Full opinion text
AMENDED MEMORANDUM OPINION REGGIE B. WALTON, District Judge. This action was instituted on behalf of individuals who were killed or injured in a collision between two Washington Metropolitan Area Transit Authority (“WMA-TA”) trains that occurred on June 22, 2009, near WMATA’s Fort Totten Metro-rail station. Currently before the Court are the following seven contested dispositive motions: (1) WMATA’s motion to dismiss Alstom Signaling, Inc.’s (“Alstom”) statute of repose affirmative defense, ECF No. 353; (2) Ansaldo STS USA, Inc.’s (“Ansaldo”) motion for judgment on Counts 7, 11, and 15 of the Second Amended Master Complaint, ECF No. 367; (3) WMATA’s motion to dismiss the equitable indemnification cross-claims against it, ECF No. 424; (4) Alstom, Ansaldo, and ARINC Incorporated’s (“ARINC”) (collectively “corporate defendants”) joint motion for summary judgment on all claims, ECF No. 425; (5) Ansaldo’s motion for summary judgment, ECF No. 426; (6) Alstom’s motion for summary judgment, ECF No. 427; and (7) ARINC’s motion for summary judgment, ECF No. 428. Upon careful consideration of the parties’ submissions, the Court concludes for the following reasons that (1) WMATA’s motion to dismiss Alstom’s statute of repose defense must be granted in part and denied in part; (2) Ansaldo’s motion for judgment on Counts 7, 11, and 15 of the Second Amended Master Complaint must be granted; (3) WMATA’s motion to dismiss the equitable indemnification cross-claims against it must be granted; (4) the corporate defendants’ motion for summary judgment must be denied; (5) Ansaldo’s motion for summary judgment must be denied; (6) Alstom’s motion for summary judgment must be denied; and (7) ARINC’s motion for summary judgment must be granted in part and denied in part. I. Standards of Review A. Motion to Dismiss under Rule 12(b)(1) When a defendant moves for dismissal under Federal Rule of Civil Procedure 12(b)(1), “the plaintiff[] bear[s] the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction.” Biton v. Palestinian Interim Self-Gov’t Auth., 310 F.Supp.2d 172, 176 (D.D.C.2004); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A court considering a Rule 12(b)(1) motion must “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting [a] plaintiff the benefit of all inferences that can be derived from the facts alleged.’ ” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.Cir.2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C.Cir.2005)). However, “the district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005) (citing Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C.Cir.1992)). B. Motion for Judgment on the Pleadings under Rule 12(c) Federal Rule of Civil Procedure 12(c) permits “a party [to] move for judgment on the pleadings” so long as the motion is made “[a]fter the pleadings are closed — but early enough not to delay trial.” “The standard for a motion for judgment under Rule 12(c) is essentially the same standard as a motion to dismiss under Rule 12(b)(6).” Rollins v. Wackenhut Servs., 802 F.Supp.2d 111, 116 (D.D.C. 2011) (citing, among others, Schuchart v. La Taberna Del Alabardero, Inc., 365 F.3d 33, 35 (D.C.Cir.2004)). Accordingly, when considering a Rule 12(c) motion, “the court must accept the nonmovant’s allegations as true and should view the facts in the light most favorable to the nonmovant.” Bowman v. District of Columbia, 562 F.Supp.2d 30, 32 (D.D.C.2008). “The court should grant a motion for judgment on the pleadings if the movant ‘is entitled to judgment as a matter of law.’” Id. (quoting Burns Int'l Sec. Servs, v. Int’l Union, 47 F.3d 14, 16 (2d Cir.1995)). C. Motion for Summary Judgment under Rule 56 A motion for summary judgment will be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the initial burden of showing the absence of a disputed material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party opposing a motion for summary judgment “may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact is one that “might affect the outcome of the suit under the governing law.” Id. “The evidence is to be viewed in the light most favorable to the nonmoving party and the court must draw all reasonable inferences in favor of the nonmoving party.” Talavera v. Shah, 638 F.3d 303, 308 (D.C.Cir. 2011) (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505). “Although summary judgment is not the occasion for the court to weigh credibility or evidence, summary judgment is appropriate ‘if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’ ” Id. (citations omitted). “[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a [reasonable] jury to return a verdict for that party.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505. “The mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Id. at 252, 106 S.Ct. 2505 (emphasis added). II. WMATA’s motion to dismiss Alstom’s statute of repose affirmative defense A. Introduction Alstom asserts, as an affirmative defense, that WMATA’s cross-claims for contribution and contractual indemnity-are time-barred under the District of Columbia’s (“District”) statute of repose. WMATA moves to dismiss this affirmative defense, arguing that its cross-claims fall under two exceptions to the District’s statute of repose: (1) the exception for claims asserted by the District of Columbia government, and (2) the exception for claims based on a contract. The Court concludes that WMATA’s cross-claim for contractual indemnity falls under the statute of repose’s exception for claims based on a contract, but that its cross-claim for contribution does not. The Court also concludes that neither cross-claim falls under the statute of repose’s exception for claims brought by the District. Accordingly, WMATA’s motion is granted in part and denied in part. B. Background WMATA filed a cross-claim against Alstom containing two counts: Count I is for contribution, and Count II is for contractual indemnity. See ECF No. 140 ¶¶ 84-90. The contribution claim asserts that if WMATA is found hable to the plaintiffs, WMATA is entitled to contribution from Alstom with respect to damages proximately caused by Alstom’s negligently and defectively designed automatic train control system. Id. ¶¶ 85-86. The contractual indemnity claim asserts that if WMATA is found liable to the plaintiffs, it is entitled to indemnification from Alstom pursuant to several provisions of a contract between the parties. Id. ¶ 88. In its Answer to WMATA’s cross-claim, Alstom asserts that WMATA’s cross-claims for contribution and indemnification are time-barred under the District’s statute of repose. ECF No. 178 ¶ 10. The District’s statute of repose bars “any action” for “personal injury” or “wrongful death ... resulting from the defective or unsafe condition of an improvement to real property” if the injury or death occurs more than ten years after the “improvement was substantially completed.” D.C.Code ,§ 12-310(a)(l)(A) (2001) The statute also bars any action “for contribution or indemnity which is brought as a result of such injury or death” if the injury or death occurs more than ten years after the “improvement was substantially completed.