______________________________________________________________________________ 2018 IL App (1st ) 172648

FIRST DIVISION December 17, 2018

No. 1-17-2648 and 1-17-3205 (cons.)

MELVIN AMMONS , Plaintiff/Counterdefendant- Appellee,

v. WISCONSIN CENTRAL, LTD., Defendant/Counterplaintiff- Appellant,

and

CANADIAN NATIONAL RAILWAY COMPANY, LTD.,

Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County , Law Division.

No. 15 L 1324

Honorable John H. Ehrlich, Judge Presiding

DARRIN RILEY, ) Appeal from the Circuit Court of ) Cook County, Law Division. Plaintiff/Counte rdefendant- Appellee, ) ) v. ) No. 16 L 4680 ) WISCONSIN CENTRAL, LTD., ) ) Honorable John H. Ehrlich, Defendant/Counterplaintiff- Appellant. ) Judge Presiding

JU STICE GRIFFIN delivered the judgment of the court, with opinion. Presiding Justice Mikva concurs in the judgment and opinion. Justice Pierce dissents, with opinion.No. 17-2648 and 17-3205 (cons.)

OPINION ¶ 1 If there is a train crash and the railway employee involved files a personal injury claim against his employer for negligence, can the railway

- employer file a counterclaim for negligence for the property damage caused in the crash? That is the question posed by this appeal. ¶ 2 The trial court held that, no, the employer could not pursue such a counterclaim. The trial

court dismissed t he counterclaims filed by the railway, finding that they are barred . A finding was entered under Supreme Court Rule 304(a) that made the order appealable. We agree that the answer to the question posed above is no, and we affirm. ¶ 3 I. BACKGROUND ¶ 4 Plaintiffs Melvin Ammons and Darrin Riley filed these lawsuits against defendant Wisconsin Central, Ltd. for injuries they sustained during the course of their employment. Riley was the locomotive engineer and Ammons was the conductor when the train they were operating struck another train that was stopped ahead on the same track. Both Ammons and Riley filed lawsuits alleging that the railway

- defendant was negligent and violated several rules and regulations that led to th eir injuries. The lawsuits were consolidated below and, for purposes of

this appeal , the issues are the same as to both plaintiffs. ¶ 5 Defendant Wisconsin Central responded to the lawsuit by denying liability and also by filing counterclaims against both emp loyees. The counterclaims are for money damages to redress property damage caused by the accident and for contribution in tort from the plaintiffs for one another’s injuries. In its counterclaims, Wisconsin Central alleges that plaintiffs were negligent; t hat they violated rules and operating practices and that their failure to follow mandated speed limits or apply the emergency brakes before the collision caused significant damage to its property. Both trains involved in the collision were damaged as was the railroad

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track , and environmental clean -up and remediation was required. ¶ 6 Plaintiffs filed a motion to dismiss the counterclaim s arguing that such claims are prohibited under sections 55 and 60 of the Federal Employers Liability Act (FELA) (45 U.S.C. §51 et seq .). Section 55 of the FELA voids “[a]ny contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from liability” under the FELA. 45 U.S.C. § 55 (West 2016). Section 60 vo ids “[a]ny contract, rule, regulation, or device whatsoever, the purpose, intent, or effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee.” 45 U.S.C. § 60 (West 2016). ¶ 7 Plaintiffs argued in their motion to dismiss that the counterclaims asserted by defendant were a “device” that defendant was using to exempt itself from liability for their on -the-job injuries and tha t the counterclaims were being used coercively

— to dissuade injured workers from asserting their FELA claims and providing information about the accident. The trial court dismissed the counterclaims. Defendant appeals pursuant to the trial court’s ruling un der Supreme Court Rule 304(a) that there was no just reason for delaying appeal of its order. ¶ 8 II. ANALYSIS ¶ 9 This appeal presents a pure question of law. Can a railroad counterclaim for property damage in an employee’s personal injury suit where both parties’ alleged harm arises out of the same occurrence and both parties are alleged to have been negligent? The trial court answered in the negative and dismissed the counterclaims. ¶ 10 Plaintiffs’ motion to dismiss the counterclaims was presented as a motion under section

