Hess v. Norfolk S. Ry. Co.

• Decision Date: 26 October 2005
• Docket Number: No. 2003-2035.,2003-2035.
• Citation: 106 Ohio St.3d 389,835 NE 2d 679
• Parties: Hess et al., Appellees, v. Norfolk Southern Railway Company, Appellant.
• Court: Ohio Supreme Court

106 Ohio St.3d 389

2005-Ohio-5408

835 NE 2d 679

2005-Ohio-5408

Hess et al., Appellees, v. Norfolk Southern Railway Company, Appellant.

No. 2003-2035.

Supreme Court of Ohio.

Submitted January 11, 2005.

Decided October 26, 2005.

ALICE ROBIE RESNICK, J.

{¶ 1} Twenty-eight former employees of defendant-appellant, Norfolk Southern Railway Company, filed a master complaint in the Cuyahoga County Court of Common Pleas pursuant to the Federal Employers' Liability Act ("FELA"), Sections 51-60, Title 45, U.S.Code, alleging that Norfolk had negligently exposed them to asbestos at its Spencer, North Carolina, facility, which caused them to contract various forms of pneumoconiosis. Four of the cases, i.e., those brought by plaintiffs-appellees Lee McAdoo Hess, Lester L. Poe Sr., Charlie Leon Miller, and Baxter Lovelace Wyatt, all of whom have since died of lung cancer, were consolidated for trial under Civ.R. 42(A).

{¶ 2} Before trial, Norfolk proposed instructions that would require the jury to apportion damages according to degree of fault, weighing the railroad's negligence in exposing appellees to asbestos not only against appellees' own negligence, but also against the negligence of non-FELA defendants who contributed to appellees' injuries. Specifically, Norfolk requested an instruction that the jury must "determine the percentage to which each plaintiff's non-work related factors, if any, contributed to his injuries" and that the court would decrease the amount of any award by that percentage. Norfolk relied on McDermott, Inc. v. AmClyde (1994), 511 U.S. 202, 114 S.Ct. 1461, 128 L.Ed.2d 148, an admiralty case, for the proposition that an "FELA employer whose employee has been injured partially by the employer's negligence and partially by other causes must pay only for those injuries attributable to its negligence," or in other words "is required to pay only its proportionate share of damages."

{¶ 3} During trial, the court precluded Norfolk from arguing that third parties not before the court, including other employers and asbestos manufacturers, may have caused or contributed to appellees' injuries. The trial court allowed the jury to apportion responsibility only between Norfolk and appellees based on comparative fault. On October 15, 2001, the jury returned verdicts in favor of each appellee, ranging from $510,000 to $1.07 million, but found each appellee partially responsible for his lung cancer.¹

{¶ 4} Norfolk filed two interrelated posttrial motions. In one, Norfolk requested a new trial pursuant to Civ.R. 59(A), arguing that the trial court erroneously excluded evidence that each of the plaintiffs had separately sued the asbestos manufacturers and that these entities were responsible, at least in part, for plaintiffs' alleged injuries.

{¶ 5} In the other motion, Norfolk argued, in essence, that since the trial court did not allow for apportionment of damages among potential tortfeasors, the railroad is now "entitled to a set-off of any damages which the Plaintiffs may recover in their claims against the manufacturers." To this end, Norfolk requested a stay of any entry of judgment until the claims against the manufacturers have been resolved. Otherwise, Norfolk argued, the plaintiffs will obtain a double recovery.

{¶ 6} Norfolk later discovered that appellees had already settled with some of the asbestos manufacturers before trial. The parties agree that Hess received settlement proceeds totaling $12,682, that Poe received $4,900, Miller $3,450, and Wyatt $9,000.²

{¶ 7} Based on this discovery, Norfolk modified its motions for new trial and setoff. Norfolk now cited McDermott, supra, for the proposition that "a non-settling defendant is not liable for damages caused by third parties or joint tortfeasors with whom a plaintiff has already reached a settlement." Norfolk argued that in FELA cases involving pretrial settlements with joint tortfeasors, the nonsettling defendant is liable only for its proportionate share of the damages and the plaintiff's award must be reduced by the percentage of fault attributable to the settling defendants. Thus, Norfolk sought a new trial to allow the jury to apportion damages among the settling and nonsettling defendants, or, in the alternative, a full setoff of the settlement amounts received by the plaintiffs.

