Davis, Justice: (See footnote 1)
In this action brought under the Federal Employer's Liability Act (hereinafter
referred to as “the FELA”), Mrs. Freda Ratliff (hereinafter referred to as “Mrs. Ratliff”), in
her capacity as executrix of the estate of her deceased husband, Mr. Sparrell Ratliff, Jr.,
plaintiff below and appellant herein, asks this Court to review an award of summary
judgment in favor of Norfolk Southern Railway Company (hereinafter referred to as
“Norfolk Southern”), defendant below and appellee herein. In determining whether summary
judgment was appropriate, this Court must determine whether a release executed by Sparrell
Ratliff, Jr., in connection with a voluntary separation program offered by his employer,
Norfolk Southern, violates 45 U.S.C. § 55 (1908) (2000 ed.), (See footnote 2) which prohibits employers
from exempting themselves from FELA liability. After a review of the parties' briefs, the
record submitted on appeal, the brief submitted by the Association of American Railroads
as Amicus Curiae, (See footnote 3) and having heard the oral arguments of the parties, we conclude that the
circuit court erred in granting summary judgment to Norfolk Southern. Because Sparrell
Ratliff, Jr.'s, release was executed in the context of a voluntary separation program, as
opposed to being executed in compromise of a claimed liability, it must reflect a bargained-
for settlement of a claim for mesothelioma in order to be valid under 45 U.S.C. § 55.
(Footnote added). An included “Program Description” provided additional detail regarding
the program, and stated, inter alia, that, in order to participate in the program, an employee
would be required to execute a resignation and release that “is a total and absolute release of
any employment rights with any Norfolk Southern Company and of any claims of any kind
whatsoever arising from your employment relationship with the Company.” (See footnote 8) A copy of the
resignation and release document that employees would be required to execute in order to
participate in the program was also included, along with an “Application for Participation in
Separation Program.” Mr. Ratliff applied for the program and was approved. Accordingly,
he executed the required resignation and release, which stated in relevant part:
I, S. RATLIFF, JR., [social security number omitted], in
consideration of the sum of THIRTY-FIVE THOUSAND
DOLLARS ($35,000.00), the receipt of which is hereby
acknowledged, hereby resign and surrender any right to
employment by Norfolk Southern Corporation, Norfolk and
Western Railway Company, Southern Railway Company or any
employer affiliated with or controlled by any of the aforenamed
companies, for convenience referred to hereinafter collectively
as the “Company”, and hereby release and forever discharge the
Company from any claim (with the exception of vested pension
rights), demand, action or cause of action, of any kind
whatsoever, known or unknown, which I have or could have on
account of, or in any manner arising out of or connected with,
my employment by the said Company, or the termination
thereof, including but not limited to any claim or right asserted
under or arising out of any agreement, regulation, condition or
statute affording me employment protection, protecting me from
employment or covering the conditions of my employment. . . .
(Emphasis added). The release signed by Mr. Ratliff was identical to the sample release that
was included in the information packet offering the voluntary separation program, with the
exception that the actual release executed by Mr. Ratliff specified his name, social security
number, the actual amount of the consideration he received, and the amount of taxes withheld
therefrom. There is nothing in the record of this action indicating that Mr. Ratliff was
represented by, or consulted with, a lawyer before signing the resignation and release.
In April 2005, nineteen years after his voluntary separation from Norfolk
Southern, Mr. Ratliff was diagnosed with mesothelioma. (See footnote 9) He died in July 2005. The instant
FELA action was filed by Mrs. Ratliff, in her capacity as executrix of Mr. Ratliff's estate,
in or around October 2005. (See footnote 10) Norfolk Southern filed its answer denying liability, and, after
a period of discovery, filed a motion for summary judgment asserting that the action was
barred by virtue of the release that had been executed by Mr. Ratliff in connection with the
voluntary separation program. Mrs. Ratliff subsequently filed her own motion for summary
judgment asserting that, pursuant to the provisions of 45 U.S.C. § 55, (See footnote 11) the release was void.
