Madden v. Antonov et al

Filing 88

MEMORANDUM AND ORDER - Antonov's motion to dismiss or strike (filing 61 ) is granted in part and denied in part: a. Antonov's motion to strike is denied in its entirety. Antonov's motion to dismiss is granted in part: BNSF is not entitled to an award of attorney fees incurred prosecuting its cross-claim as an element of damages under the tort-of-another doctrine. The remainder of Antonov's motion to dismiss is denied. Ordered by Judge John M. Gerrard. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RONALD D. MADDEN,
Plaintiff,

4:12-CV-3090

vs.
MEMORANDUM AND ORDER
ANTON ANTONOV & AV
TRANSPORTATION, INC., and
BNSF RAILWAY COMPANY,
Defendants.
This case arises from a collision between a train belonging to BNSF
Railway Company and conducted by plaintiff Ronald D. Madden, and a truck
driven by defendant Anton Antonov for AV Transportation (collectively,
"Antonov"). This matter is before the Court on Antonov's motion to dismiss or
strike (filing 61) portions of BNSF's cross-claim (filing 33). For the reasons
discussed below, the Court will deny Antonov's motion.
BACKGROUND
The following facts are drawn from Madden's operative complaint
(filing 18) for background purposes only. On February 15, 2012, Madden was
conducting a BNSF locomotive, heading toward a railroad crossing in Custer
County, Nebraska. Filing 18 at ¶ 5. At that time, a large grain silo facility
was being built adjacent to the railroad crossing. Filing 18 at ¶ 17–18. The
facility was being built by BNSF together with The Andersons, Inc.1
As the train being conducted by Madden was heading toward the
crossing, Antonov's truck was crossing the tracks. Filing 18 at ¶ 5. Antonov
was hauling a piece of large equipment, and although his truck made it
across the tracks in time, his trailer did not, and it was struck by the train.
Madden suffered serious injuries as a result of the collision. Filing 18 at ¶ 5.
Madden brings state common law negligence claims against Antonov,
and a claim against BNSF under the Federal Employers' Liability Act
(FELA), 45 U.S.C. § 51, et seq. Madden alleges that Antonov was negligent in,
In his operative complaint, Madden also named The Andersons as a defendant. See filing
18 at ¶¶ 3, 16–27. Madden's claims against The Andersons have since been dismissed,
without prejudice, pursuant to the parties' stipulation. Filings 58 and 59.
1

among other ways, failing to maintain a proper lookout and failing to stop at
the crossing. Filing 18 at ¶¶ 9–12. Madden's FELA claim alleges, among
other things, that BNSF failed to provide him with a reasonably safe place to
work. Filing 18 at ¶ 33. Madden also alleges that the layout of the crossing at
issue made it particularly dangerous, especially given the increased traffic
due to construction near the intersection. Filing 18 at ¶ 6. So, Madden claims,
BSNF should have taken steps to prevent this accident, such as
implementing a "slow order" for trains, placing better warning devices or
signs at the crossing, and coordinating with The Andersons or other
authorities to maintain a lookout or safety signal and to generally improve
safety at the crossing. Filing 18 at ¶ 33.
BNSF brings cross-claims against Antonov for negligence, equitable
indemnification, equitable subrogation, and contribution. Filing 33 at ¶¶ 35–
43. BNSF claims that it has incurred, and will continue to incur, damages in
the form of Madden's medical bills and in attorney fees and costs spent
investigating and defending Madden's claims. Filing 33 at 32–34, 40. In
addition to requesting an award of fees incurred in defending Madden's
claims, BNSF also seeks an award of fees spent prosecuting its cross-claim
against Antonov. In response, Antonov has moved to dismiss or strike
BNSF's claims for equitable indemnification and subrogation (but not its
claim for contribution), as well as both parts of BNSF's request for attorney
fees.
STANDARD OF REVIEW
I. Motion to Dismiss - Rule 12(b)(6)
A complaint must set forth a short and plain statement of the claim
showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). The
plaintiff (or here, cross-claimant) must plead factual content that allows the
Court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. Hamilton v. Palm, 621 F.3d 816, 817 (8th Cir. 2010). The
complaint need not contain detailed factual allegations, but must provide
more than labels and conclusions; and a formulaic recitation of the elements
of a cause of action will not suffice. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007).
The Court must assume the truth of the plaintiff's factual allegations,
and a well-pleaded complaint may proceed, even if it strikes a savvy judge
that actual proof of those facts is improbable, and that recovery is very
remote and unlikely. Id. at 555–57. In contrast to factual allegations, courts
are not required to accept as true a plaintiff's legal conclusions. Brown v.
Medtronic, Inc., 628 F.3d 451, 459 (8th Cir. 2010).

