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06-4719-cv 

O&G Indus., Inc. v. Nat’l R.R. Passenger Corp. 

1 UNITED STATES COURT OF APPEALS 

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FOR THE SECOND CIRCUIT 

August Term, 2007 

(Argued: October 23, 2007 Decided: August 8, 2008) 

Docket No. 06-4719-cv 

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O&G INDUSTRIES, INC., 

14 Third-Party-Defendant Appellant, 

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HARTFORD FIRE INSURANCE CO. AND DAVID E. ROBERTS, ADMINISTRATOR FOR 

THE ESTATE OF GREGORY J. ROBERTS, 

19 Plaintiffs, 

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PETER QUINTILIANI AND LAUREL QUINTILIANI, 

23 Consolidated Plaintiffs, 

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 v. 

NATIONAL RAILROAD PASSENGER CORPORATION, 

29 Defendant-Third-Party-Plaintiff Appellee, 

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32 B e f o r e: FEINBERG, WINTER, and STRAUB, Circuit Judges. 

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 Appeal from a judgment of the United States District Court for 

the District of Connecticut (Dorsey, J.) entered in a third-party 

action for indemnity, following an accident in which a train owned 

and operated by defendant-third-party-plaintiff appellee Amtrak 

caused the death of one employee of third-party-defendant appellant 

O&G Industries, Inc. and injured another. In the first instance, the 

district court (1) granted summary judgment to Amtrak on the ground 

that the indemnity agreement between Amtrak and O&G was not invalid 

under Connecticut General Statute § 52-572k(a), because the latter 

is preempted by 49 U.S.C. § 28103(b), which allows rail passenger 

carriers to enter into indemnification agreements concerning claims 

brought against them; and (2) held that O&G was required, as a 

matter of law, to indemnify Amtrak for the liabilities and costs 
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Amtrak incurred in the tort actions arising out of the accident, 

despite a jury verdict that O&G was relieved of this obligation 

because Amtrak’s failure to adequately protect O&G workers amounted 

to a material breach of the contract between them. We now affirm the 

rulings of the district court. We also find that any error the 

district court committed by precluding appellant from 

cross-examining an employee of the appellee in the first phase of 

the trial (concerning the tort actions against Amtrak) and 

subsequently restricting appellant’s direct examination of the same 

employee in the second phase of the trial (concerning the indemnity 

claim against O&G) was harmless. Finally, we dismiss for want of 

appellate jurisdiction O&G’s challenges to the award of attorneys’ 

fees and costs. Dismissal does not affect our jurisdiction to review 

the merits of the other issues on appeal. Affirmed in part and 

dismissed in part. 

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KIMBERLY A. KNOX (Michael S. Taylor and Brendon P. Levesque, on 

the brief), Horton Shields & Knox, P.C., Hartford, Connecticut, 

and Jeffrey A. Blueweiss (on the brief), Bai, Pollock, 

Blueweiss & Mulcahey, Shelton, Connecticut, for Third-PartyDefendant Appellant. 

WILLIAM G. BALLAINE (Dawn Pinkston, of counsel, on the brief), 

Landman Corsi Ballaine & Ford, P.C., New York, New York, for 

Defendant-Third-Party-Plaintiff Appellee. 

FEINBERG, Circuit Judge: 

This case is procedurally complicated. The present appeal 

arises out of a third-party complaint brought by National Railroad 

Passenger Corporation (hereafter “Amtrak” or “appellee”) against O&G 

Industries, Inc. (hereafter “O&G” or “appellant”) in the United 

States District Court for the District of Connecticut (Dorsey, J.). 

In its complaint, Amtrak sought indemnification from O&G for any 

liabilities and costs, including attorneys’ fees, that Amtrak would 
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incur in two consolidated tort actions against it for wrongful death 

and personal injury damages resulting from a train accident.

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The proceedings in the district court included two rulings that 

O&G now appeals to this Court. First, before trial of the thirdparty indemnity action began, the district judge granted partial 

summary judgment to Amtrak on the basis of an explicit indemnity 

provision in a right-of-access contract between Amtrak and O&G. The 

court upheld the validity of the indemnity provision, ruling that 49 

U.S.C. § 28103(b) (hereafter “§ 28103(b)”) -- which allows rail 

passenger carriers to enter into liability-shifting agreements -- 

preempted Connecticut General Statute § 52-572k(a) (frequently 

referred to hereafter as the “Connecticut statute”). That statute 

prohibits, on public policy grounds, indemnity agreements entered 

into in connection with construction contracts, if they purport to 

shield the indemnitee from liability for its own negligence. O&G 

invoked the Connecticut statute to defeat Amtrak’s indemnity claim. 

See Roberts v. Nat’l R.R. Passenger Corp. v. O&G Indus., Nos. 3:04-

cv-1318, 3:04-cv-1622 & 3:04-cv-2195, 2006 WL 648212 (D. Conn. Mar. 

9, 2006). 

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 The two actions were Roberts v. Nat'l R.R. Passenger Corp., No. 

3:04-cv-1318 (D. Conn. filed Aug. 9, 2004), and Quintiliani v. Nat'l R.R. 

Passenger Corp., No. 3:04-cv-2195 (D. Conn. filed Dec. 29, 2004). A third 

action was brought against Amtrak by the Hartford Fire Insurance Company, 

as subrogee of O&G, for damage to O&G property caused by the train 

accident. See Hartford Fire Ins. Co. v. Nat’l R.R. Passenger Corp., No. 

3:04-cv-1622 (D. Conn. filed Sept. 28, 2004). This action was settled and 

is not part of the present appeal. 
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Second, the judge granted Amtrak's post-trial motion for 

judgment as a matter of law, setting aside a jury verdict that O&G 

was relieved of its obligation to indemnify Amtrak because of 

Amtrak’s material breach of the contract with O&G. Judge Dorsey held 

that Amtrak’s contractual default did not affect the validity of the 

indemnity agreement, which explicitly covered accidents attributable 

to Amtrak’s negligence. 

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108 See Roberts v. Nat’l R.R. Passenger Corp. v. 

