*2 negligence. Anheuser subse- versity for WIENER, Circuit Before JONES party action brought a third quently WALTER,* Judge. District Judges, and *3 seeking contri- against Force commonlaw WIENER, Judge: Circuit indemnity as as contractual well bution his indemnity.2 amended McDaniel never diversity case involves This Texas Force as a co-defen- complaint implead unique of a indemnification interpretation claim. dant to his tort application of the deemed provision and the performed services Apparently Force had of Rules 49 provisions finding and waiver relating design, con- Anheuser for separate trials in the context of and 51 struction, railyard of the and maintenance 42(b).1 The district granted under Rule injured, including McDaniel was where summary judgment for De- granted court in- #23. Anheuser’s contractual switch Corporation fendant-Appellee Force demnity against Force was based claim that, the terms of (Force), holding under provision a contract an indemnification clause, only Force could be indemnity by covering railyard provided services indemnify Plaintiff-Appellant required to Force.3 (Anheuser) Anheuser-Busch, Inc. trial, Force moved for severance Prior to death, bodily injury, or and suits for claims separate of the contractual indemni- trial acts or damage Force’s property not address the ty issue. This motion did omissions; there had been a and that as indemnity or contribution is- common law finding injured claimant here was that the agreed this motion and Anheuser sues. injuries there cause of his own the 100% remaining a granted, with Force it was against finding of causation could be no claim, on in the trial of McDaniel’s party error Perceiving no reversible Force. the issue of contribution.4 affirm. the district we suit was submitted interrogatories using special I ver- jury on form, 49(a). pursuant dict to Rule FACTS alleged negligence that Anheuser’s found injured while at- Harold McDaniel was inju- proximately cause McDaniel’s did not tempting operate railroad track switch found that McDan- ries. The further Houston, railyard # Texas owned by his own iel’s were caused 100% injury, At the time of his he Anheuser. Anheuser nor negligence, and that neither any percentage Pacific Railroad employed by was Missouri the Railroad contributed (the injuries. The of McDaniel’s Company Railroad d/b/a Union Pacific * attorney’s Judge fees in the of Louisi- also for all court costs District of the Western District ana, sitting by designation. alleged present Anheuser also action. request Anheuser’s to assume or Force refused are to the Federal 1. All references to Rules the defense of McDaniel’s suit. handle Procedure unless otherwise noted. Rules of Civil Party Action In Anheuser’s initial Third and, so, which 3. The existence of a contract if Corporation, pleaded Against Force conditions, was one and under what terms and right be indemnified that it had a contractual strongly contested in the district court. For any liability that Anheuser was Force for however, purposes appeal, of this we assume adjudged to McDaniel. Anheuser also to have (without finding) that such a contract existed it had a common law claimed that indemnity proffered provision and that the against or indem- action nity Force for contribution Anheuser was contained in such contract. liability any as to Anheuser had to McDan- iel. of the common- 4. No mention was ever made indemnity Anheuser’s claims for contractual motion, the hear- law issue in Force’s considerably against Force were modified in its motion, ing on the the district court’s order Against Party First Amended Third Action motion, granting any subsequent por- or in pleading alleged Corporation. In that tion of the record. contractually required to indem- that Force nify Anheuser, any judgment, employed by the the same criteria district so that the structured special verdict was to consider only be allowed jury would court.6 This court must “review evi- injury if it first a cause of the Force as dence and inferences to be drawn there- partial at least a that Anheuser was found light from in the most favorable jury attributed injury. As the cause of A nonmoving party.”7 motion sum- a vis causation to McDaniel vis 100% granted “if the mary judgment shall be Railroad, it never Anheuser and interrog- pleadings, depositions, answers to relating Force. questions reached the file, atories, together and admissions on take-nothing entered a The district court affidavits, any, if show that there with the result, As a against McDaniel. genuine issue as to material fact is no claim commonlaw contribution Anheuser’s moving party is entitled to a and that the Neither evaporated. against Force *4 8 Summary a matter of law.” judgment as mentioned