Fisher v. BNSF Ry. Co.

650 S.W.3d 880

June FISHER, Individually and as Representative of the Estate of Alan Fisher, Appellant

v.BNSF RAILWAY COMPANY, (Individually and as Successor-In Interest to the Burlington Northern & Santa Fe Railway Company, Atchison and Quincy Railroad Company, Burlington Northern, Inc., and Burlington Northern Railroad Company), Appellee

No. 02-21-00369-CV

Court of Appeals of Texas, Fort Worth.

Delivered: July 14, 2022

Kurt Arnold, Houston, Trevor Courtney, Andrew R. Gould, Houston, for Appellant.

Jody S. Sanders, Marianne M. Auld, Fort Worth, Justin Rodriguez, Austin, for Appellee.

Before Sudderth, C.J.; Birdwell and Wallach, JJ.

Opinion by Justice Wallach This is an appeal from a take-nothing summary judgment that presents a question of first impression in Texas involving the enforceability of a release of unknown future claims when settling an existing claim under the Federal Employers Liability Act (FELA). Alan Fisher (Alan) was a long-time employee of BNSF Railway Company and its predecessor entities (BNSF). As a result of Alan's employment-related exposure to toxic substances, including asbestos, he was diagnosed with asbestosis. In June 2006, while represented by counsel, Alan settled and released claims he had against BNSF for personal injuries arising from work-related exposures to various toxic substances, including asbestos. Alan executed a release of his claims, which included known claims and risks of unknown future claims, including for cancer, related to his work exposure to asbestos.

In 2016, Alan was diagnosed with lung cancer and died in 2018. His wife, June, individually and as representative of Alan's estate, filed suit on March 21, 2021 against BNSF, seeking to recover damages arising from Alan's cancer. June admitted that Alan's lung cancer was related to his exposure to asbestos while working for BNSF. BNSF moved for summary judgment based on Alan's prior release. Relying on Babbitt v. Norfolk & Western Railway Co. , June responded that the FELA prohibits the release of claims for future injuries not known to exist at the time of execution of the release. 104 F.3d 89, 93 (6th Cir. 1997). Relying on Callen v. Pennsylvania Railroad Company , BNSF responded that June's interpretation of the FELA was incorrect and that it allows the release of unknown future claims where the parties’ intent is to do so provided the employee is aware of the risk of such claims when the release is signed. 332 U.S. 625, 631, 68 S.Ct. 296, 92 L.Ed. 242 (1948). The trial court granted BNSF's motion for summary judgment and dismissed June's claims with prejudice. Finding no reversible error, we will affirm the judgment of the trial court.

I. Background

Alan worked for BNSF for over forty years as a sheet metal worker. Around 2005, Alan hired an attorney for "a cognizable claim for his asbestosis injuries" arising from exposure to asbestos while employed by BNSF. In 2006, BNSF and Alan settled his asbestos-exposure claim. BNSF paid Alan $29,500, and Alan executed a release approved by his attorney. That release provided a "full compromise, settlement, discharge and satisfaction" of "all claims, demands, or causes of action" against BNSF "on account of all illnesses and injuries to the person, including those that may hereafter develop as well as those now apparent and all complications thereof." The release covered all claims "including, but not limited to, any claim or cause of action, known or unknown, present or future , for alleged injury, damages, expenses, or death arising out of any alleged exposure to "Asbestos," "Asbestos Containing Materials," or other "Toxic Substances during the course of my employment with BNSF Railway Company. " [Emphasis added.] It also specifically released BNSF "for all suits, actions, causes of action, claims and demands of every character whatsoever [for] asbestos-related illnesses including but not limited to cancer, risk of cancer, and fear of cancer." [Emphasis added.] Alan represented that he "fully understood and voluntarily accepted" the settlement's terms. He also represented that he relied upon his counsel's advice, that his attorney "completely explained" the agreements in the release, and that he did not rely on any representations from BNSF. Alan executed the release, and his attorney signed it as "APPROVED." June signed as a witness.

Subsequently, Alan became ill and was diagnosed with lung cancer. He passed away in 2018. In March 2021, June sued BNSF under the FELA, alleging that BNSF negligently exposed Alan to asbestos and other toxic substances, and that the exposure led to his lung cancer and death. June conceded that Alan developed "asbestos-related cancer." BNSF denied liability and asserted that the 2006 release barred June's suit. BNSF moved for summary judgment on that basis, and the trial court granted BNSF's motion.

