Fаrmers Union Oil Company (Farmers Union) and Burlington Northern Railroad Company (BN) are parties to an industrial track lease agreement that contains an indemnity clause that requires Farmers Union to indemnify BN for certain losses that BN suffers. The district court 2 determined that this clause was triggered by an accident that occurred near Farmers Union’s leased premises, and it therefore ordered Farmers Union to pay BN $200,-000 in indemnity and $75,302.83 in attorney fees and costs. Farmers Union appeals, and we affirm.
*530 I.
BN owns and operates railroad tracks near Rolla, North Dakota. Along a spur of these tracks, Rolla Cooperative Grain Elevator (Rolla Grain) maintains three grain storage units. Also along this spur, and immediately adjaсent to Rolla Grain’s facilities, Farmers Union operates a fertilizer plant. Both Farmers Union and Rolla Grain entered into track lease agreements with BN. The agreements contain identical indemnity clauses that provide:
Lessee also agrees to indemnify and hold harmless Lessor for loss, damage, injury or death from any act or omission of Lesseе, Lessee’s invitees, licensees, employees, or agents, to the person or property of the parties hereto and their employees and to the person or property of any other person or corporation while on or near said premises; and if any claim or liability, other than from fire, shall arise from the joint or cоncurring negligence of both parties hereto,it shall be borne by them equally.
At issue in this case is whether an accident that occurred near Farmers Union’s leased premises on April 13, 1987, triggered the indemnity clause within Farmers Union’s lease agreement.
Sometime between April 9 and April 12, 1987, Farmers Union received two railroad cars carrying fertilizer. While unloading the cars, Farmers Union employees noticed that the brake on one of the cars was sticking. The employees did not notify BN of the defect, but they did warn Fred Roy, a Rolla Grain employee, about the brake. Roy had come to Farmers Union to transport the two empty cars to Rolla Grain, where they would be loaded with grain, as was commonly donе with cars received and emptied by Farmers Union. Roy transported and filled the two cars without incident. Shortly thereafter, BN delivered 26 or 27 empty cars to Rolla Grain. One or two of the cars were coupled on one end of the cars Roy had received from Farmers Union and the remainder were coupled on the other end.
The following Mondаy, Roy and Teddy Cahill, another Rolla Grain employee, began loading the empty cars that BN had delivered. To do so, Cahill positioned himself on the top of the cars, while Roy remained on the ground and rolled the cars forward once they were filled. After filling and moving one or two of the empty cars, Roy had difficulty with the brake on the next car, which was numbеred FLIX 12331 (the FLIX car). BN contends that this troublesome car was one of the two cars that Rolla Grain had received from Farmers Union and which Roy had filled a few days earlier. Farmers Union, in contrast, asserts that the FLIX car was one which BN had delivered directly to Rolla Grain. In any event, Roy asked Cahill to come down and help him release the brake. After doing so, and as he was attempting to resume his position atop the empty cars, Cahill slipped and fell under another car that Roy had started to roll down the tracks, suffering severe injuries as a result.
Cahill sued BN, claiming that it had supplied a defective car and that this car was a significant cause of his injuries. BN tendered defense of Cahill’s suit to Farmers Union on the theory that its failure to notify BN of the faulty brake constituted an act or omission that triggered the lease’s indemnity clause. BN also tendered defense to Rolla Grain. Both parties declined the tender. BN then settled with Cahill for $400,000 and sought $200,-000 each from Farmers Union and Rolla Grain. Farmers Union refused to pay, whereupon BN instituted this diversity action.
The district court granted summаry judgment in favor of Farmers Union after finding that the Cahill accident did not occur “on or near” Farmers Union’s property, as is required to trigger the indemnity clause. We reversed, finding that the accident did occur near the leased premises, and remanded for a determination as to whether the other predicates for trig
*531
gering the indemnity clause — an “act оr omission” by Farmers Union that caused Cahill’s injury — had occurred.
See Burlington Northern R. Co. v. Farmers Union Oil Co.,
II. The Indemnification Award
A. BN’s Right to Indemnification
A lessee’s obligation to indemnify a railroаd under a track lease agreement “is a contractual duty and not a duty arising under the common law of tort.”
Burlington Northern, Inc. v. Bellaire Corp.,
The district court found that the FLIX car was one of the two cars that had been delivered to Farmers Union a few days prior to the accident. The court also found that Farmers Union’s failure to notify BN of this car’s defective brakes constituted an act or omission that contributed to Cahill’s injury, thereby triggering the indemnity clause. We review the district court’s factual findings for clear error,
see Consol. Elec. & Mech., Inc. v. Biggs Gen. Contracting, Inc.,
Farmers Union first argues that the district court erred in finding that the FLIX car was one of the cars that Farmers Union had handled prior to the accident. Although there exists conflicting evidence regarding the origin of the FLIX car, we cannоt say that the court’s conclusion is clearly erroneous, as it is supported by the testimony of the three individuals most knowledgeable of the Cahill accident. Most notably, Roy, the only person who saw both the defective car received by Farmers Union and the car involved in the Cahill accident, testified that he was certain .that the troublesome car on both occasions was the FLIX car. In addition, Ca-hill stated that the FLIX car was already loaded when he and Roy came to work on April 13 and thus that the FLIX car must have been one of the cars that they had received from Farmers Union. Finally, Roy’s and Cahill’s supervisor, Mike Guder-jahn, testified that, based on the amount of time that it takes to load a car and hоw long Cahill and Roy had been at work on April 13, the FLIX car had to have been loaded prior to that day.
