* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgment; nevertheless, an order and

judgment may be cited under the terms and conditions of the 10th Cir. R. 36.3. 

F I L E D

United States Court of Appeals

Tenth Circuit

FEB 9 2005

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOE N. STEWART; OZZIE REE

STEWART,

Plaintiffs,

v.

EARLE M. JORGENSEN

CORPORATION; LARRY R.

PITTMAN,

 

Defendants-Cross-Claimants - 

Appellees,

v.

THE KANSAS CITY SOUTHERN

RAILWAY COMPANY,

Defendant Cross-Defendant - 

Appellant.

No. 03-7133

(E.D. Oklahoma)

(D.C. No. CIV-00-448-P)

ORDER AND JUDGMENT*
** The Honorable Ted Stewart, District Judge, District of Utah, sitting

by designation.

- 2 -

Before EBEL, O’BRIEN, Circuit Judges, and STEWART, District Judge.**

SUMMARY

The Kansas City Southern Railway Company (“the Railroad”) appeals a

ruling from the Eastern District of Oklahoma. One of the Railroad’s trains

collided with a tractor-trailer rig driven by Larry P. Pittman (“Pittman”) and

owned by the Earle M. Jorgenson Corporation (“EMJ”) (collectively “the EMJ

Parties”). Jon Stewart (“Stewart”) was a conductor on the train and was injured

in the collision. He brought claims against the EMJ Parties and against the

Railroad, his employer. He settled his claims first with the Railroad and then

with the EMJ Parties. After settling with Stewart, the Railroad amended its

complaint and sought reimbursement of the funds it expended in settlement from

the EMJ Parties under the theory of indemnity or, in the alternative, contribution.

The district court granted declaratory judgment in favor of the EMJ Parties

pursuant to Title 28 U.S.C. § 2201(a). Applying Arkansas law, the district court

found that the Railroad and the EMJ Parties were joint tortfeasors. On this basis,

the district court found that indemnity did not apply. Because the Railroad had
1 The EMJ Parties argue that the Railroad’s appeal to this court was

not timely because the clock for the appeal began to run once the district court

made its declaratory judgment. However, it was not until the district court

disposed of the remaining cross-claims that its judgment became final and the

appeal period began to run. Albright v. UNUM Life Ins. Co. of Am., 59 F.3d

1089, 1092 (10th Cir. 1995). Therefore, the appeal was timely. 

Additionally, while the EMJ Parties ask us to affirm the district

court’s decision based on Arkansas law, they make an argument in the alternative,

that California indemnity law should apply rather than that of Arkansas. 

However, because we find that the EMJ Parties have no obligation to indemnify

the Railroad under Arkansas law, we do not reach this issue.

- 3 -

settled with Stewart prior to the EMJ Parties doing the same, the district court

also found that Arkansas law barred the Railroad’s claim for contribution. 

On appeal, the Railroad brings two challenges to the decisions of the

district court. The Railroad avers that the district court abused its discretion

when it considered the EMJ Parties’ motion for declaratory judgment. It also

argues that the court erred in its determination that the Railroad and the EMJ

Parties were joint tortfeasors, thus barring its claims for contribution and

indemnity.1

 

We AFFIRM.

BACKGROUND

On December 5, 1997, a tractor-trailer rig, owned by EMJ and driven by

Pittman, collided with one of the Railroad’s trains at a railroad crossing in Mena,

Arkansas. The train was en route to Oklahoma from Louisiana. Pittman had

driven through a railroad crossing and into the path of the train. Stewart, the
2 The parties use the terms “contribution” and “subrogation”

interchangeably. However, these doctrines are distinct. Under Arkansas law, the

law that governs this case, “subrogation is an equitable remedy that rests upon

principles of unjust enrichment and attempts to accomplish complete and perfect

justice among the parties.” St. Paul Fire & Marine Ins. Co. v. Murray Guard,

Inc., 37 S.W.3d 180, 183 (Ark. 2001) (citations omitted). 

[T]he elements of subrogation are as follows: 1) a party pays in full a

debt or an obligation of another or removes an encumbrance of

another, 2) for which the other is primarily liable, 3) although the

party is not technically bound to do so, 4) in order to protect his own

secondary rights, to fulfill a contractual obligation, or to comply with

the request of the original debtor, 5) without acting as a volunteer or

an intermeddler. 

Id. (citations omitted). Based on undisputed facts, the Railroad cannot meet the

fourth and fifth prongs of this test: the Railroad entered into settlement as a

volunteer and not to protect its secondary rights, to fulfill a contract, or to comply

(continued...)

