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Wallace v. National Railroad Passenger Corp.

United States District Court, S.D. New York

March 18, 2014

NATIONAL RAILROAD PASSENGER CORP. d/b/a AMTRAK, Defendant and Third Party Plaintiff,
WEEKS MARINE, INC., Third Party Defendant and Fourth Party Plaintiff,

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For Steven Wallace, Plaintiff: Daniel John Hansen, LEAD ATTORNEY, David Hansen, Esq., New York, NY.

For National Railroad Passenger Corporation, doing business as Amtrack, Defendant: Ronald Betancourt, LEAD ATTORNEY, Betancourt, Van Hemmen, Greco & Kenyon LLC (NYC), New York, NY; Ronald E Joseph, LEAD ATTORNEY, Jennifer Wu, Landman Corsi Ballaine & Ford PC, New York, NY.

For Weeks Marine, Inc., FourthParty Plaintiff, ThirdParty Defendant, ThirdParty Plaintiff: Ronald Betancourt, LEAD ATTORNEY, Betancourt, Van Hemmen, Greco & Kenyon LLC (NYC), New York, NY.

For Liberty Surplus Insurance Corporation, FourthParty Defendant: Robert W. Muilenburg, LEAD ATTORNEY, Coughlin Duffy, Morristown, NJ; Daniel Luke Pascoe, Becker Meisel, LLC, Livingston, NJ.

For National Passenger Railroad Corporation, ThirdParty Plaintiff: Ronald E Joseph, LEAD ATTORNEY, Jennifer Wu, Landman Corsi Ballaine & Ford PC, New York, NY.


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ALISON J. NATHAN, United States District Judge.

Plaintiff Steven Wallace was injured when he fell from a floating platform that he was working on while repairing a bridge owned by Defendant National Railroad Passenger Corp. d/b/a Amtrak (" Amtrak" ). In this diversity action, Wallace brought several state law causes of action against Amtrak, seeking to recover for his injuries. Amtrak, in tum, filed a third-party complaint against Wallace's employer, Weeks Marine, Inc. (" Weeks" ), alleging that Weeks had indemnified it against Wallace's claims. Weeks then brought a fourth-party complaint against Liberty Surplus Insurance Corp. (" Liberty" ), Amtrak's insurer, claiming that Liberty, not Weeks, should pay for Wallace's injuries.

Following discovery, the parties filed motions for summary judgment, which are now before the Court. Wallace moves for summary judgment as to liability on his claims under New York Labor Law Sections 240(1) and 240(6), Dkt. No. 58; Amtrak and Weeks move for summary judgment on all of Wallace's claims against Amtrak, Dkt. Nos. 46, 51; Amtrak and Weeks cross-move for summary judgment on Amtrak's claims against Weeks, Dkt. Nos. 89, 95; and Liberty and Weeks cross-move for summary judgment on Weeks's claims against Liberty, Dkt. Nos. 95, 102. For the following reasons, Wallace's motion is granted in part and denied in part, Amtrak's and Weeks's motions against Wallace are granted in part and denied in part, Amtrak's motion against Weeks is granted in part and denied in part, Weeks's motion against Amtrak is granted in part and denied in part, Weeks's motion against Liberty is denied, and Liberty's motion against Weeks is granted in part and denied in part. In light of this disposition, Weeks's cross-motion to strike portions of Wallace's affidavit, Dkt. No. 63, is denied as moot.


Unless otherwise noted, the following facts are undisputed and are based on the Court's review of the record, undertaken with particular attention to the evidence cited in the parties' Local Rule 56.l statements. See Monahan v. NY.C. Dep't of Corr., 214 F.3d 275, 292 (2d Cir. 2000);

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Agence Fr. Presse v. Morel, 934 F.Supp.2d 547, 551 (S.D.N.Y.), superseded on other grounds on reconsideration, 934 F.Supp.2d 584 (S.D.N.Y. 2013).