Farmers Union asserts that these individuals’ testimony is rendered incredible by certain business records of Farmland Industries, an unrelated third party, that suggest that the FLIX car may have been one of the cars delivered directly to Rolla Grain. We conclude, howevеr, that although they are not insignificant, these records do not so compellingly cast into doubt the unequivocal testimony of Roy, Cahill, and Guderjahn as to render clearly erroneous the district court’s findings regarding the FLIX car.
See First Nat’l Bank, Sioux Falls v. First Nat’l Bank, South Dakota,
153 F.3d
885,
890 (8th Cir. 1998) (“Where there are two permissible views of the evidence, the factfinder’s choice bеtween them cannot be clearly erroneous.”) (quoting
Anderson v. City of
*532
Bessemer City,
Farmers Union next argues that, even if the FLIX car had passed through its control, it had no duty under the terms of the lease agreement to notify BN of the defective brake and therefore its failure to do so did not constitute an act or omission under the indemnity clause. We disagree. The primary purposе of an indemnity clause such as is at issue here is to indemnify a railroad when its lessee’s act or omission causes the railroad to violate its non-delegable duty to furnish a safe workplace under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51
et seq. See Bellaire,
BN has a duty under the Federal Safety Appliance Act (FSAA) to ensure that the cars used on its tracks are equipped with properly functioning brakes,
see
45 U.S.C. § 11, and its failure to do so creates an unsafe workplace in violation of FELA,
see Grogg v. Missouri Pac. R. Co.,
Farmers Union also contends that even if its failure to notify BN of the defective brake constituted an act or omission, this act or omission did not cause Cahill’s injury and thus did not trigger the indemnity clause. We again disagree. Because causation undеr an indemnity agreement such as this is not based on principles of negligence, BN is not required to show that Farmers Union’s failure to notify BN of the FLIX car’s faulty brake was the proximate cause of Cahill’s accident, but only that it “caused or contributed to cause the accident.”
See Bellaire,
B. The Amount of Indemnification
We next must determine the amount of indemnification to which BN is entitled.
See Bellaire,
The district court overlooked the fact that BN had already received $200,000 in, indemnification from Rolla Grain prior to the commencement of BN’s action against Farmers Union. Thus, the “loss” for which Farmers Union has an obligation to indemnify BN under the tеrms of the indemnity clause is no longer $400,000, but rather $200,000. We therefore believe that $200,000 is the maximum amount of indemnification that BN can recover from Farmers Union and that it is this amount that is subject to a one-half reduction if BN negligently contributed to cause the Cahill accident. To hold otherwise would permit BN to receive full indemnification — $200,000 from both Farmers Union and Rolla Grain — even if it were found to be negligent, a result inconsistent with the terms of the indemnity clause and the reasoning of
Bellaire. See
That being said, we nonetheless affirm the district court’s award of $200,000 because the record contains insufficient evidence to support a finding that BN was negligent. It is well established that we can affirm the district court on any ground supported by the record, even if not relied upon by the district court.
See Dominium Management Serv., Inc. v. Nationwide Housing Group,
Farmers Union points to the fact that BN may have violated the FSAA by permitting Rolla Grain to use a car with a defective brake and argues that this fact demonstrates BN’s negligence. Even assuming that BN violated the FSAA, however, a violation of this statute does not, by itself, support a finding of negligence.
See Colorado Milling & Elevator Co. v. Terminal R. Ass’n of St. Louis,
We therefore conclude that the record contains insufficient evidence to support a finding that BN was negligent regarding the Cahill accident. As a result, BN is entitled to $200,000 in indemnification from Farmers Union.
II. The Attorney Fee Award
The district court ruled that, as part of Farmers Union’s obligation under the indemnity clause, it must pay BN for the attorney fees that BN incurred on the Cahill litigation after October 29, 1992, the date at which BN properly tendered defense of the suit to Farmers Union. Because state law governs the аvailability of attorney fees in diversity cases where no conflicting federal statute or court rule applies, we apply North Dakota law to this issue.
See Grabinski v. Blue Springs Ford Sales, Inc.,
Farmers Union first contends that the terms of the indemnity clause dо not support an award of attorney fees to BN. We disagree. The general rule in North Dakota is that attorney fees are recoverable when provided for by contract or statute.
See Hoge v. Burleigh County Water Management Dist.,
Farmers Union next contends that the district court abused its discretion in awarding BN attorney fees because BN’s tender of defense of the Cahill suit was untimely. To supports its claim, Farmers Union relies upon
Diebold, Inc. v. Roadway Express, Inc.,
in which a Minnesota court found that a tender of defense four weeks prior to trial was untimely because it deprived the party to whom defense was tendered the “opportunity to participate in the litigation.”
The judgment is affirmed.
Notes
. The Honorable Karen K. Klein, United States Magistrate Judge for the District of North Dakota, to whom the case was submitted pursuant to the consent of the parties under 28 U.S.C. § 636(c).
. Although Cahill's suit against BN was based on common law negligence and not FELA, we do not believe that this fact alters our analysis of Farmers Union's obligations under the indemnity clause. The fact remains that Farmers Union’s failure to notify BN of the FLIX car’s defective brake exposed BN to potential liability under FELA. Therefore, an act or omission occurred and Farmers Union is required to indemnify BN for any liability resulting from that act or omission, whether such liability is based on FELA or principles of negligence.
See generally International Paper,