Full opinion text
BIRCH, Circuit Judge: These consolidated appeals arise from the district court’s final judgment resolving a series of cases that were filed after a passenger train of the National Railroad Passenger Corporation (“Amtrak”), as it moved on the railroad track of CSX Transportation, Inc. (“CSX”), collided with a hauler rig owned by Rountree Transport and Rigging, Inc. (“Rountree”). The Rountree vehicle had become immobilized on a railroad crossing as it attempted to transport a combustion turbine and a turbine enclosure to a power plant of the Kissimmee Utility Authority (“KUA”) near Kissimmee, Florida. American Home Assurance Corporation (“AHA”), subrogee of Stewart and Stevenson Services, Inc. (“S&S”), commenced these appeals to challenge several district court rulings that affected its entitlement to damages flowing from the collision. The issues in this aspect of the appeal include: (1) the propriety of excluding certain evidence offered by AHA to prove its damages; (2) whether transport of the combustion turbine properly was deemed an inherently dangerous work activity; (3) the propriety of reducing AHA’s damages under the Florida comparative fault statute; and (4) whether AHA should have been denied prejudgment interest on its damages. We AFFIRM the district court’s rulings with regard to the first, second, and fourth issues. The third issue, however, raises unsettled questions of state law which we certify to the Florida Supreme Court for resolution. In addition to AHA’s appeal, KUA, Florida Municipal Power Agency (“FMPA”), and Black & Veatch (“B&V”) have appealed the decision by the district court that General Electric Company (“GE”) did not have to defend and indemnify them for the collision. We AFFIRM the district court’s decision. KUA and FMPA also have appealed the district court’s decision requiring them to defend and indemnify CSX and Amtrak. Within this latter appeal, KUA and FMPA have raised the issue of wh'ether state law sovereign immunity shields them from being required to defend and indemnify CSX and Amtrak. Because the sovereign immunity issue involves unsettled questions of state law, we certify the issue to the Florida Supreme Court for review. In sum, we have decided that with respect to these consolidated appeals, we AFFIRM in part but STAY all further proceedings, pending the Florida Supreme Court’s resolution of our certified questions. I. BACKGROUND A. Construction of the Cane Island Power Plant KUA is an municipal agency created by the city of Kissimmee, Florida, to construct, operate, and manage the city’s municipal electrical utility systems. As part of its charge, KUA oversaw the construction of the electrical facility known as the Cane Island Power Plant (the “Plant”) near Kissimmee, Florida. To effectuate the construction, KUA contracted with B&V, who agreed to serve as project engineer. KUA also entered into a Participation Agreement with FMPA, a joint-action agency organized under Florida law with authority to undertake and finance electric projects. By entering into the Participation Agreement, FMPA acquired a 50% ownership interest in the Plant and agreed to share with KUA the production costs of electricity. In overseeing the construction, KUA took steps to ensure that there would be vehicular and pedestrian access to the Plant. Accordingly, KUA entered into a Private Road Grade Crossing Agreement (the “Crossing Agreement”) with CSX, who granted the utility a license to construct, use, and maintain a private road grade crossing over CSX’s railroad tracks. In return for the license, KUA was required under the Crossing Agreement to “defend, indemnify, protect and save [CSX] harmless from and against [designated losses and casualties].” R53-1172 Exh. A at 14.2. The Crossing Agreement further mandated that KUA defend and indemnify any company whose property was “operated” by CSX at the railroad crossing. Id. at 1.2. In its oversight role, KUA also contracted with GE for purchase and delivery of certain customized power generation equipment, including a combustion turbine. KUA and GE entered into a Turbine Purchasing Agreement (the “Purchasing Agreement”), which included an indemnification provision under which GE promised to defend and indemnify KUA, its agents, and B&V “to the extent of and on account of any negligent act or omission of [GE] in performing the work under the Contract.” R104-2060 Exh. A at GC.29. Upon entering into the Purchasing Agreement, GE contracted with S&S, who agreed to purchase and then customize the equipment that would be delivered to the Plant. In turn, S&S contracted with a “transportation broker,” WOKO Transportation (“WOKO”), who arranged for transport of the customized turbine equipment. WOKO contracted with Rountree to have certain pieces of the customized equipment — the combustion turbine and an enclosure for housing it — transported to the Plant on 30 November 1993. The combustion turbine and its enclosure made up only one out of forty-five boxes of customized turbine equipment transported to the Plant. Not included in the November shipment were boxes 2-45, which contained additional equipment customized by S&S, including, among other things, an air filter, turbine generator controls, a control house, and lube oil cooler fans. B. The Collision Because the combustion turbine weighed 82 tons, Rountree transported the turbine and its enclosure by using a road tractor that pulled a hauler rig. The height of the hauler rig could be adjusted to deal with gradations in the terrain. The underlying casualty occurred on 30 November 1993 as Rountree, while transporting the combustion turbine and its enclosure to the Plant, attempted to adjust the height of the rig at the railroad crossing licensed to KUA from CSX. The railroad tracks at the crossing were on an elevated grade. As the hauler rig was driven onto the crossing, the hauler crew realized that the rig would be unable to negotiate the elevated terrain without its height first being adjusted. The crew adjusted the height of the rig without first removing the rig from the railroad tracks. Before the rig was removed from the tracks, an Amtrak passenger train collided with it. The collision destroyed the rig, the combustion turbine, and the turbine enclosure. The Amtrak train also was damaged, and some of the passengers and train crew suffered personal injuries. C. The Lawsuits Multiple lawsuits were filed against various parties and their insurers seeking to establish responsibility for the collision. CSX and Amtrak (collectively, the “Rail Companies”) brought suit against, among others, B&V, Rountree, and KUA. The Rail Companies raised several claims, including that the crossing had been improperly designed and constructed by B&V, and that Rountree and KUA were negligent in the transport of the combustion turbine and its enclosure. They further claimed that, by virtue of the Crossing Agreement, KUA was obligated to defend and indemnify them. Additionally, numerous passengers and crew members who were aboard the Amtrak train at the time of the collision sued for personal injuries and property damage. Later, AHA, as subrogee of S&S, commenced suit against several entities, including the Rail Companies, Rountree, B&V, KUA, and FMPA, after it compensated its insured, S&S, for loss of the combustion turbine and the turbine enclosure. AHA claimed that the negligence of the defendants collectively caused S&S to sustain the