Railroad Legal Issues and Resources (2015)

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

39 3. State Requirement of a Manned Caboose Held Not to Violate the 316 Commerce Clause or the Contracts Clause Although in 1986 the Eighth Circuit held in Burlington N. R. Co. v. Nebraska154 that the requirement that railroads have a manned caboose did not violate the Constitution’s Commerce and Contract Clauses, the same circuit held in 1989 that FRA regulations preempted the Minnesota manned-caboose law.155 D. Violation of the Fourth Amendment by a Railroad Security Officer 318 Acting Under Color of State Law In George v. CSX Transp. Inc.,156 in which the plaintiffs were stopped by a CSX police officer who detained the plaintiffs for an hour before releasing them, a federal district court in New York held that because the officer was acting under color of state law there was no violation of the Fourth Amendment and dismissed the remaining claims. XII. CONSTRUCTION CONTRACTS 320 A. Introduction 320 This part of the digest discusses statutes, cases, and an article on construction contracts involving railroads. Sections B through D describe three state statutes pertinent to railroad construction contracts. Sections E through J discuss holdings in recent cases on contractual indemnification of a railroad and other issues. Section K discusses an article on indemnity clauses under Virginia law. Statutes 320 B. Lien on Railroad Property by Reason of a Construction Contract 320 A Tennessee statute provides that in certain circumstances a person or company may acquire a lien on railroad property.157 154 802 F.2d 994, 996–97 (8th Cir. 1986). 155 Burlington N. R. Co. v. Minnesota, 882 F.2d 1349 (8th Cir. 1989). 156 2014 U.S. Dist. LEXIS 10324, at *1, 4–5 (E.D.N.Y. 2014). 157 TENN. CODE § 65-10-101 (2014).

40 C. Authority of a Railroad Company to Change the Grade of Existing 321 Tracks or to Construct New Tracks A New Jersey statute provides when a municipality may enter a contract with a railroad company to construct tracks, bridges, or facilities and share the cost thereof as agreed between them.158 D. Authorization Under State Law to Enter into Contracts with 321 Railroad Companies for the Construction of Grade Crossings or Tracks A South Carolina statute authorizes the South Carolina Department of Transportation to enter into agreements with “railroad companies for the construction, reconstruction, or modifications of railroad-highway grade separation crossings or track or other property rearrangement.”159 Cases 322 E. Indemnity of a Railroad Company Under a Construction Contract 322 for an Injury to an Employee During Construction In Brown v. Baltimore & Ohio Railroad Co.,160 the county of Baltimore and the Baltimore and Ohio Railroad Company (B&O) had an agreement permitting the county to construct a sewer pipe under a railroad track. The Fourth Circuit held that a Maryland statute did not void the indemnity clause because “the statute was not intended to apply to licensors or easement grantors such as the B&O who enter into railroad crossing indemnity agreements of this type.”161 F. Whether a Contract with a Railroad to Paint a Bridge Is a 323 Construction Contract In Kurtin v. Nat’l Passenger R.R. Corp.,162 a federal district court in New York held that the term “construction” should be given its normal meaning; thus, a contract for the painting of a bridge was not a construction contract within the meaning of an insurance policy. 158 N.J. STAT. ANN. § 48:12-79 (2014). 159 S.C. CODE § 57-5-1640 (2014). 160 805 F.2d 1133 (4th Cir. 1986). 161 Id. at 1141–42 (footnote omitted). 162 887 F. Supp. 676, 680, 681 (S.D.N.Y. 1995).

41 G. Whether Indemnity Provisions Are Against Public Policy 324 In S. Pac. Transp. Co. v. Sandyland Protective Ass’n,163 a California appellate court held that responsibility could not be shifted to the Sandyland Protective Association for the railroad’s negligence because the intent of the statute in question was that a non-negligent party to a construction contract would not be held liable for the other party’s negligence. H. Conflict Between a Public Policy Against Indemnity Agreements 325 in Construction Contracts and a Public Policy in Favor of a Railroad’s Ability to Grant Easements In Helm v. W. Md. Ry. Co.,164 the Fourth Circuit affirmed a district court’s decision that an indemnity provision was void under a Maryland statute that voids indemnity agreements in certain construction contracts to prevent the indemnification of a promisee for injury and liability caused by the promisee’s negligence. I. Railroad’s Liability for Active Interference with a Contractor 327 In U.S. Steel Corp. v. Mo. Pac. R.R. Co.,165 the Eighth Circuit held that Missouri Pacific actively interfered with the performance of a contract by the American Bridge Division of United States Steel for work on a bridge; thus, the no damage clause in the contract was unenforceable. J. Interpretation of an Indemnity Provision Determined by the 328 Contract’s Choice of Law Provision In Wallace v. Amtrak,166 a federal district court in New York, applying District of Columbia law, held that Weeks Marine, Inc. (Weeks), which had a contract with Amtrak, was responsible for any claim brought by an employee of Weeks because under District of Columbia law a party may be indemnified under a contract regardless of the party’s negligence. Article 329 K. Indemnity Clauses and Public Policy Under Virginia Law 329 A law review article on developments in construction law in Virginia discusses a case that involved a railroad company in which the Supreme Court of Virginia held that an owner 163 224 Cal. App.3d 1494, 1498, 274 Cal. Rptr. 629 (Cal. Ct. App. 1990). 164 838 F.2d 729, 730, 731 (4th Cir. 1988) (citing MD. CODE ANN., CTS. & JUD. PROC. § 5-305). 165 668 F.2d 435, 439 (8th Cir. 1981). 166 2014 U.S. Dist. LEXIS 36346, at *1, 61, 71–72 (S.D.N.Y. Mar. 18, 2014).