803 S.E.2d 346
Va.2017Background
- Aaron J. Cole worked ~35 years for Norfolk Southern; was regularly exposed to asbestos and other toxic dusts.
- In 1996 Cole sued alleging occupational pneumoconiosis (asbestosis), fear of cancer, and increased future cancer risk; represented by counsel.
- In 2000 Cole settled that suit and executed a general release (for $20,000) that expressly discharged Norfolk Southern from claims including "increased risk of cancer," "fear of cancer," and "any and all forms of cancer."
- Cole was diagnosed with lung cancer in 2009 and died in 2010; his executor sued Norfolk Southern under FELA alleging the death resulted from employer negligence.
- Norfolk Southern pleaded the 2000 release as a complete bar; Cole argued the release was void under § 5 of FELA (45 U.S.C. § 55) because it attempted to exempt the carrier from liability for a claim that had not yet manifested.
- The trial court sustained the plea in bar, finding Cole intended to release future cancer claims; the Virginia Supreme Court granted appeal and affirmed, adopting the "risk of harm" test.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of a broad release under § 5 of FELA when it covers known risks of future disease | Cole: release is void under § 5 because it attempts to waive a claim that had not yet accrued (lung cancer); only accrued claims or specific injuries may be released | Norfolk Southern: release was part of a negotiated settlement of Cole's asbestosis claim and expressly covered increased cancer risk and cancer claims; therefore valid | Court: Adopted the "risk of harm" test; release valid if (1) part of a negotiated settlement of a FELA claim and (2) limited to risks known to parties when signed; factual finding that Cole intended to release future cancer claims was upheld |
| Proper standard for determining when a release violates § 5 of FELA | Cole: Release should be invalid unless the precise injury already manifested at signing (accrued-claim rule / bright-line approach) | Norfolk Southern: Parties may settle known risks of future injury; releases of known risks are enforceable if freely negotiated | Court: Rejected the bright-line/known-injury rule (Babbitt) and adopted the fact-intensive risk-of-harm (known-risk) test from Wicker |
| Effect of Ayers dicta permitting a second action if cancer later develops | Cole: Ayers implies only accrued claims (manifest injuries) can be released; supports his position | Norfolk Southern: Ayers did not address § 5 releases and does not forbid settling known future risks; dicta not controlling here | Court: Ayers dicta not controlling; does not require adopting the accrued-claim rule; parties may settle known future risks |
| Adequacy of consideration and voluntariness of the 2000 settlement | Cole: $20,000 was meager and suggests he did not understand waiver of life‑threatening future claims | Norfolk Southern: Cole was represented by counsel, negotiations occurred, and settlement amount was not so inadequate as to vitiate intent | Court: Trial court’s factual findings that Cole knowingly released the risks were not plainly wrong; upheld voluntariness and sufficiency |
Key Cases Cited
- Philadelphia, B. & W. R.R. Co. v. Schubert, 224 U.S. 603 (1912) (release conditioned on receipt of relief benefits held void under § 5 as an attempt to exempt carrier from liability)
- Duncan v. Thompson, 315 U.S. 1 (1942) (release obtained under dire financial circumstances held void because its purpose was to exempt carrier from liability)
- Callen v. Pennsylvania R.R. Co., 332 U.S. 625 (1948) (parties may settle disputed FELA claims; a release executed to compromise a controversy is not per se void)
- Wicker v. Conrail, 142 F.3d 690 (3d Cir. 1997) (adopts the "risk of harm" known‑risk test; release valid if negotiated and limited to risks known to parties)
- Babbitt v. Norfolk & W. Ry. Co., 104 F.3d 89 (6th Cir. 1997) (advocates a bright‑line known‑injury rule limiting releases to injuries already manifested)
- Norfolk & W. Ry. v. Ayers, 538 U.S. 135 (2003) (permits recovery for mental anguish from fear of cancer in asbestosis cases; contains dicta about bringing a later action if cancer develops)