In this action brought under the Federal Employers’ Liability Act (fela), 45 USC 51 et seq., plaintiff appeals as of right an order of the circuit court granting defendant summary disposition pursuant to MCR 2.116(C)(7) (claim barred by release). We affirm.
i
For most of his adult life, plaintiff’s decedent, Justin T. Gortney, Jr., worked as a switchman and yardmaster for defendant, Norfolk & Western Railway Company. In 1987, Mr. Gortney accepted defendant’s offer of early retirement. According to the terms of the agreement, Mr. Gortney received $40,000 in exchange for his decision to sign a “resignation and release.” The written resignation and release states in pertinent part:
I, J. T. Gortney . . . hereby resign and surrender any right to employment by Norfolk Southern Corporation, Norfolk and Western Railway Company, Southern Railway Company and any employer affiliated with or controlled by any of the aforenamed companies, for convenience referred to hereinafter individually and collectively as the “Company,” and hereby release and forever discharge the Company and its agents, officers and employees 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 discrimination, or covering the conditions of my employment.
This resignation and release and the deductions [of federal and state taxes] authorized herein are fully understood BY ME. THIS DOCUMENT IS EXECUTED VOLUNTARILY AND SOLELY FOR THE CONSIDERATION ABOVE EXPRESSED, WITHOUT ANY OTHER REPRESENTATION, PROMISE, OR AGREEMENT OF ANY KIND WHATSOEVER HAVING BEEN MADE OR OFFERED TO ME BY THE COMPANY OR ANY AGENT, OFFICER, EMPLOYEE, OR REPRESENTATIVE OF THE SAID COMPANY.
On September 30, 1987, Justin T. Gortney executed the above document and retired from defendant’s employ. Approximately two years later, Mr. Gortney died of lung cancer. In 1992, plaintiff as personal representative of the estate brought suit against defendant under the fela. Plaintiff claims that occupational exposure to diesel fumes caused decedent’s lung cancer and subsequent death.
In November 1993, defendant moved for summary disposition pursuant to MCR 2.116(C)(7) on the grounds that plaintiff’s claim was barred by the terms of the release and by operation of the applicable statute of limitations. The trial court granted defendant’s motion, ruling that the release barred plaintiff’s cause of action. The trial court did not address defendant’s argument that plaintiff’s complaint was barred by the statute of limitations.
n
A felá case adjudicated in state court is subject to state procedural rules.
St Louis SW R Co v Dickerson,
in
Plaintiff first contends that the trial court misconstrued the language of the release as being sufficiently broad to encompass claims for personal injury. We disagree. The United States Supreme Court has directed that federal law be employed to assess the validity of a release that waives fela rights.
Maynard v Durham & S R Co,
The scope of a release is controlled by the intent of the parties as it is expressed in the release. See, e.g.,
Taggart, supra
at 870;
Virginia Impression Products, supra
at 265;
Gramer v Gramer,
In the present case, the language of the release evidences a clear intent to settle and to release defendant from liability for “any claim[,] . . . demand, action or cause of action, of any kind whatsoever, known or unknown, which [decedent had] or could have [had] on account of, or in any manner arising out of or connected with, [his] employment.” We find no ambiguity in this broad, all-encompassing language. Indeed, the language releasing “any claim ... of any kind whatsoever” can hardly be interpreted as excluding claims for personal injury. See, e.g.,
Taggart, supra; Virginia Impression Products,
supra;
Dombrowski v City of Omer,
IV
Plaintiff also claims that the release cannot validly waive a fela claim because it was premised upon a mutual mistake of fact. Again, we disagree. Pursuant to federal law, and consistent with state law, the party challenging a release bears the burden of establishing its invalidity.
Callen v Pennsylvania R Co,
A release agreement may be set aside on the basis of a mutual mistake only if plaintiff can establish that at the time the release was executed, both parties were mistaken concerning an existing fact that was material to the agreement.
Counts v Burlington N R Co,
952 F2d 1136, 1141 (CA 9, 1991);
Locke v Atchison T & S F R Co,
309 F2d 811, 816 (CA 10, 1962);
Cleveland-Cliffs, supra
at 1152; see also
Gust v Consolidated Rail Corp,
In the instant case, plaintiff has documented no facts in support of her contention that decedent did not intend to execute a general release. Nor does plaintiff allege or document that decedent did not understand the release to be a general release of all claims. Virginia Impression, supra at 265. Therefore, we conclude that plaintiff has failed to establish a genuine issue of material fact in support of her position.
Further, plaintiff effectively concedes the inapplicability of the mutual mistake doctrine by emphasizing in her appellate brief that the existence or nature of “decedent’s health was not material to the release.” Because the doctrine of mutual mistake applies only when the mistaken fact was material to the agreement,
Heston, supra
at 128;
Gust, supra
at 92; Calamari, § 9-26, pp 379, 383, the alleged mutual mistake regarding decedent’s health cannot invalidate the release in light of plaintiff’s concession that decedent’s health was immaterial to the release agreement. The cases plaintiff cites in support of her mutual mistake argument concern settlements arising out of specific actions for personal injury. See
Taylor v Chesapeake & O R Co,
518 F2d 536 (CA 4, 1975);
Gust, supra.
In each case, the nature of the injuries was material to the agreements because the settlements and releases were allegedly bargained for and
v
Finally, plaintiff claims that pursuant to 42 USC 55, the general release at issue cannot exempt defendant from fela liability. However, plaintiff failed to raise this issue below. Furthermore, the facts necessary for us to address this issue have neither been presented nor resolved.
1
Accordingly, plaintiff has waived this issue.
Booth Newspapers, Inc v Univ of Michigan Bd of Regents,
In view of our disposition, we find it unnecessary to address the issues raised in defendant’s cross appeal.
Affirmed.
Notes
According to plaintiff’s deposition testimony, decedent had complained that the noxious diesel fumes he had encountered at work had made him cough and had caused him respiratory trouble. Plaintiff’s testimony suggests that decedent had complained about these problems during his tenure of employment with defendant. Because these observations present an unresolved factual issue regarding whether decedent had bargained away and released a known fela claim, we cannot conclude that all facts necessary for resolution of this issue are presented on appeal. See, e.g.,
South Buffalo R Co v Ahern,