18-1866-cv
Metro-North Commuter R.R. Co. v. United Illuminating Co.

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
19th day of June, two thousand nineteen.

Present:
            DEBRA ANN LIVINGSTON,
            GERARD E. LYNCH,
            RICHARD J. SULLIVAN,
                  Circuit Judges.
_____________________________________

METRO-NORTH COMMUTER RAILROAD COMPANY,
METROPOLITAN TRANSPORTATION AUTHORITY,

                          Third-Party-Plaintiffs-Appellants,

                  v.                                                        18-1866-cv

UNITED ILLUMINATING COMPANY,

                  Third-Party-Defendant-Appellee.*
_____________________________________

For Third-Party-Plaintiffs-Appellants:          BECK S. FINEMAN, Ryan Ryan Deluca LLP, Stamford,
                                                CT.

For Third-Party-Defendant-Appellee:             JAMES E. RINGOLD (Charles P. Reed, on the brief),
                                                Loughlin Fitzgerald, P.C., Wallingford, CT.




*
    The Clerk of Court is respectfully directed to amend the caption as set forth above.
       Appeal from a judgment of the United States District Court for the District of

Connecticut (Meyer, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Third-Party-Plaintiffs-Appellants Metro-North Commuter Railroad Company and the

Metropolitan Transportation Authority (collectively “Metro-North”) appeal from the May 22,

2018 decision and order of the United States District Court for the District of Connecticut

(Meyer, J.), granting Third-Party-Defendant-Appellee United Illuminating Company’s (“UI”)

motion for judgment on Metro-North’s contractual indemnification claim. The district court’s

decision, “as with all contract interpretation, is subject to de novo review.” CARCO GROUP, Inc.

v. Maconachy, 718 F.3d 72, 79 (2d Cir. 2013) (per curiam). We assume the parties’ familiarity

with the underlying facts, the procedural history of the case, and the issues on appeal, which we

recount only as necessary to explain our decision to affirm.

                                          *      *       *

       This case arises from a gruesome accident that occurred along the Metro-North rail line

connecting the cities of New York and New Haven. Specifically, a Connecticut resident, Milton

Omar Colon (“Colon”), was electrocuted while climbing a catenary tower along the railroad

tracks, resulting in the amputation of both of his legs and other injuries. The relevant catenary

tower carried different sets of electrical lines, including one set of lines operated by Metro-North

and one set of lines that carried electricity for UI’s utility service needs. Following the accident,

Colon and his wife brought a personal injury suit against Metro-North. Metro-North, in turn,

brought a third-party complaint for indemnification against UI. Following a two-week trial, the

jury found in favor of Metro-North with regard to Colon’s negligence claim. The jury also



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answered several interrogatories relevant to the instant matter. This included a finding that UI’s

wires did not directly or indirectly cause Colon’s injuries.

       At the time of the accident, Metro-North and UI were in a contractual relationship

governed by a Transmission Line Agreement (the “TLA”). Article IX of the TLA provides in

relevant part:

       Power Company [UI] agrees to indemnify, protect and save harmless the State or
       State’s Designee [Metro-North] from and against all cost or expense resulting
       from any and all loss or damage to the property of the State or State’s Designee
       and from any and all loss of life or property, or injury or damage to the person or
       property of any third person, firm or corporation . . . and from any and all claims,
       demands or actions for such loss, injury or damage directly or indirectly caused
       by the presence or use or the construction, installation, maintenance, removal,
       change or relocation and subsequent removal of the Transmission System and
       appurtenances thereto, excepting such loss, damage or injury as shall be due
       solely to the negligence of the agents or servants of the State or State’s designee.

Joint Appendix (“J.A.”) 124–25.

       In construing the TLA, we are bound by the principles of contract interpretation supplied

by the law of Connecticut, the relevant jurisdiction here. Thus, we must “first attempt to ascertain

the parties’ intent from the language they used in their contract, looking at the contract as a whole

and giving the contract’s words their ordinary meaning and one that renders its provisions

consistent.” C & H Elec., Inc. v. Town of Bethel, 96 A.3d 477, 484 (Conn. 2014).