Following a hearing, the circuit court indicated that it was inclined to grant summary
judgment in favor of Norfolk Southern, but that it had been
persuaded by counsel for plaintiff that a jury trial on the factual
issue of intent would serve the interests of judicial economy in
that a resolution of that factual issue might narrow the issues to
be presented in any appeal of the judgment in this case.
Therefore, the court determined to conduct a jury trial . . . solely
on the subject of the intent of the parties in entering into the
Release, with the parties to conduct any additional necessary
discovery on the subject of the Release before trial.
A pre-trial conference for the “intent” trial was scheduled for July 20, 2007. However, on
that date, at the parties' request, the circuit court instead considered their renewed motions
for summary judgment. The circuit court observed that Mrs. Ratliff “presented no new or
additional evidence to support [her] argument” that the release was prohibited by 45 U.S.C.
§ 55, and observed further that Mrs. Ratliff had conducted discovery in anticipation of trial
and had not suggested that she required additional time for further discovery. The circuit
court found that “[t]he limiting words of the release are very specific,” and that Mrs. Ratliff
had presented “no evidence that the release was not intended to comprehend the alleged
occupational injury alleged by the plaintiff.” Additionally, the circuit court observed that
there was no evidence of fraud, the consideration paid was sufficient to support the release,
there was no mutual mistake of fact, and the risk of mesothelioma was known, at least to
Norfolk Southern, at the time the release was executed. Finally, the circuit court observed
that Mrs. Ratliff
has no direct evidence bearing on the issue of Mr. Ratliff's intent, since Mr. Ratliff died without testifying about the Release, since the plaintiff filed an affidavit saying that she and Mr. Ratliff never discussed the meaning and effect of the Release, and since the plaintiff has pointed to no witness or other direct evidence showing what Mr. Ratliff believed about the release beyond the text of the Release itself.
Accordingly, by order entered September 19, 2007, the circuit court granted summary
judgment in favor of Norfolk Southern. This appeal followed. (See footnote 12)
“'[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963).” Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d 247 (1992).
Syl. pt. 2, Painter, 192 W. Va. 189, 451 S.E.2d 755. Finally, we note that “[t]he circuit
court's function at the summary judgment stage is not to weigh the evidence and determine
the truth of the matter, but is to determine whether there is a genuine issue for trial.” Syl. pt.
3, Id. With due consideration for the foregoing standards, we proceed to our discussion of
the issues herein raised.
we are constrained to follow federal case law interpreting
FELA. Federal and state courts have concurrent jurisdiction of
claims brought under FELA. 45 U.S.C. § 56 (1948) (“The
jurisdiction of the courts of the United States under this chapter
shall be concurrent with that of the courts of the several States.” Id., in part.) In FELA claims, although “a state court may use
procedural rules applicable to civil actions in the state court
unless otherwise directed by the act, . . . substantive issues
concerning a claim under the [FELA] are determined by the
provisions of the act and interpretative decisions of federal
courts construing the [FELA][.]” Chapman v. Union Pacific
R.R., 237 Neb. 617, 467 N.W.2d 388, 393 (1991) (citing, e.g.,
Monessen Southwestern R. Co. v. Morgan, 486 U.S. 330, 108
S. Ct. 1837, 100 L. Ed. 2d 349 (1988); St. Louis Southwestern
R. Co. v. Dickerson, 470 U.S. 409, 105 S. Ct. 1347, 84 L. Ed. 2d
303 (1985); Chesapeake & Ohio R. Co. v. Kuhn, 284 U.S. 44,
52 S. Ct. 45, 76 L. Ed. 157 (1931)). Indeed, only if federal law
controls can FELA be given the “uniform application
throughout the country essential to effectuate its purposes.” Dice v. Akron, Canton & Youngstown R. Co., 342 U.S. 359, 361,
72 S. Ct. 312, 314, 96 L. Ed. 398 (1952). . . . Thus, “'state
courts are bound by interpretation of the . . . [FELA] given by
the federal courts.'” Chapman, 467 N.W.2d at 393 (internal
citation omitted).
