Herzog Crebs Wins Eighth Circuit Appeal for Ameren
The U.S.
Court of Appeals for the Eighth Circuit decided that Ameren is entitled to
indemnity from SBC after Ameren settled a claim filed by an SBC contractor who
was electrocuted while working on a pole used jointly by Ameren and SBC. The case is Union Electric Co. v.
Southwestern Bell Telephone LP, 378 F. 3d 781 (8th Cir. 2004),
decided August 6.
On cross-motions for summary judgment, the District Court
found for SBC. AmerenUE then asked
Peter Herzog and Gene Brockland of Herzog Crebs to take over the case. Herzog Crebs has long valued Ameren as a
firm client. The Eighth Circuit agreed
with the brief and oral argument on appeal of Peter Herzog, and reversed the
District Court's ruling for SBC.
The dispute involved a Joint Use Agreement between Ameren
and SBC wherein each uses the other's poles to provide service. Given the large number of poles jointly used
by Ameren and SBC, this is a significant victory for Ameren and will affect
future cases between them involving indemnification. "Ameren's indemnification rights are extremely important to
it. We are gratified that the Eighth
Circuit agreed with our view of the Joint Use Agreement," Herzog remarked after
the decision.
The Eighth Circuit
held:
By the agreement's plain language the parties each assumes the risk for
all injuries to their respective employees, agents, contractors or customers,
and each agrees to indemnify, protect and save harmless the other party,
irrespective of that party's own negligence for all claims, including punitive
damage and attorney's fees arising from the exercise of any rights under
the agreement.
* * * *
For these reasons, we reverse the District Court's judgment in favor of
SBC, direct judgment on the issue of liability in favor of Ameren, and
remand to the District Court for trial on the issue of the reasonableness
of Ameren's settlement with the [decedent's] children.
The decision is a rare instance where the Eighth Circuit has
reversed a trial court when both parties had filed motions for summary
judgment.
