the Kansas City Southern Railway Company v. Missouri Pacific Railroad, Individually and D/B/A Union Pacific Railroad Company, Union Pacific Railroad Company and Union Pacific System

• Court: Court of Appeals of Texas
• Decided: July 17, 2008
• Docket: 09-06-00255-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-06-255 CV

THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant

V.

MISSOURI PACIFIC RAILROAD, INDIVIDUALLY AND

d/b/a UNION PACIFIC RAILROAD COMPANY, UNION PACIFIC

RAILROAD COMPANY, AND UNION PACIFIC SYSTEM, Appellees

On Appeal from the 163rd District Court

Orange County, Texas

Trial Cause No. 980133-AC

MEMORANDUM OPINION

Background

Kansas City Southern Railway Company ("KCS") appeals from a take nothing judgment entered by the trial court after a bench trial on its claims against Missouri Pacific Railroad, Individually and d/b/a Union Pacific Railroad Company, Union Pacific Railroad Company, and Union Pacific System (collectively "Union Pacific"). A bench trial followed after we reversed and remanded a summary judgment that had denied KCS any relief on its indemnity claims. Kansas City S. Ry. Co. v. Mo. Pac. R.R., No. 09-04-172 CV, 2004 WL 3021177 (Tex. App.-Beaumont Dec. 30, 2004, no pet.) (mem. op.). In KCS's prior appeal, we held that its summary judgment evidence raised fact issues about Union Pacific's actual knowledge of the terms of the indemnity provision in the parties' contract. Id. at *2. Because we remanded the case for trial, our prior holding implicitly established that the indemnity agreement at issue did not meet the express negligence doctrine. See id.; see also Ethyl Corp. v. Daniel Const. Co., 725 S.W.2d 705, 708 (Tex. 1987).

After conducting a bench trial, the trial court entered fourteen specific findings of fact and one conclusion of law. Among its findings, the trial court found the parties had entered into the Joint Track Agreement on January 1, 1937, that expired by January 1, 1952. The trial court further found that on October 10, 1991, the parties entered into the Supplemental Agreement that retroactively reinstated the Joint Track Agreement. Significantly, however, the trial court also found that KCS "presented no evidence of actual knowledge which would cause Union Pacific to be obligated to indemnify KCS pursuant to the Joint Track Agreement or the supplemental agreement." Based in part on these findings, the trial court reached the conclusion that "Union Pacific does not have a contractual duty to indemnify KCS."

Issues on Appeal

KCS raises seven issues in its appeal from the trial court's take nothing judgment. In issue one, KCS argues that the trial court's application of the fair-notice test to certain provisions of the contract constituted "an impermissible extension of the applicability of the test, and it released the Union Pacific from responsibility for its own negligence." Issue two and issues four through six challenge the legal and factual sufficiency of the evidence supporting various trial court findings. Issue three and issue seven challenge the legal conclusion reached by the trial court.

Standards of Review

A trial court's findings of fact are subject to appellate review under the same legal and factual sufficiency standards that are applied in reviewing sufficiency of the evidence challenges to determine whether evidence supports a jury's answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). On issues upon which the party has the burden of proof, the proper challenge is "either a great weight and preponderance point or a matter of law point." Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275-76 (Tex. App.-Amarillo 1988, writ denied); see also Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (explaining that the "matter of law" legal-sufficiency standard applies when adverse findings are challenged by a party who, for the finding in issue, had the burden of proof).

KCS, as the party asserting a breach of contract claim, bore the burden of proof on its claims. See Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 283 (Tex. 1998). KCS, as the party seeking to enforce an indemnity obligation in a contract that did not meet the express negligence doctrine, also bore the burden of proving that Union Pacific possessed actual knowledge of the indemnity agreement's terms. See Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 194 (Tex. 2004) (holding that indemnitee had the burden of showing indemnitor's actual knowledge of the terms of an employee benefits plan); Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 n.2 (Tex. 1993) ("The fair notice requirements are not applicable when the indemnitee establishes that the indemnitor possessed actual notice or knowledge of the indemnity agreement.").