A. The Construction Project

The Pelham Bay Bridge is a railroad bridge that crosses the Hutchinson River. Amtrak 3/1 56.1 ¶ ¶ 5-6.[1] Amtrak, which owns the bridge, engaged Weeks in September 2009 to be the general contractor for a construction project involving the rehabilitation of the bridge. Id.; Joseph 3/1 Decl. Ex. A. Specifically, Weeks's task was to strengthen the structural piles (or columns) supporting the bridge. Amtrak 3/1 56.1 ¶ 6. This task involved encasing the piles with steel reinforcement bars, or " rebar," which would support fiberglass and cement casing where the piles were damaged or deteriorated. Id.; Weeks 3/1 56.l ¶ 5.

Amtrak stationed safety officers at the bridge to help prevent Weeks's employees from being hit by trains. Amtrak 3/1 56.1 ¶ 24. Additionally, John Ramo, Amtrak's project manager for the Pelham Bay Bridge project, attended about 50 meetings there to oversee the project and attend progress meetings. Ramo Dep., Hansen Aff. Ex. 4, at 14. He testified that he was at the bridge about once a week, and that Amtrak had several employees stationed there daily, including an inspector to ensure that " the contractors' operations [would not] impact the safe passage of trains" and that the project was proceeding on schedule. Id. at 17-20.

B. Wallace's Accident

Wallace, a Weeks employee, worked as a dock builder on the bridge project for several weeks during the spring of 2010. Amtrak 3/1 56.1 ¶ 5; Weeks 3/1 56.1 ¶ 4; Wallace Dep., Joseph 3/1 Decl. Ex. B, at 11. One of his tasks was installing rebar cages around the bridge pilings. Weeks 3/1 56.1 ¶ ¶ 5, 9. To allow its workers to access the pilings, Weeks used a series of wooden " float stages" that were set in the water. The float stages were composed of 12" by 12" or 16" by 16" wooden planks, approximately 20 feet long, which were pinned together side by side, for a total width of five to six feet. Amtrak 311 56.1 ¶ ¶ 9-11; Weeks 3/1 56.1 ¶ ¶ 6-7; Wallace 56.1 ¶ 8. These float stages acted as " sidewalks" along which Weeks workers could walk in order to access the piles. Amtrak 3/1 56.1 ¶ 10. The tops of the float stages were about three to four inches above the surface of the water, but could be lower depending on how much weight they were bearing at any given time. Id. ¶ 12. Weeks owned and maintained these float stages. Id. ¶ 13.

Wallace testified at his deposition that the float stages were in bad condition, in that they had pieces of wood missing and " were literally falling apart under your feet, a lot of them." Wallace Dep., Joseph 3/1 Decl. Ex. B, at 60. Jason Monach, Wallace's co-worker, also testified that Weeks employees often had to repair parts of the float stages " where the wood was not quite flush and it was awkward to walk on." Monach Dep., Hansen Aff. Ex. 8, at 43. Additionally, Mark McMahon, a Weeks foreman, stated in his deposition

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that " moss" on the surface of the float stages was an " ongoing problem," and that workers had complained to him that the stages were too slippery as a result. McMahon Dep., Hansen Aff. Ex. 7, at 42-43. However, Ramo, Amtrak's project manager, testified that he never knew of any concerns regarding the safety of the float stages. Ramo Dep., Joseph 3/1 Decl. Ex. G, at 44.

On May 6, 2010, Wallace and his co-workers were in the process of installing a rebar cage. A crane initially lowered the cage from a barge onto a float stage. Weeks 3/1 56.1¶ 11; Wallace 3/1 56.1 ¶ 11. Then, Wallace and three others began carrying the cage along the float stages, with one worker holding each corner of the cage. Wallace Dep., Joseph 3/1 Decl. Ex. A, at 56. The workers walked on the outside of the cage, so that they were near the edge of the float stages, with the cage suspended between them over the center of the stages. Wallace 3/1 56.1 ¶ 13; Wallace Dep., Joseph 3/1 Decl. Ex. A, at 56. Wallace manned the front right comer of the cage, with his right side facing the water. Wallace Dep., Joseph 3/1 Decl. Ex. A, at 56; Quesada Dep., Joseph 3/1 Decl. Ex. J, at 79. The other Weeks employees carrying the cage were Monach, Peter Fitzpatrick, and Matthew Quesada. Amtrak 3/1 56.1 ¶ 15 n.10.

