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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10922
____________________
CSX TRANSPORTATION, INC.,
Plaintiff-Appellant,
versus
GENERAL MILLS, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:14-cv-00201-TWT
____________________
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2 Opinion of the Court 22-10922
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, Circuit Judge, and
PROCTOR, ∗ District Judge.
JILL PRYOR, Circuit Judge:
CSX Transportation, Inc. is a freight railroad company that
provides rail transportation services. General Mills, Inc., a food
company, operates a cereal processing plant in Georgia near one of
CSX’s rail lines. A small connecting railroad known as a “sidetrack”
connects CSX’s main rail line to General Mills’s plant, allowing
General Mills to receive materials, ingredients, and equipment at
its plant and to send its cereal away for distribution. A contract be-
tween CSX and General Mills governs the use of the sidetrack.
To make a very long story short, a General Mills employee
suffered severe injuries while working on the sidetrack and then
sued CSX for negligence. After a jury found CSX liable, the em-
ployee recovered a large settlement from CSX. CSX then sought to
recover the settlement amount, as well as the expenses it incurred
in defending the negligence suit, from General Mills. In this law-
suit, CSX sued General Mills for breach of contract, claiming that
under the parties’ agreement, General Mills was required to indem-
nify CSX—regardless of whether CSX alone was responsible for the
employee’s injury or CSX and General Mills were jointly responsi-
ble. The district court dismissed one of CSX’s breach-of-contract
claims and granted General Mills summary judgment on the other.
∗ Honorable R. David Proctor, United States District Judge for the Northern
District of Alabama, sitting by designation.
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22-10922 Opinion of the Court 3
On appeal, CSX challenges both the district court’s rulings.
We agree with the district court that under the parties’ agreement,
General Mills was not required to indemnify CSX if CSX was solely
negligent. But we disagree with the district court that the Georgia-
law doctrine of vouchment barred CSX from litigating the issue of
General Mills’s negligence. If it turns out that General Mills was at
least partially at fault for the injury, then under the contract Gen-
eral Mills must indemnify CSX for at least a portion of the settle-
ment and related expenses. We thus affirm in part, reverse in part,
and remand.
I. BACKGROUND
We begin by reviewing the provisions in the contract be-
tween CSX and General Mills governing the sidetrack that connects
the CSX rail line with the General Mills cereal plant. We then de-
scribe how a General Mills employee was injured on the sidetrack,
sued CSX, and secured a substantial settlement. We then turn to
CSX’s efforts to hold General Mills liable for the settlement and ex-
penses CSX incurred in the underlying litigation.
A. The Sidetrack Agreement
CSX and General Mills signed a contract to build the side-
track in 1989 (the “Sidetrack Agreement”). They agreed that a phys-
ical railroad would be constructed and that General Mills would
have the option to conduct its own “switching” on that sidetrack—
that is, “moving railcars that have been previously delivered by a
train or assembling railcars in the proper order so that they can be
coupled to a locomotive and pulled out of [the General Mills]
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4 Opinion of the Court 22-10922
facility.” Doc. 63 at 3–4. 1 To switch railcars, an operator uses a
“trackmobile,” a type of mobile railcar mover used to move railcars
across short distances.
Relevant to this appeal, two contractual provisions ad-
dressed indemnification between the parties for losses related to
use of the sidetrack. First, in Section 11 the parties agreed that
“[e]xcept as otherwise provided” in the contract, for claims arising
out of “use . . . of the Sidetrack,” the parties would “jointly defend
and bear equally” losses due to “joint or concurring negligence,”
but each party would “hold the other party harmless” for any losses
due to “the indemnifying party’s . . . sole negligence.” Doc. 63-1 at
5–6. Section 11 carved out circumstances in which the default
rule—that the parties would jointly defend and bear equally any
losses—would not apply. The carved-out circumstances do not ex-
ist here. 2
1 “Doc.” numbers refer to the district court’s docket entries.
2 Under the carveout, General Mills is “solely responsible” for the following
losses: (1) “the failure of [General Mills] to properly maintain its segment of
the Sidetrack”; (2) “the construction, alteration[,] or removal of the Sidetrack
by [General Mills]”; (3) the presence of a restricted clearance on [General
Mills’s] Segment”; (4) “any personal injuries (including death) or property
damage (real or personal) sustained . . . as the result of any road crossing col-
lision on [General Mills’s] Segment”; and (5) “the explosion, spillage[,] and/or
presence of Hazardous Materials on [General Mills’s] properties, facility or on
[General Mills’s] Segment . . . when such Losses would not have occurred but
for the dangerous nature of the Hazardous Materials.” Doc. 63-1 at 6.
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Second, Section 15 gave General Mills the option to conduct
its own switching operations on the sidetrack. Section 15 provided
that if General Mills exercised the option to perform its own
switching, it would “assume[] all risk of loss, damage, cost, liability,
judgment[,] and expense, (including attorneys’ fees) in connection
with any personal injury” sustained or incurred by “employees of
either [General Mills] or [CSX] or third persons . . . in connection
with, or arising from or growing out of, the operation of” General
Mills’s switching operations. Id. at 7 (emphasis in original).
