[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10922

____________________

CSX TRANSPORTATION, INC., 

Plaintiff-Appellant,

versus

GENERAL MILLS, INC., 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:14-cv-00201-TWT

____________________

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Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, Circuit Judge, and 

PROCTOR,∗ District Judge.

JILL PRYOR, Circuit Judge:

CSX Transportation, Inc. is a freight railroad company that 

provides rail transportation services. General Mills, Inc., a food 

company, operates a cereal processing plant in Georgia near one of 

CSX’s rail lines. A small connecting railroad known as a “sidetrack” 

connects CSX’s main rail line to General Mills’s plant, allowing 

General Mills to receive materials, ingredients, and equipment at 

its plant and to send its cereal away for distribution. A contract between CSX and General Mills governs the use of the sidetrack.

To make a very long story short, a General Mills employee 

suffered severe injuries while working on the sidetrack and then 

sued CSX for negligence. After a jury found CSX liable, the employee recovered a large settlement from CSX. CSX then sought to 

recover the settlement amount, as well as the expenses it incurred 

in defending the negligence suit, from General Mills. In this lawsuit, CSX sued General Mills for breach of contract, claiming that 

under the parties’ agreement,General Mills was required to indemnify CSX—regardless of whether CSX alone was responsible for the 

employee’s injury or CSX and General Mills were jointly responsible. The district court dismissed one of CSX’s breach-of-contract

claims and granted General Mills summary judgment on the other. 

∗ Honorable R. David Proctor, United States District Judge for the Northern 

District of Alabama, sitting by designation.

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On appeal, CSX challenges both the district court’s rulings. 

We agree with the district court that under the parties’ agreement,

General Mills was not required to indemnify CSX if CSX was solely 

negligent. But we disagree with the district court that the Georgialaw doctrine of vouchment barred CSX from litigating the issue of

General Mills’s negligence. If it turns out that General Mills was at 

least partially at fault for the injury, then under the contract General Mills must indemnify CSX for at least a portion of the settlement and related expenses. We thus affirm in part, reverse in part, 

and remand. 

I. BACKGROUND

We begin by reviewing the provisions in the contract between CSX and General Mills governing the sidetrack that connects

the CSX rail line with the General Mills cereal plant. We then describe how a General Mills employee was injured on the sidetrack, 

sued CSX, and secured a substantial settlement. We then turn to 

CSX’s efforts to hold General Mills liable for the settlement and expenses CSX incurred in the underlying litigation.

A. The Sidetrack Agreement

CSX and General Mills signed a contract to build the sidetrack in 1989 (the “Sidetrack Agreement”). They agreed that a physical railroad would be constructed and that General Mills would 

have the option to conduct its own “switching” on that sidetrack—

that is, “moving railcars that have been previously delivered by a 

train or assembling railcars in the proper order so that they can be 

coupled to a locomotive and pulled out of [the General Mills] 

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facility.” Doc. 63 at 3–4.1 To switch railcars, an operator uses a 

“trackmobile,” a type of mobile railcar mover used to move railcars 

across short distances.

Relevant to this appeal, two contractual provisions addressed indemnification between the parties for losses related to 

use of the sidetrack. First, in Section 11 the parties agreed that 

“[e]xcept as otherwise provided” in the contract, for claims arising 

out of “use . . . of the Sidetrack,” the parties would “jointly defend 

and bear equally” losses due to “joint or concurring negligence,” 

but each party would “hold the other party harmless” for any losses

due to “the indemnifying party’s . . . sole negligence.” Doc. 63-1 at 

5–6. Section 11 carved out circumstances in which the default 

rule—that the parties would jointly defend and bear equally any 

losses—would not apply. The carved-out circumstances do not exist here.2

1 “Doc.” numbers refer to the district court’s docket entries.

2 Under the carveout, General Mills is “solely responsible” for the following 

losses: (1) “the failure of [General Mills] to properly maintain its segment of 

the Sidetrack”; (2) “the construction, alteration[,] or removal of the Sidetrack 

by [General Mills]”; (3) the presence of a restricted clearance on [General 

Mills’s] Segment”; (4) “any personal injuries (including death) or property 

damage (real or personal) sustained . . . as the result of any road crossing collision on [General Mills’s] Segment”; and (5) “the explosion, spillage[,] and/or 

presence of Hazardous Materials on [General Mills’s] properties, facility or on 

[General Mills’s] Segment . . . when such Losses would not have occurred but 

for the dangerous nature of the Hazardous Materials.” Doc. 63-1 at 6.

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Second, Section 15 gave General Mills the option to conduct 

its own switching operations on the sidetrack. Section 15 provided

that if General Mills exercised the option to perform its own 

switching, it would “assume[] all risk of loss, damage, cost, liability, 

judgment[,] and expense, (including attorneys’ fees) in connection 

with any personal injury” sustained or incurred by “employees of 

either [General Mills] or [CSX] or third persons . . . in connection 

with, or arising from or growing out of, the operation of” General 

Mills’s switching operations. Id. at 7 (emphasis in original).