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To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a
complaint must contain sufficient factual matter, that if accepted as true,
states a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The facts alleged must raise a reasonable expectation
that discovery will reveal evidence to substantiate the necessary elements of
the plaintiff's claim. Twombly, 550 U.S. at 556.
II. Motion to Strike - Rule 12(f)
Antonov has also filed a motion to strike the same portions of BNSF's
cross-claim. The Court notes at the outset that this adds nothing to Antonov's
motion to dismiss under Rule 12(b)(6), and finds that the motion to strike
should be denied. Rule 12(f) provides that the Court may "strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent,
or scandalous matter." While the Court has considerable discretion to strike
pleadings under Rule 12(f), striking a party's pleading is an extreme and
disfavored measure. BJC Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 917
(8th Cir. 2007).
The matters Antonov seeks to strike—claims for indemnity or
subrogation and a request of attorney fees—are not defenses, and they are
not redundant, impertinent, or scandalous. Nor are these matters
immaterial. "Immaterial matter is that which has no essential or important
relationship to the claim for relief or the defenses being [pleaded]."
Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010).
Instead, Antonov's motion is simply an attempt to have portions of BNSF's
complaint dismissed as lacking a basis in law—but the proper vehicle for
such a challenge is a motion to dismiss or for summary judgment. Id. at 974–
75. As such, Antonov's motion to strike will be denied.
ANALYSIS
I. BNSF's Claim for Equitable Indemnification
Antonov first argues that BNSF fails to state a claim for equitable
indemnification under Nebraska law. Before turning to the specifics of
Antonov's several arguments, it will help to review the two basic frameworks
governing this claim: FELA and Nebraska indemnity law.
FELA makes a common carrier engaged in interstate commerce "liable
in damages to any person suffering injury while he is employed by such
carrier in such commerce, . . . for such injury or death resulting in whole or in
part from the negligence of any of the officers, agents, or employees of such
carrier . . . ." 45 U.S.C. § 51. FELA does not provide for apportionment of
damages among potentially liable tortfeasors—the employer will be held
entirely responsible, that is, jointly and severally liable, for the entire amount
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of the worker's damages. Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135,
161-62 (2003). So, an employee who suffers injury caused in whole or in part
by a railroad employer's negligence may recover his full damages from the
railroad, regardless of whether the injury was actually (or also) caused by the
negligence of a third party. Id. at 161, 165–66.
That said, FELA does not bar railroads from seeking indemnity from
third parties. Ellison v. Shell Oil Co., 882 F.2d 349, 353 (9th Cir. 1989); Ala.
Great S. R.R. Co. v. Chicago & N.W. Ry. Co., 493 F.2d 979, 983 (8th Cir.
1974). The purpose of FELA is to provide recovery for injured workers, and
this purpose is not defeated by permitting an employer to recoup its losses, in
part or in full, from third parties. Ellison, 882 F.2d at 353.
State law governs a railroad's right to recover indemnity or
contribution from a third party for liability incurred under FELA. 2 Ala. Great
S. R.R. Co., 493 F.2d at 983; see also Ayers, 538 U.S. at 162 & n.21. Both
parties agree that Nebraska law governs, because the accident underlying
this case occurred in Nebraska. See Johnson v. U.S. Fid. and Guar. Co., 696
N.W.2d 431, 438 (Neb. 2005) (citing Restatement (Second) of Conflict of Laws
§ 146 (1971)).
Under Nebraska law, indemnification is available when one party is
compelled to pay money which in justice another ought to pay or has agreed
to pay. Kuhn v. Wells Fargo Bank of Neb., 771 N.W.2d 103, 112 (Neb. 2009);
Warner v. Reagan Buick, Inc., 483 N.W.2d 764, 771 (Neb. 1992). Indemnity is
a form of restitution which shifts the entire liability from one legally
responsible party to another. Wells Dairy, Inc. v. American Indus.
Refrigeration, Inc., 762 N.W.2d 463 (Iowa 2009). Three types of indemnity are
generally recognized: express (or contractual), implied contractual (also
known as "implied-in-fact" indemnity), and equitable (also known as
"implied-in-law" indemnity). Kuhn, 771 N.W.2d at 119–20; Warner, 483
N.W.2d at 770; see also Schneider Nat'l., Inc. v. Holland Hitch Co., 843 P.2d
561, 573 (Wyo. 1992). Only the equitable variety is at issue in this case.
The doctrine of equitable indemnification, as its name suggests, is not
based on an implied contract, but finds its roots in principles of equity.
Warner, 483 N.W.2d at 770; City of Wood River v. Geer-Melkus Constr. Co.,
444 N.W.2d 305, 310 (Neb. 1989). Under this doctrine, where one party is
compelled to pay money which in justice another ought to pay, the former
may recover from the latter the sums so paid, unless the one making the
payment is barred by the wrongful nature of his conduct. Hiway 20 Terminal,
Inc. v. Tri-County Agri-Supply, Inc., 443 N.W.2d 872, 876 (Neb. 1989); see
also, Warner, 483 N.W.2d at 770; Geer-Malkus, 444 N.W.2d at 310.
The Court sees no reason to treat BNSF's claim for equitable subrogation different in this
regard, and will likewise evaluate that claim under Nebraska law.
2