For over a decade, General Mills chose not to conduct its
own switching operations. Later, however, General Mills exercised
its contractual option to conduct its own switching. It bought a
trackmobile from a company that also provided training to General
Mills’s employees on how to use the trackmobile to conduct
switching operations. As part of the training, employees were
taught to use “chocks”—wedges placed on either side of a railcar’s
wheels to inhibit movement—and to employ the handbrakes on
railcars when operating the trackmobile.
B. The Negligence Lawsuit
A couple of years later, Doug Burchfield and Rodney Turk,
two General Mills employees, were using the trackmobile to move
AEX 7136, a railcar stocked with wheat that CSX had delivered to
the juncture between the main rail line and General Mills’s side-
track. After uncoupling AEX 7136 from the trackmobile and park-
ing it, Turk thought he saw the railcar move. He asked Burchfield
if he had set the handbrake. Burchfield assured Turk that he had set
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it. The pair left the railcar sitting on the track and moved away to
switch an empty railcar that was located just downhill from
AEX 7136. While Burchfield stood near the trackmobile, AEX 7136
sprung loose, rolled down the slope, and crashed into the track-
mobile, which in turn ran into the empty railcar. All three vehicles
derailed and ran over Burchfield. He suffered extensive injuries
leading to the amputation of both his lower legs.
Burchfield filed a personal injury suit in the Northern Dis-
trict of Georgia against CSX and the company that owned AEX
7136. 3 In his complaint, Burchfield alleged that CSX negligently de-
livered AEX 7136 to General Mills with a faulty handbrake, which
caused the accident.
CSX sent General Mills a letter notifying it of Burchfield’s
lawsuit. CSX demanded that General Mills provide a defense. Gen-
eral Mills refused to defend CSX.
In the Burchfield litigation, CSX sought to attribute fault to
General Mills for Burchfield’s injury. CSX argued that General
3 Because Burchfield received workers’ compensation for his injuries, Georgia
law precluded him from suing General Mills, his employer, for damages. See
O.C.G.A. § 34-9-11(a) (“The rights and the remedies granted to an employee
by this chapter shall exclude and be in the place of all other rights and remedies
of such employee . . . on account of such injury . . . .”); see also Brooks-Powers v.
Metro. Atlanta Rapid Transit Auth.,
579 S.E.2d 802, 804 (Ga. Ct. App. 2003) (stat-
ing that “[w]here the [Georgia Workers’ Compensation] Act is applicable, its
provisions are the exclusive remedy for the employee against the employer”
(internal quotation marks omitted)). And the company that owned the railcar
settled with Burchfield, leaving CSX as the sole defendant.
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Mills failed to train and supervise Burchfield and Turk and that be-
cause of General Mills’s negligence AEX 7136 was left without
chocks blocking the wheels or handbraking before the accident.
CSX requested that the district court use a verdict form that would
allow the jury to allocate fault to non-party General Mills.
Burchfield moved for summary judgment on the issue of
General Mills’s liability. The district court granted the summary
judgment motion, concluding that CSX failed to raise the affirma-
tive defense of General Mills’s fault in a timely manner and also
failed to introduce expert testimony regarding the standard of care.
See Burchfield v. CSX Transp. Inc, No. 1:07-cv-1263,
2009 WL
1405144, at *9–11 (N.D. Ga. May 15, 2009).
Burchfield’s negligence claim against CSX went to trial. The
jury found in CSX’s favor, and Burchfield appealed. Burchfield v.
CSX Transp. Inc.,
636 F.3d 1330, 1333 (11th Cir. 2011). We reversed
the judgment and remanded for a new trial on the ground that the
district court erred in admitting certain evidence.
Id. at 1338.
The case proceeded to a second trial. This time, the jury
found CSX liable and awarded Burchfield more than $20 million.
Asked to allocate fault between Burchfield and CSX, the jury found
that Burchfield was zero percent negligent and CSX was 100 per-
cent negligent. The jury was not asked about General Mills. CSX
appealed. While CSX’s appeal was pending, CSX and Burchfield
settled for $16 million.
Following the settlement, CSX demanded indemnification
from General Mills. CSX asserted that under the Sidetrack
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8 Opinion of the Court 22-10922
Agreement General Mills owed it the full amount of the settlement
payment, as well as the attorney’s fees and costs CSX incurred in
defending the case. According to CSX, General Mills was required
to indemnify it under both Section 11 and Section 15 of the Side-
track Agreement.
General Mills again refused CSX’s demand, contending that
there was “no basis—contractual or otherwise—for the demand
that General Mills indemnify CSX for its own negligence and re-
sulting damages.” Doc. 63-8 at 2. Addressing Section 11, General
Mills maintained that it was required to indemnify CSX only if Gen-
eral Mills was also negligent. In General Mills’s view, because the
jury in the Burchfield litigation concluded that CSX was 100 percent
at fault, “meaning 100% individually at fault as compared to any-
one else in the world who could have been potentially at fault for
Mr. Burchfield’s injuries,” Section 11 did not support CSX’s re-
quest. Id. at 3.
