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Burlington Northern and Santa Fe Railway Co. v. National Union Fire Insurance Co. of Pittsburgh, Pa

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OPINION

The Burlington Northern and Santa Fe Railway Company (“BNSF” or “the railroad”) appeals the entry of summary judgment in favor of National Union Fire Insurance Company (“National Union”). The trial court below entered a take-nothing judgment that determined that National Union did not have a duty to defend the railroad, and that the railroad had no right to indemnity. The railroad raises four issues challenging the entry of judgment on both claims.

In February of 1994, BNSF entered into a three-year contract with SSI Mobley for vegetation control along the railroad’s right-of-ways in Texas. As part of the contract, SSI Mobley agreed to purchase a comprehensive general liability policy and a contractual liability policy insuring itself for one million dollars per occurrence, or three million dollars aggregate.*fn1 SSI Mobley also agreed that BNSF would be named as an “additional insured” on the policies, with coverage to extend to incidents occurring within fifty feet of a railroad track. SSI Mobley purchased the required insurance from National Union.

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