any parties the ever court nor of appropriate when there is no judgment indemnity again so we assume commonlaw only genuine of material fact and issue take-nothing with the evaporated that it too question presented.9 law is of judgment. McDaniel, victory against After its total party its third contractu- pursued Anheuser Indemnity Language B. The Clause against Force al claim for indemnification alleges relationship Anheuser that its clause, seek- disputed under the part by governed Force is at least with defending ing to recover all costs disputed indemnity clause. Force coun- the suit, majority the of which com- if in issue ters that even the clause were by motion prised attorney’s fees. On An- part of a contract between Force and Force, granted summary the district court denies), (which vigorously heuser Force Force, dismissing Anheuser’s
judgment for here, held that An- and even if that clause were effective indemnity claims. The court to indemnification heuser was not entitled require Force to reimburse it would not disputed required clause the because legal in- its costs and fees Anheuser for Anheuser for claims or indemnify defending As- McDaniel’s suit. curred recovery injuries caused seeking suits deciding this indem- suming so without Force, possibility an act or omission of relationship provision govern did the nity jury the McDaniel found precluded when Force, begin and we our between was the sole cause of his that McDaniel examining language of that analysis by injuries.5 clause: indem- hereby agrees to The contractor
II hold harmless Anheuser-Busch nify and ANALYSIS and affil- Companies, Inc. its subsidiaries A. Review Standard (hereinafter referred to companies iated “ABC”) and suits all claims as grant a motion for sum from dam- novo, parties using parties and third mary judgment is reviewed de Wigginton, Fidelity Guaranty 964 opinion, & Co. v. the district court 6. U.S. 5.In its memorandum Sears, 487, (5th Cir.1992); Walker v. F.2d 489 summary for Force was stated that 355, Cir.1988). Co., 853 F.2d 358 Roebuck & appropriate “there was no act or omis- because attributable to sion found that was 489; Co., Fidelity Guaranty F.2d at & 964 7. U.S. The court based this determination Force.” Rouge Building Trades & Construction Baton jury's findings that McDaniel was "100% Constructors, Inc., 804 Council v. Jacobs injury" at fault.” for his own and “100% liable 879, (5th Cir.1986). 881 statements, respectively, interpret as We these found “there was no act or omission 56(c). 8. Fed.RXiv.P. injuries] that was have caused McDaniel’s [to 317, 327, Catrett, was 100% 106 Corp. attributable to Force” and "McDaniel 477 U.S. Celotex 2554, (1986); injury.” was the of his own "Cause” 91 L.Ed.2d cause] S.Ct. [the to, Liberty Lobby, U.S. questions the verdict submitted Anderson v. term used in 2505, 2510, (1986). L.Ed.2d 202 by, jury. 106 S.Ct. the McDaniel and answered subject clause parsing of the A careful including injuries, and ages property an exami- conclusion. Such confirms including not limit- persons, death to indemnity clause’s begins with the nation any subcontractor to, or Contractor ed An- for which identification of that general agents, servants and respective their and claims and to be indemnified: heuser is damage event of any if such employees, parties. third parties suits during or incident to injury shall occur or Next, and suits limits claims the clause under required of work performance damages property to those covered Contract, all this the terms of from Skipping over persons. therefor, recovered judgments those, limits the claims language that defending said expenses in all here, to the work with a nexus such as costs, suits, including court claims and the clause by the contract of which covered expenses, and other attorneys’ fees the ele- a list of part, we encounter ia or omission by the act for which of the claims and suits ments their or subcontractor Contractor judgments is to be indemnified: servants, employ- agents and respective therefor, expenses of de- and all recovered negli- ees, by the sole fault or and not fending and suits. the claims servants, ABC, agents or gence of point in this our dissection At employees.10 *5 at- clause, somewhat we encounter—albeit determination of The whether archaic, run-on draft- tenuated due to This ambiguous is one of contract is law.11 techniques words employed—the by any indemnity clause is not a of by standard the act or omission “caused [Force].” means; by unique applies and was to that for which it is tailor-made Force’s indemnify not claims and its use. Still it is it Anheuser: Anheuser for own must suits, judgments on such all recovered ambiguous. In the lexicon of indemnifica suits, expenses and and