Ratliff v. Norfolk Southern Ry. Co.

• Decision Date: 12 March 2009
• Docket Number: No. 34156.,34156.
• Citation: 680 S.E.2d 28
• Court: West Virginia Supreme Court
• Parties: Freda Marlene RATLIFF, as Executrix of the Estate of Sparrell Ratliff, Plaintiff Below, Appellant, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant Below, Appellee.

680 S.E.2d 28

Freda Marlene RATLIFF, as Executrix of the Estate of Sparrell Ratliff, Plaintiff Below, Appellant, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant Below, Appellee.

No. 34156.

Supreme Court of Appeals of West Virginia.

Submitted February 4, 2009.

Decided March 12, 2009.

Concurring Opinion of Chief Justice Benjamin July 27, 2009.

Syllabus by the Court

1. "A circuit court's entry of summary judgment is reviewed de novo." Syllabus point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. "`"A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).' Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992)." Syllabus point 2, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

3. "The circuit court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial." Syllabus point 3, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

4. Where a release has not been executed as part of a specific settlement of a claim brought under the Federal Employer's Liability Act, 45 U.S.C. § 51, et seq., but instead was executed in connection with a voluntary separation program, section 5 of the Act, which is codified at 45 U.S.C. § 55 (1908) (2000 ed.), precludes an employer from claiming that the release is a bar to liability under the Act. To be valid under section 5 of the Federal Employer's Liability Act, a release executed in connection with a voluntary separation program must reflect a bargained-for settlement of a known claim for a specific injury.

Richard N. Shapiro, Hajek, Shapiro, Cooper, Lewis & Appleton, Virginia Beach, VA, Michael P. Giertz, Hartley & O'Brien, PLLC, Wheeling, WV, for the Appellant.

Patrick Casey, Darla Mushet, Burns, White & Hickton, Wheeling, WV, Attorneys for Amicus Curiae, Association of American Railroads.

Luke A. Lafferre, Alexis Mattingly, Huddleston Bolen LLP, Huntington, WV, for the Appellee.

DAVIS, Justice.¹

In this action brought under the Federal Employer's Liability Act (hereinafter referred to as "the FELA"), Mrs. Freda Ratliff (hereinafter referred to as "Mrs. Ratliff"), in her capacity as executrix of the estate of her deceased husband, Mr. Sparrell Ratliff, Jr., plaintiff below and appellant herein, asks this Court to review an award of summary judgment in favor of Norfolk Southern Railway Company (hereinafter referred to as "Norfolk Southern"), defendant below and appellee herein. In determining whether summary judgment was appropriate, this Court must determine whether a release executed by Sparrell Ratliff, Jr., in connection with a voluntary separation program offered by his employer, Norfolk Southern, violates 45 U.S.C. § 55 (1908) (2000 ed.),² which prohibits employers from exempting themselves from FELA liability. After a review of the parties' briefs, the record submitted on appeal, the brief submitted by the Association of American Railroads as Amicus Curiae,³ and having heard the oral arguments of the parties, we conclude that the circuit court erred in granting summary judgment to Norfolk Southern. Because Sparrell Ratliff, Jr.'s, release was executed in the context of a voluntary separation program, as opposed to being executed in compromise of a claimed liability, it must reflect a bargained-for settlement of a claim for mesothelioma in order to be valid under 45 U.S.C. § 55.

I. FACTUAL AND PROCEDURAL HISTORY

In 1947, when he was twenty-three years old, Sparrell Ratliff, Jr. (hereinafter referred to as "Mr. Ratliff"), began working for Norfolk & Western Railway Company (hereinafter referred to as "N & W"), a predecessor entity of the appellee, Norfolk Southern. He worked as a locomotive engineer. In 1986, after Mr. Ratliff had worked for N & W, and then for Norfolk Southern,⁴ for nearly forty years,⁵ and had reached the age of sixty, he received from Norfolk Southern several documents explaining a voluntary separation or early retirement program.⁶ According to the deposition testimony of Marcellus Kirchner, who served as Norfolk Southern's director of labor relations in 1986, the purpose of the voluntary separation program was to "reduce staffing levels in order to reduce employment costs either by eliminating redundant positions or replacing existing employees with lower-compensated employees."

