• About F & S
  • Our Attorneys
  • Practice Areas
      • litigateLitigation Services
      • REGRegulatory Matters
      • Commercial Transactions
      • Labor & Employment
      • General Counsel Service
      • Government & Passenger Rail
    • Close
  • Our Clients
  • Alerts & Analysis
  • About F & S
  • Our Attorneys
  • Practice Areas
      • litigateLitigation Services
      • REGRegulatory Matters
      • Commercial Transactions
      • Labor & Employment
      • General Counsel Service
      • Government & Passenger Rail
    • Close
  • Our Clients
  • Alerts & Analysis
Enforceability of FELA Releases: Would that signed FELA release actually bar a future claim?

Enforceability of FELA Releases: Would that signed FELA release actually bar a future claim?

  • On April 12, 2021

By: Carlin V. Comerouski

Let’s say an employee brings a claim for injury against the railroad. Whether litigated or not, a sum is ultimately agreed upon and a release is executed. Great, the claim is settled and in the rearview mirror—but can you be confident that your FELA release will protect you against future claims from that employee?

Governed by federal law, the answer is largely dependent upon the jurisdiction in which you would seek to enforce the release. While no specific prohibition on FELA releases for future claims actually exists, it is helpful to know whether the court considering the issue is inclined to follow the Sixth Circuit’s Babbitt line of cases (“known claim” cases) or the Third Circuit’s Wicker line of cases (“known risk” cases). The majority of courts to consider the issue have sided with Wicker and permitted parties to contract to release future known risks. However, the degree of specificity required to prove that the claimant released a “known” risk has varied.

Importantly, under both Babbitt and Wicker, courts consistently give close scrutiny to the intent of the parties to determine if a party knowingly released a future claim or risk. Intent is ascertained by scrutinizing the circumstances under which the release was signed, the language of the release, and the amount for which the release was executed. In sum, the analysis is very fact-specific.

Here are some tips to increase the likelihood of enforcement of your FELA release:

  • Be specific! The more specific, the better. The greater the specificity of language, particularly with the description of the future risk, the easier it is for the court to discern the intent of the parties.
  • State in no uncertain terms that the employee understands the risk of a future injury that may involve an aggravation of the current injury or another injury that may arise from the same or similar exposure and is knowingly releasing that risk.
  • Avoid a “laundry list” of possible future claims—courts have repeatedly disfavored boilerplate-type language in FELA releases.
  • Settle for a sum significant enough to support the argument that the employee knew he/she was releasing not only the current injury, but injuries in the future as well. Negligible amounts tend to indicate the opposite.
  • Encourage the employee to obtain and consult an attorney for purposes of execution of the release—that way, you can explicitly state that the employee had advice of counsel in reviewing the release and that the railroad fully explained the employee his/her rights under the FELA.

If you have questions or want to discuss particular issues regarding your employee injury releases, please feel free to reach out. I can be reached at ccomerouski@fletcher-sippel.com or (312) 252-1517.

 
Our Recent Blog Post
  • FRA ISSUES FINAL CREW SIZE RULE
  • The Illinois Biometric Information Privacy Act: Proceed at Restricted Speed
  • ORAL FLUID TESTING:  A HEADS UP TO REVIEW YOUR POLICIES!!!
  • Pregnant Workers’ Fairness Act: Congress’ New Rule on Work-Place Accommodations for Pregnant Workers
  • PHMSA is proposing new rules on train consist and emergency response information
  • FRA PROPOSED RULES FOR CERTIFICATION OF RAILROAD DISPATCHERS AND SIGNAL EMPLOYEES
  • Final Rule on Oral specimen drug testing
  • Emergency Escape Breathing Apparatus NPRM
  • FLETCHER & SIPPEL ADDS AND PROMOTES ATTORNEYS
  • FRA Rule Amendments on Glazing
  • BNSF Loses Illinois Biometric Privacy Lawsuit, Jury’s Verdict Exposes Railroad to up to $228 Million in Damages
  • Bill Sippel
  • NPRM on reflectorization
  • USDOT Solicits Applicants for Crossing Safety Enhancement Grants
  • BNSF California Embargo

Federal Railroad Administration Issues Emergency Order Requiring Face Mask Use in Railroad Operations

Previous thumb

FRA Publishes Amendments Governing Changes to PTC Systems and Reporting on PTC Performance.

Next thumb
Scroll

Chicago, Il
29 North Wacker Dr, Suite 800
Chicago, IL 60606-3208

(312) 252-1500 (Main)
(312) 252-2400 (Fax)

Jackson, MS
4400 Old Canton Road, Suite 220,
Jackson, MS 39211-5982

(601) 414-6009 (Main)
(601) 414-6016 (Fax)



Privacy Policy

©2023 Fletcher & Sippel LLC.  Branding & Designed by Menagery, Inc.
Manage Cookie Consent
To provide the best experiences, we use technologies like cookies to store and/or access device information. Consenting to these technologies will allow us to process data such as browsing behavior or unique IDs on this site. Not consenting or withdrawing consent, may adversely affect certain features and functions.
Functional Always active
The technical storage or access is strictly necessary for the legitimate purpose of enabling the use of a specific service explicitly requested by the subscriber or user, or for the sole purpose of carrying out the transmission of a communication over an electronic communications network.
Preferences
The technical storage or access is necessary for the legitimate purpose of storing preferences that are not requested by the subscriber or user.
Statistics
The technical storage or access that is used exclusively for statistical purposes. The technical storage or access that is used exclusively for anonymous statistical purposes. Without a subpoena, voluntary compliance on the part of your Internet Service Provider, or additional records from a third party, information stored or retrieved for this purpose alone cannot usually be used to identify you.
Marketing
The technical storage or access is required to create user profiles to send advertising, or to track the user on a website or across several websites for similar marketing purposes.
Manage options Manage services Manage {vendor_count} vendors Read more about these purposes
View preferences
{title} {title} {title}