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

Opinion

06-4719-cv O&G Indus., Inc. v. Nat’l R.R. Passenger Corp.

1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2007 6 7 (Argued: October 23, 2007 Decided: August 8, 2008) 8 9 Docket No. 06-4719-cv 10 11 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 12 O&G INDUSTRIES, INC., 13 14 Third-Party-Defendant Appellant, 15 16 HARTFORD FIRE INSURANCE CO. AND DAVID E. ROBERTS, ADMINISTRATOR FOR 17 THE ESTATE OF GREGORY J. ROBERTS, 18 19 Plaintiffs, 20 21 PETER QUINTILIANI AND LAUREL QUINTILIANI, 22 23 Consolidated Plaintiffs, 24 25 v. 26 27 NATIONAL RAILROAD PASSENGER CORPORATION, 28 29 Defendant-Third-Party-Plaintiff Appellee, 30 31 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 32 B e f o r e: FEINBERG, WINTER, and STRAUB, Circuit Judges.

33 Appeal from a judgment of the United States District Court for 34 the District of Connecticut (Dorsey, J.) entered in a third-party 35 action for indemnity, following an accident in which a train owned 36 and operated by defendant-third-party-plaintiff appellee Amtrak 37 caused the death of one employee of third-party-defendant appellant 38 O&G Industries, Inc. and injured another. In the first instance, the 39 district court (1) granted summary judgment to Amtrak on the ground 40 that the indemnity agreement between Amtrak and O&G was not invalid 41 under Connecticut General Statute § 52-572k(a), because the latter 42 is preempted by 49 U.S.C. § 28103(b), which allows rail passenger 43 carriers to enter into indemnification agreements concerning claims 44 brought against them; and (2) held that O&G was required, as a 45 matter of law, to indemnify Amtrak for the liabilities and costs

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46 Amtrak incurred in the tort actions arising out of the accident, 47 despite a jury verdict that O&G was relieved of this obligation 48 because Amtrak’s failure to adequately protect O&G workers amounted 49 to a material breach of the contract between them. We now affirm the 50 rulings of the district court. We also find that any error the 51 district court committed by precluding appellant from 52 cross-examining an employee of the appellee in the first phase of 53 the trial (concerning the tort actions against Amtrak) and 54 subsequently restricting appellant’s direct examination of the same 55 employee in the second phase of the trial (concerning the indemnity 56 claim against O&G) was harmless. Finally, we dismiss for want of 57 appellate jurisdiction O&G’s challenges to the award of attorneys’ 58 fees and costs. Dismissal does not affect our jurisdiction to review 59 the merits of the other issues on appeal. Affirmed in part and 60 dismissed in part. 61 62 KIMBERLY A. KNOX (Michael S. Taylor and Brendon P. Levesque, on 63 the brief), Horton Shields & Knox, P.C., Hartford, Connecticut, 64 and Jeffrey A. Blueweiss (on the brief), Bai, Pollock, 65 Blueweiss & Mulcahey, Shelton, Connecticut, for Third-Party- 66 Defendant Appellant. 67 68 69 WILLIAM G. BALLAINE (Dawn Pinkston, of counsel, on the brief), 70 Landman Corsi Ballaine & Ford, P.C., New York, New York, for 71 Defendant-Third-Party-Plaintiff Appellee. 72 73 74 FEINBERG, Circuit Judge: 75 76 This case is procedurally complicated. The present appeal

77 arises out of a third-party complaint brought by National Railroad 78 Passenger Corporation (hereafter “Amtrak” or “appellee”) against O&G 79 Industries, Inc. (hereafter “O&G” or “appellant”) in the United 80 States District Court for the District of Connecticut (Dorsey, J.). 81 In its complaint, Amtrak sought indemnification from O&G for any 82 liabilities and costs, including attorneys’ fees, that Amtrak would