The cover letter to the documents that Mr. Ratliff received described the "highlights" of the voluntary separation program as follows:

A $35,000 separation allowance for active engine service employees with engine service seniority prior to November 1, 1985[.][⁷]

A $25,000 separation allowance for active train service employees with engine service seniority prior to November 1, 1985[.]

Health and welfare coverage until age 65 for those employees over age 55[.] A death benefit of $10,000 for those employees over age 55.

(Footnote added). An included "Program Description" provided additional detail regarding the program, and stated, inter alia, that, in order to participate in the program, an employee would be required to execute a resignation and release that "is a total and absolute release of any employment rights with any Norfolk Southern Company and of any claims of any kind whatsoever arising from your employment relationship with the Company."⁸ A copy of the resignation and release document that employees would be required to execute in order to participate in the program was also included, along with an "Application for Participation in Separation Program." Mr. Ratliff applied for the program and was approved. Accordingly, he executed the required resignation and release, which stated in relevant part:

I, S. RATLIFF, JR., [social security number omitted], in consideration of the sum of THIRTY-FIVE THOUSAND DOLLARS ($35,000.00), the receipt of which is hereby acknowledged, hereby resign and surrender any right to employment by Norfolk Southern Corporation, Norfolk and Western Railway Company, Southern Railway Company or any employer affiliated with or controlled by any of the aforenamed companies, for convenience referred to hereinafter collectively as the "Company", and hereby release and forever discharge the Company 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 or covering the conditions of my employment ....

(Emphasis added). The release signed by Mr. Ratliff was identical to the sample release that was included in the information packet offering the voluntary separation program, with the exception that the actual release executed by Mr. Ratliff specified his name, social security number, the actual amount of the consideration he received, and the amount of taxes withheld therefrom. There is nothing in the record of this action indicating that Mr. Ratliff was represented by, or consulted with, a lawyer before signing the resignation and release.

In April 2005, nineteen years after his voluntary separation from Norfolk Southern, Mr. Ratliff was diagnosed with mesothelioma.⁹ He died in July 2005. The instant FELA action was filed by Mrs. Ratliff, in her capacity as executrix of Mr. Ratliff's estate, in or around October 2005.¹⁰ Norfolk Southern filed its answer denying liability, and, after a period of discovery, filed a motion for summary judgment asserting that the action was barred by virtue of the release that had been executed by Mr. Ratliff in connection with the voluntary separation program. Mrs. Ratliff subsequently filed her own motion for summary judgment asserting that, pursuant to the provisions of 45 U.S.C. § 55,¹¹ the release was void. Following a hearing, the circuit court indicated that it was inclined to grant summary judgment in favor of Norfolk Southern, but that it had been

persuaded by counsel for plaintiff that a jury trial on the factual issue of intent would serve the interests of judicial economy in that a resolution of that factual issue might narrow the issues to be presented in any appeal of the judgment in this case. Therefore, the court determined to conduct a jury trial ... solely on the subject of the intent of the parties in entering into the Release, with the parties to conduct any additional necessary discovery on the subject of the Release before trial.

A pre-trial conference for the "intent" trial was scheduled for July 20, 2007. However, on that date, at the parties' request, the circuit court instead considered their renewed motions for summary judgment. The circuit court observed that Mrs. Ratliff "presented no new or additional evidence to support [her] argument" that the release was prohibited by 45 U.S.C. § 55, and observed further that Mrs. Ratliff had conducted discovery in anticipation of trial and had not suggested that she required additional time for further discovery. The circuit court found that "[t]he limiting words of the release are very specific," and that Mrs. Ratliff had presented "no evidence that the release was not intended to comprehend the alleged occupational injury alleged by the plaintiff." Additionally, the circuit court observed that there was no evidence of fraud, the consideration paid was sufficient to support the release, there was no mutual mistake of fact, and the risk of mesothelioma was known, at least...