Nordgren v. Burlington Northern R. Co.

• Decision Date: 16 January 1997
• Docket Number: No. 95-3390,95-3390
• Parties: Robert M. NORDGREN, Plaintiff--Appellee, v. BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware Corporation, Defendant--Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1246

101 F.3d 1246

65 USLW 2395

Robert M. NORDGREN, Plaintiff--Appellee, v. BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware

Corporation, Defendant--Appellant.

No. 95-3390.

United States Court of Appeals,

Eighth Circuit.

Submitted March 14, 1996.

Decided Dec. 2, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Jan. 16, 1997.

Charles Glaston Cole, Washington, DC, argued (Sara E. Hauptfuehrer and F. Franklin Amanat, on the brief), for Defendant-Appellant.

Don Charles Aldrich, Minneapolis, MN, argued, for Plaintiff-Appellee.

Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

This is an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) from an order denying the Burlington Northern Railroad Company's (BN) motion to amend its answer to assert a state-law counterclaim for property damages. The question before us is whether the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60, precludes BN from asserting a counterclaim for property damages in responding to an employee's personal injury suit filed pursuant to FELA. We find no federal preemption and, accordingly, reverse and remand for further proceedings.

I.

This case arose as a result of a collision involving two trains, one of which was a BN train operated by its conductor, Robert M. Nordgren. Nordgren filed this FELA cause of action, claiming that BN negligently failed to assure the proper operation of its approach signals and seeking damages for personal injuries he sustained in the collision. In its answer, BN contended the signals were in fact operating properly but Nordgren negligently failed to heed them. BN later moved for permission to amend its answer in order to add a counterclaim to recover the property damage BN sustained to its equipment in the collision as a result of Nordgren's alleged negligence.

A United States magistrate judge denied BN's motion on the basis that 45 U.S.C. § 55 of FELA prohibits BN's proposed counterclaim, therefore rendering it "futile and subject to dismissal or defeat by summary judgment." (Appellant's Addend. pt. C at 3.) BN appealed to the district court, and the district court affirmed the magistrate judge's ruling. Upon a motion by BN, the district court later amended its order to certify the following question of law for interlocutory appeal to this court:

Are state law claims for property damage to railroad equipment brought by a railroad engaged in interstate commerce and subject to the Federal Employer's Liability Act, 45 U.S.C. § 51, et seq., and/or the Federal Railway Labor Act, 45 U.S.C § 151, et seq., against employees who have concurrently sustained personal injury in the course of their railroad employment, preempted or precluded by federal law?

We permitted an appeal to be taken to resolve this question of law. ¹

II.

A. Preemption Standard

The Supremacy Clause of the Constitution of the United States provides that the "Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land." U.S. Const., art. VI, cl. 2. The question presented in this case is whether Congress has exercised its power under the Supremacy Clause so as to preempt BN's proposed state-law based counterclaim for property damages. In determining the answer to this question, the "ultimate touchstone" of our analysis is congressional intent. Gade v. National Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 96, 112 S.Ct. 2374, 2381, 120 L.Ed.2d 73 (1992) (internal quotations omitted).

Congress may manifest its intent to preempt state law in various ways. First, Congress may create express preemption by explicitly stating its intent in the federal law at issue. Second, Congress may impliedly preempt a field of law where a scheme of regulation is "so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it." Fidelity Fed. Sav. & Loan Ass'n v. De la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982) (internal quotations omitted). Finally, preemption may exist where state law is in conflict with federal law, that is, "where it is 'impossible for a private party to comply with both state and federal requirements' or where state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' " Freightliner Corp. v. Myrick, 514 U.S. 280, ----, 115 S.Ct. 1483, 1487, 131 L.Ed.2d 385 (1995) (internal citations omitted). Thus, "[w]here a state statute conflicts with, or frustrates, federal law, the former must give way." CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663, 113 S.Ct. 1732, 1737, 123 L.Ed.2d 387 (1993).

