Ball et al v. Norfolk Southern Railway Company et al

Filing 61

OPINION AND ORDER granting 56 MOTION to Dismiss Count V of Plaintiffs' Amended Complaint filed by Professional Transportation Inc and 40 MOTION for Summary Judgment filed by Norfolk Southern Railway Company, Professional Transportation Inc, Maureen Aldrich. ***Civil Case Terminated. Signed by Judge William C Lee on 1/9/2012. (kds)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JAMES BALL and ANGELA BALL,

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Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY
COMPANY, et al.,
Defendants.

CIVIL NO. 3:10cv177

OPINION AND ORDER
This matter is before the court on a motion for summary judgment filed by defendants
Norfolk Southern Railway Company (“NSRC”), Professional Transportation, Inc. (“PTI”), and
Maureen Aldrich (“Aldrich”), on August 30, 2011. The plaintiffs, James Ball and Angela Ball,
filed their response on October 25, 2011, to which the defendants replied on November 8, 2011.
Also before the court is a motion to dismiss Count V of the complaint, filed by the
defendant PTI on October 28, 2011. The plaintiffs filed their response on November 14, 2011,
to which PTI replied on November 21, 2011.
For the following reasons, both the motion for summary judgment and the motion to
dismiss will be granted.
Summary Judgment
Summary judgment must be granted when “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). A genuine
issue of material fact exists when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Not every dispute between the parties precludes summary judgment, however, since “[o]nly

disputes over facts that might affect the outcome of the suit under the governing law” warrant a
trial. Id. To determine whether a genuine issue of material fact exists, the court must construe all
facts in the light most favorable to the non-moving party and draw all reasonable inferences in
that party’s favor. Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003). A party opposing a properly
supported summary judgment motion may not rely merely on allegations or denials in its own
pleading, but rather must “marshal and present the court with the evidence she contends will
prove her case.” Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010).
Discussion
On May 8, 2008, plaintiff James Ball was a passenger in a van driven by PTI employee
Maureen “Mo” Aldrich. While the PTI van was at the intersection of U.S. 33 and S.R. 19 in the
city of Elkhart, Indiana, it was struck from behind by a vehicle driven by defendant, Ryan
Konrath. James Ball claimed injuries as a result of the collision and on May 5, 2010, he filed
suit along with his wife, Angela Ball, against the above named defendants. The plaintiffs’
complaint asserts claims based on the Federal Employers’ Liability Act (“FELA”), negligence,
consortium and breach of contract. The defendants are seeking summary judgment on the
FELA, negligence, and consortium claims, and are seeking to dismiss the breach of contract
claim.
On May 8, 2008, James Ball was a passenger in a van driven by Maureen Aldrich. Ms.
Aldrich was in the employ of PTI as she drove James Ball and another passenger, Mike Bowen,
on May 8, 2008. James Ball was employed by NSRC and was within the scope of his
employment. Ms. Aldrich was eastbound on U.S. 33 approaching the intersection with SR 19.
The light was red for eastbound U.S. 33 and Ms. Aldrich entered a merge lane intending to head

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southbound on SR 19. Entry to southbound S.R. 19 at its intersection with U.S. 33 is controlled
by a yield sign. While the PTI van was at the intersection of U.S.33 and S.R. 19 in Elkhart,
Indiana and yielding to oncoming traffic which was southbound on SR 19 it was struck from
behind by a vehicle which was driven by Ryan Konrath. When the PTI van was struck, Ms.
Aldrich was stopped and yielding to oncoming traffic as required by signage at the intersection
and Indiana’s traffic laws. Mike Bowen did not observe any actions by Ms. Aldrich which he
would consider contrary to the rules of the road. Investigators from the Elkhart County Sheriff’s
Department determined that Ryan Konrath’s actions in following the PTI vehicle too closely
were the primary and sole cause of the accident at issue. Ryan Konrath, driving the vehicle
approaching the PTI vehicle from behind, admitted that he looked away from the PTI vehicle to
check for oncoming traffic and then struck the stopped PTI vehicle. Mr. Konrath verbally
admitted to Ms. Aldrich that he did not see her van and also stated that the accident was his fault.
The defendants seek summary judgment because the designated evidence shows that the
PTI van was stopped and yielding to oncoming traffic when it was struck behind by Ryan
Konrath, who has admitted the accident was his fault.1 In fact, the certified accident report for
this matter states that Ryan Konrath was following the PTI vehicle too closely and this was the
sole cause of the accident.
The plaintiffs base their case on James Ball’s assertion that Ms. Aldrich made a sudden
and unexpected stop which caused the accident. The plaintiffs believe the case should go to a
jury so that the jury can determine whether Ms. Aldrich was partly at fault. However, the

