1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-29-1998

Wicker v. Consolidated Rail

Precedential or Non-Precedential:

Docket 97-3034

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Recommended Citation

"Wicker v. Consolidated Rail" (1998). 1998 Decisions. Paper 95.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/95
Filed April 29, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Nos. 97-3034, 97-3035, 97-3036 

97-3037 and 97-3038 

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 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. Civil Action Nos. 93-cv-00041J, 94-cv-00015J 

94-cv-00036J, 94-cv-00132J and 95-cv-00105J) 

Argued September 23, 1997 

Before: BECKER, Chief Judge, SCIRICA and McKEE, 

Circuit Judges 

(Filed: April 29, 1998) 
 JAMES M. FLOOD, ESQUIRE 

 (ARGUED) 

 HOWARD S. STEVENS, ESQUIRE 

 Stevens & Johnson 

 740 Hamilton Mall 

 Allentown, Pennsylvania 18101 

 Attorneys for Appellants 

 STEPHEN M. HOUGHTON, ESQUIRE 

 (ARGUED) 

 PETER T. STINSON, ESQUIRE 

 Dickie, McCamey & Chilcote 

 Two PPG Place, Suite 400 

 Pittsburgh, Pennsylvania 15222-5402 

 Attorneys for Appellee 

OPINION OF THE COURT 

SCIRICA, Circuit Judge. 

The issue on appeal is whether S 5 of the Federal 

Employers' Liability Act1 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 

_________________________________________________________________ 

1. Section 5 of FELA provides: 

 Any contract, rule, regulation, or device whatsoever, the purpose 

or 

 intent of which shall be to enable the common carrier to exempt 

 itself from any liability created by this chapter, shall to that 

extent 

 be void . . . . 

45 U.S.C. S 55 (1986). 

 2 
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 symptoms existed at 

the time he executed the release, many are recent 

 3 
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 hefirst 

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 

 4 
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, and that the release is made without reliance 

 5 
 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. 

 6 
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 underS 5 of 

FELA, 45 U.S.C.A. S 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 or 

harm suffered by the plaintiffs while in the railroad's 

employ." Edward L. Wicker, Sr., et al. v. Consolidated Rail 

Corporation, Civ. Nos. 93-41J, 94-15J, 94-36J, 94-132J, 

95-105J (W.D. Pa. December 31, 1996) ("Wicker") at 6. 

Finding the language of the releases unambiguous and no 

evidence of mutual mistake, the court rejected plaintiffs' 

contract defenses. Because plaintiffs were represented by 

counsel and the releases were negotiated at arm's length, 

the court also rejected plaintiffs' argument that these were 

contracts of adhesion. 

Addressing plaintiffs' FELA defense, the court 

acknowledged the split of authority on the enforceability of 

broadly written releases. It then turned to its recent 

decision in Wicker v. Conrail, Civ. No. 94-16J (December 

19, 1996) ("Wicker II"), which "accorded great weight to the 

plaintiff 's continuing employment with Conrail after 

settlement of his [original claim]." Wicker at 18. By 

contrast, each plaintiff here negotiated his release in the 

context of terminating, or already having terminated, his 

employment with Conrail. According to the court, these 

releases "served the beneficial purpose of adjusting, and 

providing finality to, all claims between the parties." Id. 

 7 
The district court also looked to Wilson v. CSX Transp. 

Inc., Civ. No. 91-1398, slip op., (W.D. Pa. March 9, 1994), 

in which plaintiff sued his employer for shoulder injuries 

sustained in a work-related accident. Through settlement, 

plaintiff released his employer from "all claims, suits, [etc.] 