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Nebraska recognizes what other jurisdictions have termed the "activepassive" theory of equitable indemnity. Wells Dairy, 762 N.W.2d at 471;
Myco, Inc. v. Super Concrete Co., Inc., 565 A.2d 293, 297–98 (D.C. 1989). This
variety of equitable indemnity rests upon a difference between the "primary"
(or active) and "secondary" (or passive) liability of two parties, each of whom
is made responsible by law to an injured party. Hiway 20 Terminal, 443
N.W.2d at 876. Such a situation may arise where one tortfeasor, by active
conduct, has created a danger to the plaintiff, and the other, passive
tortfeasor, has merely failed to discover or remedy the dangerous condition.
Id. at 877. So, equitable indemnity is available to a party who, without active
fault on its own part, has been compelled by reason of some legal obligation,
to pay damages occasioned by the initial negligence of another, and for which
the first is only secondarily liable. Id. Secondary liability is that which "rests
upon a fault that is imputed or constructive only, being based on some legal
relation between the parties, or arising from some positive rule of common or
statutory law . . . ." Duffy Bros. Const. Co., Inc. v. Pistone Builders, Inc., 299
N.W.2d 170, 172–73 (Neb. 1980).
Antonov first argues that there is no set of circumstances under which
BNSF could assert a viable claim for equitable indemnity. If BNSF is liable to
Madden under FELA, Antonov reasons, then BNSF was necessarily at fault,
and the wrongful nature of its conduct bars any indemnity claim.
Alternatively, if BNSF is not liable to Madden under FELA, then there is
nothing to indemnify. Antonov's argument assumes that a finding of liability
under FELA necessarily implies a finding of active fault or primary liability
on the railroad's part. However, as numerous courts have held, that is not the
case, and BNSF may be liable to Madden under FELA, and yet only in a
passive, constructive, or technical sense that will not bar a claim for
indemnity against Antonov, if active negligence on his part was the real
cause of Madden's injuries.
FELA imposes a nondelegable duty upon railroads to provide their
employees with a safe place to work. Lockard v. Mo. Pac. R.R. Co., 894 F.2d
299 (8th Cir. 1990). This duty is broader than the general common law duty
of care. Id. The railroad's nondelegable duty extends to the property of third
parties and includes an obligation to inspect the premises of third parties and
to protect the railroad's employees from dangerous conditions. Id. So, under
FELA, while a railroad can be liable for its own negligence, it can also be
liable based on a dangerous condition caused or created solely by the
negligent acts of a third party. Harrison v. Illinois Cent. R. Co., 2009 WL
3156701, at *2–3 (S.D. Ill. 2009); see also, Mills v. River Terminal Ry. Co.,
276 F.3d 222, 226 (6th Cir. 2002); Ellison, 882 F.2d at 353–54; Burlington N.,
Inc. v. Hughes Bros., Inc., 671 F.2d 279, 285 (8th Cir. 1982); Ala. Great S.
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R.R. Co., 493 F.2d at 982–83; Brown v. CSX Transp., Inc., 363 F. Supp. 2d
1342, 1344 (M.D. Fla. 2005); Summar v. Ind. Harbor Belt R. Co., 515 N.E.2d
130 (Ill. Ct. App. 1986); Schrier v. Ind. Harbor Belt R. Co., 402 N.E.2d 872
(Ill. Ct. App. 1980); see generally V. G. Lewter, Right of Railroad, Charged
With Liability for Injury to or Death of Employee Under Federal Employers'
Liability Act, to Claim Indemnity or Contribution from Other Tortfeasor, 19
A.L.R.3d. 928, § 2 (1968). Under these circumstances, a railroad may have a
claim for indemnity as a passive tortfeasor against another tortfeasor whose
active conduct created the danger to the plaintiff. Mills, 276 F.3d at 226–27;
