596 F.2d 1205 (4th Cir. 1979), 78-1376, Freeman v. Norfolk and Western Ry. Co.

• Docket Nº: 78-1376.
• Citation: 596 F.2d 1205
• Party Name: Ivian M. FREEMAN, Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, Appellant.
• Case Date: May 03, 1979
• Court: United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 1205

596 F.2d 1205 (4th Cir. 1979)

Ivian M. FREEMAN, Appellee,

v.

NORFOLK AND WESTERN RAILWAY COMPANY, Appellant.

No. 78-1376.

United States Court of Appeals, Fourth Circuit

May 3, 1979

Argued Feb. 5, 1979.

Page 1206

William T. Prince, Norfolk, Va. (Williams, Worrell, Kelly & Greer, Norfolk, Va., on brief), for appellant.

Raymond H. Strople, Portsmouth, Va. (Bernard Miller, Moody, McMurran & Miller, Ltd., Portsmouth, Va., on brief), for appellee.

Before HALL and PHILLIPS, Circuit Judges, and THOMSEN, ^[*] Senior District Judge.

K. K. HALL, Circuit Judge:

Norfolk & Western Railway Company (the Employer) appeals after unsuccessfully defending an action brought in district court by Ivian M. Freeman under the Federal Employers' Liability Act, 45 U.S.C. § 51 Et seq. (FELA). The Employer does not appeal the sufficiency of the evidence upon which the jury found liability and awarded $26,190.80 in damages; rather, it appeals the district court's refusal to direct a verdict or grant judgment n. o. v. on the ground that Freeman, by his previous acceptance of benefits under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 Et seq. (LHWCA), had made a binding election of remedies and/or was estopped from asserting rights under FELA. The district court held that this argument was conclusively laid to rest by our decision in Biggs v. Norfolk Dredging Co., 360 F.2d 360 (4th Cir. 1966). Although this troublesome issue is not so easily resolved, we affirm.

In November 1974 Freeman notified the Employer that he had sustained an injury to his left knee several months earlier and did not know whether that injury had occurred on the job. One year later Freeman filed a claim for benefits under LHWCA. The Employer promptly filed an answer admitting coverage, notwithstanding the fact that it was then involved in litigation to resolve whether its "Barney Yard workers" (Freeman's classification) were properly covered under LHWCA or FELA. ¹

Some months later the Employer wrote to Freeman's attorney to inquire whether Freeman would accept the uncontested benefits.

Page 1207

Counsel, who was also representing the Barney Yard workers in the Conti litigation, responded on October 14, 1976 that "(u)nder no circumstances do we authorize payment to Mr. Freeman" under LHWCA, and if the Employer were unwilling to settle the claim under FELA, a lawsuit would be filed.

On November 23, 1976 counsel again wrote to the Employer and reversed his earlier position. "I have discussed this very thoroughly with Mr. Freeman and he is willing to make a claim (under LHWCA) . . . (i)n view of that fact, we disclaim any lien on this file and we will no longer be representing Mr. Freeman for any potential claim under FELA on account of...