For over a decade, General Mills chose not to conduct its 

own switching operations. Later, however, General Mills exercised 

its contractual option to conduct its own switching. It bought a 

trackmobile from a company that also provided training to General 

Mills’s employees on how to use the trackmobile to conduct 

switching operations. As part of the training, employees were 

taught to use “chocks”—wedges placed on either side of a railcar’s

wheels to inhibit movement—and to employ the handbrakes on 

railcars when operating the trackmobile.

B. The Negligence Lawsuit

A couple of years later, Doug Burchfield and Rodney Turk, 

two General Mills employees, were using the trackmobile to move 

AEX 7136, a railcar stocked with wheat that CSX had delivered to 

the juncture between the main rail line and General Mills’s sidetrack. After uncoupling AEX 7136 from the trackmobile and parking it, Turk thought he saw the railcar move. He asked Burchfield 

if he had set the handbrake. Burchfield assured Turk that he had set 

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it. The pair left the railcar sitting on the track and moved away to 

switch an empty railcar that was located just downhill from 

AEX 7136. While Burchfield stood near the trackmobile, AEX 7136 

sprung loose, rolled down the slope, and crashed into the trackmobile, which in turn ran into the empty railcar. All three vehicles 

derailed and ran over Burchfield. He suffered extensive injuries 

leading to the amputation of both his lower legs. 

Burchfield filed a personal injury suit in the Northern District of Georgia against CSX and the company that owned AEX 

7136.3 In his complaint, Burchfield alleged that CSX negligently delivered AEX 7136 to General Mills with a faulty handbrake, which 

caused the accident.

CSX sent General Mills a letter notifying it of Burchfield’s 

lawsuit. CSX demanded that General Mills provide a defense. General Mills refused to defend CSX.

In the Burchfield litigation, CSX sought to attribute fault to 

General Mills for Burchfield’s injury. CSX argued that General 

3 Because Burchfield received workers’ compensation for his injuries, Georgia 

law precluded him from suing General Mills, his employer, for damages. See 

O.C.G.A. § 34-9-11(a) (“The rights and the remedies granted to an employee 

by this chapter shall exclude and be in the place of all other rights and remedies 

of such employee . . . on account of such injury . . . .”); see also Brooks-Powers v. 

Metro. Atlanta Rapid Transit Auth., 579 S.E.2d 802, 804 (Ga. Ct. App. 2003) (stating that “[w]here the [Georgia Workers’ Compensation] Act is applicable, its 

provisions are the exclusive remedy for the employee against the employer”

(internal quotation marks omitted)). And the company that owned the railcar 

settled with Burchfield, leaving CSX as the sole defendant. 

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Mills failed to train and supervise Burchfield and Turk and that because of General Mills’s negligence AEX 7136 was left without 

chocks blocking the wheels or handbraking before the accident. 

CSX requested that the district court use a verdict form that would 

allow the jury to allocate fault to non-party General Mills.

Burchfield moved for summary judgment on the issue of 

General Mills’s liability. The district court granted the summary 

judgment motion, concluding that CSX failed to raise the affirmative defense of General Mills’s fault in a timely manner and also 

failed to introduce expert testimony regarding the standard of care.

See Burchfield v. CSX Transp. Inc, No. 1:07-cv-1263, 2009 WL 

1405144, at *9–11 (N.D. Ga. May 15, 2009).

Burchfield’s negligence claim against CSX went to trial. The 

jury found in CSX’s favor, and Burchfield appealed. Burchfield v. 

CSX Transp. Inc., 636 F.3d 1330, 1333 (11th Cir. 2011). We reversed 

the judgment and remanded for a new trial on the ground that the 

district court erred in admitting certain evidence. Id. at 1338. 

The case proceeded to a second trial. This time, the jury 

found CSX liable and awarded Burchfield more than $20 million. 

Asked to allocate fault between Burchfield and CSX, the jury found 

that Burchfield was zero percent negligent and CSX was 100 percent negligent. The jury was not asked about General Mills. CSX 

appealed. While CSX’s appeal was pending, CSX and Burchfield 

settled for $16 million.

Following the settlement, CSX demanded indemnification 

from General Mills. CSX asserted that under the Sidetrack 

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Agreement General Mills owed it the full amount of the settlement 

payment, as well as the attorney’s fees and costs CSX incurred in 

defending the case. According to CSX, General Mills was required 

to indemnify it under both Section 11 and Section 15 of the Sidetrack Agreement. 

General Mills again refused CSX’s demand, contending that 

there was “no basis—contractual or otherwise—for the demand 

that General Mills indemnify CSX for its own negligence and resulting damages.” Doc. 63-8 at 2. Addressing Section 11, General 

Mills maintained that it was required to indemnify CSX only if General Mills was also negligent. In General Mills’s view, because the 

jury in the Burchfield litigation concluded that CSX was 100 percent 

at fault, “meaning 100% individually at fault as compared to anyone else in the world who could have been potentially at fault for 

Mr. Burchfield’s injuries,” Section 11 did not support CSX’s request. Id. at 3.