As to Section 15, General Mills contended that it owed no
duty to indemnify CSX for the same reason: CSX’s negligence was
the sole cause of Burchfield’s injury. General Mills asserted that
Section 15 did not require it to indemnify CSX for losses that arose
solely from CSX’s own negligence.
C. CSX’s Breach-of-Contract Lawsuit
CSX sued General Mills for breach of contract, seeking in-
demnification for the settlement with Burchfield. As relevant on
appeal, CSX alleged that under Section 15 of the Sidetrack Agree-
ment General Mills was required to assume all costs for injuries
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arising from General Mills’s switching operations “without regard
to who ultimately was determined to be at fault.” Doc. 1 at 18.
General Mills moved to dismiss the complaint for failure to
state a claim, and the district court granted the motion. The court
explained that under Georgia law, a party is contractually obligated
to indemnify another party for losses when the first party is not
negligent only if the parties’ contract meets the “heightened speci-
ficity requirement” of “expressly, plainly, clearly, and unequivo-
cally” providing for indemnification under such circumstances.
Doc. 36 at 8 (emphasis omitted). The court determined that Section
15 did not meet that standard and thus General Mills was not re-
quired to indemnify CSX when CSX alone was negligent. The dis-
trict court thus concluded that the Sidetrack Agreement did not re-
quire General Mills to indemnify CSX for the Burchfield settlement
or its litigation costs.
CSX moved for reconsideration of the district court’s order
dismissing the complaint. It argued that the dismissal relied on the
“unspoken premise” that CSX could not litigate General Mills’s
fault because federal collateral estoppel principles precluded it from
doing so. Doc. 38 at 5. In CSX’s view, the district court committed
legal error by applying federal collateral estoppel law when it
should have applied Georgia law. Georgia’s collateral estoppel rule
would have allowed CSX to litigate General Mills’s negligence. 4
4 Under Georgia’s collateral estoppel rule, CSX would be precluded from rais-
ing arguments about General Mills’s negligence in the indemnity suit only if
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10 Opinion of the Court 22-10922
The district court denied the motion, stating that CSX “failed to
show that the Court committed a clear error of law.” Doc. 41 at 3.
CSX appealed the district court’s dismissal of its complaint,
and we reversed. CSX Transp., Inc. v. General Mills, Inc.,
846 F.3d
1333 (11th Cir. 2017). We focused on the district court’s conclusion
that federal collateral-estoppel principles precluded CSX from liti-
gating General Mills’s fault in the indemnification action.
Id. at
1335. We agreed with CSX that the district court should have ap-
plied Georgia’s collateral estoppel rule.
Id. at 1340. But we re-
manded for the district court to determine whether, under that
rule, General Mills and Burchfield were “identical parties” so that
the Burchfield judgment was binding on CSX in the indemnity suit.
Id. (internal quotation marks omitted). We expressly declined to
decide “whether the Sidetrack Agreement requires indemnification
assuming CSX was solely at fault.”
Id.
On remand, CSX filed an amended complaint alleging three
counts. Count One again alleged that Section 15 of the Sidetrack
Agreement required General Mills to indemnify CSX “without
the Burchfield lawsuit involved “the same parties or their privies.” Cmty. State
Bank v. Strong,
651 F.3d 1241, 1264 (11th Cir. 2011) (internal quotation marks
omitted); see Camden Cnty. v. Sweatt,
883 S.E.2d 827, 833 (Ga. 2023) (explaining
that collateral estoppel precludes “re-adjudication of an issue that has previ-
ously been litigated . . . in another action between the same parties or their
privies (emphasis omitted) (internal quotation marks omitted)). By contrast,
under the federal rule, a non-party to a previous action (General Mills) may
assert collateral estoppel offensively to preclude a party to the previous action
(CSX) from litigating issues decided in the previous action. See Parklane Hosiery
Co. v. Shore,
439 U.S. 322, 331 (1979).
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regard to who ultimately might be determined to be at fault.” Doc.
63 at 16 (emphasis omitted). Count Two alleged, in the alternative,
that Section 15 required General Mills to indemnify CSX because
General Mills bore “at least some fault in causing Mr. Burchfield’s
injuries.” Id. at 19 (emphasis omitted). Count Three alleged, also in
the alternative, that if “Burchfield’s injuries did not arise from or
grow out of use of the trackmobile” and CSX and General Mills
were jointly or concurrently negligent, Section 11 required General
Mills to indemnify CSX for 50 percent of CSX’s loss. Id. at 21.
General Mills again moved to dismiss CSX’s claims. The dis-
trict court dismissed Count One for the same reason it had dis-
missed the Section 15 claim in its earlier order: Section 15’s lan-
guage was too broad and vague to require General Mills to indem-
nify CSX without regard to fault. But the court did not dismiss
Counts Two or Three. Applying Georgia’s collateral estoppel rule,
the court concluded that CSX was not barred from arguing that
General Mills was partially at fault for Burchfield’s injuries. There-
fore, the claims in Counts Two and Three, which required CSX to
show General Mills was at least partially at fault, survived.
