REGGIE B. WALTON, District Judge.
This action was instituted on behalf of individuals who were killed or injured in a collision between two Washington Metropolitan Area Transit Authority ("WMATA") trains that occurred on June 22, 2009, near WMATA's Fort Totten Metrorail station. Currently before the Court are the following seven contested dispositive motions: (1) WMATA's motion to dismiss Alstom Signaling, Inc.'s ("Alstom") statute of repose affirmative defense, ECF No. 353;
When a defendant moves for dismissal under Federal Rule of Civil Procedure 12(b)(1), "the plaintiff[] bear[s] the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction." Biton v. Palestinian Interim Self-Gov't Auth., 310 F.Supp.2d 172, 176 (D.D.C.2004); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A court considering a Rule 12(b)(1) motion must "assume the truth of all material factual allegations in the complaint and `construe the complaint liberally, granting [a] plaintiff the benefit of all inferences that can be derived from the facts alleged.'" Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.Cir.2011) (quoting
Federal Rule of Civil Procedure 12(c) permits "a party [to] move for judgment on the pleadings" so long as the motion is made "[a]fter the pleadings are closed — but early enough not to delay trial." "The standard for a motion for judgment under Rule 12(c) is essentially the same standard as a motion to dismiss under Rule 12(b)(6)." Rollins v. Wackenhut Servs., 802 F.Supp.2d 111, 116 (D.D.C. 2011) (citing, among others, Schuchart v. La Taberna Del Alabardero, Inc., 365 F.3d 33, 35 (D.C.Cir.2004)). Accordingly, when considering a Rule 12(c) motion, "the court must accept the nonmovant's allegations as true and should view the facts in the light most favorable to the nonmovant." Bowman v. District of Columbia, 562 F.Supp.2d 30, 32 (D.D.C.2008). "The court should grant a motion for judgment on the pleadings if the movant `is entitled to judgment as a matter of law.'" Id. (quoting Burns Int'l Sec. Servs. v. Int'l Union, 47 F.3d 14, 16 (2d Cir.1995)).
A motion for summary judgment will be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the initial burden of showing the absence of a disputed material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party opposing a motion for summary judgment "may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact is one that "might affect the outcome of the suit under the governing law." Id. "The evidence is to be viewed in the light most favorable to the nonmoving party and the court must draw all reasonable inferences in favor of the nonmoving party." Talavera v. Shah, 638 F.3d 303, 308 (D.C.Cir. 2011) (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505). "Although summary judgment is not the occasion for the court to weigh credibility or evidence, summary judgment is appropriate `if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Id. (citations omitted). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a [reasonable] jury to return a verdict for that party." Anderson, 477 U.S. at 249, 106 S.Ct. 2505. "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Id. at 252, 106 S.Ct. 2505 (emphasis added).
Alstom asserts, as an affirmative defense, that WMATA's cross-claims for
The Court concludes that WMATA's cross-claim for contractual indemnity falls under the statute of repose's exception for claims based on a contract, but that its cross-claim for contribution does not. The Court also concludes that neither cross-claim falls under the statute of repose's exception for claims brought by the District. Accordingly, WMATA's motion is granted in part and denied in part.
WMATA filed a cross-claim against Alstom containing two counts: Count I is for contribution, and Count II is for contractual indemnity. See ECF No. 140 ¶¶ 84-90. The contribution claim asserts that if WMATA is found liable to the plaintiffs, WMATA is entitled to contribution from Alstom with respect to damages proximately caused by Alstom's negligently and defectively designed automatic train control system. Id. ¶¶ 85-86. The contractual indemnity claim asserts that if WMATA is found liable to the plaintiffs, it is entitled to indemnification from Alstom pursuant to several provisions of a contract between the parties. Id. ¶ 88. In its Answer to WMATA's cross-claim, Alstom asserts that WMATA's cross-claims for contribution and indemnification are time-barred under the District's statute of repose. ECF No. 178 ¶ 10.
The District's statute of repose bars "any action" for "personal injury" or "wrongful death ... resulting from the defective or unsafe condition of an improvement to real property" if the injury or death occurs more than ten years after the "improvement was substantially completed." D.C.Code § 12-310(a)(1)(A) (2001).
WMATA now moves for judgment on the pleadings under Rule 12(c), contending that Alstom's statute of repose defense fails as a matter of law because WMATA's cross-claim falls under both of the foregoing exceptions to the statute of repose. First, WMATA argues that the statute's exception for "any action brought by the District of Columbia government," id. § 12-310(b)(4), applies because WMATA is an agency of the District under the terms of the interstate compact that created it, and thus should be treated as "the District of Columbia government" for the purposes of the statute of repose, ECF No. 353-1 at 5. It further contends that even if § 12-310(b)(4) is construed to apply
The majority of Alstom's opposition brief focuses on the merits of WMATA's cross-claim (i.e., WMATA's entitlement to contribution and indemnity from Alstom). These arguments, however, are irrelevant to the issues presented in WMATA's motion, and will be considered by the Court only in the context of Alstom's motion for summary judgment (which is discussed infra in this Memorandum Opinion). Alstom makes only one argument responsive to WMATA's motion: it contends that the statute of repose's exception for "any action brought by the District of Columbia government," id. § 12-310(b)(4), does not apply here because (1) WMATA is not "the District of Columbia government," and (2) even if it were, this statutory exception applies only when the District's lawsuit vindicates a public right, and WMATA's cross-claim to recover the costs of its own negligence vindicates no such right. See ECF No. 382 at 7-12.
Notwithstanding the order in which WMATA presents it arguments, the Court finds that its strongest position is based on the statute of repose's exception for contract claims. The Court thus considers the applicability of that exception first, and then turns to the exception for claims asserted by the District.
As noted, WMATA's cross-claim asserts two counts: Count I for contribution, and Count II for contractual indemnity. See ECF No. 140 ¶¶ 84-90. Despite WMATA's misleading argument that its cross-claim against Alstom is "primarily" based on a contract, its contribution cross-claim plainly sounds in tort, not contract. See id. ¶ 85 (seeking contribution from Alstom insofar as its negligence proximately caused WMATA's liability, and not referencing any contract). And "[c]ontribution is one of several theories used to apportion damages among tortfeasors to an injured party." D.C. v. Wash. Hosp. Cent., 722 A.2d 332, 336 (D.C.1998) (emphasis added). Thus, WMATA's contribution cross-claim is not exempt from the statute of repose under § 12-310(b)(1).
WMATA's contractual indemnity cross-claim is another story. This claim asserts that Alstom is contractually bound to indemnify WMATA for any damages it pays to the plaintiffs. See ECF No. 140 ¶¶ 88-90. Because this claim is "based on a contract" between Alstom and WMATA, it is exempt from the statute of repose under § 12-310(b)(1).
Determining the applicability of this exception entails three, interrelated questions: First, should WMATA be considered
"WMATA was created by an interstate compact entered into by the District of Columbia and the states of Maryland and Virginia." Watters v. WMATA, 295 F.3d 36, 39 (D.C.Cir.2002). The interstate compact establishes that WMATA is "an instrumentality and agency of each of the signatory parties," which includes the District. D.C.Code § 9-1107.01, art. III, § 4 (2001); see also id., art. II, § 2 ("The purpose of this Title is to create a regional instrumentality, as a common agency of each signatory party."). Nevertheless, "[s]ince WMATA's conception in 1981, the unique nature of the compact has spawned a great deal of litigation regarding the proper scope of WMATA's jurisdiction and liability," with many cases turning upon "whether WMATA can be considered an agency of the District of Columbia." Griggs v. WMATA, 66 F.Supp.2d 23, 27 (D.D.C.1999) (surveying caselaw where WMATA is treated as a District agency for some purposes, but not others). The determination of whether WMATA is part of the District government, in other words, varies depending on the particular circumstances of each case. See id.
The issue here is whether WMATA should be considered "the District of Columbia government" within the meaning of the statute of repose's exception for "any action brought by the District of Columbia government." D.C.Code § 12-310(b)(4). The Court concludes that it should for the following reasons.