-” Id. § 12-310(a)(1)(B). However, the statute’s ten-year limitations period does not apply to, among other lawsuits, “any action based on a contract, express or implied,” id. § 12 — 310(b)(1), or “any action brought by the District of Columbia government,” id. § 12-310(b)(4). WMATA now moves for judgment on the pleadings under Rule 12(c), contending that Alstom’s statute of repose defense fails as a matter of law because WMATA’s cross-claim falls under both of the foregoing exceptions to the statute of repose. First, WMATA argues that the statute’s exception for “any action brought by the District of Columbia government,” id. § 12-310(b)(4), applies because WMATA is an agency of the District under the terms of the interstate compact that created it, and thus should be treated as “the District of Columbia government” for the purposes of the statute of repose, ECF No. 353-1 at 5. It further contends that even if § 12-310(b)(4) is construed to apply only when the District is suing to vindicate public rights, the exception still applies here because WMATA’s cross-claim against Alstom seeks to protect the public from negligent design defects in Alstom’s train control system, and to replenish WMATA’s treasury to enable it to perform a public function (i.e., rail transportation). See id. at 11-15. Second, WMATA maintains that the statute of repose’s exception for “any action based on a contract, express or implied,” D.C.Code § 12 — 310(b)(1), also applies because its cross-claim against Alstom is primarily based on the contract between the parties, ECF No. 353-1 at 16-18. The majority of Alstom’s opposition brief focuses on the merits of WMATA’s cross-claim (i.e., WMATA’s entitlement to contribution and indemnity from Alstom). These arguments, however, are irrelevant to the issues presented in WMATA’s motion, and will be considered by the Court only in the context of Alstom’s motion for summary judgment (which is discussed infra in this Memorandum Opinion). Alstom makes only one argument responsive to WMATA’s motion: it contends that the statute of repose’s exception for “any action brought by the District of Columbia government,” id. § 12 — 310(b)(4), does not apply here because (1) WMATA is not “the District of Columbia government,” and (2) even if it were, this statutory exception applies only when the District’s lawsuit vindicates a public right, and WMATA’s cross-claim to recover the costs of its own negligence vindicates no such right. See ECF No. 382 at 7-12. C. Analysis Notwithstanding the order in which WMATA presents it arguments, the Court finds that its strongest position is based on the statute of repose’s exception for contract claims. The Court thus considers the applicability of that exception first, and then turns to the exception for claims asserted by the District. 1. Does the statute of repose’s exception for “any action based on a contract,” § 12-310(b)(l), apply to WMATA’s cross-claim against Alstom? As noted, WMATA’s cross-claim asserts two counts: Count I for contribution, and Count II for contractual indemnity. See ECF No. 140 ¶¶ 84-90. Despite WMATA’s misleading argument that its cross-claim against Alstom is “primarily” based on a contract, its contribution cross-claim plainly sounds in tort, not contract. See id. ¶ 85 (seeking contribution from Alstom insofar as its negligence proximately caused WMATA’s liability, and not referencing any contract). And “[cjontribution is one of several theories used to apportion damages among tortfeasors to an injured party.” D.C. v. Wash. Hosp. Cent., 722 A.2d 332, 336 (D.C.1998) (emphasis added). Thus, WMATA’s contribution cross-claim is not exempt from the statute of repose under § 12 — 310(b)(1). WMATA’s contractual indemnity cross-claim is another story. This claim asserts that Alstom is contractually bound to indemnify WMATA for any damages it pays to the plaintiffs. See ECF No. 140 ¶¶ 88-90. Because this claim is “based on a contract” between Alstom and WMATA, it is exempt from the statute of repose under § 12-310(b)(l). 2. Does the statute of repose’s exception for “any action brought by the District of Columbia government,” § 12 — 310(b)(4), apply to WMATA’s cross-claim against Alstom? Determining the applicability of this exception entails three, interrelated questions: First, should WMATA be considered “the District of Columbia government” within the meaning of § 12-310(b)(4)? Second, if WMATA is the District government for purposes of § 12-310(b)(4), does this provision exempt from the statute of repose any action filed by WMATA, or only those actions brought to enforce public rights? And third, if § 12-310(b)(4) only exempts those actions brought to enforce public rights, does WMATA’s cross-claim against Alstom seek to enforce such a right? i. Is WMATA “the District of Columbia government” within the meaning of § 12-310(b)(4)? “WMATA was created by an interstate compact entered into by the District of Columbia and the states of Maryland and Virginia.” Watters v. WMATA, 295 F.3d 36, 39 (D.C.Cir.2002). The interstate compact establishes that WMATA is “an instrumentality and agency of each of the signatory parties,” which includes the District. D.C.Code § 9-1107.01, art. Ill, § 4 (2001); see also id., art. II, § 2 (“The purpose of this Title is to create a regional instrumentality, as a common agency of each signatory party.”). Nevertheless, “[s]ince WMATA’s conception in 1981, the unique nature of the compact has spawned a great deal of litigation regarding the proper scope of WMATA’s jurisdiction and liability,” with many cases turning upon “whether WMATA can be considered an agency of the District of Columbia.” Griggs v. WMATA, 66 F.Supp.2d 23, 27 (D.D.C.1999) (surveying caselaw where WMATA is treated as a District agency for some purposes, but not others). The determination of whether WMATA is part of the District government, in other words, varies depending on the particular circumstances of each case. See id. The issue here is whether WMATA should be considered “the District of Columbia government” within the meaning of the statute of repose’s exception for “any action brought by the District of Columbia government.” D.C.Code § 12-310(b)(4). The Court concludes that it should for the following reasons. D.C.Code § 12 — 310(b)(4) was enacted as part of the District of Columbia Statute of Limitations Amendment Act of 1986. D.C. Water & Sewer Auth. ("WASA”) v. Delon Hampton Assocs., 851 A.2d 410, 414 (D.C.2004). The D.C. Court of Appeals has recognized that this legislation codified the common law doctrine of nullum tempus (“no time runs against the sovereign”). See id. (“[A]n underlying aim of the [D.C.] Council” in enacting the law “was to ensure that the District received, at the least, the benefit of the common law principle of ‘nullum tempus.’ ”). Under the doctrine of nullum tempus, “sovereigns enjoy a common-law immunity from the operation of statutes of limitations and repose ... when [they] sue[] to vindicate public rights.” D.C. v. Owens-Corning Fiberglas Corp., 572 A.2d 394, 401, 406 (D.C.1989). Of particular relevance here, nullum tempus immunity is generally considered a type of sovereign immunity. See Solid Rock Church, Disciples of Christ v. Friendship Pub. Charter Sch., Inc., 925 A.2d 554, 559-60 (D.C.2007) (“[T]he District ... enjoys limited sovereign immunity from the operation of statutes of limitation under the common law doctrine of nullum tempus.” (emphasis added)); Owens-Corning, 572 A.2d at 405 (noting that “[s]inee Congress is sovereign in the District, it enjoys the usual sovereign immunities, including the benefit of nullum tempus ” (emphasis added)); accord Shootman v. Dep’t of Trans., 926 P.2d 1200, 1206 (Colo.1996) (“[NJullum tempus is simply an aspect of sovereign immunity.”); New Jersey Educ. Facilities Auth. v. Gruzen, 125 N.J. 66, 592 A.2d 559, 561 (1991) (same); Wash. Suburban Sanitary Comm’n v. Pride Homes, 291 Md. 537, 435 A.2d 796, 801 (1981) (same). This point is significant because, in signing the interstate compact, Maryland, Virginia, and the District “conferred each of their respective sovereign immunities” on WMATA. Watters, 295 F.3d at 39. The Fourth Circuit has consequently interpreted the interstate compact’s conferral of sovereign immunity on WMATA to include immunity from Virginia’s statute of limitations. See Delon Hampton v. WMATA, 943 F.2d 355, 359 (4th Cir.1991) (stating that, “[a]s a general proposition, an agency of the state shares the same privileges as that of the state, including sovereign immunity,” and holding that WMATA, “as an agency and instrumentality of the Commonwealth of Virginia,” was “exempt from application of the statute of limitations” pursuant to Virginia statute which codified nullum tempus ). Employing similar reasoning here, this Court concludes that WMATA derives nullum tempus immunity from the District because it is an agency of the District that shares its sovereign immunity, and that WMATA consequently qualifies as the “District of Columbia government” within the meaning of § 12-310(b)(4). Resisting this conclusion, Alstom relies upon the D.C. Court of Appeals’ decision in WASA, 851 A.2d at 414. There, the court held that the “functions and activities of WASA [the D.C. Water and Sewer Authority], a separate corporate body distinct from the District of Columbia, are proprietary in nature and thus beyond the protection of nullum tempus ” and, in turn, outside the exception to the statute of limitations for “actions brought by the District of Columbia government” codified at D.C.Code § 12-301 (2001). Id. at 416. To be sure, WASA and WMATA have some similarities — they can both sue and be sued in their own names, and they can enter into contracts with the District. Compare D.C.Code §§ 43-1672, 43-1673 (2001) (WASA enabling legislation), with D.C.Code § 9-1107.01, Tit. Ill, Art. II, § 2; id., Art. V, §§ 12(a), 12(f) (2001) (WMATA Compact). However, whereas WASA’s enabling legislation makes clear that it is “an independent authority of the District government” and a “corporate body ... that has a separate legal existence within the District government,” D.C.Code § 34-2202.02(a) (2001) (emphasis added), the interstate compact declares that WMATA is “an instrumentality and agency of each of the signatory parties,” including the District. D.C.Code § 9-1107.01, art. Ill, § 4 (2001). And WMA-TA derives sovereign immunity from the District, see Watters, 295 F.3d at 39, which includes nullum tempus immunity. WASA apparently does not. Because of these key distinctions between WASA and WMATA, Alstom’s reliance on WASA is misplaced. ii. Does § 12-310(b)(4) exempt from the statute of repose any action filed by the District/WMATA, or only those actions brought to enforce public rights? Even though WMATA may be treated as the District government for purposes of § 12-310(b)(4), that does not end the Court’s inquiry. According to Alstom, § 12-310(b)(4) merely codifies the doctrine of nullum tempus, and thus only exempts lawsuits from the statute of repose when the District is seeking to enforce a public right. ECF No. 382 at 8-9. WMATA, on the other hand, emphasizes that the plain language of § 12 — 310(b)(4) applies to “any action brought by the District of Columbia government,” regardless of whether the suit is brought to enforce a public right. ECF No. 396 at 11-12. In support of this position, WMATA highlights a passage from WASA where the court of appeals stated that § 12-310 was designed “to ensure that the District received, at the least, the benefit of the common law principle of ‘nullum tern-pus.’ ” 851 A.2d at 414 (emphasis added). The court’s inclusion of the phrase “at the least,” WMATA contends, suggests that § 12-310 extends beyond nullum tempus immunity. ECF No. 396 at 11. The Court disagrees. While WMATA’s position may find support in stray phrases from WASA, the actual reasoning of that decision indicates that § 12-310(b)(4) only codifies nullum tempus and extends no further. Indeed, the WASA court did not simply analyze whether WASA was an agency of the District and therefore within the scope of § 12-301’s exemption to the statute of limitations. It instead surveyed legislative history which showed that “a purpose of the draft bill was to ‘make clear that the limitations provisions of § 12-301 and § 12-310 of the D.C.Code do not apply to the District government tuhen it sues to enforce public rights.’ ” Id. at 414 (citation omitted). Accordingly, “in deciding what juridical entities the [D.C.] Council intended to encompass within the phrase ‘District of Columbia government,’ ” the court deemed it “useful to determine whether th[e] action brought by WASA was brought to enforce a public right.” Id. (emphasis added). After discussing District of Columbia case law concerning the application of nullum tempus immunity, the court found that the “functions and activities of WASA, a separate corporate body distinct from the District of Columbia are proprietary in nature and thus beyond the protection of nullum tempus,” which, in turn, led the court to “hold that the phrase ‘District of Columbia government’ in § 12-301 does not encompass the separate juridical entity of which WASA consists.” Id. at 416. This analysis indicates that the D.C. Court of Appeals construes §§ 12-301 and 12-310 as merely coextensive with, but no broader than, the principle of nullum tempus. Subsequent decisions confirm this view. See, e.g., Solid Rock Church, 925 A.2d at 559-60 (“The law is settled that the District of Columbia, as a municipality, enjoys limited sovereign immunity from the operation of statutes of limitation under the common law doctrine of nullum tempus, and under D.C.Code § 12-301 (2001), while in the performance of public junctions.” (emphasis added)); D.C. Housing Auth. v. D.C. Office of Human Rights, 881 A.2d 600, 609 (D.C.2005) (noting that § 12-301 was amended “in 1986 to ensure that the statute of limitations does not prevent the District government from bringing suit to enforce public rights ” (emphasis added)). iii. Does WMATA’s cross-claim against Alstom seek to enforce a public right? Having found that WMATA qualifies as the District government for purposes of § 12 — 310(b)(4), and that § 12-310(b)(4) only applies to claims brought to enforce a public right, the question now becomes whether WMATA’s cross-claim against Alstom seeks to enforce a public right. The Court concludes that it does not. The D.C. Court of Appeals discussed the “public function requirement” of nullum tempus immunity at length in Owens-Coming: The government enjoys immunity from the running of time only when it sues to vindicate public rights. Thus, our task will not be complete until we have determined whether, with respect to the particular issue on appeal, the District is suing to vindicate a public or a proprietary right. This question is by no means an easy one. The line between rights that accrue to the public’s benefit and those that are ultimately proprietary to the government is a fine one, especially since any financial loss to the government is ultimately a loss to the public fisc. * * * In [D.C. v. Weiss, 263 A.2d 638 (D.C. 1970) ], where we held that the District’s suit to recover fees [from a patient treated for tuberculosis at] a public hospital was not barred by the statute of limitations, we said: The District of Columbia is seeking to replenish its treasury of money expended by a public instrumentality in the exercise of a public function. Recovery of the funds, which will benefit the public as a whole when applied to the continued operation of Glenn Dale Hospital, should not be made contingent on the diligence of public servants. 