2- 615 of the Code of Civil Procedure (735 ILCS 5/2

- 615 (West 2016)). Defendant argues that it

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is really a section 2

- 619 motion to dismiss because the FELA sections on w hich plaintiffs rely raise “an affirmative matter that seeks to avoid the legal effect of or defeat the claims” (citing

735 ILCS 5/2

- 619(a)(9) (West 2016)). Our supreme court has stated that raising the defense that a claim is barred by a prevailing statut e should be done under section 2

- 619. See Sandholm v.

Kuecker , 2012 IL 111443, ¶ 54. We review the dismissal of a claim under either section 2

- 615 or

section 2 -619 de novo

. Jones v. Brown -Marino , 2017 IL App (1st) 152852, ¶ 18. Defendant does not raise any serious concern over which section of the Code was applied and is not prejudiced. ¶ 11 The case is governed by the Federal Employers Liability Act (FELA) (45 U.S.C. §51 et

seq .). The FELA provides injured railroad workers with thei r exclusive remedy against their employers for injuries resulting from their employers’ negligence. New York Central Railroad Co. v. Winfield , 244 U.S. 147, 151-52 (1917). The FELA was enacted as a response to the special

needs of railroad workers who are exposed daily to the risks inherent in railroad work and are helpless to provide adequately for their own safety. Sinkler v. Missouri Pacific Railroad Co. , 356

U.S. 326, 329 (1958). The purpose of the FELA is to provide fair compensation for injured

railro ad workers by imposing liability upon railroads for injuries to their employees resulting from the railroads’ negligence. Wilson v. CSX Transportation, Inc. , 83 F.3d 742, 745 (6th Cir. 1996). ¶ 12 Both parties have pointed us to compelling case law that support s their respective positions on appeal. Both parties likewise admit, at least tacitly, that there is decisional law from other jurisdictions that supports the opposing outcome. See Russell J. Davis, Federal Procedure, Lawyers Edition , Counterclaims, 11 Fed. Proc., L. Ed. § 30:48 (Nov. 2018 Update). The issue has apparently never been decided by an Illinois court

— at least no such decisions have been reported.

4No. 17-2648 and 17-3205 (cons.)

¶ 13 Sections 55 and 60 of the FELA both serve to void certain contract s , rule s , regulation s, or devices that might be used defensively by a railway in FELA litigation. See 45 U.S.C. §§ 55, 60 (West 2016). Section 55 bars the use of those instruments insofar as they allow the railway to exempt itself from liability , and section 60 bars their use for preventin g employees from furnishing information relating to the injury or death of another employee. Id . The determination of this appeal turns on whether the counterclaims for property damage asserted by the railway

defendant are “devices” as set out in the Act a nd whether their interposition enable s defendant to exempt itself from liability. If the counterclaim is such a device, then it is barred as void by

section 55 of the FELA. ¶ 14 One of the first cases to address the issue and shape the discourse on section 55 i s Cavanaugh v. Western Maryland Railway Company , 729 F.2d 289 (4th Cir. 1984). In Cavanaugh , the court began its analysis by recognizing the common law principle that employers have a right of action against employees for property damages arising out of an employee’s negligence occurring within the scope of employment. Id . at 290

- 91. The court went on to explain that nothing in the FELA explicitly forecloses the railways’ right to redress for property damage caused by a negligent employee. Id . at 291. ¶ 15 In a ddressing section 55 of the FELA (referred to therein as Section 5), the court stated that “[n]either by its express language nor by its legislative history does Section 5 suggest in any way that the ‘device’ at which the proscription of the Section was di rected was intended to

include a counterclaim to recover for the railroad's own losses incurred in connection with the accident out of which the injured employee's claim arose.” Id . The court further stated that a counterclaim by a railway to recoup money for its own property damages is “plainly not an ‘exempt[ion] ... from any liability’ and thus is not a ‘device’ within the contemplation of

