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.