Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Harsco Corp. v. CSX Transportation, Inc.

Supreme Court of West Virginia

September 1, 2017

Harsco Corporation, Plaintiff Below, Petitioner
v.
CSX Transportation, Inc., Defendant Below, Respondent

         (Wood County 11-C-425)

          MEMORANDUM DECISION

         Petitioner Harsco Corporation, by counsel James S. Crockett, Jr., and Rebecca D. Stevenson, appeals the Circuit Court of Wood County's January 29, 2015, order denying petitioner's motion for summary judgment; the November 5, 2015, order awarding respondent attorney's fees and expenses on its claim for indemnity against petitioner; and the June 21, 2016, final judgment order. Respondent CSX Transportation, Inc., by counsel Marc E. Williams, Melissa Foster Bird, and Megan Basham Davis, filed a response in support of the circuit court's order. Petitioner filed a reply. Petitioner argues that the circuit court erred in denying petitioner's motion for summary judgment and in its award of pre-judgment interest and attorney's fees to respondent.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, we find that the circuit court did not err with respect to its denial of petitioner's motion for summary judgment or its award of pre-judgment interest and attorney's fees to respondent. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21(d) of the Rules of Appellate Procedure.

         The parties herein are successors in interest to an August 1, 1987, private road crossing agreement ("Crossing Agreement") governing the use of a railroad crossing near the American Electric Power ("AEP") coal-fired power plant in Relief, Ohio. In 1987, petitioner's predecessor submitted the winning bid to AEP for removal of materials from a cooling pond, near the AEP plant, and transport of these materials to another location for cleaning and processing. The parties agree that their claims sub judice arise from the interpretation of the duties and responsibilities of the parties with respect to maintenance of the railroad crossing following a February 1, 2009, train derailment.

         The Crossing Agreement between the parties herein contained the following relevant provisions:

4.1 Crossing (including the necessary appurtenances, approaches, roadway, curbs, gutters, shoulders, slopes, fills and cuts and drainage thereof) shall be constructed and maintained at the sole cost and expense of Licensee.
4.2 Because of Railroad's labor agreements, all construction and maintenance[1] work to be performed on that portion of said Crossing[2] between the rails of said track(s) and for two feet (2') on the outside of each rail thereof, and all work on Railroad's signal and communication facilities deemed necessary by Railroad to permit Licensee's use of Crossing, must be performed by Railroad, at the sole cost and expense of Licensee.
4.5 Licensee, at its sole cost and expense, shall maintain all approachways, and shall keep the Crossing at all times free and clear of all spilled materials, ice, snow, mud, debris and all other obstructions (including parked vehicles) to satisfaction of the Railroad.
14.2 Licensee . . . assumes all liability for, and releases and agrees to defend, indemnify, protect and save Railroad harmless for and against:
(B) all loss and damage on account of injury to or death of any and all person (including but not limited to employees, invitees and patrons of the parties hereto) on the Crossing or adjacent thereto . . .

         From the time it secured its predecessor's interest in 1999, until the 2009 derailment, petitioner performed no direct maintenance or cleaning on the portion of the crossing between the rails of the tracks and for two feet on the outside of each rail. In the early morning hours of February 1, 2009, a locomotive pulling a CSX train derailed on the crossing at issue. The derailment allegedly occurred due to the accumulation of snowfall on the crossing and the surrounding area. As a result of the derailment, CSX train conductor Allen Waybright was injured. Respondent cleaned up the area following the derailment and put the locomotive back on the tracks without contacting petitioner.

         On September 21, 2011, Mr. Waybright filed a lawsuit against petitioner, in the Circuit Court of Wood County, for his injuries allegedly related to the February 1, 2009, derailment. In his complaint, Mr. Waybright alleged that the condition of the crossing caused the derailment and, consequently, his injuries. Thereafter, on November 17, 2011, respondent's counsel wrote to petitioner's counsel requesting that petitioner, pursuant to the Crossing Agreement; accept the defense of respondent with respect to claims brought by Mr. Waybright relating to the February 1, 2009, derailment. Petitioner refused the tender of defense and argued that maintenance of the portion of the crossing where the derailment occurred was not petitioner's responsibility under section 4.2 of the Crossing Agreement. Consequently, respondent filed a third-party action against petitioner in the Waybright case. Respondent settled the claims of Mr. Waybright on May 5, 2013, for $200, 000.

         The parties filed corresponding motions for summary judgment. In its motion for summary judgment petitioner advanced three arguments. First, petitioner alleged that it was entitled to summary judgment due to the application of an Ohio anti-indemnity statute, Ohio R.C. § 2305.31. Second, petitioner argued that the area where the derailment occurred was not part of the crossing and, thus, not its responsibility to maintain. Third, petitioner alleged that respondent's own fault defeated its implied indemnity claim. At an October 15, 2013, pre-trial conference hearing, the circuit court discussed the outstanding motions and requested additional briefing by the parties. In response, petitioner filed a supplemental motion for summary judgment and argued that the parties' agreement was clear and unambiguous. Petitioner argued that maintenance for the portion of the crossing where the derailment occurred was subject to respondent's labor union agreement, as noted in paragraph 4.2 of the Crossing Agreement. Specifically, petitioner alleged that the labor union language in paragraph 4.2 of the agreement created a specific and explicit exception to the maintenance obligations that the Crossing Agreement otherwise placed upon petitioner. Respondent opposed the motion and argued that the word maintenance in the Crossing Agreement did not include cleaning of the tracks, which was the responsibility of petitioner.

         By order dated January 29, 2015, the circuit court denied petitioner's motion and found that genuine issues of material fact existed as to whether the derailment occurred at the crossing, and how the word "maintenance" was defined in the parties' agreement and through application. Three days prior to trial, the circuit court advised the parties, by letter, of the court's intent to discuss paragraph 4.5 of the Crossing Agreement and whether it imposed an obligation upon petitioner, in light of the restrictions in paragraph 4.2 of the Crossing Agreement. On the first day of trial, prior to jury selection, the court, after hearing the additional arguments of counsel, ruled that paragraph 4.5 of the Crossing Agreement specifically ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.