O&G Indus., Nos. 3:04-cv-1318, 3:04-cv-1622 & 3:04-cv-2195, 2006 WL 

2621733 (D. Conn. Sept. 12, 2006). 

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 O&G argues on appeal that the district court erred in (1) 

granting partial summary judgment to Amtrak; (2) entering judgment 

for Amtrak as a matter of law; (3) curtailing O&G’s cross- and 

direct examination of an Amtrak employee during the trial; and (4) 

awarding Amtrak attorneys’ fees and defense costs without any 

evidence as to their amount and reasonableness. 

On the first and second of these issues, we affirm the district 

court. On the third, we find the limitations of O&G’s 

cross-examination rights by the district court, even if erroneous, 

were not substantially prejudicial to appellant. On the fourth 

issue, we conclude that we lack appellate jurisdiction over the 

district court’s non-final award of attorneys’ fees and costs. 

I. BACKGROUND 
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The accident that led to this litigation occurred in June 2004, 

while Gregory Roberts and Peter Quintiliani, carpenters employed by 

O&G, were installing wood planks on the underside of a highway 

bridge suspended over Amtrak's tracks in East Haven, Connecticut. An 

Amtrak diesel locomotive entered their worksite without warning and 

collided with the man-lift in which they were stationed. Amtrak’s 

on-site safety personnel were unable to prevent the accident, 

because they were unaware of the train’s scheduled passage through 

O&G’s work area, due to poor coordination with the office of 

Amtrak’s chief dispatcher in Boston. Furthermore, Amtrak’s 

employees, having already de-energized the tracks at the East Haven 

worksite so that no electric-powered train could pass, erroneously 

believed that the tracks had been placed out of service. Thus, they 

had not made a specific request to “foul” the tracks, i.e., render 

them completely inoperable until O&G’s crew had completed its work. 

At the time of the accident, therefore, none of O&G’s or Amtrak’s 

employees on duty at the site expected any train movement through 

the work zone.

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2 The collision killed Roberts instantly; Quintiliani 

was injured while jumping out of the lift. 

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 A more detailed description of the train accident can be found in 

the district court’s March 2006 ruling on the parties’ motions for 

summary judgment. See Roberts v. Nat’l R.R. Passenger Corp. v. O&G 

Indus., Nos. 3:04-cv-1318, 3:04-cv-1622 & 3:04-cv-2195, 2006 WL 648212 

(D. Conn. Mar. 9, 2006), 2006 WL 648212, at *1-3. We think it unnecessary 

to recount here all the factual circumstances surrounding the accident, 

because the crux of the dispute before us is Amtrak’s indemnity claim 

against O&G -- not responsibility for the accident, which Amtrak admitted 

at trial. 
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David Roberts (hereafter “Roberts”), the brother of the 

deceased O&G employee and administrator of his estate, filed in 

August 2004 a wrongful death action against Amtrak, seeking 

compensatory and punitive damages. The suit by Roberts was 

consolidated with Quintiliani’s personal injury action. After 

answering the two actions, Amtrak filed its third-party complaint 

against O&G. 

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The indemnity claim was based on a clause in the “Temporary 

Permit to Enter Upon Property” (hereafter “Permit”), a contract 

concluded between O&G and Amtrak in October 2003. Under the Permit, 

Amtrak allowed O&G access to Amtrak’s property in East Haven, in 

order to perform construction work in relation to O&G’s contract 

with the Connecticut State Department of Transportation regarding 

the re-building of a stretch of Interstate 95 between New Haven and 

Branford, Connecticut; consideration was $1. O&G, on its part, 

undertook to “use all necessary care and precaution to avoid 

accidents, delay or interference with [Amtrak's] trains or property” 

and abide by Amtrak's safety regulations. Pursuant to the Permit, 

Amtrak would provide, at its discretion and at O&G’s expense, “flag 

service and/or other protection” necessary to maintain the “safety 

and continuity of railroad traffic,” over which Amtrak retained 

exclusive control. However, the provision of “protective services” 

would “not relieve [O&G] from [its] complete responsibility for the 
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adequacy and safety of [its] operations.” A key feature of the 

Permit is the following provision: 

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The Permittee [O&G] shall defend, indemnify and hold harmless 

Railroad [Amtrak], its officers, directors, employees, agents, 

171 servants, successors, assigns and subsidiaries, irrespective of 

their negligence or fault, from and against any and all losses 

and liabilities, . . . claims, causes of action, suits, costs 

and expenses incidental thereto (

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attorney's fees), which any or all of them may hereafter incur, 

be responsible for, or pay as a result of injury, [or] death, . 

. . to any person . . . arising out of or . . . resulting from 

activities of or work performed by [O&G], its officers, 

employees, agents, servants, contractors, subcontractors, or 

any other person acting for or by permission of [O&G]. 

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181 foregoing obligation shall not extend to situations where the 

182 negligence or fault of Amtrak, its officers, directors, [or] 

183 employees . . . is the sole causal negligence or fault, except 

184 that it shall so extend to injury [or] death . . . to employees 

185 of [O&G], its agents, servants, contractors, subcontractors, or 

any other person acting for or by permission of [O&G]. The 

foregoing obligation shall not be limited by the existence of 

any insurance policy or by any limitation on the amount or type 

of damages, compensation, or benefits payable by or for [O&G] 

or any contractor or subcontractor, and shall survive the 

termination of this permit for any reason. 

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(Emphasis added.) In the district court, O&G argued that the above 

provision was invalid under Connecticut General Statute § 52-

572k(a), which declares void as against public policy agreements to 

indemnify a party against its own negligence, if such agreements 

were made “in connection with or collateral to” construction 

contracts. 

Before trial began on Amtrak’s indemnity claim, Amtrak sought 

summary judgment and orders directing O&G to defend Amtrak in the 

two tort actions and reimburse Amtrak’s reasonable attorneys' fees 

in defending against those claims. In March 2006, Judge Dorsey 
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granted Amtrak partial summary judgment, concluding that § 28103(b), 

which allows Amtrak to enter into indemnification agreements as to 

claims against it, preempted the Connecticut statute and allowed 

Amtrak to pursue its indemnity claim at trial. 