loss which was covered by its insurance policy with AHA. In turn, as part of the AHA litigation, KUA brought a third-party complaint against GE claiming that the Purchasing Agreement required GE to defend and indemnify KUA. D.Procedural History The various cases were consolidated, and the district court bifurcated the proceedings into a liability phase and a damages phase. During the former phase, the Rail Companies moved for summary judgment on the indemnification issue. They asked the court to rule as a matter of law that KUA had to defend and indemnify them as a result of the Crossing Agreement. The court granted summary judgment in favor of CSX but denied the motion by Amtrak. The court concluded that Amtrak’s claim for indemnity involved factual issues that had not yet been resolved. A three-week jury trial subsequently was held in 1996 on the liability issue for all claimants and all defendants in the consolidated cases. On the same day as the jury rendered its verdict, the district court granted judgment as a matter of law to S&S and GE, holding that they were free of direct negligence for the collision. The jury, in turn, absolved all parties of direct negligence except for Rountree, CSX, and Amtrak. The jury determined that Rountree was 59% at fault for the collision, CSX was 33% at fault, and Amtrak was 8% at fault. The district court then issued orders that damages trials would be held for all plaintiffs, starting with the personal injury plaintiffs, then with the Rail Companies, and finally with AHA. Additionally, the court granted B&V’s motion for a ruling that transportation of the combustion turbine was inherently dangerous as a matter of law. The court further held that, as a result of the inherent dangerousness in transporting the combustion turbine, WOKO, S&S, and GE were vicariously liable for Rountree’s negligence. Before a jury trial on damages ensued, B&V, KUA, and FMPA moved for summary judgment against GE. They alleged that, under the indemnification provision contained in the Purchasing Agreement, GE had to reimburse them for the expenses they incurred as a result of successfully defending themselves in the turbine litigation. The district court denied the motions and ruled that the losses suffered by the three parties were not within the scope of the indemnification provision. Also before the damages trial, the court reconsidered the issue of whether KUA had to defend and indemnify Amtrak under the Crossing Agreement. Having reconsidered the issue, the district court granted Amtrak’s renewed motion for summary judgment and ruled as a matter of law that KUA was contractually obligated to defend and indemnify Amtrak. In addition to its other decisions, the court granted Rountree’s motion for a ruling as a matter of law that its liability to AHA was limited to $1,000,000. Then, in December 1999, the district court oversaw a jury trial on the issue of AHA’s damages. By the time of the damages trial, the Rail Companies had settled their claims with all other parties. Indeed, all parties in the various consolidated cases had settled their damages claims by that time, except for AHA as subrogee of S&S. At the damages trial, AHA wanted to prove the amount of damages incurred by S&S by using the formula that its personnel had employed in adjusting the insurance claim of S&S. Under this formula, the loss to S&S was measured by taking the total value of all the customized turbine equipment contained in boxes 1-45 and then subtracting the value of the equipment contained in boxes 2-45, equipment that was undamaged because boxes 2-45 were never on the Rountree hauler. Pursuant to its valuation method, AHA tried to substantiate the value of the customized equipment contained in boxes 2-45 through invoices and witness testimony. AHA also sought to introduce certain documentary evidence and witness testimony concerning both how it arrived at the monetary figures in its insurance valuation and how much it paid out to S&S. The district court refused to admit any of this documentary and testimonial evidence. After AHA rested its case-in-chief, several parties orally moved for the district court to direct a verdict as to the amount of proven damages. They maintained that the court should enter judgment in favor of AHA and against Rountree, CSX, and Amtrak in the amount of $1,851,822.40, which represented 41% of the damages they argued AHA had proven ($4,546,640). Orally granting the motion, the court ruled that AHA, standing in the shoes of S&S, had proven that S&S had incurred $4,546,640 in damages, only 41% of which AHA was entitled to recover. The district court previously had ruled that S&S was vicariously liable for Rountree’s negligence based on the inherent dangerousness of transporting the combustion turbine. The court reasoned that, just as Rountree could collect only 41% of its damages under Florida comparative fault principles, the vicariously liable S&S (and hence AHA) could collect only 41% of the damages incurred by S&S. Having reduced AHA’s damages, the court then denied AHA’s request for prejudgment interest on its damages award. Since the district court already had held that Rountree’s liability to AHA was limited to $1,000,000, the court proceeded to enter final judgment against the Rail Companies jointly and severally for the remaining $851,822.40. Upon entry of final judgment, the turbine litigation, a train wreck in its own right, came crashing into our court. AHA commenced appeal to seek review of several rulings made by the district court during the damages trial. On appeal, AHA argues that the district court erred in restricting the evidence it could introduce to prove the amount of its damages. AHA also asserts that the court erroneously concluded that transport of the combustion turbine was inherently dangerous as a matter of Florida law, a ruling that led the court to impute Rountree’s negligence to S&S (and thus to AHA) for damages purposes. Moreover, AHA contends that even if S&S properly was imputed with Rountree’s negligence, the district court erred in applying Florida comparative fault principles to limit AHA, as subrogee of S&S, to recovering 41% of S&S’s proven damages. Finally, AHA contends that the court mistakenly refused to grant prejudgment interest on its damages award. In addition to the appeal over AHA’s damages, KUA, FMPA, and B&Y have commenced appeals against GE on the issue of contractual indemnification. They argue that the district court erred in holding that, under the indemnification provision in the Purchasing Agreement, GE did not have to reimburse them for the expenses they incurred in defending themselves. They maintain that the indemnification provision is applicable here because they had to defend themselves against claims resulting from the turbine collision that arose out of GE’s failure to have the turbine transported safely. Finally, KUA and FMPA have commenced cross appeals against the Rail Companies. They seek review of the district court’s grant of summary judgment to CSX and Amtrak on the issue of contractual indemnification. They assert that, for several reasons, the court erroneously concluded that KUA — and by extension, FMPA — had to defend and indemnify the Rail Companies under the indemnification provision in the Crossing Agreement. KUA and FMPA claim that the indemnification provision is unenforceable based on Florida sovereign immunity law. They also raise several alternative