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Congress.” Id . (Emphasis in original). Thus, the court held, railways may file counterclaims for negligent damage to t heir property in a personal injury case brought by an employee. Id . at 294

­ 95. One judge dissented. See id . at 295-97. ¶ 16 After the decision in Cavanaugh , the United States Courts of Appeals for the First Circuit, Eighth Circuit, and Fifth Circuit followed suit. See Sprague v. Boston & Maine Corp. , 769 F.2d 26 (1st Cir. 1985); Nordgren v. Burlington Northern Railroad Co. , 101 F.3d 1246 (8th Cir. 1996); Wit hhart v. Otto Candies, L.L.C. , 431 F.3d 840 (5th Cir. 2005). The cases do not really build on Cavanaugh with any significant original reasoning, but adopt its interpretation of

the statute. The basic analytical underpinning of those three cases and Cavanaugh is that counterclaims for property damage do not fit within the meaning of “device” under section 55 of the FELA because they do not serve to exempt the railways from liability. Instead, the railway may still be liable to the injured employee for its ow n negligence, but the employee must answer for his negligence resulting in property damage as well. Those courts held that contracts and devices prohibited under section 55 are those that are “creative agreements or arrangements the railroad might come up with to exempt itself from any liability.” Nordgren , 101 F.3d at 1250 -51. To interpret section 55 as the plaintiffs suggested in those cases and as plaintiff suggests here, those courts reasoned, would be to absolutely immunize railway employees for their own negligence. See , e.g. , Sprague , 769 F.2d at 29. ¶ 17 However, the reasoning and holdings espoused in those cases do not represent a clear consensus. The dissenting judge in Cavanaugh made the compelling argument that “the language of the FELA supports the conclusion that Congress intended to prohibit counterclaims, such as the one filed by the railroad here because the filing of such counterclaims will unfairly coerce or intimidate the injured employee from filing and pursuing his FELA action.” Cavanaugh , 72 9

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F.2d at 295 (Hall, J. dissenting). In the view of the dissenting judge, “the railroads’ counterclaim is a ‘device’ calculated to intimidate and exert economic pressure upon [the employee], to curtail and chill his rights, and ultimately to exempt the rai lroads from liability under the FELA.” Id

. The dissenting judge in Nordgren took the same position. Nordgren , 101 F.3d at 1253 (McMillian, J. dissenting). Heavily relying on William P. Murphy, Sidetracking the FELA: The Railroads' Property Damage Claims, 6 9 Minn. L.Rev. 349 (1985) , Judge McMillian would have ruled that “whether filed as counterclaims or brought as separate actions, [property damage claims brought by the railway] are preempted by the FELA's statutory language and are fundamentally incompatib le with its remedial purpose .” Id . at 1258. ¶ 18 Other courts confronted with the question have found that the result advocated for by the dissenting judge s in Cavanaugh and Nordgren represents the correct and more pragmatic approach to interpreting the FELA. Just a year after Cavanaugh was decided, the United States Court for the District of Colorado broke from the interpretation employed in Cavanaugh . The district court held that “where an injured railroad worker *** asserts personal injury or wrongful death claims under the FELA, a railroad defendant may not counterclaim for damages to its property caused in the occurrence which gave rise to the employee’ s injuries or death.” Yoch v. Burlington Northern Railroad Company , 608 F. Supp. 597, 598 (D. Colo. 1985). Other courts have interpreted sections 55 and 60 of the FELA in the same way. See Deering v. National Maintenance & Repair, Inc. , 627 F.3d 1039, 1047 (7th Cir. 2010); Blanchard v. Union Pacific

Railroad Co

. , No. 15 -0689- DRH, 2016 WL 411019 (S.D. Ill. Feb. 2, 2016); In re National Maintenance & Repair, Inc. , No. 09 -0676- DRH, 2010 WL 456758 (S.D. Ill. Feb. 3, 2010) ; Stack

v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co. , 94 Wash. 2d 155, 615 P.2d 457 (1 980) ( en banc ).