       After reviewing the TLA, we conclude that the it does not obligate UI to indemnify

Metro-North for the cost of defending against Colon’s personal injury suit. Instead, under the

terms of the TLA, UI is only obligated to indemnify Metro-North for injuries or claims actually

caused by its wires. Because the jury determined that UI’s wires were not the cause of Colon’s




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accident, Metro-North’s indemnification claim must fail.1 See McNeff v. Vinco, Inc., 757 A.2d

685, 688–89 (Conn. App. Ct. 2000) (holding that where indemnification clause at issue required a

“causal connection” between the indemnitor’s work and the injury sustained and indemnitee had

failed to introduce evidence of any such connection, the trial court properly directed a verdict in

favor of the indemnitor).

       In arguing to the contrary, Metro-North confuses the duty to indemnify with the duty to

defend. The duty to defend is most commonly imposed in insurance contracts and “means that

the insurer will defend the suit, if the injured party states a claim, which, qua claim, is for an

injury covered by the policy.” Hartford Cas. Ins. Co. v. Litchfield Mut. Fire Ins. Co., 876 A.2d

1139, 1144 (Conn. 2005) (internal quotation marks omitted). “[T]he duty to defend is broader

than the duty to indemnify.” Capstone Bldg. Corp. v. Am. Motorists Ins. Co., 67 A.3d 961, 992

(Conn. 2013). It “is triggered whenever a complaint alleges facts that potentially could fall within

the scope of coverage, whereas the duty to indemnify arises only if the evidence adduced at trial

establishes that the conduct actually was covered by the policy.” DaCruz v. State Farm Fire &

Cas. Co., 846 A.2d 849, 858 (Conn. 2004).

        The TLA does not impose a duty to defend on UI, but instead only imposes a narrower

duty to indemnify. As the district court noted, contracts that create a “duty to defend” generally

employ express language doing so. Special Appendix 4; see also, e.g. Hartford Cas. Ins. Co., 876

1
   Indeed, this is the precise interpretation of the TLA that Metro-North itself advanced before the
district court. Instead of asserting a duty to defend on the part of UI at the onset of the Colon
litigation, it merely maintained that UI would be obligated to indemnify Metro-North if the
evidence at trial established that Colon’s injury was caused by UI’s wires. See Memorandum in
Opposition to Summary Judgment, Colon v. Metro-North Commuter R.R. Co., No.
3:13-CV-00325 (D. Conn. Mar 4, 2016), ECF No. 261 (opposing UI’s motion for summary
judgment because “there remains a genuine issue of material fact as to how Colon may have been
caused to fall onto the lower level power lines, i.e., the presence of UI’s Transmission System
caused Colon’s accident”) (emphasis added).



                                                 4
A.2d at 1145 (finding duty to defend where policy stated that insurer had a “duty to defend a suit

seeking damages”) (quotation marks omitted). We need not look far to find examples of

contractual language imposing such a duty. Article III of the TLA obligates UI to obtain an

insurance policy pursuant to which the “insurance company or companies shall agree to

investigate and defend the insured against all claims for damages, even if groundless.” J.A. 116

(emphasis added). This language stands in stark contrast to that of Article IX, which obligates UI

to “indemnify. . . [Metro-North] from any and all claims . . . directly or indirectly caused by the

presence or use . . . of the Transmission System, excepting such loss, damage or injury as shall be

due solely to the negligence of [Metro-North].” J.A. 124–25 (emphasis added). As Article III of

the TLA reveals, the parties clearly knew how to create a duty to defend and chose not to do so

in the context of Article IX.2 Moreover, the inclusion of the exception for injury arising from

Metro-North’s negligence—necessarily a fact-bound determination that could not be made at the

stage of the filing of a complaint—reinforces our conclusion that the TLA does not impose a

broad duty to defend on UI.

        For all the above reasons, the district court did not err in concluding that UI was not

obligated to indemnify Metro-North for the expense of its successful litigation defense. We have

considered Appellants’ remaining arguments and find them to be without merit. Accordingly, we

AFFIRM the judgment of the district court.

                                                          FOR THE COURT:
                                                          Catherine O’Hagan Wolfe, Clerk




2
  We also note that, under Article III, UI was obligated to list Metro-North as an additional insured on the
policy. J.A. 116. Thus, if UI did in fact procure such insurance, Metro-North’s defense costs presumably
would be covered under Article III. Nevertheless, at oral argument, counsel for Metro-North could not
explain why Metro-North did not assert a duty to defend against the insurance company. Oral Arg. at
32:10-35.


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