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 The jury trial of the consolidated actions by plaintiffs 

Roberts and Quintiliani against Amtrak began in March 2006. The 

first phase (“Phase I”) was limited to the issue of damages to be 

awarded to plaintiffs. Amtrak conceded negligence (but not 

recklessness). In April 2006, the jury awarded plaintiffs $1.425 

million each in compensatory damages, but rejected the punitive 

damages claims, finding that Amtrak's conduct was not willful or

reckless.3 At the end of the second phase of the trial (“Phase II”) 

concerning Amtrak’s third-party complaint against O&G, the jury 

found that O&G was excused from its obligation to indemnify Amtrak, 

because Amtrak's failure to provide O&G’s crew adequate on-site 

protection amounted to a material breach of the Permit, rendering it 

void in its entirety. 

 After this second verdict, Amtrak moved for judgment as a 

matter of law, under Federal Rule of Civil Procedure 50(b), arguing 

that there were no triable issues of fact as to the applicability of 

the indemnity clause in the Permit and, hence, O&G was required to 

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 The Roberts estate appealed from the judgment of the district court 

entered against Amtrak after the verdict. That appeal was heard by this 

panel the same day as the appeal now before us. In November 2007, we 

summarily affirmed the judgment of the district court. See Roberts v. 

Nat’l R.R. Passenger Corp., No. 06-3036-cv, 2007 WL 3230736 (2d Cir. Nov. 

1, 2007) (summary order). 
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indemnify Amtrak for litigation costs and damages awarded in the

underlying actions by Quintiliani and Roberts. In the alternative, 

Amtrak sought a new trial, under Rule 59(a), on whether a material 

contractual default nullified the entire Permit. 

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 In September 2006, the judge granted Amtrak's Rule 50(b) 

motion, concluding that Amtrak’s right to indemnity explicitly 

accrues, under the Permit, where Amtrak is found liable for injury 

to or death of an O&G employee solely caused by Amtrak’s own 

negligence or fault. See Roberts, 2006 WL 2621733, at *5-6. Allowing 

O&G to evade its indemnity obligations because of Amtrak’s 

negligence, the court reasoned, would “render the indemnification 

provision meaningless.” 

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In December 2006, the court entered judgment in favor of Amtrak 

in its indemnity action against O&G. This timely appeal by O&G 

followed.

II. DISCUSSION 

The parties to this appeal raise several issues. First, we must 

decide whether the Connecticut statute, which nullifies indemnity 

agreements insulating a contracting party from its own negligence,4

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(a) Any covenant, promise, agreement or 

understanding entered into in connection with or 

collateral to a contract or agreement relative to the 

construction, alteration, repair or maintenance of any 

building, structure or appurtenances thereto including 

moving, demolition and excavating connected therewith, 

that purports to indemnify or hold harmless the 
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applies, on its face, to the Permit; if it does, we must next 

examine whether § 28103(b), which permits Amtrak to enter into 

indemnification agreements,

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Second, in considering the district court's grant of Amtrak's motion 

for judgment as a matter of law, we must assess whether Amtrak’s 

conceded failure to effectively protect O&G’s crew constituted a 

material breach of the Permit, discharging O&G from its indemnity 

obligation. Third, we review the district court's decision to 

preclude O&G from cross-examining an Amtrak employee during Phase I 

of the trial, and the judge’s subsequent decision to restrict O&G's 

direct examination of the same employee during Phase II. Finally, we 

consider whether we have jurisdiction over the district court's nonquantified award to Amtrak of reasonable costs and attorneys' fees 

incurred in the defense of the Roberts and Quintiliani actions. 

 

259 A. Preemption

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 Our review of a grant of summary judgment under Rule 56 is 

plenary. “[S]ummary judgment is appropriate where there exists no 

promisee against liability for damage arising out of 

bodily injury to persons or damage to property caused 

by or resulting from the negligence of such promisee, 

such promisee's agents or employees, is against public 

policy and void, provided this section shall not affect 

the validity of any insurance contract, workers' 

compensation agreement or other agreement issued by a 

licensed insurer. 

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 49 U.S.C. § 28103(b) provides: 

A provider of rail passenger transportation may 

enter into contracts that allocate financial 

responsibility for claims. 
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genuine issue of material fact and, based on the undisputed facts, 

the moving party is entitled to judgment as a matter of law.” 

D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). We 

view the facts in the light most favorable to the nonmoving party 

and resolve all factual ambiguities in its favor. 

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266 Cioffi v. Averill 

Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir. 

2006).

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1) Applicability of the Connecticut Statute 

In its appeal, O&G relies heavily on the Connecticut statute. 

In response, Amtrak claims for the first time that the Connecticut 

statute does not apply to the Permit because it allegedly bars 

indemnity agreements only if inserted in construction contracts. 

Amtrak argues that the Permit was not such a contract. In the 

district court, however, Amtrak did not contest the applicability of 

the Connecticut statute, although it had ample opportunity to do so. 

Under the circumstances, Amtrak has waived that argument and cannot 

raise it on appeal. See Greene v. United States, 13 F.3d 577, 586 

(2d Cir. 1994) (citing 

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Singleton v. Wulff, 428 U.S. 106, 120 

(1976)).

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6 Therefore, we proceed with the preemption question on the 

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 Our refusal to consider Amtrak’s waived argument on the 

applicability of the Connecticut statute is of little importance to the 

final disposition of the case. As set forth below, we agree with the 

district court’s finding that the Connecticut statute is preempted by 

federal law and thus does not invalidate the indemnity clause in the 

Permit. 
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assumption that the Connecticut statute applies, unless it is 

preempted. 

2) Preemption by § 28103(b) 

Section 28103 of Title 49 of the United States Code was enacted 

as part of the Amtrak Reform and Accountability Act of 1997 

(hereafter the “Reform Act”). Subsection (b) of § 28103 provides 

that “[a] provider of rail passenger transportation may enter into 

contracts that allocate financial responsibility for claims.” Amtrak 

argues that this subsection was intended to allow it to enter into 

enforceable indemnity agreements not voidable under state law. In 

Amtrak’s view, § 28103(b) is at odds with and preempts the 

Connecticut statute. 