McGraw v. Norfolk & Western Ry. Co., 201 W. Va. 675, 679, 500 S.E.2d 300, 304 (1997).
We begin our analysis with a review of the FELA provision that prohibits a
common carrier from exempting itself from liability imposed by FELA. In this regard, § 5
of the FELA states:
Any 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, shall to that extent be void: Provided, That in any
action brought against any such common carrier under or by
virtue of any of the provisions of this chapter, such common
carrier may set off therein any sum it has contributed or paid to
any insurance, relief benefit, or indemnity that may have been
paid to the injured employee or the person entitled thereto on
account of the injury or death for which said action was brought.
45 U.S.C. § 55 (emphasis added).
Though the foregoing provision is broadly stated to exclude any device attempting to exempt a common carrier from any liability created under the FELA, the
Supreme Court of the United States has recognized that there are circumstances under which
a release would not violate § 5. (See footnote 13) See Callen v Pennsylvania R.R. Co., 332 U.S. 625, 68
S. Ct. 296, 92 L. Ed. 242 (1948).
In Callen, a railway brakeman allegedly sustained a severe and permanent back
injury when he jumped from a railway car in an attempt to avoid a more serious injury. The
brakeman subsequently brought a FELA action. One of the defenses asserted by his
employer, Pennsylvania Railroad Company, was that he had executed a general release. The
evidence presented established that the brakeman had received consideration of $250 in
exchange for
a general release of “all claims and demands which I have or can or may have against the said Pennsylvania Railroad Company for or by reason of personal injuries sustained by me” at the time and place involved in the suit. It also released claims for loss of time and expense, and recited that the payment was in compromise and not an admission of liability, that plaintiff read and understood the agreement and that the sum of money stated therein is all that he was to receive.
Callen, 332 U.S. at 626-27, 68 S. Ct. at 297, 92 L. Ed. 242. Following a verdict in favor of the brakeman in the amount of $24,990.00, Pennsylvania Railroad appealed to the Third Circuit. The Court of Appeals reversed the trial court, and remanded the case for a new trial based upon its finding that the trial court had incorrectly instructed the jury and, in so doing, had withdrawn from the jury the question of the validity of the release. On subsequent appeal to the United States Supreme Court, the Third Circuit's ruling was affirmed. Of relevance to the case at bar, the Supreme Court noted that the brakeman contended that the release violated 45 U.S.C. § 5 of the FELA insofar as the release represented an attempt by Pennsylvania Railroad to exempt itself from a liability created by the FELA. The Supreme Court observed that, because the case was being remanded, there would be an opportunity to resolve this issue at trial. Although the Supreme Court did not engage in a detailed analysis of 45 U.S.C. § 55, the Court commented that
[i]t 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.
332 U.S. at 631, 68 S. Ct. at 298-99, 92 L. Ed. 242. While the United States Supreme Court
has, subsequent to Callen, addressed 45 U.S.C. § 55 in other contexts, (See footnote 14) it has not
conclusively settled the manner in which this section may properly be applied. (See footnote 15)
Two federal circuit courts of appeal have, however, addressed the proper scope
and application of § 5 of the FELA in light of the Supreme Court's holding in Callen. (See footnote 16) TheSixth Circuit addressed this issue in Babbitt v. Norfolk & Western Railway Co., 104 F.3d 89
(6th Cir. 1997); and the Third Circuit case of Wicker v. Consolidated Rail Corp., 142 F.3d
690 (3d Cir. 1998), similarly explored the parameters of § 5 of the FELA. (See footnote 17)
Babbit involved several former employees of Norfolk & Western Railway
Company (hereinafter referred to as “N &W”) who, similar to Mr. Ratliff, signed a general
release as part of a voluntary separation program. Subsequent thereto, the employees sued
N&W under the FELA seeking damages for hearing loss. N&W defended on the basis of
the release the employees had signed at the time of their voluntary separation. In determining
whether the releases violated § 5 of the FELA, the Sixth Circuit observed that “it is clear that
the purpose of [the] FELA, as stated in 45 U.S.C. §§ 51 and 55, is to require negligent
railroads to assume liability for injuries to employees in the course of their employment.” Babbitt, 104 F.3d at 91 (citations omitted). The court went on to note, however, that a
release “may constitute a settlement or compromise, rather than an attempt to escape
liability” in which case such a release would not run afoul of the FELA. Babbitt, 104 F.3d
at 92 (citing Callen, 332 U.S. 625, 68 S. Ct. 296, 92 L. Ed. 242).