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83 incur in two consolidated tort actions against it for wrongful death 84 and personal injury damages resulting from a train accident. 1 85 The proceedings in the district court included two rulings that 86 O&G now appeals to this Court. First, before trial of the third- 87 party indemnity action began, the district judge granted partial 88 summary judgment to Amtrak on the basis of an explicit indemnity 89 provision in a right-of-access contract between Amtrak and O&G. The 90 court upheld the validity of the indemnity provision, ruling that 49 91 U.S.C. § 28103(b) (hereafter “§ 28103(b)”) -- which allows rail 92 passenger carriers to enter into liability-shifting agreements -- 93 preempted Connecticut General Statute § 52-572k(a) (frequently 94 referred to hereafter as the “Connecticut statute”). That statute 95 prohibits, on public policy grounds, indemnity agreements entered 96 into in connection with construction contracts, if they purport to 97 shield the indemnitee from liability for its own negligence. O&G 98 invoked the Connecticut statute to defeat Amtrak’s indemnity claim. 99 See Roberts v. Nat’l R.R. Passenger Corp. v. O&G Indus., Nos. 3:04- 100 cv-1318, 3:04-cv-1622 & 3:04-cv-2195, 2006 WL 648212 (D. Conn. Mar. 101 9, 2006).

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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102 Second, the judge granted Amtrak's post-trial motion for 103 judgment as a matter of law, setting aside a jury verdict that O&G 104 was relieved of its obligation to indemnify Amtrak because of 105 Amtrak’s material breach of the contract with O&G. Judge Dorsey held 106 that Amtrak’s contractual default did not affect the validity of the 107 indemnity agreement, which explicitly covered accidents attributable 108 to Amtrak’s negligence. See Roberts v. Nat’l R.R. Passenger Corp. v. 109 O&G Indus., Nos. 3:04-cv-1318, 3:04-cv-1622 & 3:04-cv-2195, 2006 WL 110 2621733 (D. Conn. Sept. 12, 2006). 111 O&G argues on appeal that the district court erred in (1) 112 granting partial summary judgment to Amtrak; (2) entering judgment 113 for Amtrak as a matter of law; (3) curtailing O&G’s cross- and 114 direct examination of an Amtrak employee during the trial; and (4) 115 awarding Amtrak attorneys’ fees and defense costs without any 116 evidence as to their amount and reasonableness. 117 On the first and second of these issues, we affirm the district 118 court. On the third, we find the limitations of O&G’s 119 cross-examination rights by the district court, even if erroneous, 120 were not substantially prejudicial to appellant. On the fourth 121 issue, we conclude that we lack appellate jurisdiction over the 122 district court’s non-final award of attorneys’ fees and costs. 123 124 I. BACKGROUND

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125 The accident that led to this litigation occurred in June 2004, 126 while Gregory Roberts and Peter Quintiliani, carpenters employed by 127 O&G, were installing wood planks on the underside of a highway 128 bridge suspended over Amtrak's tracks in East Haven, Connecticut. An 129 Amtrak diesel locomotive entered their worksite without warning and 130 collided with the man-lift in which they were stationed. Amtrak’s 131 on-site safety personnel were unable to prevent the accident, 132 because they were unaware of the train’s scheduled passage through 133 O&G’s work area, due to poor coordination with the office of 134 Amtrak’s chief dispatcher in Boston. Furthermore, Amtrak’s 135 employees, having already de-energized the tracks at the East Haven 136 worksite so that no electric-powered train could pass, erroneously 137 believed that the tracks had been placed out of service. Thus, they 138 had not made a specific request to “foul” the tracks, i.e., render 139 them completely inoperable until O&G’s crew had completed its work. 140 At the time of the accident, therefore, none of O&G’s or Amtrak’s 141 employees on duty at the site expected any train movement through 142 the work zone. 2 The collision killed Roberts instantly; Quintiliani 143 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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144 David Roberts (hereafter “Roberts”), the brother of the 145 deceased O&G employee and administrator of his estate, filed in 146 August 2004 a wrongful death action against Amtrak, seeking 147 compensatory and punitive damages. The suit by Roberts was 148 consolidated with Quintiliani’s personal injury action. After 149 answering the two actions, Amtrak filed its third-party complaint 150 against O&G. 151 The indemnity claim was based on a clause in the “Temporary 152 Permit to Enter Upon Property” (hereafter “Permit”), a contract 153 concluded between O&G and Amtrak in October 2003. Under the Permit, 154 Amtrak allowed O&G access to Amtrak’s property in East Haven, in 155 order to perform construction work in relation to O&G’s contract 156 with the Connecticut State Department of Transportation regarding 157 the re-building of a stretch of Interstate 95 between New Haven and 158 Branford, Connecticut; consideration was $1. O&G, on its part, 159 undertook to “use all necessary care and precaution to avoid 160 accidents, delay or interference with [Amtrak's] trains or property” 161 and abide by Amtrak's safety regulations. Pursuant to the Permit, 162 Amtrak would provide, at its discretion and at O&G’s expense, “flag 163 service and/or other protection” necessary to maintain the “safety 164 and continuity of railroad traffic,” over which Amtrak retained 165 exclusive control. However, the provision of “protective services” 166 would “not relieve [O&G] from [its] complete responsibility for the

