Muzzleman v. National Rail Passenger Corp.

• Citation: 839 F. Supp. 1094
• Decision Date: 13 December 1993
• Docket Number: Civ. A. No. 92-355 MMS.
• Parties: Mark MUZZLEMAN, Plaintiff, v. NATIONAL RAIL PASSENGER CORPORATION, Defendant.
• Court: United States District Courts. 3th Circuit. United States District Court (Delaware)

839 F. Supp. 1094

Mark MUZZLEMAN, Plaintiff, v. NATIONAL RAIL PASSENGER CORPORATION, Defendant.

Civ. A. No. 92-355 MMS.

United States District Court, D. Delaware.

December 13, 1993.

Stephen B. Potter, Potter, Crosse & Leonard, P.A., Wilmington, DE (Robert N. Peirce, Jr., Robert Peirce & Associates, P.A., Pittsburgh, PA, of counsel), for plaintiff.

Somers S. Price, Potter Anderson & Corroon, Wilmington, DE, for defendant.

OPINION

MURRAY M. SCHWARTZ, Senior District Judge.

Plaintiff, Mark Muzzleman, has filed suit pursuant to the Federal Employers' Liability Act "FELA", 45 U.S.C. § 51 et seq., against the National Rail Passenger Corporation "Amtrak" to recover for physical injuries sustained while employed by Amtrak. Presently before the Court are various pretrial issues which the parties have been unable to resolve.

I. ADMISSIBILITY OF MEDICAL BILLS PAID BY AMTRAK OR AMTRAK'S INSURANCE

Plaintiff has proffered bills for medical expenses as evidence of damages he has sustained. Amtrak argues the Court should exclude these bills from evidence because they have been paid by Amtrak or its insurance carrier. Both parties agree Section 5 of FELA, 45 U.S.C. § 55, governs the resolution of this question, but disagree as to the statute's effect. The full text of this provision provides:

Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void: Provided, That in any action brought against any such common carrier under or by virtue of any of the provisions of this chapter, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to any injured employee or the person entitled thereto on account of the injury or death for which said action was brought.

45 U.S.C. § 55 (1986) (emphasis in original).

Amtrak asserts plaintiff is covered by Amtrak's collective bargaining agreement, which states that employees will receive benefits as provided under the Health and Welfare Plan. Docket Item "D.I." 39. The Health and Welfare Plan states:

In case of an injury or a sickness for which an Employee who is eligible for Employee benefits and may have a right of recovery against the employing railroad, benefits will be provided under the Policy Contract, subject to the provisions hereinafter set forth. The parties hereto do not intend that benefits provided under the Policy Contract will duplicate, in whole or in part, any amount recovered from the employing railroad for hospital, surgical, medical or related expenses of any kind specified in the Policy Contract, and they intend that benefits provided under the Policy Contract will satisfy any right of recovery against the employing railroad for such benefits to the extent of the benefits so provided. Accordingly, benefits provided under the Policy Contract will be offset against any right of recovery the Employee may have against the employing railroad for hospital, surgical, medical or related expenses of any kind specified in the Policy Contract.

D.I. 40 (National Health and Welfare Agreement, Art. III, § A (Oct. 22, 1975), quoted in, Health and Welfare Plan, amended Aug. 1, 1993, at 101). Further, Amtrak argues this issue has been decided in Clark v. National Railroad Passenger Corporation, 654 F.Supp. 376 (D.D.C.1987), in which the court excluded all evidence of medical expenses paid by the railroad or its insurance. D.I. 32 at 3.

Plaintiff makes two arguments regarding the medical records. First, citing 45 U.S.C. § 55, plaintiff argues the records are admissible because Amtrak may not attempt to "exempt itself from any liability" created by FELA. D.I. 36. Specifically, plaintiff asserts courts have struck down release provisions contained in railroad disability benefits plans because employees cannot waive rights in connection with an injury before the injury occurs.¹ Plaintiff, however, misconstrues FELA's language. Indemnification against liability is not an exemption from liability. Because the collective bargaining agreement does not exempt Amtrak from FELA liability, but only indemnifies Amtrak, the agreement does not contravene the statute's plain language. See Mead v. National R.R. Passenger Corp., 676 F.Supp. 92, 95 (D.Md.1987); Clark v. National R.R. Passenger Corp., 654 F.Supp. 376, 378 (D.D.C.1987); Thomas v. Penn Central Co., 379 F.Supp. 24, 27 (W.D.Pa.1974); cf. Panichella v. Pennsylvania R.R. Co., 268 F.2d 72, 75 (3d Cir.1959) (broad and general release executed by employee operated to bar FELA action against railroad), cert. denied, 361 U.S. 932, 80 S.Ct. 370, 4 L.Ed.2d 353 (1960).

