O&G Indus., Inc. v. Nat’l R.R. Passenger Corp.

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06-4719-cv
O&G Indus., Inc. v. Nat’l R.R. Passenger Corp.
UNITED STATES COURT OF APPEALS 1
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FOR THE SECOND CIRCUIT
August Term, 2007
(Argued: October 23, 2007 Decided: August 8, 2008)
Docket No. 06-4719-cv
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O&G INDUSTRIES, INC.,
Third-Party-Defendant Appellant, 14
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HARTFORD FIRE INSURANCE CO. AND DAVID E. ROBERTS, ADMINISTRATOR FOR
THE ESTATE OF GREGORY J. ROBERTS,
Plaintiffs, 19
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PETER QUINTILIANI AND LAUREL QUINTILIANI,
Consolidated Plaintiffs, 23
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v.
NATIONAL RAILROAD PASSENGER CORPORATION,
Defendant-Third-Party-Plaintiff Appellee, 29
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B e f o r e: FEINBERG, WINTER, and STRAUB, Circuit Judges. 32
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Appeal from a judgment of the United States District Court for
the District of Connecticut (Dorsey, J.) entered in a third-party
action for indemnity, following an accident in which a train owned
and operated by defendant-third-party-plaintiff appellee Amtrak
caused the death of one employee of third-party-defendant appellant
O&G Industries, Inc. and injured another. In the first instance, the
district court (1) granted summary judgment to Amtrak on the ground
that the indemnity agreement between Amtrak and O&G was not invalid
under Connecticut General Statute § 52-572k(a), because the latter
is preempted by 49 U.S.C. § 28103(b), which allows rail passenger
carriers to enter into indemnification agreements concerning claims
brought against them; and (2) held that O&G was required, as a
matter of law, to indemnify Amtrak for the liabilities and costs

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Amtrak incurred in the tort actions arising out of the accident,
despite a jury verdict that O&G was relieved of this obligation
because Amtrak’s failure to adequately protect O&G workers amounted
to a material breach of the contract between them. We now affirm the
rulings of the district court. We also find that any error the
district court committed by precluding appellant from
cross-examining an employee of the appellee in the first phase of
the trial (concerning the tort actions against Amtrak) and
subsequently restricting appellant’s direct examination of the same
employee in the second phase of the trial (concerning the indemnity
claim against O&G) was harmless. Finally, we dismiss for want of
appellate jurisdiction O&G’s challenges to the award of attorneys’
fees and costs. Dismissal does not affect our jurisdiction to review
the merits of the other issues on appeal. Affirmed in part and
dismissed in part.
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KIMBERLY A. KNOX (Michael S. Taylor and Brendon P. Levesque, on
the brief), Horton Shields & Knox, P.C., Hartford, Connecticut,
and Jeffrey A. Blueweiss (on the brief), Bai, Pollock,
Blueweiss & Mulcahey, Shelton, Connecticut, for Third-Party-
Defendant Appellant.
WILLIAM G. BALLAINE (Dawn Pinkston, of counsel, on the brief),
Landman Corsi Ballaine & Ford, P.C., New York, New York, for
Defendant-Third-Party-Plaintiff Appellee.
FEINBERG, Circuit Judge:
This case is procedurally complicated. The present appeal
arises out of a third-party complaint brought by National Railroad
Passenger Corporation (hereafter “Amtrak” or “appellee”) against O&G
Industries, Inc. (hereafter “O&G” or “appellant”) in the United
States District Court for the District of Connecticut (Dorsey, J.).
In its complaint, Amtrak sought indemnification from O&G for any
liabilities and costs, including attorneys’ fees, that Amtrak would

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incur in two consolidated tort actions against it for wrongful death
and personal injury damages resulting from a train accident.
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The proceedings in the district court included two rulings that
O&G now appeals to this Court. First, before trial of the third-
party indemnity action began, the district judge granted partial
summary judgment to Amtrak on the basis of an explicit indemnity
provision in a right-of-access contract between Amtrak and O&G. The
court upheld the validity of the indemnity provision, ruling that 49
U.S.C. § 28103(b) (hereafter “§ 28103(b)”) -- which allows rail
passenger carriers to enter into liability-shifting agreements --
preempted Connecticut General Statute § 52-572k(a) (frequently
referred to hereafter as the “Connecticut statute”). That statute
prohibits, on public policy grounds, indemnity agreements entered
into in connection with construction contracts, if they purport to
shield the indemnitee from liability for its own negligence. O&G
invoked the Connecticut statute to defeat Amtrak’s indemnity claim.
See Roberts v. Nat’l R.R. Passenger Corp. v. O&G Indus., Nos. 3:04-
cv-1318, 3:04-cv-1622 & 3:04-cv-2195, 2006 WL 648212 (D. Conn. Mar.
9, 2006).
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1 The two actions were Roberts v. Nat'l R.R. Passenger Corp., No.
3:04-cv-1318 (D. Conn. filed Aug. 9, 2004), and Quintiliani v. Nat'l R.R.
Passenger Corp., No. 3:04-cv-2195 (D. Conn. filed Dec. 29, 2004). A third
action was brought against Amtrak by the Hartford Fire Insurance Company,
as subrogee of O&G, for damage to O&G property caused by the train
accident. See Hartford Fire Ins. Co. v. Nat’l R.R. Passenger Corp., No.
3:04-cv-1622 (D. Conn. filed Sept. 28, 2004). This action was settled and
is not part of the present appeal.