D.C.Code § 12-310(b)(4) was enacted as part of the District of Columbia Statute of Limitations Amendment Act of 1986. D.C. Water & Sewer Auth. ("WASA") v. Delon Hampton Assocs., 851 A.2d 410, 414 (D.C.2004). The D.C. Court of Appeals has recognized that this legislation codified the common law doctrine of nullum tempus ("no time runs against the sovereign"). See id. ("[A]n underlying aim of the [D.C.] Council" in enacting the law "was to ensure that the District received, at the least, the benefit of the common law principle of `nullum tempus.'"). Under the doctrine of nullum tempus, "sovereigns enjoy a common-law immunity from the operation of statutes of limitations and repose ... when [they] sue[] to vindicate public rights." D.C. v. Owens-Corning Fiberglas Corp., 572 A.2d 394, 401, 406 (D.C.1989). Of particular relevance here, nullum tempus immunity is generally considered a type of sovereign immunity. See Solid Rock Church, Disciples of Christ v. Friendship Pub. Charter Sch., Inc., 925 A.2d 554, 559-60 (D.C.2007) ("[T]he District ... enjoys limited sovereign immunity from the operation of statutes of limitation under the common law doctrine of nullum tempus." (emphasis added)); Owens-Corning, 572 A.2d at 405 (noting that "[s]ince Congress is sovereign
Resisting this conclusion, Alstom relies upon the D.C. Court of Appeals' decision in WASA, 851 A.2d at 414. There, the court held that the "functions and activities of WASA [the D.C. Water and Sewer Authority], a separate corporate body distinct from the District of Columbia, are proprietary in nature and thus beyond the protection of nullum tempus" and, in turn, outside the exception to the statute of limitations for "actions brought by the District of Columbia government" codified at D.C.Code § 12-301 (2001). Id. at 416. To be sure, WASA and WMATA have some similarities — they can both sue and be sued in their own names, and they can enter into contracts with the District. Compare D.C.Code §§ 43-1672, 43-1673 (2001) (WASA enabling legislation), with D.C.Code § 9-1107.01, Tit. III, Art. II, § 2; id., Art. V, §§ 12(a), 12(f) (2001) (WMATA Compact). However, whereas WASA's enabling legislation makes clear that it is "an independent authority of the District government" and a "corporate body ... that has a separate legal existence within the District government," D.C.Code § 34-2202.02(a) (2001) (emphasis added), the interstate compact declares that WMATA is "an instrumentality and agency of each of the signatory parties," including the District. D.C.Code § 9-1107.01, art. III, § 4 (2001). And WMATA derives sovereign immunity from the District, see Watters, 295 F.3d at 39, which includes nullum tempus immunity. WASA apparently does not. Because of these key distinctions between WASA and WMATA, Alstom's reliance on WASA is misplaced.
Even though WMATA may be treated as the District government for purposes of § 12-310(b)(4), that does not
While WMATA's position may find support in stray phrases from WASA, the actual reasoning of that decision indicates that § 12-310(b)(4) only codifies nullum tempus and extends no further.
Having found that WMATA qualifies as the District government for purposes of § 12-310(b)(4), and that § 12-310(b)(4) only applies to claims brought to enforce a public right, the question now becomes whether WMATA's cross-claim against Alstom seeks to enforce a public right. The Court concludes that it does not.
The D.C. Court of Appeals discussed the "public function requirement" of nullum tempus immunity at length in Owens-Corning:
572 A.2d at 406-407. Applying these principles, the court in Owens-Corning held that the District's lawsuit seeking to recover costs for the removal of asbestos from roughly 2,400 public buildings was brought "to vindicate a public right" because the public "[u]nquestionably" had "a profound interest in the elimination of a danger so extreme and widespread." Id. at 396, 407.
Drawing on Owens-Corning, WMATA maintains that its cross-claim against Alstom "seeks to protect the public at large from the negligent design defects in Alstom's automatic train control system." ECF No. 353-1 at 13. WMATA also contends that this case is analogous to Weiss because its cross-claim "seeks to replenish the public treasures of money expended, and potential liabilities incurred, in the exercise of a public function, i.e., providing rail transportation in the Washington, D.C. metropolitan area." Id. at 15. Alstom responds by arguing that, in contrast to the District's lawsuits in Owens-Corning and Weiss, WMATA's cross-claim "does not seek to recover any costs incurred by the District of Columbia in eliminating a public hazard such as asbestos or tuberculosis. Rather, WMATA seeks to recover the costs which WMATA caused [the p]laintiffs to incur as a result of its own negligence — assuming it is found liable to [the p]laintiffs at trial — through equitable contribution as a joint tortfeasor and contractual indemnity of tort liability." ECF No. 382 at 10 (emphasis in original). Noting that WMATA's recovery for contribution and indemnity necessarily depends on WMATA being found liable in the first instance, Alstom argues that "WMATA's suit to recover the costs of its own wrongdoing is plainly not a public function." Id. at 11 (emphasis in original).
The Court finds that WMATA's cross-claim against Alstom does not enforce a public right.
In sum, WMATA's cross-claim for contractual indemnity (Count I) falls under the statute of repose's exception for claims based on a contract, but its cross-claim for contribution (Count II) does not. And neither count of WMATA's cross-claim fits the statute of repose's exception for claims brought by the District. Accordingly, WMATA's motion to dismiss Alstom's statute of repose affirmative defense is granted in part and denied in part.
This motion warrants only brief discussion. In their briefings, the parties agree to the dismissal of Count 14 (Negligent Train Traffic Control) of the plaintiffs' Second Amended Master Complaint because it is duplicative of Count 7. See ECF No. 390 at 1; ECF No. 394 at 1. The Court will therefore dismiss Count 14 of the Second Amended Master Complaint.
Ansaldo also moves for judgment on Count 11 (Breach of the Implied Warranty of Merchantability), and Count 15 (Breach of Warranty & Implied Warranty of Fitness for a Particular Purpose) of the Second Amended Master Complaint. The Court previously dismissed these counts as to Alstom, holding that "where a plaintiff alleges claims for both strict products liability and breach of implied warranties based on allegedly defective products against a party not in privity with the plaintiff, the implied warranty claims must be dismissed because the actions are the same." In re Fort Totten Metrorail Cases, 793 F.Supp.2d 133, 152 (D.D.C. 2011). In their opposition to Ansaldo's motion, the plaintiffs merely reincorporate the arguments that the Court previously rejected. See ECF No. 390 at 2. Accordingly, consistent with its prior ruling, the Court will dismiss Counts 11 and 15 of the Second Amended Master Complaint as to Ansaldo.
In this motion, WMATA asserts that the corporate defendants' cross-claims against it for equitable indemnification must be dismissed because the interstate compact does not waive WMATA's sovereign immunity for equitable indemnification claims. The Court agrees with WMATA and concludes that its motion must therefore be granted.
The three corporate defendants, ARINC, Ansaldo, and Alstom, have all asserted cross-claims for equitable indemnification against WMATA.
In addressing whether the corporate defendants' cross-claims against WMATA are barred by sovereign immunity, it is first necessary to explore the nature of an equitable indemnification claim. "Although the right to indemnify
WMATA maintains that the "[c]ross-claimants' causes of action for indemnification against WMATA are expressly based on equity, and do not rely on a contract." ECF No. 424-1 at 5. The corporate defendants disagree, claiming that "equitable indemnity sounds in tort under controlling D.C. law." ECF No. 478 at 1. The corporate defendants are incorrect. Equitable indemnification is premised on "the equities of the case and the relationship of the parties." Howard Univ., 608 A.2d at 122. While the corporate defendants may be correct that determining the equities in a given case will often require an examination of the "kind and quality," Quandrangle Dev. Corp., 748 A.2d at 435, of the tortious conduct at issue, this does not mean that equitable indemnification sounds in tort. Rather, this examination of the tortious conduct provides the basis from which to assess the equities. Thus, although "the [c]ross-plaintiffs' equitable indemnification cross-claims concern WMATA's [allegedly] tortious misconduct," ECF No. 478 at 10 (emphasis added), they are not tort claims. The cross-plaintiffs' equitable indemnification claims are based on equitable principles — not tort or contract law.
WMATA asserts that "[t]he cross-claimants cannot show the existence or applicability of any waiver of sovereign immunity that would make WMATA amenable to suit for implied indemnification." ECF No. 424-1 at 7. The Court agrees.
"In signing the WMATA Compact, Maryland, Virginia, and the District of Columbia conferred upon WMATA their respective sovereign immunities." Beebe v. WMATA, 129 F.3d 1283, 1287 (D.C.Cir. 1997). "Although [section 12(a) of] the WMATA Compact provides that WMATA may `[s]ue and be sued,' [the Circuit has] held that provision to extend only as far as the more specific (and partial) waiver of sovereign immunity contained in section 80 of the Compact." Watters, 295 F.3d at 40. In relevant part, Section 80 of the interstate compact provides:
D.C.Code § 9-1107.01(80) (emphasis added).
"Waivers [of sovereign immunity] must be construed strictly in favor of the sovereign and not enlarged beyond what the language requires." Kingston Constructors, Inc. v. WMATA, 860 F.Supp. 886, 888-89 (D.D.C.1994) (citing Library of Congress v. Shaw, 478 U.S. 310, 317, 318, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986)). "`There can be no consent by implication or by use of ambiguous language.... The consent necessary to waive [sovereign] immunity must be express, and it must be strictly construed.'" Id. (quoting Shaw, 478 U.S. at 318, 106 S.Ct. 2957); see also Watters, 295 F.3d at 40 ("We may find a waiver of sovereign immunity `only where stated by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction.'" (quoting Morris v. WMATA, 781 F.2d 218, 221 (D.C.Cir.1986))).