arguments as to why they should not have to defend and indemnify the Rail Companies. For instance, KUA and FMPA argue that the indemnification provision is unenforceable because the special requirements under Florida law for indemnification in “construction” contracts have not been met. The provision also is unenforceable, they contend, based on Florida law dealing with exculpatory, or adhesion, contracts. Indeed, the indemnification provision is not applicable to the present case, KUA and FMPA maintain, because the negligent actions of CSX occurred in a location separate and apart from the railroad crossing. Finally, they assert that, even if the provision is enforceable and applicable to the facts here, Amtrak was not covered by the provision. II. DISCUSSION A. AHA’s Damages In addressing the plethora of issues raised on appeal, we turn first to those raised by AHA. AHA’s appeal focuses on several decisions made by the district court, including: (1) the decision to exclude AHA’s damages evidence and to direct a verdict on the amount of damages; (2) the decision that transport of the combustion turbine was inherently dangerous as a matter of Florida law; (3) the decision that Florida comparative fault principles limited AHA to recovering 41% of its damages; and (4) the decision not to grant AHA prejudgment interest on its damages. We will address each decision in turn. 1. Evidentiary Rulings The evidentiary rulings at issue occurred as the district court oversaw the damages trial at which AHA, as subrogee of S&S, sought to prove the damages incurred by S&S as a result of the collision. Prior to the collision, S&S bought certain turbine equipment, such as the turbine engine, which it then customized by adding wiring assemblies, harnesses, and piping. It also built an enclosure for housing the turbine equipment. S&S sold the customized equipment to GE, who then resold the equipment to KUA for use at the Plant. So that Rountree could transport the customized equipment to the Plant, S&S sorted the items of equipment into forty-five separate boxes, which were shipped at different times. Box 1 contained the combustion turbine and its enclosure. Boxes 2-45 contained other equipment, including air filters, turbine generator controls, a control house, and a ventilation module. Only box 1 was on the Rountree hauler rig, and only box 1 was damaged in the collision. As a result of the damage from the collision, S&S sold the turbine engine as scrap to GE for $130,000. S&S subsequently filed an insurance claim with AHA, who paid out $8,695,300 in proceeds to S&S. At the damages trial, AHA’s theory of damages was predicated on the formula its personnel had used to adjust the insurance claim of S&S after the collision. Under this insurance valuation formula, AHA did not measure the loss to S&S by taking the value of the customized turbine equipment in box 1 before the collision and subtracting the value of what was left of the equipment after the collision. Rather, AHA measured the loss to S&S by taking the total value of all the customized turbine equipment contained in boxes 1-45 before the collision and then subtracting the value of the equipment contained in boxes 2-45, equipment that went undamaged because it was shipped separately and thus was not on the Rountree hauler rig. To prove its damages under this formula, AHA attempted to admit into evidence a list of invoice prices for the equipment contained in boxes 2-45, which it argued represented the “salvage value” of the turbine equipment not destroyed by the collision. The district court refused to admit this evidence. The court, moreover, prevented several witnesses from testifying about the way in which the loss to S&S was calculated for the insurance valuation. The court excluded testimony from Dianne Furgerson, the claims adjuster for the collision, who would have testified about the proof of loss form submitted by S&S. She also would have testified about the subro-gation receipts that showed the amount of insurance proceeds paid to S&S in settlement of its insurance claim. Additionally, the court excluded testimony from Carl Shook, a project manager for S&S, and Dean Summers, a S&S corporate risk manager. They would have testified as to how S&S calculated its loss under the insurance policy. The district court excluded the aforementioned evidence under Federal Rule of Evidence 401 as irrelevant and under Rule 403 as confusing to the jury. The court excluded AHA’s evidence because it rejected the insurer’s formula for calculating damages. In the district court’s view, AHA was limited to proving the loss in value of the customized turbine equipment contained in box 1 (the combustion turbine and its enclosure), the only box involved in the collision. The court saw no basis for permitting AHA to expand the evidence it presented to include proof as to the value of the undamaged equipment shipped separately in boxes 2-45. The district court, however, did permit the introduction of evidence concerning the value of the combustion turbine engine because it was shipped in box 1. The court allowed into evidence the invoice for the original sale of the engine to S&S for $4,646,640. The court also allowed in evidence that S&S sold the damaged engine for scrap to GE for $130,000. Based on the invoice and scrap price, the district court granted judgment as a matter of law as to the amount of damages AHA had proven, which the court calculated as $4,546,640 ($4,646,640-$130,000). In evaluating the district court’s decisions concerning the relevancy of certain evidence of damages, we reverse only if the court abused its discretion. Pesaplastic, C.A. v. Cincinnati Milacron Co., 750 F.2d 1516, 1524 (11th Cir.1985). As to the district court’s grant of judgment as a matter of law on the amount of damages, our review is de novo, and we treat the evidence presented to the jury in the light most favorable to the nonmoving party. Willingham v. Loughnan, 261 F.3d 1178, 1180 (11th Cir.2001). We turn now to the Florida law that will guide us in assessing the aforementioned rulings by the district court. In Florida, “[t]he objective in calculating the proper measure of damages is to place the plaintiff in the same financial position as that occupied before the property was damaged.” Ocean Elec. Co. v. Hughes Labs., Inc., 636 So.2d 112, 114 (Fla.Dist.Ct.App.1994). A party whose chattel is harmed “is entitled to the difference between the value before and after the damage.” Hillside Van Lines, Inc. v. Matalon, 297 So.2d 848, 848 (Fla.Dist.Ct.App.1974) (per curiam); see also American Equity Ins. Co. v. Van Ginhoven, 788 So.2d 388, 391 (Fla.Dist.Ct.App.2001). Courts, however, must be careful to ensure that the party who incurred the loss is not unjustly enriched by the damages award. Ocean Elec., 636 So.2d at 114. Applying these principles to this case, we rule that the district court was correct in its exclusion of AHA’s damages evidence. The evidence that AHA sought to introduce was meant to substantiate the damages figure arrived at by AHA in adjusting the insurance claim of S&S. It follows that, if the formula used by AHA to adjust the claim was an improper measure of damages under Florida law, the admission of evidence offered to substantiate the damages figure calculated under that formula would similarly be improper. Because we conclude that AHA’s insurance valuation formula constitutes an improper measure of damages, we