As to Section 15, General Mills contended that it owed no 

duty to indemnify CSX for the same reason: CSX’s negligence was 

the sole cause of Burchfield’s injury. General Mills asserted that 

Section 15 did not require it to indemnify CSX for losses that arose 

solely from CSX’s own negligence.

C. CSX’s Breach-of-Contract Lawsuit

CSX sued General Mills for breach of contract, seeking indemnification for the settlement with Burchfield. As relevant on 

appeal, CSX alleged that under Section 15 of the Sidetrack Agreement General Mills was required to assume all costs for injuries 

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arising from General Mills’s switching operations “without regard 

to who ultimately was determined to be at fault.” Doc. 1 at 18.

General Mills moved to dismiss the complaint for failure to 

state a claim, and the district court granted the motion. The court 

explained that under Georgia law, a party is contractually obligated 

to indemnify another party for losses when the first party is not 

negligent only if the parties’ contract meets the “heightened specificity requirement” of “expressly, plainly, clearly, and unequivocally” providing for indemnification under such circumstances. 

Doc. 36 at 8 (emphasis omitted). The court determined that Section 

15 did not meet that standard and thus General Mills was not required to indemnify CSX when CSX alone was negligent. The district court thus concluded that the Sidetrack Agreement did not require General Mills to indemnify CSX for the Burchfield settlement 

or its litigation costs. 

CSX moved for reconsideration of the district court’s order 

dismissing the complaint. It argued that the dismissal relied on the 

“unspoken premise” that CSX could not litigate General Mills’s 

fault because federal collateral estoppel principles precluded it from 

doing so. Doc. 38 at 5. In CSX’s view, the district court committed 

legal error by applying federal collateral estoppel law when it 

should have applied Georgia law. Georgia’s collateral estoppel rule 

would have allowed CSX to litigate General Mills’s negligence.4

4 Under Georgia’s collateral estoppel rule, CSX would be precluded from raising arguments about General Mills’s negligence in the indemnity suit only if 

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The district court denied the motion, stating that CSX “failed to 

show that the Court committed a clear error of law.” Doc. 41 at 3.

CSX appealed the district court’s dismissal of its complaint, 

and we reversed. CSX Transp., Inc. v. General Mills, Inc., 846 F.3d 

1333 (11th Cir. 2017). We focused on the district court’s conclusion

that federal collateral-estoppel principles precluded CSX from litigating General Mills’s fault in the indemnification action. Id. at 

1335. We agreed with CSX that the district court should have applied Georgia’s collateral estoppel rule. Id. at 1340. But we remanded for the district court to determine whether, under that 

rule, General Mills and Burchfield were “identical parties” so that 

the Burchfield judgment was binding on CSX in the indemnity suit.

Id. (internal quotation marks omitted). We expressly declined to 

decide “whether the Sidetrack Agreement requires indemnification 

assuming CSX was solely at fault.” Id.

On remand, CSX filed an amended complaint alleging three 

counts. Count One again alleged that Section 15 of the Sidetrack 

Agreement required General Mills to indemnify CSX “without 

the Burchfield lawsuit involved “the same parties or their privies.” Cmty. State 

Bank v. Strong, 651 F.3d 1241, 1264 (11th Cir. 2011) (internal quotation marks 

omitted); see Camden Cnty. v. Sweatt, 883 S.E.2d 827, 833 (Ga. 2023) (explaining 

that collateral estoppel precludes “re-adjudication of an issue that has previously been litigated . . . in another action between the same parties or their 

privies (emphasis omitted) (internal quotation marks omitted)). By contrast, 

under the federal rule, a non-party to a previous action (General Mills) may

assert collateral estoppel offensively to preclude a party to the previous action 

(CSX) from litigating issues decided in the previous action. See Parklane Hosiery 

Co. v. Shore, 439 U.S. 322, 331 (1979). 

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regard to who ultimately might be determined to be at fault.” Doc. 

63 at 16 (emphasis omitted). Count Two alleged, in the alternative, 

that Section 15 required General Mills to indemnify CSX because 

General Mills bore “at least some fault in causing Mr. Burchfield’s 

injuries.” Id. at 19 (emphasis omitted). Count Three alleged, also in 

the alternative, that if “Burchfield’s injuries did not arise from or 

grow out of use of the trackmobile” and CSX and General Mills 

were jointly or concurrently negligent, Section 11 required General 

Mills to indemnify CSX for 50 percent of CSX’s loss. Id. at 21. 

General Mills again moved to dismiss CSX’s claims. The district court dismissed Count One for the same reason it had dismissed the Section 15 claim in its earlier order: Section 15’s language was too broad and vague to require General Mills to indemnify CSX without regard to fault. But the court did not dismiss 

Counts Two or Three. Applying Georgia’s collateral estoppel rule, 

the court concluded that CSX was not barred from arguing that 

General Mills was partially at fault for Burchfield’s injuries. Therefore, the claims in Counts Two and Three, which required CSX to 

show General Mills was at least partially at fault, survived.