Thus, as the party bearing the burden of proof on the factual issues it now challenges on appeal, KCS must show that Union Pacific possessed prior knowledge of the contract's indemnity terms as a matter of law; or, show that the trial court's finding regarding Union Pacific's lack of knowledge of the indemnity provisions in their written agreement was against the greater weight and preponderance of the evidence. Francis, 46 S.W.3d at 242. Evidence is legally sufficient to support a factfinder's determination if it enables "reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

In evaluating the evidence's legal sufficiency, "we credit evidence that supports the verdict if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." Kroger Tex. Ltd. P'ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006) (citing City of Keller, 168 S.W.3d at 827); see Am. Interstate Ins. Co. v. Hinson, 172 S.W.3d 108, 114 (Tex. App.-Beaumont 2005, pet. denied). As the factfinder, the trial court determines the credibility of the witnesses and the weight to be given their testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); see also City of Keller, 168 S.W.3d at 819. With respect to reviewing a trial court's legal conclusions, we apply a de novo standard. See Reliance Nat'l Indem. Co. v. Advance'd Temporaries, Inc., 227 S.W.3d 46, 50 (Tex. 2007). In reviewing factual sufficiency challenges on issues upon which KCS had the burden of proof, we "set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

Comparative Contribution and Sole Fault Issues

The dispute between KCS and Union Pacific arises out of a March 31, 1996, collision between Union Pacific's train and a motorist, John Keen. While traveling on tracks owned by KCS, Union Pacific's train collided with Keen's van, resulting in Keen's death. His beneficiaries sued Union Pacific and KCS. On June 27, 2002, the Keen claimants signed separate releases, one for Union Pacific and another for KCS. In return for consideration paid by Union Pacific, the Keen claimants released their claims against Union Pacific. In return for consideration paid by KCS, the Keen claimants released their claims against KCS.

We consider issues one through four together because KCS joins these issues together for argument in its brief. In issue one, KCS asserts that its claim encompassed "indemnity to the KCS for Union Pacific's negligence, not just for the KCS's own negligence." Issue two challenges the factual sufficiency of the trial court's finding concerning Union Pacific's knowledge of the indemnity provisions in the Joint Track Agreement. Issue three contends that the trial court erred in concluding that Union Pacific had no contractual duty to indemnify KCS. In issue four, KCS asserts a legal and factual sufficiency challenge to the trial court's judgment denying its indemnity claim.

In general, KCS's argument under these four issues concerns its claim for comparative indemnity. For example, KCS argues that only one of the Joint Track Agreement's provisions allowed KCS to be indemnified for its own negligence and concludes that "KCS's claims against Union Pacific primarily concern or trigger indemnity based upon Union Pacific's own negligence, not that of the KCS." KCS points to the language of section twenty-one, subsections (c) through (e), in the Joint Track Agreement as provisions that the trial court should have applied in a case involving the joint fault of both railroads. KCS complains that "the trial court disregarded the fact that all but one of the KCS's indemnification claims concerned Union Pacific's own negligence." KCS concludes that the trial court erred "when it applied the fair-notice test to invalidate all of the indemnification provisions at issue."

Union Pacific contends that KCS failed to perfect for appeal any complaints concerning the trial court's failure to grant KCS relief on its claims for comparative contractual indemnity. Union Pacific points to the fact that KCS failed to file a post-judgment request for findings of fact and conclusions of law. Because Union Pacific's error preservation argument would resolve the factual sufficiency challenges presented in these issues, we first address whether KCS's factual sufficiency issues have been waived.

The Joint Track Agreement between KCS and Union Pacific contained terms that contemplated a division of damages between them in the event that both were at fault. On appeal, KCS acknowledges that only one of the provisions in the Joint Track Agreement, section 21(f), ⁽¹⁾ "provides terms allowing the KCS to be indemnified for its own negligence." KCS argues that the trial court should have, but did not, consider whether sections 21(c), ⁽²⁾ 21(d), ⁽³⁾ and 21(e) ⁽⁴⁾ of the Joint Track Agreement required the trial court to divide jointly caused damages. KCS also contends that under section 21(b) ⁽⁵⁾ of the Joint Track Agreement, it should be reimbursed for all damages attributable solely to Union Pacific.