all claims and costs classi tion, provision properly is the instant But and suits.12 defending such claims of indemnity in that it clause fied as limited person- and suits? which claims Those Anheuser require not Force to defend does damage. Beyond property injury and al suits; it and neither does against claims then, must be that which peradventure, indemnify require to Anheuser Force of Force by” the act or omission “caused of it defense baseless the costs incurs damages. very injuries and are same those operative, limiting is an claims. “Cause” it re indemnity provision; in this term are Conversely, as the suits and claims pay expenses quires parties Force to all costs and and “by as those first defined by defending by” claims could never be incurred “caused parties,” third The injuries only modify if—such “claims suits.” and if—but read and suits to “by” Anheuser act or a claim or suit injuries actually are caused an assertion of by” party could be “caused or a not third omission of Force. contract for indemnity pro- Contractor shall not clause The 10.The remainder any part performance of the work herein vides: imposing similar obli- agrees for without reimburse contracted The also Contractor any expense gations any loss result- subcontractor so ABC for ing and all and contractor or damage property by the indemnify from to its caused employed to ABC. Contractor, any or subcon- added). act or omission (Emphasis servants, respective agents and tractor or their negli- employees gence not the sole or and fault Braniff, Toren v. ABC, servants, agents employ- its or Cir.1990). agrees specific as a element ees. Contractor ABC, indemnify provid- as of this Contract nothing an in the note as aside that We may though paragraph, even ABC ed in this indemnity appear language would clause contributorily negligent with re- been have spect obligation exempt indemni- Force from its occurrence of event of such subject fy if a claim or suit damage injury notwithstanding whether or pro- indemnity clause were instead settled negligence contributory be char- such would judgment. ceeding to trial and passive either or in nature. acterized as active indispens- this those Anheuser failed to establish unless of Force act or omission controlled link in the trial of McDaniel’s marionettes causal were mere able parties only refer by” can Therefore, Force. “Caused Anheuser is not entitled claims. damages. and injuries to establish causa- opportunity to a second maneuverings of the procedural tion. recognized effect, Anheuser itself In in detail to see parties In must be examined pleadings. in its causality requirement Party happened. Action why Third and this First Amended how de- Corporation, Anheuser Force Against “an indem- indemnity clause as
scribes Compulsory Counter- C. Claims whereby FORCE agreement nification claims indemnify hold harmless agrees to from and suits and originally all claims filed his suit because BUSCH from McDaniel therefore, and judgments recovered working all injuries while for the he sustained (including court costs expenses all railyard. In his in Anheuser’s Railroad fees) by the act or attorney’s caused Complaint, alleged McDaniel that Anheuser no obtusely, but More omission of Force.” injuries it “was for his because was liable allegation confirms certainly, this less com- acts of omission and guilty of various if it relates lies mission, negligence as all of which were Clearly, a damages by Force. caused law,” proxi- is known in the that term (as turned out to claim baseless injuries.14 McDaniel did mately caused his be) #28 alleging regarding fault Switch liability allege any of either strict not form caused to have been cannot be said against Anheuser and products liability McDaniel. It anyone else but Force or at all. not name Force did suit, which the claim or injury, impleaded Force as Anheuser then trigger indem- must be *6 defendant, alleging contractual party third limited clause. unique, this nification under contribution, in- and commonlaw indemnity, its defense Anheuser can recover Before re- any liability to McDaniel demnity for Force, it must expenses and costs employees or of Force’s sulting from acts of Force’s that an act or omission establish a coun- subsequently filed agents. Force injuries for which McDaniel caused the Anheuser for commonlaw against terclaim causa- allegations Mere of brought suit. indemnity, adopting contribution and insufficient, responsibility are tion and Anheuser, reference, against pleading and summary to a motion for opposition even in allegations. detriment, original all of McDaniel’s To its irreversible judgment.13 supervise They properly the to Lobby, 7. failed Liberty 477 U.S. Anderson v. 13. 