The four men had walked along two float stages and had crossed to a third when Wallace fell. Weeks 3/1 56.1 ¶ ¶ 12-13. At his deposition, Wallace stated that his fall resulted from his stepping on the side of the float stage, where a piece of the float stage was " missing." Wallace Dep., Joseph 3/1 Decl. Ex. B, at 259, 262. After he stepped on the missing piece of the float stage, Wallace testified, his " leg rolled under where the piece was missing and then [he] went down to the float stage and into the water." Id. at 259; Weeks 3/156.1 ¶ 13. Monach, Wallace's co-worker, recalls Wallace stating at the time of the accident that he " he slipped on the float stage." Monach Dep., Hansen Aff. Ex. 8, at 67; see also id. at 78-79 (" I do believe [Wallace] mentioned that he slipped." ). According to Monach, who examined the area where Wallace fell after the accident occurred, the float stage had " a small rounded edge to the side [Wallace] was walking on," which " had a little bit of algae on the side and underneath part." Id. at 67.

After falling from the float stage, Wallace ended up in the water, although it is unclear whether he was ever fully submerged. Compare Wallace Dep., Betancourt 3/1 Decl. Ex. A, at 249 (fully submerged), with Monach Dep., Betancourt 3/1 Decl. Ex. E, at 76 (about two-thirds submerged). In any event, he bobbed to the surface because he was wearing a life vest, and his co-workers pulled him out. Wallace Dep., Betancourt 3/1 Decl. Ex. A, at 249. In all, Wallace was in the water for less than a minute. Amtrak 3/1 56.1 ¶ 19. He testified at his deposition that he did not know how deep he fell or whether he impacted the bottom of the river. Wallace Dep., Joseph 3/1 Decl. Ex. B, at 69-71, 250. The parties dispute how deep the water in the river was at the time Wallace fell: Amtrak and Weeks claim that, based on the tides, the water was no more than four and a half feet deep. Amtrak 3/156.1 ¶ 20; Weeks 3/156.1 ¶ 17. However, Quesada stated at his deposition that he thought the water was about twelve feet deep. Wallace 56.2 3/1 ¶ 21. Wallace's affidavit, submitted in connection with his motion for summary judgment, states that the water was approximately six to ten feet deep. Wallace Aff. ¶ 8.

After Wallace was removed from the water, his leg was bleeding and he was in pain, but he was not sure whether he was

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badly injured. Wallace Dep., Joseph 3/1 Decl. Ex. B, at 74, 77-78. He changed his clothes and continued working. Id. at 81. He reported his fall to McMahon, Weeks's foreman, later that day. Amtrak 3/1 56.1¶ 2. He also filled out an accident report, which is dated May 13, 2011, although Wallace may have filled out the report as early as May 6. Wallace Dep., Hansen Aff. Ex. A, at 91-93. Wallace also sought medical care subsequent to the accident, possibly as late as May 14, 2011. Wallace Dep., Betancourt 3/1 Decl. Ex. A, at 101. He later underwent neck surgery. Id. at 145.

Following Wallace's fall, his co-worker Fitzpatrick examined the float stage and saw that it was damaged where Wallace fell. Wallace 56.1 ¶ 24; Fitzpatrick Dep., Hansen Aff. Ex. 6, at 46-49. Additionally, a post-accident report prepared by Travis Iapicco, Weeks's field engineer, stated that the cause of Wallace's accident was a " small area of float stage missing on [the] outermost edge." Iapicco Dep., Hansen Aff. Ex. 3, at 50. However, Iapicco also testified that the missing piece on the edge of the float stage was " nothing abnormal" and part of general wear and tear. Iapicco Dep., Joseph 3/22 Opp. Decl. Ex. C, at 32. Moreover, Iapicco was pointed to the relevant area of float stage by McMahon, and there is no evidence that either Iapicco or McMahon actually knew which float stage Wallace fell from, since the stages were frequently rearranged and had no identifying characteristics. Amtrak 3/22 56.1 Resp. ¶ 10.

