Crowe v. CSX Transportation

Clyde Jackson Crowe and Veronica Crowe v. CSX Transportation, Inc., No. 922, September Term 2018 Opinion by Eyler, James R., J. Occupational diseases-FELA-LHWCA claims Clyde Jackson Crowe and his spouse, Veronica Crowe, filed suit in the Circuit Court for Baltimore City against CSX Transportation, Inc. (CSX), seeking damages under the Federal Employer’s Liability Act (FELA), 45 U.S.C. §§51-60 . The Crowes alleged that Mr. Crowe was exposed to asbestos fibers, in the 1960s, while employed by CSX. In 2016, Mr. Crowe was diagnosed with mesothelioma, allegedly caused by that exposure. The circuit court entered summary judgment in favor of CSX on the ground that Mr. Crowe’s claim was covered by the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§901-950 , which constituted the exclusive remedy.

In 1972, Congress amended the LHWCA to expand coverage to land based port workers who are “engaged in maritime employment.” Prior to 1972, Mr. Crowe worked at a port facility but on land; thus; he was not covered by the LHWCA. The Crowes contended that the 1972 amendment could not lawfully be retroactively applied to him or, in the alternative, that he was not “engaged in maritime employment.” Held that Mr. Crowe is engaged in maritime employment and that the 1972 amendment applies to him. Mr. Crowe did not sustain an injury until manifestation of his disease. Application of the 1972 amendment is consistent with the Congressional intent to extend coverage to additional workers and to convert conduct-based fault liability under the FELA to non-fault compensation under the LHWCA.

The LHWCA provides the exclusive remedy. Circuit Court for Baltimore City Case No.: 24X16000585 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 922 September Term, 2018 ______________________________________ CLYDE JACKSON CROWE AND VERONICA CROWE v. CSX TRANSPORTATION, INC. ______________________________________ Fader, C.J., Graeff, Eyler, James R. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Eyler, James R., J. ______________________________________ Filed: August 28, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act *Meredith, Arthur and Gould, JJ., did not (§§ 10-1601 et seq. of the State Government Article) this document is authentic. participate in the Court’s decision to designate 2020-01-16 09:46-05:00 this opinion for publication pursuant to Md. Rule 8-605.1. Suzanne C. Johnson, Clerk Clyde Jackson Crowe, and his wife, Veronica Crowe, filed suit in the Circuit Court for Baltimore City against CSX Transportation, Inc. (CSX), and nineteen other defendants, seeking damages under the Federal Employer’s Liability Act (FELA), 45 U.S.C. §§ 51-60 , in pertinent part, alleging that Mr. Crowe was exposed to asbestos during his employment with CSX and that such exposure caused him to develop malignant mesothelioma.

CSX filed a motion to dismiss or, in the alternative, for summary judgment, arguing that Mr. Crowe’s claim for damages against CSX under FELA was barred because the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901-950 , provided his exclusive remedy against CSX for employment-related claims. Following oral argument, the circuit court granted CSX’s motion and entered judgment in favor of CSX. This appeal followed. Mr. Crowe presents two issues for our review, which we have rephrased as follows:1 1.

Did the circuit court err in concluding that Mr. Crowe’s FELA claim against CSX is barred by the LHWCA? 2. Assuming the 1972 Amendments to the LHWCA apply to Mr. Crowe’s claims, does he meet the “status” requirement of a maritime employee under the 1972 Amendments to the LHWCA? 1 The issues presented, as framed by Mr. Crowe, are: 1. Can the 1972 Amendments to the LHWCA retroactively extinguish Mr. Crowe’s rights and CSX’s liabilities under the FELA? 2. Assuming the 1972 Amendments to the LHWCA apply to Mr. Crowe’s claims, did the Amendments change his work from railroad work to “maritime” work such that the “status” requirement of the 1972 Amendments is satisfied?

For the reasons stated below, we conclude that the 1972 Amendments apply to Mr. Crowe; Mr. Crowe was a maritime worker within the meaning of the Amendments; and the LHWCA provides the exclusive remedy. Thus, the circuit court did not err in entering judgment in favor of CSX. We affirm the judgment of the circuit court. BACKGROUND From 1960 to 1969, Mr. Crowe was employed by Western Maryland Railway, predecessor to CSX,2 as a railway operator and foreman at the Port Covington railyard and port facility in Baltimore, Maryland.

The operations at that location consisted of loading and unloading ships; storing the freight in warehouses; and shipping the goods to customers via railcars and trucks. Mr. Crowe’s job duties included supervising the loading of freight from the warehouses onto railcars and trucks. According to Mr. Crowe, twice per year between 1960 and 1969, burlap bags of raw asbestos arrived by ship at Port Covington. Dockworkers unloaded the burlap bags of asbestos from ships using a metal hook.