The contractual provisions of section twenty-one, subsections (c), (d), and (e) of the Joint Track Agreement are triggered by findings of joint fault and generally establish the terms under which the respective railroads would contribute to pay for various types of casualties, depending upon the circumstances that had caused the particular loss. For example, under subsection twenty-one (c) of the contract, losses under certain circumstances were to be divided equally between the parties. Subsections twenty-one (d) and (e), on the other hand, contemplate that losses under other circumstances were to be divided between the railroads based upon a comparison of their respective track use during the month in which the casualty occurred. Each of these contractual comparative indemnity provisions required joint fault and a determination of the classification of the railroads' employees involved in causing the particular loss.

In contrast, section 21(b) is triggered upon a finding of Union Pacific's sole fault. To the extent that KCS contends this subsection was breached, KCS bore the burden of securing a fact finding that established its claim under the terms of this provision of the contract.

Upon receipt of the trial court's findings of fact, KCS bore the burden of requesting any additional factual findings necessary to the resolution of its comparative contractual indemnity claim or its sole fault claim in order to establish which of the subsections of the Joint Track Agreement applied. Tex. R. Civ. P. 298; Pinnacle Homes, Inc. v. R.C.L. Offshore Eng'g Co., 640 S.W.2d 629, 630 (Tex. App.-Houston [14th Dist.] 1982, writ ref'd n.r.e.). After the trial court entered its findings on May 17, 2006, KCS made no request for additional findings of fact regarding the elements of its contractual comparative indemnity claim. None of the trial court's findings speak to the classifications of the respective railroad's employees that might have been involved in causing the casualty nor to whether either of the railroads' employees were at fault in causing the Keen collision. Resolving whether the contractual comparative indemnity provisions in the contract were applicable depended upon resolving these disputed fact issues. KCS also made no additional request for findings of fact regarding Union Pacific's sole fault, a finding necessary to resolve whether Union Pacific breached section 21(b) of the Joint Track Agreement.

To avoid waiving its contractual comparative indemnity claims and sole fault claim, absent evidence establishing the disputed facts as a matter of law, KCS was required to notify the trial court after receipt of the trial court's initial findings through a request of its need for additional findings to address these claims. Pinnacle Homes, 640 S.W.2d at 630; see also Tex. R. Civ. P. 299. KCS did not do so. We conclude that KCS did not preserve its factual sufficiency complaints concerning its contractual contribution indemnity issues or its sole fault issue for appellate review. Having reviewed the evidence, we further conclude that the evidence does not establish as a matter of law that Union Pacific's fault proximately caused the underlying collision with Keen's van. As a result, we overrule issues one through four.

Union Pacific's Knowledge of Indemnity's Terms

In issues five and six, KCS challenges the legal and factual sufficiency of the evidence supporting the trial court's finding that Union Pacific was not shown to have had actual knowledge of the indemnity's terms. KCS contends that Union Pacific ratified the contract by "performing under the contract or by otherwise affirmatively acknowledging it." KCS argues that it presented "irrefutable evidence that Union Pacific had notice and knowledge of the indemnity provisions at issue and had ratified the indemnity agreement as a result of similar past crossing accidents on the very joint tracks at issue."

In support of its argument, KCS points to evidence it presented during the trial concerning four prior lawsuits on its tracks that had arisen from crossing accidents. The prior crossing accidents occurred on (1) November 27, 1979; (2) February 20, 1980; (3) October 11, 1983; and (4) July 17, 1985. KCS asserts that evidence about how the railroads handled these four prior crossing cases established Union Pacific's actual knowledge of the terms of the indemnity obligations in the Joint Track Agreement. ⁽⁶⁾

The evidence presented at trial regarding the four prior crossing cases is not extensive. Only one of the prior cases, the February 20, 1980 case, appears to have been tried to verdict. The November 27, 1979, and October 11, 1983 crossing accidents were concluded by settlements, but the release documents were not offered or admitted, and no one testified about the terms of these two settlements. The record does not reflect how the July 17, 1985 crossing accident case was resolved.

