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May 27, 1992

RALPH E. GAINES, Plaintiff,


The opinion of the court was delivered by: ILANA DIAMOND ROVNER




 At the time of the accident alleged in the amended complaint, plaintiff was employed by the IC as a brakeman. On December 7, 1989, plaintiff alleges that he suffered injuries when he was thrown from the train on which he was riding to the roadbed adjacent to the track. The accident is alleged to have resulted from the emergency application of the train's air brakes, which occurred after plaintiff had signaled that the train was approaching a grade crossing where the rails of the track had been covered with asphalt. When three of the train's cars continued through that crossing, the asphalt caused the cars to derail from the track. (See Defendant Tabor Grain's Rule 12(m) Statement of Uncontested Facts ("Tabor Grain's 12(m) Statement") P 12.) *fn1" Plaintiff alleges that through the negligence of one or both of the remaining defendants, the train had mistakenly entered a passing track owned by the IC, rather than the sidetrack leading to the Pacific Grain plant. It was on this passing track that the train encountered the paved-over road crossing.

 Count I of the IC's amended third-party complaint seeks indemnity from defendant Pacific Grain for any potential liability to plaintiff. The IC alleges that Pacific Grain, through an agent, negligently directed and controlled the IC train because Pacific Grain's agent purportedly provided inaccurate information about the track layout, thereby causing the train to proceed upon the wrong track. (Amended Third-Party Complaint, Count I, P 6.) The IC's claim for indemnity is based upon two identical sidetrack agreements executed by the IC and Pacific Grain in 1961 and 1966 respectfully (the "sidetrack agreements"). Paragraph 4 of both agreements provides in pertinent part that

 the Shipper also agrees to indemnify and hold harmless the Railroad Company for loss, damage or injury from any act or omission of the Shipper, its employees, or agents, to the person or property of the parties hereto and their employees, and to the person or property of any other person or corporation, while on or about the Track. If any claim or liability other than from fire shall arise from the joint or concurring negligence of both parties hereto, it shall be borne by them equally.

 Both the 1961 and 1966 sidetrack agreements apply to specific sidetracks located on property owned by Pacific Grain (now by Tabor Grain) in Farmer City, Illinois. *fn2" (See Tabor Grain's 12(m) Statement P 10.) The sidetrack agreements include highlighted plats which define the portions of the track serving the premises of Tabor Grain. (1961 Sidetrack Agreement at 1; 1966 Sidetrack Agreement at 1; see also Tabor Grain's 12(m) Statement P 13.) At the time of plaintiff's accident, the IC train was not on one of the highlighted tracks, but was instead on a track owned by the IC or some other entity. (Tabor Grain's 12(m) Statement PP 11, 14.) Thus, Tabor Grain maintains that the derailment of a portion of the train did not occur on the "track," as that term is used in the sidetrack agreements. (Id. at P 14.) The IC maintains, however, that although the accident did not occur on one of the sidetracks highlighted in the diagrams attached to the parties' agreements, it did take place "on or about" the sidetracks covered by the agreements. Consequently, the IC argues that Tabor Grain must indemnify it for any damages ultimately recovered by plaintiff in the underlying lawsuit.


 On a motion for summary judgment, the moving party bears the burden of establishing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991); Fed. R. Civ. P. 56(c). The Court must consider the facts and all reasonable inferences drawn therefrom in the light most favorable to the non-movant, and where there are doubts as to whether a genuine factual dispute exists, the Court must resolve those doubts in favor of the non-moving party. Griffin, 929 F.2d at 1212; see also New Burnham Prairie Homes, Inc. v. Village of Burnham, 910 F.2d 1474, 1477 (7th Cir. 1990). Because the IC has failed to file a statement pursuant to Local Rule 12(n) which responds to the assertions of fact set forth in Tabor Grain's 12(m) Statement, the facts relevant to Tabor Grain's motion are undisputed. Accordingly, the Court's task is to interpret the indemnity provision of the sidetrack agreements in light of those undisputed facts. See Rogers v. Chicago & North Western Transportation Co., 947 F.2d 837, 840 (7th Cir. 1991).

 Tabor Grain maintains that the indemnity provision of the sidetrack agreements is unambiguous -- it only is required to indemnify the IC for injuries incurred "on or about" the highlighted sidetracks. According to Tabor Grain, because the train on which plaintiff was riding was not progressing along one of those tracks, plaintiff's injury was not incurred while "on or about" the sidetracks covered by the agreements. Accordingly, Tabor Grain maintains that it has no obligation to indemnify the IC for plaintiff's alleged injuries. The IC, on the other hand, argues that even if the train was not located on one of the highlighted sidetracks, any injuries sustained by Gaines were incurred "on or about" those sidetracks. According to the IC, Tabor Grain has advanced an interpretation of the indemnity provision requiring that the loss, damage, or injury be suffered on the sidetrack, rather than "on or about" that track as required by the agreements.

 Although the indemnity provision in the instant sidetrack agreements is commonly utilized by railroad companies in relation to sidetracks constructed to service their customers, there is scant authority on the proper interpretation of the phrase "on or about the Track," as used in such a provision. In its motion for summary judgment, Tabor Grain relies solely on the decision of a Florida appellate court in Sol Walker & Co. v. Seaboard Coast Line Railroad Co., 362 So. 2d 45 (Fla. Dist. Ct. App. 1978). There, the court considered an indemnify provision virtually identical to that at issue here, but under circumstances that were vastly different. Sol Walker & Company ("Walker") was a scrap iron dealer that maintained sidetracks on its property connected to the main line of the plaintiff railroad. Id. at 47. On a daily basis, the railroad would deliver open gondola cars to walker's scrap iron yard. Walker would then load the cars with scrap iron, and the railroad would pick up and transport the cars to their destinations. The injury at issue, which occurred when a bale of scrap iron fell from a car and injured a railroad switchman, took place after the loaded cars had been transported, a day later, to two other rail yards. Id. at 48. After the employee obtained a judgment against the railroad, the railroad invoked its indemnity agreement with Walker. The Florida court concluded that the indemnity provision did not apply because the accident occurred at a location that was not "on or about the track" referenced in the indemnity agreement. Id. at 49. To reach this conclusion, the court was required to analyze whether the phrase "on or about the track" in the indemnity provision modified the words "any act or omission of the Shipper," in which case the indemnity provision would apply despite the fact that the accident occurred at another location, ...

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