The hook frequently tore holes in the burlap bags, allowing raw asbestos to spill from the bags. Dockworkers loaded the bags of asbestos onto pallets and delivered them to warehouses for storage. The bags of asbestos could remain in the warehouses for up to one month before they were shipped out on railcars or trucks. While supervising the railroad workers who loaded the stored bags of asbestos onto railcars and trucks, he was in close contact with the workers handling bags of asbestos, including torn bags.

On occasion, Mr. Crowe participated in physically moving the freight. 2 Western Maryland Railway and CSX shall be referred to collectively as “CSX”. 2 Mr. Crowe was exposed to asbestos fibers in the warehouse and during the loading of the asbestos bags onto railcars and trucks. On August 30, 2016, Mr. Crowe was diagnosed with malignant mesothelioma, allegedly caused by his exposure to asbestos fibers from 1960 to 1969. On December 21, 2016, he and Mrs. Crowe brought a personal injury action in circuit court under FELA. DISCUSSION In this case, the circuit court did not specify whether it granted CSX’s motion to dismiss or motion for summary judgment.

The motion papers were supported by answers to interrogatories and deposition testimony. When, as here, a trial court considers materials outside the complaint, we ordinarily treat a motion to dismiss as a motion for summary judgment. We review the grant of the motion “without deference for legal correctness.” Floyd v. Mayor & City Council of Baltimore, 463 Md. 226, 241 (2019), reconsideration denied (May 16, 2019). Because a circuit court’s decision to grant summary judgment is a question of law, our review is de novo.

Vito v. Grueff, 453 Md. 88, 104 (2017). FELA FELA was enacted to provide a tort remedy for railroad employees who were injured in the course of their employment caused by the negligence of the employer. Merrill v. Chicago & Illinois Midland Ry., 751 F. Supp. 770, 772 (C.D. Ill. 1990). FELA, 45 U.S.C. § 51 provides, in part: Every common carrier by railroad while engaging in ... [interstate commerce] ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, ... resulting in whole or in part from the negligence of any of the officers, agents or employees of such 3 carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

FELA retained a fault system. The basis of liability is negligence, but it abolished the common law defenses of contributory negligence, assumption of the risk, and the fellow servant rule. Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 542-543 (1994). “The FELA law is a hybrid. It hovers ambivalently between workers’ compensation law and the common law tort of negligence.

It is neither, but it partakes of characteristics of both.” CSX Transp., Inc. v. Miller, 159 Md. App. 123, 129 (2004). FELA was enacted in 1906, at a time when few states had workers’ compensation laws, and thousands of railroad workers were being injured, maimed, and killed on the railways. Id. at 130 . “FELA has been defended as more advantageous to railroad employees than an act patterned on workers’ compensation statutes.” Philip D. Oliver, Once Is Enough: A Proposed Bar of the Injured Employee’s Cause of Action Against A Third Party, 58 Fordham L. Rev. 117 , 172 (1989). We have recognized that “although the FELA is not a workers’ compensation act, the social forces that produced it and the generating spirit that drives it resonate with the language and philosophy of workers’ compensation principles.” CSX Transp., Inc. v. Miller, 159 Md. App. at 131 .

LHWCA By the 1920s and before the LHWCA was enacted in 1927, a longshore worker injured on the land side of a port facility was generally covered by state workers’ compensation statutes. A worker injured on the seaward side generally had no remedy. In Southern Pacific Co. v. Jenson, 244 U.S. 205 (1917), the Supreme Court held that a state 4 had no power to extend a compensation remedy to workers on the seaward side. The LHWCA was enacted to provide benefits to seaside workers. “The LHWCA is remedial legislation intended to provide a remedy to workers injured during longshoring activities.” Merrill, 751 F. Supp. at 775 ; 33 U.S.C. § 903 .

The LHWCA was enacted to provide federal workers’ compensation benefits to maritime workers who sustained injuries upon “navigable waters” but were not covered by federal admiralty and did not have other remedies. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 257-58 (1977); Merrill, 751 F. Supp. at 775 . The LHWCA provides for the payment of compensation “in respect of disability or death” caused by an injury that occurred on navigable waters. 33 U.S.C. §903 . Initially, the LHWCA’s coverage was interpreted to exclude maritime workers who suffered injuries on land.

See Nacirema Operating Co. v. Johnson, 396 U.S. 212, 223 (1969). Under the caselaw prior to 1972, the “situs” determined the applicability of the LHWCA, and the dividing line was the water’s edge. This created “anomalous and inconsistent results” in the coverage available to injured longshore workers. P. C. Pfeiffer Co. v. Ford, 444 U.S. 69, 72 (1979); Merrill, 751 F. Supp. at 775 .

