Ammons v. Canadian National Ry. Co.

2019 IL 124454
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 124454)
MELVIN AMMONS et al., Appellees, v. CANADIAN NATIONAL RAILWAY
COMPANY et al. (Wisconsin Central, Ltd., Appellant).
Opinion filed December 19, 2019.—Rehearing denied January 27, 2020.
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Burke and Justices Thomas, Karmeier, and Theis concurred in the
judgment and opinion.
Justice Kilbride dissented, with opinion, joined by Justice Neville.
Justice Kilbride dissented upon denial of rehearing, with opinion, joined by
Justice Neville.
OPINION
¶1 The Federal Employers’ Liability Act (FELA) (45 U.S.C. § 51 et seq. (2012))
provides the exclusive remedy for railroad employees to recover damages for
injuries suffered due to their employer’s negligence. This appeal asks whether
counterclaims filed by a railroad employer against its allegedly negligent
employees are prohibited by sections 55 and 60 of the FELA. We hold that they are
not prohibited. We reverse the appellate court’s decision and remand to the circuit
court for further proceedings.
¶2 BACKGROUND
¶3 Plaintiffs Melvin Ammons and Darrin Riley filed separate lawsuits under the
FELA against defendant Wisconsin Central, Ltd. (Wisconsin Central), for injuries
they sustained during their employment with the railroad in December 2014.
Ammons was employed as a conductor, and Riley was the locomotive engineer
when the train they were operating struck another train that was stationary on the
same track. In their lawsuits, both plaintiffs alleged Wisconsin Central was
negligent in violating various rules and regulations, which resulted in their injuries.
As the lawsuits concerned the same incident and contained similar issues, the Cook
County circuit court consolidated the cases.
¶4 Wisconsin Central denied liability and filed counterclaims against both
plaintiffs. In the counterclaims, Wisconsin Central alleged that plaintiffs failed to
exercise ordinary care and acted in an otherwise careless and negligent manner. As
a result of its employees’ negligence, Wisconsin Central claimed multiple
locomotives, railroad cars, railroad track, and railroad track structures sustained
significant damage, which caused it to spend significant amounts of money to
repair, perform environmental cleanup and remediation, and incur other incidental
and consequential damages. Wisconsin Central sought damages in excess of $1
million.
¶5 Plaintiffs filed a motion to dismiss the counterclaims pursuant to section 2-615
of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2016)), arguing
Wisconsin Central’s counterclaims violated sections 55 and 60 of the FELA.
Section 55 of the FELA prohibits “[a]ny contract, rule, regulation, or device
whatsoever, the purpose or intent of which shall be to enable any common carrier
to exempt itself from liability.” 45 U.S.C. § 55 (2012). Section 60 of the FELA
prohibits “[a]ny contract, rule, regulation, or device whatsoever, the purpose, intent,
or effect of which shall be to prevent employees of any common carrier from
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furnishing voluntarily information to a person in interest as to the facts incident to
the injury or death of any employee.” Id. § 60.
¶6 Plaintiffs argued that Wisconsin Central’s counterclaims constituted a “device”
designed to exempt itself from liability to pay damages to injured employees, to
deter railroad employees from providing information regarding injury or death of
an employee, or both. As the counterclaims had the potential to negate any
compensation plaintiffs received for their injuries, plaintiffs argued allowing the
counterclaims would have a chilling effect on the filing of injury claims under the
FELA.
¶7 The circuit court granted plaintiffs’ motion to dismiss, finding a state common-
law counterclaim brought by a common carrier employer against an employee
constituted a “device” under the FELA because a successful counterclaim could
reduce or effectively eliminate a damages award to the employee.