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Second, the judge granted Amtrak's post-trial motion for
judgment as a matter of law, setting aside a jury verdict that O&G
was relieved of its obligation to indemnify Amtrak because of
Amtrak’s material breach of the contract with O&G. Judge Dorsey held
that Amtrak’s contractual default did not affect the validity of the
indemnity agreement, which explicitly covered accidents attributable
to Amtrak’s negligence.
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See Roberts v. Nat’l R.R. Passenger Corp. v. 108
O&G Indus., Nos. 3:04-cv-1318, 3:04-cv-1622 & 3:04-cv-2195, 2006 WL
2621733 (D. Conn. Sept. 12, 2006).
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O&G argues on appeal that the district court erred in (1)
granting partial summary judgment to Amtrak; (2) entering judgment
for Amtrak as a matter of law; (3) curtailing O&G’s cross- and
direct examination of an Amtrak employee during the trial; and (4)
awarding Amtrak attorneys’ fees and defense costs without any
evidence as to their amount and reasonableness.
On the first and second of these issues, we affirm the district
court. On the third, we find the limitations of O&G’s
cross-examination rights by the district court, even if erroneous,
were not substantially prejudicial to appellant. On the fourth
issue, we conclude that we lack appellate jurisdiction over the
district court’s non-final award of attorneys’ fees and costs.
I. BACKGROUND

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The accident that led to this litigation occurred in June 2004,
while Gregory Roberts and Peter Quintiliani, carpenters employed by
O&G, were installing wood planks on the underside of a highway
bridge suspended over Amtrak's tracks in East Haven, Connecticut. An
Amtrak diesel locomotive entered their worksite without warning and
collided with the man-lift in which they were stationed. Amtrak’s
on-site safety personnel were unable to prevent the accident,
because they were unaware of the train’s scheduled passage through
O&G’s work area, due to poor coordination with the office of
Amtrak’s chief dispatcher in Boston. Furthermore, Amtrak’s
employees, having already de-energized the tracks at the East Haven
worksite so that no electric-powered train could pass, erroneously
believed that the tracks had been placed out of service. Thus, they
had not made a specific request to “foul” the tracks, i.e., render
them completely inoperable until O&G’s crew had completed its work.
At the time of the accident, therefore, none of O&G’s or Amtrak’s
employees on duty at the site expected any train movement through
the work zone.
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2 The collision killed Roberts instantly; Quintiliani
was injured while jumping out of the lift.
2 A more detailed description of the train accident can be found in
the district court’s March 2006 ruling on the parties’ motions for
summary judgment. See Roberts v. Nat’l R.R. Passenger Corp. v. O&G
Indus., Nos. 3:04-cv-1318, 3:04-cv-1622 & 3:04-cv-2195, 2006 WL 648212
(D. Conn. Mar. 9, 2006), 2006 WL 648212, at *1-3. We think it unnecessary
to recount here all the factual circumstances surrounding the accident,
because the crux of the dispute before us is Amtrak’s indemnity claim
against O&G -- not responsibility for the accident, which Amtrak admitted
at trial.

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David Roberts (hereafter “Roberts”), the brother of the
deceased O&G employee and administrator of his estate, filed in
August 2004 a wrongful death action against Amtrak, seeking
compensatory and punitive damages. The suit by Roberts was
consolidated with Quintiliani’s personal injury action. After
answering the two actions, Amtrak filed its third-party complaint
against O&G.
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The indemnity claim was based on a clause in the “Temporary
Permit to Enter Upon Property” (hereafter “Permit”), a contract
concluded between O&G and Amtrak in October 2003. Under the Permit,
Amtrak allowed O&G access to Amtrak’s property in East Haven, in
order to perform construction work in relation to O&G’s contract
with the Connecticut State Department of Transportation regarding
the re-building of a stretch of Interstate 95 between New Haven and
Branford, Connecticut; consideration was $1. O&G, on its part,
undertook to “use all necessary care and precaution to avoid
accidents, delay or interference with [Amtrak's] trains or property”
and abide by Amtrak's safety regulations. Pursuant to the Permit,
Amtrak would provide, at its discretion and at O&G’s expense, “flag
service and/or other protection” necessary to maintain the “safety
and continuity of railroad traffic,” over which Amtrak retained
exclusive control. However, the provision of “protective services”
would “not relieve [O&G] from [its] complete responsibility for the

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adequacy and safety of [its] operations.” A key feature of the
Permit is the following provision:
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The Permittee [O&G] shall defend, indemnify and hold harmless
Railroad [Amtrak], its officers, directors, employees, agents,
servants, successors, assigns and subsidiaries, irrespective of 171
their negligence or fault, from and against any and all losses
and liabilities, . . . claims, causes of action, suits, costs
and expenses incidental thereto (
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including cost of defense and 174
attorney's fees), which any or all of them may hereafter incur,
be responsible for, or pay as a result of injury, [or] death, .
. . to any person . . . arising out of or . . . resulting from
activities of or work performed by [O&G], its officers,
employees, agents, servants, contractors, subcontractors, or
any other person acting for or by permission of [O&G].
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foregoing obligation shall not extend to situations where the 181
negligence or fault of Amtrak, its officers, directors, [or] 182
employees . . . is the sole causal negligence or fault, except 183
that it shall so extend to injury [or] death . . . to employees 184
of [O&G], its agents, servants, contractors, subcontractors, or 185
any other person acting for or by permission of [O&G]. The
foregoing obligation shall not be limited by the existence of
any insurance policy or by any limitation on the amount or type
of damages, compensation, or benefits payable by or for [O&G]
or any contractor or subcontractor, and shall survive the
termination of this permit for any reason.
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(Emphasis added.) In the district court, O&G argued that the above
provision was invalid under Connecticut General Statute § 52-
572k(a), which declares void as against public policy agreements to
indemnify a party against its own negligence, if such agreements
were made “in connection with or collateral to” construction
contracts.
Before trial began on Amtrak’s indemnity claim, Amtrak sought
summary judgment and orders directing O&G to defend Amtrak in the
two tort actions and reimburse Amtrak’s reasonable attorneys' fees
in defending against those claims. In March 2006, Judge Dorsey