Welch v. Kan. City S. Ry. Co., 2013 WL 1702174, at *7–8 (W.D. La. 2013);
Harrison, 2009 WL 3156701 at *2–3; Summar, 515 NE.2d at 132–33; Schrier,
402 N.E.2d at 873–78.
Antonov argues that the Eighth Circuit has found FELA to require a
level of culpability beyond technical or constructive fault, and that FELA
liability precludes a claim for indemnity under Nebraska law, citing Brassette
v. Burlington N. Inc., 687 F.2d 153 (8th Cir. 1982). But Antonov's reliance on
Brassette is misplaced. Brassette did not deal broadly with whether the
standard of care under FELA or even whether FELA defendants could
generally assert claims for equitable indemnity. Rather, Brassette dealt with
whether a specific defendant was entitled to a jury instruction on
indemnification. Brassette, 687 F.2d at 156. And the court held only that in
the case before it, where there was "overwhelming" evidence of active
negligence on the railroad's part, the railroad was not entitled to an
instruction on indemnity. Id. In this case, it remains to be seen whether and
to what extent BNSF is liable at all; and whether any act or omission on its
part is better deemed mere passive or technical negligence, or rather an
active, proximate cause of Madden's injuries. However, the facts alleged in
BNSF's cross-claim set forth a plausible claim for equitable indemnity, and
that is all that is required at this stage. Iqbal, 556 U.S. at 678.
Antonov next argues that Nebraska law only allows equitable
indemnity in instances involving "a special relationship" between the
indemnitee and indemnitor or an express agreement to indemnify. Harsh
Int'l., Inc. v. Monfort Indus., Inc., 662 N.W.2d 574, 580 (Neb. 2003). Examples
of special relationships capable of supporting an implied obligation to
indemnify include those of principal and agent, bailor and bailee, or a
situation giving rise to vicarious liability. Id. There is no contract for
indemnification in this case, and there is no special relationship between
Antonov and BNSF. So, Antonov argues, BNSF fails to state a claim for
equitable indemnity.
Antonov's reliance upon Harsh is misplaced, however, as that decision
only addressed whether to allow indemnity against an employer already
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subject to a claim under the Nebraska Workers' Compensation Act. That
statute provides the exclusive remedy by an employee against an employer
for injuries arising out of and in the course of employment. Id. at 579. The
Harsh court held only that it would not expand the exception to this
exclusivity provision beyond cases involving express indemnity or special
relationships supporting an obligation to indemnify. Id. at 580. The case does
not stand for the broader proposition that equitable indemnification claims
always require such a special relationship. See Skuzinski v. Bouchard Fuels,
Inc., 694 A.2d 788, 791 (Conn. 1997) (rejecting similar argument).
No Nebraska case supports Antonov's broader contention—that
equitable indemnity generally requires a special relationship between the
indemnitee and indemnitor. There is a split of authority on this point among
other jurisdictions. After carefully considering the existing Nebraska caselaw
and that of other jurisdictions, the Court finds that the Nebraska Supreme
Court would not require a special relationship in the run-of-the-mill claim for
equitable indemnity (i.e., for claims outside the workers' compensation
context discussed in Harsh).
Several jurisdictions require a preexisting, independent, or "pretort"
legal relationship between the indemnitee and indemnitor, such as
employer/employee, that gives rise to a duty to indemnify. Wyoming, for
example, requires an "independent legal relationship" which must be more
than the relationship "established by virtue of one party alleging that he was
