The West Virginia Supreme Court reversed a summary judgment ruling in favor of Norfolk Southern Railway Co., and reinstated a Federal Employer’s Liability Act (FELA) mesothelioma wrongful death claim of his widow, Freda Ratliff, in a 5-0 decision handed down on March 12, 2009 (Ratliff v. Norfolk Southern Railway Co, Civil Action No. 05-C-423). The Court ruled that a “separation agreement” release of all claims, known and unknown, that train engineer Ratliff signed 19 years before developing mesothelioma, was void under a provision of the Federal Employer’s Liability Act, section 55, which prohibits railroad efforts to exempt itself from liability. Ratliff attorney, Richard N. Shapiro offered that “on behalf of the Ratliff estate and family, we are grateful that the Supreme Court agreed with our position, that a separation agreement release could not bar a mesothelioma FELA claim, when the disease was first diagnosed 19 years after Mr. Ratliff’s retirement. This terrible asbestos cancer cut short Mr. Ratliff’s golden years, and in a horrible way at that.”
In April 2005, nineteen years after his voluntary separation from Norfolk Southern as an engineer, Mr. Ratliff was diagnosed with mesothelioma. He died in July 2005. The FELA wrongful death action was filed by Mrs. Ratliff, in her capacity as executrix of Mr. Ratliff's estate, in or around October 2005. Several months before trial, Norfolk Southern filed a motion for summary judgment asserting that the action was barred by virtue of a release that had been executed by Mr. Ratliff in connection with a reduction in force/voluntary separation program NS (then N & W) offered in 1986 to qualified locomotive engineers. Ratliff’s estate filed a cross motion for summary judgment, asserting the 1987 release was void, as violative of 45 USC sec. 55, a provision of the FELA which prohibits writings the exempt railroads from liability.
Ratliff, a Virginia resident who worked in VA and WV, signed the separation papers, which included a release of all claims, known and unknown, in 1987, when he had no pending claim against N &W, and while unrepresented by counsel.
Railroad Separation Agreement Releases:
The key analysis by the West Virginia Supreme Court, of the separation agreement release, follows:
As one court has observed, an employee who has signed a release in connection with a voluntary separation program “might not have been alert to the reality that he was in an adversarial situation with the attendant need for heightened care.” [citation omitted]. Accordingly, a heightened standard is required when scrutinizing a release that is executed outside the context of a controversy.
We believe that imposing a heightened standard upon a release signed in the context of a voluntary separation program, as was done in Babbitt, is in accord with the remedial purposes of the FELA.
Turning to the instant case, in granting summary judgment to Norfolk Southern, the circuit court mistakenly placed this case within the Wicker category. However, an employee, such as Mr. Ratliff, who has executed a general release in the context of participating in a voluntary separation program, plainly falls within the Babbitt category of cases. Therefore, in order for the release executed by Mr. Ratliff to be a valid bar to his FELA cause of action, there must be evidence that the release was executed as part of a settlement for the specific injury now in controversy, namely mesothelioma. In the absence of such evidence, the release is void pursuant to § 5 of the FELA insofar as it pertains to Mr. Ratliff's mesothelioma claims.
Railroad Releases Arising From Injury/Disease Settlements:
In analyzing the appropriate tests of a release’s validity, when a release arises from settlement of an injury/disease claim, the Ratliff court analyzed the prior Wicker decision and reasoned:
a release does not violate § 5 provided it is executed for valid consideration as part of a settlement, and the scope of the release is limited to those risks which are known to the parties at the time the release is signed. Claims relating to unknown risks do not constitute “controversies,” and may not be waived under § 5 of FELA. See Callen [citation omitted]. For this reason, a release that 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 of specifically known risks does not violate § 5 of FELA.
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A Wicker-type employee [Wicker is a prior "release law" decision] is involved in negotiating a FELA claim and, therefore, meets the requirement of Callen that a controversy exist. Under this circumstance, a release does not violate § 5 of the FELA so long as the risk released was one known to the parties and was a risk the employee intended to release.
The Court reversed and remanded the Ratliff case back to the Trial Court.
This West Virginia decision is an excellent clarification of the law pertaining to the scope of allowable FELA railroad releases in both injury/disease claim settlements, as well as in disputes arising from a separation agreement release.
Freda Ratliff was represented at the trial court, and on brief, by Richard Shapiro of Shapiro & Appleton& Duffan, of Va. Beach, VA, and by co-counsel Michael Giertz, of Hartley & O’Brien, PLLC, Wheeling, WV.
Contact: Richard N. Shapiro, 757-335-4222 (mobile phone), firm website: www.hsinjurylaw.com.