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Cole v. Norfolk Southern Railway Co.

Supreme Court of Virginia

August 31, 2017

ALAN BARRY COLE, AS EXECUTOR OF THE ESTATE OF AARON JETHRO COLE
v.
NORFOLK SOUTHERN RAILWAY COMPANY

         FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Charles N. Dorsey, Judge

          PRESENT: Lemons, C.J., Mims, McClanahan, Powell, Kelsey, McCullough, JJ., and Lacy, S.J.

          OPINION

          WILLIAM C. MIMS, JUSTICE.

         In this appeal, we consider whether a release of liability is void under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq.

         I. Background and Procedural History

         For more than 35 years, Aaron J. Cole worked as a machinist for Norfolk Southern Railway Company ("NSRC"). During this time, he was regularly exposed to toxic substances and dust, including asbestos. In 1996, he filed a complaint in the circuit court alleging that he contracted "occupational pneumoconiosis, including but not limited to asbestosis" as a result of NSRC's negligence. His complaint also alleged that he suffered

from extreme nervousness, mental anxiety and fear of contracting mesothelioma, lung cancer and/or other cancers and/or other conditions caused by exposure to harmful and toxic dust and/or conditions including, but not limited to, cor pulmonale. In addition, [Cole], because of his occupational pneumoconiosis, now has an increased risk of contracting mesothelioma, lung cancer, and/or other cancers and/or other conditions.

         On May 15, 2000, the parties entered into a settlement agreement whereby Cole, who was 78 years old and represented by counsel, signed a release of liability in exchange for $20, 000. In pertinent part, the release states that Cole

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 by [Cole], 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 [Cole] has or may have at common law or by statute or by virtue of any action under [FELA] . . ., in whole or in part, arising out of:
Exposure to toxic substances, including asbestos, silica, sand, coal dust, work place dust and all other toxic dusts, fibers, fumes, vapors, or mists used by NSRC during [Cole's] employment by NSRC.

         On February 16, 2009, Cole was diagnosed with lung cancer; he died on November 14, 2010. Alan B. Cole, as the executor of Cole's estate, filed a complaint in the circuit court alleging under FELA that Cole's death was the direct and proximate result of NSRC's negligence. In a plea in bar, NSRC argued that the complaint should be dismissed because the claim was released as part of the settlement of Cole's 1996 asbestosis action. Cole responded that the release was void under § 5 of FELA, which states that

[a]ny contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act . . . shall to that extent be void.

45 U.S.C. § 55.

         Upon consideration of an evidentiary stipulation submitted by the parties, the circuit court granted NSRC's plea in bar. It acknowledged that a federal circuit split has resulted in two tests for evaluating the validity of releases under § 5 of FELA, but concluded that the release was valid under either test. We granted Cole this appeal.

         II. Analysis

         "The jurisdiction of the courts of the United States under [FELA] shall be concurrent with that of the courts of the several States." 45 U.SC § 56 However, "[s]tate courts are required to apply federal substantive law in adjudicating FELA claims" Monessen Southwestern Ry Co v Morgan, 486 U.S. 330, 335 (1988); Dice v Akron, Canton & Youngston RR Co, 342 U.S. 359, 361 (1952) ("[U]niform application throughout the country [is] essential to effectuate [FELA's] purposes") Thus, the "validity of releases under [FELA] raises a federal question to be determined by federal law rather than state law" Id. While we are bound by the decisions of the United States Supreme Court construing FELA, Chesapeake & Ohio Ry Co v Martin, 283 U.S. 209, 220-21 (1931), there is no similar obligation with respect to decisions of the lower federal courts Toghill v Commonwealth, 289 Va 220, 227, 768 S.E.2d 674, 677 (2015) (citing Lockhart v Fretwell, 506 U.S. 364, 376 (1993) (Thomas, J, concurring) ("[N]either federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation.")).

         A. Validity of Releases Under § 5 of FELA

         FELA renders common carrier railroads liable in damages to any person suffering injury while employed by the carrier if the injury resulted in whole or in part from the carrier's negligence. 45 U.S.C. § 51. When FELA was enacted in 1908, "[t]he injury rate among railroad employees . . . was horrific - the average life expectancy of a switchman was seven years, and a brakeman's chance of dying from natural causes was less than one in five." Thomas E. Baker, Why Congress Should Repeal the Federal Employers' Liability Act of 1908, 29 Harv. J. on Legis. 79, 81-82 (1992). FELA therefore was designed to "shift[] part of the 'human overhead' of doing business from employees to their employers." Conrail v. Gottshall, 512 U.S. 532, 542 (1994) (quoting Tiller v. Atlantic Coast Line R.R. Co., 318 U.S. 54, 58 (1943)). To that end, "Congress did away with several common-law tort defenses that had effectively barred recovery by injured workers." Id. As cataloged in Gottshall, FELA "abolished the fellow servant rule, rejected the doctrine of contributory negligence in favor of . . . comparative negligence, " and, in a 1939 amendment, "abolished the assumption of risk defense." Id. at 542-43.

         At issue in the present case, Congress also "prohibited employers from exempting themselves from FELA through contract." Id. at 543. As ...


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