Gortney v. Norfolk & Western Ry. Co., Docket No. 173244

• Decision Date: 10 May 1996
• Docket Number: Docket No. 173244
• Citation: 216 Mich.App. 535,549 N.W.2d 612
• Parties: Eileen J. GORTNEY, Personal Representative of the Estate of Justin T. Gortney, Jr., deceased, Plaintiff-Appellant/Cross-Appellee, v. NORFOLK & WESTERN RAILWAY COMPANY, Defendant-Appellee/Cross-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 612

549 N.W.2d 612

216 Mich.App. 535

Eileen J. GORTNEY, Personal Representative of the Estate of Justin T. Gortney, Jr., deceased Plaintiff-Appellant/Cross-Appellee, v. NORFOLK & WESTERN RAILWAY COMPANY, Defendant-Appellee/Cross-Appellant.

Docket No. 173244.

Court of Appeals of Michigan.

Submitted March 13, 1996, at Detroit.

Decided May 10, 1996, at 9:20 a.m.

Released for Publication June 20, 1996.

Sachs, Waldman, O'Hare, Helveston, Hodges & Barnes, P.C. by George T. Fishback, Detroit, for plaintiff.

Hackett, Maxwell & Phillips, P.L.L.C. by Phillip B. Maxwell and Mark T. Butler, Pontiac, for defendant.

Before MURPHY, P.J., and RICHARD ALLEN GRIFFIN and POST, ^* JJ.

RICHARD ALLEN GRIFFIN, Judge.

In this action brought under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq., plaintiff appeals as of right an order of the circuit court granting defendant summary disposition pursuant to MCR 2.116(C)(7) (claim barred by release). We affirm.

I

For most of his adult life, plaintiff's decedent, Justin T. Gortney, Jr., worked as a switchman and yardmaster for defendant, Norfolk & Western Railway Company. In 1987, Mr. Gortney accepted defendant's offer of early retirement. According to the terms of the agreement, Mr. Gortney received $40,000 in exchange for his decision to sign a "resignation and release." The written resignation and release states in pertinent part:

I, J.T. GORTNEY ... hereby resign and surrender any right to employment by Norfolk Southern Corporation, Norfolk and Western Railway Company, Southern Railway Company and any employer affiliated with or controlled by any of the aforenamed companies, for convenience referred to hereinafter individually and collectively as the "Company," and hereby release and forever discharge the Company and its agents, officers and employees from any claim (with the exception of vested pension rights), demand, action or cause of action, of any kind whatsoever, known or unknown, which I have or could have on account of, or in any manner arising out of or connected with, my employment by the said Company, or the termination thereof, including but not limited to any claim or right asserted under or arising out of any agreement, regulation, condition or statute affording me employment protection, protecting me from employment discrimination, or covering the conditions of my employment.

* * * * * *

THIS RESIGNATION AND RELEASE AND THE DEDUCTIONS [of federal and state taxes] AUTHORIZED HEREIN ARE FULLY UNDERSTOOD BY ME. THIS DOCUMENT IS EXECUTED VOLUNTARILY AND SOLELY FOR THE CONSIDERATION ABOVE EXPRESSED, WITHOUT ANY OTHER

REPRESENTATION, PROMISE, OR AGREEMENT OF ANY KIND WHATSOEVER HAVING BEEN MADE OR OFFERED TO ME BY THE COMPANY OR ANY AGENT, OFFICER, EMPLOYEE, OR REPRESENTATIVE OF THE SAID COMPANY.

On September 30, 1987, Justin T. Gortney executed the above document and retired from defendant's employ. Approximately two years later, Mr. Gortney died of lung cancer. In 1992, plaintiff as personal representative of the estate brought suit against defendant under the FELA. Plaintiff claims that occupational exposure to diesel fumes caused decedent's lung cancer and subsequent death.

In November 1993, defendant moved for summary disposition pursuant to MCR 2.116(C)(7) on the grounds that plaintiff's claim was barred by the terms of the release and by operation of the applicable statute of limitations. The trial court granted defendant's motion, ruling that the release barred plaintiff's cause of action. The trial court did not address defendant's argument that plaintiff's complaint was barred by the statute of limitations.

II

A FELA case adjudicated in state court is subject to state procedural rules. St. Louis SW R. Co. v. Dickerson, 470 U.S. 409, 411, 105 S.Ct. 1347, 1348, 84 L.Ed.2d 303 (1985); see Cameron v. Norfolk & W R Co., 891 S.W.2d 495, 497, 498 (Mo.App., 1994). Accordingly, we apply the Michigan standard of review in assessing the propriety of the trial court's decision to grant summary disposition. In reviewing a motion for summary disposition pursuant to MCR 2.116(C)(7), we must accept plaintiff's well-pleaded allegations as true, Shawl v. Dhital, 209 Mich.App. 321, 323, 529 N.W.2d 661 (1995); Simmons v. Apex Drug Stores, Inc., 201 Mich.App. 250, 252, 506 N.W.2d 562 (1993), and examine any pleadings, affidavits, depositions, admissions, and documentary evidence submitted by the parties in a light most favorable to the nonmovant. MCR 2.116(G)(5); Skotak v. Vic Tanny Int'l, Inc., 203 Mich.App. 616, 617, 513 N.W.2d 428 (1994). If the pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine issue of material fact, the trial court must enter judgment without delay. MCR 2.116(I)(1); Skotak, supra at 617, 513 N.W.2d 428; Nationwide Mutual Ins. Co. v. Quality Builders, Inc., 192 Mich.App. 643, 647-648, 482 N.W.2d 474 (1992).