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¶ 19 The basic analytical underpinning of the cases that take exception to allowing counterclaims by a railway for property damage in personal injury cases is that the counterclaims are retaliatory devices calculated to intimidate and exert econ omic pressure on injured employees, curtail their rights when asserting injury claims and supplying information, and, ultimately, exempt the railways from liability under the FELA. See Blanchard , No. 15 -0689­ DRH, 2016 WL 411019, at *3. Being that the FELA is a remedial statute for the benefit of employees, concern has been expressed by the courts rejecting the interpretation used in Cavanaugh that “to allow the railroads’ counterclaim to proceed would pervert the letter and spirit of the FELA and would dest roy the FELA as a viable remedy for injured railroad workers.”

See Cavanaugh , 729 F.2d at 296 (Hall, J. dissenting). ¶ 20 Defendant argues that we are obligated to follow Cavanaugh and the other circuits’ decisions on the issue because they are federal interpretations of federal law that are “controlling” (citing Wilson v. Norfolk & Western Railway Co. , 187 Ill. 2d 369, 373 (1999)). With respect to the interpretation of federal law, we are bound only by the decisions of the United States Supreme Court and the Illinois Supreme Court, not by t he decisi ons of the

lower federal courts. Lakeview Loan Servicing, LLC v. Pendleton , 2015 IL App (1st) 143114, ¶ 33; Travelers Insurance Co. of Illinois v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 302 (2 001) . As to the laws of the United States, state courts are co

- ordinate to lower federal courts and possess the authority, absent a provision for exclusive federal jurisdiction, to render bin di ng judicial decisions that rest on their own interpretations of federal law. See Arizonans for Offi cial English v. Arizona, 520 U.S. 43, 58 n. 11 (1997). To be sure, federal courts’ interpretation s of

federal laws are entitled to defe rence ; and uniformit y of decision is an important consideration

when state courts are interpret ing federal statutes. State Bank of Cherry v. CGB Enterprises, Inc. ,

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2013 IL 113836, ¶ 35. But on the issue presented here, there is already not “uniformity of decision” among federal courts. ¶ 21 In our judgment, prohibiting railways from interposing counterclai ms for property damage in response to an employee’s personal inju ry suit is the correct interpretation of sections 55 and 60 of the FELA and is the interpretation most consistent with the FELA’s overarching goal of providing a remedy to employees injured while participating in this dangerous occupation. Allowing counterclaims for property damage suffered by the railway as a response to a personal injury action defeats the remedial purpos e of the FELA. The property damage counterclaims are, in practice, liability

- limiting or liability

- exempting devices inconsistent with

the FELA. We find the logic and analysis of the dissents in Cavanaugh and Nordgren and the Deering court’s discussion of the issue to be most persuasive. ¶ 22 The FELA is meant to impose liability upon railroads for injuries to their employe es resulting from the railroads’ negligence because of the special needs of railroad workers who are daily exposed to the risks inherent in railroad work and are helpless to provide adequately for their own safety. Cavanaugh , 729 F.2d at 295

- 96 (Hall, J. dissenting). If a railway employee has an accident operating the company’s machinery that is no doubt exorbitantly expensive, the costs will frequently be more than the cost of the harm suffered by the employee. See Deering , 627

F.3d at 1044

- 45. The nullification of a personal injury claim would thus obtain in such cases even where the injured employee proves that negligence on the part of the railway caused his injury. ¶ 23 It is clear that if defendant was trying to accomplish the same ends as desired here, but by contract, its action would be prohibited. Defendant makes no persuasive case as to why it should

be able to do so with a counterclaim in tort instead. If the railway required employees to sign a

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contract saying that any personal injury award would be cancelled or set off by the costs incurred by the railway in the occurrence leading to the injury, it would be void . Co ngress meant to prohibit the conduct of railways exempting themselves from liability for personal injuries. Allowing railways to do by tort what Congress expressly forbids them from doing by contract or other means is an illogical interpretation and result

