Opinion
8:19CV166
2020-10-22
Robert BUTLER, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, Defendant.
Shawn M. Sassaman, Tobi A. Russeck, Bern, Cappelli Law Firm, Conshohocken, PA, for Plaintiff. Anne M. O'Brien, Daniel Hassing, Kyle Wallor, Lamson, Dugan Law Firm, Omaha, NE, for Defendant.
Shawn M. Sassaman, Tobi A. Russeck, Bern, Cappelli Law Firm, Conshohocken, PA, for Plaintiff.
Anne M. O'Brien, Daniel Hassing, Kyle Wallor, Lamson, Dugan Law Firm, Omaha, NE, for Defendant.
MEMORANDUM AND ORDER
Joseph F. Bataillon, Senior United States District Judge
This matter is before the Court on the defendant's motion for summary judgment, Filing No. 16. This is an action under the Federal Employers’ Liability Act ("FELA"), 45 U.S.C. § 51 et seq. , and the Federal Locomotive Inspection Act, 49 U.S.C. § 20101, et seq. The plaintiff, formerly employed as a brakeman and a conductor by defendant Union Pacific Railroad Company ("U.P." or "the Railroad") alleges that while employed at U.P. from 1963 to 2000, he was negligently exposed to various toxic substances and carcinogens that caused or contributed to his development of colorectal cancer.
In its motion for summary judgment, U.P. contends the plaintiff's action is barred by a settlement and release Butler executed in 2011 on an asbestosis claim.
I. FACTS
The parties agree to certain facts. See Filing No. 17, U.P. Brief at 2-6; Filing No. 19, Response Brief at 2-3; The following facts are gleaned from the parties’ agreed statements and from the record.
The parties agree that Butler first became employed by U.P.’s predecessor, Missouri Pacific Railroad Company in 1963. He continued to work for the railroad until 2000, when he took a leave of absence. He remained on Union Pacific's roster until 2008.
Butler brought an asbestosis claim against Union Pacific, which the parties settled on March 3, 2011. Filing No. 18-2, Ex. 2, Release; Filing No. 18-3, Ex. 3, Requests for Admission at 1. The release recites that Butler filed a claim for injuries resulting from occupational exposures and the basis of the claim resolved by the release was exposure to asbestos. Filing No. 18-3, Ex. 3, Requests for Admission at 1. At the time of the execution of the release, Butler had been diagnosed with asbestosis. Butler acknowledged the payment of $5000.00 as a "complete compromise and settlement of all claims, demands, actions, injuries, damages, costs and compensation of any kind arising out of the subject matter of this Release , whether known or unknown, whether or not ascertainable at this time." Filing No. 18-2, Ex. 2, Release at 3 (emphasis added).
The release provides that "Butler brought a claim against Union Pacific seeking damages as a result of alleged illness and diseases and any cancers or death resulting" from Butler's "Occupational Exposures." Id. at 2. In exchange for consideration in the amount of $5000.00, Butler agreed to release
any and all claims demands, actions, damages, costs and compensation of any kind against Union Pacific accruing as a result of ROBERT BUTLER'S employment with Union Pacific, including illness, cancers, diseases, and death from BUTLER'S Occupational Exposures. This release expressly includes all claims caused in whole or in part by any Occupational Exposures. This release expressly includes all claims arising out of any illness, disease, cancers, potential cancers, injury, and death from any Occupational Exposures. This release includes claims for any illness, injuries or diseases which are presently existing or known as well as claims for any injury, illness, or disease that does not presently exist or is unknown, but which may develop or become known in the future. This release expressly includes any claims for any cancer which presently exists as well as any cancer which does not presently exist but which may develop in the future. This release includes any future damages, general or specific, that BUTLER may incur in an attempt to alleviate or cure any illness, disease, cancer, potential cancer or other injury, including chemotherapy, radiation therapy and surgery. This release includes any increased risk of contracting any physical disorder related to or resultant from any illness, disease, cancer, potential
cancer, or other injury as result of any Occupational Exposures. BUTLER further agrees not to institute any action at law or in equity against Union Pacific for any claims, demands, actions, damages, costs, or compensation of any kind as a result of ROBERT BUTLER'S employment with Union Pacific, including Occupational Exposures or their consequences, including but not limited to any claim for medical bills or health care, lost earning power, loss of consortium, mental anguish, pain and suffering, wrongful death, contribution and/or indemnity, and any other claims now or later existing. Union Pacific may plead this agreement as a complete defense to any action or proceeding brought by BUTLER in breach of this covenant.