O&G counters that § 28103(b) applies only to indemnity 

agreements (1) regarding claims brought by passengers and (2) 

concluded between passenger rail carriers like Amtrak and freight 

railroads. Because Gregory Roberts and Quintiliani were not Amtrak 

passengers, and the indemnity agreement was between Amtrak and O&G, 

a construction company rather than a freight railroad company, O&G 

maintains that § 28103(b) is not applicable and does not supersede 

the Connecticut statute. In support of its arguments, O&G points to 

subsection (a) of § 28103, which governs the issue of punitive 

damages to be awarded in relation to passenger claims for personal 
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injury, wrongful death or property damage,7 and to the legislative 

history of § 28103(b). 

Federal preemption of state law is a doctrine grounded in the 

Supremacy Clause of the Constitution. See U.S. Const. Art. VI, cl. 2 

("[T]he Laws of the United States . . . made in Pursuance [of the 

Constitution] shall be the supreme Law of the Land . . . any Thing 

in the Constitution or Laws of any State to the Contrary 

notwithstanding."). The doctrine requires us first to ascertain 

congressional intent, which is “‘the ultimate touchstone’ of preemption analysis.” 

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See Cipollone v. Liggett Group, Inc., 505 U.S. 

504, 516 (1992) (quoting 

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Malone v. White Motor Corp., 435 U.S. 497, 

504 (1978)). Intent to preempt state law may be found “(1) where 

Congress expressly states its intent to preempt; (2) where 

Congress's scheme of federal regulation is sufficiently 

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 That subsection provides: 

(a) Limitations. 

--(1) Notwithstanding any other statutory or common law 

or public policy, or the nature of the conduct giving rise to 

damages or liability, in a claim for personal injury to a 

passenger, death of a passenger, or damage to property of a 

passenger arising from or in connection with the provision of 

rail passenger transportation, . . . punitive damages, to the 

extent permitted by applicable State law, may be awarded in 

connection with any such claim only if the plaintiff 

establishes by clear and convincing evidence that the harm 

that is the subject of the action was the result of conduct 

carried out by the defendant with a conscious, flagrant 

indifference to the rights or safety of others. If, in any 

case wherein death was caused, the law of the place where the 

act or omission complained of occurred provides, or has been 

construed to provide, for damages only punitive in nature, 

this paragraph shall not apply. 

(2) The aggregate allowable awards to all rail 

passengers, against all defendants, for all claims, including 

claims for punitive damages, arising from a single accident 

or incident, shall not exceed $200,000,000. 
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comprehensive to give rise to a reasonable inference that it leaves 

no room for the state to act; and (3) where state law actually 

conflicts with federal law.” Marsh v. Rosenbloom, 499 F.3d 165, 177 

(2d Cir. 2007) (citing 

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Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 

U.S. 272, 280 (1987)). 

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 As the district court correctly concluded, § 28103(b) does not 

expressly preempt state law, nor is it “so pervasive as to make 

reasonable the inference that Congress left no room for the states 

to supplement it.” Roberts, 2006 WL 648212, at *10. Preemption can 

thus be found here only if the Connecticut statute conflicts with § 

28103(b), i.e., if compliance with both statutes is impossible, or 

if the Connecticut statute “‘stands as an obstacle to the 

accomplishment and execution of the full purposes and objective of 

Congress.’” 

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332 United States v. Locke, 529 U.S. 89, 109 (2000) (quoting 

333 California v. ARC Am. Corp., 490 U.S. 93, 100-101 (1989)). 

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 O&G first contends that no irreconcilable conflict exists 

between the federal and the Connecticut statutes, because Congress 

intended § 28103(b) to apply only to passenger claims. The argument 

is unavailing. The subsection contains no such limitation on its 

face and indeed makes plain that Amtrak may enter into contracts 

allocating financial responsibility (i.e., indemnity agreements) for 

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Furthermore, if Congress intended § 28103(b) to apply only to 

passenger claims, it would have included such qualifying language in 
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the definition of the term “claims.” Congress did not do so. The 

definition in subsection (e) of § 28103 is sufficiently broad to 

encompass any claims asserted against Amtrak -- not only those by 

passengers.8 Subsection (e) defines the persons or entities against

whom a claim may be pursued, but does not limit the class of 

claimants. Because the language is unambiguous on this point, we 

349 cannot “supply that which is omitted by the legislature.” Spielman 

v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 332 F.3d 116, 127 

(2d Cir. 2003). 

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 The title of § 28103 –- “Limitations on rail passenger 

transportation liability” –- is of little aid to O&G’s proposition 

that the statute covers only passenger claims. “[A] title . . . 

355 cannot limit the plain meaning of unambiguous text.” Collazos v. 

United States, 368 F.3d 190, 196 (2d Cir. 2004)(omission in 

original) (internal quotation marks omitted). 

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358 We conclude that § 28103(b), read in the context of the whole 

section, see Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 

529 U.S. 120, 133 (2000), authorizes Amtrak’s entry into 

indemnification agreements for any claim filed against it, including 

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 49 U.S.C. § 28103(e) states: 

 

Definition.-- For purposes of this section -- 

(1) the term "claim" means a claim made-- 

(A) against Amtrak, any high-speed railroad authority 

or operator, any commuter authority or operator, any rail 

carrier, or any State; or 

(B) against an officer, employee, affiliate engaged in 

railroad operations, or agent, of Amtrak, any high-speed 

railroad authority or operator, any commuter authority or 

operator, any rail carrier, or any State. 
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tort claims by contractor employees. This permissive mandate can 

hardly be reconciled with the prohibition of the Connecticut 

statute. 

 O&G also argues that the scope of § 28103(b) only extends to 

indemnity agreements between Amtrak and the freight railroad 

companies that own most of the rail lines on which Amtrak operates 

and are reluctant to shoulder liabilities stemming from the use of 

their tracks by passenger trains. This claim is equally unpersuasive 

because of the unambiguous text of § 28103(b) for the reasons set 

forth above, and we rest our conclusion that § 28103(b) preempts the 

Connecticut statute on that ground. 