Although there appear to be no cases dealing specifically with whether the WMATA compact waives sovereign immunity for equitable indemnification claims, courts have concluded that the compact does not waive sovereign immunity for other equitable remedies. For example, in Martin v. WMATA, 273 F.Supp.2d 114 (D.D.C.2003), another judge of this Court held that WMATA was immune from the plaintiff's promissory estoppel claim. See id. at 119 ("Section 80's waiver only denotes WMATA's liability for its contracts and torts occurring in the performance of a non-governmental function; it does not mention promissory estoppel, which is a distinct legal theory."). And in Watters, the Circuit determined that an attorney's lien was not a contract with, or tort of, WMATA. 295 F.3d at 40. The court explained that "such a lien is an equitable device," and is "merely a claim to equitable interference by the court to have [a] judgment or settlement held as security." Id. at 41 (internal quotation marks and citation omitted). Most recently, the United States District Court for the District of Maryland held that because "WMATA has not explicitly waived its immunity as to quasi-contract claims [such as equitable estoppel], [it was] entitled to assert its sovereign immunity defense as to [the p]laintiff's Statute of Frauds claim." Greenbelt Ventures, LLC v. WMATA, No. 10-cv-157, 2011 WL 2175209, at *6 (D.Md. June 2, 2011).
In light of the need to strictly construe the WMATA compact's waiver, which only expressly waives WMATA's sovereign immunity for contracts and proprietary-function torts, and considering the foregoing case law finding WMATA immune from other forms of equitable claims, the Court concludes that WMATA has not waived its sovereign immunity as to equitable indemnification claims. Accordingly, WMATA's motion to dismiss is granted, and the corporate defendants' claims for equitable indemnification are dismissed for lack of subject matter of jurisdiction.
The corporate defendants jointly move for summary judgment on the ground that
A brief overview of two components — track circuits and the Advanced Information Management software — that play a part in WMATA's operation of the Metrorail system is necessary to resolve the corporate defendants' motion. First, to operate the Metrorail system, "WMATA uses an [Automatic Train Control] system that consists of a series of track circuits (or `blocks'), each with an electronic transmitter [module], receiver [module], vital relay, and impedance bonds." ECF No. 425-1 at 2. Each circuit has two impedance bonds. ECF No. 483 at 3. As the corporate defendants explain (and WMATA does not dispute):
ECF No. 425-1 at 2-3. A "bobbing" circuit is one in which the relay signal "fluctuates between an energized (indicating [a] vacant [circuit]) to a de-energized state (indicating [an] occupied [circuit]) regardless of whether a train is actually present in the track circuit." Id. at 4. A phenomenon known as "parasitic oscillation" occurs when the transmitter module bypasses the impedance bonds and sends a signal directly to the receiver module. In other words, parasitic oscillation is when the modules ignore the other components of the circuit and therefore convey information that is not based on the whole circuit.
Second, WMATA's Operations Central Control uses a software program called Advanced Information Management, which was developed by ARINC. ECF No. 483 at 15. The software generates alarms associated with bobbing circuits, false occupancies (i.e., always reporting blocks), and false vacancies (i.e., never reporting blocks). Id.; see also ECF No. 425-1 at 9 ("A `track circuit failed vacant' alarm means that the track circuit is reporting a vacancy when, in fact, the track circuit may actually be occupied."). The software designates a false vacancy as "minor," which means the alarm is self-acknowledging
The WMATA track circuit located at the site of the collision that resulted in this litigation is Circuit B2-304. At the time of the collision on June 22, 2009, Circuit B2-304 consisted of Alstom transmitter/receiver modules and Ansaldo impedance bonds. Id. at 3.
On June 17, 2009, WMATA replaced an Alstom impedance bond at Circuit B2-304 with an Ansaldo impedance bond. ECF No. 425-1 at 4. WMATA protocol calls for a "shunt verification test" after the installation of an impedance bond. Id. The test is conducted by laying a shunt strap between the rails. ECF No. 483 at 4. If the relay detects the presence of the shunt strap and interprets it as a train, the circuit is considered to have passed the shunt verification test. Id. The leader of the WMATA work crew that installed the impedance bond at Circuit B2-304 on June 17, 2009, has testified that she did not observe bobbing when the shunt verification test was being conducted, but stated that she observed that the circuit was bobbing after she completed the shunt verification test. Id. at 10.
After the WMATA work crew left the site, WMATA's Maintenance Operations Center opened a work order for the bobbing at Circuit B2-304. ECF No. 425-1 at 7. Despite the work order, and visits by different work crews to Circuit B2-304 on June 18, 19, and 22, 2009, Circuit B2-304 was still bobbing when the collision occurred on June 22, 2009. Id. at 7-8. And, no one at WMATA had instituted an "absolute block" — closing down specific locations of track into which no train would be permitted to enter — while Circuit B2-304 was bobbing.
Between June 17 and 22, 2009, the Advanced Information Management system generated "hundreds and hundreds" of "track circuit failed vacant" alarms on the Red Line in the area between the Takoma and the Fort Totten Metrorail stations. ECF No. 425-1 at 9. In the hour before the June 22, 2009 collision, the Advanced Information Management system generated seventeen separate "track circuit failed vacant" alarms. Id. Indeed, two minutes before the collision, while the train that was struck was stopped between the Takoma and Fort Totten stations, the system generated a "track circuit failed vacant" alarm for that area of the track. Id. at 9-10. WMATA did not have a protocol at its Operations Central Control for responding to a failed vacant alarm, and neither controller on duty at the time of the collision instituted an absolute block in response to the failed vacant alarm. Id. at 10.
In moving for summary judgment, the corporate defendants maintain that "[t]he key undisputed fact is that WMATA placed a known, malfunctioning track circuit in service, contrary to its own policies." ECF No. 425-1 at 11. The corporate defendants further assert that "[e]ven if the Court found Alstom, Ansaldo, or ARINC's equipment to be defective, or that there was a lack of safety testing, WMATA's reckless actions were the superseding cause of the accident, thereby relieving Alstom, Ansaldo, and ARINC of all liability as a matter of law." Id. at 12. WMATA and the plaintiffs disagree. Specifically, WMATA argues that it viewed bobbing track circuits as a maintenance, rather than a safety, issue, ECF No. 483 at 2, and that its work crews were consequently unaware of the actual hazard at
"Proximate cause has been defined as that cause which, in natural and continual sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred." Convit v. Wilson, 980 A.2d 1104, 1125 (D.C.2009). "Superseding cause is a subset of the inquiry into proximate cause," id. at 1125-26, and essentially it is "a concept that the action of a subsequent tortfeasor may be a superseding cause which breaks the chain of causation and relieves the first tortfeasor of liability to the injured party," id. at 1126. "The question of proximate causation ... is at base one of foreseeability." Rieser v. District of Columbia, 563 F.2d 462, 479 (D.C.Cir.1977). "If a negligent, intentional or even criminal intervening act or end result was reasonably foreseeable to the original actor, his liability will not ordinarily be superseded by that intervening act." Id.
As even the corporate defendants acknowledge, proximate causation is ordinarily a question of fact for the jury. See ECF No. 425-1 at 22. Indeed, the cases are legion holding that it is only the "exceptional case" in which questions of proximate cause "pass from the realm of fact to one of law." Majeska v. District of Columbia, 812 A.2d 948, 950 (D.C.2002) (emphasis added); accord Rieser, 563 F.2d at 480 ("Proximate causation, including the question of superseding cause, ... is ordinarily a question of fact for the jury."); Smith v. Hope Village, Inc., 481 F.Supp.2d 172, 185 (D.D.C.2007) (Walton, J) (citing cases).
This case is not so exceptional as to warrant removing the determination of causation from the jury. Compare, for example, the facts of this case to that in In re Korean Air Lines Disaster, No. 83-cv-0345, 1985 WL 9447 (D.D.C. Aug. 2, 1985), which the corporate defendants cite in support of their motion. In Korean Air, a jet owned and operated by Korean Air Lines inadvertently veered into the airspace of the Soviet Union and was intentionally shot down by Soviet missile attack. Id. at *1. The parties had conceded defects in the plane's navigational systems, and the sole question before the court was the foreseeability of the Soviet Union's actions. Id. The Court ruled that the defendants, manufacturers of the plane's navigational systems, could not "be held liable for the unexpected act of aggression by the Soviet Union." Id. at *7.
