Wicker v. Consolidated Rail Corp., No. 97-3034

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtSCIRICA
PartiesEdward L. WICKER, Sr., Appellant atamuel D. Weaver, Appellant athomas E. Kleiner, Appellant atohn W. McKee, Appellant atohn M. Kaltenbrunner, Appellant at, v. CONSOLIDATED RAIL CORPORATION. to 97-3038.
Decision Date29 April 1998
Docket NumberNo. 97-3037,J,T,No. 97-3035,No. 97-3038,No. 97-3036,No. 97-3034,S,Nos. 97-3034

Page 690

142 F.3d 690
1998 A.M.C. 2023
Edward L. WICKER, Sr., Appellant at No. 97-3034,
Samuel D. Weaver, Appellant at No. 97-3035,
Thomas E. Kleiner, Appellant at No. 97-3036,
John W. McKee, Appellant at No. 97-3037,
John M. Kaltenbrunner, Appellant at No. 97-3038,
v.
CONSOLIDATED RAIL CORPORATION.
Nos. 97-3034 to 97-3038.
United States Court of Appeals,
Third Circuit.
Argued Sept. 23, 1997.
Decided April 29, 1998.

Page 692

James M. Flood (argued), Howard S. Stevens, Stevens & Johnson, Allentown, PA, for Appellants.

Stephen M. Houghton (argued), Peter T. Stinson, Dickie, McCamey & Chilcote, Pittsburgh, PA, for Appellee.

Before: BECKER, Chief Judge, and SCIRICA and McKEE, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

The issue on appeal is whether § 5 of the Federal Employers' Liability Act 1 voids a general release of claims given as part of a negotiated settlement.

I.

A.

Plaintiffs Edward Wicker, Sr., Samuel Weaver, Thomas Kleiner, John McKee and John Kaltenbrunner are all former employees of defendant Consolidated Railroad Corporation who were injured during the course of their employment. Each plaintiff negotiated a settlement of claims with Conrail and executed a release. While the releases were not identical, each appeared to settle all claims for all injuries past and future. Plaintiffs subsequently suffered injuries as a result of exposure to toxic chemicals at Conrail's Hollidaysburg Reclamation Plant in Blair County, Pennsylvania.

B.

Edward Wicker retired from Conrail in 1982. Before retiring, Wicker suffered injuries as a result of exposure to asbestos and, in January 1988, signed a release settling his asbestos related claims. Wicker believed the release related solely to his asbestos injuries, and testified he would not have executed a release with a broader scope. Wicker claims he was also exposed to trichlorethylene and trichloroethane while employed at Conrail, and may have been exposed to other toxic chemicals without his knowledge. Wicker now suffers from blackouts, seizures, vertigo, stiffness in his hands, and burn spots in front of his eyes, all of which he attributes to his exposure to chemicals while employed at Conrail. He does not believe any of his injuries are related to asbestos exposure, the subject of his initial settlement.

Samuel Weaver was employed by Conrail from 1974 until 1991. In February 1989, Weaver severely injured his back on the job. In September 1991, Weaver signed a release and a Letter of Agreement not to return to work. Weaver believed the release related only to his back injury, and said he would not have signed it otherwise. Weaver testified that he was exposed to chemicals during the course of his employment, and alleges that he suffers from swollen eyes, infected tear ducts, nosebleeds, headaches, respiratory difficulties, an enlarged liver, skin rashes, dizziness, lipomas, cracking lips, indigestion, overgrowth of skin on his thumbs, xerodermatitis, shortness of breath, fatigue, black mucous substances in his mouth and nose, foot numbness, muscle cramps, spastic colon and benign lumps. Weaver claims that while some

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symptoms existed at the time he executed the release, many are recent developments which were not discovered until after he had signed the release.

Thomas Kleiner was exposed to asbestos while employed by Conrail. In August 1992, Kleiner signed a general release. Kleiner's attorney, Robert Kosseff, testified that neither he nor Kleiner were aware at the time the release was executed that Kleiner had been injured by exposure to chemicals other than asbestos. Kleiner said that he was exposed to various chemicals when he worked on a "slop truck," cleaning out vats filled with caustic soda, soaps, cleaners, chlorinated solvents, and other chemical wastes. As a result, Kleiner suffers from respiratory difficulties, black mucous in his nose and mouth, skin rashes, fatigue, headaches, chest pain, numbness, muscle cramps, nose bleeds, coughing and sinusitis.