2505, 2510, (1986). activity yards switching on their L.Ed.2d 202 in the 106 S.Ct. premises; regarding allegations An- specific McDaniel’s 14. Plaintiff, They provide and such to failed 8. were: heuser Plaintiff, persons the same class as of other switching improperly designed They the 1. duties; perform place his to with a safe properly concept install the and failed to Plaintiff, and other They warn failed to 9. acting Although switching mechanism. Plaintiff, of the class as persons of the same contractors, is an- through this Defendant working in and around conditions unsafe design any and defect in the swerable for switch; the mechanism; the switch provide systematic They for sur- to 10. failed switch; inspect properly the 2. Failed to inspection and of the switch and veillance switch; properly the maintain 3. Failed to spot working to adjacent areas so as They properly the work to maintain 4. failed give position warn- a to and be in hazards surrounding grounds and the area area; working ings persons in that switch; ground adequate They provide lighting 11. failed They provide sufficient 5. failed covering so as to area of the switch persons class as the Plaintiff in the so that of such safety working any possible footing persons haz- proper he aware of for would assure area; area; the work ards in in the They in the a hazardous condition created haz- They Plaintiff of the failed to warn ground covering in in which the manner in the area. conditions ardous installed; switch was and around the Separate Tri- compulsory tion for Severance/Motion 13(a) describes Rule granted.” al be at the “any claim which as counterclaim plead pleading the serving the time of the initially that motions We note party, if it opposing against any er has separate tri motions for for severance and or occurrence transaction out of the arises preferably should be al are distinct opposing matter of subject that is the Upon analysis we as such.19 close treated pres require the claim and does party’s that, despite ambiguous title of find the court of whom parties ence of third equally ambiguous motion and its instant A counter jurisdiction.”15 acquire cannot separate by the district treatment original both compulsory when sought claim is than a severance was trial rather arise from the the counterclaim contained a granted. claim and Force’s motion 42(b) facts.”16 operative the Federal “aggregate of to Rule same reference trial, Procedure, governs which proceeded case Rules of Civil time this By trials, no reference claims, separate but contained cross- subject of Anheuser was governs severances. Rule which regarding claims,17 and counterclaims Also, language the motion tracked that had occurred McDaniel’s 42(b) that “the order when it stated Rule Consequently, any railyard. the Anheuser separate trials in this matter would against Force counterclaim expediency judicial more conducive be necessari out of this occurrence that arose economy.” And even after the motion in the instant suit or brought ly had to be subsequent proceedings granted, the is com “A which counterclaim be barred. to bear the same trials continued both brought is thereafter pulsory is not docket number. barred.” 42(b), may separate trial be Rule
Under
of convenience or
“in furtherance
ordered
Separate Trial?
D.
Severance
separate trials
prejudice, or when
to avoid
the trial on
Shortly before
expedition and econo-
will be conducive
filed a motion
begin, Force
claim was to
preserving inviolate the
my
always
...
“Third-Party Defendant’s Motion
entitled
by the
by jury
trial
as declared
Separate
Trial.”
for Severance/Motion
to the Constitution or
Amendment
Seventh
provided
agreed
the motion
with
given by a statute of
United
as
issues, however,
first trial on the
Separation
remained
that Force
States.”20
*7
fol-
ordered
that should be
The trial court
is not the usual course
contribution claim.
Corporation’s Mo-
lowed.21
that “Defendant Force
usually
13(a).
Separate
result in
21.
trials will
Rule
15. Fed.R.Civ.P.
judgment,
claims become en-
but severed
one
tirely independent
tried,
Winegardner
Birmingham
and
be
and
Fire Ins. Co. v.
actions to
16.
thereon,
548,
(5th Cir.1983)
Hammons, Inc.,
independently.
551
entered
714 F.2d
distinction,
enough
(citations omitted).
Unfortunately, this
clear
practice
theory,
obscured in
since
in
is often
against
"separate
cross-claim
also filed a
talk of
trial" and
17. The Railroad
at times the courts
*
interchangeably.
contribu-
Force for commonlaw
Id.
Anheuser and
"severance”
reference,
361,
O'Neil,
adopting by
indemnity, also
F.2d
Compare
tion and
United States v.
709
Force,
(5th Cir.1983)
against
(distinguishing
all of
pleading
Anheuser and
severance
and
365
McDaniel,
Laeisz,
trial)
original
allegations.
separate
Randolph
with
v.