- 4 -

train’s conductor, was injured in the collision. Stewart sued the Railroad under

the Federal Employer Liability Act (“FELA”), 45 U.S.C. § 51 et seq. He based

his FELA claim on the allegation that the Railroad was negligent in failing to

maintain a safe working environment. Stewart also sued the EMJ Parties for

negligence under Arkansas state law. The Railroad and EMJ Parties denied

liability and, additionally, brought cross claims against each other for their

respective property damage resulting from the collision. 

The Railroad settled with Stewart. The Railroad then amended its crosscomplaint to demand that the EMJ Parties compensate it for the expenditures it

made in settling with Stewart based on theories of indemnity or, in the alternative,

contribution.2

 
2

(...continued)

the EMJ Parties’ request. Subrogation is inapplicable to this case. In formulating

our decision, we rely on the doctrine of contribution, as did the district court.

- 5 -

Subsequently, the EMJ Parties also settled with Stewart. The EMJ Parties’

insurance policy, held by Reliance National Indemnity Company (“Reliance”),

covered a portion of their settlement with Stewart. The EMJ Parties paid Stewart

the uncovered share of the settlement. Apparently, however, Reliance became

insolvent before paying Stewart. The California Insurance Guaranty Association

(“CIGA”), an entity created by the State of California to pay the claims against

insolvent insurers, paid Reliance’s portion of the settlement to Stewart. After

making this payment, the CIGA had $325,000 of coverage that the EMJ Parties

had not used; however, the CIGA apparently refused to cover the Railroad’s

indemnity and contribution claims. 

The EMJ Parties later sought declaratory relief under the Declaratory

Judgment Act, 28 U.S.C. § 2201(a). The EMJ Parties argued that the district

court should resolve that the Railroad could not seek indemnity from them. The

EMJ Parties’ rationale was that since the EMJ Parties paid the amount it owed

under the Reliance insurance contract, that the Railroad must then look to CIGA,

the entity standing in place of the now defunct Reliance, to pay any indemnity

claim. The EMJ Parties noted that California law prohibited CIGA from paying

any indemnity claim against Reliance. The EMJ Parties reasoned that this
- 6 -

prohibition, therefore, shielded the EMJ Parties from the Railroad’s indemnity

claim.

The Railroad contended that declaratory judgment was improper and that

Arkansas law of indemnity allowed the Railroad to pursue its claims against the

EMJ Parties. The Railroad argued that despite the CIGA’s coverage of a portion

of the EMJ Parties’ settlement, the California law relied upon by the EMJ Parties

was inapplicable to its claims for indemnification in the present action. 

On October 23, 2002, the district court entered a declaratory judgment in

favor of the EMJ Parties. It did so, however, on grounds other than those the

EMJ Parties requested. The court determined that because the accident arose in

Arkansas and because the parties agreed that Arkansas law controlled other issues

in the case, Arkansas law controlled the issue of indemnity as well. It found that

the Railroad and the EMJ Parties were joint tortfeasors, as defined by the

Arkansas Uniform Contribution Among Tortfeasors Act, currently codified at

Ark. Code Ann. § 16-61-201 et seq. Because the parties were joint tortfeasors,

the district court determined that the law of indemnity was inapplicable. 

Additionally, it found that Arkansas law prohibited one joint tortfeasor from

recovering contribution from another joint tortfeasor if a settlement terminated

the former tortfeasor’s liability but not that of the latter, which is what it found

happened when the Railroad settled with Stewart prior to the EMJ Parties doing
- 7 -

the same. As a result, the court granted declaratory relief and found that the

Railroad was not entitled to recover on its indemnification or contribution claims. 

The parties continued to pursue their remaining cross-claims for property

damage. On November 14, 2002, however, the district court determined that it

did not have jurisdiction over the parties’ remaining property damage claims

because the damage asserted for the remaining claims fell below the amount

required for the court to invoke diversity jurisdiction. The court, therefore,

involuntarily dismissed the remaining claims, without prejudice.

The Railroad brings two challenges to the decisions of the district court. 

First, the Railroad avers that the district court abused its discretion when it

considered the EMJ Parties’ motion for declaratory judgment. Second, the

Railroad argues that the court erred in its determination that the Railroad and the

EMJ Parties acted as joint tortfeasors and, thus, that its contribution and

indemnity claims could not survive.

We AFFIRM the district court.