Id. at 2-3. In the release, "Occupational Exposures" is defined as:
any and all exposures to which ROBERT BUTLER was exposed as an employee of Union Pacific. Occupational Exposures includes any and all exposures by any method, including exposures by breathing, touching, ingesting, or otherwise. Occupational Exposures includes any and all exposures to any toxic materials, metals or chemicals, including without limitation asbestos, dusts, fumes, gases, fuels, combustion products and by-products, exhausts, solvents, cleaners, lubricants, paints, paint thinners, silica, whether alleged or not alleged, caused or contributed to by, or in any way the legal responsibility of any company or person within the above definition of Union Pacific. Occupational Exposures includes claims against Union Pacific for exposures to which ROBERT BUTLER was exposed as an employee of Union Pacific which are caused by or alleged to be caused by any third party, including without limitation, a Union Pacific customer, an industry served by Union Pacific, a manufacturer, supplier, owner, shipper, or consignee of any product transported by Union Pacific, a contractor engaged by Union Pacific, or owners of real property from which any exposure emanates.
Id. at 1.
In the release, Butler acknowledged that the "possible future effects of existing injuries [were] specifically bargained for" in his release and were "released in exchange for the payment of consideration stated" in the release. Id. at 3. Butler concedes that asbestosis may lead to lung cancer and mesothelioma. The plaintiff contends the "future effects" of pulmonary asbestosis would be lung cancer.
There is no dispute that Butler consulted with his attorneys in making the release and that he was "relying upon their collective judgment, belief and knowledge about" the release and claims. Butler was represented by the same attorney who represents him in this litigation. Butler warranted "that the terms of the Release ha[d] been completely read and/or explained by his[ ] attorney and that said terms are fully understood and voluntarily accepted by BUTLER." Id. at 4. Both Butler and his attorney signed the release.
Butler knew at the time that he executed the release that asbestos was carcinogenic, meaning he knew it could cause cancer. Butler was 67 years old and retired at the time that he signed the release. Under the terms of the release, Butler released all claims for cancer arising from Occupational Exposures, as defined in the release. Butler was diagnosed with invasive adenocarcinoma of the lower anterior colon in 2016. Filing No. 20, Ex. 1, Pathology Report at 3.
II. LAW
Summary judgment is appropriate when, viewing the facts and inferences in the light most favorable to the nonmoving party, "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who 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. Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "The movant ‘bears the initial responsibility of informing the district court of the basis for its motion’ and must identify ‘those portions of [the record] ... which it believes demonstrate the absence of a genuine issue of material fact.’ " Torgerson v. City of Rochester , 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc ) (quoting Celotex , 477 U.S. at 323, 106 S.Ct. 2548 ). If the movant does so, "the nonmovant must respond by submitting evidentiary materials that set out ‘specific facts showing that there is a genuine issue for trial.’ " Id. (quoting Celotex , 477 U.S. at 324, 106 S.Ct. 2548 ).
The evidence must be viewed in the light most favorable to the nonmoving party, giving the nonmoving party the benefit of all reasonable inferences. Kenney v. Swift Transp., Inc. , 347 F.3d 1041, 1044 (8th Cir. 2003). If "reasonable minds could differ as to the import of the evidence," summary judgment should not be granted. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "In ruling on a motion for summary judgment, a court must not weigh evidence or make credibility determinations." Id. "Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate." Koehn v. Indian Hills Cmty. Coll. , 371 F.3d 394, 396 (8th Cir. 2004).
The validity of a release under the FELA is determined in accordance with federal law. Dice v. Akron, Canton & Youngstown Ry. Co. , 342 U.S. 359, 361, 72 S.Ct. 312, 96 L.Ed. 398 (1952) ; see also Maynard v. Durham & S. Ry. Co. , 365 U.S. 160, 161, 81 S.Ct. 561, 5 L.Ed.2d 486 (1961). Under § 5 of the FELA, any contract where the purpose is to "exempt" an employer from "any liability" under FELA is void. 45 U.S.C. § 55 ; see CSX Transp., Inc. v. McBride , 564 U.S. 685, 708, 131 S.Ct. 2630, 180 L.Ed.2d 637 (Roberts, J., dissenting) ("FELA expressly abrogated common law tort principles in four specific ways ... [FELA] barred employees from contractually releasing their employers from liability.").