263 A.2d at 640. This passage emphasizes the expenditure of the disputed monies by a public instrumentality, its application to a public function, and the policy against allowing the laxity of public servants to erect a bar to suit. We stress, however, that while all monies the District sues upon affect the public fisc, it does not follow that every time the District sues for money it performs a public function. While the line is hard to draw, it can fairly be stated that something more is required than a naked financial interest; thus in Weiss we spoke of replenishing the treasury of funds earmarked for the performance of a particular public function. Where the District acquires a right of action directly related to its duty to perform a service to the public, or to vindicate an overwhelmingly public interest or right, a suit to recover money damages to enable the District to perform that service is public rather than proprietary. Of course, there may be other considerations, unique to each case, which must guide future courts in determining whether the public function test is met. 572 A.2d at 406M07. Applying these principles, the court in Owens-Coming held that the District’s lawsuit seeking to recover costs for the removal of asbestos from roughly 2,400 public buildings was brought “to vindicate a public right” because the public “[ujnquestionably” had “a profound interest in the elimination of a danger so extreme and widespread.” Id. at 396, 407. Drawing on Owens-Corning, WMATA maintains that its cross-claim against Alstom “seeks to protect the public at large from the negligent design defects in Alstom’s automatic train control system.” ECF No. 353-1 at 13. WMATA also contends that this case is analogous to Weiss because its cross-claim “seeks to replenish the public treasures of money expended, and potential liabilities incurred, in the exercise of a public function, i.e., providing rail transportation in the Washington, D.C. metropolitan area.” Id. at 15. Alstom responds by arguing that, in contrast to the District’s lawsuits in Owens-Corning and Weiss, WMATA’s cross-claim “does not seek to recover any costs incurred by the District of Columbia in eliminating a public hazard such as asbestos or tuberculosis. Rather, WMATA seeks to recover the costs which WMATA caused [the pjlaintiffs to incur as a result of its own negligence — assuming it is found liable to [the pjlaintiffs at trial — through equitable contribution as a joint tortfeasor and contractual indemnity of tort liability.” ECF No. 382 at 10 (emphasis in original). Noting that WMATA’s recovery for contribution and indemnity necessarily depends on WMATA being found liable in the first instance, Alstom argues that ‘WMATA’s suit to recover the costs of its own wrongdoing is plainly not a public function.” Id. at 11 (emphasis in original). The Court finds that WMATA’s cross-claim against Alstom does not enforce a public right. First, WMATA’s cross-claim bears no similarity to the claims asserted by the District in Owens-Coming and Weiss. In both of those cases, the District took actions to secure the public health first (i.e., removing asbestos in Owens-Coming and paying for a hospital patient’s tuberculosis treatment in Weiss), and then filed suit to recover the costs of those actions from the responsible parties. WMATA took no similar actions here. This is not a case, for instance, where WMATA first expended resources on fixing Alstom’s allegedly faulty automatic train control system, and then brought suit to recover the costs of those remedial efforts. Rather, WMATA took no action in the first instance, the train collision occurred, and it now seeks reimbursement from Alstom in the event that WMATA is itself found liable at trial. In other words, rather than seeking reimbursement from a wrongdoer for proactive actions taken to prevent public harm, WMATA seeks reimbursement for Alstom’s alleged share of the fault if WMATA itself is deemed a wrongdoer. It is difficult to discern how the public’s rights are vindicated by such a claim. Second, the Court views as tenuous WMATA’s argument that its cross-claim is necessan-y to protect the public from the alleged defects in Alstom’s automatic train control system. WMATA could (and should) independently evaluate the adequacy of Alstom’s equipment, and if it is defective, take any necessary remedial steps. Its cross-claim against Alstom is not necessary to achieve that end. At most, WMATA’s cross-claim will mitigate its own tort liability in this case, and thus will further a proprietary rather than a public interest. While it is true that “any financial loss to the government is ultimately a loss to the public fisc,” WMATA’s cross-claim vindicates the type of “naked financial interest” that is not protected by nullum tempus. Owens-Coming, 572 A.2d at 406-407. Thus, because WMA-TA’s cross-claim against Alstom does not enforce a public right, it does not fit the statute of repose’s exception for claims brought by the District of Columbia government. In sum, WMATA’s cross-claim for contractual indemnity (Count I) falls under the statute of repose’s exception for claims based on a contract, but its cross-claim for contribution (Count II) does not. And neither count of WMATA’s cross-claim fits the statute of repose’s exception for claims brought by the District. Accordingly, WMATA’s motion to dismiss Alstom’s statute of repose affirmative defense is granted in part and denied in part. III. Ansaldo’s motion for judgment on Counts 7,11, and 15 of the plaintiffs’ Second Amended Master Complaint • This motion warrants only brief discussion. In their briefings, the parties agree to the dismissal of Count 14 (Negligent Train Traffic Control) of the plaintiffs’ Second Amended Master Complaint because it is duplicative of Count 7. See ECF No. 390 at 1; ECF No. 394 at 1. The Court will therefore dismiss Count 14 of the Second Amended Master Complaint. Ansaldo also moves for judgment on Count 11 (Breach of the Implied Warranty of Merchantability), and Count 15 (Breach of Warranty & Implied Warranty of Fitness for a Particular Purpose) of the Second Amended Master Complaint. The Court previously dismissed these counts as to Alstom, holding that “where a plaintiff alleges claims for both strict products liability and breach of implied warranties based on allegedly defective products against a party not in privity with the plaintiff, the implied warranty claims must be