So. Pacific Trans. v. Asplundh Brush

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No. 96-2341
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Southern Pacific *
Transportation Company; *
St. Louis Southwestern *
Railway Company, *
*
Plaintiffs - Appellants, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas
Asplundh Brush Control Company, *
Asplundh Railroad Division, * [UNPUBLISHED]
*
Defendant - Appellee. *
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Submitted: February 14, 1997

Filed: March 11, 1997
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Before BOWMAN and WOLLMAN, Circuit Judges, and KOPF,1 District
Judge.
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KOPF, District Judge.

The Southern Pacific Transportation Company and St. Louis
Southwestern Railway Company (Railroad) entered into an agreement
with Asplundh Brush Control Company (Asplundh) in which Asplundh
agreed to spray for weeds along the Railroad’s right of way. The
agreement contained various indemnity provisions. A general
indemnity provision concerning a variety of topics, including
personal injury liability, exempted Asplundh from the indemnity
obligation if the Railroad was negligent. In another provision

1
The Honorable Richard G. Kopf, United States District Judge
for the District of Nebraska, sitting by designation.
relating to chemical use, Asplundh agreed to indemnify the Railroad
for liabilities “arising out of use of the chemicals to be applied
hereunder, including (but without limitation) claims or liability
due to drift of the chemicals and harm to trees, crops, shrubs or
vegetation of any kind, and livestock, regardless of any negligence
of employees of Railroad.”

Although Asplundh had sprayed the Mounds, Arkansas, crossing,
weeds grew high. A serious personal injury accident followed when
vision at the crossing was obstructed by the weeds. In a state
court suit brought by an injured party, a jury found the Railroad
was negligent, but Asplundh was not negligent. The evidence
revealed that despite knowing that the chemicals had not controlled
the weeds at the Mounds crossing, the Railroad failed to notify
Asplundh of the problem, thus failing to give Asplundh an
opportunity to respray the area.

The Railroad brought this action seeking indemnity from
Asplundh, claiming the chemical-use provision of the contract
required Asplundh to indemnify the Railroad for personal injury
liability even if the Railroad was negligent because such liability
arose out of the use of chemicals. With the material facts
undisputed, and the parties’ agreement that the contract was
unambiguous, the district court2 granted summary judgment for
Asplundh. The court held that the “chemical-use” provision of the
contract was limited to the harmful effects of chemicals to
property.

The Railroad appeals, claiming the district court erred when
it applied settled Arkansas rules of contract interpretation to the
indemnity provisions of the contract. Having reviewed the parties’

2
The Honorable Henry Woods, Senior United States District
Judge for the Eastern District of Arkansas.

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briefs and submissions, we conclude that no error of law appears.
Accordingly, we affirm. See 8th Cir. R. 47B.

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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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