DISCUSSION

A. Discretion to Consider the EMJ Parties’ Motion for Declaratory Relief

The Railroad argues that the district court erred in considering the EMJ

Parties’ motion for declaratory relief. The Declaratory Judgment Act provides

federal courts the discretion to grant declaratory relief. Kunkel v. Continental
- 8 -

Cas. Co., 866 F.2d 1269, 1273 (10th Cir. 1989). Provided that the challenge to

declaratory relief is not on a jurisdictional basis, “[w]hether to entertain a

justiciable declaratory judgment action is a matter committed to the sound

discretion of the trial court.” Id. citing Alabama State Fed’n of Labor v.

McAdory, 325 U.S. 450, 462 (1945).

In previous cases, this circuit has provided specific guidance regarding how

district courts should use the discretion provided by the Declaratory Judgment

Act. In considering whether to enter a declaratory judgment, a district court

should weigh the following factors: 

(1) whether a declaratory action would settle the controversy; (2)

whether it would serve a useful purpose in clarifying the legal

relations at issue; (3) whether the declaratory remedy is being used

merely for the purpose of “procedural fencing” or “to provide an

arena for a race to res judicata”; (4) whether use of a declaratory

action would increase friction between our federal and state courts

and improperly encroach upon state jurisdiction; and (5) whether

there is an alternative remedy which is better or more effective. 

State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 983 (10th Cir. 1994) citing

Allstate Ins. Co. v. Green, 825 F.2d 1061, 1063 (6th Cir. 1987). While the district
- 9 -

court must consider these factors, we review the district court’s review of these

factors only for abuse of discretion. See id.

The district court considered these factors. In weighing them, it found that

the most important of these were whether declaratory relief would settle the

controversy and clarify the legal relations at issue. It found that declaratory

judgment would resolve and clarify important issues before the district court. On

this basis, it determined that it should use its discretion and consider the EMJ

Parties’ motion for declaratory relief.

However, it appears that the Railroad’s argument is not that the district

court failed to weigh these factors or somehow erred in doing so, but rather that it

based its declaratory judgment on what the Railroad alleges is a matter of

disputed fact. Despite the Railroad’s argument to the contrary, its objection is

based on the district court’s ruling rather than its mere consideration of the EMJ

Parties’ motion for declaratory relief. We find the district court properly

considered the relevant factors and did not err in deciding to consider the EMJ

Parties’ motion for declaratory relief.

B. Dispute Regarding Whether the Railroad Was a Joint Tortfeasor

When considering a motion seeking declaratory relief at the summary

judgment stage, which was the case here, a district court’s role is not to make
3 The district court was not explicit as to whether its judgment was

based on the facts alleged in the Railroad’s complaint or on undisputed facts. 

However, because it is clear that the district court relied on facts outside of the

Railroad’s amended complaint, the district court necessarily relied on undisputed

facts or, as the Railroad alleges, erred in relying on disputed allegations.

- 10 -

factual findings but to determine whether any material factual dispute exists.3

“We review the district court’s grant of summary judgment de novo, applying the

same legal standard used by the district court.” Simms v. Oklahoma ex rel. Dep’t

of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.

1999). We must determine whether in viewing the record in the light most

favorable to the non-moving party, there exists any genuine issue of material fact.

 Id.; Wolf v. Prudential Ins. Co. of America, 50 F.3d 793, 796 (10th Cir. 1995). 

The Railroad argues that it was inappropriate for the district court to rely

on the finding that the Railroad and the EMJ Parties were joint tortfeasors. The

Uniform Contribution Among Tortfeasors Act defines “joint tortfeasors” to mean

“two (2) or more persons jointly or severally liable in tort for the same injury to

person or property, whether or not judgment has been recovered against all or

some of them.” Ark. Stat. Ann. § 16-61-201. The nub of the Railroad’s argument

is that the district court’s factual finding that the Railroad was jointly negligent

with the EMJ Parties is disputed because the Railroad contends it was free of any

negligence. On this basis, it asserts that the resolution of this disputed claim

should have properly been reserved for a finder of fact.
- 11 -

In weighing the Railroad’s argument, we begin with the proposition that

only facts necessarily relied upon in making a judgment as a matter of law need to

be undisputed. Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). 

Therefore, we turn to the question of whether the finding that the Railroad was a

joint tortfeasor is material to the determination that the Railroad was barred from

seeking indemnity and contribution from the EMJ Parties. 

Under Arkansas law, indemnity and contribution are mutually exclusive

remedies. Contribution acts to equitably distribute the loss among joint

tortfeasors according to their relative degree of fault. Boatmen’s Nat. Bank of

Arkansas v. Cole, 947 S.W.2d 362, 366 (Ark. 1997). In the absence of

contractual provisions, indemnity is an equitable remedy that shifts the entire loss

from one party to a tortfeasor who should rightfully bear it in its entirety. Mosley

Machinery Co., Inc. v. Gray Supply Co., 833 S.W.2d 772, 775 (Ark. 1992).