After discovery, the parties filed cross-motions for summary
judgment. In its summary judgment motion, General Mills ex-
plained that for CSX to prevail on Counts Two or Three, it had to
show that General Mills’s negligence caused or contributed to
Burchfield’s injuries. Again, General Mills maintained that CSX was
precluded from litigating General Mills’s negligence. This time, it
argued that because CSX had vouched General Mills into the
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12 Opinion of the Court 22-10922
Burchfield litigation, CSX was bound by the Burchfield judgment,
which General Mills said determined that “CSX was 100% at fault
. . . Burchfield was 0% at fault . . . and General Mills was not negli-
gent.” Doc. 188 at 17. The district court agreed, remarking that “in
the vouchment doctrine, [General Mills] appears to have finally hit
on a viable preclusion argument.” Doc. 258 at 7. The district court
entered judgment against CSX.
CSX now appeals the district court’s orders granting General
Mills’s motion to dismiss Count One and its motion for summary
judgment on Counts Two and Three.
II. STANDARD OF REVIEW
We review de novo an order granting a motion to dismiss for
failure to state a claim. See Hoever v. Marks,
993 F.3d 1353, 1357 (11th
Cir. 2021) (en banc). We also review de novo a district court’s grant
of summary judgment. See State Farm Mut. Auto. Ins. Co. v. Spangler,
64 F.4th 1173, 1178 (11th Cir. 2023). In addition, the interpretation
of a contract or statute is a question of law that we review de novo.
See Hoever, 993 F.3d at 1357 (statute); Southland Distribs. Mktg. Co. v.
S&P Co.,
296 F.3d 1050, 1053 (11th Cir. 2002) (contract).
III. DISCUSSION
CSX raises two theories on appeal for why General Mills is
required to indemnify it. First, CSX argues that even if it was solely
at fault for Burchfield’s injuries, Section 15 of the Sidetrack Agree-
ment required General Mills to indemnify it. Second, it argues that
that General Mills owed it a duty to defend because a reasonable
jury could find that General Mills was at least partially at fault in
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causing Burchfield’s injuries. As to this second theory, CSX argues
that the district court erred in concluding that Georgia’s vouch-
ment statute precluded it from establishing that General Mills was
at least partially at fault for Burchfield’s injuries. We address the
two theories in turn.
A. The Sidetrack Agreement does not require General Mills
to indemnify CSX when CSX is solely at fault.
CSX argues the district court erred in dismissing Count One,
its indemnification claim under Section 15. It reasons that the Side-
track Agreement unambiguously required General Mills to indem-
nify CSX, even for CSX’s sole negligence, so the district court erred
in refusing to enforce the provision. We disagree.
Under Georgia law, 5 a contract requires indemnification for
an indemnitee’s sole negligence only when it explicitly says that the
indemnitor must pay even if he is not negligent. See Park Pride At-
lanta, Inc. v. City of Atlanta,
541 S.E.2d 687, 689 (Ga. Ct. App. 2000).
In Park Pride, a non-profit organization agreed to hold a city harm-
less “from any and all claims . . . of any kind . . . or nature . . . for
any activity sponsored by” the organization.
Id. (internal quotation
marks omitted) At a park clean-up event sponsored by the organi-
zation, a city dump truck rolled backward crushing a woman, who
died from her injuries, and injuring her husband.
Id. at 688. The
husband sued the city, bringing claims arising out of his wife’s
5 The parties agree that Georgia law governs CSX’s claims.
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death and his injuries.
Id. After the city settled the tort litigation, it
sued the organization seeking indemnification.
Id.
The Georgia Court of Appeals considered whether the in-
demnification agreement required the organization to indemnify
the city for the city’s own negligence.
Id. at 689. The court began
with the principle that “[p]ublic policy is reluctant to cast the bur-
den for negligent actions upon those who are not actually at fault”
because “[p]ublic policy seeks to encourage people to exercise due
care in their activities for fear of liability, rather than to act care-
lessly cloaked with the knowledge that an indemnity contract will
relieve such indifference.”
Id. Based on this public policy concern,
it explained that a party who was not negligent generally would
not be required to indemnify a party who was negligent unless a
contract “explicitly and expressly” required indemnification.
Id.
The court emphasized that “[t]he words of a contract of indemnifi-
cation . . . must be construed strictly against the indemnitee” with
“every presumption” against indemnification.
Id. (internal quota-
tion marks omitted).
Relying on this standard, the Georgia Court of Appeals con-
cluded that the parties’ agreement did not require the organization
to indemnify the city. Although the indemnification provision at
first blush “appear[ed] to indemnify the [c]ity ‘against any and all
claims,’” the provision was “bereft of any express or explicit state-
ment about coverage for the [c]ity’s own negligent acts.”
