1

The Honorable Paul A. Magnuson, United States District Judge for the District

of Minnesota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-2245/05-2351

___________

Union Pacific Railroad Company; *

Missouri & Northern Arkansas *

Railroad Company, Inc., *

*

Appellants/ *

Cross-Appellees, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas

ConAgra Poultry Company, *

* [UNPUBLISHED]

Appellee/Cross-Appellant. *

___________

Submitted: March 16, 2006

 Filed: June 29, 2006 

___________

Before ARNOLD and GRUENDER, Circuit Judges, and MAGNUSON,1

 District

Judge.

___________

MAGNUSON, District Judge.

This case is before us on two interlocutory appeals. Union Pacific Railroad

Company and Missouri & Northern Arkansas Railroad Company, Inc. (collectively

“the Railroads”) appeal an order granting a motion to compel discovery. ConAgra
2

The Honorable William R. Wilson, Jr., United States District Judge for the

Eastern District of Arkansas.

-2-

Poultry Company (“ConAgra”) appeals an order granting summary judgment to the

Railroads.

BACKGROUND

This case began as a personal injury lawsuit initiated by Kenneth and Priscilla

Burress, who sought to recover from the Railroads for personal injuries sustained by

Mr. Burress when he was hit by a boxcar on the premises of his employer, ConAgra.

Mr. Burress and another employee were moving two boxcars through the use of

ConAgra’s switch engine when the accident occurred. The Burresses settled with the

Railroads for $5,000,000. 

The Railroads filed a third-party complaint against ConAgra, seeking

indemnification under the terms of an Industry Track Agreement (“Agreement”). The

district court2

 granted summary judgment for the Railroads on the basis that the

Burresses’ losses were covered by the indemnity provisions of the Agreement, but the

court reserved for trial the issue of whether the settlement was reasonable. 

After the summary judgment order issued, ConAgra served discovery requests

relating to the reasonableness and good faith of the settlement. Some of the requested

information included communications between the Railroads and their counsel and

mental impressions of counsel. The Railroads objected to the requests on the grounds

of relevance, attorney-client privilege, and work-product protection. ConAgra moved

to compel responses, and the district court granted the motion.
-3-

DISCUSSION

A. The Summary Judgment Order

ConAgra presents two general arguments for reversal of the summary judgment

order: (1) that the Agreement’s indemnity provisions are ambiguous, and (2) that the

location of the accident creates a genuine issue of material fact. Neither of these

arguments has merit. 

1. Whether the Allocation of Liability Under the Agreement Is Ambiguous

ConAgra contends that the Agreement is ambiguous because it contains

conflicting allocations of liability. The relevant part of the Agreement, section 4(c),

provides: 

(c) Except as otherwise specifically provided in this Agreement, all

Loss related to the construction, operation, maintenance, use, presence

or removal of the Track shall be allocated as follows: 

1. The Railroad shall pay the Loss when the Loss arises from or

grows out of the acts or omissions of the Railroad whether or not

a Third Person contributes to cause the Loss.

2. The Industry [ConAgra] shall pay the Loss when the Loss

arises from or grows out of the acts or omissions of the Industry,

or when the Loss arises from or grows out of . . . (iv) intraplant

switching . . . . This subsection applies regardless of . . . whether

or not the Railroad or a Third Person contributes to cause the

Loss.

3. Except as otherwise more specifically provided in this

Agreement, Railroad and Industry shall pay equal parts of the

Loss that arises out of the joint or concurring negligence of the
-4-

Railroad and the Industry, whether or not the acts or omissions of

a Third Person contribute to cause the Loss. . . . 

(Appellant App. at 47) (emphasis added). The district court concluded that ConAgra

was obligated to indemnify the Railroads under section 4(c)(2)(iv) because the loss

arose from intraplant switching.

A court must construe an indemnity clause according to the general rules of

contract interpretation. Pickens-Bond Constr. Co. v. N. Little Rock Elec. Co., 459

S.W.2d 549, 552 (Ark. 1970). However, if a contract’s language is clear and

unambiguous, there is no need to rely on rules of construction. Id. 

ConAgra first contends that the term “intraplant switching” is ambiguous.