Secondly, plaintiff argues Amtrak bears the burden of establishing an entitlement to a set off, and that any such set off is limited to the contributions Amtrak made, not the benefits plaintiff received. D.I. 33 at 3; D.I. 36. Despite the statutory language limiting set off to any sum "contributed or paid" most courts have held "an employer is entitled to set off the entire amount of benefits paid by a policy it pays for if the collective bargaining agreement between the employer and the employee's union expressly provides that the purpose of the policy is to indemnify the employer against FELA liability rather than serve as a wage equivalent for the employees." Varhol v. National R.R. Passenger Corp., 909 F.2d 1557, 1565 n. 1 (7th Cir.1990). See, e.g., Folkestad v. Burlington Northern, Inc., 813 F.2d 1377, 1382-83 (9th Cir.1987); Mead v. National R.R. Passenger Corp., 676 F.Supp. 92, 94 (D.Md. 1987); Clark v. National R.R. Passenger Corp., 654 F.Supp. 376, 378 (D.D.C.1987). Thus, with respect to plaintiff's contention that any set off is limited to insurance contributions, the Court must examine the collective bargaining agreement in effect between plaintiff and Amtrak.

The Health and Welfare Plan referenced in the collective bargaining agreement provides that "benefits provided under the Policy Contract will be offset against any right of recovery." D.I. 40 (emphasis added). The plain language of this agreement demonstrates that the insurance policy and medical benefits provided by it are intended to indemnify Amtrak. Because the parties' agreement makes clear that the insurance policy is not a fringe benefit and that the collateral source rule should not apply to proceeds paid out under it, Amtrak may set off the entire amount of benefits paid to plaintiff.

Recognizing that parties to a collective bargaining agreement have the freedom to provide by contract that payments made through an insurance policy will serve to indemnify an employer from FELA liability, the Court concludes plaintiff's medical expenses may not be introduced into evidence. Such evidence is not relevant since plaintiff, by the terms of the collective bargaining agreement, is not entitled to recover the expenses a second time. See Mead v. National R.R. Passenger Corp., 676 F.Supp. 92, 94 (D.Md.1987) (excluding plaintiff's proffered evidence of medical expenses paid by Amtrak or its insurer); Clark v. National R.R. Passenger Corp., 654 F.Supp. 376, 378 (D.D.C.1987) (excluding all direct and indirect evidence of plaintiff's medical expenses paid by Amtrak or its insurer). Accordingly, plaintiff may not introduce into evidence any medical expenses which have been paid by Amtrak or its insurer.

II. THE USE OF OSHA ENACTMENTS TO ESTABLISH FELA LIABILITY

Plaintiff seeks to use Occupational Safety and Health Administration "OSHA" enactments to establish Amtrak's liability under FELA. Plaintiff asserts a violation of OSHA enactments constitutes: (1) negligence per se under FELA; or, in the alternative, (2) evidence of negligence under FELA. D.I. 33 at 4-7; D.I. 36. Amtrak contends, however, that 29 U.S.C. § 653(b)(4) precludes the use of OSHA enactments to establish liability under FELA.²

With respect to plaintiff's first assertion, the law in this circuit is clear: an OSHA violation may not be used to establish negligence per se or to bar contributory negligence under FELA. Ries v. National R.R. Passenger Corp., 960 F.2d 1156, 1162 (3d Cir.1992). For this reason, the Court will not permit plaintiff to use OSHA violations to establish negligence per se under FELA.

With respect to plaintiff's second assertion, the Third Circuit Court of Appeals has held the violation of an OSHA regulation is admissible as evidence of a railroad's negligence under FELA. Id. at 1165. In Ries, the majority observed that "evidence of an OSHA violation, in and of itself, does not `affect' liability; it is the inferences that the trier of fact draws from the evidence that `affect' liability." Id. at 1162 n. 5. In its briefs, however, Amtrak emphasizes that it did not contest the admission of an OSHA violation as evidence of negligence in Ries and asks the Court to adopt the reasoning of Judge Nygaard's concurring opinion, which argued violations of OSHA should not be introduced even as evidence of negligence under FELA. D.I. 32 at 6 n. 1; D.I. 35 at 5 n. 2.

The Court will not disregard controlling case law from the Third Circuit Court of Appeals. The majority opinion in Ries clearly permits the use of OSHA violations as evidence of negligence under FELA. 960 F.2d at 1162. Further, the great weight of authority in other circuits suggests OSHA violations are admissible as evidence of negligence under FELA. See, e.g., Manes v. Metro-North Commuter R.R., 801 F.Supp. 954, 964-65 (D.Conn.1992), aff'd, 990 F.2d 622 (2d Cir.1993) (holding OSHA regulations admissible as evidence of negligence under FELA); Albrecht v. Baltimore & Ohio R.R. Co., 808 F.2d 329, 332 (4th Cir.1987) (no reversible error where district court instructed jury that OSHA violations constituted evidence of negligence under FELA). Cf. Pratico v. Portland Terminal Co., 783 F.2d 255, 264-67 (1st Cir.1985) (holding OSHA...