Artis v. Norfolk & Western Railway

• Decision Date: 01 October 1997
• Docket Number: N,No. 96-2677,96-2677
• Parties: (4th Cir. 2000) ZEB ARTIS, Petitioner, v. NORFOLK & WESTERN RAILWAY COMPANY; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents. NORFOLK & WESTERN RAILWAY COMPANY, Petitioner, v. ZEB ARTIS; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents. o. 96-2678.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 141

204 F.3d 141 (4th Cir. 2000)

ZEB ARTIS, Petitioner, v. NORFOLK & WESTERN RAILWAY COMPANY; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents.

NORFOLK & WESTERN RAILWAY COMPANY, Petitioner, v. ZEB ARTIS; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents.

No. 96-2677, No. 96-2678.

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

October 1, 1997, Argued.

February 22, 2000, Decided.

ARGUED: Robert Elliott Walsh, RUTTER & MONTAGNA, L.L.P., Norfolk, Virginia, for Petitioner. Joan F. Martin, WILLIAMS, KELLY & GREER, P.C., Norfolk, Virginia, for Respondents. ON BRIEF: Matthew H. Kraft, RUTTER & MONTAGNA, L.L.P., Norfolk, Virginia, for Petitioner.

Before WIDENER and MICHAEL, Circuit Judges, and Lacy H. THORNBURG, United States District Judge for the Western District of North Carolina, sitting by designation. Judge Widener wrote the majority opinion, in which Judge Thornburg joined. Judge Michael wrote a dissenting opinion.

OPINION:

WIDENER, Circuit Judge:

The claimant, Zeb Artis, Jr., worked as a brakeman at the Norfolk & Western Railway Company's Barney Yard at Lambert's Point terminal in Norfolk, Virginia. He assisted in moving loaded and empty railcars within the terminal in effectuating the transloading of coal from railcars to ocean-going vessels. The job required him to uncouple cars and to use a pinch bar to move the cars. On April 25, 1984, Artis injured his back while moving a railcar. Artis reinjured his back while throwing a rail switch on May 6, 1984 and has not returned to his previous work since that date.

Following his injuries, Artis filed an action in the Circuit Court of the City of Norfolk under the Federal Employers' Liability Act (FELA), 45 U.S.C. 51-60, against the railroad. The parties settled that claim for $ 150,000 in January 1985, and the state court entered an order that the case was "dismissed agreed" on February 5, 1985.¹

On April 23, 1991, Artis filed a claim for the same injuries under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. 901-52 (1986). A formal hearing was held before an administrative law judge in October and November of 1993. The administrative law judge held that Artis was within the jurisdiction of LHWCA and implicitly found that the FELA settlement previously entered between the parties was not a jurisdictional bar. The judge also concluded that Artis was entitled to temporary total disability benefits from May 7, 1984 through December 27, 1984 and permanent partial disability benefits from December 28, 1984 and continuing. Finally, the ALJ granted the railroad a credit against the LHWCA benefits award for the $ 150,000 settlement pursuant to 33 U.S.C. 903(e).

Artis filed a timely appeal with the Benefits Review Board on the finding of permanent partial disability and the grant of the credit. The railroad cross-appealed asserting that the LHWCA claim was barred by the prior settlement of the FELA claim. The Benefits Review Board did not render a formal decision. Rather, Public Law 104-134 affirmed the decision of the administrative law judge on September 12, 1996.²

Artis filed a petition for review on November 8, 1996 pursuant to 33 U.S.C. 912(c), and N&W filed its cross-petition for review. On account of the doctrine of election of remedies, we reverse.

The doctrine of election of remedies "refers to situations where an individual pursues remedies that are legally or factually inconsistent." Dionne v. Mayor and City Council of Baltimore , 40 F.3d 677, 681 (4th Cir. 1994) (quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 49, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974)). It has been considered in determining whether rights in one statute may be pursued cumulatively with those rights granted in another statute. See United States v. Brown , 348 U.S. 110, 99 L. Ed. 139, 75 S. Ct. 141 (1954); Feres v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950) (discussing situations when claims under different federal statutes are exclusive or cumulative); 18 Wright & Miller, Federal Procedure & Practice 4476 (1981). "The clearest remedial dimension of election doctrine is found in decisions that simply seek to prevent double recovery for a single injury." 18 Wright & Miller, Federal Practice & Procedure 4476, at 775 (1981).

Under FELA, a worker must demonstrate that he is an employee of a common carrier by railroad to fall within the statute. 45 U.S.C. 51. In contrast, a land-based worker to prove that he is within the statute, must be engaged in activity which is "integral or essential to the loading process" to recover under LHWCA. Etheridge v. Norfolk & Western Ry. Co., 9 F.3d 1087, 1090 (4th Cir. 1993).