. . . which the [plaintiff] has or might have against [the 

railroad] . . . for any and all injuries . . . occurring prior to 

the date of [the release], including but not limited to 

injuries arising out of or in any way connected with[the 

shoulder injury]." Wilson, slip op. at 4. The term "injury" 

was defined in the release to include both known and 

unknown injuries. Several years later, plaintiff sued for an 

occupational hearing loss, arguing the claim was not barred 

because the release related only to claims arising from the 

injury to his shoulder, and the hearing loss did not accrue 

until after the settlement was signed. Granting the

railroad's motion for summary judgment, the court noted 

the release specifically encompassed all injuries occurring 

prior to the date of settlement, regardless of whether 

plaintiff was aware of them. The Wilson court also noted the 

general release at issue "indicates that the parties were 

settling all known and unknown claims of injury . . . [and] 

that the parties were severing their relationship for all time 

and defendant was `buying its peace' with plaintiff as to any 

such injuries." Wilson at 7. 

In addition, the district court here reasoned that the 

economic motivation behind negotiating a broadly worded 

release is consistent with the congressional purposes of 

FELA. The court found that persons who sign general

releases tend to receive larger settlements, and that 

defendants are willing to pay higher sums to settle claims 

under a general release.2 This, together with plaintiffs' 

representation by counsel led the court to believe that 

enforcement of the releases was "in the interest of both 

parties, when viewed from the time of the negotiating of the 

agreement." Wicker at 20. 

_________________________________________________________________ 

2. "Broadly worded releases negotiated with departing or retired 

employees, as a matter of economic analysis, do not permit a FELA 

employer to exempt itself from future liability . . . [because] the liable 

employer under such a release pays the full discounted value of the 

known and unknown injuries of the settling parties." Wicker at 20. 

 8 
F. 

On appeal, plaintiffs have abandoned their arguments of 

mutual mistake, fraud, ambiguity, and lack of 

consideration. Their appeal relies entirely on the assertion 

that their executed general releases are void under S 5 of 

FELA, 45 U.S.C.A. S 55 (1986). Plaintiffs contend they were 

unaware of either the injuries or the cause of those injuries 

at the time the releases were executed, and offer supporting 

affidavits from the attorneys who represented them at the 

time. The releases are invalid, they claim, because "[u]nder 

FELA a release is only valid if it compromises a claimed 

liability." Pls.' Brief at 11. Consequently, S 5 of FELA 

"prevents workers from releasing claims which they do not 

know existed at the time they executed a release for a 

separate known claim." Id. Plaintiffs maintain a general 

release of unknown and future claims does not bar later 

claims for injuries unknown at the time the release was 

executed. Id. at 13 (citing Forry, Inc. v. Neundorfer, Inc., 837 

F.2d 259 (6th Cir. 1988)); see also Lanham v CSX Transp. 

Inc., 1995 WL 368171 (E.D. Pa. June 21, 1995)(finding that 

a general release executed in settlement of an employee's 

claim for a back injury did not bar a subsequent claim for 

an occupational disease of which the employee was 

unaware when he executed the release). 

Conrail relies on the district court's analysis, especially 

the distinction between current and former employees. 

Because the releases were executed as part of a settlement 

of existing claims and the termination of employment, 

Conrail contends they were meant to put to rest all present 

and future claims. Conrail also contends plaintiffs' asserted 

symptoms or injuries existed before they executed the 

releases. Thus, even if the releases cover only those injuries 

manifest at the time of settlement, the "new" injuries were 

nonetheless released because plaintiffs were on notice of a 

potential health problem at that time. 

G. 

The district court had jurisdiction under 28 U.S.C.

S 1331 and 45 U.S.C. S 51, as well as supplemental 

jurisdiction under 28 U.S.C. S 1367. We have jurisdiction 

under 28 U.S.C. S 1291. 

 9 
We exercise plenary review of a grant of summary 

judgment. Dyszel v. Marks, 6 F.3d 116, 123 (3d Cir. 1993). 

We apply the same test as the district court. Berner Int'l 

Corp. v. Mars Sales Co., 987 F.2d 975, 978 (3d Cir. 1993). 

In so doing, we must view all evidence and draw all

inferences therefrom in the light most favorable to the nonmoving party. Id. In this case, the party attacking the 

validity of the release bears the burden of proof as to its 

invalidity. Callen v. Pennsylvania R. Co., 332 U.S. 625, 630 

(1948). 

II. 

A. 

