Norfolk Southern v. Wilson, (4th Cir. 2001)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

N ORFOLK S OUTHERN R AILWAY

C OMPANY , Petitioner, v. No. 98-1929 M AURICE E. W ILSON , S R .; D IRECTOR ,

O FFICE OF W ORKERS ' C OMPENSATION

P ROGRAMS , U NITED S TATES

D EPARTMENT OF L ABOR , Respondents. On Petition for Review of an Order

of the Benefits Review Board. (97-1102)

Argued: December 7, 2000

Decided: February 7, 2001 Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit Judges.

Reversed by unpublished opinion. Judge Luttig wrote the opinion, in

which Judge Niemeyer and Judge Williams joined. COUNSEL ARGUED: James Long Chapman, IV, CRENSHAW, WARE &

MARTIN, P.L.C., Norfolk, Virginia, for Petitioner. Gregory Edward

Camden, MONTAGNA, KLEIN & CAMDEN, L.L.P., Norfolk, Vir-

ginia, for Respondents. ON BRIEF: Martha M. Poindexter, Sheryl-

Lynn C. Makela, CRENSHAW, WARE & MARTIN, P.L.C., Nor-

folk, Virginia, for Petitioner.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). OPINION LUTTIG, Circuit Judge:

Petitioner Norfolk Southern Railway Company appeals the Bene-

fits Review Board's order affirming the ALJ's grant of benefits to

respondent Maurice Wilson under the Longshore and Harbor Work-

ers' Compensation Act (LHWCA). Because Wilson previously col-

lected a settlement from Norfolk Southern under the Federal

Employers' Liability Act (FELA) for the same injury, the doctrine of

election of remedies bars his present action for benefits under the

LHWCA. Accordingly, we reverse the Board's order affirming the

award of LHWCA benefits. I. Respondent Maurice Wilson is a former employee at the Lambert's

Point Yard operated by petitioner Norfolk Southern Railway Company. 1

The Lambert's Point Yard receives, processes, and stores railroad cars

filled with coal that is then loaded onto ships. Wilson's job as a brake-

man entailed operating the brake on a railroad car to enable it to travel

down the track to the dock for loading. J.A. 24-26.

Wilson injured his back on the job in November 1985. He then

faced a decision whether to file for benefits under the Federal

Employers' Liability Act (FELA), 45 U.S.C. 51-60, or under the

Norfolk & Western Railway Company merged into its parent com-

pany during the pendency of this appeal and is now known as Norfolk

Southern Railway Company.

Longshore and Harbor Workers' Compensation Act (LHWCA), 33

U.S.C. §§ 901-50. The LHWCA provides the exclusive remedy for

maritime workers, whereas FELA provides the exclusive remedy for

railroad workers assisting in interstate commerce. See Chesapeake

and Ohio Ry. Co. v. Schwalb , 493 U.S. 40, 42 (1989) (where an

employee is covered by the LHWCA, "the remedy provided by that

Act is exclusive and resort may not be had to the Federal Employers'

Liability Act (FELA)"); Wabash R.R. Co. v. Hayes , 234 U.S. 86, 89

  (1914) (FELA is "exclusive in its operation, not merely cumulative").

Thus, before filing for benefits, Wilson had to decide whether, as a

brakeman at a yard where coal is unloaded from railroad cars onto

ships, he was a maritime worker exclusively eligible for benefits

under the LHWCA or a railroad worker exclusively covered by

FELA. In December 1986, Wilson elected to file an action against

Norfolk Southern in Virginia state court under FELA. His decision

was in accord with this court's precedent at the time, which held that

brakemen at the Lambert's Point Yard were not maritime workers and

were therefore not covered by the LHWCA. See Conti v. Norfolk &

Western Ry. Co. , 566 F.2d 890, 895 (4th Cir. 1977).

Wilson subsequently settled his FELA suit against Norfolk South-

ern for $150,000. Pursuant to the settlement, he released Norfolk

Southern from "all claims . . . in any way arising from" the accident

leading to his 1985 back injury, and he acknowledged that the settle-

ment "prevent[ed] [him] from making any further claims against

[Norfolk Southern] in connection with said accident . . . ." J.A. 317.