dismissed because the actions are the same.” In re Fort Totten Metrorail Cases, 793 F.Supp.2d 133, 152 (D.D.C. 2011). In their opposition to Ansaldo’s motion, the plaintiffs merely reincorporate the arguments that the Court previously rejected. See ECF No. 390 at 2. Accordingly, consistent with its prior ruling, the Court will dismiss Counts 11 and 15 of the Second Amended Master Complaint as to Ansaldo. IV. WMATA’s motion to dismiss the equitable indemnification cross-claims against it A. Introduction In this motion, WMATA asserts that the corporate defendants’ cross-claims against it for equitable indemnification must be dismissed because the interstate compact does not waive WMATA’s sovereign immunity for equitable indemnification claims. The Court agrees with WMATA and con- . eludes that its motion must therefore be granted. B. Background The three corporate defendants, ARINC, Ansaldo, and Alstom, have all asserted cross-claims for equitable indemnification against WMATA. WMATA now moves to dismiss these cross-claims for lack of subject matter jurisdiction under Rule 12(b)(1), arguing that the interstate compact’s waiver of sovereign immunity is limited to liability for contractual breaches or tortious conduct occurring as a result of the performance of its non-governmental functions. WMATA asserts that because equitable indemnity is a distinct legal claim for which immunity was not waived, the corporate defendants’ equitable indemnification claims are barred by sovereign immunity and must be dismissed for lack of subject matter jurisdiction. The cross-plaintiffs, however, maintain that equitable indemnity sounds in tort under District law and the cross-claims concern tortious conduct stemming from WMATA’s proprietary functions. WMATA replies that the cross-plaintiffs’ argument that their indemnity claims sound in tort blurs the lines between the parties and their respective positions in this litigation. C.Analysis 1. What is the nature of the cross-claims asserted against WMATA? In addressing whether the corporate defendants’ cross-claims against WMATA are barred by sovereign immunity, it is first necessary to explore the nature of an equitable indemnification claim. “Although the right to indemnify may arise by contract, ‘[the District of Columbia Court of Appeals has] recognized that the obligation to indemnify may be implied in fact (on an implied contract theory) or implied in law in order to achieve an equitable result.’ ” District of Columbia v. Wash. Hosp. Ctr., 722 A.2d 332, 340 (D.C.1998) (quoting R. & G. Orthopedic Appliances v. Curtin, 596 A.2d 530, 544 (D.C.1991)). In such situations, “[a]n obligation to indemnify exists where the equities of the case and the relationship of the parties support shifting responsibility from one party to another.” Howard Univ. v. Good Food Servs., 608 A.2d 116, 122 (D.C.1992); Quadrangle Dev. Corp. v. Otis Elevator Co., 748 A.2d 432, 434, n. 2 (D.C.2000) (noting the parties’ concession that their contract “did not contain any express indemnification provision,” and concluding that “[t]herefore, their claim is one of implied indemnification, based on equitable principles”). Stated differently, “[i]n the absence of an express contractual duty to indemnify, a right to indemnify exists where a duty to indemnify may be implied out of a relationship between the parties to prevent a result which is unjust.” Howard, 608 A.2d at 123; see also Johnson v. Mercedes-Benz, USA, LLC, 182 F.Supp.2d 58, 65 (D.D.C.2002) (“When based on equitable principles, indemnity may be granted to an indemnitee if there is a ‘significant difference in the kind and quality’ between the indemnitee’s and the indemnitor’s wrongdoing.” (quoting Quadrangle Dev. Corp., 748 A.2d at 435)). WMATA maintains that . the “[c]ross-claimants’ causes of action for indemnification against WMATA are expressly based on equity, and do not rely on a contract.” ECF No. 424-1 at 5. The corporate defendants disagree, claiming that “equitable indemnity sounds in tort under controlling D.C. law.” ECF No. 478 at 1. The corporate defendants are incorrect. Equitable indemnification is premised on “the equities of the case and the relationship of the parties.” Howard Univ., 608 A.2d at 122. While the corporate defendants may be correct that determining the equities in a given case will often require an examination of the “kind and quality,” Quadrangle Dev. Corp., 748 A.2d at 435, of the tortious conduct at issue, this does not mean that equitable indemnification sounds in tort. Rather, this examination of the tortious conduct provides the basis from which to assess the equities. Thus, although “the [c]rossplaintiffs’ equitable indemnification cross-claims concern WMATA’s [allegedly] tortious misconduct,” ECF No. 478 at 10 (emphasis added), they are not tort claims. The cross-plaintiffs’ equitable indemnification claims are based on equitable principles — not tort or contract law. 2. Has WMATA waived its sovereign immunity as to equitable indemnification claims? WMATA asserts that “[t]he cross-claimants cannot show the existence or applicability of any waiver of sovereign immunity that would make WMATA amenable to suit for implied indemnification.” ECF No. 424-1 at 7. The Court agrees. “In signing the WMATA Compact, Maryland, Virginia, and the District of Columbia conferred upon WMATA their respective sovereign immunities.” Beebe v. WMATA 129 F.3d 1283, 1287 (D.C.Cir. 1997). “Although [section 12(a) of] the WMATA Compact provides that WMATA may ‘[s]ue and be sued,’ [the Circuit has] held that provision to extend only as far as the more specific (and partial) waiver of sovereign immunity contained in section 80 of the Compact.” Watters, 295 F.3d at 40. In relevant part, Section 80 of the interstate compact provides: The Authority shall be liable for its contracts and for its torts and those of its Directors, officers, employees and agent[s] committed in the conduct of any proprietary function, in accordance with the law of the applicable signatory (including rules on conflict of laws), but shall not be liable for any torts occurring in the performance of a governmental function. D.C.Code § 9-1107.01(80) (emphasis added). “Waivers [of sovereign immunity] must be construed strictly in favor of the sovereign and not enlarged beyond what the language requires.” Kingston Constructors, Inc. v. WMATA, 860 F.Supp. 886, 888-89 (D.D.C.1994) (citing Library of Congress v. Shaw, 478 U.S. 310, 317, 318, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986)). “‘There can be no consent by implication or by use of ambiguous language .... The consent necessary to waive [sovereign] immunity must be express, and it must be strictly construed.’ ” Id. (quoting Shaw, 478 U.S. at 318, 106 S.Ct. 2957); see also Watters, 295 F.3d at 40 (“We may find a waiver of sovereign immunity ‘only where stated by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction.’ ” (quoting Morris v. WMATA, 781 F.2d 218, 221 (D.C.Cir.1986))). Although there appear to be no cases dealing specifically with whether the WMATA compact waives sovereign immunity for equitable indemnification claims, courts have concluded that the compact does not waive sovereign immunity for other equitable remedies. For example, in Martin v. WMATA, 273 F.Supp.2d 114 (D.D.C.2003), another judge of this Court held that WMATA was immune from the plaintiffs promissory estoppel claim. See id. at 119 (“Section 80’s waiver only denotes WMATA’s liability for its contracts and torts occurring in the performance of a non-governmental function; it does not mention promissory estoppel, which is a distinct legal theory.”). And in Watters, the Circuit determined that an attorney’s lien was not a contract with, or tort of, WMATA. 295 F.3d at 40. The court explained that “such a lien is an equitable device,” and is “merely a claim to equitable interference by the court to have [a] judgment or settlement held as security.” Id. at 41 (internal quotation marks and citation omitted). Most recently, the United States District Court for the District of Maryland held that because “WMATA has not explicitly waived its immunity as to quasi-contract claims [such as equitable estoppel], [it was] entitled to assert its sovereign immunity defense as to [the plaintiffs Statute of Frauds claim.” Greenbelt Ventures, LLC v. WMATA, No. 10-cv-157, 2011 WL 2175209, at *6 (D.Md. June 2, 2011). In light of the need to strictly construe the WMATA compact’s waiver, which only expressly waives WMATA’s sovereign immunity for contracts and proprietary-function torts, and considering the foregoing case law finding WMATA immune from other forms of equitable claims, the Court concludes that WMATA has not waived its sovereign immunity as to equitable indemnification claims. Accordingly, WMATA’s motion to dismiss is granted, and the corporate defendants’ claims for equitable indemnification are dismissed for lack of subject matter of jurisdiction. V. The corporate defendants’ joint motion for summary judgment on all claims A. Introduction The corporate defendants jointly move for summary judgment on the ground that WMATA’s alleged negligence constitutes a superseding cause that severed the causal connection between the corporate defendants’ purported negligence and the June 22, 2009 train collision. Because this case does not present the type of “exceptional circumstances” necessary to remove issues of causation from the jury, the Court will deny the corporate defendants’ motion. B. Background 1. Overview of WMATA’s Metrorail System A brief overview of two components— track circuits and the Advanced Information Management software — that play a part in WMATA’s operation of the Metro-rail system is necessary to resolve the corporate defendants’ motion. First, to operate the Metrorail system, “WMATA uses an [Automatic Train Control] system that consists of a series of track circuits (or ‘blocks’), each with an electronic transmitter [module], receiver [module], vital relay, and impedance bonds.” ECF No. 425-1 at 2. Each circuit has two impedance bonds. ECF No. 483 at 3. As the corporate defendants explain (and WMATA does not dispute): The system works by the transmitter sending an audio frequency signal through a cable to the impedance bond at one end of the block. When no train is present, the signal runs along the rails to the impedance bond at the other end of the block where it travels through a cable to the receiver, thereby completing the electrical circuit. If the circuit is completed, the relay is energized and the block reports as unoccupied. If a train is present, however, the train’s metal wheels and axles “short” or “shunt” the signal before it reaches the impedance bond at the receiver end of the block, causing an interruption of the circuit that de-energizes the relay. Deenergizing of the relay indicates that a train occupies the particular block and allows the appropriate information to be conveyed to oncoming trains in the WMATA Metrorail system. ECF No. 425-1 at 2-3. A “bobbing” circuit is one in which the relay signal “fluctuates between an energized (indicating [a] vacant [circuit]) to a de-energized state (indicating [an] occupied [circuit]) regardless of whether a train is actually present in the track circuit.” Id. at 4. A phenomenon known as “parasitic oscillation” occurs when the transmitter module bypasses the impedance bonds and sends a signal directly to the receiver module. In other words, parasitic oscillation is when the modules ignore the other components of the circuit and therefore convey information that is not based on the whole circuit. Second, WMATA’s Operations Central Control uses a software program called Advanced Information Management, which was developed by ARINC. ECF No. 483 at 15. The software generates alarms associated with bobbing circuits, false occupancies (i.e., always reporting blocks), and false vacancies (i.e., never reporting blocks). Id.; see also ECF No. 425-1 at 9 (“A ‘track circuit failed vacant’ alarm means that the track circuit is reporting a vacancy when, in fact, the track circuit may actually be occupied.”). The software designates a false vacancy as “minor,” which means the alarm is self-acknowledging and self-deleting (i.e., that they do not require operator attention or intervention). ECF No. 483 at 15. 2. Activity at Circuit B2-304 from June 17, 2009, until June 22, 2009 The WMATA track circuit located at the site of the collision that resulted in this litigation is Circuit B2-304. At the time of the collision on June 22, 2009, Circuit B2304 consisted of Alstom transmitter/receiver modules and Ansaldo impedance bonds. Id. at 3. On June 17, 2009, WMATA replaced an Alstom impedance bond at Circuit B2-304 with an Ansaldo impedance bond. ECF No. 425-1 at 4. WMATA protocol calls for a “shunt verification test” after the installation of an impedance bond. Id. The test is conducted by laying a shunt strap between the rails. ECF No. 483 at 4. If the relay detects the presence of the shunt strap and interprets it as a train, the circuit is considered to have passed the shunt verification test. Id. The leader of the WMATA work crew that installed the impedance bond at Circuit B2-304 on June 17, 2009, has testified that she did not observe bobbing when the shunt verification test was being conducted, but stated that she observed that the circuit was bobbing after she completed the shunt verification test. Id. at 10. After the WMATA work crew left the site, WMATA’s Maintenance Operations Center opened a work order for the bobbing at Circuit B2-304. ECF No. 425-1 at 7. Despite the work order, and visits by different work crews to Circuit B2-304 on June 18, 19, and 22, 2009, Circuit B2-304 was still bobbing when the collision occurred on June 22, 2009. Id. at 7-8. And, no one at WMATA had instituted an “absolute block” — closing down specific locations of track into which no train would be permitted to enter — while Circuit B2-304 was bobbing. 