Id. Be-
cause the indemnity provision “failed to expressly, plainly, clearly,
and unequivocally state that [the organization] would indemnify
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22-10922 Opinion of the Court 15
the [c]ity from the [c]ity’s own negligence,” the organization had
no obligation to indemnify the city for the settlement in the under-
lying litigation. Id.; see also Viad Corp. v. U.S. Steel Corp.,
808 S.E.2d
58, 60, 63 (Ga. Ct. App. 2017) (holding that an agreement to indem-
nify for “[a]ll debts, liabilities, and obligations” was not “sufficient”
to require indemnification for a party’s sole negligence because the
agreement did not explicitly mention the “negligence” of the party
seeking indemnification (internal quotation marks omitted)); S. Ry.
Co. v. Union Camp Corp.,
353 S.E.2d 519, 520–21 (Ga. Ct. App. 1987)
(reaching same conclusion for agreement to indemnify for “all loss,
damage, liability or expense” (internal quotation marks omitted)).
With this guidance, we return to the Sidetrack Agreement.
Section 15 set forth General Mills’s option to conduct its own
switching operations and the risk of liability it accepted in ex-
change. If General Mills chose to perform its own switching, it “as-
sume[d] all risk of loss, damage, cost, liability, judgment[,] and ex-
pense . . . in connection with any personal injury. . . arising from
. . . the operation of [General Mills’s] trackmobile or locomotive
power upon [the] Sidetrack.” Doc. 63-1 at 7 (emphasis in original).
Applying Georgia law, we conclude that this provision did
not require General Mills to indemnify CSX for CSX’s sole negli-
gence. Nothing in Section 15 “explicitly and expressly” stated that
indemnification was required if General Mills was not at fault. Park
Pride,
541 S.E.2d at 689. To be sure, under Section 15’s broad terms,
General Mills “assume[d] all risk of loss.” Doc. 63-1 at 7 (emphasis
omitted). But as Park Pride made clear, such language does not
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16 Opinion of the Court 22-10922
“expressly, plainly, clearly, and unequivocally” state that an indem-
nitor must cover losses that result from the indemnitee’s own neg-
ligence.
Id. at 689.
CSX’s counterarguments are unavailing. It contends that
Section 15 makes sense only if General Mills was required to in-
demnify it regardless of fault. In its view, the Sidetrack Agreement
allowed General Mills to take over its switching operations—mean-
ing that CSX would give up “both control over the risk and the
revenue from performing the switching function for General
Mills”—in exchange for General Mills’s agreement to “assume all
risk of liability for any personal injury to any person.” Appellant’s
Br. at 25 (alterations adopted). At first blush, CSX’s quid pro quo
argument is compelling: CSX gave up control over—including the
potential ability to prevent accidents—and revenue from switching
activity on the sidetrack, and in return General Mills accepted all
liability regardless of who was at fault. But the Georgia Court of
Appeals concluded that a similar indemnification provision—in
which the indemnitor agreed to assume liability for “all loss” that
the indemnitee incurred “because of any injury to or death of any
person or loss of or injury or damage to any property”—did not
“expressly state[] that the negligence of the indemnitee is covered”
and thus did not require indemnification for the indemnitee’s own
negligence. See S. Ry. Co.,
353 S.E.2d at 520–21. Section 15’s lan-
guage is simply not explicit enough to require General Mills to in-
demnify CSX for CSX’s own negligence, particularly given that we
must construe the contract “strictly against” CSX as the indem-
nitee. Park Pride,
541 S.E.2d at 689. Here, construing the contract
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22-10922 Opinion of the Court 17
strictly against CSX means that General Mills does not have to in-
demnify unless it was at least partially liable for Burchfield’s acci-
dent.
Georgia’s rules of contract construction require that we in-
terpret Section 15 in the context of the entire agreement. See
Peachtree on Peachtree Invs., Ltd. v. Reed Drug Co.,
308 S.E.2d 825, 828
(Ga. 1983). But our reading does not conflict with the rest of the
contract. Section 11(A) generally provided that each party would
“hold the other party harmless” for losses arising from “the indem-
nifying party’s . . . sole negligence.” Doc. 63-1 at 6. Section 11(C)
carved out five specific exceptions in which General Mills agreed
to indemnify CSX “irrespective of the sole . . . negligence of [CSX].”
Id. These carveouts described the only circumstances in which
General Mills was required to indemnify CSX if CSX was solely
negligent. And none of the carveouts included incidents arising out
of General Mills’ switching operations discussed in Section 15.
Because Section 15 did not expressly, explicitly, and une-
quivocally require General Mills to indemnify CSX for CSX’s sole
negligence, the district court did not err in dismissing CSX’s claim
that General Mills was liable under Section 15 even if CSX alone
was negligent. We thus affirm the district court’s dismissal of
Count One.
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B. The vouchment doctrine does not bar CSX from estab-
lishing that General Mills was at least partially at fault
and thus liable under the Sidetrack Agreement.
CSX’s other argument on appeal arises from its alternative
theory that the Sidetrack Agreement required General Mills to in-
demnify CSX because General Mills’s negligence contributed to
Burchfield’s injuries. CSX argues that the district court erred in
granting General Mills’s motion for summary judgment because
the court misapplied Georgia’s vouchment law when it found that
CSX was bound by the Burchfield jury’s verdict and thus could not
prove that General Mills was partially at fault.
