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11th Circuit
Norfolk Southern Railway Company v. Everett PDF Print E-mail
Written by Steve Gordon   
Monday, 02 November 2009 18:27
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Case Name: Norfolk Southern Railway Company v Everett
Date Decided: July 7, 2009
Court: Court of Appeals of Georgia
Judge: Judge Doole
Citation: 299 Ga.App. 420

Background:
Plaintiff, Michael Everett, brought an action under the Federal Employers’ Liability Act (“FELA”) against employer, Norfolk Southern Railway (“Norfolk Southern”).

On March 6, 2006, Everett was moving a six-car train filled with auto parts down an incline into an auto plant. One of the employees misinformed Everett that the train derailment device was in the “off” position while in fact it was in the “on” position.

Everett moved the train forward, and because of the derailment device position, the cars began derailing 150 feet from the auto plant’s entrance. Everett quickly applied the engine brakes but the train traveled 300 feet before it stopped. Everett claims he was “slightly pulled” in his seat during the incident but suffered no physical injury.

Everett sued Norfolk Southern under the FELA claiming negligent infliction of mental distress. Everett claimed he became frightened and believed if it didn’t stop he and his co-workers might be killed.

The trial court denied Norfolk’s motion for summary judgment and appealed to this Court. The Court reasoned that it cannot say that Everett was within the zone

Issue:
Did the trial court err in denying Norfolk’s motion for summary judgment in opposition to Everett’s claim under FELA for Negligent infliction of mental distress?

Held:
Under federal law whether an employee’s claim satisfies the zone of danger test is a legal question which an appellate court reviews de novo.

The zone of danger test limits recovery for emotional distress, under FELA, to those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct. That is, those within the zone of danger of physical impact can recover for fright.

This Court found that Everett failed to meet the first prong of the test, sustaining a physical impact because an event cannot constitute a physical impact unless it has a physically harmful effect on the body. As such, this Court found that a train engineer who experiences a “jolt” of the movement of the cars in the train caused by the train hitting another car is insufficient.

However, this Court found Everett met the second prong, which requires that the event “place him in immediate risk of physical harm” because the derailment and collision were a direct result of the misinformation from a co-worker that it was safe to proceed.

This Court ultimately held that in light of the evidence most favorable to Everett, including his sworn statement that he suffered emotional distress, but despite the lack of physical injury that Everett is not barred from recovery.

Accordingly this Court found that it could not conclude Everett, as a matter of law, was outside the zone of danger.

Comment:
This Court did not find conclusively whether Everett was within or outside the zone of danger required by FELA to recover for emotional injuries. However, it did find, based on Everett’s sworn testimony and FELA’s broad goal of providing for relief to injured railroad employees that there was sufficient evidence to create genuine issues of material fact as to whether Everett was within the zone of danger.

Steve Gordon

 
Michael J. Warshauer v. Hilda Solis, US Secretary of Labor PDF Print E-mail
Written by Steve Gordon   
Friday, 21 August 2009 22:30
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Case Name: Michael J. Warshauer v. Hilda Solis, United States Secretary of Labor
Date Decided: August 3, 2009
Court: United States Court of Appeals, Eleventh Circuit
Judge: Judge Wilson
Citation: 2009 WL 2357378 (C.A.11)

Background:
Attorney for a labor union brought action under the Administrative Procedure Act (APA), challenging the Department of Labor’s (DOL) new interpretation of reporting provision of Labor-Management Reporting and Disclosure Act (LMRDA) to require DLC’s, designated legal counsel, to file annual reports of payments, over a designated dollar amount, to a union or union officer or employee.

Michael J. Warshauer (“Warshauer”), an attorney who specializes in Federal Employers Liability Act (“FELA”) claims. A rail labor union, the United Transportation Union (UTU) appointed him as a DLC. As a DLC, the UTU recommends Warshauer to its members for representation in workers’ compensation cases, personal injury cases, and other matters. Warshauer offers this legal counsel to UTU members at a reduced fee of 25%.

In October 2002, the DOL sent Warshauer a letter informing him that “payments made or promised to the UTU, either directly or indirectly, by each DLC that is an ‘employer’ within the meaning of section 3(3) of the LMRDA, must be disclosed on Employer Report in accordance with the statute.

Warshauer claimed he was not an ‘employer’ under §203 (a)(1) of the LMRDA.

The district court granted Hilda Solis’ motion for summary judgment. The court held that the website advisories regarding both coverage of DLC’s and the $250 threshold for reporting were interpretative guidance, not substantive rules, and thus, even if they departed from the Secretary’s prior interpretation, notice and comment rulemaking was not required. It also ruled that the Secretary’s interpretation of the term “employer” reflected the plain meaning of the statute and was not arbitrary and capricious.

Issue:
Did the district court err in awarding the Solis’ motion for summary judgment?

Held:
Warshauer first argues that (1) the Secretary’s (Solis) advisories requiring DLCs to file Form LM-10 depart from the plain language of the Act and statutory purpose as articulated in its legislative history.

This Court held however, that the plain language of §203(a) applies to all employers who made non-exempt payments. It does not contain any requirement that the employer participate in persuader or other labor relations activities. Therefore, Warshauer’s contention that he is not an “employer” as defined under the Act is rejected.

Second, Warshauer claimed that the advisories applying the Form LM-10 reporting requirements to DLCs and setting a numeric threshold for the de minimis exemption requires (1) notice and (2) comment rulemaking. Warshauer argued that the advisory applying Form LM-10 was a new rule change to the substantive state of the law. The Secretary argues that notice and comment is not required because the advisory is an interpretive rule merely stating what the DOL §203(a)(1) means.

This Court held that the rule applying the Form LM-10 reporting requirements to DLCs is an interpretive rule. It is relevant that the Secretary characterizes the rule as interpreting §203(a)(1), the Secretary’s interpretation is drawn directly from the plain language of the statute, and the rule only reminded affected parties of existing duties. It does not create a new law, right, duty, or have any effect independent of the statute.

Accordingly, this Court affirmed the lower court’s grant of summary judgment in favor of the Secretary.

Comment:
At issue, was whether the DOL’s secretary advisory, that Designated Legal Counsel report payments made to them,  was beyond the scope of the LMRDA.

When an agency, such as the DOL, proposes a new rule or duty pursuant to an act, they must provide a period to collect comment rulemaking and adequate notice to those affected by the rule changes. The purpose of the comment period is to allow those that will be affected by the new regulation to object to it and thus, provide a record for objections to be used in Court in the future. However, the DOL here did not make a new rule but merely an advisory or a “strong suggestion” that DLCs should submit a form outlining their earnings above a set amount.

This was found to be in the spirit of the LMRDA.

Steve Gordon
http://www.Gordon-Elias.com

Last Updated on Monday, 12 October 2009 13:15
 


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