See, e.g., Davis v. Department of Labor and Industries of Washington, 317 U.S. 249 (1942). In 1972, Congress amended the LHWCA and expanded the definition of “navigable waters of the United States” to include areas such as adjoining piers, docks and terminals customarily used in the loading, unloading, building and maintenance of ships. Caputo, 432 U.S. at 263-64 . See 33 U.S.C. § 903 (a).

The 1972 Amendments thereby extended the 5 location or “situs” requirement under the LHWCA to include maritime employees injured on water and land. Id. At the same time, Congress also enacted a “status” requirement for employees to qualify for compensation under the LHWCA. P.C. Pfeiffer Co., 444 U.S. at 73-74 ; 33 U.S.C. § 902 (3).

The status test broadened the definition of persons covered by the LHWCA to include workers “engaged in maritime employment.” The Act now extends coverage to more workers by replacing the single-situs requirement with a two-part situs and status standard. The newly broadened situs test provides compensation for an “employee” whose disability or death “results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).” § 3(a), 33 U.S.C. § 903 (a). The status test defines an employee as “any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker . . . .” § 2(3), 33 U.S.C. § 902 (3). To be eligible for compensation, a person must be an employee as defined by § 2(3) who sustains injury on the situs.

P.C. Pfeiffer Co., 444 U.S. at 73-74 ; 33 U.S.C. § 902 (3). As applied, the term “maritime employment” embodies an occupational rather than a geographic concept. P.C. Pfeiffer Co., 444 U.S. at 79 . Individuals performing jobs other than those specifically listed under § 902(3) satisfy the “status” requirement if they are engaged in some portion of the activity of moving cargo from ship to land based customers.

Id. at 82-83. In determining whether a person is engaged in maritime employment, “the crucial factor is the nature of the activity to which a worker may be assigned.” Id. at 82. 6 Under the LHWCA, the liability of an employer is “exclusive and in place of all other liability of such employer to the employee.” 33 U.S.C. § 905 (a). A railroad employee who is covered by the LHWCA is barred from pursuing an action against his or her employer under FELA. Hayes v. CSX Transp.

Inc., 985 F.2d 137, 139 (4th Cir. 1993) (citing Chesapeake & Ohio Ry. v. Schwalb, 493 U.S. 40, 42 (1989); Vogelsang v. Western Md. Ry., 670 F.2d 1347 -48 (4th Cir. 1982)). “The LHWCA preempts the FELA as to railroad employees engaged in maritime employment.” Conligio v. Norfolk & W. Ry. Co., 670 F. Supp. 1353, 1354 (E.D. Mich. 1987) (citing Pennsylvania R.R. Co. v. O’Rourke, 344 U.S. 334, 73 (1952)) (internal quotation marks omitted). Analysis I. The issue before us is whether Mr. Crowe’s claim is covered by the 1972 Amendments to the LHWCA. If the claim is covered, the LHWCA preempts FELA and provides the exclusive remedy.

At the time of Mr. Crowe’s exposure to asbestos between 1960 and 1969, FELA provided a remedy for railroad employees who were injured on land in the course of their employment. The LHWCA did not. Mr. Crowe argues that he sustained an “injury at work” when he was exposed to asbestos in the 1960’s, before the Amendments became effective. Relying primarily on Landgraf v. USI Film Prods., 511 U.S. 244 (1994), Mr. Crowe argues that application of the 1972 Amendments to him would result in an unlawful retroactive application of the LHWCA, depriving him of his FELA claim.

Mr. Crowe observes that his benefits under FELA, if allowed, would be greater than 7 the benefits available under the LHWCA.3 He argues that applying the 1972 Amendments to the LHWCA would change the legal consequences of CSX’s conduct that occurred in the 1960s. Relying on John Crane, Inc. v. Scribner, 369 Md. 369 (2002), Mr. Crowe further argues that his claim arose on exposure even though manifestation of the disease is when, under FELA, his cause of action would have accrued for limitations purposes. See Schweitzer v. Consol. Rail Corp., 758 F.2d 936 , 942 (3d Cir. 1985) (“[A]s a matter of federal law, F.E.L.A. actions for asbestos-related injury do not exist before manifestation of injury.”).

Thus, in the absence of application of the 1972 Amendments, he could make a claim under FELA based on the manifestation of his disease in 2016. The ultimate question, according to Mr. Crowe, is whether the 1972 Amendments can reclassify him from a railroad worker to a maritime worker. CSX contends that Mr. Crowe’s employment satisfies the “status” and “situs” tests of the LHWCA, as amended in 1972. CSX argues that Mr. Crowe was “injured” for purposes of the LHWCA in 2016, when he was diagnosed with mesothelioma, and therefore, application of the 1972 Amendments to his claim does not constitute a retroactive application of the statute.