sued because of another party's wrongdoing" or the type of broad, general
duty of care owed by all persons not to negligently cause harm. Habco v. L &
B Oilfield Serv., Inc., 138 P.3d 1162, 1164–65 (Wyo. 2006); see also, White
Elec. Servs., Inc. v. Franke Food Serv. Sys., Inc., 2010 WL 1542575, at *2–3
(N.D. Okla. 2010); Harrison, 2009 WL 3156701 at *4; N.M. Pub. Sch. Ins.
Auth. v. Arthur J. Gallagher & Co., 198 P.3d 342, 349 (N.M. 2008); The
Doctors Co. v. Vincent, 98 P.3d 681, 687–88 (Nev. 2004); Allison v. Shell Oil
Co., 495 N.E.2d 496 (Ill. 1986); Hiltz v. John Deere Indus. Equipment Co., 497
A.2d 748, 751 (Vt. 1985).
Other jurisdictions, like Nebraska, recognize the "active-passive"
theory of indemnity, and do not require any relationship between the active
and passive tortfeasors. Mills, 276 F.3d at 226; Degener v. Hall Contracting
Corp., 27 S.W.3d 775, 781–82 (Ky. 2000); Skuzinski, 694 A.2d at 791–92. In
these jurisdictions, the right to indemnity is based instead solely on the
disparity in fault between the tortfeasors.
In a comprehensive discussion of the history of indemnity, the Iowa
Supreme Court explained that the active-passive theory of indemnity is one
of several branches of equitable indemnity, and that it is separate and
distinct from another branch based upon the parties' pre-existing
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relationships (i.e., vicarious liability), and still another branch based upon an
"independent duty" between the indemnitor and indemnitee.3 Wells Dairy,
762 N.W.2d at 471–72; see also, Joshi v. U.S., 2009 WL 2449234, at *3 (N.D.
Ind. 2009); Myco, 565 A.2d at 297–98; Allison, 495 N.E.2d at 498–99.
The Nebraska Supreme Court has suggested that it would also
distinguish between the active-passive and vicarious branches of indemnity.
"The obligation to indemnify may grow out of an implied contractual relation
or out of a liability imposed by law." Hiway 20 Terminal, 443 N.W.2d at 876
(emphasis supplied). Similarly, in Duffy Bros., the court stated that
secondary liability "rests upon a fault that is imputed or constructive only,
being based on some legal relation between the parties, or arising from some
positive rule of common or statutory law . . . ." Duffy Bros., 299 N.W.2d at
172–73 (emphasis supplied).
The Court finds that the Nebraska Supreme Court would distinguish
between the active-passive and vicarious branches of indemnity, rather than
conflate the two or import requirements from one to the other. Therefore,
BNSF need not allege any relationship between itself and Antonov in order to
support a claim for equitable indemnity.
II. BNSF's Claim for Equitable Subrogation
Antonov's next argument, that BNSF has failed to state a claim for
equitable subrogation, is likewise without merit. Under Nebraska law,
equitable subrogation is available when one person pays a debt for which
another is primarily liable, and which in equity and good conscience should
have been discharged by the latter, so long as the payment was made under
compulsion or for the protection of some interest of the one making the
payment and in discharge of an existing liability. Rawson v. City of Omaha,
322 N.W.2d 381, 384. (Neb. 1982); see also, Buckeye State Mut. Ins. Co. v.
Humlicek, 822 N.W.2d 351, 354 (Neb. 2012); Chadron Energy Corp. v. First
Nat'l. Bank of Omaha, 459 N.W.2d 718, 734 (Neb. 1990). The doctrine of
equitable subrogation is applied to serve the ends of justice and to do equity
in the particular case under consideration. Rawson, 322 N.W.2d at 384. No
general rule can be laid down which will afford a test for its application in all
cases; the facts and circumstances of each case determine whether the
doctrine is available. Id. However, subrogation is not allowed where the debt

