                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                              No. 05-2245/05-2351
                                 ___________

Union Pacific Railroad Company;     *
Missouri & Northern Arkansas        *
Railroad Company, Inc.,             *
                                    *
          Appellants/               *
          Cross-Appellees,          *
                                    * Appeal from the United States
v.                                  * District Court for the
                                    * Eastern District of Arkansas
ConAgra Poultry Company,            *
                                    *       [UNPUBLISHED]
          Appellee/Cross-Appellant. *
                              ___________

                           Submitted: March 16, 2006
                               Filed: June 29, 2006
                                 ___________

Before ARNOLD and GRUENDER, Circuit Judges, and MAGNUSON,1 District
      Judge.
                         ___________

MAGNUSON, District Judge.

      This case is before us on two interlocutory appeals. Union Pacific Railroad
Company and Missouri & Northern Arkansas Railroad Company, Inc. (collectively
“the Railroads”) appeal an order granting a motion to compel discovery. ConAgra


      1
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota, sitting by designation.
Poultry Company (“ConAgra”) appeals an order granting summary judgment to the
Railroads.

BACKGROUND

      This case began as a personal injury lawsuit initiated by Kenneth and Priscilla
Burress, who sought to recover from the Railroads for personal injuries sustained by
Mr. Burress when he was hit by a boxcar on the premises of his employer, ConAgra.
Mr. Burress and another employee were moving two boxcars through the use of
ConAgra’s switch engine when the accident occurred. The Burresses settled with the
Railroads for $5,000,000.

       The Railroads filed a third-party complaint against ConAgra, seeking
indemnification under the terms of an Industry Track Agreement (“Agreement”). The
district court2 granted summary judgment for the Railroads on the basis that the
Burresses’ losses were covered by the indemnity provisions of the Agreement, but the
court reserved for trial the issue of whether the settlement was reasonable.

       After the summary judgment order issued, ConAgra served discovery requests
relating to the reasonableness and good faith of the settlement. Some of the requested
information included communications between the Railroads and their counsel and
mental impressions of counsel. The Railroads objected to the requests on the grounds
of relevance, attorney-client privilege, and work-product protection. ConAgra moved
to compel responses, and the district court granted the motion.




      2
       The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.

                                         -2-
DISCUSSION

A.    The Summary Judgment Order

       ConAgra presents two general arguments for reversal of the summary judgment
order: (1) that the Agreement’s indemnity provisions are ambiguous, and (2) that the
location of the accident creates a genuine issue of material fact. Neither of these
arguments has merit.

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

       ConAgra contends that the Agreement is ambiguous because it contains
conflicting allocations of liability. The relevant part of the Agreement, section 4(c),
provides:

      (c) Except as otherwise specifically provided in this Agreement, all
      Loss related to the construction, operation, maintenance, use, presence
      or removal of the Track shall be allocated as follows:

             1. The Railroad shall pay the Loss when the Loss arises from or
             grows out of the acts or omissions of the Railroad whether or not
             a Third Person contributes to cause the Loss.

             2. The Industry [ConAgra] shall pay the Loss when the Loss
             arises from or grows out of the acts or omissions of the Industry,
             or when the Loss arises from or grows out of . . . (iv) intraplant
             switching . . . . This subsection applies regardless of . . . whether
             or not the Railroad or a Third Person contributes to cause the
             Loss.

             3. Except as otherwise more specifically provided in this
             Agreement, Railroad and Industry shall pay equal parts of the
             Loss that arises out of the joint or concurring negligence of the


                                          -3-
             Railroad and the Industry, whether or not the acts or omissions of
             a Third Person contribute to cause the Loss. . . .

(Appellant App. at 47) (emphasis added). The district court concluded that ConAgra
was obligated to indemnify the Railroads under section 4(c)(2)(iv) because the loss
arose from intraplant switching.

      A court must construe an indemnity clause according to the general rules of
contract interpretation. Pickens-Bond Constr. Co. v. N. Little Rock Elec. Co., 459
S.W.2d 549, 552 (Ark. 1970). However, if a contract’s language is clear and
unambiguous, there is no need to rely on rules of construction. Id.