3. The Advanced Information Management System Alarms Between June 17 and 22, 2009, the Advanced Information Management system generated “hundreds and hundreds” of “track circuit failed vacant” alarms on the Red Line in the area between the Takoma and the Fort Totten Metrorail stations. ECF No. 425-1 at 9. In the hour before the June 22, 2009 collision, the Advanced Information Management system generated seventeen separate “track circuit failed vacant” alarms. Id. Indeed, two minutes before the collision, while the train that was struck was stopped between the Takoma and Fort Totten stations, the system generated a “track circuit failed vacant” alarm for that area of the track. Id. at 9-10. WMATA did not have a protocol at its Operations Central Control for responding to a failed vacant alarm, and neither controller on duty at the time of the collision instituted an absolute block in response to the failed vacant alarm. Id. at 10. C. The Parties’ Arguments In moving for summary judgment, the corporate defendants maintain that “[t]he key undisputed fact is that WMATA placed a known, malfunctioning track circuit in service, contrary to its own policies.” ECF No. 425-1 at 11. The corporate defendants further assert that “[ejven if the Court found Alstom, Ansaldo, or ARINC’s equipment to be defective, or that there was a lack of safety testing, WMATA’s reckless actions were the superseding cause of the accident, thereby relieving Alstom, Ansaldo, and ARINC of all liability as a matter of law.” Id. at 12. WMATA and the plaintiffs disagree. Specifically, WMATA argues that it viewed bobbing track circuits as a maintenance, rather than a safety, issue, ECF No. 483 at 2, and that its work crews were consequently unaware of the actual hazard at Circuit B2-804. Accordingly, WMATA asserts that there are questions of fact “about whether WMATA responded in a manner that was reasonable and foreseeable under the circumstances.” Id. The plaintiffs assert that from each of the corporate defendants’ “particular positions,” “it was foreseeable that WMATA might fail to remediate [the corporate defendants’] negligence.” ECF No. 487 at 7-8. As a result, the plaintiffs maintain, WMA-TA’s negligence does not absolve the corporate defendants of liability. Id. D. Analysis 1. Can the Court conclude that, as a matter of law, WMATA’s negligence was a superseding or intervening cause that precludes the corporate defendants’ liability? “Proximate cause has been defined as that cause which, in natural and continual sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” Convit v. Wilson, 980 A.2d 1104, 1125 (D.C.2009). “Superseding cause is a subset of the inquiry into proximate cause,” id. at 1125-26, and essentially it is “a concept that the action of a subsequent tortfeasor may be a superseding cause which breaks the chain of causation and relieves the first tortfeasor of liability to the injured party,” id. at 1126. “The question of proximate causation ... is at base one of foreseeability.” Rieser v. District of Columbia, 563 F.2d 462, 479 (D.C.Cir.1977). “If a negligent, intentional or even criminal intervening act or end result was reasonably foreseeable to the original actor, his liability will not ordinarily be superseded by that intervening act.” Id. As even the corporate defendants acknowledge, proximate causation is ordinarily a question of fact for the jury. See ECF No. 425-1 at 22. Indeed, the cases are legion holding that it is only the “exceptional case” in which questions of proximate cause “pass from the realm of fact to one of law.” Majeska v. District of Columbia, 812 A.2d 948, 950 (D.C.2002) (emphasis added); accord Rieser, 563 F.2d at 480 (“Proximate causation, including the question of superseding cause, ... is ordinarily a question of fact for the jury.”); Smith v. Hope Village, Inc., 481 F.Supp.2d 172, 185 (D.D.C.2007) (Walton, J) (citing cases). This case is not so exceptional as to warrant removing the determination of causation from the jury. Compare, for example, the facts of this case to that in In re Korean Air Lines Disaster, No. 83-cv-0345, 1985 WL 9447 (D.D.C. Aug. 2, 1985), which the corporate defendants cite in support of their motion. In Korean Air, a jet owned and operated by Korean Air Lines inadvertently veered into the airspace of the Soviet Union and was intentionally shot down by Soviet missile attack. Id. at *1. The parties had conceded defects in the plane’s navigational systems, and the sole question before the court was the foreseeability of the Soviet Union’s actions. Id. The Court ruled that the defendants, manufacturers of the plane’s navigational systems, could not “be held liable for the unexpected act of aggression by the Soviet Union.” Id. at *7. Here, in contrast to the Soviet Union’s deliberate launching of missiles in In re Korean Air, WMATA’s alleged superseding acts were merely negligent, not intentional. Such negligent acts are not so unforeseeable that the corporate defendants can be absolved of liability as a matter of law. On the contrary, a reasonable jury could conclude that the corporate defendants should have foreseen that WMATA would fail to take action on a work order for five days, despite WMA-TA’s own policies to respond to a work order, carry out the task it involves, and close the order within one business day of completion of the work. See ECF No. 425-1 at 7. A reasonable jury could also conclude that the corporate defendants— specifically, ARINC — should have foreseen that WMATA would ignore the “track circuit failed vacant alarms” in the days, hours, and minutes preceding the collision. Accordingly, because this is not a case where the proximate cause determination should “pass from the realm of fact to one of law,” Majeska, 812 A.2d at 950, the corporate defendants’ motion for summary judgment on all claims and cross-claims against them is denied. VI. Ansaldo’s Motion for Summary Judgment A. Introduction Ansaldo moves for summary judgment as to all claims on the following grounds: (1) it is entitled to derivative sovereign immunity because all of the claims against it stem from WMATA’s “immune decision” to sequence the installation of Ansaldo’s impedance bonds and modules; (2) there is no evidence that Ansaldo’s impedance bonds and Alstom’s modules were incompatible; (3) the failure to warn claims against Ansaldo fail because (a) there is no duty to warn about another manufacturer’s (i.e., Alstom) products, and (b) WMATA is a “sophisticated user” to which Ansaldo owed no duty to warn; and (4) the derivative counts of wrongful death and survival must be dismissed if the underlying counts are dismissed. The Court concludes that (1) Ansaldo’s attempt to invoke derivative sovereign immunity fails as a matter of law because the claims against it do not relate to any “immune” decisions made by WMATA; instead, the claims assert that Ansaldo breached its contractual obligations to WMATA and that Ansaldo performed under the contract negligently; (2) Ansaldo’s argument that there is no evidence of incompatibility is essentially a causation issue that must be decided by a jury; (3) Ansaldo did have a legal duty to warn WMATA; and (4) the derivative counts should not be dismissed because the underlying counts remain. Accordingly, the Court denies Ansaldo’s motion in its entirety. B. Background As explained above, WMATA employs an “automatic train control system” to ensure safe train detection, separation, and speed restrictions. ECF No. 480 at 3. This system is comprised of “track circuits,” which are railroad segments of varying lengths. Id. Two impedance bonds are located on each track circuit. Id. The impedance bonds communicate via transmitters and receivers called “modules,” which are located at the nearest station in an unmanned train control room. Id. Communication between the impedance bonds and the modules is accomplished by transmitter and receiver modules that exchange audio-frequency signals. Id. A train’s presence on the track is sensed when its wheels