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Antonio Simoes v. National Railroad Passenger Corporation

May 26, 2011

ANTONIO SIMOES,
PLAINTIFF,
v.
NATIONAL RAILROAD PASSENGER CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Cooper, District Judge

NOT FOR PUBLICATION

MEMORANDUM OPINION

Plaintiff, Antonio Simoes, brings this action against defendants, National Railroad Passenger Corporation ("Amtrak") and Commercial Cleaning Corporation ("CCC"), for personal injuries that occurred at Amtrak's Adams Station Maintenance Facility (the "facility"). (Dkt. entry no. 12, Am. Compl.) Count One asserts a cause of action for negligence against Amtrak, plaintiff's employer at the time of the incident, pursuant to the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. (Am. Compl. at ¶¶ 11-17.) Count Two asserts a cause of action under state law for negligence against CCC, the provider of janitorial and maintenance services at the facility. (Id. at ¶¶ 18-24.)

Amtrak asserts cross-claims against CCC for (1) common law indemnity and contribution, and (2) contractual indemnity. (Dkt. entry no. 22, Amtrak Ans. & Cross-cl.)*fn1 Amtrak now moves for summary judgment in its favor on its cross-claim against CCC for contractual indemnity, pursuant to Federal Rule of Civil Procedure ("Rule") 56. (Dkt. entry no. 32, Mot. for Summ. J.) CCC opposes the motion. (Dkt. entry no. 34, CCC Br.) The Court decides the motion on the papers without oral argument, pursuant to Rule 78(b). The Court, for the reasons stated herein, will grant in part and deny in part the motion.

BACKGROUND

I. Plaintiff's Injury

Amtrak employed plaintiff as an electrician. (Am. Compl. at ¶ 8; dkt. entry no. 32, Fedyna Decl., Ex. E, Simoes Dep. at 54:22-55:4.) On September 22, 2008, while moving a cooler full of ice, he slipped and fell on a wet surface in the lunchroom of the facility and suffered personal injuries to his back and neck. (Id. at ¶¶ 9-10.)

There is no dispute that it was well-known to both Amtrak and CCC personnel that the lunchroom floor near the ice machine was chronically wet and slippery. (Dkt. entry no. 32, Amtrak Stmt. Facts at ¶¶ 8-10; dkt. entry no. 34, CCC Resp. to Amtrak Stmt. Facts ("CCC Resp. Stmt.") at ¶¶ 8-10; dkt. entry no. 34, CCC Supp'l Stmt. Facts ("CCC Supp'l Stmt.") at ¶¶ 2, 8-9, 11-13; dkt. entry no. 34, Coyne Cert., Ex. 1, McPartland Dep. at 30:11-24 (testimony of plaintiff's supervisor that "everybody" in plaintiff's "gang" had "at some point complained about" the slippery and wet conditions of the lunchroom floor).) CCC has pointed to testimony indicating a possibility that plaintiff's injury was caused due to slipping on ice that he himself caused to be on the floor. (CCC Supp'l Stmt. at ¶ 6 (citing testimony of plaintiff's co-worker, who was present during the incident, that he "never observed any ice on the floor until . . . after the plaintiff had fallen").) This testimony may or may not be consistent with plaintiff's recollection that there was water on the floor when he first entered the lunchroom on the day of the incident. (Simoes Dep. at 115:4-117:12.) As plaintiff explained it, the floor was wet because pieces of ice had melted. (Simoes Dep. at 119:2-120:2, 123:9-124:14.)

II. Relationship Between Amtrak and CCC

CCC was engaged by Amtrak to provide janitorial and maintenance services at the facility at the time of the incident. (Am. Compl. at ¶ 7.) CCC's agreement with Amtrak was to perform this janitorial work on Mondays, Wednesdays, and Fridays. (CCC Resp. Stmt. at ¶ 3; Amtrak Stmt. Facts at ¶ 3; Fedyna Decl., Ex. B, Purchase Order at 10.) September 22, 2008, was a Monday. (Amtrak Stmt. Facts at ¶ 5.) The timesheet of the CCC janitor assigned to the facility shows that he was there from 7:00 a.m. to 11:00 a.m. on the day of the incident. (Amtrak Stmt. Facts at ¶ 14 & Fedyna Decl., Ex. J.)

Amtrak contends that it had a "Purchase Order contract" with CCC at the time of the incident providing that CCC would, inter alia, (1) clean, sweep, and mop the floors; (2) keep the grounds clean, neat, and presentable; (3) post notices; (4) provide minor maintenance and/or repairs as needed; (5) monitor the facility for maintenance and repair issues; and (6) notify Amtrak of any problems. (Amtrak Stmt. Facts at ¶ 2; Purchase Order at 4-5; but see CCC Resp. Stmt. at ¶ 2 (observing that "Statement of Work" in Purchase Order also contained requirements not applicable to the facility insofar as the facility is for maintenance only and does not accommodate rail passengers).) The Purchase Order, identified as Purchase Order No. S 060 14164, was first issued on March 11, 2005, and revised as of May 16, 2008 to "extend [the] contract period at same terms and conditions through 12/31/08." (Purchase Order at 10.) It provided that Amtrak would pay $1,395.00 per month for the services detailed therein. (Id.)

The Purchase Order contains an indemnification provision stating:

The contractor [CCC] agrees to defend, indemnify and hold harmless Amtrak, its officers, directors, employees, agents, servants, successors, assigns and subsidiaries, irrespective of any negligence on their part, from and against any and all losses and liabilities, . . . claims, causes of action, suits, costs and expenses incidental thereto (including cost of defense and attorney's fees), which any or all of them may hereafter incur, be responsible for or pay as a result of injury . . . to any person . . . arising out of or in any degree directly or indirectly caused by or resulting from activities of or work performed by the contractor, contractor's officers, employees, agents, servants, subcontractors, or any other person acting for or by permission of the contractor. (Purchase Order at 7.)

Each page of the Purchase Order states that the Purchase Order is "subject to the terms and conditions as detailed in NRPC Form 69 revised 8/91." (Purchase Order at 1-11; Fedyna Decl., Ex. C, NRPC Form 69.) NRPC ...


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