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granted Amtrak partial summary judgment, concluding that § 28103(b),
which allows Amtrak to enter into indemnification agreements as to
claims against it, preempted the Connecticut statute and allowed
Amtrak to pursue its indemnity claim at trial.
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The jury trial of the consolidated actions by plaintiffs
Roberts and Quintiliani against Amtrak began in March 2006. The
first phase (“Phase I”) was limited to the issue of damages to be
awarded to plaintiffs. Amtrak conceded negligence (but not
recklessness). In April 2006, the jury awarded plaintiffs $1.425
million each in compensatory damages, but rejected the punitive
damages claims, finding that Amtrak's conduct was not willful or
reckless.3 At the end of the second phase of the trial (“Phase II”)
concerning Amtrak’s third-party complaint against O&G, the jury
found that O&G was excused from its obligation to indemnify Amtrak,
because Amtrak's failure to provide O&G’s crew adequate on-site
protection amounted to a material breach of the Permit, rendering it
void in its entirety.
After this second verdict, Amtrak moved for judgment as a
matter of law, under Federal Rule of Civil Procedure 50(b), arguing
that there were no triable issues of fact as to the applicability of
the indemnity clause in the Permit and, hence, O&G was required to
3 The Roberts estate appealed from the judgment of the district court
entered against Amtrak after the verdict. That appeal was heard by this
panel the same day as the appeal now before us. In November 2007, we
summarily affirmed the judgment of the district court. See Roberts v.
Nat’l R.R. Passenger Corp., No. 06-3036-cv, 2007 WL 3230736 (2d Cir. Nov.
1, 2007) (summary order).

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indemnify Amtrak for litigation costs and damages awarded in the
underlying actions by Quintiliani and Roberts. In the alternative,
Amtrak sought a new trial, under Rule 59(a), on whether a material
contractual default nullified the entire Permit.
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In September 2006, the judge granted Amtrak's Rule 50(b)
motion, concluding that Amtrak’s right to indemnity explicitly
accrues, under the Permit, where Amtrak is found liable for injury
to or death of an O&G employee solely caused by Amtrak’s own
negligence or fault. See Roberts, 2006 WL 2621733, at *5-6. Allowing
O&G to evade its indemnity obligations because of Amtrak’s
negligence, the court reasoned, would “render the indemnification
provision meaningless.”
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In December 2006, the court entered judgment in favor of Amtrak
in its indemnity action against O&G. This timely appeal by O&G
followed.
II. DISCUSSION
The parties to this appeal raise several issues. First, we must
decide whether the Connecticut statute, which nullifies indemnity
agreements insulating a contracting party from its own negligence,4
4 Connecticut General Statute § 52-572k states:
(a) Any covenant, promise, agreement or
understanding entered into in connection with or
collateral to a contract or agreement relative to the
construction, alteration, repair or maintenance of any
building, structure or appurtenances thereto including
moving, demolition and excavating connected therewith,
that purports to indemnify or hold harmless the

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applies, on its face, to the Permit; if it does, we must next
examine whether § 28103(b), which permits Amtrak to enter into
indemnification agreements,
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5 preempts the Connecticut statute.
Second, in considering the district court's grant of Amtrak's motion
for judgment as a matter of law, we must assess whether Amtrak’s
conceded failure to effectively protect O&G’s crew constituted a
material breach of the Permit, discharging O&G from its indemnity
obligation. Third, we review the district court's decision to
preclude O&G from cross-examining an Amtrak employee during Phase I
of the trial, and the judge’s subsequent decision to restrict O&G's
direct examination of the same employee during Phase II. Finally, we
consider whether we have jurisdiction over the district court's non-
quantified award to Amtrak of reasonable costs and attorneys' fees
incurred in the defense of the Roberts and Quintiliani actions.
A. Preemption 259
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Our review of a grant of summary judgment under Rule 56 is
plenary. “[S]ummary judgment is appropriate where there exists no
promisee against liability for damage arising out of
bodily injury to persons or damage to property caused
by or resulting from the negligence of such promisee,
such promisee's agents or employees, is against public
policy and void, provided this section shall not affect
the validity of any insurance contract, workers'
compensation agreement or other agreement issued by a
licensed insurer.
5 49 U.S.C. § 28103(b) provides:
A provider of rail passenger transportation may
enter into contracts that allocate financial
responsibility for claims.

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genuine issue of material fact and, based on the undisputed facts,
the moving party is entitled to judgment as a matter of law.”
D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). We
view the facts in the light most favorable to the nonmoving party
and resolve all factual ambiguities in its favor.
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Cioffi v. Averill 266
Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir.
2006).
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1) Applicability of the Connecticut Statute
In its appeal, O&G relies heavily on the Connecticut statute.
In response, Amtrak claims for the first time that the Connecticut
statute does not apply to the Permit because it allegedly bars
indemnity agreements only if inserted in construction contracts.
Amtrak argues that the Permit was not such a contract. In the
district court, however, Amtrak did not contest the applicability of
the Connecticut statute, although it had ample opportunity to do so.
Under the circumstances, Amtrak has waived that argument and cannot
raise it on appeal. See Greene v. United States, 13 F.3d 577, 586
(2d Cir. 1994) (citing
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Singleton v. Wulff, 428 U.S. 106, 120
(1976)).
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281 6 Therefore, we proceed with the preemption question on the
6 Our refusal to consider Amtrak’s waived argument on the
applicability of the Connecticut statute is of little importance to the
final disposition of the case. As set forth below, we agree with the
district court’s finding that the Connecticut statute is preempted by
federal law and thus does not invalidate the indemnity clause in the
Permit.