In this appeal we must interpret the scope of S 5 of FELA, 

and in particular, whether its bar of "[a]ny contract . . . the 

purpose of which shall be to enable [an employer] to exempt 

itself" from FELA includes a general release of claims 

executed by an employee as part of a settlement. A brief 

review of the history of FELA and the accompanying case 

law is warranted. 

In 1908, FELA "was enacted because the Congress was

dissatisfied with the common-law duty of the master to his 

servant." Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 

507 (1957). Congress sought to "ensure that the employees' 

suits would not be defeated by the same devices which 

Congress perceived to have been used in the immediate 

past by the railroads to avoid liability." Damron v. Norfolk & 

W. Ry. Co., 925 F. Supp. 520, 523 (N.D. Ohio 1995). Thus, 

FELA was designed "to enable injured railroad workers to 

overcome a number of traditional defenses to tort liability 

that had previously operated to bar their actions." Lewy v. 

Southern Pac. Transp. Co., 799 F.2d 1281, 1287 (9th Cir. 

1986). For example, the Act abolished the doctrine of 

assumption of risk, applied comparative rather than

contributory negligence, and sought to prevent employers 

from contracting out of FELA liability. See S. Rep. 460, 

60th Cong., 1st Sess. 2-3 (1908). With respect to the last of 

these, Congress noted that many railroads "insist[ed] on a 

contract with their employees, discharging the company 

 10 
from liability for personal injuries." H.R. Rep. 1386, 60th 

Cong. 1st Sess. 6 (1908). Section 5 was passed specifically 

to remedy this problem. 

B. 

Shortly after FELA's adoption, the Supreme Court began 

to establish the boundaries of S 5. The Court upheld the 

validity of S 5 in Mondou v. New York, N.H. & H.R. Co., 223 

U.S. 1, 52 (1912), noting that "if Congress possesses the 

power to impose liability . . . it also possesses the power to 

insure its efficacy by prohibiting any contract, rule, 

regulation or device in evasion of it." The same year, the 

Court examined S 5 in the context of a relief fund 

agreement by which acceptance of benefits constituted a 

release of all claims against the employer. Philadelphia, B. 

& W.R. Co. v. Schubert, 224 U.S. 603 (1912). Reasoning 

that this stipulation was simply a way for the employer to 

avoid liability by contract, and that it fell within the scope 

of S 5, the court held the release violated FELA. Id. at 612. 

Although Schubert addressed only agreements signed 

before injury, the Court later extended the bar to releases 

signed after injury. Duncan v. Thompson, 315 U.S. 1, 5-6 

(1942). In Duncan, the injured employee accepted $600 to 

cover his living expenses, agreeing to return the money in 

the event he brought suit against the employer. When the 

employee filed a claim without first refunding the $600, the 

railroad raised the contract as a defense. Focusing on 

whether "the purpose or intent" of the agreement was to 

enable the employer "to exempt itself from any liability" 

under FELA, the Court noted that, because of Duncan's 

financial condition, requiring the refund before commencing 

suit was tantamount to depriving him of the right tofile 

suit, thereby exempting the employer from liability. Id. at 7. 

It also noted the $600 was specifically earmarked for living 

expenses, and the agreement was a form commonly used to 

benefit employees until final settlement was negotiated. Id. 

at 7-8. Consequently, it declined to discuss the validity of 

a release signed as part of a bona fide settlement, finding 

that the "very language of the agreement indicates it is not 

a compromise and settlement." Id. 

 11 
The Court addressed that issue in Callen v. Pennsylvania 

R. Co., 332 U.S. 625 (1948), where a railroad employee 

brought a FELA action after injuring his back in a workrelated accident. As a defense, the railroad pleaded a 

general release executed by the employee, signed in

exchange for $250, that relieved the railroad of "all claims 

and demands which [plaintiff] can or may have against the 

said Pennsylvania Railroad Co. for or by reason of personal 

injuries sustained." Callen, 332 U.S. at 626. Plaintiff 

claimed that when he signed the release he was unaware 

he had a permanent injury. Although the primary issue on 

appeal was whether the trial judge had improperly 

withdrawn the question of the release's validity from the jury,3 

the Court also addressed whether the release violated S 5 of 

FELA. Rejecting this argument, the Court said: 

 It is obvious that a release is not a device to exempt 

 from liability but is a means of compromising a claimed 

 liability and to that extent recognizing its possibility. 