Here, in contrast to the Soviet Union's deliberate launching of missiles in In re Korean Air, WMATA's alleged superseding acts were merely negligent, not intentional. Such negligent acts are not so unforeseeable that the corporate defendants can be absolved of liability as a matter of law. On the contrary, a reasonable jury could conclude that the corporate defendants should have foreseen that WMATA would fail to take action on a work order for five days, despite WMATA's own policies to respond to a work
Ansaldo moves for summary judgment as to all claims on the following grounds: (1) it is entitled to derivative sovereign immunity because all of the claims against it stem from WMATA's "immune decision" to sequence the installation of Ansaldo's impedance bonds and modules; (2) there is no evidence that Ansaldo's impedance bonds and Alstom's modules were incompatible; (3) the failure to warn claims against Ansaldo fail because (a) there is no duty to warn about another manufacturer's (i.e., Alstom) products, and (b) WMATA is a "sophisticated user" to which Ansaldo owed no duty to warn; and (4) the derivative counts of wrongful death and survival must be dismissed if the underlying counts are dismissed.
The Court concludes that (1) Ansaldo's attempt to invoke derivative sovereign immunity fails as a matter of law because the claims against it do not relate to any "immune" decisions made by WMATA; instead, the claims assert that Ansaldo breached its contractual obligations to WMATA and that Ansaldo performed under the contract negligently; (2) Ansaldo's argument that there is no evidence of incompatibility is essentially a causation issue that must be decided by a jury; (3) Ansaldo did have a legal duty to warn WMATA; and (4) the derivative counts should not be dismissed because the underlying counts remain. Accordingly, the Court denies Ansaldo's motion in its entirety.
As explained above, WMATA employs an "automatic train control system" to ensure safe train detection, separation, and speed restrictions. ECF No. 480 at 3. This system is comprised of "track circuits," which are railroad segments of varying lengths. Id. Two impedance bonds are located on each track circuit. Id. The impedance bonds communicate via transmitters and receivers called "modules," which are located at the nearest station in an unmanned train control room. Id.
Communication between the impedance bonds and the modules is accomplished by transmitter and receiver modules that exchange audio-frequency signals. Id. A train's presence on the track is sensed
Alstom designed WMATA's original automatic train control system in the 1970s, including its impedance bonds and modules. Id. at 3-4. Beginning in 2002, WMATA contracted with Ansaldo to replace the Alstom impedance bonds and modules with Ansaldo products. Id. at 4. Two separate contracts were executed by the parties. ECF No. 426-1 at 15. Under the first contract, Ansaldo was originally required to replace the impedance bonds and modules simultaneously. Id. However, due to safety concerns about non-WMATA personnel working on the tracks, WMATA altered the replacement process as follows: first, only WMATA employees would replace the impedance bonds; second, WMATA employees would conduct a safety test of the track circuit; and third, Ansaldo employees would replace the modules and conduct another safety test of the track circuit. Id. at 15; ECF No. 480 at 5. This change in the replacement project resulted in a temporarily "mixed track circuit" consisting of the old Alstom modules and the new Ansaldo impedance bonds. ECF No. 480 at 5.
The second contract, which covered track circuit replacements at 22 locations throughout WMATA's system, reflected this "temporary mixed track circuit configuration." Id. Specifically, the contract provided that "WMATA personnel will perform all wayside installation [of the Ansaldo] impedance bonds," and that Ansaldo "will replace [the Alstom] ... modules [with Ansaldo modules] after the associated wayside equipment has been installed." ECF No. 480-9 (Contract No. F05143) § 1.01.C (emphasis added). Recognizing that, as a result of this revised replacement process, "[n]ew impedance bonds will temporarily be in service with existing [Alstom]... modules," the contract directed that the Ansaldo "impedance bonds being provided on this Contract must be compatible with the existing [Alstom] ... modules." Id. (emphasis added). The contract also required Ansaldo to provide a "Hazard Mode and Effect Analysis, which, as a minimum, identifies one example of each hazard that may be produced by each possible failure in [Ansaldo's] equipment and software." Id. § 1.06. Finally, the contract provided that "[t]he system shall be proven by [Ansaldo] to be fail safe and operational upon completion of the installation." Id. § 1.01.A. In the context of a public transit railroad, the term "fail safe" means that "if a vital component fails, the system will automatically revert to a less permissive state which restricts the movement of trains." ECF No. 480-1 at 2.
According to WMATA, despite Ansaldo's "contractual requirement to provide compatible equipment," Ansaldo "took no actions whatsoever to evaluate the safety of using its [impedance] bonds with Alstom's modules." ECF No. 480 at 7-8. WMATA further claims that prior to the June 22, 2009 Fort Totten train collision, Ansaldo became aware of specific compatibility problems with the Ansaldo impedance bonds and Alstom modules, but did nothing to address them. See id. at 8-9.
The track circuit at issue in this case, Circuit B2-304, contained a mixed configuration of Ansaldo impedance bonds and Alstom modules when the accident occurred. Id. at 9. In seeking to explain the cause of the June 22, 2009 train collision, WMATA contends that a latent defect in the automatic train control system known as "parasitic oscillation" caused a signal to be transmitted which falsely indicated that Circuit B2-304 was vacant. Id. at 2-3. This, in turn, led Train No. 112 to crash
Ansaldo asserts that all of the claims and cross-claims against it "stem from WMATA's decision to sequence the timing of bond and module installation," which led to track circuits temporarily consisting of Ansaldo impedance bonds and Alstom modules, and that this decision of WMATA is protected by sovereign immunity. ECF No. 426-1 at 14. Ansaldo further contends that because it "followed WMATA's safety and scheduling directions, as required by its contract with WMATA," it is entitled to "derivative sovereign immunity" under Yearsley v. W.A. Ross Construction Co., 309 U.S. 18, 60 S.Ct. 413, 84 L.Ed. 554 (1940), and its progeny. Id. at 14-15, 60 S.Ct. 413.
In Yearsley, the Supreme Court considered whether a contractor that built dikes in the Missouri River pursuant to a contract with the federal government could be held liable for damage caused by the construction of the dikes. See 309 U.S. at 19-20, 60 S.Ct. 413. The contract was part of a federal project "authorized by an Act of Congress." Id. at 19, 60 S.Ct. 413. The Court concluded that the contractor could not be held liable, reasoning that when the "authority to carry out [a] project [is] validly conferred, that is, [when] what [is] done was within the constitutional power of Congress, there is no liability on the part of the contractor for executing [Congress's] will." Id. at 20-21, 60 S.Ct. 413. The Court observed, however, that "[w]here an agent or officer of the Government purporting to act on its behalf has been held to be liable for his conduct causing injury to another, the ground of liability has been found to be either that he exceeded his authority or that it was not validly conferred." Id. at 21, 60 S.Ct. 413.
Federal courts have construed Yearsley as creating the so-called "doctrine of derivative sovereign immunity." McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1343 (11th Cir.2007). To claim such immunity, a private contractor generally must show that (1) it "was working pursuant to the authorization and direction of the federal government," and (2) "the acts of which the plaintiff complained fell within the scope of those government directives." In re World Trade Center Disaster Site Litig., 521 F.3d 169, 196 (2d Cir.2008) (citing Yearsley, 309 U.S. at 20-21, 60 S.Ct. 413).
Several initial hurdles impede Ansaldo's efforts to invoke the Yearsley doctrine in this case. First, no court in this Circuit has applied the doctrine. Second, the Circuits that have applied it are not in consensus regarding the doctrine's requirements.
The Yearsley doctrine is subject to two important limitations. First, "a key premise of Yearsley, and one that has been reiterated by [various federal courts] is that the contractor was following the sovereign's directives." Chesney v. Tenn. Valley Auth., 782 F.Supp.2d 570, 582 (E.D.Tenn.2011) (citing, among others, Yearsley, 309 U.S. at 20-21, 60 S.Ct. 413). "While Yearsley established that a private corporation performing governmental functions pursuant to contractually delegated authority will not be liable in tort to third parties, it also acknowledged that an agent or officer of the Government purporting to act on its behalf, but in actuality exceeding his authority, shall be liable for his conduct causing injury to another." In re KBR, Inc., 736 F.Supp.2d 954, 967 (D.Md.2010) (citing Yearsley, 309 U.S. at 21, 60 S.Ct. 413); accord Myers v. United States, 323 F.2d 580, 583 (9th Cir.1963) ("To the extent that the work performed by [the federal contractor defendant] was done under its contract with the Bureau of Public Lands, and in conformity with the terms of said contract, no liability can be imposed upon it for any damages claimed to have been suffered by the appellants." (citing Yearsley, 309 U.S. at 18, 60 S.Ct. 413) (emphasis added)). Second, derivative sovereign immunity is not available to contractors who act negligently in performing their obligations under the contract. See Ackerson, 589 F.3d at 207 (indicating that a contractor that commits a "separate act of negligence" is not entitled to derivative sovereign immunity under Yearsley); City of Worcester v. HCA Mgmt. Co., 753 F.Supp. 31, 38 (D.Mass. 1990) (Yearsley does not apply "when a private corporation who performs governmental duties pursuant to contractual authority from the government is sued for negligence in the performance of these duties.").