C. The Parties' Contracts

On or about September 17, 2009, Amtrak and Weeks entered into a contract (the " Construction Contract" ), under which Weeks would be the general contractor for the bridge project. Weeks 8/14 56.1 Resp. (Amtrak) ¶ ¶ 6-8; Joseph 7/25 Decl. Ex. A. The contract provides that it is to be " governed by and construed in accordance with the laws of the District of Columbia without regard to choice of law consideration." Joseph 7/25 Decl. Ex. A§ 81.1.[2]

The Construction Contract also contains a section titled " Indemnification." That section provides:

68.1. Contractor [Weeks] agrees to defend, indemnify and hold harmless Amtrak, its officers, directors, employees, agents, servants, successors, assigns and subsidiaries (collectively " Indemnified Parties" ) from and against any claims, losses, liabilities (including without limitation environmental liabilities), penalties, fines, causes of action, suits, costs, and expenses incidental thereto (including costs of defense and attorneys' fees) (collectively " Claims" ) which any of the Indemnified Parties may hereafter incur, be responsible for or pay as a result of breach of warranty, injury or death of any person, or damage to or loss (including loss of use) any property, including property of the parties hereto, arising out of or in any degree directly or indirectly caused by or resulting from materials or deliverables supplied by, or from activities of, or Work performed by Contractor, Contractor's officers, employees, agents, subcontractors, or any other person acting for or with the permission of Contractor under the Contract, or as a result of Contractor's failure to perform its obligations in compliance with the Contract Documents.
68.2. In addition to the foregoing, Contractor agrees to defend, indemnify and

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hold harmless the Indemnified Parties, irrespective of any negligence or fault on the part of the Indemnified Parties, from and against any Claims which any of the Indemnified Parties may hereafter incur, be responsible for or pay as a result of injuries (including death) to any of Contractor's employees, agents or subcontractors.
68.3. The indemnification obligation under this Section shall not be limited by the existence of any insurance policy procured or maintained by Contractor or by any limitation on the amount or type of damages, compensation or benefits payable by or for Contractor or any subcontractor and shall survive the termination of the Contract.

Joseph 7 /25 Decl. Ex. A § 68.

The Construction Contract also contains a section titled " Insurance," which requires Weeks to " procure and maintain, at all times during the term of this Contract, at its own cost and expense, the types of insurance specified herein." Joseph 7/25 Decl. Ex. A§ 69.1. Two of those types were commercial general liability insurance and railroad protective liability insurance. The contract described those types of insurance, respectively, as follows:

(b) Commercial General Liability Insurance. A policy issued to and covering liability imposed upon Contractor arising out of the Work to be performed and all obligations assumed by Contractor under the terms of this Contract. ...
(e) Railroad Protective Liability Insurance .... A policy ... in the name of [Amtrak] (and any other railroad operating over the tracks). The policy shall have a combined single limit of liability of not less than two million dollars ($2,000,000) per occurrence for Coverages A and B with a six million dollar ($6,000,000) annual aggregate .... The original policy shall be submitted to Amtrak prior to commencement of Work.

Id. § 69.2(b), (e). Pursuant to these requirements, Weeks purchased a railroad protective liability policy (the " RPL Policy" ) and a commercial general liability policy (the " CGL Policy" ).