We begin by introducing Georgia’s vouchment statute. We
then explain why we agree with CSX that the vouchment statute
binds only General Mills to the Burchfield judgment.
1. Vouchment under Georgia law
Georgia’s vouchment doctrine addresses when a non-party
may be bound by the judgment in a lawsuit. The term “vouch”
means “to call into court to warrant and defend.” Loeb v. May,
198 S.E. 785, 786 (Ga. 1938) (internal quotation marks omitted). A
rudimentary hypothetical demonstrates how vouchment works: A
plaintiff sues a defendant for an injury. But the defendant believes
that a non-party is liable for the plaintiff’s injury instead. Vouch-
ment empowers the defendant as a “voucher” to bind the non-
party as the “vouchee” to the judgment in the first lawsuit about
the plaintiff’s right to recover.
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22-10922 Opinion of the Court 19
To use this tool, the defendant merely needs to notify the
non-party about the action against the defendant. See, e.g., Chicago
v. Robbins,
67 U.S. (2 Black) 418, 423 (1862); W. & Atl. R.R. Co. v.
City of Atlanta,
74 Ga. 774, 777 (1885). Importantly, vouchment does
not make the non-party a party to the lawsuit. See 13 Ga. Jurispru-
dence § 10:27 (Sept. 2023 update). Instead, vouchment occurs out-
side of court and is subject to few procedural rules. It requires noth-
ing more of the voucher than giving notice of the lawsuit to the
vouchee, which can be done in a letter or even orally. Id.
In 1895, Georgia enacted a statute codifying the common-
law doctrine of vouchment. The statute provides:
Where a defendant may have a remedy over against
another person and vouches him into court by giving
notice of the pendency of the action, the judgment
rendered therein shall be conclusive upon the person
vouched, as to the amount and right of the plaintiff
to recover.
O.C.G.A. § 9-10-13. The doctrine’s primary purpose is judicial effi-
ciency:
[I]f the act of the vouchee is the real thing complained
of, so that, if there is a recovery by the injured party
against the voucher, he can turn right around and
claim indemnity from the vouchee, then it is to the
interest of the state that a multiplicity of suits should
be avoided by requiring the vouchee to appear in the
original suit and set up any defense which he has.
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20 Opinion of the Court 22-10922
Raleigh & G.R. Co. v. W. & A.R. Co.,
65 S.E. 586, 588 (Ga. Ct. App.
1909). The idea is that the first lawsuit will conclusively determine
the injured party’s right to recover, limiting the scope of a later in-
demnification lawsuit to the sole question of “the relationships and
liabilities between the party vouching and the person vouched.”
McArthor v. Ogletree,
61 S.E. 859, 860 (Ga. Ct. App. 1908). In this
way, vouchment incentivizes the vouchee to support the voucher’s
defense against the plaintiff by raising affirmative defenses or intro-
ducing any relevant evidence in the first lawsuit. See S. Ry. Co. v.
Acme Fast Freight,
19 S.E.2d 286, 287–88 (Ga. 1942). That said, the
vouchee is not obligated to participate in the voucher’s defense.
Id.
It may, as General Mills did, decline to defend. But it will be bound
by the judgment in the underlying lawsuit. See
id. With this back-
ground, we turn to the vouchment issue before us.
2. Application of Vouchment to the Burchfield Judg-
ment
The parties agree that CSX vouched General Mills into the
Burchfield case and that General Mills refused to participate. In a
traditional vouchment scenario, CSX would then be able to invoke
the vouchment doctrine to bar General Mills from relitigating is-
sues related to Burchfield’s right to recover or the amount of his
damages because those issues were already decided in the Burchfield
case. But in this lawsuit, it is General Mills—the vouchee—who
seeks to use vouchment to bar CSX from litigating issues that Gen-
eral Mills insists were decided against CSX in the Burchfield litiga-
tion. As a federal court addressing an issue of Georgia state law in
this diversity action, we must defer to the Georgia courts’ appellate
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22-10922 Opinion of the Court 21
decisions on that issue. 6 But here, no Georgia court has ever con-
sidered whether an earlier judgment has preclusive effect on a
voucher in an action against his vouchee. In the prior vouchment
cases, the vouchee, not the voucher, sought to relitigate the earlier
liability finding, so this question has not been decided. See, e.g., W.
& Atl. R.R.,
74 Ga. at 777. Thus, the question whether vouchment
binds both parties or only the vouchee is one of first impression on
which we have no state court guidance.
