United States District Court, D. Montana, Missoula Division
L. CHRISTENSEN, UNITED STATES DISTRICT CHIEF JUDGE.
the Court is Third Party Defendant Safe IPs motion for
summary judgment. For the reasons explained below, the Court
denies the motion.
and Procedural History
case involves TKDA's alleged duty to indemnify BNSF for
claims arising out of an accident that occurred in 2011
involving a BNSF employee who was injured while working on a
fuel unloading dock at the BNSF railroad yard in Whitefish,
Montana. On August 23, 2001, BNSF and TKDA entered into a
nonexclusive contract in which TKDA agreed to provide
engineering services necessary for the completion of work
defined by BNSF (hereafter referred to as the "2001
Agreement"). (Doc. 27-1). Pursuant to the 2001
Agreement, TKDA was to indemnify and hold BNSF harmless for
"any claims arising from the performance of th[e]
Agreement." The contract also included the following
choice of law provision: "All questions arising under
this Agreement shall be decided according to the laws of the
State in which the work is performed." (Doc. 27-1 at
11.) The 2001 Agreement was renewed in 2003, 2004, 2005,
2006, 2008, and January 21, 2009, which was the final renewal
of the 2001 Agreement. (Docs. 39-1, 39-2, 39-3, 39-4, 39-5,
2002, pursuant to the 2001 Agreement, TKDA agreed to engineer
a fuel unloading facility at the BNSF railway yard in
Whitefish, Montana. TKDA contracted to provide an elevated
walkway for top-unloading tank cars with retractable gangways
and new fuel unloading arms at the two tank car unloading
locations. TKDA purchased supply equipment for the two
gangway platforms from Safe I. These platforms were designed
to allow BNSF employees to access the tops of tank cars and
had an integrated fall protection system that would retract
with the walkway in order to provide a safety barrier.
remaining facts regarding the contractual relationship
between BNSF and TKDA will not be restated here, since the
Court has already ruled on that issue in its previous order
on BNSF and TKDA's cross motions for summary judgment.
(See Doc. 75.) The Court found that TKDA was still
liable because the indemnity clause in the contract between
BNSF and TKDA was valid and enforceable. Here, Safe II argues
that it is entitled to summary judgment on all claims because
the undisputed facts show that Safe II had no contract with
TKDA and is not liable in tort for common law contribution or
indemnity as it relates to TKDA's responsibilities to
indemnify BNSF in the underlying personal injury case.
is no longer in existence because of a judicial foreclosure
by one of its creditors, National Loan Investors, L.P.
("NLI"). NLI was the successful bidder at the sale
for the assets, plant, and equipment of Safe I. NLI's bid
and interest was then assigned and sold in 2007 to
Southeastern Realty, LLC, which, in turn, leased the assets,
plant, and equipment and intangibles to Safe II after it was
formed in May 2007. Thus, TKDA and Safe II are disputing
whether Safe II assumed the contract and indemnity
liabilities of Safe I.
is entitled to summary judgment if it can demonstrate that
"there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). Summary judgment is warranted where the
documentary evidence produced by the parties permits only one
conclusion. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251 (1986). Only disputes over facts that might
affect the outcome of the lawsuit will preclude entry of
summary judgment; factual disputes that are irrelevant or
unnecessary to the outcome are not considered. Id.
at 248. In ruling on a motion for summary judgment, a court
must view the evidence "in the light most favorable to
the opposing party." Tolan v. Cotton, 134 S.Ct.
1861, 1866 (2014) (quoting Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970)). "[T]he evidence of
the nonmovant is to be believed, and all justifiable
inferences are to be drawn in his favor." Id.
at 1863 (quoting Anderson, 477 U.S. at 255).
jurisdiction over this action is founded upon diversity of
citizenship, the Court applies the substantive law of
Montana, the forum state. Medical Laboratory Mgmt.
Consultants v. American Broadcasting Cos., Inc., 306
F.3d 806, 812 (9th Cir.2002). "The task of a federal
court in a diversity action is to approximate state law as
closely as possible in order to make sure that the
vindication of the state right is without discrimination
because of the federal forum." Gee v. Tenneco,
Inc., 615 F.2d 857, 861 (9th Cir.1980). Federal courts
"are bound by the pronouncements of the state's
highest court on applicable state law." Appling v.
State Farm Mutual Auto. Ins. Co., 340 F.3d 769, 778 (9th
Cir.2003) (quoting Ticknor v. Choice Hotels Int'l,
Inc., 265 F.3d931, 939 (9th Cir.2001)).
opening brief, Safe II argues that (1) Safe II and TKDA never
contracted together so there can be no breach of contract,
(2) there is no proof by TKDA that Safe II ever assumed the
contractual liabilities of Safe I, (3) Safe II cannot be a
joint tortfeasor for any underlying tort action because Safe
II was not in existence at the time the gangways were
installed, and (4) Safe II cannot be liable because of the
statute of repose. In its response, TKDA contends that Safe
II impliedly assumed the contract-based liabilities of Safe I
and is therefore liable for indemnification. Even if Safe II
did not assume the contractual liabilities of Safe I, TKDA
asserts that Safe II is liable under agency and identity
theories and also liable for successor liability based on the
continuity of enterprise theory. Finally TKDA argues that the
statue of repose does not apply because of the existence of a
written contract between Safe I and TKDA.
Court will address each theory of liability separately below.
Whether Safe II Impliedly Assumed Contractual ...