However, "[w]here controversies exist as to whether there is liability, and if so for how much," a release of liability is not a device to exempt from liability but is a means of compromising a claimed liability, and is not precluded by § 5 of the FELA, 45 U.S.C. § 55. Callen v. Penn. Ry. Co. , 332 U.S. 625, 630, 68 S.Ct. 296, 92 L.Ed. 242 (1948). Thus, "a release of FELA claims can have the same effect as any other release, in that it may constitute a settlement or compromise, rather than an attempt to escape liability." Babbitt v. Norfolk & W. Ry. Co. , 104 F.3d 89, 92 (6th Cir. 1997). The plaintiff bears the burden of establishing that a release is void under § 5 of the FELA. Callen , 332 U.S. at 630, 68 S.Ct. 296.
There is a split in authority as to the validity of a release of future claims under the FELA. Compare Babbitt , 104 F.3d at 93 (holding that a release is not valid if it exempts the railroad from liability for future, undiagnosed injuries) with Wicker v. Consol. Rail Corp. , 142 F.3d 690, 701 (3rd Cir. 1998) (holding that a release of liability for future, undiagnosed injuries may be valid as long it is executed for valid consideration as part of a settlement and the scope of the release is limited to those risks that are known to the parties at the time the release is signed). Under the bright-line Babbitt standard, "a release must reflect a bargained-for settlement of a known claim for a specific injury, as contrasted with an attempt to extinguish potential future claims the employee might have arising from injuries known or unknown by him." Babbitt , 104 F.3d at 93. The Third Circuit rejects the "known injury" standard in favor of a "known risks" standard, under which the parties can compromise a future claim as part of a settlement as long as "the scope of the release is limited to those risks which are known to the parties at the time the release is signed." Wicker , 142 F.3d at 701. "Claims relating to unknown risks do not constitute ‘controversies,’ and may not be waived under [ § 55 ] of FELA." Id.
Some courts find there is no need to select between the two tests to evaluate the validity of a release under § 5 of the FELA because "the Babbitt and Wicker cases actually set out different standards to be applied in different circumstances." See, e.g., Ratliff v. Norfolk S. Ry. Co. , 224 W.Va. 13, 680 S.E.2d 28, 38 (2009). The "distinction lies with the posture of the employee in executing a release," with Wicker applying to cases where an employee executes a release in connection with the negotiation of a FELA claim, and Babbitt applying when the employee was not negotiating the settlement of a claim but executed a general release in the context of participating in a voluntary separation program. Id.
Also, it is not a violation of the FELA to for an employer, as part of a bargained-for settlement of a claim for a specific injury, to enter into an agreement "designed to make sure that a totally disabled" employee would not work for the employer in the future. Sea-Land Serv., Inc. v. Sellan, 231 F.3d 848, 851 (11th Cir. 2000) (involving Jones Act and holding the common carrier employer could bargain for an agreement settling a claim of total and permanent disability that barred the employee from future employment on its vessels). Neither of those scenarios is at issue here.
A sufficient release "spells out the quantity, location and duration of potential risks to which the employee has been exposed—for example toxic exposure—allowing the employee to make a reasoned decision whether to release the employer from liability for future injuries[.]" Id. The evaluation of the parties’ intent at the time the agreement was made is an essential element of the "known risk" inquiry and that is a fact bound determination. Id. at 700 ; see also Collier v. CSX Transp. Inc. , 673 F. App'x 192, 196-97 (3d Cir. 2016) (stating the issue is not whether a prior asbestos-related injury would develop into cancer—it is whether a plaintiff is aware of his exposure to asbestos and aware that the exposure could cause cancer and finding the release of an asbestosis claim covered a lung cancer claim); Jarrett v. Consol. Rail Corp. , 185 A.3d 374, 379 (Pa. Sup. Ct. 2018) (finding a release of future asbestos-related injuries enforceable as to lung cancer ); Cole v. Norfolk S. Ry. Co. , 294 Va. 92, 803 S.E.2d 346 352 (2017) (finding plaintiff released claim of lung cancer caused by asbestos exposure in settling an asbestosis claim); Jaqua v. Canadian Nat'l R.R. , 274 Mich.App. 540, 734 N.W.2d 228, 237 (2007) (finding a release of an asbestosis claim covered lung cancer ).
Even under the Wicker approach, courts are "wary of making the validity of the release turn on the writing alone because of the ease in writing detailed boiler plate agreements; draft releases might well include an extensive catalog of every chemical and hazard known to railroad employment." Wicker , 142 F.3d at 701. Releases that mechanically detail a laundry list of diseases or hazards that could conceivably be encountered by a railroad worker are viewed skeptically and are not conclusive of the parties’ intent. Id. (finding that a release that "merely recite a series of generic hazards to which [the plaintiffs] might have been exposed, rather than specific risks the employees faced during the course of their employment" does "not demonstrate the employees knew of the actual risks to which they were exposed and from which the employer was being released."). Where a specific known risk or malady is not mentioned in the release, it is difficult for the employer to show it was known to the employee and that he or she intended to release liability for it. Id. "[W]here a release merely details a laundry list of diseases or hazards, the employee may attack that release as boilerplate, not reflecting his or her intent." Id.