CSX observes that “disability or death” is the trigger for benefits under the LHWCA. It argues that Congress expressly determined that the LHWCA Amendments cover all occupational disabilities and deaths that occur after the Amendments’ effective date. Preliminarily, we acknowledge that we are not aware of any 3 We assume that statement to be true for purposes of resolving the issues before us. 8 reported appellate decision addressing retroactivity that is squarely on all fours with the facts of this case. Retroactivity is generally disfavored in the law.

Landgraf v. USI Film Products, 511 U.S. 244, 267 (1994). Statutory retroactivity can present problems of unfairness “because it can deprive citizens of legitimate expectations and upset settled transactions.” General Motors Corp. v. Romein, 503 U.S. 181, 191 (1992). “Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.” Landgraf, 511 U.S. at 265 . In Landgraf, the Supreme Court held that provisions of the Civil Rights Act of 1991 did not apply to a sexual harassment case under Title VII of the Civil Rights Act of 1964 pending on appeal when the 1991 Act became effective. Landgraf, 511 U.S. at 244 .

The 1991 Act subjected the employer to increased liability and potential compensatory and punitive damages, which were not previously available under the statute. Id. at 250 . The Court ultimately determined that subjecting the employer to liability under the 1991 Act for compensatory and punitive damages had the retroactive effect of requiring employers to pay for the harms that they caused and created a “new legal burden” or cause of action for past conduct. Id. at 282-83 .

The Supreme Court explained that “[a] statute does not operate retrospectively merely because it is applied in a case arising from conduct antedating the statute’s enactment.” Id. at 269 . A statute has retroactive effect if “it would impair rights a party 9 possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Id. at 280 . “[D]eciding when a statute operates ‘retroactively’ is not always a simple or mechanical task.” Id. at 268 . The Supreme Court set forth a three-part analysis in Landgraf for determining whether a statute applies retroactively to cases that arise before its enactment. Id. at 280-85 .

The first step of the analysis is to determine whether “Congress has expressly prescribed the statute’s proper reach.” Id. at 280 . If Congress has expressly stated that the statute should be applied retroactively, there is no need to resort to rules of statutory construction. Id. If a statute does not expressly prescribe its own proper reach, a court must proceed to the second step and consider whether the statute “would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Id.

If the court concludes that the statute would have retroactive effect, the court must consider the third step in the analysis, which provides that the statute will not apply to pre-enactment conduct “absent clear congressional intent favoring such a result.” Id. The Court explained that “[t]he conclusion that a particular rule operates ‘retroactively’ comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event.” Id. at 270 . Applying the Landgraf analysis in the present case, we begin by observing that Congress, in the 1972 Amendments, did not expressly address the retroactive effect on 10 workers who were previously not covered under the LHWCA, who sustained latent occupational injuries, and who were covered under the 1972 Amendments. Nevertheless, Congress implicitly expressed that intent.

It clearly intended to extend the LHWCA’s coverage to protect additional workers. Northeast Marine Terminal, 432 U.S. at 251 . It also preempted the FELA with respect to railroad employees engaged in maritime employment, Conligio, 670 F. Supp. at 1354 , clearly intending to convert conduct-based fault liability to non-fault compensation. Nevertheless, we shall consider all aspects of the Landgraf analysis.

Landgraf at 280 . Mr. Crowe argues that, under step two of the Landgraf analysis, application of the 1972 Amendments to his claim would have a retroactive effect because it would “immunize the railroad’s negligent conduct and alleviate the legal burdens attached to that conduct, as well as impair [his] rights with respect to injuries sustained as a result of that conduct.” Prior to 1972, CSX was liable under FELA for work-related injuries to employees, caused by its negligence. The 1972 Amendments had the effect of changing the nature of CSX’s liability from negligence liability in tort under FELA, to no-fault workers’ compensation liability under LHWCA. Unlike the statutory amendment at issue in Landgraf which subjected the employer to increased compensatory and punitive damages, the 1972 Amendments changed CSX’s exposure from an uncertain amount to a fixed no-fault compensation plan.

Applying the Landgraf factors, we conclude that Congress favored this result, and the result does not unlawfully affect “completed transactions.” Apparently recognizing that federal courts of appeal that have considered the question have held that a cause of action under the LHWCA does not accrue until 11 manifestation of the disease, see infra, Mr. Crowe contends that the “determinative issue” in whether a statute is being applied retroactively is not the accrual date of the cause of action, but the effect that the change in the law has on the parties’ prior conduct. As explained in the concurrence in Landgraf , the “critical issue” for application of the retroactivity analysis “is not whether the rule affects ‘vested rights,’ or governs substance or procedure, but rather what is the relevant activity that the rule regulates.” Id. at 291 , 114 S. Ct. 1522 (Scalia, J., concurring). See also I.N.S. v. St. Cyr, 533 U.S. 289, 292-93 (2001) (“The second question is a substantive one, concerning the impact of the amendments on the conduct that