In assessing whether Ansaldo is entitled to derivative sovereign immunity under the foregoing principles, it is first necessary to identify the conduct of Ansaldo that is being challenged by the plaintiffs and cross-plaintiffs (WMATA and Alstom). The parties, not surprisingly, disagree as to what that conduct is. According to Ansaldo, all of the claims and cross-claims against it arise from WMATA's "safety and scheduling decision to sequence the installation of bonds and modules," a decision which Ansaldo claims is protected by sovereign immunity. ECF No. 550 at 1. The plaintiffs and cross-plaintiffs, on the other hand, argue that the claims against Ansaldo are predicated not on WMATA's decision to sequence
Ansaldo's derivative sovereign immunity argument mischaracterizes the nature of the claims and cross-claims being asserted against it. As previously noted, the operative contract between Ansaldo and WMATA required Ansaldo to ensure that its impedance bonds were "compatible" with the existing Alstom modules, in recognition of the fact that the "[n]ew impedance bonds will temporarily be in service with existing [Alstom] ... modules." ECF No. 480-9 (Contract No. F05143) § 1.01.C. The contract also required Ansaldo to perform a Hazard Modes and Effects Analysis and safety testing on the track circuit to ensure that it was "fail safe." See id. §§ 1.06, 1.01.A. The plaintiffs assert that Ansaldo negligently failed to perform safety and compatibility testing in violation of its contractual obligations and applicable standards of care, and that Ansaldo failed to warn WMATA about various issues related to the mixing of the Ansaldo and Alstom products. See ECF No. 482 at 1-2. Similarly, WMATA's cross-claim asserts that Ansaldo breached its contractual obligations to WMATA and acted negligently by failing to ensure the compatibility of the Ansaldo and Alstom products, and by failing to perform the requisite safety testing. See ECF No. 480 at 18. Thus, the very premise of these claims is that Ansaldo acted against the "will of the sovereign" by breaching its contractual duties to WMATA and by performing negligently under the contract.
Ansaldo nonetheless maintains that all of its alleged liability in this case flows from WMATA's "immune decision" to sequence the replacement of the impedance bonds and modules, noting that "[]Ansaldo would not be in this case if WMATA had not made the protected decision to use []Ansaldo bonds for a short period of time with the defective []Alstom modules." ECF No. 550 at 2-3. This argument confuses the issues. True, it was WMATA's decision to temporarily use Ansaldo impedance bonds and Alstom modules on the same track circuit. But after WMATA made that decision, the plaintiffs and WMATA contend that Ansaldo contractually guaranteed that those two products would be "compatible" and that it would conduct certain tests to ensure their safe operation. The claims against Ansaldo alleging that it acted negligently in performing its contractual obligations thus do not challenge WMATA's purportedly "immune decision," but instead concern Ansaldo's voluntary conduct after that decision was made. Consequently, Ansaldo is not entitled to derivative sovereign immunity under Yearsley as to these claims.
Ansaldo argues that summary judgment should be granted in its favor because "[n]on-defective [Alstom] track circuit modules are compatible with [Ansaldo] impedance bonds" and because "lack of `compatibility' did not cause the crash." ECF No. 426-1 at 23. Ansaldo continues: "Nothing ... is compatible with a dangerous, oscillating track circuit module and no impedance bond can ever mitigate the dangers associated with track circuit modules that break into parasitic oscillations." Id. Ansaldo thus strenuously maintains that "compatibility issues were not the cause of the accident." Id. There is sufficient evidence, however, from which a reasonable jury could conclude that, even if the parasitic oscillation was the sole cause of the June 22, 2009 collision, Ansaldo's bonds contributed to the oscillation.
For example, as noted above, WMATA argues that power increases required by the installation of the new Ansaldo impedance bonds "created the conditions necessary for the parasitic oscillation to pass through the rack structure, couple to the receiver, and mimic the track vacant signal." ECF No. 480 at 13; see also id. at 36 ("The need to increase power levels when Ansaldo bonds were installed is a significant factor in explaining how the incompatibility of the Ansaldo equipment contributed to the loss of train detection at [Circuit] B2-304."). Indeed, one of Alstom's expert witnesses, Dr. Duncan Glover, has provided testimony on the "many electrical differences between" the Alstom bonds that were replaced with the Ansaldo bonds, and has explained that one of these differences — bondline impedance — is "important because the lower impedance of the Ansaldo bond draws more current from the module, which in turn makes the transistors within the module more likely to oscillate." ECF No. 481 at 4; see also ECF No. 481-1 ¶ 247 ("Q. Will a lower impedance make a transistor work harder? A. For the same power level setting? Q. Yes. A. If the power level ... setting were the same and the impedance looking into the bond were lower, it would require more current to achieve the same voltage level.... [H]igher currents could make those parasitics have a higher magnitude."). There is thus a dispute of fact as to whether Ansaldo's impedance bonds played a role in the parasitic oscillation that Ansaldo vigorously claims was the sole cause of the collision. While Ansaldo may attempt to frame the issue in terms of questioning whether there is sufficient evidence of compatibility, see ECF No. 426-1 at 22, 24, Ansaldo's compatibility arguments are nothing more than claims that their bonds played no part in causing the collision. And, as has been set forth earlier in this Memorandum Opinion, it is only the "exceptional case" in which questions of proximate cause "pass from the realm of fact to one of law." Majeska, 812 A.2d at 950 (emphasis added).
Ansaldo maintains that even if there is evidence of incompatibility, the claims relating to that incompatibility must fail because Ansaldo's expert is the only expert in the case to have cited "any industry recognized definition relating to the compatibility of track circuit equipment." ECF No. 426-1 at 26. That expert, of course, testified that Ansaldo breached no duty of care regarding compatibility. See, e.g., ECF No. 426-2 ¶¶ 156-57 (describing
"The plaintiff in a negligence action bears the burden of proof on three issues: `the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between that deviation and the plaintiff's injury.'" Toy v. District of Columbia, 549 A.2d 1, 6 (D.C.1988) (quoting Meek v. Shepard, 484 A.2d 579, 581 (D.C.1984)). "Thus, at the outset, to establish a prima facie negligence case, the plaintiff must prove that the defendant deviated from the applicable standard of care." Toy, 549 A.2d at 6. From these legal requirements, Ansaldo asserts that "the definition of `compatible,' and the appropriate standard for compatibility testing, are matters that must be established by expert testimony." ECF No. 426-1 at 28. This, however, puts too fine a point on the standard of care burden of proof. For example, in Caldwell v. Bechtel, 631 F.2d 989 (D.C.Cir.1980), the court explained that "the analysis of both [the appellee] and the district court is overly reliant upon contract theory to the point of losing focus of the nature of the claim made here, which asserts negligence, rather than breach of contract." Id. at 996-97. In Bechtel, the plaintiff was a worker who had contracted a lung condition while working in the construction of a Metrorail tunnel. WMATA had contracted with Bechtel, a consultant, to ensure safe working conditions during the course of construction. The Circuit assessed "whether the contractual authority vested in Bechtel with respect to job site safety regulations created a special relationship between Bechtel and [the plaintiff/appellant] under with Bechtel owed a duty to take reasonable steps to protect him from foreseeable risk." Id. at 993. Bechtel asserted it owed the duty only to WMATA, not to the actual workers, an argument rejected by the Circuit:
Id. at 997; see also Long v. District of Columbia, 820 F.2d 409, 418 (D.C.Cir. 1987) ("Like Bechtel, PEPCO entered into a contract to perform services within its field of expertise; PEPCO thereby acquired a duty to foreseeable plaintiffs (in this case, members of the travelling public) to perform these services with reasonable care.")