. ¶ 24 The statute casts a broad net for the type of instruments it prohibits

— “any contract, rule, regulation, or device whatsoever.” See Stack , 94 Wash. 2d at 161 (a broad interpretation of “device” is “supported both by the purpose o f the act and by case aut hority”); Deering , 627 F.3d

a t 1044 (statute’s tacking of “whatsoever” to “any device” is a clue that “device” is intended as a

catch

- all)

. A “device” is “a plan, procedure, technique” ( Merriam

- Webster's Collegiate Dictionary 317 (1 0 th ed. 1998) ), “a method that is used to produce a particular effect” ( Cambridge Dictionary , American English, dictionary.cambridge.org (last visited December 5, 2018)). Counterclaims like those interposed here are legal “devices” that “ enable [a] common carrier to exempt i tself from liability ” in their employees’ personal injury actions. A counterclaim for property damage caused in the same occurrence that caused a n emplo yee’s injury is a setoff or its functional equivalent, regardless of what the railway calls it. It is a legal device that enables a railway to limit or exempt itself from liability to its employee for its own negligence

. And it is a pp aren t that, in practice, railways use counterclaims for property damage as setoffs against personal injury claims. See Cavanaugh , 729 F.2d at 295 n. 1 (Hall, J. dissenting); Deering , 627 F. 3d 1043. The counterclaims are “creative arrangements” that allow railways to circumvent FELA liability. ¶ 25 The parties argue about what level of influence the Court of Appeals for the Seventh

Circuit’s decision in Deering should have on this case. In Deering , the co urt spe cifically stated

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that the issue presented in this case was not before it and that the court would “leave for a future day” whether property d amage claims by an employer should be permitted in a n employee’s personal injury FELA case. Deering , 627 F. 3d at 1048. Nevertheless, the clear statement by the

court in Deering is a judicial dictum. A “judicial dictum” is “an expression of opinion upon a point in a case argued by counsel and deliberately passed upon by the court, though not essential to the disposition of the cause.” Cates v. Cates , 156 Ill. 2d 76, 80 (1993). The Deering court

undertook a wide

- ranging analysis of the issue and persuasively made the case that secti on 55 o f the FELA should be interpret ed to b ar counterclaims such as the one interposed here. Deering , 627 F. 3d at 1045

- 46. While the court was mindful that the case before it did not require that the question be answered, the cou rt deliberately delved into the issue, went through a significant analysis of it, and made no secret what the determination would and should be. See Id . at 1044. ¶ 26 While the courts following Cavanaugh have expressed apprehension that a decision barring cou nterclaims would immunize employees from their own negligence, the result that those decisions support can effectively immunize railways from their negligence towards their own employees

. The rail ways are in a far better position to bear th e collective bur den of loss from their employees ’ negligence than the employees are to bear the personal burden of loss from the railway’s negligence

. The employee already can recover only those damages attributable to the railway’s negligence , and comparative negligence is available to the railway as a defense in mitigation

. See Wilson v. Norfolk & W estern Railway Co. , 187 Ill. 2d 369, 373 (1999). The F ELA was enacted to protect railway employees against oppressive maneuvers that prevent them from getting redress for work place injuries. See Villa v. Burlington N orthern &

Santa Fe R ailway Co. , 397 F.3d 1041, 1045 (8th Cir. 2005) (FELA is a broad remedial statute and is intended by Congress to protect railroad employees by doing away with certain defenses)

.

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The FELA is the e xclusive remedy for railway employees against their employe r, but that exclusive remedy is subject to essentially bei ng abrogated by a property damage counterclaim. The broad remedial endeavors of the FELA demand that a plaintiff’s personal injury claim

sh ould not be subject to easy defeat. ¶ 27 Section 55 voids any device that “ enables ” a railway to exempt itself from FELA liability. 45 U.S.C. § 55 (West 2016) . That means that an exemption from liability by way of counterclaim does not have to be the actual result in every case. Property damage counterclaims plainly can be used to enable the railroad to eliminate an employee’s personal injury claim and extinguish a railway ’s F ELA liability. And common sense and pragmatic business practices tell us not only that the counterclaims can be used to exempt the railway from FELA liability, but

that the counterclaims are used for that purpose and maybe solely for that purpose. ¶ 28 Injured railway workers can not pursue any right of redress in a workers’ compensation action or in a common law negligence action