After discovery, the parties filed cross-motions for summary 

judgment. In its summary judgment motion, General Mills explained that for CSX to prevail on Counts Two or Three, it had to 

show that General Mills’s negligence caused or contributed to 

Burchfield’s injuries. Again,General Mills maintained that CSX was 

precluded from litigating General Mills’s negligence. This time, it

argued that because CSX had vouched General Mills into the 

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Burchfield litigation, CSX was bound by the Burchfield judgment, 

which General Mills said determined that “CSX was 100% at fault 

. . . Burchfield was 0% at fault . . . and General Mills was not negligent.” Doc. 188 at 17. The district court agreed, remarking that “in 

the vouchment doctrine, [General Mills] appears to have finally hit 

on a viable preclusion argument.” Doc. 258 at 7. The district court 

entered judgment against CSX.

CSX now appeals the district court’s orders granting General 

Mills’s motion to dismiss Count One and its motion for summary 

judgment on Counts Two and Three. 

II. STANDARD OF REVIEW

We review de novo an order granting a motion to dismiss for 

failure to state a claim. See Hoeverv. Marks, 993 F.3d 1353, 1357 (11th 

Cir. 2021) (en banc). We also review de novo a district court’s grant 

of summary judgment. See State Farm Mut. Auto. Ins. Co. v. Spangler, 

64 F.4th 1173, 1178 (11th Cir. 2023). In addition, the interpretation 

of a contract or statute is a question of law that we review de novo. 

See Hoever, 993 F.3d at 1357 (statute); Southland Distribs. Mktg. Co. v. 

S&P Co., 296 F.3d 1050, 1053 (11th Cir. 2002) (contract).

III. DISCUSSION

CSX raises two theories on appeal for why General Mills is 

required to indemnify it. First, CSX argues that even if it was solely 

at fault for Burchfield’s injuries, Section 15 of the Sidetrack Agreement required General Mills to indemnify it. Second, it argues that 

that General Mills owed it a duty to defend because a reasonable 

jury could find that General Mills was at least partially at fault in 

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causing Burchfield’s injuries. As to this second theory, CSX argues 

that the district court erred in concluding that Georgia’s vouchment statute precluded it from establishing that General Mills was 

at least partially at fault for Burchfield’s injuries. We address the 

two theories in turn. 

A. The Sidetrack Agreement does not require General Mills 

to indemnify CSX when CSX is solely at fault. 

CSX argues the district court erred in dismissing Count One, 

its indemnification claim under Section 15. It reasons that the Sidetrack Agreement unambiguously required General Mills to indemnify CSX, even for CSX’s sole negligence, so the district court erred 

in refusing to enforce the provision. We disagree.

Under Georgia law,5 a contract requires indemnification for 

an indemnitee’s sole negligence only when it explicitly says that the

indemnitor must pay even if he is not negligent. See Park Pride Atlanta, Inc. v. City of Atlanta, 541 S.E.2d 687, 689 (Ga. Ct. App. 2000).

In Park Pride, a non-profit organization agreed to hold a city harmless “from any and all claims . . . of any kind . . . or nature . . . for 

any activity sponsored by” the organization. Id. (internal quotation 

marks omitted) At a park clean-up event sponsored by the organization, a city dump truck rolled backward crushing a woman, who 

died from her injuries, and injuring her husband. Id. at 688. The 

husband sued the city, bringing claims arising out of his wife’s 

5 The parties agree that Georgia law governs CSX’s claims.

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death and his injuries. Id. After the city settled the tort litigation, it 

sued the organization seeking indemnification. Id.

The Georgia Court of Appeals considered whether the indemnification agreement required the organization to indemnify 

the city for the city’s own negligence. Id. at 689. The court began 

with the principle that “[p]ublic policy is reluctant to cast the burden for negligent actions upon those who are not actually at fault” 

because “[p]ublic policy seeks to encourage people to exercise due 

care in their activities for fear of liability, rather than to act carelessly cloaked with the knowledge that an indemnity contract will 

relieve such indifference.” Id. Based on this public policy concern, 

it explained that a party who was not negligent generally would 

not be required to indemnify a party who was negligent unless a

contract “explicitly and expressly” required indemnification. Id.

The court emphasized that “[t]he words of a contract of indemnification . . . must be construed strictly against the indemnitee” with 

“every presumption” against indemnification. Id. (internal quotation marks omitted).