 Where controversies exist as to whether there is 

 liability, and if so for how much, Congress has not said 

 that parties may not settle their claims without 

 litigation. 

Id. at 631. The language is clear. Releases are not per se 

invalid under FELA. Although the Court did not explain 

what will qualify as a "compromis[e] [of] a claimed liability" 

it did say that parties may settle "[w]here controversies 

exist as to whether there is liability, and if so for how 

much." The explicit requirement is that a controversy must 

exist. 

The Court provided some clarification in Boyd v. Grand 

_________________________________________________________________ 

3. The Supreme Court held that the validity of the release was a jury 

question and that the trial judge's misleading instructions had 

effectively 

withdrawn the issue from the jury's consideration. The Court also 

rejected the argument that the burden of proof with respect to validity 

should be shifted to the railroad, noting that, regardless of the 

potential 

inequality of bargaining power between the parties, such a change was 

appropriately left to the discretion of Congress. Thus, until Congress 

"adopt[s] a policy depriving settlements of litigation of their prima 

facie 

validity . . . the releases of railroad employees stand on the same basis 

as the releases of others." Id. at 630. 

 12 
Trunk W.R. Co., 338 U.S. 263, 266 (1949), noting that its 

Callen decision "distinguished a full compromise enabling 

the parties to settle their dispute without litigation, which 

we held did not contravene the Act, from a device which 

obstructs the right of the Liability Act plaintiff to secure the 

maximum recovery if he should elect judicial trial of his 

cause." In Boyd, the railroad advancedfifty dollars to its 

employee twice during the month following his work-related 

injury. On each occasion, the employee signed an 

agreement which provided that, if he elected to sue, "such 

suit shall be commenced within the county or district 

where I resided at the time my injuries were sustained, or 

in the county or district where my injuries were sustained 

and not elsewhere." Id. at 264. The employee brought his 

claim in a different venue and the employer sued to enjoin 

the action. Examining the venue provision contained in S 6 

of FELA,4 the Supreme Court held"the right to select the 

forum granted in s. 6 is a substantial right." Id. at 266. 

Consequently, "contracts limiting the choice of venue" 

obstruct a FELA plaintiff's fundamental right of recovery, 

and are therefore "void as conflicting with[S 5 of] the 

[Federal Employers'] Liability Act."5 Id. at 265. 

Despite this ruling, the proper application and reach of 

S 5 remains unclear. One reason may be that the Court's 

decisions rejecting general releases as bars to subsequent 

claims have been fact-driven, and consequently do not 

provide a generally applicable rule of law. Although the 

Supreme Court in Callen refused to void the releases 

_________________________________________________________________ 

4. Section 6 of FELA provides, in part: 

 Under this chapter an action may be brought in a district court of 

 the United States, in the district of the residence of the 

defendant, 

 or in which the cause of action arose, or in which the defendant 

 shall be doing business at the time of commencing such action. 

45 U.S.C. S 56 (1986). 

5. In addition to voiding general releases of FELA claims under S 5, the 

Court has also held such releases void on the grounds of fraud, Dice v. 

Akron, Canton & Youngstown R. Co., 342 U.S. 359, 362 (1952), and lack 

of consideration, Maynard v. Durham & S. Ry. Co., 365 U.S. 160 (1961). 

Neither holding, however, provides any guidance as to the proper 

application of S 5. 

 13 
executed in compromise of an employee's claims, the Court 

has not had occasion to explain how wide a net its ruling 

casts. Nonetheless, the case law provides us with some 

rough guidelines. 

C. 

To begin with, Schubert underscores that S 5 of FELA was 

designed to prevent employers from making the waiver of 

claims a quid pro quo of the employment contract. Unlike 

this case, Schubert dealt with a release that was signed 

before the employee was injured, clearly the type of 

contractual "shield" FELA was designed to prevent. 