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Defendant Ryan Konrath has never appeared in this matter despite having received
service of process.
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uncontroverted evidence in this case (Mr. Bowen’s affidavit, the certified police report, and Ms.
Aldrich’s testimony) shows that Ms. Aldrich was in a yield lane with approaching traffic, that
she did stop for traffic, and that Konrath was not looking when he hit the Aldrich vehicle. If a
car is in a yielding merge lane, and traffic is approaching, a stop for oncoming traffic cannot be
characterized as “sudden and unexpected”. Clearly, a jury could not find negligence in this case
as the driver merely refused to enter into an intersection thought to be unsafe. The plaintiffs have
cited cases for the proposition that “negligence is not assumed in a rear-end collision.” See
Skinner v. Pennsylvania Greyhound Lines, Inc., 123 F.2d 497 (7th Cir. 1941); Kraklau v.
Bayman, 318 F.2d 400, 402 (7th Cir. 1963). However, the case at bar is clearly distinguishable
because Konrath has conceded he was solely at fault, and thus there is no need for a jury to
apportion fault between the parties. As there is no genuine issue in dispute to support a
negligence, FELA, or consortium claim, the motion for summary judgment will be granted.
The court will now turn to the motion to dismiss. In Count V of the complaint, James
Ball asserts that he is a third-party beneficiary of the “Crew Transportation Agreement” between
PTI and NSRC. The plaintiffs allege that PTI failed to provide uninsured motorist coverage to
NSRC crew members as required by the Agreement. The question before the court is whether
James Ball has standing to bring an action for an alleged breach of the Crew Transportation
Agreement, bypassing the arbitration process that is set forth in the Agreement. James Ball
claims that this issue was resolved when Magistrate Judge Nuechterlein granted plaintiffs’
motion requesting leave to file the First Amended Complaint. Specifically, Judge Nuechterlein
held that Count V is not futile because it states a valid theory of liability, namely, the assertion of
third party rights under an insurance contract. Judge Nuechterlein further held that Jim Ball had

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the right to bring a breach of contract claim against PTI because under Indiana law a third party
beneficiary may sue the insurer directly to enforce a contract between the insurer and the
insured.
However, as PTI points out, the contract at issue is not an insurance contract, but rather a
transportation contract between PTI and NSRC. Clearly, a procedural decision to allow an
amendment of a claim does not equate to a decision that the plaintiffs have stated a claim upon
which relief might be granted. The contract at issue clearly states that any claim arising out of
the Agreement shall be resolved by binding arbitration. The plaintiffs contend that before this
court can dismiss their breach of contract claim a determination must be made that James Ball is
a third-party beneficiary of the contract. However, again, the determination of duties and
obligations under the contract is, per the language of the Agreement evidencing the parties’
intent, reserved for the arbitrator. If the arbitrator finds that James Ball is not entitled to arbitrate
the alleged breach of contract, then he may seek to institute legal proceedings to enforce the right
he believes he has to arbitrate the matter, but he may not institute legal proceedings to have any
duties or obligations determined related to the contract. (See Agreement at 11.3.3 stating
“Neither party shall institute any legal proceeding against the other to enforce any right
hereunder for breach hereof, except that either party may institute litigation (I) to enforce its
rights to arbitration....”). See Sauer-Getriere, K.G. v. White, 715 F.2d 348 (7th Cir. 1983).
Although the plaintiffs continue to rely on cases that have held that a third-party beneficiary of
an insurance contract may sue an insurer directly, it is undisputed that PTI is not an insurer and
thus the plaintiffs’ cases are inapposite to the case at hand.
It is undisputed that at no time have the plaintiffs sought arbitration in this matter.

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Rather, the plaintiffs assert that PTI must concede that the plaintiffs are entitled to certain rights
or status in connection with the contract before arbitration may commence. However, it is the
law in the Seventh Circuit that unambiguous arbitration provisions must be enforced. Clearly,
had NSRC brought a breach of contract claim related to the Agreement, NSRC would be
required to submit the matter to arbitration as the parties agreed, with the arbitrator then deciding
the rights and obligations of the parties based on the language of the Agreement. Whether
James Ball has any rights under the Agreement is a matter in dispute, but he does not have any
greater contractual rights than NSRC. Therefore, if James Ball seeks to assert a breach of
contract claim, the issue of his standing to bring such a claim, as well as whether any breach
occurred, is a matter for arbitration. Accordingly, Count V will be dismissed.
Conclusion
Based on the foregoing, the motion for summary judgment [DE 40] is hereby
GRANTED. Further, the motion to dismiss [DE 56] is also hereby GRANTED.

Entered: January 9, 2012.

s/ William C. Lee
William C. Lee, Judge
United States District Court

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