Norfolk Southern Railway Company v. Tobergte et al

Filing 75

OPINION AND ORDER: Dft Hall's 52 Motion for Partial Summary Judgment is DENIED. Recognizing that Defendant Hall may have suffered certain costs as a result of Plaintiff's confusing and inconsistent conduct, the Court will take under consideration any appropriate motion for sanctions, should one be filed. Signed by Judge Karen K. Caldwell on 4/18/2020. (STC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
NORFOLK SOUTHERN RAILWAY
COMPANY,

CIVIL NO. 5:18-207-KKC-MAS

Plaintiff,
V.

OPINION AND ORDER

KEVIN TOBERGTE and
ANDREW HALL,
Defendants.

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This matter is before the Court on Defendant’s motion for partial summary judgment.
Plaintiff Norfolk Southern Railway Company brought suit in this Court against Defendants
Kevin Tobergte and Andrew Hall. (DE 1.) The Court denied Defendants’ motions to dismiss,
and the case proceeded to discovery. (DE 21; DE 24.) Defendant Hall filed the motion for
partial summary judgment as to Count II of the Complaint. (DE 52.) For the reasons stated
below, the Court denies Defendant’s motion.
Background
On March 18, 2018, two of Plaintiff’s trains collided and derailed near Georgetown,
Kentucky. (DE 52 at 2.) Defendants Tobergte and Hall were, respectively, the locomotive
engineer and conductor on board southbound train No. 175, one of the trains involved in the
collision. (DE 1 at 2; DE 52 at 2.) On April 5, 2018, Plaintiff filed a complaint in this Court,
seeking “Liability for Damage to Plaintiff’s Property” in Count I and “Indemnity for Third
Party Property Damage” in Count II. (DE 1.) Count II alleges, in part, that “[a]s a direct and
proximate result of Defendants’ negligence, third parties sustained significant damages,
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including but not limited to damages to the property of adjacent land owners, and damages
to Plaintiff’s customers in the form of lading and losses associated with delayed shipment of
freight.” (DE 1 at 4-5.) On December 10, 2018, the Court denied Defendants’ motions to
dismiss. (DE 21.)
On July 19, 2019, during the course of discovery, Plaintiff responded to Defendant
Hall’s Interrogatory No. 191 with the following: “Norfolk Southern will waive any claim to
collection of Third Party Settlements as part of their suit against defendants.” (DE 52-2 at
6.) In follow-up, counsel for Defendant Hall requested that Plaintiff either respond in
substance to Interrogatory No. 19 or amend the complaint to reflect the apparent waiver. (DE
52 at 4.) Plaintiff’s counsel responded on August 27, 2019, stating that Plaintiff “will waive
any claim for collection of payments made to third parties in connection with this action” and
that “because Norfolk Southern has stated in its written response to Interrogatory No. 19
that it expressly waives any claim for the collection of such payments in connection with this
action, Norfolk Southern’s response to Interrogatory No. 19 is complete.” (DE 52 at 4.)
Plaintiff did not amend the complaint.
On October 4, 2019, Defendant Hall filed a motion for partial summary judgment
pursuant to FED. R. CIV. P. 56. (DE 52.) He argues that “it is undisputed that Norfolk
Southern has waived ‘any claim’ seeking the recovery of third-party payments that Norfolk
Southern has made in connection with the collision” against Defendant Hall and that
“Defendant Hall is entitled to judgment as matter of law on Count II of the Complaint
pursuant to his affirmative defense of waiver.” (DE 52 at 1.)