Nonetheless, Schubert makes clear that Congress intended 

to prevent employers from depriving their employees of the 

right to recover for job-related injuries. 

Duncan and Callen are also instructive. In Duncan the 

Court began shaping the requirements of S 5, concluding 

that the release was not part of a compromise and 

settlement. Callen was more specific and explicitly

permitted releases "where controversies exist." Of course 

the release in Callen addressed only a specific injury. 

Boyd holds that a FELA plaintiff may not waive his 

fundamental rights under the statute.6 But Boyd relied on 

the specific venue provision in S 6 of FELA to support its 

conclusion that S 5 prohibited a waiver of venue. As noted, 

there is no specific section of the statute which addresses 

the rights of FELA plaintiffs to settle their claims. 

_________________________________________________________________ 

6. The Court has held, in the context of the Fair Labor Standards Act, 

that an employee cannot waive certain statutorily conferred rights. See 

Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 704 (1945) (noting that a 

"statutory right conferred on a private party, but affecting the public 

interest, may not be waived or released if such waiver or release 

contravenes the statutory policy" and thus the plaintiffs could not waive 

minimum or overtime wages or liquidated damages); D.A. Schulte, Inc. v. 

Gangi, 328 U.S. 108 (1946) (holding that an employee could not waive 

his right to liquidated damage, even if the release is made in settlement 

of a bona fide dispute as to coverage). While it is arguable that this is 

analogous to an employee waiving his fundamental right to file a FELA 

claim, making a general release invalid, the Court's decision in Callen 

would appear to undercut this reasoning. 

 14 
In South Buffalo Ry. Co. v. Ahern, 344 U.S. 367 (1953), 

the Court upheld a provision of the New York Workers' 

Compensation Law that effectively allowed an employee to 

waive its FELA rights. Plaintiff had been awarded $28 per 

week under the New York Workers' Compensation Law for 

injuries sustained while employed as a switchman. Two 

years later, after the employee died -- and his remedy 

under FELA had lapsed -- the employer attacked the award 

on the ground that the Workers' Compensation Board did 

not have jurisdiction. According to the employer, S 113 of 

the statute, which granted the Board jurisdiction to hear 

claims for injuries "subject to the admiralty or other federal 

laws," was unconstitutional as applied because permitting 

the Board to hear claims covered by FELA constituted a 

waiver of an employee's FELA rights. The Supreme Court 

disagreed. Noting that S 113 was permissive, and did not 

coerce an employee to give up its federal rights, the Court 

held that S 113 of the New York Workers' Compensation 

Law did not constitute an impermissible waiver under S 5 of 

FELA.7 

The New York statute at issue in Ahern -- allowing waiver 

of an employee's FELA claims when he or she receives 

compensation under the Workers' Compensation Law-- is 

arguably no different than a private agreement to waive 

such claims as part of a settlement between the employee 

and the employer. But the facts of the case counsel against 

extracting such a clearly defined rule of law. Unlike 

plaintiffs here, who have filed claims unrelated to their 

previous injuries, the employee in Ahern received benefits 

for injuries received in a specific accident only. 

_________________________________________________________________ 

7. The Court reviewed another attack on a FELA release in its per curiam 

decision in Hogue v. Southern R. Co, 390 U.S. 516 (1968). The issue in 

that case was whether a plaintiff who attacks the validity of a previously 

executed release must return the consideration paid for that release 

prior to commencing his FELA action. While the Court did not find it 

necessary to "decide whether the release here involved violated s. 5," it 

noted that "a rule which required a refund as a prerequisite to 

institution of suit would be `wholly incongruous with the general policy 

of the Act to give railroad employees a right to recover just compensation 

for injuries negligently inflicted by their employers.' " Id. at 518 

(quoting 

Dice v. Akron, Canton & Youngstown R. Co., 342 U.S. 359, 362 (1952)). 

