Bynum v. Norfolk S. Ry. Co.

• Decision Date: 25 September 2014
• Docket Number: Docket No.: CL13-4394
• Court: Circuit Court of Virginia
• Parties: GILBERT BYNUM, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.

GILBERT BYNUM, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.

Docket No.: CL13-4394

CIRCUIT COURT FOR THE CITY OF NORFOLK

September 25, 2014

OPINION AND ORDER SUSTAINING PLEA IN BAR

Gilbert Bynum, a brakeman employed by Defendant Norfolk Southern Railway Co., resists application of the exclusivity provision in the Longshore and Harbor Workers Compensation Act, 33 U.S.C. § 901 et seq. ("LHWCA"), and asks this Court to overrule Defendant's Plea in Bar to his action for damages under the Federal Employers Liability Act, 45 U.S.C. § 51 et seq. ("FELA"). Some of his arguments in support of preserving a railroad worker's right to bring an FELA action are compelling and would deserve favorable reception if this were a case of first impression; but this court must respect and follow the course of decisions from federal courts that have applied and interpreted the LHWCA. Application of settled case law mandates that Defendant's Plea in Bar be sustained.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Bynum suffered an injury on November 22, 2010 at the Lamberts Point Coal Terminal, where he worked as a brakeman for Norfolk Southern. He applied for and received federal workers' compensation benefits under the LHWCA. Thereafter, on May 29, 2013, he filed the instant action under FELA, which provides railroad employees with a right to recover for injuries caused by the negligence of the railroad.

Norfolk Southern removed the litigation to federal court on July 3, 2013, asserting the LHWCA covered his injury and barred his recovery under FELA. It argued that only a federal court could resolve that issue. The federal court granted Bynum's motion to remand the matter to state court. Norfolk Southern appealed that remand and filed a mandamus petition asking the federal appellate court to vacate the district court's order and dismiss the case, or alternately, to order the district court to address the merits of its defense to the FELA claim. This court, which received the case back from federal court on August 14, 2013, granted a stay pending the outcome of the litigation in the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit concluded that it lacked jurisdiction to review the district court's order on appeal. It dismissed the appeal and denied mandamus relief. The stay in this court lifted, and the parties proceeded to brief and argue Defendant's Special Plea in Bar, filed on August 22, 2013.

The Court conducted an evidentiary hearing on September 11, 2014 and heard a detailed description of the process by which loaded coal cars arriving at Lambert's Point Terminal are emptied and the coal loaded onto ocean-going vessels.¹ See Transcript of Oral Argument, Bynum v. Norfolk Southern (2014) (CL13-4394) ("Tr."). Before being unloaded, railroad cars filled with coal are staged in an elevated area of tracks known as the Barney Yard. Tr. at 36-37. Bynum's job as a brakeman and control operator required that he receive via radio his instructions as to which car to release and then release the brake on the designated car asinstructed. Tr. at 6, 32, 42-43. The thirty-two tracks in the Barney Yard merge into two tracks at its base. Tr. at 12, 38, 39. Once released, a car rolls down the sloped track equipped with retarders which squeeze the wheels of the car to slow it down, and through one of the two thawing sheds, where a car containing frozen coal may be stopped and heated as long as necessary to facilitate ease of dumping later. Tr. at 40-41, 49.

Beyond the thawing sheds, the car rolls again on tracks equipped with retarders, as it rolls toward scales that weigh the cargo. Tr. at 22-23. After being weighed, the car rolls into an area called the Barney Pit and stops via retarders in a process controlled by an employee known as the Car Retarder Operator. Tr. at 23-25, 46-48. He and an employee known as the Pusher Operator stage the car, i.e., get it in place to attach to a narrow locomotive device housed between the railroad tracks known as a "Barney Mule." Tr. at 45, 48 When the car is appropriately staged in the Barney Pit, a green light is illuminated. Tr. at 56-57. The employee who operates the dumper, appropriately titled the Dumper Operator, then activates the Barney Mule to engage with the car and push it up an incline into a rotary dumper. Tr. at 27, 28-29, 51-53. The dumper rotates the car upside down, spilling the coal into hopper bins beneath. Tr. at 58. The bins feed the dumped coal onto a series of wide conveyor belts directly to one of two massive ship loaders which actually deliver coal into the holds of the vessels at the pier. Tr. at 27, 30, 58-60.