Relying on this standard, the Georgia Court of Appeals concluded that the parties’ agreement did not require the organization

to indemnify the city. Although the indemnification provision at 

first blush “appear[ed] to indemnify the [c]ity ‘against any and all 

claims,’” the provision was “bereft of any express or explicit statement about coverage for the [c]ity’s own negligent acts.” Id. Because the indemnity provision “failed to expressly, plainly, clearly, 

and unequivocally state that [the organization] would indemnify 

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the [c]ity from the [c]ity’s own negligence,” the organization had 

no obligation to indemnify the city for the settlement in the underlying litigation. Id.; see also Viad Corp. v. U.S. Steel Corp., 808 S.E.2d 

58, 60, 63 (Ga. Ct. App. 2017) (holding that an agreement to indemnify for “[a]ll debts, liabilities, and obligations” was not “sufficient” 

to require indemnification for a party’s sole negligence because the 

agreement did not explicitly mention the “negligence” of the party 

seeking indemnification (internal quotation marks omitted)); S. Ry. 

Co. v. Union Camp Corp., 353 S.E.2d 519, 520–21 (Ga. Ct. App. 1987) 

(reaching same conclusion for agreement to indemnify for “all loss, 

damage, liability or expense” (internal quotation marks omitted)).

With this guidance, we return to the Sidetrack Agreement. 

Section 15 set forth General Mills’s option to conduct its own 

switching operations and the risk of liability it accepted in exchange. If General Mills chose to perform its own switching, it “assume[d] all risk of loss, damage, cost, liability, judgment[,] and expense . . . in connection with any personal injury. . . arising from

. . . the operation of [General Mills’s] trackmobile or locomotive 

power upon [the] Sidetrack.” Doc. 63-1 at 7 (emphasis in original). 

Applying Georgia law, we conclude that this provision did

not require General Mills to indemnify CSX for CSX’s sole negligence. Nothing in Section 15 “explicitly and expressly” stated that 

indemnification was required if General Mills was not at fault. Park 

Pride, 541 S.E.2d at 689. To be sure, under Section 15’s broad terms, 

General Mills “assume[d] all risk of loss.” Doc. 63-1 at 7 (emphasis 

omitted). But as Park Pride made clear, such language does not 

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“expressly, plainly, clearly, and unequivocally” state that an indemnitor must cover losses that result from the indemnitee’s own negligence. Id. at 689.

CSX’s counterarguments are unavailing. It contends that

Section 15 makes sense only if General Mills was required to indemnify it regardless of fault. In its view, the Sidetrack Agreement

allowed General Mills to take over its switching operations—meaning that CSX would give up “both control over the risk and the 

revenue from performing the switching function for General 

Mills”—in exchange for General Mills’s agreement to “assume all

risk of liability for any personal injury to any person.” Appellant’s 

Br. at 25 (alterations adopted). At first blush, CSX’s quid pro quo 

argument is compelling: CSX gave up control over—including the 

potential ability to prevent accidents—and revenue from switching 

activity on the sidetrack, and in return General Mills accepted all 

liability regardless of who was at fault. But the Georgia Court of 

Appeals concluded that a similar indemnification provision—in 

which the indemnitor agreed to assume liability for “all loss” that 

the indemnitee incurred “because of any injury to or death of any 

person or loss of or injury or damage to any property”—did not 

“expressly state[] that the negligence of the indemnitee is covered”

and thus did not require indemnification for the indemnitee’s own

negligence. See S. Ry. Co., 353 S.E.2d at 520–21. Section 15’s language is simply not explicit enough to require General Mills to indemnify CSX for CSX’s own negligence, particularly given that we 

must construe the contract “strictly against” CSX as the indemnitee. Park Pride, 541 S.E.2d at 689. Here, construing the contract 

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strictly against CSX means that General Mills does not have to indemnify unless it was at least partially liable for Burchfield’s accident.

Georgia’s rules of contract construction require that we interpret Section 15 in the context of the entire agreement. See 

Peachtree on Peachtree Invs., Ltd. v. Reed Drug Co., 308 S.E.2d 825, 828 

(Ga. 1983). But our reading does not conflict with the rest of the 

contract. Section 11(A) generally provided that each party would

“hold the other party harmless” for losses arising from “the indemnifying party’s . . . sole negligence.” Doc. 63-1 at 6. Section 11(C) 

carved out five specific exceptions in which General Mills agreed 

to indemnify CSX “irrespective of the sole . . . negligence of [CSX].” 

Id. These carveouts described the only circumstances in which

General Mills was required to indemnify CSX if CSX was solely 

negligent. And none of the carveouts included incidents arising out 

of General Mills’ switching operations discussed in Section 15.

Because Section 15 did not expressly, explicitly, and unequivocally require General Mills to indemnify CSX for CSX’s sole 

negligence, the district court did not err in dismissing CSX’s claim 

that General Mills was liable under Section 15 even if CSX alone 

was negligent. We thus affirm the district court’s dismissal of 

Count One.

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B. The vouchment doctrine does not bar CSX from establishing that General Mills was at least partially at fault

and thus liable under the Sidetrack Agreement.

CSX’s other argument on appeal arises from its alternative 

theory that the Sidetrack Agreement required General Mills to indemnify CSX because General Mills’s negligence contributed to 

Burchfield’s injuries. CSX argues that the district court erred in 

granting General Mills’s motion for summary judgment because 

the court misapplied Georgia’s vouchment law when it found that 

CSX was bound by the Burchfield jury’s verdict and thus could not 

prove that General Mills was partially at fault. 