 15 
Consequently, Ahern is closer to Callen, and while it 

supports the notion that releases are not per se invalid 

under FELA, it does not shed much light on the validity of 

the general releases at issue here. To the extent there is a 

key to understanding this question, it may be found in 

Callen where the court said parties may settle "[w]here 

controversies exist as to whether there is liability, and if so 

for how much." 

D. 

Not surprisingly, lower courts that have addressed this 

issue have disagreed on the proper interpretation of S 5. 

Some courts, including the district court here, have held 

that general releases do not contravene the purposes of 

FELA and may bar a subsequent claim. See, e.g., Wilson v. 

CSX Transp., Inc., Civil Action No. 91-1398, slip op. (W.D. 

Pa. 1994); Williams v. Norfolk Southern Corp., CA 1:92-CV545-HTW (N.D. Ga. Jan. 22, 1993); Satterfield v. CSX 

Transp., Inc., No. 93-002-R (W.D. Va. Dec. 22, 1993). 

Others have refused to allow a defendant to use a 

previously executed general release to block a subsequent 

FELA claim. See, e.g., Babbitt v. Norfolk & Western Ry. Co., 

104 F.3d 89 (6th Cir. 1997); Lanham, 1995 WL 368171

(E.D. Pa. June 21, 1995); Manis v. CSX Transp., Inc., 806 

F. Supp. 177 (N.D. Ohio 1992). 

As we have noted, the district court here gave great 

weight to the termination of plaintiff's employment. 

Because the parties severed and terminated their 

relationship thus "buying [their] peace," the court reasoned 

the general release of claims signed by plaintiffs barred any 

subsequent claims for unrelated injuries. 

The contrary view has been set forth by the United States 

Court of Appeals for the Sixth Circuit in Babbitt, and 

appears to establish a broad, legal rule prohibiting the use 

of general releases in cases such as this. The plaintiffs in 

Babbitt were former railroad employees who signed 

Resignation and Release Agreements as part Norfolk's 

Voluntary Separation Program. Subsequently, plaintiffs 

brought FELA claims for occupational hearing loss, and the 

district court granted defendant's motion for summary 

 16 
judgment, finding the releases barred plaintiffs' claims. The 

Sixth Circuit reversed, holding that "[t]o be valid, a release 

must reflect a bargained-for settlement of a known claim for 

a specific injury, as contrasted with an attempt to

extinguish potential future claims the employee might have 

arising from the injuries known or unknown by him." 104 

F.3d at 93. 

Conrail contends that Babbitt is distinguishable on its 

facts because the releases in Babbitt were part of a 

"Voluntary Separation Program" which offered early 

retirement to railroad employees. Rather than the result of 

compromise of claims, the releases were a take-it-or-leave-it 

option offered to all employees. By contrast, the releases at 

issue here were all negotiated as part of the settlement of 

an existing claim - each was the result of arms-length 

bargaining between the plaintiff, his counsel, and the 

defendant railroad. No case cited by plaintiffs prohibiting 

general releases corresponds to the facts here. In both 

Lanham, 1995 WL 368171 (E.D. Pa. June 21, 1995), and 

Manis, 806 F. Supp. 177 (N.D. Ohio 1992), cited by 

plaintiffs to support a broad reading of S 5, the courts 

focused on the nature of the releases signed, which were 

expressly limited to prior injuries and thus were not 

"general" releases of all claims. 

III. 

To be valid under FELA, a release must at least have 

been executed as part of a negotiation settling a dispute 

between the employee and the employer. Schubert and

Duncan hold that a release of FELA claims given as a 

condition of employment, or signed without negotiation, is 

void under S 5. As noted, the holding in Babbitt was based 

in part on the fact that the releases formed part of a 

voluntary separation program, and were not the product of 

negotiations settling a claim. See also Damron v. Norfolk & 

Western Railway Co., 925 F. Supp. 520, 525 (N.D. Ohio 

1995). 

It is also clear that an employer may not demand a 

release against potential claims as a condition of 

employment. The language of S 5 focuses on whether the 

 17 
employer is attempting to evade liability. Schubert

invalidates those releases whose only purpose is to deprive 

employees of their FELA rights. Schubert, 224 U.S. 603 

(1912); see also S. Rep. 460, 60th Cong., 1st Sess. 2-3 

(1908); H.R. Rep. 1386, 60th Cong. 1st Sess. 6 (1908). But 

as noted, Callen permits an employer and an employee to 

negotiate a release of existing claims. 