The law is that if a claimant is a maritime worker, then his exclusive remedy is under LHWCA. Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 42, 107 L. Ed. 2d 278, 110 S. Ct. 381 (1989); Caldwell v. Ogden Sea Transport Inc., 618 F.2d 1037, 1049 (4th Cir. 1980). Conversely, if a worker is not a maritime worker, then his remedy must be provided by another statute or the common law. Accordingly, at the time of filing a lawsuit, the claimant must decide whether he is a maritime worker and thus eligible for a remedy under LHWCA or whether he must find another cause of action. In the present case, Artis correctly determined that at the time of his FELA lawsuit he could not claim that he was a maritime worker. At the time Artis's FELA case was filed and disposed of in the Circuit Court in Norfolk, Conti v. Norfolk & Western Ry. Co., 566 F.2d 890 (4th Cir. 1977), held that brakemen at the Lambert's Point yard were not maritime workers and were not covered by LHWCA. Thus, Artis, being a brakeman at the Lambert's Point yard, filed suit under FELA and recovered a settlement of $ 150,000.

Subsequent to Artis's settlement of his FELA suit, the law of this circuit changed. We held in Etheridge v. Norfolk & Western Ry. Co., 9 F.3d 1087, 1090 (4th Cir. 1993), that the Supreme Court decision in Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 107 L. Ed. 2d 278, 110 S. Ct. 381 (1989), had changed the law set out in Conti; that brakemen at Lambert's Point yard were acting in a fashion that was integral or essential to the loading or unloading of a vessel; and thus were covered by LHWCA. Artis, in 1991,³ had asserted his claim against the railroad under LHWCA. Because of his recovery under the FELA claim, the defense argued, Artis might not now advance an LHWCA claim. To permit an LHWCA claim subsequent to an FELA recovery, the argument went, would ignore the LHWCA provision providing that it is the exclusive remedy against employers for injuries suffered by maritime workers. 33 U.S.C. 905(a) (1986); Schwalb, 493 U.S. at 42. The two claims were legally inconsistent, the defense concluded, because LHWCA is not a cumulative remedy.

This court has never held that a worker may pursue an LHWCA remedy after obtaining a remedy under FELA. It has approved an FELA remedy after a worker received LHWCA benefits for reasons that are distinguishable. In Freeman v. Norfolk & Western Ry. Co., 596 F.2d 1205 (4th Cir. 1979), we held in a case in which FELA provided a cause of action, that an employee could pursue an FELA claim notwithstanding previous receipt of LHWCA benefits. See also Caldwell, 618 F.2d 1037, 1048-50 (4th Cir. 1980) (following Freeman). The decision in Freeman was based on the rationale that workers' compensation statutes, including LHWCA, are designed to provide "quick certain relief for work related injuries." Freeman, 596 F.2d at 1208. (italics in original.) Thus, we considered that the LHWCA payments would be creditable against an FELA award and that receiving compensation under such a statute would not be a meaningful election of remedy. Freeman, 596 F.2d at 1208. This case presents a different situation because Artis's FELA action preceded his action under the LHWCA. We do not view Artis's LHWCA claim as receipt of quick, certain relief for work related injuries when he has previously recovered, some five or six years previously, under FELA, for the same injury. Because Artis has fully recovered damages for his injury under FELA, the compensatory purpose of LHWCA is not harmed by denying Artis's LHWCA suit. ⁴

The next point we consider is whether or not N&W would be entitled to a credit for the FELA settlement under 33 U.S.C. 914(j). That section provides that:

If an employer has made advance payments of compensation, he shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due.

The argument is that the FELA settlement and judgment was an advance payment of compensation and that since the railroad would be entitled to be reimbursed out of any unpaid installment of compensation under the LHWCA, the suit under the LHWCA should be allowed to proceed. A principal difficulty with the argument is that the payment of $ 150,000 to Artis under the FELA was not an advance payment of compensation.⁵ It was complete satisfaction for an injury, paid following litigation, and should not be equated with the advance payments an employer would make to his employee as "quick, certain relief for work related injuries." Freeman , 596 F.2d 1205 at 1208. As previously noted, note 1, supra, Artis signed a complete release of all claims at issue here.⁶ Not only that, at the time Artis pursued his FELA remedy against the railroad, that was entirely in accord with precedent in this circuit. Conti v. Norfolk & Western Ry., 566 F.2d 890 (4th Cir. 1977). Indeed, under Conti, Artis had no cause of action under the LHWCA. The final order in Artis's FELA case against Norfolk & Western was entered February 5, 1985, and the liability of the railway was fixed by court order at that time. Later, on November 28, 1989, the Supreme Court decided Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 107 L....