¶8 The appellate court affirmed the circuit court’s dismissal. 2018 IL App (1st)
172648. Noting several federal cases have found counterclaims for property
damage do not fall within the meaning of “device” under section 55 of the FELA,
the appellate court found a lack of a clear consensus and stated cases to the contrary
conclude “the counterclaims are retaliatory devices calculated to intimidate and
exert economic pressure on injured employees, curtail their rights when asserting
injury claims and supplying information, and ultimately, exempt the railways from
liability under the FELA.” Id. ¶ 19. The appellate court concluded that prohibiting
counterclaims by railroads against their employees is the correct interpretation of
sections 55 and 60 of the FELA “and is the interpretation most consistent with the
FELA’s overarching goal of providing a remedy to employees injured while
participating in this dangerous occupation.” Id. ¶ 21.
¶9 Justice Pierce dissented, believing “a railroad’s counterclaim for property
damages is not a ‘device’ used to ‘exempt’ a railroad from ‘liability’ under the
FELA.” Id. ¶ 35 (Pierce, J., dissenting). The dissent expressed concern that the
majority’s decision “would produce the absurd result that an uninjured employee
that negligently causes property damage would be liable for damages but an injured
employee that negligently causes damages would be immune from a property
damage claim.” Id. ¶ 40.
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¶ 10 Wisconsin Central petitioned this court for leave to appeal, and we allowed that
petition. Ill. S. Ct. R. 315 (eff. July 1, 2018). The Illinois Trial Lawyers Association
and the Academy of Rail Labor Attorneys sought, and we granted, leave to file
amicus briefs. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).
¶ 11 ANALYSIS
¶ 12 I. Standard of Review
¶ 13 The appellate court affirmed the circuit court’s order dismissing Wisconsin
Central’s counterclaims pursuant to plaintiffs’ motion under section 2-615 of the
Code. Although the motion to dismiss would have been more appropriately filed
under section 2-619 of the Code (735 ILCS 5/2-619 (West 2016)) because
plaintiffs’ motion sought to raise an affirmative matter seeking to avoid the legal
effect of or defeat the claim, our review of a dismissal under either section is
de novo. Patrick Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31.
¶ 14 II. Whether Wisconsin Central’s Counterclaims
Against Plaintiffs Are Prohibited
¶ 15 A. The FELA
¶ 16 The FELA provides, in relevant part, that
“[e]very common carrier by railroad while engaging in commerce *** shall be
liable in damages to any person suffering injury while he is employed by such
carrier in such commerce *** for such injury or death resulting in whole or in
part from the negligence of any of the officers, agents, or employees of such
carrier.” 45 U.S.C. § 51 (2012).
Congress enacted the FELA in 1908 in response to the rising toll of serious injuries
and death to railroad workers. Norfolk Southern Ry. Co. v. Sorrell, 549 U.S. 158,
165 (2007). To further the humanitarian purposes of the FELA, Congress
eliminated several of the common-law defenses that had previously barred railroad
workers from prevailing on their injury claims. Consolidated R. Corp. v. Gottshall,
512 U.S. 532, 542 (1994). For example, Congress “abolished the fellow servant
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rule, rejected the doctrine of contributory negligence in favor of that of comparative
negligence, and prohibited employers from exempting themselves from FELA
through contract; a 1939 amendment abolished the assumption of risk defense.” Id.
at 542-43.
¶ 17 B. Federal Court Interpretation of Federal Statutes
¶ 18 This case necessarily requires us to interpret the language of sections 55 and 60
of the FELA and consider the decisions of federal courts analyzing these sections.
“When interpreting federal statutes, we look to the decision of the United States
Supreme Court and federal circuit and district courts. [Citation.] United States
Supreme Court interpretation of federal law is clearly binding on this court.
However, in the absence of a United States Supreme Court decision, the weight
this court gives to federal circuit and district court interpretations of federal law
depends on factors such as uniformity of law and the soundness of the
decisions.” State Bank of Cherry v. CGB Enterprises, Inc., 2013 IL 113836,
¶ 33.