The district court determined that the Burchfield judgment
decided the question of whether General Mills was liable for Burch-
field’s accident and that CSX was precluded from pursing indemni-
fication based on General Mills’s partial or complete fault for
Burchfield’s accident. CSX’s claims for recovery under Counts Two
and Three both depend on General Mills being at least partially at
fault. So, by precluding CSX from attempting to show that General
6 Because our jurisdiction in this case rests on diversity of citizenship,
see
28 U.S.C. § 1332, we apply the substantive law of Georgia—the forum
state, see Erie R.R. Co. v. Tompkins,
304 U.S. 64, 78 (1938). When a state’s highest
appellate court (in this case the Georgia Supreme Court) has addressed an is-
sue of state law, we simply apply its holding. See Winn-Dixie Stores, Inc. v. Dol-
gencorp, LLC,
746 F.3d 1008, 1021 (11th Cir. 2014). But when we are confronted
with a state-law issue of first impression, we must attempt to predict how the
state’s highest court would decide the issue. See Turner v. Wells,
879 F.3d 1254,
1262 (11th Cir. 2018). Absent certainty from the state’s highest court, we apply
the decisions of the state’s intermediate court—here, the Georgia Court of Ap-
peals—unless there is “persuasive indication that the [Georgia Supreme Court]
would rule otherwise.” CSX Transp., Inc. v. Trism Specialized Carriers, Inc.,
182 F.3d 788, 791 (11th Cir. 1999).
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22 Opinion of the Court 22-10922
Mills was negligent to support its claims, the district court eviscer-
ated CSX’s theory of recovery and inevitably concluded that CSX’s
alternative claims failed.
CSX argues that the district court misinterpreted the vouch-
ment statute because vouchment binds only the vouchee (General
Mills), not the voucher (CSX), to a judgment. We agree with CSX’s
reading of the vouchment statute.
In interpreting Georgia’s vouchment statute, we look to
Georgia’s rules of statutory construction. See Grange Mut. Cas. Co.
v. Woodward,
826 F.3d 1289, 1300 (11th Cir. 2016) (explaining that
we “examine Georgia’s canons of statutory construction to attempt
to determine how Georgia courts would interpret a statute”). Un-
der Georgia law, “if the statutory text is clear and unambiguous,
we attribute to the statute its plain meaning, and our search for
statutory meaning is at an end.” Deal v. Coleman,
751 S.E.2d 337,
341 (Ga. 2013) (internal quotation marks omitted).
As a reminder, the vouchment statute provides that when a
defendant in a lawsuit gives notice to another person and vouches
her into the lawsuit, “the judgment rendered therein shall be con-
clusive upon the person vouched, as to the amount and right of the
plaintiff to recover.” O.C.G.A. § 9-10-13 (emphasis added). By its
plain language, the statute addresses the preclusive effect of a judg-
ment in an underlying action on the vouchee, not the voucher. And
the title of the statute, “Effect of judgment on party vouched into
court,” is consistent with that language. Id. (emphasis added); see
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
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22-10922 Opinion of the Court 23
of Legal Texts § 35, at 221 (2012) (recognizing that “title and headings
are permissible indicators of meaning”); Ne. Atlanta Bonding Co. v.
State,
707 S.E.2d 921, 926 n.5 (Ga. Ct. App. 2011) (explaining that
statute’s title may be considered when “ascertaining legislative in-
tent”). As to the preclusive effect of the judgment on the vouching
party, the statute is silent. See O.C.G.A. § 9-10-13.
This interpretation is also consistent with the canon of con-
struction that “[a] statute will be construed to alter the common
law only when that disposition is clear.” Scalia & Garner, § 52, at
318; see Boca Petroco, Inc. v. Petroleum Realty II, LLC,
678 S.E.2d 330,
332–33 (Ga. 2009) (recognizing that a “common law rule survives
[a] statute regarding same area of concern when [the] statute does
not directly address certain elements of [the] common law rule”).
Here, there are no clear signs that the statute altered the common
law. Instead, the Georgia Supreme Court has repeatedly stated that
the vouchment statute codified—and did not alter—the common-
law doctrine of vouchment. See, e.g., Loeb, 198 S.E. at 786; McArthor,
61 S.E. at 860. Therefore, we must interpret the statute in the light
of its common-law history.
And we see nothing in the common law to suggest that
vouchment precludes the voucher from litigating issues that may
have been decided in earlier litigation between the injured party
and the voucher. At the time Georgia enacted the vouchment stat-
ute, the key Georgia common-law decisions on vouchment were
Western & Atlantic Railroad,
74 Ga. at 777, and Faith v. City of At-
lanta,
78 Ga. 779 (1887). See Loeb, 198 S.E. at 786 (explaining that
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24 Opinion of the Court 22-10922
Georgia’s vouchment statute adopted the reasoning from these de-
cisions). Neither case holds that vouchment precludes the voucher
from relitigating issues that were decided in the underlying litiga-
tion.
We start with Western & Atlantic Railroad. In that case, a pe-
destrian who was injured at a railroad crossing sued a city for neg-
ligent maintenance of the crossing.
74 Ga. at 776. Although the city
notified the railroad of the case and claimed that the railroad was
liable, the railroad did not participate in the pedestrian’s negligence
action.
Id. at 776–77. After the city was held liable in the negligence
action, it sued the railroad.
Id. at 776.
In the indemnification action, the railroad (which was the
vouchee) sought to introduce evidence that the pedestrian was at
fault.