In April, 1990, John McKee injured his back while working for Conrail and, as a result, was unable to work for approximately two years. He returned to work briefly and before retiring signed a release and letter of agreement on September 11, 1992, similar to those signed by Weaver. At the time he executed the release, McKee was represented by Robert Kosseff, who testified that neither he nor his client was aware that McKee had been injured by exposure to toxic chemicals. McKee suffers from headaches, respiratory difficulties, nausea, light headedness, skin rashes, chronic indigestion, a bleeding stomach ulcer, kidney stones, blood clots, nervous disorder, and dermatitis. Although McKee testified that he had experienced many of these symptoms before executing the release, he explained that he first connected his symptoms to chemical exposure after he signed the release.

John Kaltenbrunner injured his back in April 1990 while employed by Conrail. In November 1994, Kaltenbrunner signed a release, and a letter of agreement identical to those signed by Weaver and McKee stating that he would not return to his job. Kaltenbrunner testified he was unaware of his exposure to toxic chemicals during his employment, and that, as a result, he suffers injuries apart from his back injury, including rashes, joint pain, respiratory problems, sinusitis, skin "eruptions," and Legionnaires Disease. Kaltenbrunner also testified that some of these symptoms manifested themselves before executing the release.

C.

The releases signed by Wicker and Kleiner were similar in form and substance, and appear to release Conrail from liability for all claims, both past and future, relating to their employment. Wicker's release provides, in part:

I, Edward Wicker ... for the sole consideration of Twenty-one Thousand Dollars ($21,000) ... hereby release and hereby discharge Consolidated Rail Corporation ... from any and all losses, claims, liabilities, actions, causes of action ... and demands of any kind whatsoever in nature ... which I have or to which I claim to be entitled by reason of any injuries, known or unknown, foreseen or unforeseen ... which now exist or which may arise in the future as a result of or in any way connected with my alleged exposure to any material, substance, product, and/or good(s) of any kind or nature (including but not limited to dust, fumes, vapors, mists, gases, agents, asbestos or toxic substances of any kind) supplied or permitted to exist by [Conrail], and/or arising out of any working condition, of any kind, during my employment by [Conrail]....

I hereby declare and represent that the injuries and illnesses which have been or may be sustained, including mental conditions resulting from asbestos exposure or exposure to any substance, condition or environment or a belief that I was exposed to asbestos, or any substance, condition or environment, are, or may be permanent, and that recovery therefrom is uncertain and indefinite, and that they may cause or lead to other deleterious conditions, including but not limited to cancer, and that in making this Release, it is understood and agreed that I rely wholly upon my own judgment, belief, and knowledge of the nature, extent, effect, duration, and other possible results of said injuries, illnesses, conditions, exposures, and liability therefore,

Page 694

and that the release is made without reliance upon any statement or representation by [Conrail] ... and that possible future conditions, as yet undetected, including but not limited to cancers of any kind, are included.

McKee and Weaver each signed a standard release form entitled "General Release." These releases provide in part:

I, [Plaintiff] hereby release and forever discharge [Conrail] from all claims, demands, actions and causes of action of every kind whatsoever and including but without limitation of the foregoing, all liability for damages, costs, expenses and compensation of any kind, nature or description now existing or which may hereafter arise from or out of injuries and damages, known or unknown, permanent or otherwise, sustained or received by [plaintiff arising from the specific incident being settled].

The release signed by Kaltenbrunner, while similar to those signed by Weaver and McKee, also contains a separate exclusion preserving his claims for carpal tunnel syndrome. That release provides in part:

I, John M. Kaltenbrunner, for the sole consideration of Fifty Thousand Dollars ($50,000.00) ... do hereby release and forever discharge [Conrail] from all claims, demands, actions and causes of action of every kind whatsoever and including, but without limitation of the foregoing, all liability for damages, costs, expenses and all incidents, illnesses, diseases, conditions, injuries and damages, known or unknown, permanent or otherwise....

THIS RELEASE SPECIFICALLY EXCLUDES ANY CLAIMS OR CAUSES OF ACTION THAT JOHN KALTENBRUNNER HAS OR MAY HAVE IN THE NATURE OF OCCUPATIONALLY RELATED CARPAL TUNNEL SYNDROME OR OCCUPATIONALLY RELATED REPETITIVE MOTION INJURIES INVOLVING THE UPPER EXTREMITIES ONLY BUT DOES NOT WAIVE ANY SUBSTANTIVE OR PROCEDURAL DEFENSES THERETO.