We begin by introducing Georgia’s vouchment statute. We 

then explain why we agree with CSX that the vouchment statute 

binds only General Mills to the Burchfield judgment.

1. Vouchment under Georgia law

Georgia’s vouchment doctrine addresses when a non-party 

may be bound by the judgment in a lawsuit. The term “vouch” 

means “to call into court to warrant and defend.” Loeb v. May, 

198 S.E. 785, 786 (Ga. 1938) (internal quotation marks omitted). A

rudimentary hypothetical demonstrates how vouchment works: A 

plaintiff sues a defendant for an injury. But the defendant believes 

that a non-party is liable for the plaintiff’s injury instead. Vouchment empowers the defendant as a “voucher” to bind the nonparty as the “vouchee” to the judgment in the first lawsuit about 

the plaintiff’s right to recover. 

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To use this tool, the defendant merely needs to notify the 

non-party about the action against the defendant. See, e.g., Chicago 

v. Robbins, 67 U.S. (2 Black) 418, 423 (1862); W. & Atl. R.R. Co. v. 

City of Atlanta, 74 Ga. 774, 777 (1885). Importantly, vouchment does 

not make the non-party a party to the lawsuit. See 13 Ga. Jurisprudence § 10:27 (Sept. 2023 update). Instead, vouchment occurs outside of court and is subject to few procedural rules. It requires nothing more of the voucher than giving notice of the lawsuit to the 

vouchee, which can be done in a letter or even orally. Id. 

In 1895, Georgia enacted a statute codifying the commonlaw doctrine of vouchment. The statute provides: 

Where a defendant may have a remedy over against 

another person and vouches him into court by giving 

notice of the pendency of the action, the judgment 

rendered therein shall be conclusive upon the person 

vouched, as to the amount and right of the plaintiff 

to recover.

O.C.G.A. § 9-10-13. The doctrine’s primary purpose is judicial efficiency:

[I]f the act of the vouchee is the real thing complained 

of, so that, if there is a recovery by the injured party 

against the voucher, he can turn right around and 

claim indemnity from the vouchee, then it is to the 

interest of the state that a multiplicity of suits should 

be avoided by requiring the vouchee to appear in the 

original suit and set up any defense which he has.

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20 Opinion of the Court 22-10922

Raleigh & G.R. Co. v. W. & A.R. Co., 65 S.E. 586, 588 (Ga. Ct. App. 

1909). The idea is that the first lawsuit will conclusively determine 

the injured party’s right to recover, limiting the scope of a later indemnification lawsuit to the sole question of “the relationships and 

liabilities between the party vouching and the person vouched.” 

McArthor v. Ogletree, 61 S.E. 859, 860 (Ga. Ct. App. 1908). In this 

way, vouchment incentivizes the vouchee to support the voucher’s 

defense against the plaintiff by raising affirmative defenses or introducing any relevant evidence in the first lawsuit. See S. Ry. Co. v. 

Acme Fast Freight, 19 S.E.2d 286, 287–88 (Ga. 1942). That said, the

vouchee is not obligated to participate in the voucher’s defense. Id.

It may, as General Mills did, decline to defend. But it will be bound 

by the judgment in the underlying lawsuit. See id. With this background, we turn to the vouchment issue before us.

2. Application of Vouchment to the Burchfield Judgment

The parties agree that CSX vouched General Mills into the 

Burchfield case and that General Mills refused to participate. In a 

traditional vouchment scenario, CSX would then be able to invoke 

the vouchment doctrine to bar General Mills from relitigating issues related to Burchfield’s right to recover or the amount of his 

damages because those issues were already decided in the Burchfield

case. But in this lawsuit, it is General Mills—the vouchee—who 

seeks to use vouchment to bar CSX from litigating issues that General Mills insists were decided against CSX in the Burchfield litigation. As a federal court addressing an issue of Georgia state law in 

this diversity action, we must defer to the Georgia courts’ appellate 

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22-10922 Opinion of the Court 21

decisions on that issue.6 But here, no Georgia court has ever considered whether an earlier judgment has preclusive effect on a 

voucher in an action against his vouchee. In the prior vouchment 

cases, the vouchee, not the voucher, sought to relitigate the earlier 

liability finding, so this question has not been decided. See, e.g., W.

& Atl. R.R., 74 Ga. at 777. Thus, the question whether vouchment 

binds both parties or only the vouchee is one of first impression on 

which we have no state court guidance.