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167 adequacy and safety of [its] operations.” A key feature of the 168 Permit is the following provision:

169 The Permittee [O&G] shall defend, indemnify and hold harmless 170 Railroad [Amtrak], its officers, directors, employees, agents, 171 servants, successors, assigns and subsidiaries, irrespective of 172 their negligence or fault, from and against any and all losses 173 and liabilities, . . . claims, causes of action, suits, costs 174 and expenses incidental thereto (including cost of defense and 175 attorney's fees), which any or all of them may hereafter incur, 176 be responsible for, or pay as a result of injury, [or] death, . 177 . . to any person . . . arising out of or . . . resulting from 178 activities of or work performed by [O&G], its officers, 179 employees, agents, servants, contractors, subcontractors, or 180 any other person acting for or by permission of [O&G]. The 181 foregoing obligation shall not extend to situations where the 182 negligence or fault of Amtrak, its officers, directors, [or] 183 employees . . . is the sole causal negligence or fault, except 184 that it shall so extend to injury [or] death . . . to employees 185 of [O&G], its agents, servants, contractors, subcontractors, or 186 any other person acting for or by permission of [O&G]. The 187 foregoing obligation shall not be limited by the existence of 188 any insurance policy or by any limitation on the amount or type 189 of damages, compensation, or benefits payable by or for [O&G] 190 or any contractor or subcontractor, and shall survive the 191 termination of this permit for any reason. 192 193 (Emphasis added.) In the district court, O&G argued that the above

194 provision was invalid under Connecticut General Statute § 52- 195 572k(a), which declares void as against public policy agreements to 196 indemnify a party against its own negligence, if such agreements 197 were made “in connection with or collateral to” construction 198 contracts. 199 Before trial began on Amtrak’s indemnity claim, Amtrak sought 200 summary judgment and orders directing O&G to defend Amtrak in the 201 two tort actions and reimburse Amtrak’s reasonable attorneys' fees 202 in defending against those claims. In March 2006, Judge Dorsey

