West Virginia Record

Monday, August 19, 2019

Justices revive asbestos suit against Norfolk Southern

By Steve Korris | Mar 20, 2009



CHARLESTON – Railroad workers who sign "total and absolute" releases of claims against their employers when accepting early retirement don't release injury claims, the West Virginia Supreme Court of Appeals has decided.

On March 12, all five Justices revived an asbestos exposure suit that Freda Ratliff filed for the estate of her husband, Sparrell Ratliff, against Norfolk Southern Railway.

The Justices reversed statewide asbestos judge Arthur Recht of Wheeling, who ruled in 2007 that Ratliff released all claims when he accepted early retirement.

Justice Robin Davis wrote that the Federal Employer's Liability Act of 1908 voids any contract that exempts a common carrier from liability for injury.

"In enacting FELA, it was Congress' intention that it be a broad, remedial statute, and, as such, should be given a liberal construction by courts," Davis wrote.

She quoted an Ohio decision that, "Congress intended to remove the ability of employees to sell off their FELA rights in exchange for short term gains as well as the ability of employers to pressure or defraud their employees into signing away those same rights."

Ratliff started working for the former Norfolk and Western Railway in 1947, at age 23. He worked as an engineer on steam locomotives in many West Virginia counties.

In 1986, he received an early retirement letter that promised health and welfare coverage until age 65, a $35,000 separation allowance, and a $10,000 death benefit.

Norfolk Southern advised him that it would require total and absolute release of any claims arising from the employment relationship.

He applied to retire. and Norfolk Southern approved. He signed a release that identified the $35,000 as consideration for the release.

He died in 2005. Freda Ratliff sued Norfolk Southern, claiming negligence and violations of the Locomotive Inspection Act and the Federal Safety Appliance Act.

The railroad moved for summary judgment, claiming Ratliff released all claims. Freda Ratliff moved for summary judgment too, claiming the release was void.

Recht held a hearing and decided to conduct a jury trial solely on the subject of the intent of the parties in entering into the release.

That pleased neither side. Both sides renewed their summary judgment motions.

Recht granted the railroad's motion, declaring the release "very specific."

He found "no evidence that the release was not intended to comprehend the alleged occupational injury."

He wrote that "the plaintiff filed an affidavit saying that she and Mr. Ratliff never discussed the meaning and effect of the release."

He ruled that $35,000 was sufficient consideration.

On appeal, the Justices decided that Ratliff could release FELA claims only in the context of a bargained settlement.

"Unlike an employee who is negotiating a FELA claim, an employee who is participating in a voluntary separation program is not engaged in a controversy as to liability," Davis wrote.

She wrote that "a heightened standard is required when scrutinizing a release that is executed outside the context of a controversy."

Justices Menis Ketchum, Thomas McHugh and Margaret Workman concurred. So did Chief Justice Brent Benjamin, though he reserved the right to file a separate opinion.

Richard Shapiro of Virginia Beach, Va., and Michael Giertz of Wheeling represented Ratliff. Luke Lafferre of Huntington represented Norfolk Southern.

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