 Nonetheless, O&G’s argument that congressional intent, as 

evidenced by the legislative history of § 28103(b), counsels a 

different result is meritless. Because Amtrak is a passenger rail 

provider mostly operating on track systems owned by freight 

railroads, the protection afforded by § 28103(b) will most likely 

apply to indemnity agreements with freight railroads. As a result, 

many of the congressional sponsors of the Reform Act frequently 

referred in their discussions to the liability allocation agreements 

between Amtrak and host freight railroads. That said, we find no 

evidence of congressional intent that § 28103(b) apply only in that 

particular set of circumstances. Rather, the goal of the Reform Act 

was to shield 

382 

383 

all of Amtrak's indemnity arrangements from legal 

attacks on their validity. 

384 

385 See Symposium: The State of the Law in 
17

the Railroad Indus., 26 Transp. L.J. 319, 336-37 (1999) (“Congress . 

. . encouraged all providers of rail passenger transportation to 

enter into contracts that allocate financial responsibility for 

claims. Resolving an issue that had plagued freight railroads that 

host Amtrak trains, Congress also affirmed the enforceability of 

contracts that include indemnification obligations.”). 

386 

387 

388 

389 

390 

391 

392 

393 

394 

395 

396 

 The legislative history of § 28103(b) is illuminating. 

Congressional debates reveal legislative concern about Amtrak’s 

financial problems and intention to support Amtrak’s contractual 

arrangements designed to reduce its liability exposure. The Reform 

Act was meant, among other things, to ensure the enforceability of 

indemnity agreements Amtrak concludes with any other party. The 

Senate Committee Report is categorical in that regard: 

397 

398 

399 [T]his bill clarifies that indemnification agreements 

400 related to the provision of rail passenger service entered 

into by Amtrak and other parties would be enforceable. The 

Committee has been requested by Amtrak to include this 

provision in order to 

401 

402 

403 aid Amtrak in achieving operating 

self-sufficiency. . . . As long as there is the 

possibility that state laws governing indemnification 

contracts may make these contracts unenforceable, Amtrak 

and a freight railroad may find themselves litigating with 

each other. Amtrak believes that such litigation 

inevitably would not only adversely impact business 

relationships between Amtrak and the host freight 

railroads, but it 

404 

405 

406 

407 

408 

409 

410 

411 would also lead to significantly higher 

412 outlays in settlements and judgments to plaintiffs. 

413 

414 

415 

416 

S. Rep. No. 105-85, at 5 (1997) (emphasis added). Congress 

unmistakably intended “[t]he language in section 28103(b) . . . to 

confirm that such contractual agreements [i.e. indemnification 
18

417 

418 

419 

420 

421 

422 

423 

424 

425 

426 

agreements] are consistent with Federal law and public policy.” 143 

Cong. Rec. S11937-03 (statement of Sen. Lott). O&G’s interpretation 

of the statute’s legislative history would be inconsistent with the 

stated objective of § 28103(b) to solidify the enforceability of 

Amtrak’s liability-shifting arrangements. 

When the Reform Act was passed, Amtrak was in the middle of “a 

financial crisis, with growing and substantial debt obligations 

severely limiting its ability to cover operating costs and 

jeopardizing its long-term viability.” Amtrak Reform and 

Accountability Act of 1997, §2(2), Pub. L. No. 105-134, December 2, 

1997, 111 Stat. 2570, at *2571; see also 143 Cong. Rec. S11929-03 

(statement of Sen. McCain) (“Amtrak is on the verge of bankruptcy. 

Fundamental reforms are needed immediately if there is to be any 

possibility of addressing Amtrak's financial crisis and turning it 

into a viable operation.”). The Reform Act clearly reflects 

Congress’s distress over Amtrak’s financial burdens: in 49 U.S.C. § 

28103(a), Congress limited the award of punitive damages, in actions 

“arising from . . . the provision of rail passenger transportation,” 

to cases where the defendant was proven to have “a conscious, 

flagrant indifference to the rights or safety of others.” 49 U.S.C. 

§ 28103(a)(1). In a similar vein, Congress placed a $200 million cap 

on Amtrak’s aggregate liability from any single accident. 

427 

428 

429 

430 

431 

432 

433 

434 

435 

436 

437 

Id. § 

28103(a)(2). 

438 

439 
19

440 

441 

442 

443 

444 

445 

446 

447 

 Against this legislative background, contentions that Congress 

intended to allow state law or public policy to interfere with 

Congress’s attempt to rescue Amtrak are simply not persuasive. We 

believe that we must enforce and recognize the validity of the 

indemnity provision in the Permit. Applying the Connecticut statute 

would violate the plain language and spirit of § 28103(b), which 

therefore preempts the Connecticut statute. 

448 B. Material Breach of the Permit

449 

450 

451 

452 

453 

454 

455 

456 

 At the conclusion of Phase II of the trial, the jury found 

that, under the indemnity provision in the Permit, O&G was required 

to reimburse Amtrak for costs incurred and damages awarded in the 

Roberts and Quintiliani actions, but that Amtrak’s material breach 

of the Permit relieved O&G of all its contractual duties, including 

the obligation to indemnify Amtrak. However, the district judge 

overturned the jury verdict, ruling that as a matter of law O&G’s 

contractual obligation to indemnify Amtrak was valid regardless of 

Amtrak’s negligence. See Roberts, 2006 WL 2621733, at *5-7. O&G now 

challenges this ruling, arguing that the jury properly found that 

Amtrak's violation of its duty to protect O&G's workers from passing 

trains resulted in termination of the entire Permit and O&G’s 

indemnity obligation thereunder. We review 

457 

458 

459 

460 

de novo the district 

court's grant of a post-verdict judgment to Amtrak as a matter of 

law, considering the evidence in the light most favorable to O&G, 

461 

462 

463 
20

the nonmoving party. Zellner v. Summerlin, 494 F.3d 344, 371 (2d 

Cir. 2007). 