Iowa has since abandoned the active-passive branch of equitable indemnity in light of the
enactment of Iowa's Comparative Fault Act. Wells Dairy, 762 N.W.2d at 471. However, the
active-passive branch remains a viable theory of indemnity in Nebraska, and the Nebraska
Supreme Court has given no sign that the doctrine has been abrogated by the adoption of
principles of comparative fault. Kuhn, 771 N.W.2d at 119–20.
3

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paid is one for which the payor is primarily liable. Chadron Energy, 459
N.W.2d at 734.
Antonov argues that BNSF is not entitled to equitable subrogation
because only BNSF can be primarily liable for Madden's FELA claim—the
statute does not apply to Madden, and he is not a proper defendant under
FELA. This argument is without merit. A claim for subrogation requires only
a common harm that both parties may be held liable for, and this common
liability need not rest upon the same grounds or theories of recovery. Cf.
State ex rel. Palmer v. Unisys Corp., 637 N.W.2d 142, 153 (Iowa 2001)
(common liability in context of contribution does not require common theories
of recovery); Tebo v. Havlik, 343 N.W.2d 181, 212 & nn.83–84 (Mich. 1984)
(collecting cases); V. G. Lewter, Right of Railroad, Charged With Liability for
Injury to or Death of Employee Under Federal Employers' Liability Act, to
Claim Indemnity or Contribution from Other Tortfeasor, 19 A.L.R.3d 928, § 2
(1968).
This principle was clearly illustrated in Rawson. While driving her car
on a city street, Rawson struck a large pothole, which caused her to lose
control of her vehicle and collide with several other vehicles. Rawson, 322
N.W.2d at 382–83. After settling with the other drivers, Rawson brought suit
against the city, claiming that the accident was caused by the negligence of
the city in failing to fill the pothole and seeking subrogation for the sums
paid in the settlement. Id. She was held entitled to subrogation even though
her alleged negligence (the manner of her driving) was separate and distinct
from the city's (failing to fill a pothole). Rawson was not under a duty to fill
the pothole herself, and the city had no duty to control Rawson's driving: but
the lack of a common duty or theory of recovery did not bar Rawson's claim
for equitable subrogation. At this stage, there is little practical difference
between BNSF's claims for subrogation and indemnification—BNSF has
adequately pleaded both and Antonov's motion to dismiss will be denied.
III. BNSF's Request for Attorney Fees
Finally, Antonov argues that the Court must dismiss or strike BNSF's
demand for attorney fees, because there is no basis for such fees under FELA
or state law. As noted above, BNSF seeks two types of attorney fees: those
incurred in defending Madden's claims and those spent prosecuting its crossclaim against Antonov. The Court finds that BNSF may be entitled to recover
the first type as part of the damages for its indemnity claim. However, BNSF
is not entitled to recover the second type of fees in this manner, and in that
regard, Antonov's motion to dismiss will be granted.
Both Nebraska and the Eighth Circuit follow the "American rule,"
under which a prevailing party is generally not entitled to recover attorney
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fees from its opponent, unless authorized by statute or another source of law.
Doe v. Nixon, 716 F.3d 1041, 1048 (8th Cir. 2013); Stewart v. Bennett, 727
N.W.2d 424, 429 (Neb. 2007). FELA does not authorize an award of attorney
fees in this case, at least not directly. See Norfolk & W. Ry. Co. v. Liepelt, 444
U.S. 490, 495 (1980). As noted above, however, a railroad's right to recover
indemnity for liability incurred under FELA is governed by state law. Ala.
Great S. R.R. Co., 493 F.2d at 983. And in this case, Nebraska law does
provide for the possibility of recovering some of the attorney fees sought by
BNSF.
Nebraska recognizes the "tort-of-another" doctrine:
One who through the tort of another has been required to
act in the protection of his interests by bringing or defending an
action against a third person is entitled to recover reasonable
compensation for loss of time, attorney fees and other
expenditures thereby suffered or incurred in the earlier action.
Tetherow v. Wolfe, 392 N.W.2d 374, 379 (Neb. 1986) (quoting Restatement
(Second) of Torts § 914(2) (1979)); see also Zimmerman v. FirsTier Bank,
N.A., 585 N.W.2d 445, 454 (Neb. 1998). Under this doctrine, if BNSF is
entitled to indemnity from Antonov, then it may also be entitled to an award
of fees incurred defending Madden's claims against itself.4 Such fees are not
awarded as costs of the action, but as an element of consequential damages
resulting from the indemnitor's wrongful conduct.5 Seawest Inv. Assocs., LLC
v. Leisher, 2012 WL 1920524, at *2 and n.3 (Wash. Ct. App. 2012).