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203 granted Amtrak partial summary judgment, concluding that § 28103(b), 204 which allows Amtrak to enter into indemnification agreements as to 205 claims against it, preempted the Connecticut statute and allowed 206 Amtrak to pursue its indemnity claim at trial. 207 The jury trial of the consolidated actions by plaintiffs 208 Roberts and Quintiliani against Amtrak began in March 2006. The 209 first phase (“Phase I”) was limited to the issue of damages to be 210 awarded to plaintiffs. Amtrak conceded negligence (but not 211 recklessness). In April 2006, the jury awarded plaintiffs $1.425 212 million each in compensatory damages, but rejected the punitive 213 damages claims, finding that Amtrak's conduct was not willful or 214 reckless. 3 At the end of the second phase of the trial (“Phase II”) 215 concerning Amtrak’s third-party complaint against O&G, the jury 216 found that O&G was excused from its obligation to indemnify Amtrak, 217 because Amtrak's failure to provide O&G’s crew adequate on-site 218 protection amounted to a material breach of the Permit, rendering it 219 void in its entirety. 220 After this second verdict, Amtrak moved for judgment as a 221 matter of law, under Federal Rule of Civil Procedure 50(b), arguing 222 that there were no triable issues of fact as to the applicability of 223 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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224 indemnify Amtrak for litigation costs and damages awarded in the 225 underlying actions by Quintiliani and Roberts. In the alternative, 226 Amtrak sought a new trial, under Rule 59(a), on whether a material 227 contractual default nullified the entire Permit. 228 In September 2006, the judge granted Amtrak's Rule 50(b) 229 motion, concluding that Amtrak’s right to indemnity explicitly 230 accrues, under the Permit, where Amtrak is found liable for injury 231 to or death of an O&G employee solely caused by Amtrak’s own 232 negligence or fault. See Roberts, 2006 WL 2621733, at *5-6. Allowing 233 O&G to evade its indemnity obligations because of Amtrak’s 234 negligence, the court reasoned, would “render the indemnification 235 provision meaningless.” Id. at *6. 236 In December 2006, the court entered judgment in favor of Amtrak 237 in its indemnity action against O&G. This timely appeal by O&G 238 followed. 239 240 II. DISCUSSION 241 The parties to this appeal raise several issues. First, we must 242 decide whether the Connecticut statute, which nullifies indemnity 243 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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244 applies, on its face, to the Permit; if it does, we must next 245 examine whether § 28103(b), which permits Amtrak to enter into 246 indemnification agreements, 5 preempts the Connecticut statute. 247 Second, in considering the district court's grant of Amtrak's motion 248 for judgment as a matter of law, we must assess whether Amtrak’s 249 conceded failure to effectively protect O&G’s crew constituted a 250 material breach of the Permit, discharging O&G from its indemnity 251 obligation. Third, we review the district court's decision to 252 preclude O&G from cross-examining an Amtrak employee during Phase I 253 of the trial, and the judge’s subsequent decision to restrict O&G's 254 direct examination of the same employee during Phase II. Finally, we 255 consider whether we have jurisdiction over the district court's non- 256 quantified award to Amtrak of reasonable costs and attorneys' fees 257 incurred in the defense of the Roberts and Quintiliani actions. 258 259 A. Preemption 260 Our review of a grant of summary judgment under Rule 56 is 261 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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262 genuine issue of material fact and, based on the undisputed facts, 263 the moving party is entitled to judgment as a matter of law.” 264 D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). We 265 view the facts in the light most favorable to the nonmoving party 266 and resolve all factual ambiguities in its favor. Cioffi v. Averill 267 Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir. 268 2006). 269 270 1) Applicability of the Connecticut Statute 271 In its appeal, O&G relies heavily on the Connecticut statute. 272 In response, Amtrak claims for the first time that the Connecticut 273 statute does not apply to the Permit because it allegedly bars 274 indemnity agreements only if inserted in construction contracts. 275 Amtrak argues that the Permit was not such a contract. In the 276 district court, however, Amtrak did not contest the applicability of 277 the Connecticut statute, although it had ample opportunity to do so. 278 Under the circumstances, Amtrak has waived that argument and cannot 279 raise it on appeal. See Greene v. United States, 13 F.3d 577, 586 280 (2d Cir. 1994) (citing Singleton v. Wulff, 428 U.S. 106, 120 281 (1976)). 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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282 assumption that the Connecticut statute applies, unless it is 283 preempted. 284 285 2) Preemption by § 28103(b) 286 Section 28103 of Title 49 of the United States Code was enacted 287 as part of the Amtrak Reform and Accountability Act of 1997 288 (hereafter the “Reform Act”). Subsection (b) of § 28103 provides 289 that “[a] provider of rail passenger transportation may enter into 290 contracts that allocate financial responsibility for claims.” Amtrak 291 argues that this subsection was intended to allow it to enter into 292 enforceable indemnity agreements not voidable under state law. In 293 Amtrak’s view, § 28103(b) is at odds with and preempts the 294 Connecticut statute. 295 O&G counters that § 28103(b) applies only to indemnity 296 agreements (1) regarding claims brought by passengers and (2) 297 concluded between passenger rail carriers like Amtrak and freight 298 railroads. Because Gregory Roberts and Quintiliani were not Amtrak 299 passengers, and the indemnity agreement was between Amtrak and O&G, 300 a construction company rather than a freight railroad company, O&G 301 maintains that § 28103(b) is not applicable and does not supersede 302 the Connecticut statute. In support of its arguments, O&G points to 303 subsection (a) of § 28103, which governs the issue of punitive 304 damages to be awarded in relation to passenger claims for personal