1. Contribution

Under Arkansas law, contribution in tort is dependent on a finding that the

party seeking contribution and the party from which contribution is sought are

joint tortfeasors. Scalf v. Payne, 583 S.W.2d 51, 53 (Ark. 1979). If parties do

not have a potential liability as joint tortfeasors, no right of contribution exists. 

Id. Additionally, “[a] joint tortfeasor who enters into a settlement with [an]
- 12 -

injured person is not entitled to recover contribution from another joint tortfeasor

whose liability to the injured person is not extinguished by the settlement.” Ark.

Code Ann. § 16-61-202(3).

The district court found that the Railroad’s right to contribution was

extinguished because it settled with Stewart prior to Stewart settling with the EMJ

Parties. The Railroad does not dispute this. Nevertheless, it asserts that it was

not a joint tortfeasor. However, if the Railroad was not a joint tortfeasor, as it

contends, it would have no right to contribution under Arkansas law. The only

hope that the Railroad had to recover under a theory of contribution hinges on the

determination that it was a joint tortfeasor. Thus, the district court did not need

to rely on the determination that the Railroad was a joint tortfeasor in finding that

it had no right to contribution: if the Railroad was not a joint tortfeasor, it had no

right to seek contribution. Regardless of whether the Railroad was a joint

tortfeasor, judgment against the Railroad’s contribution claim was proper.

2. Indemnity

The Railroad argues that the district court erred in looking to contribution

law rather than to that of indemnity. The significance of the Railroad’s argument

is that unlike contribution law, under indemnity law, there is no procedural

requirement that would bar the Railroad from pursuing its claim simply because it

settled with Stewart prior to the EMJ Parties doing the same.
- 13 -

Under Arkansas law, “the right to indemnity, where one of the parties is not

liable to the injured party for a joint wrong, must be based upon a relationship

other than that of joint tortfeasors.” Larson Mach., Inc. v. Wallace, 600 S.W.2d

1, 13 (Ark. 1980); Welter v. Curry, 539 S.W.2d 264, 272 (Ark. 1976); Jack

Morgan Construction Co. v. Larkan, 496 S.W.2d 431 (Ark. 1973). However, only

a person who was compelled to pay another party due to a legal obligation is

eligible to seek indemnification. Jean-Pierre v. Plantation Homes of Crittenden

County, Inc., 89 S.W.3d 337, 341 (Ark. 2002). 

Assuming that the Railroad sought indemnification from the EMJ Parties

under the theory that the Railroad and the EMJ Parties were joint tortfeasors,

Arkansas law would not permit it. As discussed above, the relationship between

the Railroad and the EMJ Parties must be based on a relationship other than that

of joint tortfeasors to allow the Railroad to seek indemnification. Larson Mach.,

Inc., supra; Welter, supra; Jack Morgan Construction Co., supra.

The Railroad argues that it was not negligent and that the EMJ Parties are

the sole tortfeasors. This argues for the finding of an alternative relationship,

namely that of victim (i.e., the Railroad) and tortfeasors (i.e., the EMJ Parties). 

Even if this alternative relationship were assumed to be the case, the question

remains, however, whether its settlement with Stewart was compelled by a legal

obligation or whether the Railroad settled as a mere volunteer. Stewart’s claim
- 14 -

against the Railroad was that the Railroad violated FELA by negligently failing to

provide him a safe workplace. The Railroad could have legally resisted this

claim; it had no unescapable liability to pay Stewart’s FELA claim. The Railroad

did not pay Stewart as a result of a judgment or due any legal compulsion, but

rather it voluntarily entered into settlement. Whether or not the Railroad was a

joint tortfeasor, it was not eligible to seek indemnification because it voluntarily

settled rather than being compelled to pay Stewart due to a legal obligation. 

Jean-Pierre, supra. 

CONCLUSION

We AFFIRM the judgment of the district court granting declaratory relief 

to the EMJ Parties as to the Railroad’s contribution and indemnity claims. The

district court correctly applied Arkansas law and found that when the Railroad

voluntarily settled with Stewart prior to the EMJ Parties doing the same, the

Railroad extinguished any possibility it had to recover contribution or indemnity

from the EMJ Parties. The Railroad’s assertion that it was not a joint tortfeasor is

irrelevant because it does not raise a material fact as to the determination to grant

judgment against the Railroad’s indemnity and contribution claims.

Entered for the Court

Ted Stewart

District Judge