The process described above is run by two types of railroad laborers: Train and Engine Service, or T&E, employees; and mechanical employees. Tr. at 53. Employees who work in the yard, including Plaintiff, are T&E employees; mechanical employees operate the pusher and the dumper and the loader. Tr. at 53-54. The two groups belong to separate unions with different collective bargaining agreements and attend separate safety meetings. Tr. at 54-55. Jobresponsibilities undertaken by one type of employee may not be performed by the other. Tr. at 55-56.

LEGAL ANALYSIS

I. Expansion of the LHWCA to include non-longshoremen, including railroad workers

Since the 1972 amendments to the LHWCA, coverage under the statute is determined by two basic tests: a situs test, focusing on the place where the injury occurred, and a status test, focusing on the character of the injured employee's occupation. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 264-65 (1977). The new situs definition expanded coverage to injuries that occurred shoreward of what had been known as the "Jensen line"² to include areas adjacent to navigable waters such as the terminal involved in the case at bar.

The requisite occupational status is defined in the Act at 33 U.S.C. § 902:

The term 'employee' means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.

33 U.S.C. § 902(3) (emphasis added).

In his review of the evolution of the LHWCA and the 1972 amendments, Bynum argues that the statute was never intended to apply to railroad workers. Justice Stevens made a similar argument in a forceful dissent that carefully reviewed the statutory language and legislativehistory of the 1972 LHWCA amendments. In Director, Office of Workers Compensation Programs v. Perini North River Associates, 459 U.S. 297 (1983), the claimant suffered injury while constructing the foundation of a sewage treatment plant that extended 700 feet into the Hudson River. The dissent strongly resisted expanding the Act to a worker who was obviously neither a longshoreman or a harbor worker:

If we ignore history, and merely concentrate on the text of this statute, the conclusion is inescapable that it merely provides coverage for people who do the work of longshoremen and harbor workers — amphibious persons who are directly involved in moving freight onto and off ships, or in building, repairing, or destroying ships. A "checker" is such a worker. So are "terminal laborers," Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977), "cotton headers," P. C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979), and "warehousemen," ibid. A construction worker on a sewage treatment plant plainly lacks this direct link to maritime commerce, regardless of where he may have been working at the time of his injury.

If we examine the legislative history of the 1972 Amendment — without regard to the text of the statute or judicial decisions that are unmentioned in that history — we must reach the same conclusion. I cannot find a single word in the Committee hearings, the Committee Reports, or the legislative debates that even suggests that any Congressman or Senator believed that the statute provided coverage for anyone other than longshoremen, harbor workers, and persons in the entirely separate categories that had been included by special statutory enactment.

Id. at 328-30 (emphasis added). Justice Stevens concluded:

In this case the statutory language plainly encompasses longshoremen and harbor workers; there is no affirmative evidence of a legislative intent to provide coverage for any other type of occupation. Surely there is no evidence of an intent to classify the work of a janitor or a builder of sewage treatment plants as "maritime employment." Because the claimant in this case was neither a longshoreman nor a harbor worker, I would affirm the judgment of the United States Court of Appeals for the Second Circuit.

Id. at 342-43.

The Supreme Court of Virginia had, five years earlier, engaged in its own analysis of the statute and the legislative history and similarly rejected an expanded interpretation of the maritime employment test. White v. Norfolk and Western R. Co., 217 Va. 823 (1977) (railroad electrician had not been converted into a maritime worker merely because injury happened while he worked in a ship loader).

Justice Stevens' view remains a minority view, and Congress has taken no action to correct the ongoing expansion of LHWCA coverage to employees whose duties fall outside the traditional work of longshoremen and harbor workers. Bynum's attack on the application of the LHWCA to railroad workers is supported by White and the dissent in Perini; but neither of these decisions state the law of the land. Those litigants and judges who have advanced the view that Congress never intended to extend LHWCA benefits to occupations other than longshoremen and harbor workers have failed to persuade the U.S. Supreme Court or Congress.

II. Characterizing Bynum's brakeman activities as "maritime employment"

The...