Opinion
8:18CV509
2020-09-03
Carol RIBBING, as the personal representative of the Estate of Gregory Ribbing, deceased, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, Defendant.
Sara A. Larson, Omaha, NE, Shawn M. Sassaman, Bern, Cappelli Law Firm, Conshohocken, PA, for Plaintiff. Anne M. O'Brien, Daniel Hassing, Jason W. Grams, Lamson, Dugan Law Firm, Omaha, NE, for Defendant.
Sara A. Larson, Omaha, NE, Shawn M. Sassaman, Bern, Cappelli Law Firm, Conshohocken, PA, for Plaintiff.
Anne M. O'Brien, Daniel Hassing, Jason W. Grams, 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 defendant Union Pacific Railroad Company's ("U.P." to "the Railroad") motion for summary judgment, Filing No. 36. This is an action for damages under the Federal Employers’ Liability Act ("FELA"), 45 U.S.C. § 51 et seq. , brought by the surviving spouse of a former Railroad employee, Gregory Ribbing, as personal representative of his estate. Plaintiff Carol Ribbing asserts a survival claim and a wrongful death claim against the Railroad, alleging that workplace exposure to toxic substances and carcinogens caused her late husband's multiple myeloma and resulting death.
The Railroad moves for summary judgment on the plaintiff's survival and wrongful death claims, contending that both are barred by a release Gregory Ribbing executed in 1997.
I. FACTS
The parties agree to the following relevant facts. See Filing No. 37, defendant's brief at 2-4; Filing No. 39, plaintiff's response at 1-4. The plaintiff's decedent, Gregory Ribbing, was born in 1957. He began working for the Missouri Pacific Railroad Company, U.P.’s predecessor in interest, in 1997 and worked on bridge gangs throughout his career. He worked with creosote over the course of his career would sometimes have creosote burns on his skin. He worked with and around diesel combustion products and pesticides and his wife testified his clothes would carry a diesel and creosote odor.
On November 27, 1995, he suffered an injury to his back in an accident near Bush, Illinois, that prevented him from ever returning to work. He signed a general release in May 1997 for a claim connected to the 1995 accident in exchange for $275,000.00. As part of his release, Gregory Ribbing agreed that he was permanently disabled and agreed that he would "not return, nor attempt to return, to work for ... Union Pacific Railroad Company or any affiliated or subsidiary companies in any capacity." Filing No. 38-1, Ex. 3, Release at 1. His wife testified that Gregory understood at the time that he signed his release that he was not returning to work at the Railroad. In the release, Gregory Ribbing acknowledged any injuries "may be permanent and progressive and recovery therefrom uncertain and indefinite, so that consequences not now anticipated may result." Id. at 2.
It is undisputed that Gregory had an opportunity to read and review the release before he signed it. Carol Ribbing witnessed her husband's execution of the release, but did not discuss the language of the release with him. The release was also signed by Gregory Ribbing's attorney, who certified he had "explained the effect and scope of the aforesaid release to [Gregory] before [Gregory] signed the said release which extends to all the claims, demands, and choses in action, whether known or unknown, anticipated or not anticipated, against the parties it therein releases." Id. at 4. The plaintiff acknowledges that the decedent had the opportunity to ask his lawyer questions about the release and was not under any mental disability at the time that he signed his release. Gregory Ribbing was diagnosed with multiple myeloma in September 2014. Filing No. 40-1, Ex. 1, Medical Record. Gregory Ribbing died on December 27, 2014, and his widow filed this action against U.P. on October 26, 2018.
The record shows the General Release executed by the decedent releases the Railroad from "all suits, actions, causes of action, claims and demands of every character whatever" that Gregory Ribbing then had, or thereafter would have, that arose from his railroad employment
and arising out of, or to arise, or grow out of, any and all injuries to person and
damage to property in consequence of, or in any way connected with, an accident which occurred on or about the 27th day of November, 1995, at or near Bush, Illinois, resulting in personal injuries which, as I claim, have totally and permanently disabled me from ever performing the duties of my employment.