464 

465 

466 

467 

468 

469 

 “[A] material breach is a failure to do something that is so 

fundamental to a contract that the failure to perform that 

obligation defeats the essential purpose of the contract or makes it 

impossible for the other party to perform under the contract.” 23 

Williston on Contracts § 63:3 (4th ed. 2007) (footnotes and internal 

quotation marks omitted). Under Connecticut law, an uncured, 

material failure of performance by one contracting party discharges 

the other party from any further performance under the contract, 

which is rendered unenforceable 

470 

471 

472 

473 

in toto. See Bernstein v. Nemeyer, 

570 A.2d 164, 168 (Conn. 1990). 

474 

475 

476 

477 

478 

479 

480 

481 

482 

483 

It is uncontroverted that O&G complied with its obligations 

under the Permit to perform its work on Amtrak’s property so as to 

observe Amtrak's safety regulations and not “interfere with 

[Amtrak’s] operations.” By contrast, Amtrak’s failure to provide 

adequate protection to O&G’s workers, O&G claims, negated the 

Permit’s purpose and amounted to a material breach. The district 

court rejected this claim because of the unambiguous language of the 

indemnity agreement, which the court held squarely applicable to the 

undisputed facts of the case. See Roberts, 2006 WL 2621733, at *6 

(“The argument lacks merit, however, because the factual situation 

on which O&G relies for being excused from its obligation is exactly 

the factual situation which gives rise to that obligation.”). 

484 

485 

486 

487 
21

 We agree with the district judge’s holding. Not only is the 

indemnity clause not qualified by or conditioned on Amtrak's 

obligation to operate its trains safely through the worksite, but it 

explicitly provides Amtrak with a right to indemnity even where “the 

negligence or fault of Amtrak [or] its . . . employees” is the 

488 

489 

490 

491 

sole

cause of “injury, death, disease, or occupational disease to 

employees of” O&G.

492 

493 

494 

495 

496 

497 

498 

499 

9 O&G cannot circumvent its indemnity obligation by 

invoking Amtrak’s negligence, which the parties envisaged and 

clearly determined would not exonerate O&G from its contractual 

duties. As Judge Dorsey emphasized, if O&G is allowed to evade its 

obligation to hold Amtrak harmless, “Amtrak’s protection against 

ultimate responsibility for any unsafe train operation, as provided 

in the Permit, would be nullified.” Id. at *6. Since the indemnity 

provision expressly contemplates the factual situation that arose 

here (i.e., Amtrak’s negligence was the sole cause of injury and 

death to O&G’s employees), Amtrak’s failure to safely operate its 

trains through O&G’s work zone could not have thwarted the Permit’s 

essential purpose. 

500 

501 

502 

503 

504 

505 

506 

507 

508 

509 

510 

 

A reading of the Permit as a whole suggests, in fact, that at 

the core of the agreement was the parties’ preoccupation with the 

“safety and continuity of railroad traffic,” rather than the safety 

of O&G’s personnel. The emphatic references to O&G’s undertaking to 

take all measures necessary to avoid undue interference with train 

9

 The indemnity provision is quoted in full in section I of the 

opinion, see supra at p.__. Its applicability in this case has not been 

called into question by the parties. 
22

511 

512 

513 

514 

515 

516 

517 

518 

519 

520 

521 

522 

523 

524 

525 

526 

527 

528 

529 

530 

531 

532 

operations and its “complete responsibility for the adequacy and 

safety of” its activities suggest that the Permit was drafted with a 

principal focus on Amtrak’s interests. Even Amtrak’s promise to 

furnish protection was aimed at ensuring the safety and continuity 

of railroad traffic and would come into play only if, in the opinion 

of Amtrak’s officers, “conditions warrant” it, and under the 

condition that O&G would bear all the costs. It is a fair inference 

that the essential purpose of the Permit was not to guarantee the 

safety of O&G’s employees, but rather to authorize O&G’s temporary 

access to Amtrak’s property while reassuring Amtrak that O&G’s 

presence on its property would neither disrupt train operations nor 

damage Amtrak’s trains and facilities. Amtrak’s negligent failure to 

provide adequate protection to O&G’s workers did not vitiate this 

purpose. 

 O&G does not claim that every negligent act by Amtrak would 

constitute a material breach of the Permit. According to O&G, there 

could be situations involving negligent acts by Amtrak 

representatives that, nevertheless, would be covered by the 

indemnity provision without necessarily amounting to a breach of a 

fundamental contractual term. For example, O&G claims, “an Amtrak 

employee could accidentally strike someone with a tool or a piece of 

equipment, or could dig a hole into which an individual might fall.” 

533 See Br. of Appellant at 36. 
23

534 

535 

536 

537 

538 

539 

540 

541 

542 

543 

544 

545 

 The breadth of the indemnity provision refutes the distinction 

O&G seeks to introduce. The provision does carve out of its reach 

some situations where Amtrak’s negligence is the sole cause of the 

indemnifiable loss, but O&G’s obligation to indemnify Amtrak 

explicitly extends to instances of “injury, death, disease, or 

occupational disease to employees of [O&G]” exclusively caused by 

Amtrak's negligence or fault. If Amtrak’s obligation to protect 

O&G’s employees were a centerpiece of the Permit, and default of 

this obligation were intended to invalidate the Permit in its 

entirety, the parties could have made this clear by, for example, 

including a termination clause in the Permit. Absent any stipulation 

or indication to that effect, we cannot “unmake” the bargain the 

546 parties struck, “whether provident or improvident.” Tallmadge Bros., 

Inc. v. Iroquois Gas Transmission Sys., L.P., 746 A.2d 1277, 1292 

(Conn. 2000) (internal quotation marks omitted). “Where the language 

of the contract is clear and unambiguous, the contract is to be 

given effect according to its terms.” 

547 

548 

549 

550 Pesino v. Atl. Bank of New 

York, 709 A.2d 540, 545 (Conn. 1998) (internal quotation marks 

omitted). Under the circumstances of this case, a finding of 

material breach of the Permit would be incompatible with its plain 

language. 

551 

552 

553 

554 

555 

556 

557 

 “Simply stated, . . . the evidence [here] is such that, without 

. . . considering the weight of the evidence, there can be but one 

conclusion as to the verdict that reasonable men could have 
24

reached.” Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970). 