The Babbitt court reviewed the decision in Callen, and distinguished that case
from two earlier opinions by the Supreme Court of the United States: Philadelphia,
Baltimore, & Washington Railroad Co. v. Schubert, 224 U.S. 603, 32 S. Ct. 589, 56 L. Ed.
911 (1912), and Duncan v. Thompson, 315 U.S. 1, 62 S. Ct. 422, 86 L.Ed. 575 (1942). (See footnote 18) The Babbitt court then reasoned that, unlike Schubert and Duncan, Callen involved “a contract
that settled an actual controversy.” 104 F.3d at 92. The court explained that
[i]n contrast [to Callen,] Schubert and Duncan did not involve
express agreements to settle claims for specific injuries, but
instead centered around a general release. Because the releases
in Schubert and Duncan had granted general immunity to the
railroad, as opposed to addressing a specific instance of disputed
liability, they were void.
Babbitt, 104 F.3d at 92-93. The Babbitt court then reasoned that,
[i]n light of this case precedent, it is clear that FELA is
not offended when there is a compromise of a claim of liability
that settles a specific injury sustained by an employee. Schubert,
224 U.S. at 612, 32 S. Ct. at 591-92; Duncan, 315 U.S. at 7, 62
S Ct. at 424 (stating that a “bona fide compromise and
settlement of claims arising under the act” passes muster); Boyd
v. Grand Trunk Western R. Co., 338 U.S. 263, 70 S. Ct. 26, 94
L. Ed. 55 (1949) (noting that a “full compromise enabling the
parties to settle their dispute without litigation” does not
contravene FELA); South Buffalo Ry. Co. v. Ahern, 344 U.S.
367, 73 S. Ct. 340, 97 L.Ed. 395 (1953) (stating that “full and
fair compromises of FELA claims do not clash with the policy
of the Act”).
Consequently, where there exists a dispute between an
employer and employee with respect to a FELA claim, the
parties may release their specific claims as part of an out-of-
court settlement without contravening the Act. However, where
the release was not executed as part of a specific settlement of
FELA claims, 45 U.S.C. § 55 precludes the employer from
claiming the release as a bar to liability. . . . To 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
injuries known or unknown by him.
104 F.3d at, 93 (emphasis added) (internal citation omitted). Because the lower court had
not analyzed whether the releases at issue had been executed by the Babbitt plaintiffs in
settlement of their specific hearing loss claims, the Sixth Circuit reversed and remanded the
case for such a determination. See also Damron v. Norfolk & Western Ry. Co., 925 F. Supp
520, 526 (N.D. OH 1995) (finding release executed as part of voluntary separation program
was void under 45 U.S.C. § 55 due to absence of compromise of claimed liability as required
by Callen, and commenting “[t]his court has difficulty fathoming how a release obtained
under such circumstances could be construed as a compromise.”). Cf. Jaqua v. Canadian
Nat'l R.R., 274 Mich. App. 540, 551, 734 N.W.2d 228, 234 (2007) (observing that “[c]learly
the Supreme Court requires that the release be pursuant to a controversy with regard to the
employer's liability and the extent of that liability for a particular accident or exposure. . . .