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assumption that the Connecticut statute applies, unless it is
preempted.
2) Preemption by § 28103(b)
Section 28103 of Title 49 of the United States Code was enacted
as part of the Amtrak Reform and Accountability Act of 1997
(hereafter the “Reform Act”). Subsection (b) of § 28103 provides
that “[a] provider of rail passenger transportation may enter into
contracts that allocate financial responsibility for claims.” Amtrak
argues that this subsection was intended to allow it to enter into
enforceable indemnity agreements not voidable under state law. In
Amtrak’s view, § 28103(b) is at odds with and preempts the
Connecticut statute.
O&G counters that § 28103(b) applies only to indemnity
agreements (1) regarding claims brought by passengers and (2)
concluded between passenger rail carriers like Amtrak and freight
railroads. Because Gregory Roberts and Quintiliani were not Amtrak
passengers, and the indemnity agreement was between Amtrak and O&G,
a construction company rather than a freight railroad company, O&G
maintains that § 28103(b) is not applicable and does not supersede
the Connecticut statute. In support of its arguments, O&G points to
subsection (a) of § 28103, which governs the issue of punitive
damages to be awarded in relation to passenger claims for personal

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injury, wrongful death or property damage,7 and to the legislative
history of § 28103(b).
Federal preemption of state law is a doctrine grounded in the
Supremacy Clause of the Constitution. See U.S. Const. Art. VI, cl. 2
("[T]he Laws of the United States . . . made in Pursuance [of the
Constitution] shall be the supreme Law of the Land . . . any Thing
in the Constitution or Laws of any State to the Contrary
notwithstanding."). The doctrine requires us first to ascertain
congressional intent, which is “‘the ultimate touchstone’ of pre-
emption analysis.”
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See Cipollone v. Liggett Group, Inc., 505 U.S.
504, 516 (1992) (quoting
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Malone v. White Motor Corp., 435 U.S. 497,
504 (1978)). Intent to preempt state law may be found “(1) where
Congress expressly states its intent to preempt; (2) where
Congress's scheme of federal regulation is sufficiently
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7 That subsection provides:
(a) Limitations.
--(1) Notwithstanding any other statutory or common law
or public policy, or the nature of the conduct giving rise to
damages or liability, in a claim for personal injury to a
passenger, death of a passenger, or damage to property of a
passenger arising from or in connection with the provision of
rail passenger transportation, . . . punitive damages, to the
extent permitted by applicable State law, may be awarded in
connection with any such claim only if the plaintiff
establishes by clear and convincing evidence that the harm
that is the subject of the action was the result of conduct
carried out by the defendant with a conscious, flagrant
indifference to the rights or safety of others. If, in any
case wherein death was caused, the law of the place where the
act or omission complained of occurred provides, or has been
construed to provide, for damages only punitive in nature,
this paragraph shall not apply.
(2) The aggregate allowable awards to all rail
passengers, against all defendants, for all claims, including
claims for punitive damages, arising from a single accident
or incident, shall not exceed $200,000,000.

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comprehensive to give rise to a reasonable inference that it leaves
no room for the state to act; and (3) where state law actually
conflicts with federal law.” Marsh v. Rosenbloom, 499 F.3d 165, 177
(2d Cir. 2007) (citing
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Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479
U.S. 272, 280 (1987)).
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As the district court correctly concluded, § 28103(b) does not
expressly preempt state law, nor is it “so pervasive as to make
reasonable the inference that Congress left no room for the states
to supplement it.” Roberts, 2006 WL 648212, at *10. Preemption can
thus be found here only if the Connecticut statute conflicts with §
28103(b), i.e., if compliance with both statutes is impossible, or
if the Connecticut statute “‘stands as an obstacle to the
accomplishment and execution of the full purposes and objective of
Congress.’”
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United States v. Locke, 529 U.S. 89, 109 (2000) (quoting 332
California v. ARC Am. Corp., 490 U.S. 93, 100-101 (1989)). 333
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O&G first contends that no irreconcilable conflict exists
between the federal and the Connecticut statutes, because Congress
intended § 28103(b) to apply only to passenger claims. The argument
is unavailing. The subsection contains no such limitation on its
face and indeed makes plain that Amtrak may enter into contracts
allocating financial responsibility (i.e., indemnity agreements) for
any claims brought against it. 340
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Furthermore, if Congress intended § 28103(b) to apply only to
passenger claims, it would have included such qualifying language in

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the definition of the term “claims.” Congress did not do so. The
definition in subsection (e) of § 28103 is sufficiently broad to
encompass any claims asserted against Amtrak -- not only those by
passengers.8 Subsection (e) defines the persons or entities against
whom a claim may be pursued, but does not limit the class of
claimants. Because the language is unambiguous on this point, we
cannot “supply that which is omitted by the legislature.” Spielman 349
v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 332 F.3d 116, 127
(2d Cir. 2003).
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The title of § 28103 –- “Limitations on rail passenger
transportation liability” –- is of little aid to O&G’s proposition
that the statute covers only passenger claims. “[A] title . . .
cannot limit the plain meaning of unambiguous text.” Collazos v. 355
United States, 368 F.3d 190, 196 (2d Cir. 2004)(omission in
original) (internal quotation marks omitted).
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358 We conclude that § 28103(b), read in the context of the whole
section, see Food & Drug Admin. v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 133 (2000), authorizes Amtrak’s entry into
indemnification agreements for any claim filed against it, including
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8 49 U.S.C. § 28103(e) states:
Definition.-- For purposes of this section --
(1) the term "claim" means a claim made--
(A) against Amtrak, any high-speed railroad authority
or operator, any commuter authority or operator, any rail
carrier, or any State; or
(B) against an officer, employee, affiliate engaged in
railroad operations, or agent, of Amtrak, any high-speed
railroad authority or operator, any commuter authority or
operator, any rail carrier, or any State.