Accordingly, we affirm the district court's grant of judgment to 

Amtrak as a matter of law and hold that, regardless of Amtrak’s 

negligence in causing the accident, O&G bears the valid obligation 

to indemnify Amtrak for the damages awarded to Quintiliani and 

Roberts. 

558 

559 

560 

561 

562 

563 

564 

565 C. Cross-Examination of Amtrak's Employee by O&G

566 

567 

568 

569 

570 

571 

572 

573 

574 

575 

576 

577 

578 

579 

580 

581 

 The district court permitted O&G to participate in Phase I of 

the trial, in which plaintiffs Roberts and Quintiliani sued 

defendant Amtrak. The judge’s rationale was that evidence presented 

in relation to plaintiffs’ claims against Amtrak might well bear on 

Amtrak’s indemnity claim against O&G. Nevertheless, the judge did 

not permit O&G's counsel to cross-examine Amtrak's New England 

Division Superintendent Fred Fournier. O&G’s stated reason for 

cross-examining Fournier was to elicit testimony tending to prove 

that O&G was not at fault for the accident, which was entirely 

attributable to Amtrak's reckless conduct. O&G argues that a showing 

of Amtrak’s recklessness would enable O&G to avoid its indemnity 

obligations on public policy grounds. Judge Dorsey’s reasoning for 

denying O&G’s request to cross-examine Fournier was that issues 

pertaining to O&G's role in the accident would be addressed in Phase 

II. O&G was told that it would have ample opportunity to present its 

recklessness defense at that time. However, when O&G attempted to 
25

582 

583 

584 

585 

586 

587 

588 

589 

590 

591 

592 

593 

594 

595 

596 

597 

598 

599 

600 

601 

question Fournier in Phase II of the trial about whether Amtrak 

followed proper internal procedures to avert safety risks to O&G’s 

on-site employees, the court sustained Amtrak’s objection to this 

line of questioning. The judge noted that the jury had already 

resolved the issue of Amtrak’s fault in Phase I of the trial. 

 O&G now claims that by precluding its cross-examination of 

Fournier in Phase I and limiting its questioning of the same witness 

in Phase II of the trial, the district judge prevented O&G from 

fully litigating the question of Amtrak's recklessness -- on which 

one of O&G’s defense was premised -- and thus deprived it of its 

cross-examination rights. The error, according to O&G, warrants a 

new trial. 

 As a preliminary matter, we reject Amtrak's contention that 

this claim has not been preserved for appellate review. O&G 

repeatedly objected to the court's limitations on its examination of 

Fournier, articulating the concern that, if the jury found no 

recklessness by Amtrak in Phase I, that issue would be barred from 

jury consideration in Phase II. 

We turn to the merits of O&G’s claim. “Whether an evidentiary 

error implicates a substantial right depends on ‘the likelihood that 

602 the error affected the outcome of the case.’” See Tesser v. Bd. of 

603 Educ., 370 F.3d 314, 319 (2d Cir. 2004) (per curiam) (quoting Malek 

v. Fed. Ins. Co., 994 F.2d 49, 55 (2d Cir. 1993)); see also Fed. R. 

Civ. P. 61 (“Unless justice requires otherwise, no error . . . by 

604 

605 
26

606 

607 

608 

609 

610 

611 

612 

613 

614 

615 

616 

617 

618 

619 

620 

the court . . . is ground for granting a new trial, . . . or 

otherwise disturbing a judgment or order. At every stage of the 

proceeding, the court must disregard all errors and defects that do 

not affect any party’s substantial rights.”) 

 We believe that the court’s alleged error did not have a 

substantial impact on the outcome of the case. O&G's interests were 

adequately protected by Roberts and Quintiliani, the plaintiffs in 

Phase I. These parties were seeking punitive damages from Amtrak and 

thus had an equal, if not greater, incentive than O&G to show that 

Amtrak's conduct was reckless. The question of Amtrak’s recklessness 

was adequately litigated by Roberts and Quintiliani and there is no 

indication that the jury would have found recklessness, had O&G been 

allowed to cross-examine Fournier. The limitation of O&G’s 

cross-examination rights, even if erroneous, did not cause any 

prejudice to O&G, because “it is [not] likely that in some material 

respect the factfinder's judgment was swayed by the error.” Tesser, 

370 F.3d at 319 (internal quotation marks omitted). 

621 

622 See also United 

States v. Thomas, 274 F.3d 655, 668 (2d Cir. 2001) (en banc) (“An 

error affects a defendant's substantial rights if it is prejudicial 

and it affected the outcome of the district court proceedings”) 

(internal quotation marks omitted). 

623 

624 

625 

626 

627 

628 

629 

Furthermore, even supposing the district judge had not 

restricted O&G’s examination of Fournier in Phase I, and that O&G 

had convinced the jury that Amtrak’s conduct was reckless, it is 
27

630 

631 

doubtful that the outcome of the case would have been more favorable 

to O&G. The indemnity provision in the Permit unequivocally requires 

O&G to reimburse Amtrak for all the losses Amtrak may sustain as a 

result of death or injury to O&G’s employees, even when Amtrak’s own 

negligence 

632 

633 

or fault is the sole cause of the incident. The 

unmistakable wording of the clause would thus not allow O&G to 

nullify its obligation to indemnify Amtrak, even if the jury had 

entered a punitive damages award against Amtrak on recklessness 

grounds. 

634 

635 

636 

637 

638 

639 

640 

641 

642 

643 

O&G argues to us that, had it been allowed to fully participate 

in Phase I of the trial, and had the jury found Amtrak’s conduct 

reckless, O&G would have been relieved of its duty to hold Amtrak 

harmless, by raising a public policy defense against enforcement of 

the indemnity agreement. We disagree. We have already held in this 

opinion (see Part II.A, supra) that the Connecticut statute 

embodying the public policy of Connecticut against indemnification 

for liabilities due solely to the negligence of the indemnitee

644 

645 

646 

647 

648 

10 is 

preempted by § 28103(b). Subsection § 28103(b) also superseded the 

opinion that would have been most helpful to O&G in its public 

649 policy defense against indemnification for reckless conduct. See

Nat’l R.R. Passenger Corp. v. Consol. Rail Corp. (“ConRail”), 698 F. 