likewise conclude that the district court correctly excluded evidence offered to substantiate that valuation. As we have explained, AHA’s insurance valuation formula was based on the value before the collision of all the customized turbine equipment contained in boxes 1-45, minus the value after the collision of the equipment contained in boxes 2-45, equipment that was shipped separately, was not on the Rountree hauler, and was not involved in the collision. There is no authority under Florida law for calculating damages in this manner. Rather, Florida law indicates that the basic measure of damages for loss to chattels is the difference between the value of the damaged property before and after the casualty. American Equity Ins. Co. v. Van Ginho ven, 788 So.2d at 391; Hillside, 297 So.2d at 848. The focus thus is on the property actually involved in the casualty and the resulting loss in its value caused by any damage it sustained. AHA did not properly constrain its focus. Instead of focusing narrowly on the loss in value to the combustion turbine and its enclosure in box 1, AHA chose to measure its damages by incorporating the value of equipment contained in boxes 2-45. There could be no “difference between the value before and after the damage” with regard to such equipment, however, because it was not involved in the underlying casualty in the first place. Hillside, 297 So.2d at 848. Consequently, AHA’s damages formula, and the evidence it tried to introduce in support thereof, are inconsistent with Florida law. AHA argues in rebuttal that the equipment contained in the forty-five boxes constituted one item of merchandise that had been disassembled into separate boxes for transport to the Plant. AHA points out that all of the customized equipment was sold to GE by S&S as part of one sales contract. Moreover, AHA claims that the two contracting parties, in the purchase invoice and otherwise, treated the equipment as one LM 6000 turbine unit. In this manner, AHA argues that the proper measure of damages is the value before the collision of the LM 6000 turbine unit (boxes 1-45) minus its value after the collision (boxes 2-45). We disagree. This is not a contracts action, and the terminology of the sales contract between S&S and GE is not determinative with regard to third party tortfeasors like the Rail Companies or Rountree. AHA, moreover, cannot avoid the fact that separate items of turbine equipment were contained in boxes 1-45, and that only a distinct set of those items was involved in the underlying casualty. The distinct set of items in box 1 had an independent market value that readily could be ascertained, and so there was no good reason to complicate and confuse matters by including boxes 2-45 in the damages calculation. AHA’s argument would carry more weight if the separate items of turbine equipment were so interdependent that the value of any one item could not be ascertained without reference to the others. That is, AHA’s position would have merit if the value of the combustion turbine and the enclosure in box 1 was so intertwined with the value of the other equipment in boxes 2-45 that it could not be separately adduced. But that is not the case here. The record, for example, demonstrates that the value of the combustion turbine engine in box 1 could be ascertained both before and after the accident through a purchase invoice and through testimony regarding the scrap sale of the damaged engine. As a result, we reject AHA’s attempt to treat boxes 1-45 as a single item of merchandise for damages purposes. We also note that, even if we agreed with AHA’s treatment of all forty-five boxes as a single item of merchandise, its theory of damages still would be fundamentally flawed. In calculating the market value of the turbine equipment in boxes 1-45 before the collision, AHA relied on the “declared value” of that equipment under its insurance policy with S&S. The declared value of the forty-five boxes of equipment was $12,513,270, and this figure, in turn, was calculated in part by factoring in the price at which S&S sold the customized equipment to GE, $12,219,213. The proper measure of market value “is dependent upon the choice of the appropriate economic market which will achieve the objective of making the injured party whole, while avoiding any unjust enrichment.” Ocean Elec., 636 So.2d at 114. Because AHA’s insurance valuation relied in part on the price GE paid S&S for the customized turbine equipment, AHA’s damages figure contained a profit component. Inclusion of this component, however, would unjustly enrich S&S, and hence AHA. After the collision, S&S customized a new combustion turbine and turbine enclosure for the Plant and sold these replacement items to GE. S&S thus was able to obtain its profit on the sale of the turbine and its enclosure. To allow AHA to predicate its damages- on a figure that includes such profits would permit the insurer “to recover lost profits that were never lost in the first place.” Ocean Elec., 636 So.2d at 115 (quotations omitted). Furthermore, AHA would be unjustly enriched even more than our analysis at first suggests because, even if the profit component were extracted from the declared value, the declared value still would not reflect the actual loss incurred by S&S. Indeed, Dianne Furgerson, the claims adjuster, stated in her proffered deposition testimony that the AHA insurance policy was not geared towards compensating S&S for the actual cash value of the equipment that was damaged, but was instead predicated on the invoice sales price, plus a 5% markup. Thus, the insurance policy calculated the amount paid to S&S in insurance proceeds not only by factoring in the purported value of the equipment based on the invoice sales price, which included a profit component, but also by including a 5% increase to that amount. The 5% markup was not based on any actual costs substantiated by S&S. The increase, in fact, was a generic, fixed percentage that AHA had agreed to as part of the insurance coverage. The inflated value attributed to the equipment as a result of the 5% increase would lead, in turn, to the insurance formula overstating the losses incurred by S&S when the equipment was damaged. As we have noted, Florida law requires that courts ensure that the damages awarded for loss to chattel do not unjustly enrich the injured party. Ocean Elec., 636 So.2d at 114. Accordingly, we rule that an insured party whose property has been damaged cannot force a third-party tortfeasor to pay out in damages a negotiated figure between insurer and insured that reflects contract terms that inflate the value of the property. In sum, the contractual 5% markup that was factored into the declared value of the equipment in the insurance policy skews AHA’s damages theory, because, like the inclusion of the profit component, it raises the specter of unjust enrichment. Based on the foregoing analysis, we hold that the district court did not abuse its discretion in excluding AHA’s damages evidence. AHA’s evidence concerning the insurance valuation of the turbine equipment contained in boxes 2-46 was irrelevant to a proper determination of S&S’s actual damages, given that only the equipment in box 1 was involved in the collision. Such evidence would have confused the jury, who likely would have lost focus as to which equipment was ^actually on the Rountree hauler. AHA’s evidence regarding the insurance valuation of the damaged turbine equipment in box 1 also was irrelevant because, by including a profit component and a generic 5% markup, it did not reflect the loss that S&S actually sustained. It follows that the district court did not err in granting judgment as a matter of law in the amount of $4,546,640. The only relevant evidence concerning the value before and after the collision of the equipment in box 1 was the invoice representing the price of the turbine engine sold to S&S for $4,646,640, and the evidence concerning the scrap price of the damaged turbine sold to GE by S&S for $180,000. AHA failed to introduce any other witnesses or documentary evidence that demonstrated the costs incurred by S&S in obtaining and customizing the other equipment in box 1. AHA could have gathered this information and presented it at trial had it chosen to do so. Accordingly, the district court was correct to hold as a matter of law that AHA had proven damages totaling $4,546,640. 