Filing No. 38-3, Ex. 3, General Release at 1. "Said accident" is thereafter mentioned nine times in the General Release. Id. at 1-4. The General Release provides that in exchange for consideration in the amount of $275,000.00,
it is the express intention and desire of [Gregory Ribbing] to release, discharge and acquit St. Louis Southwestern Railway Company, Southern Pacific Transportation Company, and Union Pacific Railroad Company, their agents, servants and employees, and all other persons, firms and corporations liable, or who might be claimed liable, from any and all claims, demands and choses in action arising from the injuries, disabilities and damages sustained in the said accident which are uncertain, indefinite and the consequences of which are not now anticipated.
Filing No. 38-3, Ex. 3, General Release at 2 (emphasis added). The closing paragraph of the General Release again recites that Gregory Ribbing agrees to release all claims "on account of said accident," but then adds "also any and all other personal injury claims or grievances of any nature whatsoever, including, but not limited to, labor disputes, hearing loss, repetitive trauma, chemical exposure, and exposure to diesel fumes growing out of [his] employment." Id. 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."). The plaintiff bears the burden of establishing that a release is void under § 5 of the FELA. Callen v. Penn. Ry. Co. , 332 U.S. 625, 630, 68 S.Ct. 296, 92 L.Ed. 242, (1948).
However, if a controversy exists "as to whether there is liability, and if so for how much," a release 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 ). Id. ; see also Sea-Land Serv., Inc. v. Sellan , 231 F.3d 848, 851 (11th Cir. 2000) (explaining that 45 U.S.C. § 55 prevents employers from restricting FELA rights as a condition of employment). 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).
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 may be valid if it exempts the railroad from liability for future, undiagnosed injuries 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 standard announced by the Sixth Circuit in Babbitt , a release must "reflect a bargained-for settlement of a known claim for a specific injury." Babbitt , 104 F.3d at 93. Where a release is not executed as part of a specific settlement of an FELA claim, 45 U.S.C. § 55 precludes the employer from claiming the release as a bar to liability and "an attempt to extinguish potential future claims the employee might have arising from injuries known or unknown by him" is not valid. Id. In contrast, the Third Circuit applies a fact-intensive approach focusing on risks rather than injuries and holds that a release limited to risks that are known to the parties at the time of the release and are risks that the employee intends to release can be valid. Wicker , 142 F.3d at 701. Under Wicker , "[c]laims relating to unknown risks do not constitute ‘controversies,’ and may not be waived under [ § 55 ] of FELA." Id. 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.
Even under the Wicker approach, 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.
Also, there may be 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. ; see also Wicker, 142 F.3d at 700 (noting that the Babbitt holding "was based in part on the fact that the releases formed part of a voluntary separation program, and were not the product of negotiations settling a claim."); Wells v. Union Pac. R.R. Co. , No. 9:07cv27, 2008 WL 4500735, at *4 (E.D. Tex. 2008) (distinguishing the release at issue therein—executed in connection with a prior claim of injury—with that at issue in Babbitt , which involved a release executed as part of an early retirement program).
Further, 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., 231 F.3d at 851 (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). Such an agreement is intended both to prevent the plaintiff from suffering re-injury and for the employer to avoid paying again what had already been paid. Id. at 852 (noting that under the agreement, the plaintiff was paid both for his current expenses and for his entire work-life expectancy).
III. DISCUSSION
The Court finds the release at issue does not preclude the plaintiff's FELA claims for injuries related to toxic-exposures. Under the rationale expressed in Callen, Babbitt , and Wicker , a release must be about a "controversy" involving 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 known risks—as opposed to known injuries—a valid release must address a specific instance of potential liability. In other words, a release that shows an intent to preclude a claim that is not related to the claim compromised is void under 45 U.S.C. § 55 because there is no controversy or dispute about a potential claim for the parties to settle.