Id. at 777. The trial court excluded the evidence. The Georgia
Supreme Court affirmed, explaining that “both the city and the rail-
road company were concluded” by the verdict in the negligence
case “and should not be heard to say that [the pedestrian] . . . could
have avoided the injuries which he received.”
Id. at 778. Although
the Court’s broad language, read in isolation, could suggest that
both the city and railroad were bound by the judgment, the deci-
sion was addressing the effect that the judgment in the underlying
negligence action had on the vouchee (the railroad), not the
voucher (the city). The Georgia Supreme Court made no ruling
about the vouchment’s preclusive effect on the city because that
issue was not before it.
Id.
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22-10922 Opinion of the Court 25
A few years later, the Georgia Supreme Court again ad-
dressed vouchment in Faith. In that case, a person injured on a city
street sued a city for negligence. 4 S.E. at 3. The city believed that
the plaintiff’s injuries were caused by a property owner who had
dug holes in the street and left the holes uncovered. Id. The city
asked the property owner to appear and defend the suit. Id. The
property owner refused. Id. After the plaintiff recovered against the
city in the negligence action, the city sued the property owner seek-
ing indemnification. Id. The city prevailed in the indemnification
action, and the property owner appealed. Id.
On appeal, the Georgia Supreme Court addressed the issues
the property owner (the vouchee) could raise in defending the in-
demnification action brought by the city (the voucher). Because
“the judgment of the injured party against the city” was “conclu-
sive” as to the right of the injured party to recover and the amount
of his damages, the property owner could not raise these issues. Id.
at 4. But he could raise other defenses including that “he was under
no obligation to keep that portion of the streets in safe condition;”
that “it was not through his [fault] that the injury happened;” and
that if he and the city were both responsible, the city could not re-
cover against him. Id. Although the Georgia Supreme Court stated
broadly that the judgment was “conclusive between the city and
[the property owner],” it did not address the vouchment’s preclu-
sive effect on the voucher because that question was not at issue.
Id.
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26 Opinion of the Court 22-10922
In these two foundational common-law vouchment cases,
the Georgia Supreme Court held that the earlier judgment bound
the vouchee. No more, no less. We agree with CSX that we are not
bound by any “loose language,” Appellant’s Br. at 46, in which the
Georgia Supreme Court commented on issues not before it in each
case. See Edwards v. Prime, Inc.,
602 F.3d 1276, 1298 (11th Cir.
2010) (“We have pointed out many times that regardless of what a
court says in its opinion, the decision can hold nothing beyond the
facts of that case.”); State v. Dorsey,
875 S.E.2d 900, 907 n.5 (Ga. Ct.
App. 2022) (“Language that sounds like a holding—but actually ex-
ceeds the scope of the case’s factual context—is not a holding no
matter how much it sounds like one.” (internal quotation marks
omitted)). We thus conclude that the vouchment statute, con-
sistent with Georgia common law, provides that the vouchee alone
is bound from relitigating issues decided in the earlier litigation.
General Mills nevertheless argues that we should reject this
interpretation of the vouchment statute because it allows a
voucher to “unilaterally bind a vouchee to favorable findings and
contest unfavorable ones,” which provides an impermissible wind-
fall to the voucher. Appellee’s Br. at 24 (internal quotation marks
omitted). This argument misunderstands vouchment’s purpose.
“Vouchment is a right granted to the voucher under the statute,
as is the binding effect of the judgment against the vouchee.” Hardee
v. Allied Steel Bldgs., Inc.,
356 S.E.2d 682, 684 (Ga. Ct. App. 1987)
(emphasis added). In other words, by design, vouchment empowers
the voucher, not the vouchee. Vouchment exists to incentivize the
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22-10922 Opinion of the Court 27
vouchee to participate in the earlier action, defend his interests
there, and reduce the burden of duplicative litigation on the judicial
system. To accomplish this purpose, vouchment creates carrots
and sticks for the vouchee. One stick is that a vouchee who is in-
vited to participate in the earlier action and chooses not to do so is
more likely to find herself bound to determinations she does not
like precisely because she chose not to participate when invited to
do so. General Mills’s concern that vouchment, if it only binds the
vouchee, tends to work against vouchees is simply a feature of the
doctrine. 7
Because the doctrine of vouchment does not preclude CSX
from introducing evidence of General Mills’s fault, CSX may be
able to establish that General Mills was at least partially at fault for
Burchfield’s injuries and thus required under the Sidetrack Agree-
ment to indemnify CSX for at least a portion of the settlement and
expenses incurred in the Burchfield litigation. Accordingly, we re-
verse the district court’s order granting summary judgment on
Counts Two and Three.
7 CSX argues in the alternative that the vouchment statute does not bar it from
raising an issue about General Mills’s fault because no issue regarding General
Mills’s negligence was decided in the Burfield litigation. Because we conclude
that the vouchment statute does not preclude CSX (as voucher) from relitigat-
ing any issues against General Mills, we need not address this alternative argu-
ment.
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28 Opinion of the Court 22-10922
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the district
court’s dismissal of Count One, REVERSE the district court’s entry
of summary judgment on Counts Two and Three, and REMAND
for further proceedings.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