The district court determined that the Burchfield judgment 

decided the question of whether General Mills was liable for Burchfield’s accident and that CSX was precluded from pursing indemnification based on General Mills’s partial or complete fault for 

Burchfield’s accident. CSX’s claims for recovery under Counts Two 

and Three both depend on General Mills being at least partially at 

fault. So, by precluding CSX from attempting to show that General 

6 Because our jurisdiction in this case rests on diversity of citizenship, 

see 28 U.S.C. § 1332, we apply the substantive law of Georgia—the forum 

state, see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). When a state’s highest 

appellate court (in this case the Georgia Supreme Court) has addressed an issue of state law, we simply apply its holding. See Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008, 1021 (11th Cir. 2014). But when we are confronted 

with a state-law issue of first impression, we must attempt to predict how the 

state’s highest court would decide the issue. See Turner v. Wells, 879 F.3d 1254, 

1262 (11th Cir. 2018). Absent certainty from the state’s highest court, we apply 

the decisions of the state’s intermediate court—here, the Georgia Court of Appeals—unless there is “persuasive indication that the [Georgia Supreme Court] 

would rule otherwise.” CSX Transp., Inc. v. Trism Specialized Carriers, Inc., 

182 F.3d 788, 791 (11th Cir. 1999).

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22 Opinion of the Court 22-10922

Mills was negligent to support its claims, the district court eviscerated CSX’s theory of recovery and inevitably concluded that CSX’s 

alternative claims failed. 

CSX argues that the district court misinterpreted the vouchment statute because vouchment binds only the vouchee (General 

Mills), not the voucher (CSX), to a judgment. We agree with CSX’s 

reading of the vouchment statute.

In interpreting Georgia’s vouchment statute, we look to 

Georgia’s rules of statutory construction. See Grange Mut. Cas. Co. 

v. Woodward, 826 F.3d 1289, 1300 (11th Cir. 2016) (explaining that 

we “examine Georgia’s canons of statutory construction to attempt 

to determine how Georgia courts would interpret a statute”). Under Georgia law, “if the statutory text is clear and unambiguous, 

we attribute to the statute its plain meaning, and our search for 

statutory meaning is at an end.” Deal v. Coleman, 751 S.E.2d 337, 

341 (Ga. 2013) (internal quotation marks omitted).

As a reminder, the vouchment statute provides that when a 

defendant in a lawsuit gives notice to another person and vouches 

her into the lawsuit, “the judgment rendered therein shall be conclusive upon the person vouched, as to the amount and right of the 

plaintiff to recover.” O.C.G.A. § 9-10-13 (emphasis added). By its 

plain language, the statute addresses the preclusive effect of a judgment in an underlying action on the vouchee, not the voucher. And

the title of the statute, “Effect of judgment on party vouched into 

court,” is consistent with that language. Id. (emphasis added); see 

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation 

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22-10922 Opinion of the Court 23

of Legal Texts § 35, at 221 (2012) (recognizing that “title and headings 

are permissible indicators of meaning”); Ne. Atlanta Bonding Co. v. 

State, 707 S.E.2d 921, 926 n.5 (Ga. Ct. App. 2011) (explaining that 

statute’s title may be considered when “ascertaining legislative intent”). As to the preclusive effect of the judgment on the vouching 

party, the statute is silent. See O.C.G.A. § 9-10-13.

This interpretation is also consistent with the canon of construction that “[a] statute will be construed to alter the common 

law only when that disposition is clear.” Scalia & Garner, § 52, at 

318; see Boca Petroco, Inc. v. Petroleum Realty II, LLC, 678 S.E.2d 330, 

332–33 (Ga. 2009) (recognizing that a “common law rule survives 

[a] statute regarding same area of concern when [the] statute does 

not directly address certain elements of [the] common law rule”).

Here, there are no clear signs that the statute altered the common 

law. Instead, the Georgia Supreme Court has repeatedly stated that 

the vouchment statute codified—and did not alter—the commonlaw doctrine of vouchment. See, e.g., Loeb, 198 S.E. at 786; McArthor, 

61 S.E. at 860. Therefore, we must interpret the statute in the light 

of its common-law history.

And we see nothing in the common law to suggest that

vouchment precludes the voucher from litigating issues that may 

have been decided in earlier litigation between the injured party 

and the voucher. At the time Georgia enacted the vouchment statute, the key Georgia common-law decisions on vouchment were 

Western & Atlantic Railroad, 74 Ga. at 777, and Faith v. City of Atlanta, 78 Ga. 779 (1887). See Loeb, 198 S.E. at 786 (explaining that 

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24 Opinion of the Court 22-10922

Georgia’s vouchment statute adopted the reasoning from these decisions). Neither case holds that vouchment precludes the voucher 

from relitigating issues that were decided in the underlying litigation. 

We start with Western & Atlantic Railroad. In that case, a pedestrian who was injured at a railroad crossing sued a city for negligent maintenance of the crossing. 74 Ga. at 776. Although the city 

notified the railroad of the case and claimed that the railroad was 

liable, the railroad did not participate in the pedestrian’s negligence 

action. Id. at 776–77. After the city was held liable in the negligence 

action, it sued the railroad. Id. at 776. 

