Friberg v. Kansas City Southern Railway Co.

• Decision Date: 05 October 2001
• Docket Number: No. 00-40270,00-40270
• Citation: 267 F.3d 439
• Parties: (5th Cir. 2001) GUNARD FRIBERG, Etc.; EL AL., Plaintiffs, GUNARD FRIBERG, Individually & as Executor of the Estate of Martha Friberg, Deceased; CARL FRIBERG, Plaintiffs-Appellees, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 439

267 F.3d 439 (5th Cir. 2001)

GUNARD FRIBERG, Etc.; EL AL., Plaintiffs, GUNARD FRIBERG, Individually & as Executor of the Estate of Martha Friberg, Deceased; CARL FRIBERG, Plaintiffs-Appellees, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Defendant-Appellant.

No. 00-40270

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October 5, 2001

Appeals from the United States District Court for the Eastern District of Texas

Before POLITZ and EMILIO M. GARZA,^* Circuit Judges, and HEAD,^** District Judge.

POLITZ, Circuit Judge:

The Kansas City Southern Railway Company appeals an adverse jury verdict finding it negligent and negligent per se for repeatedly blocking the primary road leading to the Fribergs' business, allegedly resulting in the failure of that business. Concluding that the causes of action asserted are preempted by the Interstate Commerce Commission Termination Act of 1995, we must reverse.

BACKGROUND

In 1964 the Fribergs purchased a home and acreage near Leesburg, Texas, and began operating a landscape nursery there. The property was located along County Road 3540 just south of State Highway 11, and approximately 250 feet south of both the main line and a side track crossing CR 3540 operated by the Kansas City Southern Railway ("KCS"). Although customers could reach the nursery by two other routes that were not affected by the side track, CR 3540 was the primary access road because it was the most direct route from highway 11. Until the late 1990's the existing side track was seldom used as most trains operated by KCS exceeded the approximate 3300 foot length of the side track.¹

In 1995, utilizing right-of-way it already owned, KCS lengthened the side track to more than 9900 feet so it could accommodate the longer trains it was operating. As a result of this improvement, in 1996 KCS began using the side track with increased frequency, which meant CR 3540 was blocked by waiting trains more often than in the past and customers using the road encountered delays in getting to or from the nursery.

The Fribergs experienced a general decline in business, occasioned by the county road blockages, and they contacted various authorities and railroad personnel in an attempt to alleviate the blocking problem. All efforts were to no avail. In 1998 the nursery was permanently closed and the Fribergs filed suit against KCS, alleging both negligence and negligence per se.²

KCS moved for summary judgment contending that the Fribergs' claims were preempted by the Interstate Commerce Commission Termination Act of 1995 ("ICCTA"),³ the Federal Railway Safety Act of 1970 ("FRSA"), and the Commerce Clause of the federal Constitution.⁴ The trial court denied the motion and, after a trial, the jury found the railroad liable on both claims, but it could not reach a unanimous verdict on damages. The Fribergs and KCS then agreed to accept a less-than-unanimous verdict on the damages issue with both sides retaining all rights to appeal, and they agreed to specific terms respecting the damages due depending upon the outcome of any appeal .⁵

ANALYSIS

I Consent Judgment

We first address the Fribergs' motion asserting that the Final Judgment entered in this case is a consent judgment not subject to appeal. The motion is resolved by a careful examination of the agreement between the Parties. The jury unanimously found the railroad liable on both the negligence and the negligence per se counts, but deadlocked 7-1 on damages, with the nigh-unanimous majority finding that the railroad owed the Fribergs $60,000. The Parties agreed to waive their rights to a unanimous verdict on the damages issue, and the February 14, 2000, Final Judgment reflects both that agreement and the express provision that "each party retain[s] all rights of appeal of that verdict the same as if it had been rendered unanimously."⁶ Agreeing to accept a less-than-unanimous verdict, where the jury dictates the terms of the Judgment, is patently distinct from consenting to a Judgment wherein the Parties themselves settle and agree to all of the terms.⁷ Nor do the agreement's terms conditioning damages to be paid upon the outcome of the appeal transform the agreement into a consent judgment. As the Supreme Court found in Haven's Realty Corp. v. Coleman,⁸ such an agreement merely liquidates the damages due. Accordingly, the Motion to Dismiss is denied.