Several years later, we held, in light of an intervening Supreme

Court case, that brakemen at Lambert's Point are, in fact, maritime

workers whose exclusive remedy is provided by the LHWCA. See

Etheridge v. Norfolk & Western Ry. Co. , 9 F.3d 1087, 1090 (4th Cir. 3) (interpreting Chesapeake & Ohio Ry. Co. v. Schwalb , 493 U.S. (1989)). 2 Thus, in August 1995 Ð almost nine years after Wilson

We explained in Conti that brakemen are not covered by the LHWCA

because the tasks and functions they perform are typically associated

with railroading and are not of a traditionally maritime nature. See Conti ,

F.3d at 895. In Etheridge , we noted that the Supreme Court in

Schwalb specifically rejected the reasoning on which Conti was based,

and we held that brakemen are covered by the LHWCA because their

work is "integral or essential to the loading process," the standard set

forth in Schwalb . See Etheridge , 9 F.3d at 1090.

first filed his FELA action, and despite the settlement agreement bar-

ring future claims arising from his 1985 back injury Ð he filed the

present case under the LHWCA, seeking permanent partial disability

benefits from Norfolk Southern for the same back injury. The ALJ

awarded benefits to Wilson, the Benefits Review Board affirmed, and

this appeal followed. II. We placed this case in abeyance for Artis v. Norfolk & Western

Railway Co. , 204 F.3d 141 (4th Cir. 2000), which presented substan-

tially the same facts and issues as the present case. Norfolk Southern

argues, and the United States Department of Labor concedes, that

Artis controls this case. We agree. We held in Artis that the doctrine

of election of remedies bars a claimant from collecting LHWCA ben-

efits for the same injury that was the basis for a prior FELA settle-

ment with the same employer. Id . at 146. Here, too Ð

notwithstanding Wilson's attempts to distinguish the present case

from Artis Ð we hold that the election doctrine bars Wilson from

recovering LHWCA benefits after collecting a FELA settlement for

the same injury. A. The present case is nearly identical to Artis . In Artis , as here, the

claimant suffered a back injury in the mid-1980s while working as a

brakeman for Norfolk Southern at its Lambert's Point Yard. In Artis ,

as in this case, the claimant filed an action against Norfolk Southern

under FELA in state court and ultimately settled for $150,000. Like

Wilson, the claimant in Artis , subsequent to our decision in Etheridge ,

filed a claim under the LHWCA for benefits arising out of the same

injury that was the basis for his FELA settlement. And in Artis , as

here, the Board affirmed the ALJ's award of LHWCA benefits to the

claimant, less a credit to Norfolk Southern against the LHWCA bene-

fits for the amount of the FELA settlement. Artis , 204 F.3d at 142-43.

We held in Artis that the claimant "elected his remedy when he

prosecuted his FELA suit to judgment and that the doctrine of elec-

tion of remedies would bar his LHWCA claim." Id . at 146. We

explained that the election doctrine "refers to situations where an indi-

vidual pursues remedies that are legally or factually inconsistent." Id .

at 143. This case, like Artis , presents such a circumstance.

In 1986, Wilson claimed he was a railroad worker assisting in

interstate commerce, and that he was therefore entitled to FELA bene-

fits. Now, having already received FELA benefits in the form of a set-

tlement, Wilson asserts the contrary position Ð that he is actually a

maritime worker whose remedy lies under the LHWCA. Yet FELA

and the LHWCA are mutually exclusive remedies, and Wilson's ear-

lier claim to status as a railroad worker is inconsistent with his current

claim of maritime employment. Therefore, we conclude Ð as we did

in Artis Ð that Wilson is asserting factually and legally inconsistent

remedies. His LHWCA claim is thus barred under the election doc-

trine set forth in Artis . B. Wilson's attempts to distinguish Artis are unavailing. First, Wilson

argues that this case differs from Artis because he and Norfolk South-

ern stipulated before the ALJ in Wilson's FELA action that he was

entitled to temporary total disability benefits for the five months

immediately following the accident; in Artis , by contrast, the claim-

ant's entitlement to benefits for the period immediately following his

accident was disputed. Respondent's Br. at 14; J.A. 310. Wilson

argues that this stipulation demonstrates that Norfolk Southern has

acknowledged his entitlement to LHWCA benefits for a period after

the accident, and that Norfolk Southern is estopped from now arguing

that he is not eligible for LHWCA benefits. The stipulation cited by

Wilson, however, does not support his entitlement to benefits under

the LHWCA. In fact, the stipulation states that "there still is a dispute

between the parties as to whether the claimant met the status require-

ments under the Longshore and Harbor Workers' Compensation Act."