In Interrogatory No. 19, Defendant requested: “For each payment that the Plaintiff has made to a
third party relating to property damage sustained in the collision, state the name and address of the
person(s) issuing and approving such payment, payee, the form of the payment, the date of the
payment, the amount of the payment and the specific property and damage giving rise to the payment.”
(DE 52-2 at 6.)
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After Defendant Hall filed the motion for partial summary judgment, Plaintiff
amended its response to Interrogatory No. 19, stating that –
Norfolk Southern will waive any claim to collection of
payments or settlements made to third party owners of real
property whose land was allegedly damaged in connection with
the collision in suit. Norfolk Southern will likewise waive any
claim to collection of payments or settlements made to Norfolk
Southern’s customers in the form of lading and losses associated
with delayed shipment of freight as a result of the collision in
suit.
Separate and apart from the above-described damages
which have been or may be claimed by third parties, Norfolk
Southern has paid certain settlements to third party owners of
rail equipment damaged or destroyed in connection with the
collision in suit. The amounts paid for destroyed rail equipment,
the identity of the third parties to whom those settlements were
made, and the specific property and damage giving rise to those
settlements, are set forth in Exhibit 2 to the September 27, 2019
deposition of Christopher Shorts…
(DE 60-4 at 2 (emphasis added).)
Analysis
I. Standard
Summary judgment is appropriate “if the movant shows 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). The moving party bears the initial burden and must identify “those
portions of the [record] which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citation and internal
quotation marks omitted). All evidence, facts, and inferences must be viewed in favor of the
non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). “In order to defeat
a summary judgment motion… [t]he nonmoving party must provide more than a scintilla of
evidence,” or, in other words, “sufficient evidence to permit a reasonable jury to find in that
party’s favor.” Van Gorder v. Grand Trunk W. R.R., Inc., 509 F.3d 265, 268 (6th Cir. 2007)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
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II. Discussion
Waiver is the “voluntary relinquishment or abandonment – express or implied – of a
legal right or advantage.” Waiver, BLACK’S LAW DICTIONARY (11th ed. 2019). This concept
operates in a variety of statutory and common law contexts. “The term waiver is one of those
words of indefinite connotation in which our legal literature abounds; like a cloak, it covers a
multitude of sins.” Id. (quoting William R. Anson, Principles of the Law of Contract 419
(Arthur L. Corbin ed., 3d Am. ed. 1919)) (emphasis in original). Yet, none of the case law
which Defendant Hall cites establishes that, as a matter of law, waiver can operate in the
specific way that his motion envisions2 – to empower this Court, pursuant to the Federal
Rules of Civil Procedure, or some other appropriate authority, to strike a count from a
plaintiff’s complaint.
Defendant Hall was justifiably perplexed by Plaintiff’s apparent waiver of third party
claims in response to an interrogatory and its unwillingness to amend the complaint
consistent therewith. In other words, Plaintiff appeared to say one thing and do another.
While Plaintiff’s conduct is indeed contradictory and confusing, the record before the
Court does not provide a sufficient basis for summary judgment and dismissal of a properly
pleaded claim.
If Plaintiff wishes to amend is complaint (DE 60 at 8-9), it should do so by filing an
appropriate motion in compliance with all applicable local and federal procedural rules.3

E.g., Harris Bros. Constr. Co. v. Crider, 497 S.W.2d 731, 733 (Ky. 1973) (“waiver of the right to plead
limitations”); Edmondson v. Pa. Nat’l Mut. Cas. Ins. Co., 781 S.W.2d 753, 755 (Ky. 1989) (“Waiver…
as applied to contracts of insurance”); Garmeada Coal Co. v. Int’l Union of United Mine Workers of
America, 122 F. Supp. 512, 516 (E.D. Ky. 1954) (whether “waiver was supported by an agreement
founded upon a valuable consideration.”); Herndon v. Wingo, 404 S.W.2d 453, 454 (Ky. 1966) (“waiver
of jurisdiction”); Vidal v. Commonwealth, 2015-SC-000167-MR, 2017 WL 636417, at *9 (Ky. Feb. 16,
2017) (waiver as an unpreserved error on appeal).
3 “A plaintiff who wishes to drop some claims but not others should do so by amending his complaint
pursuant to Rule 15.” 9 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 2362 (3d ed. 2008); see also Cox v. Blue Cross Blue Shield of Mich., 166 F. Supp. 3d 891,
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Otherwise, as Joint Local Rule of Civil Practice 37.1 reflects, the Court will presume that the
parties will work together in good faith to resolve any discovery related disputes.
Conclusion
Accordingly, the Court hereby ORDERS that Defendant Hall’s motion for partial
summary judgment (DE 52) is DENIED. Recognizing that Defendant Hall may have suffered
certain costs as a result of Plaintiff’s confusing and inconsistent conduct, the Court will take
under consideration any appropriate motion for sanctions, should one be filed.
Dated April 18, 2020

900 n.6 (E.D. Mich. Sept. 10, 2015) (“a request for leave to amend within a responsive brief is not
sufficient to properly place the issue of amendment before a district court”) (citing Begala v. PNC Bank,
Ohio, Nat’l Ass’n, 214 F.3d 776, 784 (6th Cir. 2000)).

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