As in Bechtel, the Ansaldo-WMATA contract supplies only the basis of the duty of care and does not determine the standard of care required by that duty. In other words, while the compatibility of the circuit parts is relevant, the more pressing inquiry is how Ansaldo undertook and fulfilled its contractual duties, including, but not limited to, its assessment of compatibility. Although expert testimony may be required in a breach of contract action to ascertain the meaning of compatibility between track circuit parts, the expert testimony here concerns the standard of care resulting from the tort duty owed by Ansaldo to WMATA. And WMATA, Ansaldo, and the plaintiffs have all provided expert testimony as to the safety analyses that should have been employed by Ansaldo. See ECF No. 480 at 29; ECF No. 482 at 38. Accordingly, the Court rejects Ansaldo's
"The threshold question in a failure-to-warn case is `whether a duty to warn exists.'" McNeal v. Hi-Lo Powered Scaffolding, Inc., 836 F.2d 637, 641 (D.C.Cir.1988) (quoting Hull v. Eaton Corp., 825 F.2d 448, 454 (D.C.Cir.1987)). "In the District of Columbia that determination turns on whether the manufacturer knew or should have known of a danger sufficiently serious to require a warning." McNeal, 836 F.2d at 641 (internal quotation marks and citation omitted). "A plaintiff need not show that there was a manufacturing defect in order to recover: a product can be perfectly made and still require directions or warnings on proper use in order to be safe." Id. (internal quotation marks and citation omitted). "[P]revious decisions [of the District of Columbia Court of Appeals] indicate that fact-intensive issues concerning the existence of a duty to warn and whether the warning was sufficiently specific to discharge the duty are generally reserved for the jury and may be resolved as a matter of law only when the evidence would not permit differences of opinion by reasonable jurors." East Penn Mfg. v. Pineda, 578 A.2d 1113, 1115 (D.C.1990).
Ansaldo argues that it did not have a duty to warn because it was merely the seller of a component part. See ECF No. 426-1 at 39. Ansaldo asserts that "[i]t had no duty to warn WMATA of dangers arising from the use of a product from another manufacturer that had been in use in the WMATA system for 35 years [i.e., the Alstom modules]." Id. Here, again, Ansaldo's argument is premised on its assertion that the sole cause of the collision was the parasitic oscillation between the Alstom modules. This misses the point. It is undisputed here that Ansaldo was aware that its impedance bonds would be paired with Alstom modules. And there is a factual dispute as to the type of safety analyses undertaken by Ansaldo in ensuring the compatibility of its bonds with Alstom's modules and, similarly, disputes as to Ansaldo's knowledge regarding the possible hazards attendant to the mixed configuration track circuits. See ECF No. 480 at 41. Accordingly, in light of the factual disputes as to Ansaldo's actions and knowledge regarding mixed track circuits, the question of Ansaldo's duty to warn is proper for decision by a jury. See East Penn Mfg., 578 A.2d at 1115.
In the alternative, Ansaldo argues that even if it did have a duty to warn, its duty was negated by the fact that WMATA was a sophisticated user. ECF No. 426-1 at 39, 41-44. "[T]he `experienced user' exception to the duty to warn is properly viewed as a form of the `knowledge of danger' rule." East Penn Mfg., 578 A.2d at 1120. And "[b]ecause it focuses on actual or constructive knowledge — what the user knew or reasonably should have known — the applicability of the `experienced user' exception to the duty to warn is a question of fact for the jury when the extent of the [user's] knowledge is in dispute." Id.
Here, as the plaintiffs point out, the WMATA-Ansaldo contract, in which Ansaldo was expressly informed that the bonds would be used in mixed configuration circuits and tasked with ensuring
Because the underlying counts are not being dismissed, Ansaldo is not entitled to summary judgment on the derivative claims of wrongful death and survival based upon the nonexistence of the required substantive claims.
In this motion for summary judgment, Alstom notes that the Court's June 22, 2011 Memorandum Opinion dismissed all claims against Alstom in its capacity as a designer of the track equipment as time-barred under the District's statute of repose. Relying on this ruling, Alstom asserts that all of the claims and cross-claims against it are, at root, design defect claims and must fail. Alternatively, Alstom argues that, even if the failure to warn claims are not barred on the basis of being design defect claims, it had no duty to warn. Next, Alstom asserts that because there is no basis for finding it liable for the June 22, 2009 collision, it is entitled to summary judgment on the plaintiffs' derivative wrongful death and survival statute claims, the co-defendants' contribution cross-claims, and WMATA's contractual indemnification cross-claim.
The Court concludes that because its June 22, 2011 Memorandum Opinion explicitly found that Alstom could be found liable in its role as a manufacturer and seller — as opposed to designer — the statute of repose does not bar the plaintiffs' remaining claims. The Court further finds that there are disputed issues of fact as to (1) when Alstom became aware of the parasitic oscillation in its modules, and (2) whether a letter sent by Alstom can be construed as a warning. And because the claims asserting primary liability against Alstom remain, there is no basis for dismissing the derivative claims against it. Accordingly, Alstom's motion for summary judgment is denied in its entirety.
In addition to information set forth above about the general history of WMATA (e.g., the Metrorail system's construction in the 1970s), and the structure and components of the Automatic Train Control system, two other pieces of undisputed background are important to the resolution
In its June 22, 2011 Memorandum Opinion, the Court concluded that "Alstom's arguments that the plaintiffs' negligence and strict products liability claims (Counts 7, 9, 10, and 14 of the Master Complaint and Counts 1, 2, 3, and 8 of the McMillan Estate Complaint) [had to] be dismissed as barred by the statute of repose fail, except to the extent that these claims extend to Alstom in its capacity as a designer." In re Fort Totten Metrorail Cases, 793 F.Supp.2d 133, 156 (D.D.C.2011); see also id. at 142 n. 10 ("A product may have a defective design without being defectively manufactured, and vice versa. Therefore, dismissing the design defect claims against Alstom would limit its liability to manufacturing defects only."). Thus, the Court has already ruled that the claims against Alstom in its capacity as the manufacturer and seller of the modules are not barred by the statute of repose.
"In a manufacturing defect case, plaintiff may seek to prove either a `specific defect' — that is, that a specific, identifiable part of the [product] was defective and was the cause of the accident — or a `general defect' — which, more accurately, is an unspecified defect, which the plaintiffs ask the finder of fact to infer from the accident itself." Pappas v. Ford Motor Co., 7 F.Supp.2d 22, 26 (D.D.C.1998). "To prove a specific defect..., plaintiffs generally introduce expert testimony based on an examination of the accident." Id. "To prove an unspecified defect, plaintiffs generally introduce circumstantial evidence, and expert opinion based thereon, that some defect attributable to the manufacturer must have been the cause of the accident." Id.
Although it is unclear whether the plaintiffs maintain that the parasitic oscillation constitutes a specific defect or a general defect, there is sufficient evidence of parasitic oscillation within the Alstom modules at B2-304 from which a jury could either (1) conclude that the modules were defective and were a cause of the accident, or (2) infer, based on the evidence presented with regard to the structure of a track circuit and the nature of the collision, that the modules were defective. See ECF No. 485-1 ¶¶ 38W, 39W (explaining parasitic oscillation, why it is dangerous, and opining what Alstom should have done to remedy the problem of oscillating modules). Alstom is therefore not entitled to summary judgment on the manufacturing defect claims.
There are several instances from which a reasonable jury could conclude that Alstom had a duty to warn that it breached.
Because the underlying negligence and strict liability claims are not being dismissed, Alstom is not entitled to summary judgment on the plaintiffs' derivative survival and wrongful death claims based on the erroneous assumption that the underlying claims would not exist.
In light of the foregoing conclusion that a reasonable jury could find Alstom liable to the plaintiffs, Alstom is not entitled to summary judgment on the co-defendants' contribution claims.
Alstom asserts that it is entitled to summary judgment on WMATA's contractual indemnity cross-claim for two reasons: (1) that there is no basis for finding Alstom negligent, and (2) that the WMATA-Alstom contract limits WMATA's indemnity rights "to the period of time before acceptance of the work, which has long since passed." ECF No. 427-1 at 22. Both of these arguments must be rejected.
First, in light of the foregoing conclusion that a reasonable jury could find Alstom liable to the plaintiffs, Alstom is not entitled to summary judgment on WMATA's
Second, it is not clear from the contract that the parties intended to limit WMATA's contractual rights to indemnity to the time prior to acceptance of the work performed under the contract. In fact, it is clear that they did not so intend. Article 47 of the WMATA-Alstom contract provides:
ECF No. 427-2 ¶ 65 (emphasis added); see also ECF No. 485-3 at 37. Subsections (a) and (c) pertain to different topics and each has its own limiting provision that cannot, and should not, be imputed to the other. Specifically, the indemnification section — subsection (a) — very clearly entitles WMATA to indemnification arising out of the "occupancy, use, service, operations, or performance of work in connection with [the] contract." Subsection (c), however, just as clearly limits the maintenance of insurance until acceptance of the work performed under the contract. And the text of subsection (c) makes clear that its requirements apply only to "such insurance policies." Indeed, the word indemnification does not appear in subsection (c). Accordingly, as it is undisputed that that the Alstom impedance bonds were in use on June 22, 2009, should Alstom be found negligent, WMATA is entitled to contractual indemnification for that negligence. Alstom's claim that it is entitled to summary judgment on WMATA's contractual indemnification cross-claim is therefore rejected.