Section 4(c)(2)(iv) of the Agreement indemnifies the Railroads, without regard to any

negligence of the Railroads, for losses incurred during “intraplant switching.” The

Agreement defines this term as “the movement of rail cars on the Track by the

Industry [ConAgra] by any method.” (Appellant App. at 46.) The “Track” is defined

as 1,905 feet of track as indicated on a map attached to the Agreement. (Id. at 41.)

Neither the term “intraplant switching,” nor any other term in section 4(c)(2)(iv)

imposing the obligation to indemnify on ConAgra, is ambiguous. Mr. Burress’s

accident occurred during ConAgra’s movement of rail cars on a track covered by the

Agreement, and ConAgra’s duty to indemnify the Railroads in this circumstance is

expressed in such clear and unambiguous terms that no other meaning is possible. 

ConAgra next argues that the subsections of section 4 cannot be reconciled with

each other under the ruling of the district court. Under Arkansas law, a contract must

be construed as a whole, Fort Smith Light & Traction Co. v. Kelley, 127 S.W. 975,

980 (Ark. 1910), and a specific contract clause controls over a general one, Pate v.

Goyne, 204 S.W.2d 900, 901 (Ark. 1947). Here, the district court implicitly

determined that the specific subsection (c)(2)(iv) controls over the more general
-5-

subsection (c)(1) because the loss arose out of ConAgra’s movement of boxcars on

the track, or in other words, during intraplant switching. Moreover, subsection (c)(1)

does not apply because it requires the Railroads to pay for a loss arising from an act

or omission of the Railroads, which did not occur in this case. Subsection (c)(3) does

not apply because it is a “catch-all” provision applicable only when there is not a more

specific provision covering the loss and when the Railroads and ConAgra are

concurrently negligent. The subsections of section 4 do not create any ambiguity.

Finally, ConAgra claims that the word “contributes” in subsection (c)(2) is

ambiguous because the term does not make ConAgra liable if a loss is caused by the

sole negligence of the Railroads. Although we believe the term does not create any

ambiguity, the issue is irrelevant as the district court did not found its decision on this

language. 

In sum, the indemnity provisions of the Agreement are clear and unambiguous.

The Agreement specifically details the circumstances under which either party or both

parties will be responsible for a loss. Mr. Burress was injured during intraplant

switching, and subsection (c)(2)(iv) clearly and unambiguously allocates this loss to

ConAgra. 

2. Whether the Location of the Accident Creates an Issue of Material Fact

ConAgra argues that the location of the accident raises a genuine issue of

material fact regarding the scope of the term “intraplant switching.” ConAgra does

not dispute that the accident occurred during an intraplant switching operation. It

contends, however, that the switching operation occurred outside the fence

surrounding its facility, and thus, the switching was not “intraplant.” 

We reject ConAgra’s argument. The Agreement defines “intraplant switching,”

and the definition is clear. The accident occurred while ConAgra was moving railcars
-6-

on a track subject to the Agreement. This is the very definition of “intraplant

switching.” Whether or not the accident occurred inside the facility’s fence is

irrelevant. The Agreement defines the track covered by the Agreement as 1,905 feet

of specific track at ConAgra’s facility and does not mention a fence. It is undisputed

that the accident occurred on the 1,905 feet of track covered by the Agreement.

Consequently, the location of the accident does not create a genuine issue of material

fact. 

B. The Discovery Order

Title 28 U.S.C. § 1292(b) provides for our jurisdiction over appeals of

interlocutory decisions. White v. Nix, 43 F.3d 374, 376 (8th Cir. 1994). Pretrial

discovery orders are almost never immediately appealable. Coleman v. Sherwood

Med. Indus., 746 F.2d 445, 446 (8th Cir. 1984). A party may immediately appeal a

discovery order only if the order presents a controlling question of law or if an

interlocutory appeal will materially advance the termination of the litigation. See 28

U.S.C. § 1292(b); see also 8 Charles Alan Wright, et al., Federal Practice and

Procedure § 2006 (2d ed. 1994). Neither circumstance is present here. The discovery

dispute is ordinary and straightforward, and the legal questions are settled issues of

law. A review of the discovery order will not resolve any of the substantive claims

or eliminate the need for trial. Accordingly, we decline to exercise jurisdiction over

the interlocutory appeal of the discovery order.

CONCLUSION

The grant of summary judgment is affirmed, and the appeal of the interlocutory

discovery order is dismissed for lack of jurisdiction.

______________________________