      ConAgra first contends that the term “intraplant switching” is ambiguous.
Section 4(c)(2)(iv) of the Agreement indemnifies the Railroads, without regard to any
negligence of the Railroads, for losses incurred during “intraplant switching.” The
Agreement defines this term as “the movement of rail cars on the Track by the
Industry [ConAgra] by any method.” (Appellant App. at 46.) The “Track” is defined
as 1,905 feet of track as indicated on a map attached to the Agreement. (Id. at 41.)
Neither the term “intraplant switching,” nor any other term in section 4(c)(2)(iv)
imposing the obligation to indemnify on ConAgra, is ambiguous. Mr. Burress’s
accident occurred during ConAgra’s movement of rail cars on a track covered by the
Agreement, and ConAgra’s duty to indemnify the Railroads in this circumstance is
expressed in such clear and unambiguous terms that no other meaning is possible.

      ConAgra next argues that the subsections of section 4 cannot be reconciled with
each other under the ruling of the district court. Under Arkansas law, a contract must
be construed as a whole, Fort Smith Light & Traction Co. v. Kelley, 127 S.W. 975,
980 (Ark. 1910), and a specific contract clause controls over a general one, Pate v.
Goyne, 204 S.W.2d 900, 901 (Ark. 1947). Here, the district court implicitly
determined that the specific subsection (c)(2)(iv) controls over the more general


                                         -4-
subsection (c)(1) because the loss arose out of ConAgra’s movement of boxcars on
the track, or in other words, during intraplant switching. Moreover, subsection (c)(1)
does not apply because it requires the Railroads to pay for a loss arising from an act
or omission of the Railroads, which did not occur in this case. Subsection (c)(3) does
not apply because it is a “catch-all” provision applicable only when there is not a more
specific provision covering the loss and when the Railroads and ConAgra are
concurrently negligent. The subsections of section 4 do not create any ambiguity.

      Finally, ConAgra claims that the word “contributes” in subsection (c)(2) is
ambiguous because the term does not make ConAgra liable if a loss is caused by the
sole negligence of the Railroads. Although we believe the term does not create any
ambiguity, the issue is irrelevant as the district court did not found its decision on this
language.

       In sum, the indemnity provisions of the Agreement are clear and unambiguous.
The Agreement specifically details the circumstances under which either party or both
parties will be responsible for a loss. Mr. Burress was injured during intraplant
switching, and subsection (c)(2)(iv) clearly and unambiguously allocates this loss to
ConAgra.

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

       ConAgra argues that the location of the accident raises a genuine issue of
material fact regarding the scope of the term “intraplant switching.” ConAgra does
not dispute that the accident occurred during an intraplant switching operation. It
contends, however, that the switching operation occurred outside the fence
surrounding its facility, and thus, the switching was not “intraplant.”

      We reject ConAgra’s argument. The Agreement defines “intraplant switching,”
and the definition is clear. The accident occurred while ConAgra was moving railcars

                                           -5-
on a track subject to the Agreement. This is the very definition of “intraplant
switching.” Whether or not the accident occurred inside the facility’s fence is
irrelevant. The Agreement defines the track covered by the Agreement as 1,905 feet
of specific track at ConAgra’s facility and does not mention a fence. It is undisputed
that the accident occurred on the 1,905 feet of track covered by the Agreement.
Consequently, the location of the accident does not create a genuine issue of material
fact.

B.    The Discovery Order

       Title 28 U.S.C. § 1292(b) provides for our jurisdiction over appeals of
interlocutory decisions. White v. Nix, 43 F.3d 374, 376 (8th Cir. 1994). Pretrial
discovery orders are almost never immediately appealable. Coleman v. Sherwood
Med. Indus., 746 F.2d 445, 446 (8th Cir. 1984). A party may immediately appeal a
discovery order only if the order presents a controlling question of law or if an
interlocutory appeal will materially advance the termination of the litigation. See 28
U.S.C. § 1292(b); see also 8 Charles Alan Wright, et al., Federal Practice and
Procedure § 2006 (2d ed. 1994). Neither circumstance is present here. The discovery
dispute is ordinary and straightforward, and the legal questions are settled issues of
law. A review of the discovery order will not resolve any of the substantive claims
or eliminate the need for trial. Accordingly, we decline to exercise jurisdiction over
the interlocutory appeal of the discovery order.

CONCLUSION

      The grant of summary judgment is affirmed, and the appeal of the interlocutory
discovery order is dismissed for lack of jurisdiction.
                         ______________________________




                                         -6-