ARINC moves for summary judgment in its favor as to all claims on the following grounds: (1) it is entitled to the government contractor defense under Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988); (2) there is no evidence of a causal nexus between any alleged defect in ARINC's alarm system and the train collision; (3) the plaintiffs cannot meet their burden of establishing a design defect because they have offered no evidence of an alternative design; (4) the breach of express warranty fails as a matter of law because the plaintiffs did not provide notice of the alleged breach to ARINC; (5) WMATA's contractual indemnity claim fails because the contract's indemnity provision does not establish a "clear intention" that ARINC would indemnity WMATA for WMATA's own negligence; and (6) because ARINC is not a joint tortfeasor, it is entitled to summary judgment on all contribution claims against it.
The Court concludes that (1) ARINC does not qualify for the government contractor defense under Boyle because it has not shown that this case raises "uniquely federal interests"; (2) there is sufficient evidence of causation to create a jury question; (3) there is evidence of an alternative design sufficient to sustain the plaintiffs' design defect claim; (4) the plaintiffs' express warranty claim does not fail for lack of notice; (5) the indemnity provision in the contract between WMATA and ARINC does not require ARINC to indemnify WMATA for WMATA's own negligence; and (6) because there is evidence that ARINC is a joint tortfeasor, the contribution claims against it cannot be dismissed. Accordingly, ARINC's motion is granted in part and denied in part.
As explained above, WMATA relies on an Automatic Train Control system to control train movement and direct train operators. Since the mid-1990s, the Automatic Train Control system used a software package called the Rail Operations Control Software. ECF No. 486 at 3. Then, in 2003, WMATA contracted with ARINC, "a provider of communications and engineering solutions to at least 15 to 20 major metrorail systems in the United States," to update the system with ARINC's Advanced Information Management software. Id. The WMATA-ARINC contract made clear that the new software should exceed the functionality of the old software and emphasized that the new software should maintain the highest levels of safety and reliability. Id. at 4.
The Advanced Information Management software collects data from over 50,000 data points — including train circuits — and was designed to alert WMATA to the existence of dangerous conditions. Id. at 3-4. The software issues two types of alarms for failed track circuits: (1) a "track circuit failed vacant" alarm, which indicates that a train is in the circuit but the circuit is not reporting a train present, and is also
The following facts regarding ARINC's Advanced Information Management software are undisputed. First, the software designated the non-reporting block alarm as a "minor alarm." Id. at 4. This means that the alarm is deleted by the system if not acknowledged by a user within 60 seconds. Id. For all of its other mass transit customers, however, ARINC had classified non-reporting block alarms as major alarms. Id. at 8. Second, although ARINC designed the software for WMATA to issue a non-reporting block alarm 35 seconds after the event occurred (meaning that if the circuit malfunctioned for 34 seconds and then self-corrected, no alarm would ever be issued), it designed software for other transit systems that contains a much shorter delay before issuing a non-reporting block alarm — only 5 to 10 seconds. Id. at 5. Third, ARINC's Advanced Information Management software would remove trains from its system while the trains were in service, without explanation and without issuing alarms for the Operations Central Control operators. Id. WMATA noticed this problem before the new software was fully implemented and informed ARINC that it considered disappearing trains a major safety issue. Id. Finally, ARINC's Advanced Information Management software was in operation when the train collision occurred on June 22, 2009. Id. at 2.
ARINC contends that all of the claims against it should be dismissed because it is entitled to the government contractor defense recognized in Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). ECF No. 428-51 at 9. In Boyle, a "Marine helicopter copilot, was killed when the ... helicopter in which he was flying crashed off the coast of Virginia Beach, Virginia, during a training exercise." 487 U.S. at 502, 108 S.Ct. 2510. "Although Boyle survived the impact of the crash, he was unable to escape from the helicopter and drowned." Id. His estate filed suit under Virginia tort law against the helicopter manufacturer, alleging that the helicopter's emergency escape hatch was defectively designed. Id. at 503, 108 S.Ct. 2510. The helicopter manufacturer argued that the door was provided in accordance with Department of Defense specifications and that, consequently, the plaintiff's state tort claims were federally preempted. See id. at 509, 108 S.Ct. 2510. The Supreme Court agreed. Id.
The Supreme Court began its analysis by explaining that "a few areas, involving `uniquely federal interests,' are so committed by the Constitution and laws of the United States to federal control that state law is pre-empted and replaced, where necessary, by ... `federal common law.'" Id. at 504, 108 S.Ct. 2510 (emphasis added). It noted that the dispute in Boyle bordered upon two areas that the Court had previously identified as involving "uniquely federal interests" to which federal common law applied: (1) "the obligations to and rights of the United States under its contracts," and (2) "the civil liability of federal officials for actions taken in the course of their duty." Id. at 504-05, 108 S.Ct. 2510 (citations omitted). The Court found that "the reasons for considering these closely related areas to be of `uniquely federal' interest apply as well to the civil liabilities arising out of the performance
The Court thus deemed "the procurement of equipment by the United States ... an area of uniquely federal interest." Id. at 507, 108 S.Ct. 2510. However, this "merely establishe[d] a necessary, not a sufficient, condition for the displacement of state law." Id. "Displacement will occur only where ... a `significant conflict' exists between an identifiable `federal policy or interest and the [operation] of state law,' or the application of state law would `frustrate specific objectives' of federal legislation." Id. (citations omitted). The Boyle Court found such a "significant conflict" between state law and federal interests under the facts of that case. See id. at 509, 108 S.Ct. 2510. In determining the parameters of this conflict, the Court looked to the discretionary function exception of the Federal Tort Claims Act, which exempts the United States from liability for claims "`based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or employee of the Government, whether or not the discretion involved be abused.'" Id. at 511, 108 S.Ct. 2510 (quoting 28 U.S.C. § 2680(a)). Because "the selection of the appropriate design for military equipment to be used by our Armed Forces is assuredly a discretionary function within the meaning of this provision," and because "permitting `second-guessing' of these judgments through state tort suits against contractors would produce the same effect sought to be avoided by the FTCA exemption" insofar as contractors would pass through the financial burden of adverse judgments to the United States, the Court concluded that "that state law which holds Government contractors liable for design defects in military equipment does in some circumstances present a `significant conflict' with federal policy and must be displaced." Id. at 511-12, 108 S.Ct. 2510 (citation omitted). The Court then established the following three-part test to determine the "scope of displacement" of state law:
Id. at 512, 108 S.Ct. 2510.
ARINC jumps directly to this three-part test in its opening brief, arguing that it is entitled to the government contractor defense because it designed its Advanced Information Management system in conformance with specifications approved by WMATA and that WMATA was aware of any dangers associated with the system. See ECF No. 428-51 at 10-22. But ARINC overlooks the two prerequisites to invoking the Boyle defense: "first, the case must involve `an area of uniquely federal interest'; and second, there must exist `a significant conflict ... between an identifiable federal policy or interest and the [operation] of state law.'" Kormendi/Gardner Partners v. Surplus Acquisition Venture, LLC, 606 F.Supp.2d 114, 117 (D.D.C.2009) (quoting Boyle, 487 U.S. at 507, 108 S.Ct. 2510); accord Glassco v. Miller Equip. Co., 966 F.2d 641, 642 (11th Cir.1992) (stating that government contractors seeking to invoke the Boyle defense must first satisfy both the "uniquely federal interest" and "significant conflict" prongs, and explaining that the "three-part inquiry elaborates the `significant conflict' prong of the test"). Moreover, "[t]he party seeking to displace state law bears the burden of demonstrating that both conditions exist." Kormendi/Gardner Partners,
Courts have found uniquely federal interests in a variety of cases involving federal government contractors. See, e.g., Boyle, 487 U.S. at 507, 108 S.Ct. 2510 (liability arising from federal procurement contracts); Saleh v. Titan Corp., 580 F.3d 1, 5, 9 (D.C.Cir.2009) (liability arising from military contractors' participation in combatant activities over which the military retains command authority); In re World Trade Ctr. Disaster Site Litig., 521 F.3d 169, 197 (2d Cir.2008) (coordination of "federal disaster assistance and streamlining the management of large-scale disaster recovery projects"); Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329, 1334 (11th Cir.2003) (maintenance of U.S. military aircraft according to procedures specified by the federal government). The common thread of all these cases is that "the interests of the United States [would] be directly affected" by the imposition of state tort liability on the contractor. Boyle, 487 U.S. at 507, 108 S.Ct. 2510.