Supp. 951 (D.D.C. 1988) (invalidating an agreement to indemnify for 

losses caused by the indemnitee’s gross negligence, as contrary to 

District of Columbia public policy), 

650 

651 

652 

653 vacated on other grounds, 892 

 10 See supra note 3. 
28

654 

655 

F.2d 1066 (D.C. Cir. 1990). As Judge Dorsey correctly noted in 

granting summary judgment to Amtrak, it was precisely the doubts 

cast by the ConRail decision over the validity of indemnity 

agreements by railroad parties that prompted Congress to enact § 

28103(b). 

656 

657 

See Roberts, 2006 WL 648212, at *11. The broad, 

unqualified language in § 28103(b) leaves no doubt as to the 

specific intent of Congress to sanction indemnity arrangements 

between Amtrak “and other parties” with respect to any claims 

against Amtrak. 

658 

659 

660 

661 

See S. Rep. No. 105-85, at 5 (1997). A finding of 

recklessness in Phase I, therefore, would have resulted in a higher 

jury verdict against Amtrak in the underlying actions against it in 

Phase I of the trial. This would most probably have permitted Amtrak 

to obtain greater recovery from O&G under the Permit; public policy 

considerations would not have precluded enforcement of the express 

direction of the indemnity provision. 

662 

663 

664 

665 

666 

667 

668 

 In view of the above, we hold that, assuming arguendo that the 

district judge erred in preventing O&G from cross-examining Fournier 

in Phase I and from fully pursuing its recklessness defense in Phase 

II, the error was not prejudicial to O&G in the context of the trial 

as a whole and does not justify a new trial. 

669 

670 

671 

672 

673 

674 

675 D. Attorneys' Fees

676 

677 

 In granting Amtrak's Rule 50(b) motion for judgment as a 

matter of law, the district judge held that, under the indemnity 
29

678 

679 

680 

681 

682 

683 

684 

685 

686 

687 

688 

689 

agreement, Amtrak was entitled to reimbursement of its attorneys’ 

fees, as well as the costs it incurred in Phase I of the trial, in 

defense of the actions brought by Roberts and Quintiliani. The 

judge, however, did not set the amount of attorneys’ fees and 

litigation costs for which O&G was required to indemnify Amtrak. O&G 

now argues that the district court abused its discretion in awarding 

attorneys’ fees and costs where there was no evidence as to the 

amount or reasonableness of these expenses. Amtrak responds that the 

amount of fees due would be ascertained by the district judge only 

after liability for such fees was determined. 

 Pursuant to 28 U.S.C. § 1291, we review only final decisions of 

the district court that “leave[] nothing for the court to do but 

execute the judgment.” Catlin v. United States, 324 U.S. 229, 233 

(1945). A non-quantified award of attorneys’ fees and costs is not 

appealable until the amount of the fees has been set by the district 

court. “We have held that where attorneys’ fees are a contractually 

stipulated element of damages, a judgment is not final until the 

fees have been determined.” 

690 

691 

692 

693 

694 

695 F.H. Krear & Co. v. Nineteen Named 

696 Trustees, 776 F.2d 1563, 1564 (2d Cir. 1985) (per curiam); see also

Honeywell Int'l, Inc. v. Purolator Prods. Co., 468 F.3d 162, 164 (2d 

Cir. 2006). This circuit, moreover, has “rejected the doctrine of 

pendent appellate jurisdiction as a basis to review an undetermined 

award of attorneys’ fees, even when the question of liability for 

the fees had been consolidated with other decisions that were 

697 

698 

699 

700 

701 
30

final.” Krumme v. WestPoint Stevens Inc., 143 F.3d 71, 87 (2d Cir. 

1998) (citing 

702 

Cooper v. Salomon Bros., 1 F.3d 82, 85 (2d Cir. 

1993)). We therefore dismiss for lack of appellate jurisdiction the 

portion of O&G’s appeal challenging the district court’s grant of 

attorneys’ fees and costs incurred in Phase I of the trial. 

703 

704 

705 

706 

707 

708 

709 

710 

 This defect does not impair the finality of the district 

court’s ruling on Amtrak’s motion for judgment as a matter of law, 

nor does it divest us of jurisdiction to review the merits of the 

other issues on appeal. In reaching this conclusion, we apply the 

711 “bright-line rule” enunciated by the Supreme Court in Budinich v. 

Becton Dickinson & Co., 486 U.S. 196 (1988), “that a decision on the 

merits is a ‘final decision’ for purposes of [28 U.S.C.] § 1291 

whether or not there remains for adjudication a request for 

attorney's fees.” 

712 

713 

714 

Id. at 202-03.11 715 

716 

717 

 

III. CONCLUSION 

11 Some of our pre-Budinich precedent might be read to support the 

proposition that the non-finality of an award of attorneys’ fees sought 

as an element of contractual damages renders non-appealable the entire 

judgment in which such award is incorporated. See, e.g., Union Tank Car 

Co. v. Isbrandtsen, 416 F.2d 96 (2d Cir. 1969) (per curiam). However, we 

heed the Supreme Court’s admonition in Budinich that “no interest 

pertinent to § 1291 is served by according different treatment to 

attorney's fees deemed part of the merits recovery,” and abide by the now 

“uniform rule that an unresolved issue of attorney’s fees . . . does not 

prevent judgment on the merits from being final.” Budinich, 486 U.S. at 

202. Application of this sensible rule also promotes the interests of 

judicial economy, especially in this case where resolution of the 

“question remaining to be decided . . . will not alter . . . or revise” 

the court’s final rulings on the merits of the other issues on appeal. 

Id. at 199. Treating the district court’s grant of Amtrak’s Rule 50(b) 

motion as non-final and remanding the entire case to the district court 

would only cause further delays in the disposition of this long-pending 

case. 
31

718 

719 

720 

721 

722 

We have considered all of appellant O&G’s arguments and find 

them to be without merit. For the reasons discussed above, we affirm 

the district court on all issues except for the ruling on attorneys' 

fees, over which we lack appellate jurisdiction. AFFIRMED IN PART 

AND DISMISSED IN PART.