As the district court here noted, and review of the case 

law confirms, "FELA cases are inherently fact-bound." 

Wicker at 18. The evaluation of the parties' intent at the 

time the agreement was made is an essential element of 

this inquiry. See, e.g., Lanham, 1995 WL 368171 at *1; 

Forry, 837 F.2d at 263; Manis, 806 F. Supp. at 179. In 

Lanham, for example, the court's decision turned on its 

belief that the release was intended to apply to the 

employee's earlier injury only, and could not bar a claim for 

subsequent injury. Lanham at *1.8 The Forry court also 

noted that the "meaning to be given to the words of a 

contract must be the one that carries the intent of the 

parties as determined by the circumstances under which 

the contract was made." 837 F.2d at 263. 

Examination of the parties' intent raises the troublesome 

question whether a general release in FELA cases is merely 

an engine by which an employer can evade FELA liability, 

or represents a rational and considered way to resolve 

claims and liabilities. On the one hand, FELA's underlying 

goal of allowing liberal recovery might counsel a finding 

that a general release of claims permits the employer to 

avoid FELA liability altogether and therefore violates S 5. 

But the Supreme Court appears to have rejected this view 

in Callen, permitting releases which "compromis[e] a 

claimed liability and to that extent recogniz[e] its 

possibility." 332 U.S. at 631. The question remains whether 

_________________________________________________________________ 

8. The plaintiffs, attempting to distinguish the Lanham decision from the 

Wilson decision relied on by the district court, argue that "the railroad 

in 

Lanham was unsuccessful [at avoiding liability] because of the protection 

provided by 45 U.S.C. Section 55." Plaintiffs' Brief at 16. As Conrail 

points out, however, the Lanham court's analysis turned on the specific 

language of the release and the intent of the parties, and not on some 

general prohibition grounded in the language ofS 55. Consequently, the 

Lanham court's reference to 45 U.S.C. S 55 is dictum. 

 18 
there is a way to protect employees' statutory rights while 

also upholding the parties' right to settle claims by 

contract. 

A bright line rule like the one set forth in Babbitt, limiting 

the release to those injuries known to the employee at the 

time the release is executed, has the benefit of 

predictability. Under Babbitt, "a release must reflect a 

bargained-for-settlement of a known claim for a specific 

injury, as contrasted with an attempt to extinguish

potential future claims the employee might have arising 

from injuries known or unknown by him." 104 F.3d at 93. 

The Sixth Circuit noted that the releases in Shubert and 

Duncan were void because they "granted general immunity 

to the railroad as opposed to addressing a specific instance 

of disputed liability." Id. 

Yet, it is entirely conceivable that both employee and 

employer could fully comprehend future risks and potential 

liabilities and, for different reasons, want an immediate and 

permanent settlement. The employer may desire to quantify 

and limit its future liabilities and the employee may desire 

an immediate settlement rather than waiting to see if 

injuries develop in the future. To put it another way, the 

parties may want to settle controversies about potential 

liability and damages related to known risks even if there is 

no present manifestation of injury. 

The question still remains whether a rule allowing parties 

to release claims related to known risks rather than known 

injuries reflects FELA's remedial goals. We believe it does. 

We hold that a release does not violate S 5 provided it is 

executed for valid consideration as part of a settlement, and 

the scope of the release is limited to those risks which are 

known to the parties at the time the release is signed. 

Claims relating to unknown risks do not constitute 

"controversies," and may not be waived underS 5 of FELA. 

See Callen, 332 U.S. at 631. For this reason, a release that 

spells out the quantity, location and duration of potential 

risks to which the employee has been exposed -- for

example toxic exposure -- allowing the employee to make a 

reasoned decision whether to release the employer from 

liability for future injuries of specifically known risks does 

not violate S 5 of FELA. 

