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O'Brien v. Watco Contract Switching2/10/2004
FOR PUBLICATION
Danny O'Brien and Cindra O'Brien appeal the trial court's grant of summary judgment in favor of Watco, Incorporated ("Watco"). The O'Briens raise two issues, which we consolidate and restate as whether the trial court abused its discretion by granting Watco's motion for summary judgment. We affirm.
The relevant facts follow. Danny O'Brien was employed by Watco as an operations manager. Watco's business includes "repair of certain rolling stock for various railroads and intra-company switching operations for several contracting industries." Appellant's Appendix at 102. "The switching operations were performed on trackage owned or leased by the contracting industries. Id. In November 1997, Watco was performing railroad switching services for National Starch and Chemical Company ("National Starch"). National Starch operates a starch manufacturing facility in Indianapolis, Indiana. The parties entered into a Switching Services Agreement, which provided, in relevant part, that:
1.1 [Watco] shall pick-up all inbound cars delivered by [Conrail] to the receive track/tracks designated by National and move these cars as prescribed by [National Starch's] designated representatives within the facility.
1.2 [Watco] shall pick up all outbound cars within the Facility and move them to the outbound track/tracks designated by [National Starch].
2.7 [Watco] shall provide all intra-facility switching as instructed by [National Starch's] designated representatives.
Id. at 105-106. The Agreement described Watco as an independent contractor. All switching services performed by Watco for National Starch "were performed on trackage owned by, leased to, or licensed to National Starch" at National Starch's plant facility. Id. at 102. In November 1997, the National Starch facility contained approximately eighteen tracks and five warehouses. The facility is divided into two sections, the "Drover" section and the "Raymond" section. Id. at 138-139. In order to travel from one section of the National Starch facility to the other, Watco employees had to move equipment over Conrail's tracks. Each time Watco employees traveled over Conrail's tracks, they were required to get permission from Conrail. Watco's charges to National Starch were based upon "man hours for switching services." Id. at 102. On November 26, 1997, a railroad car struck O'Brien during the course of his employment with Watco, and he sustained severe personal injuries.
In November 1997, Charles Webb owned 100% of Watco. Charles Webb has two children, Richard Webb and Susan Webb. Watco operated ten companies that were owned by Charles, Richard, and Susan either individually or collectively in some capacity. All of the companies were involved in the railroad industry in some fashion.
On November 18, 1999, O'Brien and his wife, Cindra, filed a complaint against Watco to recover damages for O'Brien's injuries under the Federal Employer's Liability Act, 45 U.S.C. §§ 51-60 ("FELA"). On August 31, 2001, Watco filed a motion for summary judgment, alleging that the "undisputed material facts of this case demonstrate that Watco is an intra-plant switching service, not a common carrier subject to [FELA]. Thus, Plaintiffs' FELA claims against Watco fail as a matter of law, and summary judgment in Watco's favor should be granted." Id. at 96. The trial court granted Watco's motion for summary judgment, finding that Watco "is not a common carrier by railroad as required in order [for it to be subject to] an action under [FELA], 45 U.S.C § 51." Id. at 22.
The sole issue is whether the trial court abused its discretion by granting Watco's motion for summary jud
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