— the FELA is all they have. Sutherland v. Norfolk Southern Railway Co. , 356 Ill. App. 3d 620, 622 (2005) ( as a railroad employee, the plaintiff was

covere d by the FELA, which provides the sole remedy for workplace injuries to the exclusion of

the Workers’ Compensation Act ). A llowing a negligent railway to, for practical purposes, vanquish any liability to an injured employee by offsetting the claim with the cost of its damaged equipment is an unacceptable result at odds with the remedial purpose of the FELA

— to f airly compensate employees injured by a negligent employer

. ¶ 29 We also find persuasive to our holding the fact that a railway

- employer’s interposition o f counterclaims in a personal injury action has the effect of preventing and discouraging employees from cooperating in injury and death investigations. Section 60 of the FELA prohibits the use of legal devices for just that purpose. As the dissent in Cava naugh noted, “[a]s long as a

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railroad is permitted to hold the threat of a counterclaim for property damage over the heads of those employees who have the misfortune to be involved in a railroad accident, those witnesses, whether injured or not, may well b e reluctant to participate during the initial investigation by the railroad, at hearings held by the National Transportation Safety Board, or at the trial of an FELA action maintained by a fellow employee.” Cavanaugh , 729 F.2d at 296 (Hall, J. dissenting); see also In re National Maintenance & Repair, Inc. , No. 09 -0676- DRH, 2010 WL 456758, at *3 (S.D. Ill. Feb. 3, 2010), aff'd sub nom. Deering , 627 F.3d 1039 (7th Cir. 2010) (allowing counterclaims for property damage impermissibly chills the filing of personal injury claims and

th e voluntary furnishing of information regarding such claims). ¶ 30 The allowance of c ounterclaims for property damage not only intimidates potential plaintiffs from filing personal injury claims, but also serves as a warning to other employees that might not have been injured , but that might be accused of being negligent, not to participate . The threat of retaliatory suits and potential silencing of employees is what sections 55 and 60 of FELA were enacted to protect against. Stack , 94 Wash. 2d at 160 (“the crew’s testimony will be affected because they will be reluctant to testify candidly when their own pocketbook is in jeopardy.”). The counterclaim asserted in this case is prohibited by sections 55 and 60 of the FELA and was properly dismissed. ¶ 31 III. CONCLUSION ¶ 32 Accordingly, we affirm

. ¶ 33 Affirmed

.

¶ 34 JUSTICE PIERCE, dissenting: ¶ 35 As the majority notes, this case presents an issue of first impression in this state: whether under the FELA a railroad may counterclaim for property damage in a railroad employee’s

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personal injury suit where both parties’ claims sound in negligence. The r easoning in Cavanaugh , which was adopted in Sprauge , Nordgren , and again in Withhart , is sound. In my view, those are the better

- reasoned decisions, and I would follow those cases in holding that a railroad’s counterclaim for property damages is not a “device” used to “exempt” a railroad from “liability” under the FELA. To conclude otherwise ignores that defendant’s counterclaim does not seek to exempt defendant from liability for plaintiffs’ alleged injuries. “Exempt” means “free or released from a duty or liability to which others are held.” Black’s Law Dictionary 593 (7th Ed. 1999). Defendant’s counterclaim for property damages does not seek to free or release defendant from any duty or liability to plaintiffs for their personal injuries. I respectfully d issent. ¶ 36 The majority concludes that there is no “clear consensus” on this issue among the courts that have addressed it, and elects to follow an interpretation of the FELA that has not been adopted by any federal circuit court of appeals. The four federal circuit courts that have addressed this issue have spoken with a single voice: a railroad’s counterclaim for property damages in an employee’s negligence suit for personal injury is not a “device” within the meaning of sections 5 and 10 of the FELA. The majority here adopts an expansive view of the