In the indemnification action, the railroad (which was the 

vouchee) sought to introduce evidence that the pedestrian was at 

fault. Id. at 777. The trial court excluded the evidence. The Georgia 

Supreme Court affirmed, explaining that “both the city and the railroad company were concluded” by the verdict in the negligence 

case “and should not be heard to say that [the pedestrian] . . . could 

have avoided the injuries which he received.” Id. at 778. Although 

the Court’s broad language, read in isolation, could suggest that 

both the city and railroad were bound by the judgment, the decision was addressing the effect that the judgment in the underlying 

negligence action had on the vouchee (the railroad), not the 

voucher (the city). The Georgia Supreme Court made no ruling

about the vouchment’s preclusive effect on the city because that 

issue was not before it. Id.

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A few years later, the Georgia Supreme Court again addressed vouchment in Faith. In that case, a person injured on a city 

street sued a city for negligence. 4 S.E. at 3. The city believed that

the plaintiff’s injuries were caused by a property owner who had 

dug holes in the street and left the holes uncovered. Id. The city 

asked the property owner to appear and defend the suit. Id. The 

property owner refused. Id. After the plaintiff recovered against the 

city in the negligence action, the city sued the property owner seeking indemnification. Id. The city prevailed in the indemnification 

action, and the property owner appealed. Id.

On appeal, the Georgia Supreme Court addressed the issues 

the property owner (the vouchee) could raise in defending the indemnification action brought by the city (the voucher). Because 

“the judgment of the injured party against the city” was “conclusive” as to the right of the injured party to recover and the amount 

of his damages, the property owner could not raise these issues. Id. 

at 4. But he could raise other defenses including that “he was under 

no obligation to keep that portion of the streets in safe condition;” 

that “it was not through his [fault] that the injury happened;” and

that if he and the city were both responsible, the city could not recover against him. Id. Although the Georgia Supreme Court stated 

broadly that the judgment was “conclusive between the city and 

[the property owner],” it did not address the vouchment’s preclusive effect on the voucher because that question was not at issue. 

Id.

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In these two foundational common-law vouchment cases, 

the Georgia Supreme Court held that the earlier judgment bound 

the vouchee. No more, no less. We agree with CSX that we are not 

bound by any “loose language,” Appellant’s Br. at 46, in which the 

Georgia Supreme Court commented on issues not before it in each

case. See Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 

2010) (“We have pointed out many times that regardless of what a 

court says in its opinion, the decision can hold nothing beyond the 

facts of that case.”); State v. Dorsey, 875 S.E.2d 900, 907 n.5 (Ga. Ct. 

App. 2022) (“Language that sounds like a holding—but actually exceeds the scope of the case’s factual context—is not a holding no 

matter how much it sounds like one.” (internal quotation marks 

omitted)). We thus conclude that the vouchment statute, consistent with Georgia common law, provides that the vouchee alone 

is bound from relitigating issues decided in the earlier litigation.

General Mills nevertheless argues that we should reject this 

interpretation of the vouchment statute because it allows a 

voucher to “unilaterally bind a vouchee to favorable findings and 

contest unfavorable ones,” which provides an impermissible windfall to the voucher. Appellee’s Br. at 24 (internal quotation marks 

omitted). This argument misunderstands vouchment’s purpose. 

“Vouchment is a right granted to the voucher under the statute, 

as is the binding effect of the judgment against the vouchee.” Hardee 

v. Allied Steel Bldgs., Inc., 356 S.E.2d 682, 684 (Ga. Ct. App. 1987) 

(emphasis added). In other words, by design, vouchment empowers 

the voucher, not the vouchee. Vouchment exists to incentivize the 

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22-10922 Opinion of the Court 27

vouchee to participate in the earlier action, defend his interests 

there, and reduce the burden of duplicative litigation on the judicial 

system. To accomplish this purpose, vouchment creates carrots 

and sticks for the vouchee. One stick is that a vouchee who is invited to participate in the earlier action and chooses not to do so is 

more likely to find herself bound to determinations she does not 

like precisely because she chose not to participate when invited to 

do so. General Mills’s concern that vouchment, if it only binds the 

vouchee, tends to work against vouchees is simply a feature of the

doctrine.7

Because the doctrine of vouchment does not preclude CSX 

from introducing evidence of General Mills’s fault, CSX may be 

able to establish that General Mills was at least partially at fault for 

Burchfield’s injuries and thus required under the Sidetrack Agreement to indemnify CSX for at least a portion of the settlement and 

expenses incurred in the Burchfield litigation. Accordingly, we reverse the district court’s order granting summary judgment on 

Counts Two and Three.

7 CSX argues in the alternative that the vouchment statute does not bar it from 

raising an issue about General Mills’s fault because no issue regarding General 

Mills’s negligence was decided in the Burfield litigation. Because we conclude 

that the vouchment statute does not preclude CSX (as voucher) from relitigating any issues against General Mills, we need not address this alternative argument. 

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28 Opinion of the Court 22-10922

IV. CONCLUSION

For the reasons set forth above, we AFFIRM the district 

court’s dismissal of Count One, REVERSE the district court’s entry 

of summary judgment on Counts Two and Three, and REMAND

for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND 

REMANDED.

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