2. The Inherently Dangerous Work Doctrine a. The Inherent Dangerousness Issue Having held as a matter of law that AHA had proven damages totaling $4,546,640, the district court limited AHA to recovering 41% of its damages award. The court reduced AHA’s damages based on its earlier ruling that transport of the combustion turbine was inherently dangerous as a matter of Florida law. Based on its ruling that transport of the combustion turbine was inherently dangerous, the court had held that S&S, GE, and WOKO were vicariously liable for Rountree’s negligent transport of the turbine. Had S&S not been held vicariously liable, Rountree’s negligence (59%) would not have been imputed to S&S, and hence to AHA as subro-gee of S&S. The imputation of Roun-tree’s negligence to S&S, and thus to AHA, led the court to limit AHA’s recovery to 41% of the proven damages based on comparative fault principles. On appeal, AHA, as well as S&S, GE, and Rountree (collectively, the “I.D. Appellants”), challenge the district court’s decision that transport of the combustion turbine constituted inherently dangerous work as a matter of Florida law. We review de novo a ruling on a matter of law by the district court. Willingham, 261 F.3d at 1180. We take the evidence presented in the light most favorable to the nonmoving party. Id. Under Florida law, an owner, contractor, or employer is not liable for injury caused by an independent contractor’s negligence, unless the owner, contractor, or employer’s own active negligence caused or contributed to the injury. Baxley v. Dixie Land & Timber Co., 521 So.2d 170, 172 (Fla.Dist.Ct.App.1988). An exception to this rule is the inherently dangerous work doctrine, which applies when the work to be performed by the independent contractor “is inherently or intrinsically dangerous.” Florida Power & Light Co. v. Price, 170 So.2d 293, 295 (Fla.1964) (per curiam). An activity is inherently dangerous if the “danger inheres in the performance of the work,” and “it is sufficient if there is a recognizable and substantial danger inherent in the work, even though a major hazard is not involved.” Id. The activity, moreover, must be such that “in the ordinary course of events its performance would probably, and not merely possibly, cause injury if proper precautions were not taken.” Id. If the activity is found to be inherently dangerous, then the “one engaged in or responsible for the performance of [the] work ... is said to be under a nondelegable duty to perform, or have others perform, the work in a reasonably safe and careful manner.” Baxley, 521 So.2d at 172. Generally, it is a fact question for the jury whether a particular activity is inherently dangerous. Doak v. Green, 677 So.2d 301, 302 (Fla.Dist.Ct.App.1996) (per curiam). The trial court nonetheless may rule that an activity is inherently dangerous as a matter of law if there is “some statute or case law designating the activity as inherently dangerous,” or if there is a “sufficient record of undisputed facts” upon which the decision can be based. Id. Indeed, Florida courts often have held that particular activities are inherently dangerous as a matter of law. See, e.g., Midyette v. Madison, 559 So.2d 1126, 1128 (Fla.1990) (holding that clearing of land by fire is inherently dangerous as a matter of law); Bialkowicz v. Pan Am. Condominium No. 3, Inc., 215 So.2d 767, 772 (Fla.Dist.Ct.App.1968) (holding that installation of support pilings is inherently dangerous as a matter of law). Applying these standards to the present case, we conclude that the district court had a sufficient basis for concluding that transport of the combustion turbine was inherently dangerous as a matter of law. The court’s extensive analysis points to several undisputed facts that warrant this conclusion. The district court noted that the combustion turbine itself was tremendous in size, constituting an 82-ton, 14-foot high, 14-foot wide, and 57-foot long piece of machinery. The vehicle used to transport the 82-ton turbine itself weighed over 290,000 pounds. The transport vehicle, in fact, was an 184-foot, specially-equipped hauler consisting of a road tractor and a hauler rig that contained three separate cargo decks. The vehicle was over three times the length of an ordinary 18 wheeler. As further evidence of the oversized nature of the turbine and the transport vehicle, the hauler rig had to be equipped with special hydraulic equipment to adjust to gradations in the road. In addition to the unique dimensions and weight of the combustion turbine and the transport vehicle, the district court pointed to the quantum of regulations dealing with the transport of oversized items like the turbine as indicative of the inherent dangerousness involved. The court noted that Florida strictly regulates the transportation of oversized items like the turbine, see Florida Statute § 316.550, and that state law specifically addresses the moving of heavy equipment across railroad crossings. See § 316.170. The court also pointed out that the Florida Department of Transportation, the City of Tampa, and Polk County all required special permits before the turbine could be transported. As further evidence of inherent dangerousness, the district court focused on the unique preparation and the special precautions that were taken in transporting the combustion turbine. For instance, GE and S&S used a special “transportation broker” to arrange for the transport of the turbine on a specially-equipped vehicle. Unique measures then had to be taken by Rountree before it could transport the turbine; for instance, it had to coordinate and use special signs, lights, and escort vehicles, all of which the permitting authorities mandated. A separate utility vehicle, moreover, had to clear signs, traffic lights, overhead wires, and other obstacles as the transport of the turbine took place. Two off-duty Florida Highway Patrol officers in marked vehicles also were present to facilitate the transport. All of these factors, when taken together, provide ample justification for the district court’s conclusion on the inherent dangerousness issue. It is true that Florida precedent shows that towing of a piece of equipment is not in itself inherently dangerous. See E.J. Strickland Constr., Inc. v. Department of Agric. & Consumer Servs. of Florida, 515 So.2d 1331, 1335 (Fla.Dist.Ct.App.1987) (towing of tractor not inherently dangerous); American Auto. Assoc., Inc. v. Tehrani, 508 So.2d 365, 371 (Fla.Dist.Ct.App.1987) (operation of wrecker truck not inherently dangerous). But the situation in the present case was drastically different from the average towing scenario, as evidenced by the extraordinary dimensions and weight of the combustion turbine and the transport vehicle. Furthermore, as the district court explained, transportation of an oversized item like the turbine is strictly regulated by Florida law, and such regulation was one of the primary reasons the Florida Supreme Court held that the clearing of land by fire is inherently dangerous. See Midyette, 559 So.2d at 1128. Finally, we point out that the use of special hydraulics on the hauler rig to raise or lower its height makes this case similar to the operation of a crane, which Florida courts, on numerous occasions, have held is an inherently dangerous activity. See Scott & Jobalia Constr. Co. v. Halifax Paving, Inc., 538 So.2d 76, 79-80 (Fla.Dist.Ct.App.1989); Atlantic Coast Dev. Corp. v. Napoleon Steel Contractors, Inc., 385 So.2d 676, 679 (Fla.Dist.Ct.App.1980). b. The Collateral Negligence Issue Even if the district court properly concluded that transport of the turbine was inherently dangerous, the I.D. Appellants argue that the court nevertheless erred in its vicarious liability determination because the damage in this case resulted from Rountree’s “collateral” negligence. The I.D. Appellants claim that, even when an owner, contractor, or employer has a nondelegable duty, such a party “is not vicariously responsible for all torts committed by the independent contractor.” U.S. Security Servs. Corp. v. Ramada Inn, Inc., 665 So.2d 268, 271 (Fla.Dist.Ct.App.1996) (per curiam). They further contend that, based on the Restatement (Second) of Torts § 416, an owner, contractor, or employer can be held vicariously liable only if the independent contractor fails to take the special precautions that need to be taken as a result of the inherent dangerousness of the activity involved. Conversely, the I.D. Appellants maintain that such parties cannot be held vicariously liable for the independent contractor’s negligence that is collateral to the risks inherent in the activity, such as “abnormal or unusual kinds of negligence on the part of the contractor, or negligence in the performance of operative details of the work which ordinarily may be expected to be carried out with proper care.” Restatement (Second) of Torts § 426 cmt. b (1965); see also Security Servs., 665 So.2d at 271. Based on these principles, the I.D. Appellants’ position is that, even if transport of the turbine constituted inherently dangerous work, evidence presented at the liability trial shows that Rountree was collaterally negligent because its crew failed to take routine, common-sense precautions in attempting to transport the combustion turbine across the railroad crossing. They assert that the Rountree crew committed ordinary negligence by choosing to disable the transport vehicle on the train tracks at the railroad crossing instead of moving the vehicle off the tracks first, even though the crew knew that an Amtrak train was due to pass. The Rountree crew did not fail to take special precautions related to transport of the oversized combustion turbine and transport vehicle, in the I.D. Appellants’ view. Rather, from their viewpoint, the crew acted with extreme recklessness, failing to take the precautions that any ordinary driver would take at a railroad crossing. Under these circumstances, the I.D. Appellants maintain, they should not be held vicariously liable for Rountree’s negligent acts or omissions. We reject the position of the I.D. Appellants because, as the district court properly held, Rountree’s failure to move the transport vehicle from the railroad crossing was a function of the unique dangers that arose in transporting an oversized piece of machinery like the combustion turbine. The basic characteristics of the massive transport vehicle are not in dispute. The vehicle had 13 axles and 8 articulations, or pivot points. It required two drivers, one at the front of the vehicle, and one at the back. The vehicle, moreover, was equipped with a special hydraulic system that could raise or lower the cargo beds to adjust to gradations in road terrain. If gradations in the terrain were too great, the cargo beds could then be raised further through “shimming,” the insertion of metal pieces into certain crevices in the vehicle. R124-814. Before the crew could shim the load, the vehicle had to be set down on pine blocks, resulting in only a few inches of clearance between the vehicle and the road surface. The basic facts leading up to the collision also are not in dispute, On the collision date, the transport vehicle arrived at the private road grade crossing in the late morning. The Rountree crew first attempted to turn the transport vehicle left onto the crossing, but a utility pole prevented this maneuver. The Rountree crew then turned the vehicle around and approached the railroad crossing from the opposite direction in order to make a right-handed turn. Before proceeding forward over the railroad crossing, James Garren, the project supervisor, and Ralph Shook, the rear driver of the transport vehicle, inspected the elevation of the crossing. To do so, Garren and Shook stood on opposite ends of the track. Gar-ren kneeled and “eye-balled” how far the crest of the crossing extended up Shook’s leg. R122-1779. Garren and Shook then used a tape measure to determine the distance from the ground to the point on Shook’s leg to which the crest extended. They concluded that the vehicle would clear the crest of the crossing, if the vehicle was elevated to its maximum height using the hydraulic system. After raising the height, the Rountree crew attempted to maneuver the transport vehicle over the railroad crossing. The crew shortly realized, however, that even with the height of the vehicle fully extended by the hydraulic system, the cargo beds would not clear the crest of the crossing. Consequently, the crew stopped the vehicle on the tracks, even though members of the crew had heard that an Amtrak train was due to pass the railroad crossing by 1:00 p.m. Instead of backing the transport vehicle completely off the crossing, the crew disabled the vehicle on the tracks in order to implement the shimming procedure, which would raise the height of the vehicle enough to clear the crossing. The crew did so at the direction of Garren, who believed that the vehicle could be removed from the tracks more quickly if the crew set down the vehicle on the tracks to shim the load than if they first attempted to maneuver it backwards off the crossing. Garren feared that if the crew tried to back the vehicle completely off the crossing, it would jack knife and would get stuck there. The crew proceeded to shim the load with the transport vehicle on the tracks. After completing the shimming procedure, but before the vehicle had time to proceed forward over the crossing, an Amtrak train arrived and the collision occurred. At the liability trial, the dispute over whether Rountree was negligent focused primarily on the decision to shim the load with the transport vehicle still on the tracks. The parties presented conflicting accounts of whether the transport vehicle could have been backed off the crossing in a quick and safe manner. Additionally, the parties disputed whether the Rountree crew followed a reasonable procedure in measuring the crest of