Virginia Lawyers Weekly

The estate of a railroad worker who settled his 1996 asbestosis suit against defendant railroad for $6,500 is not barred under federal railroad law or the terms of his earlier release from now suing the railroad under the Federal Employers Liability Act from suing the railroad after the railroad worker was diagnosed with mesothelioma in 2003.

This is a suit for wrongful death, brought under federal railroad law by the executor of James B. Wade’s estate. The threshold question is whether the executor’s claim is barred by a release that Wade signed when he settled an earlier case.

To answer this question, the court must apply federal law to undisputed facts. Doing so, I find that Supreme Court precedent authorizes this suit, notwithstanding the settlement agreement Wade entered into and the release he signed, and that the executor seeks relief in this case for a claim that had not yet arisen when Wade signed the release settling his earlier suit.

Further, under federal railroad law, a claim that has not arisen cannot be released. The release, by its own terms, did not cover the claims asserted in this suit. The court must overrule defendant railroad’s plea in bar.

Wade worked for defendant in its headquarters city, Roanoke, since he was a youth. During his employment, the railroad, violating specific legal duties, exposed him to toxic dust and substances, including asbestos particles and fibers. As a result, he developed asbestosis, diagnosed in 1993, and mesothelioma, diagnosed in January 2003. Asbestosis is the only known cause of malignant mesothelioma among those who, like Wade, have never received radiotherapy at the site of their tumors. Wade died of mesothelioma at age 89.

Wade sued defendant NW, defendant’s corporate predecessor, in 1996, seeking damages under FELA and related statutes. Wade and NW settled the asbestosis case for $6,500. He signed a four-page release and the suit was dismissed with prejudice.

The validity of releases under FELA raises a federal question to be determined by federal rather than state law. NW essentially argues that a rule followed by the 3rd and 11th Circuits, which was first articulated by the 3rd Circuit in Wicker v. CONRAIL, expresses the formula that this court should employ to solve the question at issue in this case. The executor argues for adherence to a bright-line test formulated by the 6th Circuit in Babbitt v. Norfolk & Western Ry. Co.

The Supreme Court decided Norfolk & Western Ry. Co. v. Ayers in 2003, which holds that a railroad employee who has been diagnosed with asbestosis, but now with cancer, can nonetheless recover pain-and-suffering damages under the FELA for “genuine and serious fear” of cancer. In reaching that decision, the court explicitly approved of asbestosis suits like the one Wade filed and settled in this court.

It is clear that when Wade signed the release and settled his asbestosis suit against NW, he had no right to sue for mesothelioma.

No common-sense reading of the unambiguous language of this release – no reading of the release in which the prefatory general language is restricted to the particular words in the recital – supports the conclusion that the $6,500 NW paid Wade was in settlement of anything more than his claim for damages from asbestosis, the disease that (at least according to his expert), he had.

The analytical path that I have followed in this case has not required me to choose between the Wicker and Babbitt approaches. Ayers, in my view, altered the landscape. I am also of the opinion, however, that neither the Wicker nor the Babbitt approach would lead to NS’s plea in bar being sustained.

The court will overrule NS’s plea in bar, preserving its objections.

Wade, Executor v. Norfolk Southern Ry. Co. (Weckstein, J.) No. CL05-523, Roanoke City Cir.Ct.; Russell N. Brahm III, James A. McKowen, Charles R. Allen Jr., James W. Jennings Jr. for the parties. VLW 009-8-132, 22 pp.

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