HINDLE et al v. CONSOLIDATED RAIL CORPORATION et al

Filing 43

ORDER THAT THE MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANTS AMERICAN PREMIER UNDERWRITERS, INC. AND CONSOLIDATED RAIL CORPORATION IS DENIED AS TO PLAINTIFF ROGER LEE HINDLE AND GRANTED AS TO PLAINTIFF MARY LOU HINDLE; ETC.. SIGNED BY HONORABLE GERALD A. MCHUGH ON 9/17/15. 9/17/15 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROGER LEE HINDLE and
MARY LOU HINDLE,
Plaintiffs,
v.
CONSOLIDATED RAIL CORPORATION,
et al.,
Defendants.

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CIVIL ACTION

No. 13-6297

MEMORANDUM ORDER
This 17th

day of September, 2015, upon consideration of the Motion for Summary

Judgment filed by Defendants American Premier Underwriters, Inc. and Consolidated Rail
Corporation, it is hereby ORDERED that the motion is DENIED as to Plaintiff Roger Lee
Hindle and GRANTED as to Plaintiff Mary Lou Hindle for the reasons that follow.

I. Background
Mr. Hindle alleges that he was employed by Railroad Defendants between 1948 and 1990
and was exposed to asbestos as a result of the work he performed during that time. Compl. at 2.
Mr. Hindle previously filed a claim against the Railroad Defendants in 1994 related to “hearing
loss.” Def.’s Br. Supp. Summ. J. Ex. B, at 2. The parties executed an agreement to settle the
claim in 1995 for the sum of $21,000. Def.’s Br. Supp. Summ. J. Ex. C. As part of that
settlement, Mr. Hindle signed a “Release Agreement” discharging the Railroad Defendants
“from any and all losses” which Mr. Hindle “claims to be entitled by reason of any injuries,
known or unknown, foreseen or unforeseen (including but not limited to…cancer(s) of any type,
origin or nature…) which now exist or which may arise in the future as a result of or in any way
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connected with [Mr. Hindle’s] alleged exposure to any condition…including but not limited
to…asbestos.” Def.’s Mem. Supp. Summ. J. Ex. C, at 1.
Mr. Hindle now brings this suit under the Federal Employers' Liability Act, alleging that
his exposure to asbestos while employed by Railroad Defendants has caused him to acquire lung
cancer. Compl. at 2–4. The Railroad Defendants argue that the 1995 release bars the current
claim, thereby entitling them to Summary Judgment. Def.’s Mot. Summ. J., at 2. Plaintiffs
contend that the release is invalid because it violates the Federal Employers' Liability Act. Pl.’s
Mem. Supp. Answer. Mot. Summ. J.

II. Summary Judgment Standard
A moving party is only entitled to summary judgment “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law. “ Fed. R. Civ. P. 56. While considering a motion for summary judgment, a court should
not “resolve factual disputes or make credibility determinations, and must view facts and
inferences in the light most favorable to the party opposing the motion.” Siegel Transfer, Inc. v.
Carrier Exp., Inc., 54 F.3d 1125, 1127 (3d Cir. 1995).

III. Validity of the Release under the FELA
The Federal Employers' Liability Act § 5 provides that any contract which enables a
common carrier to exempt itself from liability under the statute “shall to that extent be void.” 45
U.S.C. § 55. This provision does not preclude common carriers and their employees from
mutually entering into an agreement to settle a particular claim. Callen v. Pennsylvania R. Co.,
332 U.S. 625 (1948). The Supreme Court stated that since settlement “is not a device to exempt

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from liability but is a means of compromising a claimed liability,” parties may settle existing
controversies without violating FELA § 5. Id. at 631.
When, however, an employee is required in the course of settlement to sign a release
waiving rights to litigate future related claims, the validity of such a release is less clear. A
release of future claims may be valid under FELA, provided that (1) it was executed for valid
consideration as part of a settlement, and (2) the scope is limited to risks known to the parties at
the time they sign. Wicker v. Consol. Rail Corp., 142 F.3d 690, 700–01 (3d Cir. 1998).
Defendants argue that “[p]ursuant to the parol evidence rule, the release itself is the only
permissible evidence of its scope and operation.” Def.’s Br. Supp. Summ. J., at 2. However, the
Third Circuit specifically stated in Wicker that “[t]he evaluation of the parties' intent at the time
the agreement was made is an essential element of this inquiry,” and “[w]here…a release merely
details a laundry list of diseases or hazards, the employee may attack that release as boiler plate,
not reflecting his or her intent.” Wicker, 142 F.3d at 700–01. Thus, while the words of the
written release are relevant, the validity of the release does not turn on the writing alone. Id at
701. Wicker found that a release “merely recit[ing] a series of generic hazards to which [the
employees] may have been exposed, rather than specific risks the employees faced during the
course of their employment” did “not demonstrate the parties understood, let alone addressed or
discussed, the scope of the claims being waived.” Id. at 701. The Court acknowledged that “this
is a different (and more difficult) standard for railroad employers than is typical in non-FELA
situations,” but it the Court found it appropriate “given the Supreme Court's pro-employee
construction of the FELA.” Id.
Although the release in question here mentions cancer as one of the risks from exposure
to asbestos, it also purports to release the Railroad Defendants from liability for “any injuries,

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known or unknown, foreseen or unforeseen” as a result of exposure to “any condition, material,
substance, product and/or good(s) of any kind or nature.” Def.’s Br. Supp. Summ. J. Ex. C. This
seems to be the kind of “boiler plate” language reciting “a series of generic hazards” about which
the Wicker court was suspicious. The parties signed the release in connection with a settlement of
Mr. Hindle’s claim for a modest amount of money. Since Plaintiffs dispute Mr. Hindle’s
understanding of the scope of the claims waived in the Release Agreement, and I must view the
facts in the light most favorable to the non-moving party, I find that there is a genuine dispute as
to a material fact. Summary judgment is therefore inappropriate.

IV. Mrs. Hindle’s Loss of Consortium Claim
Plaintiffs also bring a claim for Mrs. Mary Lou Hindle’s loss of consortium. Compl. The
overwhelming weight of authority is that there is no recovery for a derivative loss of consortium
claim in an FELA action. Quitmeyer v. Se. Pa. Transp. Auth., 740 F. Supp. 363, 370 (1990)
(citing Kelsaw v. Union Pac. R.R. Co., 686 F.2d 819, 820 (9th Cir. 1982), cert. denied, 459 U.S.
1207 (1983); Perry v. Metro-North Commuter R.R., 716 F. Supp. 61, 64 (D. Conn. 1989);
Greethurst v. Bethlehem Steel Corp., 380 F. Supp. 638, 639 (N.D. Ind. 1974); Rodzik v. N.Y.
Cent. R.R. Co., 169 F. Supp. 803, 806 (E.D. Mich. 1959)). Because Plaintiffs do not dispute
this, and Defendants are entitled to judgment as a matter of law on this issue, I grant summary
judgment as to Mrs. Hindle’s claim.

/s/ Gerald Austin McHugh
United States District Court Judge

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