"In the interest of avoiding unintended encroachment on the authority of the States, however, a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find preemption." Id. at 663-64, 113 S.Ct. at 1737-38. "[P]reemption will not lie unless it is 'the clear and manifest purpose of Congress.' " Id. at 664, 113 S.Ct. at 1737-38 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)). "To discern Congress' intent we examine the explicit statutory language and the structure and purpose of the statute." Gade, 505 U.S. at 96, 112 S.Ct. at 2381 (internal quotations omitted).

B. Federal Employers' Liability Act (FELA)

Whether FELA precludes a railroad from counterclaiming for property damages is a question not yet addressed by either the Supreme Court or this court. Because the touchstone of our preemption analysis is congressional intent, we must determine the intended scope of FELA, which in turn requires us to "look to FELA itself, its purposes and background, and the construction [the Supreme Court] ha[s] given it over the years." Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, ----, 114 S.Ct. 2396, 2403, 129 L.Ed.2d 427 (1994).

FELA, enacted in 1908, creates a federal statutory cause of action for employees of interstate carriers (railroads) against their employers for injuries incurred in the course of employment. Around the turn of the century, there was great concern that railroad employees who were injured in the course of their employment had no adequate remedy for their injuries. The general rule at the time was that a servant could sue his master for personal injuries incurred in the course of his employment, but the rule was subject to at least three significant limitations, the first of which was the fellow-servant rule.

Under the fellow-servant rule, "[a] master is not liable for personal injuries occasioned to one servant by the tort of a fellow-servant employed in the same common service, unless (1) the fellow-servant is acting as a deputy-master or vice-principal, or (2) the master has negligently selected an incompetent fellow servant, or negligently retained one, or (3) by statute the master is made liable to one servant for the wrongful act or default of a fellow-servant." Ernest W. Huffcut, The Law of Agency, ch. XXIV, § 271 at 331 (2d ed.1901). The rationale for this rule was that in every employment contract there is an implied term that the servant shall assume all the ordinary risks of the business, including the negligence of fellow-servants employed in the same common service. Id.

In situations where the servant was able to overcome the fellow-servant rule, a second common-law rule, the doctrine of contributory negligence, barred his recovery if the servant himself had been at all negligent. Id. § 284 at 356. Finally, if the servant surmounted these common-law doctrines, he often found that his claim was barred by some form of contractual agreement or arrangement he had entered into with the railroad in order to obtain or maintain employment. See Duncan v. Thompson, 315 U.S. 1, 6, 62 S.Ct. 422, 424, 86 L.Ed. 575 (1942). As a result of the fellow-servant rule, the contributory negligence doctrine, and the agreements exempting the railroads from liability, injured railroad employees rarely succeeded in collecting damages from their employers prior to the enactment of FELA.

"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." Gottshall, 512 U.S. at ----, 114 S.Ct. at 2404 (internal quotations omitted). That federal remedy is the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51--60.

Under FELA, railroads engaging in interstate commerce are liable in damages to their employees who suffer injury or death in the course of their employment as a result in whole or in part of the negligence of any of the railroad's officers, agents, or employees. 45 U.S.C. § 51. In enacting this federal statutory remedy, Congress eliminated the defenses that had previously barred injured railroad workers from recovering for their injuries. "Specifically, the statute abolished the fellow servant rule, rejected the doctrine of contributory negligence in favor of that of comparative negligence, and prohibited employers from exempting themselves from FELA through contract." Gottshall, 512 U.S. at ----, 114 S.Ct. at 2404; see 45 U.S.C. §§ 51, 53, 55. In 1939, Congress amended the statute, abolishing the last vestiges of the defense of assumption of the risk. 45 U.S.C. § 54; see Tiller v. Atlantic Coast Line R.R., 318 U.S. 54, 62-64, 63 S.Ct. 444, 448-50, 87 L.Ed. 610 (1943).

The Supreme Court has recognized FELA as a broad remedial statute and has construed FELA liberally in order to accomplish Congress's goals. Atchison, Topeka & Santa Fe Ry. v. Buell, 480 U.S. 557, 562, 107 S.Ct. 1410, 1413-14, 94 L.Ed.2d 563 (1987) (citing Urie v. Thompson, 337 U.S. 163, 180, 69 S.Ct. 1018, 1029, 93 L.Ed. 1282 (1949)). For example, the Court has held that relaxed standards apply under FELA both for causation,...