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305 injury, wrongful death or property damage, 7 and to the legislative 306 history of § 28103(b). 307 Federal preemption of state law is a doctrine grounded in the 308 Supremacy Clause of the Constitution. See U.S. Const. Art. VI, cl. 2 309 ("[T]he Laws of the United States . . . made in Pursuance [of the 310 Constitution] shall be the supreme Law of the Land . . . any Thing 311 in the Constitution or Laws of any State to the Contrary 312 notwithstanding."). The doctrine requires us first to ascertain 313 congressional intent, which is “‘the ultimate touchstone’ of pre- 314 emption analysis.” See Cipollone v. Liggett Group, Inc., 505 U.S. 315 504, 516 (1992) (quoting Malone v. White Motor Corp., 435 U.S. 497, 316 504 (1978)). Intent to preempt state law may be found “(1) where 317 Congress expressly states its intent to preempt; (2) where

318 Congress's scheme of federal regulation is sufficiently

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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319 comprehensive to give rise to a reasonable inference that it leaves 320 no room for the state to act; and (3) where state law actually 321 conflicts with federal law.” Marsh v. Rosenbloom, 499 F.3d 165, 177 322 (2d Cir. 2007) (citing Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 323 U.S. 272, 280 (1987)). 324 As the district court correctly concluded, § 28103(b) does not 325 expressly preempt state law, nor is it “so pervasive as to make 326 reasonable the inference that Congress left no room for the states 327 to supplement it.” Roberts, 2006 WL 648212, at *10. Preemption can 328 thus be found here only if the Connecticut statute conflicts with § 329 28103(b), i.e., if compliance with both statutes is impossible, or 330 if the Connecticut statute “‘stands as an obstacle to the 331 accomplishment and execution of the full purposes and objective of 332 Congress.’” United States v. Locke, 529 U.S. 89, 109 (2000) (quoting 333 California v. ARC Am. Corp., 490 U.S. 93, 100-101 (1989)). 334 O&G first contends that no irreconcilable conflict exists 335 between the federal and the Connecticut statutes, because Congress 336 intended § 28103(b) to apply only to passenger claims. The argument 337 is unavailing. The subsection contains no such limitation on its 338 face and indeed makes plain that Amtrak may enter into contracts 339 allocating financial responsibility (i.e., indemnity agreements) for 340 any claims brought against it. 341 Furthermore, if Congress intended § 28103(b) to apply only to 342 passenger claims, it would have included such qualifying language in

