Asbestosis

RAILROADS

Anderson v. A.C. & S., Inc., 797 N.E.2d 537 (Ohio Ct. App. 2003).

An Ohio appellate court held that where a railroad employee signed a release of prior claims against the railroad arising from asbestosis, the release did not exempt the railroad from liability in later survival and wrongful death claims brought by the employee's spouse following his death from mesothelioma.

Here, a railroad employee was exposed to asbestos during his employment. The employee developed asbestosis, and he and his wife sued the railroads for which he worked under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51 et seq. Plaintiffs signed a covenant not to sue and to cease suing in exchange for settlement funds. Thirteen years later, the railroad employee died of mesothelioma.

His wife brought suit in state court against the railroads under FELA. Plaintiff asserted both a survivorship claim for her husband's personal injuries and a wrongful death claim. The trial court found that die survivorship claim was extinguished by the release and granted defendant summary judgment on that claim. The court also ruled that die wrongful death claim was not barred by die release and denied defendant's motion for summary judgment on diat claim. Both parties appealed.

Affirming in part, the appellate court noted that § 55 of FELA provides that any contract or device intended to enable a railroad to exempt itself from liability under the act is void. The issue in this case, then, is whether § 55 prohibits defendants from absolving themselves of liability for the FELA claims by virtue of the release.

The validity of a release in a FELA action is governed by federal rather than state law, the court said. A release of FEIA claims may be valid in that it may constitute a setdement or compromise, rather dian an attempt by die railroad to escape liability. The court's task is to determine whether the release in this case represents a permissible compromise and settlement, or whether it is a "device" intended to exempt die railroad from liability, and thus prohibited by § 55.

Applying Sixth Circuit case law, the court said the release must reflect a bargained-for settlement of a known claim for a specific injury to be valid. Thus, parties may release only claims that have already arisen at the time the release is signed.

Asbestosis and mesothelioma are separate and distinct diseases, giving rise to separate and distinct causes of action under FELA, die court held. Here, the employee was not diagnosed with mesothelioma until 12 years after he had signed the release. Thus, the claim for mesothelioma had not yet accrued. The release is therefore not valid to exempt defendants from liability, the court found.

Accordingly, die court reversed the grant of summary judgment and remanded die case for further proceedings.

Plaintiffs Counsel

*Michael V. Kelley,

*John A. Sivinski, and

* Anthony Gallucci, all of Cleveland, Ohio

Copyright Association of Trial Lawyers of America Mar 2004
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