III. DISCUSSION
The Court finds the release at issue precludes a toxic-exposure claim only with respect to exposure to asbestos. Under the rationale expressed in Callen, Babbitt , and Wicker , a release must about a "controversy" on the railroad's liability, and/or the extent of that liability, for a particular accident or exposure. This means that a valid release under FELA must relate to a specific claim. Even under the more expansive holding of Wicker , which permits the release of a future injury as long as the risk is known when the release is executed, a valid release must address a specific instance of disputed liability. In other words, a release that evidences an intent to preclude a claim that is unrelated to the one compromised will be void under 45 U.S.C. § 55 because there is no controversy or dispute about a potential claim for the parties to settle.
U.P. contends that the language of the release is aimed at the discrete risk of occupational exposures to various toxic substances. It argues that the broad language of the release shows an intent to release all claims for injuries of a certain type—toxic exposure, as opposed to claims, for example, related to hearing loss or for repetitive motion injuries. The Court finds that argument is unavailing. The subject matter of the settled claim was asbestosis and asbestos exposure. The broad language of the release is limited at the outset to the subject matter of the claim that was settled—a claim for injuries caused by asbestos.
Granted, the release broadly describes a wide variety of exposures (any and all exposures to any toxic materials, metals or chemicals, including without limitation asbestos, dusts, fumes, gases, fuels, combustion products and by-products, exhausts, solvents, cleaners, lubricants, paints, paint thinners, silica, gases, fumes, spills, etc.), an extensive list of released claims (for medical bills or health care, lost earning power, loss of consortium, mental anguish, pain and suffering, wrongful death, contribution and/or indemnity, and any other claims now or later existing), a vast array of resulting injuries (illness, disease, cancers, potential cancers, injury, death and mental distress), and a collection of covered parties (U.P.’s predecessors-in-interest, successors-in-interest, directors, officers, employees, agents, representatives, subsidiaries, affiliates, leased and operated lines and insurance companies, and Butler's insurers, heirs, successors, assigns and attorneys), but all of that expansive language relates to liability caused by or resulting from exposure to asbestos—the subject matter of the agreement. The expansive definition of "occupational exposures" must be read in the context of the exposure at issue—asbestos. U.P. cannot expand the scope of the settlement through a definitional provision. If the release were interpreted to include future injuries resulting from other toxins, it would run afoul of 45 U.S.C. § 55. Rather, the release can be read to be limited to one type of cause—asbestos. Neither diesel exhaust nor benzene is mentioned in the release.
There is no dispute that the claim settled in the release was a claim for the disease asbestosis caused by asbestos. By its terms, the release covers future injuries, including cancer, that result from that exposure. The plaintiff concedes that the release extends to later diagnosed injuries caused by asbestos exposure, such as lung cancer and mesothelioma. Neither party suggests that colorectal cancer is caused by exposure to asbestos.
Under the FELA, U.P. cannot cast a wide enough net through its broad release language to cover a laundry list of toxins and potentialities. The release, especially its broad definition of occupational exposures, is the sort of dreaded "laundry list" general release that is disfavored under the FELA. Other than repeated references to a broadly defined category of potential harms, the release at issue here contains nothing that indicates the plaintiff intended to release U.P. from liability from anything other than asbestos-related injuries or risks connected to exposure to asbestos over the course of his career. The document is a general release expressly limited to all claims plaintiff had or could have against the railroad as a result of an exposure to asbestos. It does not stand to reason that an employee with a thirty-seven-year work history would settle all the known and unknown risks from a plethora of toxins for the sum of $5000.00. Even though there is no factual dispute that the agreement was the result of negotiations and the plaintiff was represented by counsel, the release does not demonstrate the parties understood—let alone addressed or discussed—that Butler was releasing any claims other than those related to asbestos. There is at the least a question for the jury as to the intent of the parties in executing the contract.
The Court finds the release does not pass muster under 45 U.S.C. § 55, and is therefore ineffective under the FELA to preclude the plaintiff's claim. In summary, defendant U.P. is not entitled to judgment in its favor on the plaintiff's claim as a matter of law. Accordingly,
IT IS ORDERED that the defendant's motion for summary judgment (Filing No. 16) is denied.