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343 the definition of the term “claims.” Congress did not do so. The 344 definition in subsection (e) of § 28103 is sufficiently broad to 345 encompass any claims asserted against Amtrak -- not only those by 346 passengers. 8 Subsection (e) defines the persons or entities against 347 whom a claim may be pursued, but does not limit the class of 348 claimants. Because the language is unambiguous on this point, we 349 cannot “supply that which is omitted by the legislature.” Spielman 350 v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 332 F.3d 116, 127 351 (2d Cir. 2003). 352 The title of § 28103 –- “Limitations on rail passenger 353 transportation liability” –- is of little aid to O&G’s proposition 354 that the statute covers only passenger claims. “[A] title . . . 355 cannot limit the plain meaning of unambiguous text.” Collazos v. 356 United States, 368 F.3d 190, 196 (2d Cir. 2004)(omission in 357 original) (internal quotation marks omitted). 358 We conclude that § 28103(b), read in the context of the whole 359 section, see Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 360 529 U.S. 120, 133 (2000), authorizes Amtrak’s entry into 361 indemnification agreements for any claim filed against it, including

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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362 tort claims by contractor employees. This permissive mandate can 363 hardly be reconciled with the prohibition of the Connecticut 364 statute. 365 O&G also argues that the scope of § 28103(b) only extends to 366 indemnity agreements between Amtrak and the freight railroad 367 companies that own most of the rail lines on which Amtrak operates 368 and are reluctant to shoulder liabilities stemming from the use of 369 their tracks by passenger trains. This claim is equally unpersuasive 370 because of the unambiguous text of § 28103(b) for the reasons set 371 forth above, and we rest our conclusion that § 28103(b) preempts the 372 Connecticut statute on that ground. 373 Nonetheless, O&G’s argument that congressional intent, as 374 evidenced by the legislative history of § 28103(b), counsels a 375 different result is meritless. Because Amtrak is a passenger rail 376 provider mostly operating on track systems owned by freight 377 railroads, the protection afforded by § 28103(b) will most likely 378 apply to indemnity agreements with freight railroads. As a result, 379 many of the congressional sponsors of the Reform Act frequently 380 referred in their discussions to the liability allocation agreements 381 between Amtrak and host freight railroads. That said, we find no 382 evidence of congressional intent that § 28103(b) apply only in that 383 particular set of circumstances. Rather, the goal of the Reform Act 384 was to shield all of Amtrak's indemnity arrangements from legal 385 attacks on their validity. See Symposium: The State of the Law in

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386 the Railroad Indus., 26 Transp. L.J. 319, 336-37 (1999) (“Congress . 387 . . encouraged all providers of rail passenger transportation to 388 enter into contracts that allocate financial responsibility for 389 claims. Resolving an issue that had plagued freight railroads that 390 host Amtrak trains, Congress also affirmed the enforceability of 391 contracts that include indemnification obligations.”). 392 The legislative history of § 28103(b) is illuminating. 393 Congressional debates reveal legislative concern about Amtrak’s 394 financial problems and intention to support Amtrak’s contractual 395 arrangements designed to reduce its liability exposure. The Reform 396 Act was meant, among other things, to ensure the enforceability of 397 indemnity agreements Amtrak concludes with any other party. The 398 Senate Committee Report is categorical in that regard:

399 [T]his bill clarifies that indemnification agreements 400 related to the provision of rail passenger service entered 401 into by Amtrak and other parties would be enforceable. The 402 Committee has been requested by Amtrak to include this 403 provision in order to aid Amtrak in achieving operating 404 self-sufficiency. . . . As long as there is the 405 possibility that state laws governing indemnification 406 contracts may make these contracts unenforceable, Amtrak 407 and a freight railroad may find themselves litigating with 408 each other. Amtrak believes that such litigation 409 inevitably would not only adversely impact business 410 relationships between Amtrak and the host freight 411 railroads, but it would also lead to significantly higher 412 outlays in settlements and judgments to plaintiffs. 413 414 S. Rep. No. 105-85, at 5 (1997) (emphasis added). Congress

415 unmistakably intended “[t]he language in section 28103(b) . . . to 416 confirm that such contractual agreements [i.e. indemnification