the crossing before trying to proceed with the vehicle over the tracks. That is, they argued over whether the Garren and Shook acted unreasonably by eye-balling the railroad crossing elevation instead of using a more scientific, precise method of measurement. That the dispute concerned these particular acts or omissions of the Rountree crew shows that, contrary to the I.D. Appellants’ position, the present case is not about collateral negligence. This conclusion follows from the fact that the risk that the Rountree crew would err over whether and how to maneuver backwards the enormous transport vehicle—with its 13 axles and 8 pivot points—is exactly the type of dangerous risk inherent to the moving of oversized machinery in a low-clearance, specialized transport vehicle. That a supervisor like Garren might miscalculate whether the specialized vehicle would jack knife and get stuck is one of the dangers inherent to the operation of a 184-foot vehicle hauling an 82-ton piece of machinery. Moreover, that Garren and Shook would measure the height of the crest improperly is one of the dangers that flows directly from utilization of a low-clearance vehicle with a specially-equipped hydraulic unit for raising or lowering cargo beds in response to terrain elevation. We therefore agree with the district court that Rountree’s negligence resulted from its failure to take the special precautions required for transporting an oversized combustion turbine in a complex, specially-equipped vehicle that was sensitive to changes in terrain gradation levels. The factual disputes in this case only reinforce this conclusion. c. The Vicariously Liable Parties The I.D. Appellants raise one final argument. They contend that even if transport of the turbine was inherently dangerous, and even if Rountree did not commit collateral negligence, S&S should not be held vicariously liable for Roun-tree’s negligent acts or omissions. The I.D. Appellants contend that Rountree’s employer, WOKO, can be held vicariously liable for Rountree’s negligence, but not S&S, who hired WOKO but had no direct employment or contractual relationship with Rountree. The issue here is whether a principal (S&S) can be liable for the conduct of its contractor’s (WOKO’s) subcontractor (Rountree). We agree with the district court on this issue and conclude that, under the facts of this case, S&S can be held vicariously liable for Rountree’s negligence. The parties do not dispute that S&S, through its contract with GE, was responsible for transporting the combustion turbine to the Plant. By contracting with GE, S&S assumed the duty of providing for the safe transport of the turbine. As part of its contractual duties, S&S arranged for the inherently dangerous activity of having the turbine transported in a specially-equipped vehicle. Because transport of the turbine constituted inherently dangerous work, the duty of S&S to provide for the safe transport of the turbine was nondelegable. See Baxley, 521 So.2d at 172 (stating that anyone “engaged in or responsible for” the inherently dangerous activity has a nondelegable duty). When a duty is nondelegable, “responsibility, i.e., ultimate liability, for the proper performance of that undertaking may not be delegated.” Atlantic Coast, 385 So.2d at 679. Thus, as the district court concluded, S&S remained ultimately hable for the transport of the turbine, even though it had contracted with WOKO to arrange for the transportation. 3. Comparative Fault Even if transport of the combustion turbine was inherently dangerous as a matter of law, AHA argues that the district court nevertheless should not have limited its recovery to 41% of its damages. As subro-gee of S&S, AHA claims that, because S&S was only vicariously liable for the collision, the district court erred in applying Florida comparative fault principles, as enunciated in Florida Statute § 768.81, to reduce the proven damages. AHA contends that § 768.81 applies solely to parties who are directly negligent, and that a party who is only vicariously liable cannot have fault apportioned to him under § 768.81. This issue has not been directly addressed by the Supreme Court of Florida. Because this issue involves unsettled questions of state law that raise important public policy concerns, we have decided to certify the issue to Florida’s highest court for resolution. As previously noted, at the conclusion of AHA’s presentation of evidence in the damages trial, KUA and FMPA, among others (collectively, the “C.F. Appellees”), orally moved for the court to enter judgment as a matter of law in favor of AHA and against Rountree and the Rail Companies in the amount of $1,851,822.40, which represented 41% of $4,546,640. The district court granted the motion. The court ruled that the subrogee AHA could recover only 41% of the damages that it had proven were incurred by S&S because Rountree’s fault (59%) was to be apportioned to S&S, and hence to AHA, under Florida Statute § 768.81. Rountree’s fault was apportioned to the subrogee AHA under § 768.81 because S&S had been held vicariously hable for, and thus had been imputed with, Rountree’s negligence under the inherently dangerous work doctrine. Not only was S&S legally obligated to pay damages owed by Rountree to the collision victims, but also, through AHA, it was to have its own damages for loss of the combustion turbine and of the enclosure reduced under § 768.81 in proportion to Rountree’s negligence. Upon reaching this conclusion regarding the application of § 768.81, the district court, having ruled already that Rountree’s liability to AHA was limited to $1,000,000, entered judgment against the Rail Companies jointly and severally for the remaining $851,822.40. In discussing the district court’s conclusion, we turn first to Florida Statute § 768.81, entitled “Comparative Fault.” The section states that “any contributory fault chargeable to the claimant diminishes proportionally the amount awarded as economic ... damages for an injury attributable to the claimant’s contributory fault.” Fla. Stat. Ann. § 768.81(2) (West 1997). The section further provides that “[t]he court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.” § 768.81(3). AHA’s primary assertion is that the district court improperly treated vicarious liability as synonymous with the word “fault” in § 768.81, given that “fault,” in AHA’s view, means direct negligence. To substantiate its position, AHA points to Florida cases that treat vicarious liability as a matter of status or relationship, not of fault. See Nash v. Wells Fargo Guard Servs., Inc., 678 So.2d 1262, 1264 (Fla.1996) (“We ... hold that the named defendant cannot rely on the vicarious liability of a nonparty to establish the nonparty’s fault.”); Mercury Motors Express, Inc. v. Smith, 393 So.2d 545, 549 (Fla.1981) (“An employer is vicariously liable ... [for] the negligent acts of employees committed within the scope of their employment even if the employer is without fault. This is based upon the long-recognized public policy that victims ... should be compensated even though it means placing vicarious liability on an innocent employer.”) (emphasis added); Crowell v. Clay Hyder Trucking Lines, Inc., 700 So.2d 120, 125 (Fla.Dist.Ct.App.1997) (“Vicarious liability awards compensate for injuries without regard to fault.”). AHA also notes that in this case, the district court specifically stated that S&S is an “innocent part[y] who [i]s