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tort claims by contractor employees. This permissive mandate can
hardly be reconciled with the prohibition of the Connecticut
statute.
O&G also argues that the scope of § 28103(b) only extends to
indemnity agreements between Amtrak and the freight railroad
companies that own most of the rail lines on which Amtrak operates
and are reluctant to shoulder liabilities stemming from the use of
their tracks by passenger trains. This claim is equally unpersuasive
because of the unambiguous text of § 28103(b) for the reasons set
forth above, and we rest our conclusion that § 28103(b) preempts the
Connecticut statute on that ground.
Nonetheless, O&G’s argument that congressional intent, as
evidenced by the legislative history of § 28103(b), counsels a
different result is meritless. Because Amtrak is a passenger rail
provider mostly operating on track systems owned by freight
railroads, the protection afforded by § 28103(b) will most likely
apply to indemnity agreements with freight railroads. As a result,
many of the congressional sponsors of the Reform Act frequently
referred in their discussions to the liability allocation agreements
between Amtrak and host freight railroads. That said, we find no
evidence of congressional intent that § 28103(b) apply only in that
particular set of circumstances. Rather, the goal of the Reform Act
was to shield
382
383
all of Amtrak's indemnity arrangements from legal
attacks on their validity.
384
See Symposium: The State of the Law in 385

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17
the Railroad Indus., 26 Transp. L.J. 319, 336-37 (1999) (“Congress .
. . encouraged all providers of rail passenger transportation to
enter into contracts that allocate financial responsibility for
claims. Resolving an issue that had plagued freight railroads that
host Amtrak trains, Congress also affirmed the enforceability of
contracts that include indemnification obligations.”).
386
387
388
389
390
391
392
393
394
395
396
The legislative history of § 28103(b) is illuminating.
Congressional debates reveal legislative concern about Amtrak’s
financial problems and intention to support Amtrak’s contractual
arrangements designed to reduce its liability exposure. The Reform
Act was meant, among other things, to ensure the enforceability of
indemnity agreements Amtrak concludes with any other party. The
Senate Committee Report is categorical in that regard:
397
398
[T]his bill clarifies that indemnification agreements 399
related to the provision of rail passenger service entered 400
into by Amtrak and other parties would be enforceable. The
Committee has been requested by Amtrak to include this
provision in order to
401
402
aid Amtrak in achieving operating 403
self-sufficiency. . . . As long as there is the
possibility that state laws governing indemnification
contracts may make these contracts unenforceable, Amtrak
and a freight railroad may find themselves litigating with
each other. Amtrak believes that such litigation
inevitably would not only adversely impact business
relationships between Amtrak and the host freight
railroads, but it
404
405
406
407
408
409
410
would also lead to significantly higher 411
outlays in settlements and judgments to plaintiffs. 412
413
414
415
416
S. Rep. No. 105-85, at 5 (1997) (emphasis added). Congress
unmistakably intended “[t]he language in section 28103(b) . . . to
confirm that such contractual agreements [i.e. indemnification

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18
417
418
419
420
421
422
423
424
425
426
agreements] are consistent with Federal law and public policy.” 143
Cong. Rec. S11937-03 (statement of Sen. Lott). O&G’s interpretation
of the statute’s legislative history would be inconsistent with the
stated objective of § 28103(b) to solidify the enforceability of
Amtrak’s liability-shifting arrangements.
When the Reform Act was passed, Amtrak was in the middle of “a
financial crisis, with growing and substantial debt obligations
severely limiting its ability to cover operating costs and
jeopardizing its long-term viability.” Amtrak Reform and
Accountability Act of 1997, §2(2), Pub. L. No. 105-134, December 2,
1997, 111 Stat. 2570, at *2571; see also 143 Cong. Rec. S11929-03
(statement of Sen. McCain) (“Amtrak is on the verge of bankruptcy.
Fundamental reforms are needed immediately if there is to be any
possibility of addressing Amtrak's financial crisis and turning it
into a viable operation.”). The Reform Act clearly reflects
Congress’s distress over Amtrak’s financial burdens: in 49 U.S.C. §
28103(a), Congress limited the award of punitive damages, in actions
“arising from . . . the provision of rail passenger transportation,”
to cases where the defendant was proven to have “a conscious,
flagrant indifference to the rights or safety of others.” 49 U.S.C.
§ 28103(a)(1). In a similar vein, Congress placed a $200 million cap
on Amtrak’s aggregate liability from any single accident.
427
428
429
430
431
432
433
434
435
436
437
Id. §
28103(a)(2).
438
439

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19
440
441
442
443
444
445
446
447
Against this legislative background, contentions that Congress
intended to allow state law or public policy to interfere with
Congress’s attempt to rescue Amtrak are simply not persuasive. We
believe that we must enforce and recognize the validity of the
indemnity provision in the Permit. Applying the Connecticut statute
would violate the plain language and spirit of § 28103(b), which
therefore preempts the Connecticut statute.
B. Material Breach of the Permit 448
449
450
451
452
453
454
455
456
At the conclusion of Phase II of the trial, the jury found
that, under the indemnity provision in the Permit, O&G was required
to reimburse Amtrak for costs incurred and damages awarded in the
Roberts and Quintiliani actions, but that Amtrak’s material breach
of the Permit relieved O&G of all its contractual duties, including
the obligation to indemnify Amtrak. However, the district judge
overturned the jury verdict, ruling that as a matter of law O&G’s
contractual obligation to indemnify Amtrak was valid regardless of
Amtrak’s negligence. See Roberts, 2006 WL 2621733, at *5-7. O&G now
challenges this ruling, arguing that the jury properly found that
Amtrak's violation of its duty to protect O&G's workers from passing
trains resulted in termination of the entire Permit and O&G’s
indemnity obligation thereunder. We review
457
458
459
460
de novo the district
court's grant of a post-verdict judgment to Amtrak as a matter of
law, considering the evidence in the light most favorable to O&G,
461
462
463