Accordingly, a release must relate to a specific claim, such as a railroad's liability for injuries
caused by asbestos exposure, rather than being a blanket release of liability for any
occupational illnesses. . . .” (internal citation omitted)).
The Third Circuit case of Wicker v. Consolidated Rail Corp., 142 F.3d 690, on
the other hand, involved five former employees who filed FELA actions against their former
employer claiming injury resulting from their exposure to toxic chemicals. Each of the
employees had previously executed a general release in the course of settling an unrelated
FELA claim. (See footnote 19) “While the releases were not identical, each appeared to settle all claims for
all injuries past and future.” Wicker, 142 F.3d at 692. Additionally, each plaintiff
“negotiated his release in the context of terminating, or already having terminated, his
employment with Conrail.” Id. at 694. In determining whether the releases were void under
§ 5 of the FELA, the Wicker court observed that
[t]o 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[ (See footnote 20) ] and Duncan[ (See footnote 21) ] hold
that a release of FELA claims given as a condition of
employment, or signed without negotiation, is void under § 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).
142 F.3d at 700 (footnotes and emphasis added). The Wicker court declined to apply the Babbitt test, commenting that
[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, and 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. . . .
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. 142 F.3d at 700-01.
Accordingly, the Wicker court, applying Callen, held that
a release does not violate § 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 under § 5 of FELA. See Callen, 332 U.S. at 631, 68 S. Ct. at 298-99. 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 § 5 of FELA.
142 F.3d at 701. The Wicker court went on to explain that,
[t]o 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 pro-employee construction of the FELA, see
Kernan v. American Dredging Co., 355 U.S. 426, 432, 78 S.Ct.
394, 398, 2 L.Ed.2d 382 (1958) (“it is clear that the general
congressional intent was to provide liberal recovery for injured
workers”); Boyd, 338 U.S. at 265, 70 S. Ct. at 27 (“Congress
wanted Section 5 to have the full effect that its comprehensive
phraseology implies.”) (internal quotation omitted), we adopt it.
Id. Applying this standard to the five cases before it, the Wicker court observed that there
was no dispute that all of “the agreements were reached during settlement negotiations, and
that the plaintiffs were all represented by counsel.” 142 F.3d at 701 (emphasis added).
However, the releases failed to demonstrate that the parties “understood, let alone addressed
or discussed, the scope of the claims being waived,” and therefore did not show that “the
employees knew of the actual risks to which they were exposed and from which the employer
was being released.” Id. In the absence of any evidence that the plaintiffs were “aware of
the potential health risks to which [they] had been exposed, . . . they could not have properly
waived these claims.” Id. at 702. For this reason, the Wicker court concluded that all of the
releases violated § 5 of the FELA.
Subsequent cases that have analyzed the Babbitt and Wicker decisions appear
to have concluded that Babbitt and Wicker each set out a general test to be applied under any
circumstances in which a court is asked to evaluate the validity of a release under § 5 of the
FELA. See, e.g., Jaqua v. Canadian Nat'l R.R., Inc., 274 Mich. App. 540, 734 N.W.2d 228
(2007); Illinois Cent. R.R. Co. v. Acuff, 950 So. 2d 947 (Miss. 2006); Sinclair v. Burlington
N. & Santa Fe Ry. Co., 347 Mont. 395, 200 P.3d 46 (2008); Oliverio v. Consol. Rail Corp.,
14 Misc. 3d 219, 822 N.Y.S.2d 699 (N.Y. Sup. Ct. 2006); Aswad v. Norfolk S. Ry. Co., No.
04-2536, 2006 WL 1063297 (Va. Cir. Ct 2006). Because the two tests are not in accord,
these courts have indicated a need to select between them. We disagree with this conclusion.