{¶ 8} The trial court denied both motions and, after adjusting the verdicts for appellees' comparative negligence and other factors not relevant here, entered final judgments totaling approximately $1.86 million.³

{¶ 9} Norfolk appealed to the Eighth Appellate District, asserting eight assignments of error, including that "the trial court erred in failing to allow apportionment of liability of damages under FELA and by not allowing set-offs." Soon after, however, the United States Supreme Court decided Norfolk & W. Ry. Co. v. Ayers (2003), 538 U.S. 135, 123 S.Ct. 1210, 155 L.Ed.2d 261. In that case, the Supreme Court rejected Norfolk's argument that the FELA authorizes an apportionment of damages between railroad and nonrailroad causes and held that the FELA permits an employee to recover his or her full damages from the railroad, regardless of whether the injury was also caused in part by a third party. Id. at 165-166, 123 S.Ct. 1210, 155 L.Ed.2d 261. Accordingly, the court of appeals upheld the trial court's refusal to allow the jury to consider the degree of fault of anyone besides Norfolk and appellees. Hess v. Norfolk S. Ry. Co., 153 Ohio App.3d 565, 2003-Ohio-4172, 795 N.E.2d 91, at ¶ 56.

{¶ 10} However, the court of appeals did not explicitly consider Norfolk's argument that the question of setoff is governed by federal law, particularly McDermott, supra. Instead, the court simply determined that former R.C. 2307.31(A) precluded setoff because the settling defendants were not codefendants at trial, were not adjudicated liable, and did not admit liability. Id. at ¶ 57. Norfolk moved for reconsideration, arguing that R.C. 2307.31 is inapplicable "because federal law governs the measure of damages and the right to a set-off in a FELA action." That motion was summarily denied.

{¶ 11} The cause is now before this court upon the acceptance of a discretionary appeal on proposition of law No. I only.

{¶ 12} Norfolk's first proposition of law states:

{¶ 13} "Federal common law determines the amount of set-off to be applied to a verdict for monetary damages against a non-settling railroad defendant in a FELA case."

{¶ 14} In this proposition, Norfolk is not simply asking us to hold that federal law governs whether and how a nonsettling employer in an FELA action is to receive credit for settlements with other tortfeasors. It is also asking us to decide a question not yet addressed by the United States Supreme Court, which is whether the "proportionate share rule" adopted in McDermott for admiralty cases applies in FELA actions. Arguing that McDermott's proportionate-share rule is entirely compatible with the joint-and-several-liability rule recently announced in Ayers for FELA cases, Norfolk seeks a new trial to allow the jury to apportion the responsibility of the settling defendants so that Norfolk's total liability can be properly reduced. We address these issues in turn.

I GOVERNING LAW

{¶ 15} Section 51, Title 45, U.S.Code provides that every common carrier by railroad shall be liable in damages to any employee who suffers work-related injury or death "resulting in whole or in part" from the railroad's negligence. In discussing the act's laudable aims, the high court explained:

{¶ 16} "Cognizant of the physical dangers of railroading that resulted in the death or maiming of thousands of workers every year, Congress crafted a federal remedy that shifted part of the `"human overhead"' of doing business from employees to their employers. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 58 63 S.Ct. 444, 87 L.Ed. 610 (1943). * * * In order to further FELA's humanitarian purposes, Congress did away with several common-law tort defenses that had effectively barred recovery by injured workers. Specifically, the statute abolished the fellow servant rule, rejected the doctrine of contributory negligence in favor of comparative negligence, and prohibited employers from exempting themselves from FELA through contract; a 1939 amendment abolished the assumption of risk defense." (Citation omitted.) Consol. Rail Corp. v. Gottshall (1994), 512 U.S. 532, 542-543, 114 S.Ct. 2396, 129 L.Ed.2d 427.

{¶ 17} Although the FELA is not a workers' compensation statute, in that some showing of fault is required, id. at 543, 114 S.Ct. 2396, 129 L.Ed.2d 427, "the special features of this statutory negligence action * * * make it significantly different from the ordinary common-law negligence action." Rogers v. Missouri Pacific RR. Co. (1957), 352 U.S. 500, 509-510, 77 S.Ct. 443, 1 L.Ed.2d 493. Specifically, "the statute supplants the common-law duty of the master to his servant with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer's negligence. The employer is stripped of his common-law defenses and for practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit." Rogers at 507-508, 77 S.Ct. 443, 1 L.Ed.2d 493.

{¶ 18} It follows that "one of the purposes of the Federal Employers' Liability Act was to `create uniformity throughout the Union' with respect to railroads' financial responsibility for injuries to their employees." Norfolk & W. Ry. Co. v. Liepelt (1980), 444 U.S. 490, 493, 100 S.Ct. 755, 62 L.Ed.2d 689, fn. 5, quoting H.R.Rep. No. 1386 (1908) 3. Accordingly, the Supreme Court has long emphasized that uniform application of the FELA is "essential to effectuate its purposes" and that "state laws are not controlling in determining what the...