and axles cause a short between the rails. Id. This is known as a “shunt.” Id. A “shunt” causes a vital relay, which is connected to the modules, to de-energize or “drop.” Id. Otherwise, the relay remains energized, or “picked,” when a track circuit is actually vacant. Id. Alstom designed WMATA’s original automatic train control system in the 1970s, including its impedance bonds and modules. Id. at 3-4. Beginning in 2002, WMATA contracted with Ansaldo to replace the Alstom impedance bonds and modules with Ansaldo products. Id. at 4. Two separate contracts were executed by the parties. ECF No. 426-1 at 15. Under the first contract, Ansaldo was originally required to replace the impedance bonds and modules simultaneously. Id. However, due to safety concerns about nonWMATA personnel working on the tracks, WMATA altered the replacement process as follows: first, only WMATA employees would replace the impedance bonds; second, WMATA employees would conduct a safety test of the track circuit; and third, Ansaldo employees would replace the modules and conduct another safety test of the track circuit. Id. at 15; ECF No. 480 at 5. This change in the replacement project resulted in a temporarily “mixed track circuit” consisting of the old Alstom modules and the new Ansaldo impedance bonds. ECF No. 480 at 5. The second contract, which covered track circuit replacements at 22 locations throughout WMATA’s system, reflected this “temporary mixed track circuit configuration.” Id. Specifically, the contract provided that “WMATA personnel will perform all wayside installation [of the Ansaldo] impedance bonds,” and that Ansaldo “will replace [the Alstom] ... modules [with Ansaldo modules] after the associated wayside equipment has been installed.” ECF No. 480-9 (Contract No. F05143) § 1.01.C (emphasis added). Recognizing that, as a result of this revised replacement process, “[n]ew impedance bonds will temporarily be in service with existing [Alstom] ... modules,” the contract directed that the Ansaldo “impedance bonds being provided on this Contract must be compatible with the existing [Alstom] ... modules.” Id. (emphasis added). The contract also required Ansaldo to provide a “Hazard Mode and Effect Analysis, which, as a minimum, identifies one example of each hazard that may be produced by each possible failure in [Ansaldo’s] equipment and software.” Id. § 1.06. Finally, the contract provided that “[t]he system shall be proven by [Ansaldo] to be fail safe and operational upon completion of the installation.” Id. § 1.01.A. In the context of a public transit railroad, the term “fail safe” means that “if a vital component fails, the system will automatically revert to a less permissive state which restricts the movement of trains.” ECF No. 480-1 at 2. According to WMATA, despite Ansaldo’s “contractual requirement to provide compatible equipment,” Ansaldo “took no actions whatsoever to evaluate the safety of using its [impedance] bonds with Alstom’s modules.” ECF No. 480 at 7-8. WMATA further claims that prior to the June 22, 2009 Fort Totten train collision, Ansaldo became aware of specific compatibility problems with the Ansaldo impedance bonds and Alstom modules, but did nothing to address them. See id. at 8-9. The track circuit at issue in this case, Circuit B2-304, contained a mixed configuration of Ansaldo impedance bonds and Alstom modules when the accident occurred. Id. at 9. In seeking to explain the cause of the June 22, 2009 train collision, WMATA contends that a latent defect in the automatic train control system known as “parasitic oscillation” caused a signal to be transmitted which falsely indicated that Circuit B2-304 was vacant. Id. at 2-3. This, in turn, led Train No. 112 to crash into Train No. 214. Id. WMATA argues that power increases required by the installation of the new Ansaldo impedance bonds “created the conditions necessary for the parasitic oscillation to pass through the rack structure, couple to the receiver, and mimic the track vacant signal.” Id. at 13. C. Analysis 1. Is Ansaldo entitled to derivative sovereign immunity under Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940)? Ansaldo asserts that all of the claims and cross-claims against it “stem from WMATA’s decision to sequence the timing of bond and module installation,” which led to track circuits temporarily consisting of Ansaldo impedance bonds and Alstom modules, and that this decision of WMATA is protected by sovereign immunity. EOF No. 426-1 at 14. Ansaldo further contends that because it “followed WMATA’s safety and scheduling directions, as required by its contract with WMATA,” it is entitled to “derivative sovereign immunity” under Yearsley v. W.A. Ross Construction Co., 309 U.S. 18, 60 S.Ct. 413, 84 L.Ed. 554 (1940), and its progeny. Id. at 14-15, 60 S.Ct. 413. In Yearsley, the Supreme Court considered whether a contractor that built dikes in the Missouri River pursuant to a contract with the federal government could be held liable for damage caused by the construction of the dikes. See 309 U.S. at 19-20, 60 S.Ct. 413. The contract was part of a federal project “authorized by an Act of Congress.” Id. at 19, 60 S.Ct. 413. The Court concluded that the contractor could not be held liable, reasoning that when the “authority to carry out [a] project [is] validly conferred, that is, [when] what [is] done was within the constitutional power of Congress, there is no liability on the part of the contractor for executing [Congress’s] will.” Id. at 20-21, 60 S.Ct. 413. The Court observed, however, that “[w]here an agent or officer of the Government purporting to act on its behalf has been held to be liable for his conduct causing injury to another, the ground of liability has been found to be either that he exceeded his authority or that it was not validly conferred.” Id. at 21, 60 S.Ct. 413. Federal courts have construed Yearsley as creating the so-called “doctrine of derivative sovereign immunity.” McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1343 (11th Cir.2007). To claim such immunity, a private contractor generally must show that (1) it “was working pursuant to the authorization and direction of the federal government,” and (2) “the acts of which the plaintiff complained fell within the scope of those government directives.” In re World Trade Center Disaster Site Litig., 521 F.3d 169, 196 (2d Cir.2008) (citing Yearsley, 309 U.S. at 20-21, 60 S.Ct. 413). Several initial hurdles impede Ansaldo’s efforts to invoke the Yearsley doctrine in this case. First, no court in this Circuit has applied the doctrine. Second, the Circuits that have applied it are not in consensus regarding the doctrine’s requirements. Third, because it is a federal common law doctrine, Yearsley has been almost exclusively applied in cases involving federal government contractors (as was the case in Yearsley itself), and the question of whether WMATA can be deemed a federal agency is unresolved. See Elcon Enterp. v. WMATA, 977 F.2d 1472, 1480 (D.C.Cir.1992) (declining to resolve the issue). One could plausibly argue, then, that the Yearsley doctrine does not apply to WMATA’s contractors because they do not contract directly with the federal government. Nevertheless, even assuming that all of these preliminary issues are resolved in Ansaldo’s favor, the Court finds th