D.

Each plaintiff brought suit under FELA, alleging various injuries because of exposure to hazardous and toxic substances during the course of their employment with Conrail. Conrail sought summary judgment, citing the previously executed releases. Contending the releases barred only their claims for back injury and asbestos exposure, plaintiffs raised contract defenses of mutual mistake, fraud, ambiguity and lack of consideration. They also argued the releases were unenforceable under § 5 of FELA, 45 U.S.C.A. § 55 (1986). The district court consolidated the cases and granted Conrail's motions. This appeal followed.

E.

The able district judge observed that the executed releases "contain language which, on its face, relieves the defendant from future liability for any type of damage...

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  • Ratliff v. Norfolk Southern Ry. Co., No. 34156.
    • United States
    • Supreme Court of West Virginia
    • March 12, 2009
    ...in Babbitt v. Norfolk & Western Railway Co., 104 F.3d 89 (6th Cir.1997); and the Third Circuit case of Wicker v. Consolidated Rail Corp., 142 F.3d 690 (3d Cir.1998), similarly explored the parameters of § 5 of the FELA.17 680 S.E.2d 35 Babbitt involved several former employees of Norfolk & ......
  • Blackmon v. Ill. Cent. R.R. Co., No. W2013-01605-COA-R3-CV
    • United States
    • Court of Appeals of Tennessee
    • May 16, 2014
    ...under the FELA using the approach taken by the United States Court of Appeals for the Third Circuit in Wicker v. Consolidated Rail Corp., 142 F.3d 690 (3rd Cir. 1998), in light of the United States Supreme Court's decision in Norfolk & Western Railway v. Ayers, 538 U.S. 135 (2003); and3. Wh......
  • Schneider v. Unum Life Ins. Co. of America, No. 00-CV-1838.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • May 17, 2001
    ...nonmoving party, see United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Wicker v. Consol. Rail Corp., 142 F.3d 690, 696 (3d Cir.1998), "[t]he moving party is `entitled to a judgment as a matter of law' [if] the nonmoving party has failed to make a suffici......
  • Bunnion v. Consolidated Rail Corp., No. Civ.A. 97-4877.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 23, 1999
    ...and make all reasonable inferences from the evidence in the light most favorable to the non-movant. See Wicker v. Consolidated Rail Corp., 142 F.3d 690, 696 (3d Cir.), cert. denied, 525 U.S. 1012, 119 S.Ct. 530, 142 L.Ed.2d 440 The following facts are undisputed. Conrail maintained a benefi......
  • Request a trial to view additional results
75 cases
  • Ratliff v. Norfolk Southern Ry. Co., No. 34156.
    • United States
    • Supreme Court of West Virginia
    • March 12, 2009
    ...in Babbitt v. Norfolk & Western Railway Co., 104 F.3d 89 (6th Cir.1997); and the Third Circuit case of Wicker v. Consolidated Rail Corp., 142 F.3d 690 (3d Cir.1998), similarly explored the parameters of § 5 of the FELA.17 680 S.E.2d 35 Babbitt involved several former employees of Norfolk & ......
  • Blackmon v. Ill. Cent. R.R. Co., No. W2013-01605-COA-R3-CV
    • United States
    • Court of Appeals of Tennessee
    • May 16, 2014
    ...under the FELA using the approach taken by the United States Court of Appeals for the Third Circuit in Wicker v. Consolidated Rail Corp., 142 F.3d 690 (3rd Cir. 1998), in light of the United States Supreme Court's decision in Norfolk & Western Railway v. Ayers, 538 U.S. 135 (2003); and3. Wh......
  • Schneider v. Unum Life Ins. Co. of America, No. 00-CV-1838.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • May 17, 2001
    ...nonmoving party, see United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Wicker v. Consol. Rail Corp., 142 F.3d 690, 696 (3d Cir.1998), "[t]he moving party is `entitled to a judgment as a matter of law' [if] the nonmoving party has failed to make a suffici......
  • Bunnion v. Consolidated Rail Corp., No. Civ.A. 97-4877.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 23, 1999
    ...and make all reasonable inferences from the evidence in the light most favorable to the non-movant. See Wicker v. Consolidated Rail Corp., 142 F.3d 690, 696 (3d Cir.), cert. denied, 525 U.S. 1012, 119 S.Ct. 530, 142 L.Ed.2d 440 The following facts are undisputed. Conrail maintained a benefi......
  • Request a trial to view additional results

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