McDaniel’s
however,
964,
(5th Cir.1990)
pleadings to in-
never amended his
and
896 F.2d
969
United
545,
Land,
against Force.
Acres
701 F.2d
clude a claim
States v. 499.472
of
(5th Cir.1983) (both using the
"sever-
term
551
467,
Inc.,
Liquors,
417 U.S.
18. Baker v. Gold Seal
Rule
with motion under
ance" in connection
1,
1,
2504,
42(b)).
2506 n.
305
along
Force’s
limitation
Anheuser went
with
mo-
important
is an
“There
indemnity
try
the contractual
issue
separate trial of issues under
tion
ordering a
42(b):
hearing,
the motion
separately.
tried must be so
At
counsel
the issue to be
Rule
“Yes,
agree
Anheuser stated:
we do
separate from the others that
distinct and
contractual,
severing
Your Honor.
may
injus
had without
with
of it
be
trial
alone
22
going
keep them
of bi We’re
in with
con-
"This limitation on
use
tice.”
recognition
claim ... and
is a
of the fact that
tribution
there
con-
furcation is a
if
obligation
pursue
guar
Amendment
tractual
we will
that
inherent in the Seventh
by jury
on.”
general
of a trial
later
antee
litigant
jury pass
have
one
hearing,
At the conclusion of the motion
rule
issue
This
on a common
of fact.”23
judge
“I
the district
noted:
believe the
additional, pragmatic
an
basis—if two
has
objections
reflects there are no
to a
record
pass
on an issue
juries were allowed
separate
trial on the issue
motion
involving
legal
same factual and
ele
question
liability
.contractual
ments,
ju
rendered
those
the verdicts
Force,
between Anheuser-Busch and
and
inconsistent, producing
could
into
ries
be
granted.”
so that motion will be
lerably
results.24
anomalous
parties
It is clear that the
and the
parties
Both
and the district court
try separately
court intended to
district
recognized
separate
appear
arising from
only issues
the contractual
In
prerequisite
separate
trials.
distinct
Force,
relationship between Anheuser and
motion,
“the
recites that
issues
Force
relating
disputed
including
in
those
litigated
it and
and resolved between
be
Nevertheless,
demnity
clause.
was
Busch,
complete-
are
Third-Party Plaintiff
trial,
primary
in
that
to remain
trial
independent
separate
from those to
ly
to decide McDaniel’s
claims.
was
tort
Cau
litigated
primary
initiated
in the
lawsuit
be
sation of McDaniel’s
essen
against
McDaniel
the Railroad
Indisput
his tort claim.
tial element of
Busch.” The motion further recites
ably,
findings
the causation
separate
mat-
ordering
“the
trials
this
centerpiece
also be the
that trial would
judicial
ter would be more conducive
trial;
points
could not be
economy.” All
the second
expediency and
Under Ala
specifically
in Force’s
tried anew the second trial.
contention
addressed
Co.,27
issues;
if the
Body
Blue
first
motion are contractual
causation of bama v.
Bird
issue, the
the causation
second
underlying
tort claim is not mentioned
decides
issue.28
jury cannot consider
same
at all.25
W., Inc.,
juries
Harold McDaniel under
v. B. &
336 F.2d
claimed
Swofford
denied,
(5th Cir.1964),
provision
Busch
ADM-66.
cert.
U.S.
S.Ct.