Two Union Pacific witnesses related their limited knowledge about these four cases. "Rick" Walton, who became Union Pacific's general solicitor for the Southern Region in 1989, testified that he saw nothing in the documents pertinent to these four crossing cases to indicate that Union Pacific provided KCS indemnity in connection with them. He further testified that nothing in the documents reflected that the defenses in these four cases were provided to KCS by Union Pacific based upon the terms of the Joint Track Agreement. Walton indicated that occasionally, Union Pacific "would agree to defend a case, for example, and sort it out later as to who really owed the case, depending on what was adjudicated in the case at trial." With respect to whether Union Pacific indemnified KCS in the four prior collision cases, Walton testified: "There's nothing that I've seen that says anything about indemnity."

Norma Davenport, an attorney for Missouri Pacific beginning in 1986, became a general solicitor for Union Pacific's Southern Region in 1993. Davenport distinguished between a railroad providing another railroad a defense and a railroad providing another railroad indemnity; she testified, "I could defend you, but if I lose, you're the one that's going to pay. I'm just the lawyer." Finally, Davenport testified that generally, Union Pacific's decisions to provide a defense to another railroad were based on:

the facts of the case, which played a big part, if the allegation was that the other railroad did something either overtly or by omission that was a cause of the accident, then we did - did not indemnify them or defend them. If it - if it was - if they had done what they were supposed to be doing and somebody was suing both and we were on their track, we would defend them.

Neither Walton nor Davenport discussed the settlement terms of any of these four prior crossing cases.

With respect to the collision cases that resulted in settlements, we agree with the trial court's finding that the information about these cases is insufficient to establish that they placed Union Pacific on notice of the specific terms of the contract provisions in issue. With respect to the February 20, 1980 crossing case, which was tried to a verdict, the final judgment recited: "That none of the negligence causing the occurrence in question was attributable to the Kansas City Southern Railway Company." As a result, we fail to see how the February 20 crossing case evidences Union Pacific's knowledge of the indemnity terms in the Joint Track Agreement. Finally, with respect to the July 17, 1985 crossing accident case, nothing in the record shows an indemnity payment by Union Pacific in connection with it.

With respect to defense costs, the trial court was entitled to believe that the defenses in these cases were extended under Union Pacific's policy to extend defenses in some cases, rather than under the provisions of the Joint Track Agreement, which during the time period involved, had expired by its own terms. In our opinion, evidence that Union Pacific provided a defense on prior occasions under circumstances that are not the same as those presented in this record does not compel the conclusion that Union Pacific possessed prior knowledge of the terms of the Joint Track Agreement's indemnity provisions. Further, the fact that the Joint Track Agreement was no longer in force at the time relevant to these four prior crossing cases is another factor supporting the trial court's conclusion that these four cases did not establish Union Pacific's actual knowledge of the Joint Track Agreement's indemnity terms. In this trial, the trial court heard evidence that defenses could be and were extended by Union Pacific to other railroads as a matter of trial strategy. The trial court's finding of no actual knowledge of the terms of the provisions in issue, on this record, is not so against the great weight and preponderance of the evidence as to be manifestly unjust. We conclude that it was within the trial court's discretion to find that: "The Kansas City Southern Railway Company presented no evidence of actual knowledge which would cause Union Pacific to be obligated to indemnify KCS pursuant to the Joint Track Agreement or the supplemental agreement." We overrule issue five.

