintiff. Plaintiff's expert, Frank Burg, testified that the sole negligence in this case was BNSF's failure to investigate what Plaintiff was being exposed to at Chemical Lime ­ not the level of exposure itself.3 Finally, this indemnity provision clearly contemplates an instance where it is proven, in fact, that Chemical Lime actually caused the damage or injury. Yet, that is the fundamental issue in this case. Both BNSF and Chemical Lime have moved for summary judgment on the basis that Plaintiff has no evidence whatsoever establishing any connection between his claimed symptoms and the alleged dust exposure. That being the case, would it not be premature to find that Chemical Lime is liable for indemnity when it may turn out that Chemical Lime never caused the problem? To be sure, the facts of this case are distinct from a situation where it was clear that Plaintiff was injured by some condition at the Chemical Lime plant. For instance, if Plaintiff tripped and fell over some dangerous condition and was injured, there would be no question that the claim relates to an "incident caused" by the plant's condition. However, in this case, whether the incident occurred at all is at the heart of the dispute. In fact, the expert that Plaintiff previously identified (Frank Burg) as offering causation testimony, in fact, never did offer an opinion on causation. On

Tuesday, February 14, 2006, Plaintiff took the videotape deposition of one of Plaintiff's treating physicians, Dr. Charles Lindsey. Although the transcript has not yet been

received, Chemical Lime believes that Dr. Lindsey made it clear that he has no medical basis on which to say that Plaintiff's symptoms were caused, even in part, due to the dust exposures at the Chemical Lime plant.

See, Defendant Chemical Lime Company's Statement of Facts in Support of Its MSJ ("SOF") at ¶ 1 and 2.

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CONCLUSION Incorporating the argument set forth in Chemical Lime's Motion for Summary Judgment Re: No Facts Triggering Indemnity that in order for Chemical to be indemnified there must be some act of negligence on Chemical Lime's part, BNSF has no evidence the injuries claimed by Plaintiff were "caused" by the property, equipment or condition belonging to or under the control of Chemical Lime that would trigger the indemnity provision under Article 1, 4(b), assuming the 1991 Agreement is enforceable. Based on the foregoing, Chemical Lime respectfully requests that BNSF's motion for summary judgment regarding indemnity be denied. DATED this 16th 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 16th 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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