§ 49-16-01.1 — Indemnity terms void and unenforceable

North Dakota § 49-16-01.1

• Jurisdiction: North Dakota
• Title 49: Public Utilities
• Ch. 49-16: Liability of Railroads for Negligence

Text

1. Except as provided in this section, any provision of a lease, license, or other
agreement for the use or occupancy of railroad right of way, or other adjoining
property, between a railroad or its representative and a state or federal licensed public
grain warehouse or potato warehouse is void to the extent it does any of the following:
a. Purports to indemnify or require the defense of the railroad, or its employees,
agents, or independent contractors against any loss, liability, or other damage to
the extent caused by the sole or concurrent fault of the railroad or its employees,
agents, or independent contractors arising out of any claims or actions for bodily
injury, death, property damage, or environmental damage or liability.
b. Requires the state or federal licensed public grain warehouse or potato
warehouse to purchase insurance providing coverage for the railroad or its
employees, agents, or independent contractors against any loss, liability, or other
damage to the extent caused by the sole or concurrent fault of the railroad or its
employees, agents, or independent contractors.
c. Purports to exempt, or otherwise excuse, the railroad from any fault or other
responsibility for bodily injury, death, property damage other than property
damage subject to Public Law No. 104-88 [109 Stat. 847; 49 U.S.C. 11706], or
environmental damage or liability to the extent caused by sole or concurrent acts
of the railroad or its employees, agents, or independent contractors, or for any
environmental damage or condition which exists at the time the lease, license, or
other agreement is entered.
2. As used in this section, "fault" is defined under section 32-03.2-01.
3. Notwithstanding any other provision of law, a railroad may require that a state or
federal licensed public grain warehouse or potato warehouse contracting for the use or
occupancy of railroad right of way, or other adjoining property, provide the following:
a. Commercial general liability insurance of not more than two million dollars per
occurrence and not more than four million dollars for multiple occurrences
coverage for bodily injury, death, and property damage arising out of the use or
occupancy of the property by the contracting party, including damage caused by
the sole or concurrent fault of the railroad, its employees, agents, and
contractors, and an endorsement naming the railroad as an additional insured.
b. Indemnification and defense of the railroad, its employees and agents for all
bodily injury, death, environmental damage, and property damage claims and
liability up to two million dollars per occurrence arising out of the use or
occupancy of the property, including claims and liability caused by the sole or
concurrent fault of the railroad, its employees, agents, and contractors.
c. Indemnification and defense of the railroad, its employees and agents for all
bodily injury, death, property damage, and environmental damage suffered by the
lessee, licensee, or other contracting party, its employees, agents, and invitees,
arising from the use or occupancy of the property, including claims and liability
caused by the sole or concurrent fault of the railroad, its employees, agents, and
contractors unless caused solely by the acts or omission of the railroad that are
willful, wanton, or grossly negligent.
d. Pollution legal liability insurance up to one million dollars, unless the lessee
agrees to a greater amount, to cover liabilities arising from hazardous substances
or bulk storage of petroleum products brought on the property, or released on or
near the property, or violations of environmental laws, by the lessee, licensee, or
other contracting party, its employees, agents, and invitees.

4. Each party to the agreement is responsible for all liability resulting from the
environmental condition of the property to the extent caused, aggravated, or
contributed to by that party, its employees, agents, and invitees.