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Norfolk Southern Railway Co. v. Tobergte

United States District Court, E.D. Kentucky, Central Division, Lexington

December 10, 2018

KEVIN TOBERGTE, et al., Defendants.



         This matter is before the Court on motions to dismiss filed by Defendants Andrew Hall [DE 8] and Kevin Tobergte. [DE 11.] For the reasons enumerated below, the Defendants' motions are denied.


         On March 18, 2018, southbound Norfolk Southern train 175 collided with northbound Norfolk Southern train M 74 in Georgetown, Kentucky. [DE 1, at 2.] At the time of the collision, Defendants Andrew Hall (conductor) and Kevin Tobergte (locomotive engineer) were operating train 175. [DE 1, at 2.] The impact resulted in significant damage to both locomotives, the derailment of thirteen railcars, and injury to three crew members, including Defendants Hall and Tobergte. [DE 8-1, at 1; DE 14, at 2.]

         Plaintiff Norfolk Southern filed this action on April 5, 2018, alleging negligence on the part of Defendants Hall and Tobergte. [DE 1, at 2.] Norfolk Southern specifically asserts that the Defendants violated various federal regulations and railroad operating rules in failing to stop train 175 ahead of red stop signal CP 72.18. Norfolk Southern seeks compensation for property damages and requests indemnity for any damages sustained by third parties as a result of the collision. [DE 1, at 5.] Defendants Hall and Tobergte now move the Court to dismiss Norfolk Southern's claims against them. [DE 8; 11.]


         Defendants assert that the Federal Employers' Liability Act (“FELA”) requires the dismissal of this lawsuit. Their argument is twofold. First, Defendants contend that Norfolk Southern's lawsuit for property damages precludes them from filing personal injury claims in the venue of their choice. Second, they argue that the railroad's property damage lawsuit is an improper attempt to exempt itself from tort liability. Both assertions require this Court to find that a railroad employer's claim for property damages fits within the purview of FELA Section 5's any “device whatsoever” language. 45 U.S.C. § 55. For reasons stated below, the Court finds that Defendants' arguments fail and Norfolk Southern may proceed on its claims.

         FELA provides the exclusive remedy for railroad workers and their dependents to recover from railroads for injuries caused by the negligence of the railroad or fellow employees. 45 U.S.C. § 51; William P. Murphy, Sidetracking the FELA: The Railroads' Property Damage Claims, 69 Minn. L. Rev. 349, 394 (1985). Conscious of the thousands of railroad injuries or deaths occurring each year, Congress created a federal solution that helped transfer the risk of “doing business” from the employee to the railroad employer. Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 542 (1994). Congress intended FELA to be a “departure from common law principles of liability.” Lewis v. CSX Transp., Inc., 778 F.Supp.2d 821, 834 (S.D. Ohio 2011) (citing Aparicio v. Norfolk & W. Ry. Co., 84 F.3d 803, 807 (6th Cir. 1996)). Accordingly, it eliminated several of the common law defenses that had previously barred railroad workers from prevailing on their tort claims. For example, FELA “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 542. FELA also eliminated the defense of assumption of the risk and abolished a railroad's right to remove an action brought under the statute to federal court. 45 U.S.C. §§ 54, 56; see Tiller v. Atlantic Coast Line R.R., 318 U.S. 54, 62-64 (1943).

         Section 5 of FELA, 45 U.S.C. § 55, provides that “[a]ny contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable a common carrier to exempt itself from any liability created by this chapter, shall to that extent be void . . . .” Congress provided only one exception to the general mandate of Section 5. Specifically, the statute permits common carriers to set off amounts contributed to “any insurance, relief benefit, or indemnity that may have been paid to the injured employee.” 45 U.S.C. § 55. Thus, amounts advanced to injured employees in these listed scenarios are deducted from the employee's eventual personal injury recovery under FELA.

         Defendants first argue that Section 5 precludes any attempt by a railroad employer to dictate where its employees file their FELA claims. Defendants assert that because Norfolk Southern's lawsuit for property damages forces them to bring their FELA claims in this Court, they have been improperly deprived of their choice of venue. In support of their position, Defendants point to the Supreme Court's decision in Boyd v. Grand Truck W. R. Co., 338 U.S. 263 (1949). There, a railroad employee-Boyd-suffered multiple injuries while working for a railroad. Id. Following the accident, the railroad advanced money to Boyd against any future FELA recovery. Id. at 264. Of note, the signed agreement contained a clause requiring Boyd to file his later FELA claims in either Calhoun County Circuit Court or the Eastern District of Michigan. Id. When Boyd filed his FELA suit in Illinois, the railroad sought to enjoin the action based on its executed agreement with Boyd. Id.

         In voiding the agreement between Boyd and the railroad, the Supreme Court observed that a “petitioner's right to bring the suit in any eligible forum is a right of sufficient substantiality to be included within the Congressional mandate of [§] 5 of the Liability Act.” Id. Therefore, the Supreme Court concluded that any contract “restricting the choice of venue” was invalid under FELA. Id. Here, Defendants argue that like the contract struck down in Boyd, the lawsuit filed by Norfolk Southern is an impermissible attempt to restrict the choice of venue for their FELA claims. This is because the lawsuit will result in the Defendants having to bring their FELA claims (in the form of compulsory counterclaims) in this District. See Fed. R. Civ. P. 13(a). Defendants also direct the Court's attention to 28 U.S.C. § 1445-the statute that forbids railroad employers from removing FELA claims to federal court. Defendants assert that Norfolk Southern's lawsuit, in addition to forcing them to litigate their claims in this District, renders the removal provision of 28 U.S.C. § 1445 moot. A result which, according to the Defendants, is contrary to the aims of FELA.

         This Court is unwilling to stretch the holding in Boyd to fit the facts of this case. Boyd dealt with a signed contract limiting the employee's choice of forum for future FELA claims, not a lawsuit. And while the term “contract” is explicitly mentioned in Section 5, nothing in the FELA provision precludes a railroad employer from pursuing its own claims for property damages. For Defendants to succeed on this argument, then, they must convince this Court that Norfolk Southern's lawsuit fits within the purview of Section 5's any “device whatsoever” language. As the Court will explain in greater detail below, the Defendants have failed in this endeavor.

         Defendants next argue that Norfolk Southern's property damage lawsuit constitutes an impermissible attempt to “exempt itself” from FELA liability. Defendants specifically assert that by setting off their personal injury claims with its own claims for property damages, Norfolk Southern has all but guaranteed that it will not have to pay Defendants' FELA claims. This setoff theory derives from the Seventh Circuit's decision in Deering v. Nat'l Maint. & Repair, Inc., 627 F.3d 1039 (7th Cir. 2010). There, a Seventh Circuit panel concluded that a common carrier's counterclaim for property damages qualified as a “device” for Section 5, 45 U.S.C. § 55, purposes. Id. at 1048. Judge Posner specifically reasoned that FELA's legislative history suggested that any setoff claim by a common carrier would be construed as a forbidden “device” under Section 5. Id. at 1044.

         In asking this Court to adopt and expand the reasoning of Deering, Defendants suggest that the Court need not wade into the actual question decided there-whether a counterclaim qualifies as a “device” under FELA Section 5. Instead, Defendants contend that this Court should limit its analysis to whether separate lawsuits for property damages are “devices” within the purview of Section 5. When evaluating the language of Section 5, however, courts ought to treat counterclaims and separate lawsuits as one. If separate lawsuits for property damages qualify as “devices” under Section 5, then surely counterclaims do as well. ...

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