III

Plaintiff first contends that the trial court misconstrued the language of the release as being sufficiently broad to encompass claims for personal injury. We disagree. The United States Supreme Court has directed that federal law be employed to assess the validity of a release that waives FELA rights. Maynard v. Durham & S R Co., 365 U.S. 160, 161, 81 S.Ct. 561, 562, 5 L.Ed.2d 486 (1961) (citing Dice v. Akron, C & Y R Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398 [1952]. Nevertheless, the lower federal courts have not consistently used federal law to determine whether a release is broad enough to embody a FELA claim. See, e.g., Taggart v. United States, 880 F.2d 867, 870 (C.A.6, 1989); Virginia Impression Products Co., Inc. v. SCM Corp., 448 F.2d 262, 265 (C.A.4, 1971). In the present case, we need not address the apparent conflict because we are compelled to the same conclusion regardless of whether we apply state or federal law. See generally Good v. Pennsylvania R Co., 263 F.Supp. 84, 86 (E.D.Pa.1967).

The scope of a release is controlled by the intent of the parties as it is expressed in the release. See, e.g., Taggart, supra at 870; Virginia Impression Products, supra at 265; Gramer v. Gramer, 207 Mich.App. 123, 125, 523 N.W.2d 861 (1994); Adell v. Sommers, Schwartz, Silver & Schwartz, PC, 170 Mich.App. 196, 200, 428 N.W.2d 26 (1988). If the text in the release is unambiguous, we must ascertain the parties' intentions from the plain, ordinary meaning of the language of the release. Empro Mfg. Co., Inc. v. Ball-Co Mfg., Inc., 870 F.2d 423, 425 (C.A.7, 1989); Consolidated Gas Supply Corp. v. Federal Energy Regulatory Comm., 745 F.2d 281, 283-284 (C.A.4, 1984); Tuskegee Alumni Housing Foundation, Inc. v. Nat'l Homes Construction Corp., 450 F.Supp. 714, 716 (S.D.Ohio, 1978), aff'd. 624 F.2d 1101 (C.A.6, 1980); see also Pakideh v. Franklin Commercial Mortgage Group, Inc., 213 Mich.App. 636, 640, 540 N.W.2d 777 (1995); Michigan Chandelier Co. v. Morse, 297 Mich. 41, 297 N.W. 64 (1941); Skotak, supra 203 Mich.App. at 619, 513 N.W.2d 428; In re Loose, 201 Mich.App. 361, 366, 505 N.W.2d 922 (1993). The fact that the parties dispute the meaning of a release does not, in itself, establish an ambiguity. Int'l Union of Bricklayers & Allied Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1406 (C.A.9, 1985); Wabash, Inc. v. Avnet, Inc., 516 F.Supp. 995, 998 (N.D.Ill.,1981); see also Moore v. Kimball, 291 Mich. 455, 460-461, 289 N.W. 213 (1939). A contract is ambiguous only if its language is reasonably susceptible to more than one interpretation. Stewart v. KHD Deutz of America Corp., 980 F.2d 698, 702 (C.A.11, 1993); see Thomas v. Jewell, 300 Mich. 556, 560-561, 2 N.W.2d 501 (1942). If the terms of the release are unambiguous, contradictory inferences become "subjective, and irrelevant," Cleveland-Cliffs Iron Co. v. Chicago & NW Transportation Co., 581 F.Supp. 1144, 1149 (W.D.Mich., 1984), and the legal effect of the language is a question of law to be resolved summarily. Empro Mfg, supra at 425; Mason Drug Co., Inc. v. Harris, 597 F.2d 886, 887 (C.A.5, 1979); Freeman v. Continental Gin Co., 381 F.2d 459, 465 (C.A.5, 1967); see also Skotak, supra 203 Mich.App. at 619, 513 N.W.2d 428; Restatement Contracts, 2d, § 212, comment d, p. 127; Calamari & Perillo, Contracts (3d ed.), § 3-10, pp. 166-167.

In the present case, the language of the release evidences a clear intent to settle and to release defendant from liability for "any claim[,] ... demand, action or cause of action, of any kind whatsoever, known or unknown, which [decedent had] or could have [had] on account of, or in any manner arising out of or connected with, [his] employment." We find no ambiguity in this broad, all-encompassing language. Indeed, the language releasing "any claim ... of any kind whatsoever" can hardly be interpreted as excluding claims for personal injury. See, e.g., Taggart, supra; Virginia Impression Products, supra; Dombrowski v. City of Omer, 199 Mich.App. 705, 708, 502 N.W.2d 707 (1993); Moore v. Campbell, Wyant & Cannon Foundry, 142 Mich.App. 363, 368, 369 N.W.2d 904 (1985). Nor does the release contain any other language that could suggest such an interpretation. Contrary to plaintiff's contention, the text of the release does not limit its scope to issues pertaining to the terms of employment. Rather, the release expressly states that it applies to "any" claim and that its scope is "not limited to" any specifically enumerated topic. In sum, the release is capable of but one reasonable interpretation: that decedent released all claims, including personal injury claims, in exchange for a substantial monetary consideration. Accordingly, we hold that the trial court correctly ruled that decedent released defendant from all personal injury actions that arose during the course of decedent's employment with defendant.

IV

Plaintiff also claims that the release cannot validly waive a FELA claim because it was premised upon a...