Form
*8
653,
Co.,
(1965);
Body
is
to contractual
Bird
3. Whether Busch
entitled
307 charge in find no fundamental error jury.”37 the issue to submit miscarriage justice. in a that could result plain error Additionally, invoke we will miscarriage justice prevent a doctrine Actually and Instructions Issues to make a suffi- failure despite party’s Submitted Rule 51.38 under ciently specific objection inapplicable in exceptions charge are submitted to the limited These case, however; included the fol- the issue trial of McDaniel’s claims the instant interrogatories and instruc- lowing special was submitted by Force form, tions: and we in a conditioned jury, albeit Instruction 16 Plaintiff, you must find liable to the Anheuser-Busch to find In order following: evidence the preponderance knowledge of some unreason- or constructive had actual That Anheuser-Busch
First: McDaniel; of harm to able risk elimi- reasonable care to reduce or to did not exercise Anheuser-Busch That Second: McDaniel; and harm to the risk of nate proximately caused McDan- to use such care failure That Anheuser-Busch’s Third: injuries. personal iel’s
Question 2 injury in proximately cause the any, those named below negligence, if Did the
question? following: for each of “Yes” or “No” Answer Anheuser-Busch, Inc. No Yes Harold McDaniel
Question 3 question, in find the injury by you to have caused person found For each by— percentage caused Anheuser-Busch, Inc. _0 % 100 Harold McDaniel % 0 Railroad %' 100 Total % Anheuser-Busch negligence Question 2 found that you If in answer do not following Questions, otherwise then answer injury question, Questions. following answer the Question 4 question occasion that on the of the evidence you preponderance find from a Do by Anheu- requested maintenance perform the switch Corporation failed to
that Force # on Switch 23? ser-Busch or “No”. Answer “Yes” _ Answer: Question 5 question occasion that on the preponderance of the evidence you find from a Do failure, negligent? any, if such a “No”. “Yes” or Answer _ Answer: Question 6 any, was negligence, if that such of the evidence you preponderance find from a Do injuries? of the Plaintiff’s proximate cause
Answer “Yes” or “No”. _ Answer: (hold- (1986) Healthco, L.Ed.2d 581 S.Ct. Cunningham diametri- Cir.1987). plain when two error resulted n. 3 damages were conflicting cally instructions *10 Cain, jury); Co., F.2d v. 756 to the Farrar submitted Electric 792 F.2d Nowell v. Universal 38. denied, 1310, (5th Cir.), U.S. at 1150-51. cert. 479 1316-18 308 event, in that then answer Question 6 “Yes” and answered you If have Question.
following Question 7 question, injury caused you proximately to person found For each by— percentage find the Anheuser-Busch, Inc. -% -% Corporation 100 Total % and the Instant Analysis 3. Waiver pleaded a broad originally McDaniel Charge against Anheuser39 negligence claim based to case was submitted requested time the is devoid of The record interrogatories. special issues or in nar- refused succeeded jury, Anheuser had requested Only instruction that was one grounded to one rowing McDaniel’s claim found, germane it is not refused is occupier liability. theory of land only in a under consideration.43 the issue here law, land a suit based on Texas Under any objection to no that There is evidence simple negligence ac- liability is a occupier interrogatories or instructions was Therefore, tort when tion.40 Undoubtedly, could have made. jury, finally submitted claim was objections requests made number against claim Anheuser’s contribution jury McDaniel would that the to ensure Force’s main- limited to whether Force was Force, regard with address causation negligent.41 of switch #23 was tenance “conditioning” including objection to the An- relating liability of questions law, premises occupier Texas Under and Force. heuser independent contractor to hires an who require- complying objection An with property in safe condition maintain the required preserve Rule 51 is ments of liability negligent for the relieved of conditioning.44 regarding improper error keeping In property.42 maintenance goes unanswered as a result If an issue maxim, significance to this and of with propo- after the its conditional submission charge actually submitted appeal, object nent of the issue has failed could not so structured that submission, trial court and the conditional assign any causation to Force unless issue, express finding on that makes no assigned percentage of 49(a) until it first some court will be Rule the trial then under found on that issue deemed to have Anheuser. causation to
judgment.45 with the accord premises upon the non- comes supra invitee who See note 14.