A careful review of Babbitt and Wicker demonstrates a key difference between
the two cases. Babbitt involved employees who signed a general release in connection with
a voluntary separation (or early retirement) program, and who were not engaged in settling
any specific FELA claims with their employer. Notably, Babbitt found that the facts before
it were distinguishable from Callen and applied other Supreme Court precedent. Wicker, on
the other hand, dealt with employees who had executed general releases in the course of settling FELA claims, and represents an extension of Callen. Thus, we perceive that the Babbit and Wicker cases actually set out different standards to be applied in different
circumstances. The rationale for such a distinction lies with the posture of the employee in
executing a release.
A Wicker-type employee is involved in negotiating a FELA claim and,
therefore, meets the requirement of Callen that a controversy exist. Under this circumstance,
a release does not violate § 5 of the FELA so long as the risk released was one known to the
parties and was a risk the employee intended to release. A Babbitt-type employee, on the
other hand, is not negotiating the settlement of a claim. A Babbitt employee has merely
agreed to a voluntary end to his or her employment. Unlike an employee who is negotiating
a FELA claim, an employee who is participating in a voluntary separation program is not
engaged in a controversy as to liability as contemplated by the Supreme Court in Callen. As
one court has observed, an employee who has signed a release in connection with a voluntary
separation program “might not have been alert to the reality that he was in an adversarial
situation with the attendant need for heightened care.” Aswad v. Norfolk Southern Ry. Co., No. 04-2536, 2006 WL 1063297, at *18. Accordingly, a heightened standard is required
when scrutinizing a release that is executed outside the context of a controversy.
We believe that imposing a heightened standard upon a release signed in the
context of a voluntary separation program, as was done in Babbitt, is in accord with the
remedial purposes of the FELA.
In enacting FELA, it was Congress' intention that it be a broad, remedial statute and, as such, should be given a liberal construction by courts. Ackley v. Chicago and North Western Transp. Co., 820 F.2d 263, 266 (8th Cir.1987) (citing Urie v. Thompson, 337 U.S. 163, 180, 69 S. Ct. 1018, 1029, 93 L. Ed. 1282 (1949)). See Gardner v. CSX Transportation, Inc., 201 W. Va. [490, 498], 498 S.E.2d 473, 481 (1997).
McGraw v. Norfolk & Western Ry. Co., 201 W. Va. 675, 679, 500 S.E.2d 300, 304. (See footnote 22) Such a heightened standard would also afford employees greater protection of their FELA rights. In this regard, one court has opined that
[a] reading of 45 U.S.C. § 55 indicates that Congress intended to remove the ability of employees to sell off their FELA rights in exchange for short term gains as well as the ability of employers to pressure or defraud their employees into signing away those same rights.
Brophy v. Cincinnati, New Orleans, & Texas Pac. Ry. Co., 855 F. Supp. 213, 216 (S.D. Ohio
1994) (footnote omitted). Accordingly, we hold that, where a release has not been executed
as part of a specific settlement of a claim brought under the Federal Employer's Liability Act,
45 U.S.C. § 51, et seq., but instead was executed in connection with a voluntary separation
program, section 5 of the Act, which is codified at 45 U.S.C. § 55 (1908) (2000 ed.),
precludes an employer from claiming that the release is a bar to liability under the Act. To
be valid under section 5 of the Federal Employer's Liability Act, a release executed in
connection with a voluntary separation program must reflect a bargained-for settlement of
a known claim for a specific injury. (See footnote 23)
Turning to the instant case, in granting summary judgment to Norfolk
Southern, the circuit court mistakenly placed this case within the Wicker category. However,
an employee, such as Mr. Ratliff, who has executed a general release in the context of
participating in a voluntary separation program, plainly falls within the Babbitt category of
cases. Therefore, in order for the release executed by Mr. Ratliff to be a valid bar to his
FELA cause of action, there must be evidence that the release was executed as part of a
settlement for the specific injury now in controversy, namely mesothelioma. In the absence
of such evidence, the release is void pursuant to § 5 of the FELA insofar as it pertains to Mr.
Ratliff's mesothelioma claims.