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

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

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

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488 We agree with the district judge’s holding. Not only is the 489 indemnity clause not qualified by or conditioned on Amtrak's 490 obligation to operate its trains safely through the worksite, but it 491 explicitly provides Amtrak with a right to indemnity even where “the 492 negligence or fault of Amtrak [or] its . . . employees” is the sole 493 cause of “injury, death, disease, or occupational disease to 494 employees of” O&G. 9 O&G cannot circumvent its indemnity obligation by 495 invoking Amtrak’s negligence, which the parties envisaged and 496 clearly determined would not exonerate O&G from its contractual 497 duties. As Judge Dorsey emphasized, if O&G is allowed to evade its 498 obligation to hold Amtrak harmless, “Amtrak’s protection against 499 ultimate responsibility for any unsafe train operation, as provided 500 in the Permit, would be nullified.” Id. at *6. Since the indemnity 501 provision expressly contemplates the factual situation that arose 502 here (i.e., Amtrak’s negligence was the sole cause of injury and 503 death to O&G’s employees), Amtrak’s failure to safely operate its 504 trains through O&G’s work zone could not have thwarted the Permit’s 505 essential purpose. 506 A reading of the Permit as a whole suggests, in fact, that at 507 the core of the agreement was the parties’ preoccupation with the 508 “safety and continuity of railroad traffic,” rather than the safety 509 of O&G’s personnel. The emphatic references to O&G’s undertaking to 510 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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511 operations and its “complete responsibility for the adequacy and 512 safety of” its activities suggest that the Permit was drafted with a 513 principal focus on Amtrak’s interests. Even Amtrak’s promise to 514 furnish protection was aimed at ensuring the safety and continuity 515 of railroad traffic and would come into play only if, in the opinion 516 of Amtrak’s officers, “conditions warrant” it, and under the 517 condition that O&G would bear all the costs. It is a fair inference 518 that the essential purpose of the Permit was not to guarantee the 519 safety of O&G’s employees, but rather to authorize O&G’s temporary 520 access to Amtrak’s property while reassuring Amtrak that O&G’s 521 presence on its property would neither disrupt train operations nor 522 damage Amtrak’s trains and facilities. Amtrak’s negligent failure to 523 provide adequate protection to O&G’s workers did not vitiate this 524 purpose. 525 O&G does not claim that every negligent act by Amtrak would 526 constitute a material breach of the Permit. According to O&G, there 527 could be situations involving negligent acts by Amtrak 528 representatives that, nevertheless, would be covered by the 529 indemnity provision without necessarily amounting to a breach of a 530 fundamental contractual term. For example, O&G claims, “an Amtrak 531 employee could accidentally strike someone with a tool or a piece of 532 equipment, or could dig a hole into which an individual might fall.” 533 See Br. of Appellant at 36.

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

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

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

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

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

653 District of Columbia public policy), vacated on other grounds, 892

10

See supra note 3.

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

674 675 D. Attorneys' Fees

676 In granting Amtrak's Rule 50(b) motion for judgment as a 677 matter of law, the district judge held that, under the indemnity

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

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702 final.” Krumme v. WestPoint Stevens Inc., 143 F.3d 71, 87 (2d Cir. 703 1998) (citing Cooper v. Salomon Bros., 1 F.3d 82, 85 (2d Cir. 704 1993)). We therefore dismiss for lack of appellate jurisdiction the 705 portion of O&G’s appeal challenging the district court’s grant of 706 attorneys’ fees and costs incurred in Phase I of the trial. 707 This defect does not impair the finality of the district 708 court’s ruling on Amtrak’s motion for judgment as a matter of law, 709 nor does it divest us of jurisdiction to review the merits of the 710 other issues on appeal. In reaching this conclusion, we apply the 711 “bright-line rule” enunciated by the Supreme Court in Budinich v. 712 Becton Dickinson & Co., 486 U.S. 196 (1988), “that a decision on the 713 merits is a ‘final decision’ for purposes of [28 U.S.C.] § 1291 714 whether or not there remains for adjudication a request for 715 attorney's fees.” Id. at 202-03. 11 716 717 III. CONCLUSION

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