The biggest obstacle for ARINC in claiming the government contractor defense under Boyle is that it contracted with WMATA, not the federal government. Recognizing this distinction, ARINC asserts that uniquely federal interests are nonetheless at stake here because (1) the interstate compact creating WMATA has been deemed an Act of Congress; (2) Congress has taken an active role in creating and funding WMATA; (3) the federal government is dependent upon WMATA to transport federal employees in the Washington, D.C. metropolitan area;
The Court finds ARINC's arguments unpersuasive. True, the federal government may have some general interest and involvement in WMATA's operations and its success, and courts have applied federal common law to certain immunity issues involving WMATA. But these truisms are beside the point. The relevant inquiry under Boyle is whether "the interests of the United States [would] be directly affected" by imposing tort liability on ARINC for designing its Advanced Information Management system in conformance with specifications approved by WMATA. Boyle, 487 U.S. at 507, 108 S.Ct. 2510 (emphasis added). In Boyle, for instance, the Court found it "plain that the Federal Government's interest in the procurement of equipment is implicated by suits such as the present one" because "[t]he imposition of liability on Government contractors will directly affect the terms of Government contracts: either the contractor will decline to manufacture the design specified by the Government, or it will raise its price. Either way, the interests of the United States will be directly affected." Id. at 506-07, 108 S.Ct. 2510. Here, ARINC has not shown that imposing liability upon it will have any effect on the United States's interests, much less a direct one. It simply lists all the connections that WMATA has to the federal government. That is not enough to establish preemption of state tort claims under Boyle.
This case is more like Miree v. DeKalb County, 433 U.S. 25, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977), than Boyle. Miree concerned "whether certain private parties
As noted above, "[p]roximate cause has been defined as that cause which, in natural and continual sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred." Convit, 980 A.2d at 1125. It is only the "exceptional case" in which questions of proximate cause "pass from the realm of fact to one of law." Majeska, 812 A.2d at 950 (emphasis added).
ARINC argues that the plaintiffs' "causation argument with regard to ARINC is that if the [Advanced Information Management] system were free of the defects they identified, one of the [Operations Central Control] supervisors would have communicated with the operator of Train 112 to warn her of the non-reporting block at Fort Totten and the accident would have been avoided." ECF No. 428-51 at 23-24. ARINC maintains that the plaintiffs' claim must fail because WMATA had no procedure requiring the Operations Central Control supervisors to route trains around a non-reporting block and thus a better alarm would not have prevented the accident. Id. WMATA responds, however, that it "had an absolute block procedure for routing trains around locations that were experiencing actual loss of train detection." ECF No. 488 at 26. Accordingly, there is a factual dispute as to how WMATA would have responded had the Advanced Information Management software accurately notified the Operations Central Control personnel of the problem at Circuit B2-304. See ECF No. 488-2 ¶¶ 117-19. Moreover, there is sufficient other evidence from which a reasonable jury could conclude that ARINC's software was a proximate cause of the accident: its tendency to delete trains, the delay on issuing a non-reporting block alarm, its designation of a non-reporting block alarm as minor, and the sheer number of alarms generated by the system. See, e.g., id. ¶¶ 94, 118-19.
ARINC next asserts that it is entitled to summary judgment on the plaintiffs' design defect claim because the plaintiffs "have failed to identify an expert to testify as to the existence of an alternative design" to its Advanced Information Management system. ECF No. 428-51 at 32. The Court does not agree.
Here, the plaintiffs and co-defendants maintain that not only was an alternative design commercially feasible, but that ARINC was itself manufacturing alternatively designed software systems for operators of other mass transit systems. See, e.g., ECF No. 486 at 8 (asserting that ARINC should have designed the Advanced Information Management software to designate non-reporting block alarms as major, and opining that this "is a commercially feasible design, as is best evidenced by the fact that every other transit system ARINC works with makes" such alarms major alarms). Accordingly, as there are disputed issues of material fact with regard to the feasibility of an alternative design, ARINC is not entitled to summary judgment on the design defect claims asserted against it.
"In order to succeed on a breach of warranty claim, a plaintiff must prove notice as well as that the defendant breached an express promise made about the product sold." Witherspoon v. Philip Morris, Inc., 964 F.Supp. 455, 464 (D.D.C. 1997). "[T]he purpose of the notice requirement is to open the doors to negotiation"; accordingly, a plaintiff need not "threaten litigation in order to provide notice." Id. (citing Rock Creek Ginger Ale Co., Inc. v. Thermice Corp., 352 F.Supp. 522, 528 (D.D.C.1971)). "Constructive notice, if established, will satisfy the requirement." Id. Finally, "when a seller willfully fails to disclose a defect, failure to notify cannot be raised as a defense." Id. at 465 (internal quotation marks and citation omitted).
ARINC contends that the plaintiffs' breach of express warranty claim fails because "no claim for breach of an express warranty may be made absent notice to ARINC of the alleged breach," and because "neither WMATA nor Plaintiffs provided ARINC with the required notice at any time prior to the accident." ECF No. 428-51 at 33. WMATA responds by arguing: (1) that ARINC cannot prove as a matter of law that the warranty language cited in ARINC's motion is controlling, ECF No. 488 at 35; (2) that ARINC cannot establish that the warranty language it cites is enforceable as a matter of law, id. at 36; (3) that ARINC was provided with constructive notice of problems with the Advanced Information Management system, id. at 39; and (4) that ARINC was not entitled to notice, id. at 40. Because ARINC's motion focuses only on the argument that no notice was provided and does not appear to assert that no warranty was made, the Court will address only the latter two of WMATA's arguments.
Here, WMATA argues that, drawing all reasonable inferences in its favor, there is a question of fact as to whether ARINC received constructive notice. Alternatively, WMATA maintains that ARINC was not entitled to notice because it willfully failed to disclose defects in its Advanced Information Management system. Either one of these arguments suffices to preclude the Court from granting summary judgment to ARINC on the breach of express warranty claims. First, WMATA raised the issue of the disappearing train
Although "[o]ne of the most common, and simple bases of indemnity is a contract that provides for it," East Penn Mfg., 578 A.2d at 1126, "[a]n indemnity provision ... `should not be construed to permit an indemnitee to recover for his... own negligence unless the court is firmly convinced that such an interpretation reflects the intention of the parties,'" W.M. Schlosser Co., Inc. v. Maryland Drywall Co., Inc., 673 A.2d 647, 653 (D.C. 1996) (quoting United States v. Seckinger, 397 U.S. 203, 211, 90 S.Ct. 880, 25 L.Ed.2d 224 (1970)) (emphasis added). Indeed, "[i]f a party `expects to shift responsibility for its negligence ... the mutual intention of the parties to this effect should appear with clarity from the face of the contract.'" Schlosser, 673 A.2d at 653 (quoting Seckinger, 397 U.S. at 211, 90 S.Ct. 880) (emphasis added).
In Count 6 of its cross-claim, WMATA seeks contractual indemnification from ARINC in the event that WMATA is found liable to the plaintiffs. See ECF No. 428-51 at 36 (citing ECF No. 140 at 20). ARINC explains that "on its face, WMATA's claim includes indemnification for [WMATA's] own negligent acts," and maintains that it has "no obligation to indemnify WMATA for [WMATA's] own negligence in the absence of clear contractual language to the contrary, which does not exist here." Id. The Court agrees.
The pertinent section of the ARINC-WMATA contract reads:
Id. (emphasis added).
WMATA argues that "a plain reading of the provision [following the words `and or'] is that the language pertaining to ARINC's own acts, errors, or omissions is part of an `in addition to' or `alternative' clause," and contends that the words "and or" are "intended to broaden the indemnity, not limit it as ARINC argues." ECF No. 488 at 41-42. The Court, however, has struggled to make heads or tails of this section of the contract, much less conclude that any sort of "plain reading" may be made of it. On this poorly drafted contractual language, the Court is far from "firmly convinced," Schlosser, 673 A.2d at 653, that ARINC intended to permit WMATA to receive indemnification from ARINC for losses resulting from WMATA's own negligence. By way of brief example, the reading urged by WMATA makes no sense as it renders the "and or" clause entirely superfluous. Indeed, negligent acts on the part of the contractor are seemingly encompassed by the phrase "any and all liability claims ... occurring
Because the Court is not granting summary judgment to ARINC on the plaintiffs' claims against it, there is no basis to grant ARINC summary judgment on the co-defendants' contribution cross-claims, as a reasonable jury could deem ARINC a joint tortfeasor responsible for the June 22, 2009 collision.
For the foregoing reasons, (1) WMATA's motion to dismiss Alstom's statute of repose defense is granted in part and denied in part; (2) Ansaldo's motion for judgment on Counts 7, 11, and 15 of the Second Amended Master Complaint is granted; (3) WMATA's motion to dismiss the equitable indemnification cross-claims against it is granted; (4) the corporate defendants' motion for summary judgment is denied; (5) Ansaldo's motion for summary judgment is denied; (6) Alstom's motion for summary judgment is denied; and (7) ARINC's motion for summary judgment is granted in part and denied in part.
Owens-Corning, 572 A.2d at 401 (internal citations and footnotes omitted).