Preemption

Whether a state statute or common law cause of action is preempted by federal law is a question of law we review de novo.⁹ Preemption under the Supremacy Clause of the federal Constitution may arise in several ways, i.e., (1) express preemption where the intent of Congress to preempt state law is clear and explicit; (2) field preemption where state law intrudes in an area that Congress has reserved for federal jurisdiction; and (3) conflict preemption, where enforcement of state law cannot be accomplished while simultaneously complying with federal law.¹⁰ Our analysis begins by looking to the expression of Congress, i.e., whether Congress either specifically stated that regulation of railroad operations and side tracks is reserved to the federal government, or implicitly so stated in defining the structure and purpose of the relevant federal legislation.¹¹

ICCTA

The ICCTA became effective on January 1, 1996, abolishing the Interstate Commerce Commission and creating the Surface Transportation Board ("STB" or "Board") to perform many of the regulatory functions formerly performed by the Commission. Where a statute contains a specific preemption clause, the language of that clause becomes the focus of our analysis.¹² Section 10501 of the ICCTA is entitled General Jurisdiction, and states in relevant part:

(b) The jurisdiction of the Board over -

(1) transportation by rail carriers, and the remedies provided in this part [49 U.S.C. §§ 10101 et seq.] with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and

(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State,

is exclusive. Except as otherwise provided in this part [49 U.S.C. §§ 10101 et seq.], the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.

The language of the statute could not be more precise, and it is beyond peradventure that regulation of KCS train operations, as well as the construction and operation of the KCS side tracks, is under the exclusive jurisdiction of the STB unless some other provision in the ICCTA provides otherwise.¹³ The regulation of railroad operations has long been a traditionally federal endeavor, to better establish uniformity in such operations and expediency in commerce,¹⁴ and it appears manifest that Congress intended the ICCTA to further that exclusively federal effort, at least in the economic realm.

The trial court, in finding no preemption, delved into the legislative history of the ICCTA. We respect that effort, but find that the plain language of the statute itself, and in particular its preemption provision, is so certain and unambiguous as to preclude any need to look beyond that language for congressional intent.¹⁵ We cannot accept the trial court's reasoning that the Texas Anti-Blocking Statute is a criminal provision that does not reach into the area of economic regulation of railroads. Regulating the time a train can occupy a rail crossing impacts, in such areas as train speed, length and scheduling, the way a railroad operates its trains, with concomitant economic ramifications that are not obviated or lessened merely because the provision carries a criminal penalty.

The Fribergs assert that § 10502 of the ICCTA, which is implemented through 49 C.F.R. § 1121.1 et seq., provides an exemption from the STB's jurisdiction. Section 10502, however, grants the power to exempt an entity to the Board itself, not to any other authority.¹⁶ Further, § 10502 offers relief from administrative procedures for those seeking to acquire, operate or abandon rail lines, not to those seeking to regulate such rail operators.¹⁷

Nothing in the ICCTA otherwise provides authority for a state to impose operating limitations on a railroad like those imposed by the Texas Anti-Blocking Statute, nor does the all-encompassing language of the ICCTA's preemption clause permit the federal statute to be circumvented by allowing liability to accrue under state common law, where that liability arises from a railroad's economic decisions such as those pertaining to train length, speed or scheduling. We thus hold that the Texas Anti-Blocking Statute, as well as the Fribergs' common law claim of negligence, are preempted by the ICCTA.¹⁸

The judgment appealed is REVERSED.

*. Judge Emilio M. Garza concurs except as to footnote 18.

**. District Judge of the Southern District of Texas, sitting by designation.

1. Side tracks are used to park a train going one direction on a main line while a train going the opposite direction passes. They can also be used as a detour to circumvent places on the main line where the tracks become unusable due to washouts, accidents, maintenance, etc. Obviously, to allow a train going in the opposite direction to pass, the other train must be able to pull completely on to the side track leaving no cars on the main line. The record reflects that the KCS has side tracks approximately every 20 miles along its main line between Shreveport, Louisiana, and Dallas, Texas.

2. At the time of the events at issue Tex. Trans. Code Ann. § 471.007(a) ("Texas Anti-Blocking Statute") prohibited railroad officers, agents, servants or receivers from wilfully allowing a standing train to block a street, highway or railroad...