The RPL Policy was issued by Liberty. Weeks 8114 56.l Resp. (Amtrak) ¶ 13. The premium for the RPL Policy was $47,021. Joseph 7/25 Decl. Ex. H Item 9. In the RPL Policy, Amtrak is listed as the " Named Insured," and Weeks, which procured the policy, is listed as the " Designated Contractor." Id. Items 1, 3. The policy defines the term " insured" as the Named Insured (that is, Amtrak), its executive officers and directors, its stockholders, and railroads operating over its tracks. Id. § II.1-4. It provides that Liberty will cover " those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damages' to which this insurance applies," but that such coverage applies only to injuries and damages that " arise[] out of acts or omissions at the 'job location' which are related to or are in connection with the 'work' described in the Declarations" (in addition to several other exclusions not relevant here). Id. § I.A.1.a, b. (The declarations section makes clear that the " job location" is Pelham Bay Bridge, and the " work" is the rehabilitation project that Amtrak contracted with Weeks to perform. Id. Items 5, 8.)

In addition, the RPL Policy contains a section titled " Other Insurance." That section provides in relevant part that " [t]he insurance afforded by this policy is ... [p]rimary insurance and we will not seek contribution from any other insurance available to you except if the other insurance is provided by a contractor other than the designated contract for the same operation and 'job location.'"

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Joseph 7125 Decl. Ex. E § IV.A.6. The RPL Policy also contains a transfer of rights provision, which states, " [i]fthe insured has rights to recover all or part of any payment we have made under this policy, those rights are transferred to us." Id. § IV.A.8.

The CGL Policy that Weeks purchased was issued by the Indemnity Insurance Company of North America (" ACE" ). Betancourt 8/14 Opp. Decl. (Amtrak) Ex. A. The premium for the CGL Policy was $675,000. Id. at 1. Under that policy, Weeks is the " Named Assured." Id. at 5. The policy provides that it will pay on Weeks's behalf for bodily injury and property damage claims, subject to the policy's terms. Id. at 14. Like the RPL Policy, the CGL Policy contains a provision titled " Other Insurance," which states:

if other valid and collectible insurance with any other Insurer is available to the Assured covering a loss also covered by this policy, other than Insurance, that is excess of the Insurance afforded by this Policy, the Insurance afforded by this Policy shall be in excess of and shall not contribute with such other Insurance, either as double insurance or otherwise. Nothing herein shall be construed to make this Policy subject to the terms and conditions and limitations of other insurance.

Id. § 14, at 9.

D. Amtrak's Communications with Weeks and Liberty

On September 13, 2011, Amtrak's Director of Claims/Litigation, Paul Michalski, sent a letter to Weeks, notifying it of Wallace's claims and demanding that Weeks " protect, defend, indemnify and save Amtrak harmless in this litigation." Joseph 7/25 Decl. Ex. B. Weeks did not respond to that letter. On September 14, Ronald Betancourt of the law firm Betancourt, Van Hemmen, Greco & Kenyon LLC (" BVGK" ) wrote to Michalski, stating that BVGK had been engaged by Weeks to defend Amtrak against Wallace's claims. However, Betancourt's letter did not mention Weeks's indemnification obligation. Joseph 7/25 Decl. Ex. C. In light of that silence, Michalski emailed Teresa Olivo, Weeks's personal injury claims manager, on September 15, 2011, expressing confusion about BVGK's letter insofar as it was silent regarding indemnification. Michalksi expressed his " understanding that Weeks Marine WILL indemnify Amtrak," and asked Weeks to confirm that understanding. Joseph 7/25 Decl. Ex. D. Weeks's corporate risk manager, Tom Langan, replied to Michalski, copying Olivo. Langan wrote, " I'm not sure what you find confusing" about BVGK's letter, stated his view that BVGK's letter indicated that it was litigation counsel, not coverage counsel, and did not mention Weeks's indemnification obligation. Joseph 7 /25 Decl. Ex. E.