39. care, ordinary delegable legal duty to exercise Stores, Inc., Safeway 648 S.W.2d 40. Corbin v. circumstances, premises keep under the 292, (Tex.1983). 295 reasonably for use in a condition safe invitee.” summary Anheuser's later motion for In Force, against action injury, if 817, "McDaniel's Marsh, Anheuser also asserted: Laguna Royalty v. 350 F.2d Co. any, an omission Force— was caused Cir.1965) (5th (requiring objection Rule 51 822 properly Switch maintain Force’s failure submissions, though even re- to conditional added). (emphasis #23.” quested called for unconditional submis- issues 857, Co., sion); F.2d v. Lane-Wells 185 Garland 831, Page, 701 S.W.2d 835 42. Denton v. Van Cir.1950). (5th 859 Co., (Tex.1986); Elevator 388 Bond v. Otis 1965); (Tex. Moeller v. Fort Worth S.W.2d 681 857, (Tex.Civ. 49(a); Ogden Corp. Capital Corp., S.W.2d 861 Food Service 610 45. Fed.R.Civ.P. n.r.e.) (adopt Mitchell, (5th Cir.1980); App. writ ref d Worth F.2d — Fort (Second) 425). Co., Torts § Restatement Trinity Universal Insurance. United States v. Cir.1972). proposed 43. The text of this instruction reads: every place of business "The owner of a owes to
309 case, the district of the instant stances Force’s causation Questions regarding conditionally, jury found Force to be court is deemed have submitted were Faithfully causation, Anheuser. objection just jury without as the found free of instructions, the conditioning following the the free of causa- Anheuser and Railroad directly questions the not answer jury did totally All of this is consistent with tion. the In Force’s causation. pertaining to judgment the of the court. jury, the that were answered questions But need not rest our affirmation on we the sole to have been was found McDaniel here, finding the fiction of a deemed how- injuries. his own cause of jury implicitly found Force free ever. The that the correctly points out Anheuser Anheuser free of causation when it found affirmatively find a lack jury did not of causation. had the bur- causation Force. 51, however, 49(a) Rules reasoning den under Although for its Anheuser’s (including causation its issues ensure that and the regarding the severance actions Force) properly submitted were charge the is not stated submission of jury the could in such a manner that jury to this the record or Anheuser’s brief Having those issues. would decide part been of a appears it have its so, has waived to do failed was, all, strategy that after substan- trial the issue any jury determine right to have By Force made tially effective. the time by Force. causation trial, separate the Railroad motion for its jury to a Anheuser waived As Mary a Carter already entered into had issue, Rule causation determination McDaniel.49 The other de- agreement with 49(a) the trial court permitted would apparent- fendants —Anheuser Force— finding issue. Anheuser make a on that present a unified ly acted concert court correctly points out that the again and to nar- McDaniel’s claims opposition to regard to express findings with made no focus in their determination jurors’ row the did, howev- The court Force. liability. er, take-nothing enter a manner in which though the Even findings.46 jury based on McDaniel interrogatories were special charge and 49(a) pro- Rule plain language of The Anheuser’s detri- submitted eventuated finding” may make a that “the court vides issue, it the contractual ment on given issue if it is “omitted on a [from considering jurors from prevent did charge] without such demand.” jury narrowly defined anything other than obligated to make ex- court is not district they theory when occupier liability land findings any such issue. Rule press Anheuser was liable. whether determined however, if the 49(a) provides, that further sug- Furthermore, strategy trial obvious express find- not make district court does jury directly considered gests that if the to have made ings “it shall be deemed and Force of both Anheuser the conduct judgment on the finding in accord with the liable, it would partially and found the circum- special verdict.”48 Under suit, will be reim- in the Judgment part: but must remain reads in “After The Final deliberations, degree plain- specific from the returned a unani- bursed to some finding plaintiff was 100% recovery verdict A mous the other defendants. tiffs upon jury’s in his accident. Based contracting at fault findings, gives Mary agreement Carter incorporated adopted and which are strong help plaintiff incentive defendant herein, plaintiff that the the Court concludes expense its codefendants. See at the recover nothing by his suit.” take shall Underwrit- Co. v. Mid-Continent Marathon Oil Cir.1986); ers, 1303 n. 1 786 F.2d 47. Fed.R.Civ.P. 49(a) added). (emphasis Systems Engineering, Wilkins v. P.M.B. added). (5th Cir.1984). (emphasis The Texas n. 2 Id. Mary recently Car- Supreme