The record shows the subject of the release is the injury connected to the 1995 accident that rendered the decedent disabled from returning to work. There is no indication that the plaintiff's decedent was aware at that time of any a toxin-induced injury or cancer. Clearly, under the Babbitt approach, extending the release to cover injuries other than those incurred in the accident would be an impermissible "attempt to extinguish potential future claims." Babbitt , 104 F.3d at 93. The language of the release clearly reflects that it was a bargained-for settlement flowing out of the accident specifically referred to in the release. The release Gregory Ribbing signed in 1995 does not serve to bar his widow him from pursuing a claim on his behalf for a later-discovered injury that was not related to the accident.
Further, even under Wicker , the release would not preclude a claim for injuries that result from toxic exposure. See Wicker , 142 F.3d at 701. The release does not "chronicle[ ] the scope and duration" of the plaintiff's toxic exposures so as to show an intent to release U.P. from liability for a future risk of injury from those hazards. There is no evidence in the record that indicates the plaintiff made a reasoned decision to release a claim for cancer as the result of alleged toxic exposures. U.P. relies only on a boilerplate sentence in the release that includes the terms "chemical exposure" and "exposure to diesel fumes" among a laundry list of other injuries and potential disputes. Toxic exposure is listed simply as a generic hazard, and the release makes no mention of the specific risk the employee faced—developing cancer. The boilerplate language in the closing paragraph of the release is at odds with other language in the document that specifically limits the coverage of the release to injuries, present and future, that are connected to the accident near Bush, Illinois in 1995.
The release at issue is similar to one of the releases found void as a matter of law in Wicker . See id. (finding that detailed, blanket releases that attempt to cover all potential liabilities and 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" do not demonstrate that employees know of the actual risks to which they are exposed and from which an employer is being released). As noted in Wicker , language in a release itself is not conclusive evidence of the parties’ intent. Id. Other than a single boilerplate sentence in the closing paragraph, the release at issue here contains nothing that indicates the plaintiff intended to release U.P. from liability from anything other than risks (including risks of uncertain new injuries or exacerbation of injuries) connected to the accident that occurred in 1995. The release is expressly limited to all claims plaintiff had or could have against the railroad as a result of an incident that occurred in a particular location on a specified date. See, e.g., Wells, No. 9:07CV27, 2008 WL 4500735, at *4 (E.D. Tex. Oct. 3, 2008) (finding that by its express terms, the release would only be applicable to the plaintiff's current FELA claim if he sought relief for an injury that arose out of the accident that was the subject of the compromise and settlement). The accident is not connected in any way to the alleged exposures to carcinogens.
U.P.’s argument that because Ribbing acknowledges in the release that he will no longer be employed by the railroad, "he was settling all claims at that time for negligent acts that occurred during his past employment" is not supported by the evidence. Although Ribbing waives rights to return to active service with the Railroad in the release, he does so in the context of being permanently disabled, not as part of any voluntary separation, buyout, or reduction in force. The amount of the settlement reflects that Gregory Ribbing was compensated both for expenses he had then incurred and for the permanency of his disabling condition over the course of his remaining work life. There is no indication, other than a supposed general knowledge that some substances can be harmful to health, that Ribbing knew of or intended to release U.P. from liability for harm from toxic exposures. Although the plaintiff's widow testified that the decedent was generally aware of some exposures to diesel fuel, pesticides and creosote over the course of his employment, U.P. did not present evidence that Ribbing knew of the risk of harm, specifically cancer, from such exposures.
The release does not demonstrate the parties understood—let alone addressed or discussed—that Ribbing was releasing any claims other than those related to the accident that occurred in 1995. The release at issue contains a dreaded "laundry list" that is disfavored under both the Babbit and Wicker approaches. U.P.’s reliance on a broad and general sentence tacked onto the end of a limited and specific agreement is exactly the sort of circumstance contemplated by the Third Circuit Court of Appeals when it stated it was "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.
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 against U.P. The release reflects the decedent's resignation from employment for consideration as the result of a disabling injury. The sentence absolving the Railroad from all liability for any other claims known or unknown seems almost an afterthought in the context of the rest of the document. In summary, Union Pacific is not entitled to summary judgment based on the release. Accordingly,
IT IS ORDERED that the Defendant's motion for summary judgment (Filing No. 36) is denied.