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20
the nonmoving party. Zellner v. Summerlin, 494 F.3d 344, 371 (2d
Cir. 2007).
464
465
466
467
468
469
“[A] material breach is a failure to do something that is so
fundamental to a contract that the failure to perform that
obligation defeats the essential purpose of the contract or makes it
impossible for the other party to perform under the contract.” 23
Williston on Contracts § 63:3 (4th ed. 2007) (footnotes and internal
quotation marks omitted). Under Connecticut law, an uncured,
material failure of performance by one contracting party discharges
the other party from any further performance under the contract,
which is rendered unenforceable
470
471
472
473
in toto. See Bernstein v. Nemeyer,
570 A.2d 164, 168 (Conn. 1990).
474
475
476
477
478
479
480
481
482
483
It is uncontroverted that O&G complied with its obligations
under the Permit to perform its work on Amtrak’s property so as to
observe Amtrak's safety regulations and not “interfere with
[Amtrak’s] operations.” By contrast, Amtrak’s failure to provide
adequate protection to O&G’s workers, O&G claims, negated the
Permit’s purpose and amounted to a material breach. The district
court rejected this claim because of the unambiguous language of the
indemnity agreement, which the court held squarely applicable to the
undisputed facts of the case. See Roberts, 2006 WL 2621733, at *6
(“The argument lacks merit, however, because the factual situation
on which O&G relies for being excused from its obligation is exactly
the factual situation which gives rise to that obligation.”).
484
485
486
487

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21
We agree with the district judge’s holding. Not only is the
indemnity clause not qualified by or conditioned on Amtrak's
obligation to operate its trains safely through the worksite, but it
explicitly provides Amtrak with a right to indemnity even where “the
negligence or fault of Amtrak [or] its . . . employees” is the
488
489
490
491
sole
cause of “injury, death, disease, or occupational disease to
employees of” O&G.
492
493
494
495
496
497
498
499
9 O&G cannot circumvent its indemnity obligation by
invoking Amtrak’s negligence, which the parties envisaged and
clearly determined would not exonerate O&G from its contractual
duties. As Judge Dorsey emphasized, if O&G is allowed to evade its
obligation to hold Amtrak harmless, “Amtrak’s protection against
ultimate responsibility for any unsafe train operation, as provided
in the Permit, would be nullified.” Id. at *6. Since the indemnity
provision expressly contemplates the factual situation that arose
here (i.e., Amtrak’s negligence was the sole cause of injury and
death to O&G’s employees), Amtrak’s failure to safely operate its
trains through O&G’s work zone could not have thwarted the Permit’s
essential purpose.
500
501
502
503
504
505
506
507
508
509
510
A reading of the Permit as a whole suggests, in fact, that at
the core of the agreement was the parties’ preoccupation with the
“safety and continuity of railroad traffic,” rather than the safety
of O&G’s personnel. The emphatic references to O&G’s undertaking to
take all measures necessary to avoid undue interference with train
9 The indemnity provision is quoted in full in section I of the
opinion, see supra at p.__. Its applicability in this case has not been
called into question by the parties.

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22
511
512
513
514
515
516
517
518
519
520
521
522
523
524
525
526
527
528
529
530
531
532
operations and its “complete responsibility for the adequacy and
safety of” its activities suggest that the Permit was drafted with a
principal focus on Amtrak’s interests. Even Amtrak’s promise to
furnish protection was aimed at ensuring the safety and continuity
of railroad traffic and would come into play only if, in the opinion
of Amtrak’s officers, “conditions warrant” it, and under the
condition that O&G would bear all the costs. It is a fair inference
that the essential purpose of the Permit was not to guarantee the
safety of O&G’s employees, but rather to authorize O&G’s temporary
access to Amtrak’s property while reassuring Amtrak that O&G’s
presence on its property would neither disrupt train operations nor
damage Amtrak’s trains and facilities. Amtrak’s negligent failure to
provide adequate protection to O&G’s workers did not vitiate this
purpose.
O&G does not claim that every negligent act by Amtrak would
constitute a material breach of the Permit. According to O&G, there
could be situations involving negligent acts by Amtrak
representatives that, nevertheless, would be covered by the
indemnity provision without necessarily amounting to a breach of a
fundamental contractual term. For example, O&G claims, “an Amtrak
employee could accidentally strike someone with a tool or a piece of
equipment, or could dig a hole into which an individual might fall.”
See Br. of Appellant at 36. 533

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23
534
535
536
537
538
539
540
541
542
543
544
545
The breadth of the indemnity provision refutes the distinction
O&G seeks to introduce. The provision does carve out of its reach
some situations where Amtrak’s negligence is the sole cause of the
indemnifiable loss, but O&G’s obligation to indemnify Amtrak
explicitly extends to instances of “injury, death, disease, or
occupational disease to employees of [O&G]” exclusively caused by
Amtrak's negligence or fault. If Amtrak’s obligation to protect
O&G’s employees were a centerpiece of the Permit, and default of
this obligation were intended to invalidate the Permit in its
entirety, the parties could have made this clear by, for example,
including a termination clause in the Permit. Absent any stipulation
or indication to that effect, we cannot “unmake” the bargain the
parties struck, “whether provident or improvident.” Tallmadge Bros., 546
Inc. v. Iroquois Gas Transmission Sys., L.P., 746 A.2d 1277, 1292
(Conn. 2000) (internal quotation marks omitted). “Where the language
of the contract is clear and unambiguous, the contract is to be
given effect according to its terms.”
547
548
549
Pesino v. Atl. Bank of New 550
York, 709 A.2d 540, 545 (Conn. 1998) (internal quotation marks
omitted). Under the circumstances of this case, a finding of
material breach of the Permit would be incompatible with its plain
language.
551
552
553
554
555
556
557
“Simply stated, . . . the evidence [here] is such that, without
. . . considering the weight of the evidence, there can be but one
conclusion as to the verdict that reasonable men could have

