Free Statement - District Court of Arizona - Arizona

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FENNEMORE CRAIG A Professional Corporation William L. Thorpe (No. 005641) Sal J. Rivera (No. 016728) Melissa W. Rawlinson (No. 021285) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 [email protected] [email protected] [email protected] Attorneys for BNSF UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Steve Schrum, Plaintiff, v. The Burlington Northern Santa Fe Railway Company, a corporation, Defendant. No. CIV04-619-PHX-RCB BNSF' STATEMENT OF FACTS IN S SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT ON ITS INDEMNIFICATION CLAIM AGAINST CHEMICAL LIME COMPANY

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F ENNEMORE C RAIG
P ROF E S S I O N A L C O R P O R A T I O N P HOENIX

The Burlington Northern Santa Fe Railway Company, Third Party Plaintiff v. Chemical Lime Company Of Arizona, a corporation; ABC Corporations I-IV, fictitious corporations,

Pursuant to Rule 56, Fed. R. Civ. P., BNSF Railway Co. f/k/a The Burlington Northern Santa Fe Railway Co. ("BNSF") hereby submits its statement of facts in support of its concurrently filed motion for summary judgment.

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

1.

In 1991, BNSF and Chemical Lime entered into a Track Agreement ("the

Track Agreement"), whereby BNSF agreed to operate a railroad at Chemical Lime' s Nelson, Arizona facility ("the Plant"). (A true and correct copy of the Track Agreement is attached as Exhibit A.) 2. As a conductor for BNSF, plaintiff worked on trains that provided rail

services to the Plant. (See Complaint.) 3. Plaintiff sued BNSF under the Federal Employers Liability Act, 45 U.S.C.

§ 51 et. seq. to recover damages he allegedly incurred as a result of the inhalation of coal, coke, and lime dust while working at the Plant. (See Complaint.) 4. BNSF now asserts a third-party complaint against Chemical Lime on the

grounds that under the Track Agreement, Chemical Lime is required to defend and indemnify BNSF. (See Third-Party Complaint.) 5. Pursuant to the Track Agreement, Chemical Lime agreed to grant BNSF a

right of way for the tracks, to pay the costs of operating and maintaining the railroad, and to defend and indemnify BNSF for any liability or claimed liability relating to the Plant. (Exhibit A.) 6. The Track Agreement governed the parties' relationship during the time

period relevant to plaintiff' claims. (Exhibit A.) s 7. Article I, Paragraph 4(b) of the Track Agreement provides, in pertinent part, (b) Regardless of any negligence or alleged negligence of [BNSF], [Chemical Lime] shall indemnify and hold harmless [BNSF] from any liability or claimed liability arising under the Federal Employers 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 [Chemical Lime]. (Exhibit A.)

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

8.

Article I, Paragraph 7, provides, "It is the intention of the parties that

[BNSF]' right to indemnity contained in Sections 4(b), 5(e), and 6(a) shall be valid and s enforceable against Industry regardless of negligence (whether active, passive, derivative, joint, concurring or comparative) on the part of [BNSF], its officers, agents and employes [sic]." (Exhibit A.) 9. Paragraph 8 of the Track Agreement provides, Upon written notice from [BNSF], [Chemical Lime] agrees to assume the defense of any lawsuit, administrative action or other proceeding brought against [BNSF] by any public body, individual, partnership, corporation, or other legal entity, relating to any matter covered by this Agreement for which [Chemical Lime] has an obligation to assume liability for and/or save and hold harmless [BNSF]. [Chemical Lime] shall pay all the costs incident to such defense including, but not limited to, attorneys' fees, investigators' fees, litigation expenses, settlement payments, and amounts paid in satisfaction of judgments. Any and all lawsuits or administrative actions brought or threatened on any theory of relief available at law, in equity or under the rules of any administrative agency shall be covered by this Section including, but not limited to, the theories of intentional misconduct, negligence, breach of statute of ordinance, or upon any theory created by any statute or ordinance, state or federal. (Exhibit A.) 10. During his deposition, plaintiff testified that his claims are based on alleged

conditions at the Plant. Q: But again, just so we are on the same page on a moving-forward basis, all of these alleged exposures that you are complaining about occurred at the Chemical Lime plant; correct? A: Yes.

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PROFESSIONAL CORPORATION P HOENIX

Q: In other words, it wasn' your work in San Bernardino t that you contend made you ill in some manner, and that is at issue in this case? A: I believe that the lime dust exposure and the coal and coke dust exposure from Chemical Lime is what has hurt me more than anything else. Q: Okay. And all of those claims arise out of the exposures that occurred at the Chemical Lime plant; correct? A: Yes.

(Schrum Deposition, pg. 64, ls. 3-17, attached as Exhibit B.) 11. BNSF provided written notice of its tender of defense to Chemical Lime.

s (See Declaration of Sal J. Rivera in support of BNSF' Motion for Summary Judgment, attached as Exhibit C.) 12. By letter dated March 15, 2005, BNSF' counsel provided Chemical Lime s

with written notice of the lawsuit and tendered its defense to Chemical Lime. (Exhibit C, ¶ 4.) 13. Chemical Lime responded that it would not be accepting the tender at that

time. (Exhibit C, ¶ 5.) 14. By letter dated April 28, 2005, counsel for BNSF again tendered its defense

to Chemical Lime and provided Chemical Lime with a copy of the Track Agreement. (Exhibit C, ¶ 6.) 15. To date, Chemical Lime has not accepted BNSF' tender of defense. s

(Exhibit C, ¶ 7.) /// /// /// ///
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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

DATED this 17th day of January, 2006. FENNEMORE CRAIG, P.C.

By s/Melissa W. Rawlinson William L. Thorpe Sal J. Rivera Melissa W. Rawlinson Attorneys for BNSF

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

CERTIFICATE OF SERVICE I hereby certify that on January 17, 2006, I electronically transmitted the attached document to the Clerk' Office using the CM/ECF System for filing and s transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: George T. Brugess Hoey & Farina, P.C. 542 S. Dearborn, Suite 200 Chicago, IL 60605 Attorneys for Plaintiff Charles D. Onofry ReNae A. Nachman Schneider & Onofry, P.C. 3101 N. Central Ave., Ste. 600 Phoenix, AZ 85012 Attorneys for Third-Party Defendant Chemical Lime

I hereby certify that on January 17, 2006, I served the attached document by facsimile and U.S. mail on the following, who are not registered participants of the CM/ECF System: William D. Black One East Camelback Road Suite 630 Phoenix, Arizona 85012-1658

s/Melissa W. Rawlinson

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