II. Legal Standards

We review an order granting summary judgment de novo. Godoy v. Wells Fargo Bank, N.A. , 575 S.W.3d 531, 536 (Tex. 2019). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker , 249 S.W.3d 392, 399 (Tex. 2008). We must consider whether reasonable and fair-minded jurors could differ in their conclusions considering all of the evidence presented. Wal-Mart Stores, Inc. v. Spates , 186 S.W.3d 566, 568 (Tex. 2006) ; City of Keller v. Wilson , 168 S.W.3d 802, 822–24 (Tex. 2005). In a traditional summary judgment case, the issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c) ; Mann Frankfort , 289 S.W.3d at 848. Traditional summary judgment is improper if there is more than a scintilla of probative evidence raising genuine issues of material fact. Pettit v. Maxwell , 509 S.W.3d 542, 546–47 (Tex. App.—El Paso 2016, no pet.).

When a defendant moves for summary judgment on an affirmative defense, "he has the burden to conclusively prove all the essential elements of its defense as a matter of law, leaving no issues of material fact." Garza v. Williams Bros. Const. Co. , 879 S.W.2d 290, 294 (Tex. App.—Houston [14th Dist.] 1994, no writ). If the defendant meets his initial burden by "establish[ing] his right to an affirmative defense as a matter of law, the burden shifts to the plaintiff to produce controverting evidence that raises a fact issue on the defendant's affirmative defense." Id. at 294–95. Even then, the burden remains on the defendant to negate the issues raised to conclusively establish its right to summary judgment. Id. at 295.

A contractual release is an affirmative defense. See Tex. R. Civ. P. 94. To establish its elements, "the party asserting the defense of release is required to prove the elements of a contract." In re J.P. , 296 S.W.3d 830, 835 (Tex. App.—Fort Worth 2009, no pet.). Because the FELA is a federal statute, the "FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal." St. Louis Sw. Ry. Co. v. Dickerson , 470 U.S. 409, 411, 105 S. Ct. 1347, 1348, 84 L.Ed.2d 303 (1985) ; BNSF Ry. Co. v. Phillips , 485 S.W.3d 908, 910 (Tex. 2015).

BNSF, as summary judgment movant, initially bore the burden of showing there is no issue of material fact and that it was entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a. The review begins with the release language. Callen , 332 U.S. at 630, 68 S. Ct. at 298 (noting that releases of railroad employees stand on the same basis as the releases of others and are entitled to prima facie validity); Mendoza-Gomez v. Union Pac. R.R. Co. , No. 4:19-CV-4742, 2021 WL 3469998, at *4 (S.D. Tex. July 27, 2021), aff'd , No. 21-20397, 2022 WL 1117698, at *3 (5th Cir. Apr. 14, 2022) (not for publication). Where it is undisputed that an employee signs a release of the FELA claim, federal law shifts the burden to the nonmovant to establish the invalidity of the release. Callen , 332 U.S. at 630, 68 S. Ct. at 298 ("One who attacks a settlement must bear the burden of showing that the contract he has made is tainted with invalidity ...."); Wicker v. Consol. Rail Corp. , 142 F.3d 690, 696 (3d Cir. 1998) ; see also Jarrett v. Consol. Rail Corp. , 185 A.3d 374, 380 (Pa. Super. Ct. 2018) ; Blackwell v. CSX Transp., Inc. , 220 Md.App. 113, 102 A.3d 864, 868 (2014) ; Jaqua v. Canadian Nat'l R.R., Inc. , 274 Mich.App. 540, 734 N.W.2d 228, 232 (2007).

III. Analysis

June contends that the trial court erred in granting the summary judgment for two reasons: (1) Section 5 of the FELA bars releases of future injuries, rendering the release unenforceable (Section 5 issue), or (2) genuine fact issues exist regarding the parties’ intent regarding the release of future risks when the release was executed. We will overrule both points and affirm the take-nothing judgment of the trial court.

a. Clean Slate on Section 5 Issue

The Section 5 issue concerns whether Section 5 voids a release of unknown future claims made as part of the settlement of an existing claim made under the FELA. 45 U.S.C. § 55. We begin our analysis by determining where we must look to find our basis for decision. Both sides agree that the United States Supreme Court has not decided the issue of whether Section 5 prohibits an injured worker from releasing unknown future claims as part of the settlement of an existing claim. Both parties acknowledge that there is a split of authority in the federal circuits and in other state courts on this question, and no Texas state court has addressed the issue. We therefore are...