has held Court 49. A generally Mary agreement is a se- Carter violative of agreements void in Texas as ter are plaintiff and one of cret contract between Smith, public policy. Elbaor sound whereby contracting de- several defendants (Tex.1992). S.W.2d 240 trial, plaintiff before will settle with the fendant *12 jury. by the assign liability was tried to and determined certainly some also almost cannot tried be- The causation issue be to Anheuser. twice, pur- parties the same once for tween prevail in the Ironically, Anheuser cannot again pur- poses contribution and of strategy against action because its instant indemnity. poses of contractual jury If had so well. the McDaniel worked percent- Anheuser caused found that Finally, to secure an as Anheuser failed injuries, age McDaniel’s Anheuser would of express jury finding by Force on causation the present position. As situa- not be object conditional sub- and failed to stands, not recover the tion Anheuser will jury, of that issue to the and as the mission Force, $47,241.74 seeking it was but express finding made no district court pay any it of the over neither did have issue, must either a Anheuser suffer $1,128,000.00sought by McDaniel. Consid- finding deemed that no act or omission results, categorically cannot ering the we injuries or an im- Force caused McDaniel’s actions were ill con- state that Anheuser’s plied finding effect a result of to that as hand, If, we have sidered. on the other jury’s finding by An- of no causation foresight a lack of erroneously construed reasons, foregoing heuser. For the strategy, Anheuser would be even as clever grant summary district court’s way, deserving sympathy. Either less Corporation, dismissing Anheu- for Force however, deserving find Anheuser of no we ser-Busch, indemnity Inc.’s contractual expense emi- indemnification for the of its expenses claim for the costs and of defend- nently inju- defense of successful claims suit, ing McDaniel’s tort is by caused ry not found to have been AFFIRMED. indemnitor. WALTER, Judge, specially District Ill concurring: CONCLUSION Judge I opinion would concur with the every respect, Wiener but I would reach indemnity is Anheuser’s self-made clause single leap. the result ambiguous. When the convolutions of style syntax straightened, plain logic, are The district with flawless wording requires of the clause Force to in- held that Anheuser was not entitled to indemnify Anheuser for suits and claims only demnification because Force was re- injuries parties persons or third quired indemnify for claims Anheuser judgments costs of defense— injuries by caused an act or omission of —and suits, arising from those claims and if—but Force, possibility precluded by jury only injuries by if—such been finding that McDaniel the sole cause Assuming, an act or omission of Force. injuries.1 indemnity of his Anheuser’s deciding, that this without clause ambiguous. plain clause is not The word- governed relationship Anheu- between ing requires indemnify Force to Force, ser and we hold as a matter of law defense, if, for claims and costs of precluded that Anheuser is from establish- if, injuries such were caused act or prerequisite Force. omission of Force. The found that injuries were caused 100%
Any claim Anheuser that an act or negligence; his own that neither Anheuser inju- omission of Force caused McDaniel’s nor the compulsory against inju- Railroad caused McDaniel’s ries was a counterclaim suit, A damage Force. Within McDaniel’s ries. determination that Anheuser was a injury issue of causation of McDaniel’s cause of the qua was a sine non for opinion, 1. In its the district court stated that that was attributable to Force.” The summary judgment appropriate for Force was jury’s court based this determination on because "there was no act or omission found
3H by Force.2 any finding of causation against jury of cause
finding by the 0% impossible It is determinative. anything. To hold other- Force caused *13 findings conflicting of fact would risk wise the same ease. within have, indemni- Assuming, as we that this relationship be- ty governed clause Force, there is noth- Anheuser and tween litigate. The district court’s further to summary judgment is correct. grant of SHIPES, Henry behalf of him- Forest on situated, al., similarly others et self and Plaintiffs-Appellees,
v. INDUSTRIES, Corporation, A TRINITY
Defendant, Rader, Jr., Appellant. Robert E. SHIPES, al., Henry Forest et Plaintiffs-Appellees, INDUSTRIES, TRINITY Defendant-
Appellant.* 85-2767, 91-4961. Nos. Appeals, United States Court Fifth Circuit. April plaintiffs-appellees and order findings *On motion of was "100% liable for his that McDaniel injury” Shipes’s cross-appeal and "100% at fault." was severed own of this on March versa; Anheuser could have been 2. But not vice part liable without held fault/cause Force.