At this time, the Court only addresses BNSF's entitlement to attorney fees in the context
of its claim for equitable indemnity. BNSF has focused its arguments on that theory, rather
than subrogation or contribution. See, filing 33 at ¶¶ 42–43; filing 69 at 8. To rule on
Antonov's motion to dismiss, the Court need not explore the viability of every possible
manner in which BNSF could recover attorney fees. Because BNSF may be entitled to fees
through its indemnity claim, Antonov's motion will be denied.
4

Section 914(2) speaks of claiming fees incurred in an "earlier action." Read technically,
this might be understood to imply that an indemnitee is not entitled to claim attorney fees
where there has been no earlier action, such as here, where the indemnity claim is joined
with the underlying dispute between the injured party and multiple defendants. But that
reading is refuted by common sense and decisions interpreting § 914(2). (Nor does Antonov
advance such an argument.) The tort-of-another doctrine does not contain a "separate-andearlier[-]action" requirement. De Lage Landen Fin. Servs., Inc. v. Miramax Film Corp.,
2009 WL 678625, at *5 (E.D. Pa. 2009). Rather, the "critical distinction . . . is not between
present and prior proceedings, but rather between litigation against a third party caused by
the wrongful acts of another and litigation against the wrongdoer to recover attorney fees
5

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However, BNSF is not entitled to recover the costs incurred prosecuting
its counter-claim, including those spent establishing the right to indemnity.
See, e.g., Embassy of the Arab Rep. of Egypt v. Lasheen, 603 F.3d 1166, 1173
(9th Cir. 2010) (applying Pennsylvania law); Brewer Envtl. Indus., LLC v.
Matson Terminals, Inc., 2011 WL 1637323, at *15 (D. Haw. 2011). BNSF
itself acknowledges that this is the general rule, and presents no reason to
deviate from it. Filing 69 at 8. Therefore, the Court finds that BNSF is not
entitled to an award of fees incurred prosecuting its cross-claim against
Antonov under the tort-of-another doctrine, and in that regard only,
Antonov's motion to dismiss is granted. Accordingly,
IT IS ORDERED:
1.

Antonov's motion to dismiss or strike (filing 61) is granted
in part and denied in part:
a.

Antonov's motion to strike is denied in its entirety.

b.

Antonov's motion to dismiss is granted in part: BNSF
is not entitled to an award of attorney fees incurred
prosecuting its cross-claim as an element of damages
under the tort-of-another doctrine.

c.

The remainder of Antonov's motion to dismiss is
denied.

Dated this 19th day of August, 2013.
BY THE COURT:

John M. Gerrard
United States District Judge

for having to defend against a third party." Blair v. Boulger, 336 N.W.2d 337, 340 (N.D.
1983).

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