 19 
To the extent that a release chronicles the scope and 

duration of the known risks, it would supply strong

evidence in support of the release defense. But we are wary 

of making the validity of the release turn on the writing 

alone because of the ease in writing detailed boiler plate 

agreements; draft releases might well include an extensive 

catalog of every chemical and hazard known to railroad 

employment. For this reason, we think the written release 

should not be conclusive. We recognize that what is

involved is a fact-intensive process, but trial courts are 

competent to make these kinds of determinations. While 

the elusiveness of any such determination might counsel in 

favor of a bright-line rule such as the Sixth Circuit adopted 

in Babbitt, we decline to adopt one here. 

Instead, we conclude that a release may be strong, but 

not conclusive, evidence of the parties' intent. Where a 

specific known risk or malady is not mentioned in the 

release, it would seem difficult for the employer to show it 

was known to the employee and that he or she intended to 

release liability for it. Furthermore, where 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. We recognize that this is a different (and more 

difficult) standard for railroad employers than is typical in 

non-FELA situations, but given the Supreme Court's proemployee construction of the FELA, see Kernaw v. American 

Dredging Co., 355 U.S. 426, 432 (1958) ("it is clear that the 

general congressional intent was to provide liberal recovery 

for injured workers"); Boyd, 338 U.S. at 265 ("Congress 

wanted Section 5 to have the full effect that its 

comprehensive phraseology implies.") (internal quotation 

omitted), we adopt it. 

IV. 

Applying this standard, we hold that the releases in 

question are invalid under S 5 of FELA. While there is little 

doubt the parties were involved in settling claims, the 

question of the parties' intent is more problematic. 

As a general matter, the language of the releases appears 

to recite a standard waiver of liability. Even though there is 

 20 
no factual dispute that the agreements were reached during 

settlement negotiations, and that plaintiffs were all 

represented by counsel, the releases do not demonstrate 

the parties understood, let alone addressed or discussed, 

the scope of the claims being waived. For example, the 

McKee and Weaver releases are short, pro forma waivers, 

and do not indicate the parties negotiated any part of the 

releases other than the amount of settlement. At the other 

extreme, the releases signed by Wicker and Kleiner are 

more detailed, blanket releases which attempt to cover all 

potential liabilities. But these releases merely recite a series 

of generic hazards to which Wicker and Kleiner might have 

been exposed, rather than specific risks the employees 

faced during the course of their employment. Consequently, 

the releases do not demonstrate the employees knew of the 

actual risks to which they were exposed and from which 

the employer was being released. Even the Kaltenbrunner 

release, which contains a special exclusion for claims 

relating to carpal tunnel syndrome, does not recite that 

plaintiff was aware of and understood the other risks to 

which he was exposed. Consequently, there is no evidence 

that any of the plaintiffs, despite being represented by 

counsel, was aware of the potential health risks to which he 

had been exposed. Therefore, they could not have properly 

waived these claims. 

Conrail contends that even if the releases apply only to 

injuries plaintiffs were aware of at the time they signed the 

releases, their claims here are still barred because they had 

knowledge of at least some of their symptoms. Although 

plaintiffs testified they were aware of certain symptoms 

when they signed the releases, the record does not 

demonstrate that they knew that these symptoms were

related to their exposure to toxic chemicals at Conrail's 

plant. To the contrary, plaintiffs testified they did not 

connect the symptoms with their chemical exposure until 

after they had signed the releases, and that they were not 

aware of the risks associated with the various chemicals 

used at Conrail's facility. Therefore, the releases could not 

have settled claims with respect to those risks, and cannot 

bar plaintiffs' claims. 

As noted, we hold that S 5 of FELA allows an employer to 

negotiate a release of claims with an employee provided the 

 21 
release is limited to those risks which are known by the 

parties at the time the release is negotiated. In the case 

before us, we find the releases signed by the parties violate 

S 5 because they purport to settle all claims regardless 

whether the parties knew of the potential risks. Because 

the releases cannot bar plaintiffs' FELA claims, we will 

reverse the judgment of the district court and remand for 

proceedings consistent with this opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 22