At the same time, Amtrak was also communicating with Liberty regarding Wallace's claims. After being informed of the lawsuit, Liberty engaged Railway Claims Services, Inc. (" RCS" ) to act as its third-party claims administrator. Liberty 56.1 Resp. ¶ ¶ 18, 19. On September 22, 2011, Randal Little, RCS' s director of operations, emailed Amtrak's Michalski on Liberty's behalf. The email stated that " Liberty's Policy is a Railroad Protective Policy that provides coverage for and on behalf of Amtrak, and is not intended to serve as primary insurance for this loss." It indicated that the Construction Contract between Amtrak and Weeks " clearly requires Weeks Marine to indemnify Amtrak for any injuries to Weeks Marine Employees." As a result, Little wrote, " Liberty does not wish to participate in the direction and defense of this loss by Weeks and the attorney Weeks has elected to retain." Little's email also stated

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that Liberty would fulfill its obligations to Amtrak under the RPL policy. Betancourt 8/14 Opp. Decl. (Liberty) Ex. E. Attached to the email was a letter from RCS stating that a review was necessary to determine Liberty's obligations, and reminding Amtrak of its own obligations under the RPL policy. Betancourt 8/14 Opp. Decl. (Liberty) Ex. F.

According to Michalski's deposition testimony, Amtrak's typical practice when faced with personal injury claims was to tender its defense to the contractor and await a reply. If the contractor agreed to defend and indemnify Amtrak, then the contractor would assume Amtrak's defense and appoint counsel of its choosing to represent Amtrak. However, if the contractor " did not respond in a favorable manner as to their requirements pursuant to the indemnity," Amtrak would seek to protect its own interests. Michalski Dep., Muilenberg Opp. Decl. Ex. B, at 45.

Accordingly, following Amtrak's initial communications with Weeks and Liberty, and in light of Weeks's continued silence regarding its indemnification obligations, Liberty, Amtrak, and RCS agreed that Landman Corsi Ballaine & Ford P.C. (" LCBF" ) should represent Amtrak, rather than BVGK, which had been chosen by Weeks. Little Dep., Joseph 8/14 Opp. Decl. Ex. I, at 22, 52-53; Little Dep., Muilenberg Decl. Ex. K, at 43. On September 28, 2011, LCBF called BVGK's Betancourt, stating that Liberty had instructed LCBF to take over Amtrak's defense. Liberty 56.1 Resp. ¶ ¶ 22, 23. On October 6, 2011, Amtrak filed a notice of substitution of counsel, endorsed by Amtrak, in which LCBF was formally substituted for BVGK. Dkt. No. 5.

On October 7, 2011, after LCBF had taken over Amtrak's defense, LCBF's Ronald Joseph sent a letter to Weeks's Langan. In the letter, Joseph summarized the earlier communications between Michalski and Weeks, and pointed to Weeks's silence regarding its indemnification obligation. Joseph then quoted at length from the Construction Contract, and indicated that under the contract, Weeks was required to indemnify Amtrak against Wallace's claims. Joseph asked Langan to sign a statement that " Weeks Marine will defend, indemnify and hold harmless" Amtrak in Wallace's lawsuit. Joseph 7/25 Decl. Ex. F. The next day, Langan responded to Joseph by email. He wrote,

I have no intention of signing the statement at the bottom of your letter. The indemnification section of the contract speaks for itself. . . . I reserve the right to see if Wallace can prove that his alleged injuries were the result of the sole negligence or gross misconduct of Amtrak (which I recognize is highly unlikely). Nevertheless, if Wallace can make such a showing, I believe Amtrak's indemnification clause can be challenged on public policy grounds as this was a construction contract.

Joseph 7 /25 Decl. Ex. G.

E. Procedural History

Wallace filed a complaint against Amtrak on August 4, 2011, and the case was initially assigned to Judge Koeltl. Dkt. No. 1. Amtrak answered on October 7, and filed a third-party complaint against Weeks on October 20, which Weeks answered. Dkt. Nos. 8, 12. On February 14, 2012, the case was reassigned to the undersigned. On March 1, 2013, the parties filed their motions for summary judgment on Wallace's claims, which were fully submitted as of March 29. On April 11, Weeks amended its answer to ...

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