Prior Settlement Enforced Under FELA Leading to Dismissal of Action Supreme Court of West Virginia, August 31, 2017
The plaintiff filed suit against defendants including Norfolk Southern Railroad Company (NSRC), alleging his decedent, Aaron Cole, developed lung cancer as a result of his work as a machinist for NSRC. NSRC sought dismissal based on the fact that Cole had previously released NSRC from future liability in May of 2000. Originally, Cole filed suit in 1996 alleging occupational pneumoconiosis including asbestosis. He later signed a release with NSRC for $20,000. The release in pertinent part stated that the plaintiff “does hereby release and forever discharge NSRC from all liability for all claims or actions for pulmonary respiratory occupational diseases and/or other known injuries, physical, mental or financial, suffered or incurred, including but not limited to a) medical, hospital and funeral expenses, b) pain and suffering, c) loss of income, d) increased risk of cancer, e) fear of cancer, f) any and all forms of cancer, including mesothelioma g) and all costs, expenses and damages whatsoever, including all claims, debts, demands, actions, or causes of action of any kind, in law or equity, which the plaintiff has or may have at common law or by statute or by virtue of any action under Federal Employer’s Liability Act (FELA). The exposure portion of the release includes exposure to asbestos. Subsequent to the release, Mr. Cole died in 2010 from lung cancer. The trial court agreed with NSRC and dismissed the complaint noting that although a split in the federal circuit exists for the application of section 5 of FELA which renders certain releases invalid.
On appeal, the court analyzed the different approaches for determining the validity of releases. The bright line test set forth under the Babbitt decision created a clear standard for the validity of releases. This approach renders releases ineffective if the release does not contemplate a specific injury as opposed to generally trying to release future injuries unknown to the worker. The court rejected the stringent approach found in Babbitt with the arrival of the Wicker decision. In Wicker, the court found “parties may want to settle controversies about potential liability and damages related to known risks even if there is no present manifestation of injury.” From Wicker, the court developed what is called the “Risk of Harm” test. This test permits release under FELA for risks known at the time of the settlement. Paramount to the analysis for the risk of harm test is the releasor’s intent at the time of execution. The intent aspect is fact specific according to the court. The court continued its discussion and noted that the risk of harm test is better because it permits release for not only specific injuries but for future injuries whereas the other two approaches were, too strict, thereby leaving parties uncertain as to the validity of the release.
Applying the risk of harm test to the instant case illustrated that the trial court had reviewed the facts specific to the settlement. The language of that release strongly indicated that Mr. Cole intended to release the claims now being brought by the plaintiff. For example, the release included language as to all occupational diseases including cancer. Secondly, the court noted that the language in the release was similar to that of his 1996 complaint including the plaintiff’s “fear of contracting…..lung cancer.” This illustrated Plaintiff’s awareness of other risks according to the court. The plaintiff countered and argued the language as non-enforceable boilerplate. The court disagreed stating that boilerplate language may be an avenue for attack but not applicable for the instant release. The plaintiff also argued that the U.S. Supreme Court decision in the Norfolk & Western Railway case rendered the release ineffective. That decision’s dicta suggested a plaintiff may bring an additional suit for cancer after an asbestosis claim is released. Essentially, the plaintiff was taking the position that a challenge under FELA exists if the claim has not accrued by the time the release is signed. Although the court acknowledged the dicta, it noted that nothing precludes parties from releasing additional diseases. In sum, the Norfolk & Western Railway case stood for a different proposition. Accordingly, the court affirmed judgment.