vicariously liable for damages which are wholly the fault of Rountree.” R100-1979-22 n. 17. As a consequence of such case law, AHA concludes that when Florida Statute § 768.81(3) states that damages are to be apportioned based on a party’s “percentage of fault,” it means based on a party’s direct negligence, not on a party’s status or relationship with another party. Fla. Stat. Ann. § 768.81(3); see also Fabre v. Marin, 623 So.2d 1182, 1185 (Fla.1993), overruled in part on other grounds, Wells v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 659 So.2d 249 (Fla.1995) (“We conclude that [§ 768.81] is unambiguous. By its clear terms, judgment should be entered against each party liable on the basis of that party’s percentage of fault.”) (emphasis added). Indeed, AHA indicates that at least one Florida appellate panel has interpreted Fabre as equating fault under Florida Statute § 768.81 with direct negligence. See Wal-Mart Stores, Inc. v. McDonald, 676 So.2d 12, 20 (Fla.Dist.Ct.App.1996), aff'd sub nom., Merrill Crossings Assocs. v. McDonald 705 So.2d 560 (Fla.1997) (stating that, in addressing § 768.81, the Fabre court “equated a defendant’s fault with the amount of its negligence”) (quotations omitted). The essence of AHA’s contention, therefore, is both that Florida law consistently has drawn a sharp distinction between vicarious liability and fault, and that this same distinction should be recognized in the application of Florida Statute § 768.81, which refers only to fault and never specifically mentions vicarious liability. Additional arguments can be made in favor of AHA’s position. AHA claims that a vicariously liable party cannot be said to have contributed to, or to have participated in, the accident at issue in a given torts case. But the Fabre court stated that apportionment of damages under § 768.81 is between “participants to the accident.” Fabre, 623 So.2d at 1185 (emphasis added). Furthermore, one can argue that a vicariously liable party is not a joint or concurrent tortfeasor, given that such a party is being held liable solely for the conduct of another. Some Florida cases, however, have indicated that § 768.81 only applies to joint or concurrent tortfeasors. See D’Amario v. Ford Motor Co., 806 So.2d 424 (Fla. 2001) (per curiam) (holding that, in a crashworthiness case between a car accident victim and an automobile manufacturer, the third-party driver responsible for the initial collision cannot have fault apportioned to him under § 768.81 because the third-party driver and manufacturer are not joint or concurrent tortfeasors); Association for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520, 524-25 (Fla.Dist.Ct.App.1999) (stating that, in an action between an injured party and an initial tortfeasor, a health care provider who aggravates the initial injury cannot have fault apportioned to him under § 768.81 because the physician and initial tortfeasor are successive, rather than joint, tortfeasors). In sum, AHA’s assertion is that a party who is only vicariously liable cannot have another’s fault apportioned to him under § 768.81, which AHA argues only applies to parties who are directly negligent, who actively participate in the accident at issue, or who constitute joint or concurrent tort-feasors. The subrogee AHA therefore contends that it should be able to recover all of the damages that it had proven were incurred by S&S without having Roun-tree’s negligence apportioned to it under § 768.81. This interpretation of § 768.81 would not harm the C.F. Appellees, AHA maintains, because they still could recover their damages from S&S as a result of S&S’s vicarious liability for Rountree’s negligence. Moreover, irrespective of the outcome here, AHA points out that, should Rountree seek to recover its own damages from the C.F. Appellees, Rountree still would' be required to have its damages reduced under § 768.81 as a result of its direct negligence in causing the turbine collision. The C.F. Appellees raise several rebuttal arguments. They too focus on the precise wording of § 768.81. The C.F. Appellees note that under § 768.81(2), any contributory fault that is “chargeable to the claimant” has the effect of diminishing his or her damages “for an injury attributable to the claimant’s contributory fault.” Fla. Stat. Ann. § 768.81(2) (emphasis added); see also Cody v. Kernaghan, 682 So.2d 1147, 1149 (Fla.Dist.Ct.App.1996) (noting that the doctrine of contributory fault applies “ to reduce ... economic ... damages by the percentage of fault which can be attributed to the plaintiff’). Terms like “chargeable” and “attributable,” in the view of the C.F. Appellees, indicate that the meaning of “fault” for purposes of § 768.81 goes beyond direct negligence. Furthermore, § 768.81(4)(b) lists several situations where comparative fault does not apply, such as where liability is “based upon an intentional tort,” but the list does not include situations where liability is based upon vicarious liability. Fla. Stat. Ann. § 768.81(4)(b). Based on this statutory language, the C.F. Appellees have a basis for arguing that the district court did not overreach by treating S&S’s vicarious liability as within the ambit of the term “fault” found in § 768.81. In addition to arguing that their position synchronizes with the statutory language of § 768.81, the C.F. Appellees claim that their position, unlike that of AHA, accords with baseline tort principles, as pronounced in Restatement (Third) of Torts: Apportionment of Liability § 5. Section 5 states that “[t]he negligence of another person is imputed to a plaintiff whenever the negligence of the other person would have been imputed had the plaintiff been a defendant.” Restatement (Third) of Torts: Apportionment of Liability § 5 (1999). In turn, comment b of the Restatement section states that “[w]hen a party would be responsible as a defendant for the negligence of a third person, the negligence of the third person is imputed to the party as a plaintiff.” Id § 5 cmt. b. The C.F. Appellees argue that, since the vicariously liable S&S would be charged with Roun-tree’s negligence if S&S were the defendant, thus causing S&S to bear legal responsibility for any damages owed by Rountree to collision victims, it follows that Rountree’s negligence should be charged to S&S in this action where S&S, through AHA, is the plaintiff. Finally, the C.F. Appellees turn to distinguishing the cases relied on by AHA, including Fabre, Nash, and Wal-Mart. They contend that Fabre only held that in enacting § 768.81, the Florida legislature intended for all joint or concurrent tortfea-sors who cause an accident to be included in the apportionment of fault for that accident, even those tortfeasors who are non-parties to the suit. Fabre, 623 So.2d at 1185. Fabre never indicated that fault under § 768.81 can only mean direct negligence, the C.F. Appellees assert. Similarly, they maintain that Nash stands for the proposition that it is inappropriate for a named defendant to include a non-party on the verdict form for apportionment of damages, if the non-party is only vicariously liable for the named defendant’s negligence. Nash, 678 So.2d at 1264-65. Otherwise, the C.F. Appellees note, the plaintiffs recovery against the named defendant would be unfairly split between two parties — the named active tortfeasor and the vicariously liable non-party — even though the liability of the two should be coextensive under basis principl