Therefore, “if the lower federal courts are uniform on their interpretation of a
federal statute, this court, in the interest of preserving unity, will give considerable
weight to those courts’ interpretations of federal law and find them to be highly
persuasive.” (Emphasis in original.) Id. ¶ 35. If, however, the federal courts are
split, we may elect to follow those decisions we believe are better reasoned. Id.
¶ 19 Having determined the standard for assigning weight to federal court decisions
interpreting federal law, we now apply that standard in our interpretation of the
language found in sections 55 and 60 of the FELA. As the United States Supreme
Court has not addressed this issue, we turn to the lower federal courts to guide our
interpretation of the statute.
¶ 20 In arguing that sections 55 and 60 of the FELA do not bar counterclaims
brought by railroads asserting their common-law right to recover property damages
against FELA plaintiffs, Wisconsin Central relies on Cavanaugh v. Western
Maryland Ry. Co., 729 F.2d 289 (4th Cir. 1984), Sprague v. Boston & Maine Corp.,
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769 F.2d 26 (1st Cir. 1985), Nordgren v. Burlington Northern R.R. Co., 101 F.3d
1246 (8th Cir. 1996), and Withhart v. Otto Candies, L.L.C., 431 F.3d 840 (5th Cir.
2005). In arguing that the counterclaims by Wisconsin Central are prohibited
because they would defeat the broad remedial purpose of the FELA, plaintiffs rely
in large part on Deering v. National Maintenance & Repair, Inc., 627 F.3d 1039
(7th Cir. 2010). We will look at each case in turn.
¶ 21 In Cavanaugh, 729 F.2d at 290, the plaintiff train engineer was injured when
his train collided head-on with another train. The plaintiff filed an FELA action to
recover for personal injuries, and the railroad defendants counterclaimed under
state law for $1.7 million in property damages sustained by them in the same
accident. Id. After the plaintiff moved to dismiss the counterclaim, the district court
granted the motion, finding the counterclaim would violate sections 55 and 60 and
be contrary to the public policy reflected in the FELA. Id.
¶ 22 On appeal, the Fourth Circuit began its analysis by recognizing the “well
accepted common law principle that a master or employer has a right of action
against his employee for property damages suffered by him ‘arising out of ordinary
acts of negligence committed within the scope of [his] employment’ by the
offending employee.” Id. (quoting Stack v. Chicago, Milwaukee, St. Paul & Pacific
R.R. Co., 615 P.2d 457, 459 (Wash. 1980) (en banc)).
¶ 23 The plaintiff argued that the defendants’ counterclaim constituted a “device” in
violation of section 55 and to allow it would deprive the plaintiff of his right to
recovery under the FELA and chill justifiable claims. Id. at 292. The Fourth Circuit
found the argument unpersuasive. Id.
¶ 24 In looking at section 55, the court of appeals stated that neither the express
language of the statute nor the legislative history suggested the word “device” was
meant to include a railroad’s counterclaim to recover losses in connection with the
accident in which the employee was injured. Id. The court found the critical word
in the definition of “device” was “exemption,” as it was only when the contract or
device qualified as an exemption from liability that it became void under section
55. Id. As a counterclaim was not an exemption of liability, it was not a device
within the meaning of the statute. Id.
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¶ 25 The court of appeals also considered the plaintiff’s argument that sections 55
and 60 evince a legislative purpose to prohibit counterclaims by the defendant
railroads in FELA actions “because the filing of such counterclaims will unfairly
coerce or intimidate the injured employee from filing and pursuing his FELA
action.” Id. at 293. The court disagreed, finding nothing in the legislative history to
support the plaintiff’s reasoning, and noted “[t]he same argument could be
advanced against the admissibility of a counterclaim in any tort action.” Id. at 294.