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24
reached.” Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970).
Accordingly, we affirm the district court's grant of judgment to
Amtrak as a matter of law and hold that, regardless of Amtrak’s
negligence in causing the accident, O&G bears the valid obligation
to indemnify Amtrak for the damages awarded to Quintiliani and
Roberts.
558
559
560
561
562
563
564
C. Cross-Examination of Amtrak's Employee by O&G 565
566
567
568
569
570
571
572
573
574
575
576
577
578
579
580
581
The district court permitted O&G to participate in Phase I of
the trial, in which plaintiffs Roberts and Quintiliani sued
defendant Amtrak. The judge’s rationale was that evidence presented
in relation to plaintiffs’ claims against Amtrak might well bear on
Amtrak’s indemnity claim against O&G. Nevertheless, the judge did
not permit O&G's counsel to cross-examine Amtrak's New England
Division Superintendent Fred Fournier. O&G’s stated reason for
cross-examining Fournier was to elicit testimony tending to prove
that O&G was not at fault for the accident, which was entirely
attributable to Amtrak's reckless conduct. O&G argues that a showing
of Amtrak’s recklessness would enable O&G to avoid its indemnity
obligations on public policy grounds. Judge Dorsey’s reasoning for
denying O&G’s request to cross-examine Fournier was that issues
pertaining to O&G's role in the accident would be addressed in Phase
II. O&G was told that it would have ample opportunity to present its
recklessness defense at that time. However, when O&G attempted to

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25
582
583
584
585
586
587
588
589
590
591
592
593
594
595
596
597
598
599
600
601
question Fournier in Phase II of the trial about whether Amtrak
followed proper internal procedures to avert safety risks to O&G’s
on-site employees, the court sustained Amtrak’s objection to this
line of questioning. The judge noted that the jury had already
resolved the issue of Amtrak’s fault in Phase I of the trial.
O&G now claims that by precluding its cross-examination of
Fournier in Phase I and limiting its questioning of the same witness
in Phase II of the trial, the district judge prevented O&G from
fully litigating the question of Amtrak's recklessness -- on which
one of O&G’s defense was premised -- and thus deprived it of its
cross-examination rights. The error, according to O&G, warrants a
new trial.
As a preliminary matter, we reject Amtrak's contention that
this claim has not been preserved for appellate review. O&G
repeatedly objected to the court's limitations on its examination of
Fournier, articulating the concern that, if the jury found no
recklessness by Amtrak in Phase I, that issue would be barred from
jury consideration in Phase II.
We turn to the merits of O&G’s claim. “Whether an evidentiary
error implicates a substantial right depends on ‘the likelihood that
the error affected the outcome of the case.’” See Tesser v. Bd. of 602
Educ., 370 F.3d 314, 319 (2d Cir. 2004) (per curiam) (quoting Malek 603
v. Fed. Ins. Co., 994 F.2d 49, 55 (2d Cir. 1993)); see also Fed. R.
Civ. P. 61 (“Unless justice requires otherwise, no error . . . by
604
605

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26
606
607
608
609
610
611
612
613
614
615
616
617
618
619
620
the court . . . is ground for granting a new trial, . . . or
otherwise disturbing a judgment or order. At every stage of the
proceeding, the court must disregard all errors and defects that do
not affect any party’s substantial rights.”)
We believe that the court’s alleged error did not have a
substantial impact on the outcome of the case. O&G's interests were
adequately protected by Roberts and Quintiliani, the plaintiffs in
Phase I. These parties were seeking punitive damages from Amtrak and
thus had an equal, if not greater, incentive than O&G to show that
Amtrak's conduct was reckless. The question of Amtrak’s recklessness
was adequately litigated by Roberts and Quintiliani and there is no
indication that the jury would have found recklessness, had O&G been
allowed to cross-examine Fournier. The limitation of O&G’s
cross-examination rights, even if erroneous, did not cause any
prejudice to O&G, because “it is [not] likely that in some material
respect the factfinder's judgment was swayed by the error.” Tesser,
370 F.3d at 319 (internal quotation marks omitted).
621
See also United 622
States v. Thomas, 274 F.3d 655, 668 (2d Cir. 2001) (en banc) (“An
error affects a defendant's substantial rights if it is prejudicial
and it affected the outcome of the district court proceedings”)
(internal quotation marks omitted).
623
624
625
626
627
628
629
Furthermore, even supposing the district judge had not
restricted O&G’s examination of Fournier in Phase I, and that O&G
had convinced the jury that Amtrak’s conduct was reckless, it is

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27
630
631
doubtful that the outcome of the case would have been more favorable
to O&G. The indemnity provision in the Permit unequivocally requires
O&G to reimburse Amtrak for all the losses Amtrak may sustain as a
result of death or injury to O&G’s employees, even when Amtrak’s own
negligence
632
633
or fault is the sole cause of the incident. The
unmistakable wording of the clause would thus not allow O&G to
nullify its obligation to indemnify Amtrak, even if the jury had
entered a punitive damages award against Amtrak on recklessness
grounds.
634
635
636
637
638
639
640
641
642
643
O&G argues to us that, had it been allowed to fully participate
in Phase I of the trial, and had the jury found Amtrak’s conduct
reckless, O&G would have been relieved of its duty to hold Amtrak
harmless, by raising a public policy defense against enforcement of
the indemnity agreement. We disagree. We have already held in this
opinion (see Part II.A, supra) that the Connecticut statute
embodying the public policy of Connecticut against indemnification
for liabilities due solely to the negligence of the indemnitee
644
645
646
647
648
10 is
preempted by § 28103(b). Subsection § 28103(b) also superseded the
opinion that would have been most helpful to O&G in its public
policy defense against indemnification for reckless conduct. See 649
Nat’l R.R. Passenger Corp. v. Consol. Rail Corp. (“ConRail”), 698 F.
Supp. 951 (D.D.C. 1988) (invalidating an agreement to indemnify for
losses caused by the indemnitee’s gross negligence, as contrary to
District of Columbia public policy),
650
651
652
vacated on other grounds, 892 653
10 See supra note 3.