term “device” that is not well

- grounded in the text of the FELA or a public policy that favors an injured party’s right to seek damages for another’s negligence. ¶ 37 In Cavanaugh , the Fifth Circuit Court of Appeals scoffed at the notion that the FELA should be read to effectively immunize a negligent employee from liability for the employee’s negligent conduct that injures their employer. Cavanaugh , 729 F. 2d at 291; see also Sprague , 769 F. 2d at 29 (agreeing with Cavanaugh that denying the employer the right to seek recovery would “clothe the employee” with absolute immunity). The court of appeals in Cavanaugh

examined section 5 of the FELA and observed

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“Neither by its express language nor by its legislative history does Section 5 suggest in any way that the ‘device’ at which the proscription of the Section was

directed was intended to include a counterclaim to recover for the railroad’s own losses incurred in connection with the accident out of which the injured employee’s claim arose.” Cavanaugh , 729 F. 2d at 292. Cavanaugh went on to state that the term “device” found within section 5 is a “contract, rule, regulation or device whatsoever, the purpose or intent of which shall be to enable any common

carrier to exempt itself from any liability created by this chapter .” (Emphasis in original.) Id. I agree with Cavanaugh ’s sensible conclusion that a “counterclaim by the railroad for its own damages is plainly not an ‘exemption ... from any liability’ and is thus not a ‘device’ within the contemplation of Congress.” Id. Furthermore, Cavanaugh found no support in the legislative history for the notion that employees should be immunized from property damage claims, but

instead found an intent to void the railroads’ use o f unilateral exemptions of liability. Id. at 292

­ 93.

¶ 38 Likewise, in Nordgren , the Eighth Circuit Court of Appeals observed that “the phrase ‘any device whatsoever’ is informed by the terms preceding it

— ‘contract,’ ‘rule,’ and ‘regulation.’ All of these terms refer to the legal instruments railroads used prior to the enactment of FELA to exempt themselves from liability.” Nordgren , 101 F. 3d at 1250 -51. Nordgren found

that the term “ ‘any device whatsoever’ refers only to any other creative agreement or

arrang ements the railroad might come up with to exempt itself from liability” ( id. at 1251), but did not “encompass a railroad’s common

- law based counterclaim for property damages” ( id. ). Furthermore, Nordgren observed that “ the law at the time FELA was enacted did not preclude railroads from recovering property damages,” and that Congress “never purported to affect the

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railroads’ recovery.” Id. at 1253. ¶ 39 Here, the majority reaches the opposite result relying on cases that adopt a “more pragmatic approach to interpreting the FELA.” Supra ¶ 18. But the majority’s concerns that a railroad will use property damage counterclaims as “retaliatory devices calculated to intimidate and exert economic pressure on injured employees, curtail their rights when asserting injury claims and supplying information, and ultimately, exempt the railways from liability under the FELA” ( supra ¶ 19), is speculative, since there is no evidence that railroads possess such an animus, and is premised on a misunderstanding of how defendant’s co unterclaim affects its potential liability for plaintiffs’ injuries, which is zero. Furthermore, we should not assume that Congress implicitly intended to limit the railroads’ right to seek property damages where

railroads had a right to do so before the F ELA and the plain language of the FELA only addresses the imposition of unilateral exemptions of liability

. ¶ 40 The majority opinion firmly closes the door on the ability of defendant or any other employer governed by the FELA to recover damages against an emp loyee for the employee’s negligent conduct. It would produce the absurd result that an uninjured employee that negligently causes property damage would be liable for damages but an injured employee that negligently causes damages would be immune from a property damage claim. Because I do not believe that to be a proper interpretation of the FELA, I would follow the decisions from the First, Fourth, Fifth, and Eighth circuits, the only federal circuits to consider the issue, as controlling law on this

issue. Cavanaugh and Nordgren are controlling decisions within Fourth and Eighth circuits notwithstanding the dissent filed in each of those cases and the divergent federal district court decisions are not controlling law within those circuits. I would reverse the judgment of the circuit court and permit defendant to pursue its counterclaims for property damages.

16