In issue six, KCS argues that the public policies embodied by the fair-notice test do not apply where a party, through its conduct, ratified the terms of an indemnity obligation. As authority to support its argument, KCS relies principally on Missouri Pacific Railroad Company d/b/a Union Pacific Railroad Company and William R. Slone, III v. Lely Development Corporation, 86 S.W.3d 787 (Tex. App.-Austin 2002, pet. dism'd). In Lely, the Austin Court of Appeals held that Union Pacific, the indemnitee under the circumstances of that case, was entitled to recover indemnity from its indemnitor, Lely Development, because Union Pacific's summary judgment evidence proved that Lely Development had actual knowledge of the contract's indemnity obligation. Id. at 793. Significantly, the Austin Court noted that the following facts were uncontroverted:

(1) Lely accepted contractual benefits by using the railroad crossing since 1974; (2) Lely signed the 1982 addendum requiring higher insurance coverage to cover the covenant to indemnify; (3) Lely met Union Pacific's demand for indemnity in the 1994 lawsuit; and (4) Lely did not attack the indemnity clause during the 1994 lawsuit or thereafter, waiting until this second lawsuit and demand for indemnification to attack the clause as unenforceable.

Id.

In the case before us, however, Union Pacific disputed that it met the indemnity demands previously made by KCS in connection with the four prior crossing accident cases discussed above. While Union Pacific acknowledged defending those cases, it disputed that it indemnified KCS for KCS's fault in any of those cases and asserted that Union Pacific had not defended KCS based on the terms contained in the Joint Track Agreement. In this case, KCS did not offer evidence regarding indemnity payments in any of the four prior crossing cases or prove that Union Pacific paid an increased insurance obligation to insure against its contractual indemnity obligations. The circumstances surrounding the defenses of the four prior crossing cases are also distinguishable because Union Pacific's agreements to defend these four prior cases were undertaken at a time when the Joint Track Agreement had expressly expired, and there was also evidence that allowed the trial court to infer that the defenses were not undertaken under the Joint Track Agreement's terms.

We conclude that Lely is factually distinguishable from the case before us. The Austin Court of Appeals resolved Lely on uncontested facts; the facts before the trial court in this case were contested. Because Lely is distinguishable, the trial court did not fail, as argued by KCS, "to follow and apply the only Texas authority before it on this issue[.]"

In summary, KCS, as the party seeking indemnification under the Joint Track Agreement had the burden of establishing actual notice or knowledge of the terms of the indemnity provision. See Reyes, 134 S.W.3d at 194. ⁽⁷⁾ In reviewing KCS's factual sufficiency challenge, we should "set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain, 709 S.W.2d at 176. In this trial, whether Union Pacific indemnified or defended KCS on prior occasions because it recognized a contractual obligation under the terms of the Joint Track Agreement was a disputed fact issue. The trial court, acting as the factfinder, determined the credibility of the witnesses and the weight to be given their testimony. McGalliard, 722 S.W.2d at 697; see also City of Keller, 168 S.W.3d at 819. We conclude that the evidence before the trial court enabled it to reach the findings under review. City of Keller, 168 S.W.3d at 827. We overrule issue six.

Conclusion of Law Challenge

In issue seven, KCS challenges the trial court's legal conclusion that "Union Pacific does not have a contractual duty to indemnify KCS." Based upon the terms of the parties' contract and in light of the trial court's factual findings, the trial court reached the proper legal conclusion.

Under Ethyl, the Texas Supreme Court held that the express negligence doctrine, a rule that applies to indemnity agreements, requires that "the intent of the parties must be specifically stated within the four corners of the contract." 725 S.W.2d at 708; see also Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex. 1994). The purpose of the express negligence rule "is to require scriveners to make it clear when the intent of the parties is to exculpate an indemnitee for the indemnitee's own negligence." Atl. Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 (Tex. 1989). "Either the indemnity agreement is clear and enforceable or it is not." Fisk, 888 S.W.2d at 815. With respect to the indemnity provisions of the Joint Track Agreement, the trial court concluded that the indemnity provisions of KCS's contract failed to comply with the express negligence test. We agree with the trial court that the Joint Track Agreement does not comply with the express negligence doctrine established in Ethyl. Ethyl, 725 S.W.2d at 708.