J.A. 311. Further, even if the parties had stipulated to Wilson's enti-

tlement to LHWCA benefits, such stipulation would only illustrate

that at the time Wilson elected his exclusive remedy under FELA, he

also believed he had the alternative of filing for LHWCA benefits.

Having consciously elected one of two mutually exclusive remedies,

he is now barred from pursuing the other.

Second, Wilson argues that Artis is inapplicable because, unlike the claimant in Artis , he concedes that Norfolk Southern is entitled to

reduce its obligations under the LHWCA by the amount of the FELA

settlement. Respondent's Br. at 20 (stating that Norfolk and Western

would be entitled to a credit under 33 U.S.C. 914(j) or under princi-

ples of unjust enrichment). Thus, Wilson argues that affirming the

award of LHWCA benefits would not afford him a windfall and that

the election doctrine is wholly inapplicable absent a risk of double

recovery.

However, even if Wilson voluntarily provided a credit to which

Norfolk Southern would not otherwise be entitled, 3 Artis would still

control the outcome of this case. For, while we stated in Artis that

"the clearest remedial dimension of election doctrine is found in deci-

sions that simply seek to prevent double recovery for a single injury,"

that decision did not hinge solely on the risk of double recovery, and

we did not limit application of the election doctrine to cases where

double recovery is threatened. 4 Artis , 204 F.3d at 143 (stating that the

We held in Artis that the railroad would not be entitled to a credit

toward LHWCA benefits for the amount of an earlier FELA settlement

arising out of the same accident. Artis , 204 F.3d at 145-46.

Our cases on election of remedies decided prior to Artis do not com-

pel a different result. In Freeman v. Norfolk and Western Railway Co. ,

F.2d 1205 (4th Cir. 1979), and Martin v. United States , 566 F.2d 895

(4th Cir. 1977), we declined to apply the election doctrine, in part

because there was no risk of double recovery. However, we emphasized

in both cases that there was also no "evidence of conscious intent to elect

[one remedy over another] and to waive . . . other rights." Martin , 566

F.2d at 895 (claimant's acceptance of LHWCA compensation benefits

that were unilaterally and voluntarily offered by employer was not an

unequivocal election of remedies that barred subsequent recovery in

tort); Freeman , 596 F.2d at 1208 (claimant's actions could not "be

deemed an `unequivocal' election" and hence did not constitute "a

release of his right to sue" in a subsequent action). Here, in contrast, it

is clear that Wilson elected his remedy when he filed his FELA suit and

pursued it until he reached a settlement. See Artis , 204 F.3d at 141

(claimant "elected his remedy when he prosecuted his FELA suit to judg-

ment."). Nor is there doubt that by settling his FELA action, Wilson was

on notice that he waived other rights and released his right to sue in a

subsequent action arising from the same injury. J.A. 317 (settlement

agreement in which Wilson released Norfolk Southern from "all claims

. . . in any way arising from" the accident leading to his 1985 back injury,

and acknowledged that the settlement "prevents [him] from making any

further claims against [Norfolk Southern] in connection with said acci-

dent . . . .").

doctrine applies where an individual pursues factually or legally

inconsistent remedies). Indeed, the prevention of double recovery is

but one purpose of the election doctrine. Cf . Dionne v. Mayor and

City Council of Baltimore , 40 F.3d 677, 681, 687 n.1 (4th Cir. 1994)

(discussing multiple purposes of the election doctrine, including but

not limited to the prevention of double recovery).

Accordingly, we conclude that, under Artis , the election doctrine

prevents Wilson from recovering LHWCA benefits for the same

injury that was the basis of his FELA settlement with Norfolk South-

ern. We therefore reverse the order of the Benefits Review Board

affirming the ALJ's grant of LHWCA benefits. CONCLUSION For the foregoing reasons, the order of the Benefits Review Board is reversed. REVERSED

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