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28
654
655
F.2d 1066 (D.C. Cir. 1990). As Judge Dorsey correctly noted in
granting summary judgment to Amtrak, it was precisely the doubts
cast by the ConRail decision over the validity of indemnity
agreements by railroad parties that prompted Congress to enact §
28103(b).
656
657
See Roberts, 2006 WL 648212, at *11. The broad,
unqualified language in § 28103(b) leaves no doubt as to the
specific intent of Congress to sanction indemnity arrangements
between Amtrak “and other parties” with respect to any claims
against Amtrak.
658
659
660
661
See S. Rep. No. 105-85, at 5 (1997). A finding of
recklessness in Phase I, therefore, would have resulted in a higher
jury verdict against Amtrak in the underlying actions against it in
Phase I of the trial. This would most probably have permitted Amtrak
to obtain greater recovery from O&G under the Permit; public policy
considerations would not have precluded enforcement of the express
direction of the indemnity provision.
662
663
664
665
666
667
668
In view of the above, we hold that, assuming arguendo that the
district judge erred in preventing O&G from cross-examining Fournier
in Phase I and from fully pursuing its recklessness defense in Phase
II, the error was not prejudicial to O&G in the context of the trial
as a whole and does not justify a new trial.
669
670
671
672
673
674
D. Attorneys' Fees 675
676
677
In granting Amtrak's Rule 50(b) motion for judgment as a
matter of law, the district judge held that, under the indemnity

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29
678
679
680
681
682
683
684
685
686
687
688
689
agreement, Amtrak was entitled to reimbursement of its attorneys’
fees, as well as the costs it incurred in Phase I of the trial, in
defense of the actions brought by Roberts and Quintiliani. The
judge, however, did not set the amount of attorneys’ fees and
litigation costs for which O&G was required to indemnify Amtrak. O&G
now argues that the district court abused its discretion in awarding
attorneys’ fees and costs where there was no evidence as to the
amount or reasonableness of these expenses. Amtrak responds that the
amount of fees due would be ascertained by the district judge only
after liability for such fees was determined.
Pursuant to 28 U.S.C. § 1291, we review only final decisions of
the district court that “leave[] nothing for the court to do but
execute the judgment.” Catlin v. United States, 324 U.S. 229, 233
(1945). A non-quantified award of attorneys’ fees and costs is not
appealable until the amount of the fees has been set by the district
court. “We have held that where attorneys’ fees are a contractually
stipulated element of damages, a judgment is not final until the
fees have been determined.”
690
691
692
693
694
F.H. Krear & Co. v. Nineteen Named 695
Trustees, 776 F.2d 1563, 1564 (2d Cir. 1985) (per curiam); see also 696
Honeywell Int'l, Inc. v. Purolator Prods. Co., 468 F.3d 162, 164 (2d
Cir. 2006). This circuit, moreover, has “rejected the doctrine of
pendent appellate jurisdiction as a basis to review an undetermined
award of attorneys’ fees, even when the question of liability for
the fees had been consolidated with other decisions that were
697
698
699
700
701

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30
final.” Krumme v. WestPoint Stevens Inc., 143 F.3d 71, 87 (2d Cir.
1998) (citing
702
Cooper v. Salomon Bros., 1 F.3d 82, 85 (2d Cir.
1993)). We therefore dismiss for lack of appellate jurisdiction the
portion of O&G’s appeal challenging the district court’s grant of
attorneys’ fees and costs incurred in Phase I of the trial.
703
704
705
706
707
708
709
710
This defect does not impair the finality of the district
court’s ruling on Amtrak’s motion for judgment as a matter of law,
nor does it divest us of jurisdiction to review the merits of the
other issues on appeal. In reaching this conclusion, we apply the
“bright-line rule” enunciated by the Supreme Court in Budinich v. 711
Becton Dickinson & Co., 486 U.S. 196 (1988), “that a decision on the
merits is a ‘final decision’ for purposes of [28 U.S.C.] § 1291
whether or not there remains for adjudication a request for
attorney's fees.”
712
713
714
Id. at 202-03.11
715
716
717 III. CONCLUSION
11 Some of our pre-Budinich precedent might be read to support the
proposition that the non-finality of an award of attorneys’ fees sought
as an element of contractual damages renders non-appealable the entire
judgment in which such award is incorporated. See, e.g., Union Tank Car
Co. v. Isbrandtsen, 416 F.2d 96 (2d Cir. 1969) (per curiam). However, we
heed the Supreme Court’s admonition in Budinich that “no interest
pertinent to § 1291 is served by according different treatment to
attorney's fees deemed part of the merits recovery,” and abide by the now
“uniform rule that an unresolved issue of attorney’s fees . . . does not
prevent judgment on the merits from being final.” Budinich, 486 U.S. at
202. Application of this sensible rule also promotes the interests of
judicial economy, especially in this case where resolution of the
“question remaining to be decided . . . will not alter . . . or revise”
the court’s final rulings on the merits of the other issues on appeal.
Id. at 199. Treating the district court’s grant of Amtrak’s Rule 50(b)
motion as non-final and remanding the entire case to the district court
would only cause further delays in the disposition of this long-pending
case.

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31
718
719
720
721
722
We have considered all of appellant O&G’s arguments and find
them to be without merit. For the reasons discussed above, we affirm
the district court on all issues except for the ruling on attorneys'
fees, over which we lack appellate jurisdiction. AFFIRMED IN PART
AND DISMISSED IN PART.

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