Because the indemnity provisions do not meet the express negligence test, KCS had the burden to prove that Union Pacific possessed actual knowledge that the terms of the Joint Track Agreement were intended to shift to Union Pacific an obligation to pay for KCS's own negligence in order to avoid the application of the fair-notice test. Dresser, 853 S.W.2d at 508 n.2. With respect to KCS's proof showing that Union Pacific was aware of other provisions in the Joint Track Agreement, under the "fair notice test," KCS bore the burden of proving that Union Pacific possessed an actual awareness of the terms KCS asserted that Union Pacific had breached. See Cate v. Dover Corp., 790 S.W.2d 559, 562 (Tex. 1990). Whether Union Pacific possessed actual knowledge of the terms allegedly breached was a fact issue resolved against KCS by the trial court.

Because KCS failed to prove Union Pacific's actual knowledge of the terms at issue, these provisions of the contract were unenforceable. Dresser, 853 S.W.2d at 511. Based on its factual findings, we conclude the trial court reached the proper legal conclusion that Union Pacific had no contractual duty to indemnify KCS under the Joint Track Agreement. Ethyl, 725 S.W.2d at 707-09 (holding indemnity agreement that fails to meet express negligence test was unenforceable). We overrule issue seven.

Having resolved the issues raised by KCS against it, the judgment of the trial court is affirmed.

AFFIRMED.

___________________________

HOLLIS HORTON

Justice

Submitted on May 8, 2008

Opinion Delivered July 17, 2008

Before McKeithen, C.J., Kreger and Horton, JJ.

1.

Section 21(f) provides: "Damage Due to Defects in Joint Line: [KCS] shall not be liable for damages as to trains of the Trustee or of the property carried on the trains of the Trustee, or of property damaged by the Trustee on or adjacent to the Joint Line, or as to employe[e]s or passengers of the Trustee, or any other persons on the trains or cars of the Trustee, or persons on or adjacent to the Joint Line injured by the Trustee: - caused by or on account of any alleged or real defect in the Joint Line, whether such defect be patent or latent, and whether or not due to fault in maintaining the Joint Line."

2.

Section 21(c) of the Joint Track Agreement provides: Fault of Sole Employe[e]s of Each Party: Damages caused solely by the fault of one or more exclusive employ[e]s of one party hereto, concurring with the fault of one or more exclusive employe[e]s of the other party hereto (with or without the concurring negligence of a joint employe[e]), shall be divided as follows: Each party shall assume and bear the damages as to its own trains and persons and property thereon. All other damages shall be divided equally between the parties hereto."

3.

Section 21(d) provides: "Fault of Joint Employe[e]s Solely: If damages be caused solely by the fault of one or more joint employe[e]s, each party hereto shall bear the damages as to its own trains and to persons and property thereon, and all other damages so arising shall be divided between the parties on the car-mileage basis of the month and year in which the casualty occurs."

4.

Section 21(e) provides: "Fault of Joint Employe[e] Concurring With Fault of Sole Employe[e] of One Party: If damages be caused by the fault of a joint employe[e] concurring with the fault of a sole employe[e] of one party, all damages as to trains and persons and property thereon of the party at fault shall be borne by said party, and all other damages shall be divided between the parties on the car-mileage basis of the month and year in which the casualty occurs."

5.

Section 21(b) of the Joint Track Agreement provides: "Fault of One or More Exclusive Employe[e]s of One Party: Damages caused solely by the fault of one or more exclusive employe[e]s of one party hereto shall be borne solely by such party."

6. Union Pacific argues that the Joint Track Agreement had expired by its terms during the time periods related to these four crossing cases and notes that the Supplemental Agreement that retroactively reinstated the terms of the Joint Track Agreement was signed in 1991. As a result, Union Pacific contends that its actions during this time period is not evidence of its recognition of the indemnity provisions in the expired agreement.

7.

The actual knowledge requirement also extends to the terms of any contractual comparative indemnity provisions. Ethyl Corp. v. Daniel Const. Co., 725 S.W.2d 705, 708-09 (Tex. 1987) ("Parties may contract for comparative indemnity so long as they comply with the express negligence doctrine set out herein.").