In this NYCAL case, the Maritime Asbestos Legal Clinic originally filed a suit in 1997 on behalf of the decedent, Mason South, in the Northern District of Ohio. The decedent served in the Merchant Marines from 1945 to 1982. Less than two months later the case settled, with Texaco Inc. being one of the settled defendants. In 2014, the decedent was diagnosed with and died from complications related to mesothelioma. In 2015, the decedent’s wife commenced another action under the Jones Act arising from her husband’s life long career in the Merchant Marines. Texaco was named in the new action and moved to dismiss the case based on the release it was previously provided that specified that it was interpreted under the Jones Act and maritime law. The plaintiff opposed the motion based on the higher release standards of the Federal Employment Liability Act (FELA). Texaco argued that FELA does not apply, and even if it did the prior release was still enforceable.
The court denied Texaco’s motion. In making its decision, the court noted that federal law applied as the release provided that it should be interpreted under the Jones Act and general maritime law. The court went on to state that the Jones Act incorporated the FELA statutes, however the issue was unsettled as to whether or not section 5 of FELA permits the release of future claims for known risks. Neither party addressed which federal circuit court, the Third or the Sixth, ruling on the issue should apply. Regardless, the court found: “Under the standards of either the Third or Sixth Circuit, Texaco has failed to meet its burden of proof to demonstrate that Mason South understood that he was releasing a future claim for mesothelioma, which was a risk known to him. If the Sixth Circuit applies, the release is void under Babbitt, 104 F3d 89, supra because 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 the injuries known or unknown by him.’ If the Third Circuit’s standard controls, summary judgment is also properly denied under Wicker, 142 F3d 690, supra. The Wicker court found that the release was void and contained a ‘laundry list of diseases or hazards [which] the employee may attack as boiler plate.’”
In its decision, the court went on to explain: “Like the Wicker release, the South release refers to a release of future claims arising out of asbestos exposure, and like Wicker release the South release contemplates a second injury. However, unlike the Wicker release, the South release does not even mention cancer, and neither release mentions mesothelioma. Further, although the language of the release is strong evidence of the parties’ intent, it is not conclusive. Texaco has offered no proof (other than the language of the release) to demonstrate that Mason South intended to release a future claim for mesothelioma.” The court went on to conclude “while Texaco may have intended that the release bar this action, a release may not be “merely an engine by which an employer can evade FELA liability” (Wicker, 142 F3d at 700, supra).”