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Cevasco v. National Railroad Passenger Corp.

December 8, 2007

LOUIS CEVASCO ET AL., PLAINTIFFS,
v.
NATIONAL RAILROAD PASSENGER CORP., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

OPINION AND ORDER

This Opinion and Order also applies to: Adornetti v. National Railroad Passenger Corp., et al., 06 Civ. 6195 Sood v. National Railroad Passenger Corp., et al., 05 Civ. 7419 Vitale v. National Railroad Passenger Corp., et al., 06 Civ. 6196

Plaintiffs Louis Cevasco, Jugal Sood, Joseph Adornetti, and Girolamo Vitale have each brought suit against the National Railroad Passenger Corp. ("Amtrak") for personal injuries allegedly sustained on July 10, 2004, while the plaintiffs were engaged in construction work in a railroad tunnel.*fn1 Amtrak, as defendant and third-party plaintiff, has now moved for leave to amend its third-party complaints to add new claims against existing third-party defendants Crescent Contracting ("Crescent"), STV Incorporated ("STV"), Mitchell Equipment Corporation ("Mitchell"), T.C. Johnson Co. ("Johnson"), Hatch Mott MacDonald, Inc. ("HMM"), STV/HMM, a joint venture of HMM and STV ("STV/HMM"), Transportation Resources, Inc. ("TRI"), Terex Corporation, Terex Cranes, Inc., and Koehring Cranes, Inc. (together "Terex"). See Notice of Motion in Cevasco, filed Aug. 10, 2007 (Docket # 194 in 04 Civ. 5760) ("Motion"); Notice of Motion in Sood, filed Aug. 10, 2007 (Docket # 110 in 05 Civ. 7419); Notice of Motion in Vitale, filed Aug. 10, 2007 (Docket # 74 in 06 Civ. 6196); Notice of Motion in Adornetti, filed Aug. 10, 2007 (Docket # 71 in 06 Civ. 6195).

I. BACKGROUND

A. Facts

Amtrak alleges that it entered into a contract with STV, HMM, and STV/HMM*fn2 in 2001 to perform construction management services at the site of the accident, and that these entities were performing these services at the time of the accident. Amtrak's Revised Proposed Third Amended Third Party Complaint, dated Oct. 2, 2007 (annexed as Ex. E to Declaration of Sophia Ree, filed Oct. 2, 2007 (Docket # 204)) ("Amtrak's Third Compl."), ¶ 155; see also Construction Management Services Contract, dated Dec. 11, 2001 (annexed as Ex. M to Motion) (the "Contract"). Amtrak also alleges that it purchased a railroad crane manufactured and/or sold by Terex and/or TRI, and that this crane contributed to the accident. Amtrak's Third Compl. ¶¶ 239-40.

B. Amtrak's Proposed Claims

In the Cevasco action, Amtrak's proposed Third Amended Complaint contains the following new claims:

Against Crescent

* For breach of contract for "failure to defend and indemnify [Amtrak]," Amtrak's Third Compl. ¶¶ 126-31 (claim 16);

* For "fail[ure] to indemnify [Amtrak]" "pursuant to the contractual agreement(s)," id. ¶¶ 132-34 (claim 17);

* For breach of contract for failure to "maintain certain insurance policies for the benefit of Amtrak . . . nam[ing] Amtrak as an additional insured with a waiver of subrogation . . . delet[ing] all Railroad exclusions," id. ¶¶ 136-40 (claim 18);

* For "indemnification or contribution" based on third-party defendants' "negligence, acts and omissions," id. ¶¶ 144-46 (claim 20).

Against STV, HMM, and STV/HMM

* For joint and several liability, "pursuant to contractual agreement(s)," if Amtrak is found liable to plaintiff, id. ¶¶ 147-60 (claim 21);

* For "fail[ure] to indemnify [Amtrak]" "pursuant to the contractual agreement(s)," id. ¶¶ 173-76 (claim 23);

* For breach of contract for failure to "maintain certain insurance policies for the benefit of Amtrak . . . nam[ing] Amtrak as an additional insured with a waiver of subrogation . . . delet[ing] all Railroad exclusions," id. ¶¶ 177-81 (claim 24);

* For common law contribution and indemnification because plaintiff suffered a grave injury within the meaning of New York Workers' Compensation Law ยง ...


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