¶ 26 The dissenting judge contended that the majority construed sections 55 and 60
too narrowly and that allowing “the railroads’ counterclaim to proceed would
pervert the letter and spirit of the FELA and would destroy the FELA as a viable
remedy for injured railroad workers.” Id. at 296 (Hall, J., dissenting). The dissent
believed the railroads’ counterclaim was a “ ‘device’ calculated to intimidate and
exert economic pressure upon [the plaintiff], to curtail and chill his rights, and
ultimately to exempt railroads from liability under the FELA.” Id.
¶ 27 In Sprague, 769 F.2d at 27, the plaintiff train engineer sued the railroad under
the FELA for injuries he suffered when the locomotive he was operating collided
with a train. The railroad filed a counterclaim for damages to the vehicles involved
in the accident. Id.
¶ 28 On appeal, the plaintiff argued the railroad’s counterclaim should have been
dismissed because Congress implicitly rescinded an employer’s right to sue its
employees for property damage. Id. at 28. The First Circuit found the reasoning in
Cavanaugh persuasive and agreed with its analysis. Id. at 29.
¶ 29 In Nordgren, 101 F.3d at 1247, the plaintiff train conductor filed an FELA suit
seeking damages for personal injuries allegedly caused by the railroad’s
negligence. The railroad sought to file a counterclaim to recover property damage
sustained in the train collision but was denied the opportunity to do so. Id.
¶ 30 On appeal, the Eighth Circuit considered whether the FELA precluded a
railroad from counterclaiming for property damages. Id. at 1248. The court noted
the United States Supreme Court “has recognized FELA as a broad remedial statute
and has construed FELA liberally in order to accomplish Congress’s goals.” Id. at
1249. The plaintiff argued the word “device” in section 55 encompassed a state-
law based counterclaim for property damages, which precluded the railroad’s
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counterclaim. Id. at 1250. After acknowledging the rulings in Sprague and
Cavanaugh, the Eighth Circuit found the phrase “any device whatsoever” was
informed by its preceding terms of “contract,” “rule,” and “regulation.” Id. at 1250-
51. The court stated the latter terms related to “legal instruments” that railroads had
used prior to the enactment of the FELA to exempt themselves from liability and
“ ‘any device whatsoever’ refers only to any other creative agreements or
arrangements the railroad might come up with to exempt itself from liability.” Id.
at 1251. Moreover, finding that “only when something exempts the railroad from
FELA liability can it be a device,” the court concluded a counterclaim does not
constitute a “device” under section 55 because it does not exempt the railroad from
FELA liability. Id. While the court acknowledged the plaintiff’s concerns about
counterclaims frustrating the purpose of the FELA, it stated “Congress’s silence on
this issue speaks volumes.” Id. at 1253.
¶ 31 The dissenting judge believed the railroad’s counterclaims were “devices”
under sections 55 and 60 of the FELA. Id. (McMillian, J., dissenting). Relying on
a 1985 law review article, the dissenting judge concluded the counterclaims would
frustrate the remedial purpose of the FELA and could inhibit coworkers of the
injured employee from volunteering information pertinent to an FELA action. Id.
at 1255-58 (citing William P. Murphy, Sidetracking the FELA: The Railroads’
Property Damage Claims, 69 Minn. L. Rev. 349 (1985)).
¶ 32 In Withhart, 431 F.3d at 841, the plaintiff was an employee on a maritime vessel
and was injured at sea as a result of a collision. The plaintiff filed a complaint under
the Jones Act (46 U.S.C. app. § 688 (2000)), and the shipowner filed a negligence
counterclaim against him for property damage. Withhart, 431 F.3d at 841. The
district court dismissed the counterclaim. Id.
¶ 33 The Fourth Circuit noted that Congress created a negligence cause of action for
ship personnel against the employers when it passed the Jones Act and it extended
to seamen “the same rights granted to railway employees by FELA.” Id. at 843.
Thus, the court found interpretations of the FELA were instructive in Jones Act
cases. Id.
¶ 34 The plaintiff argued Congress implicitly rescinded an employer’s common-law
right to sue its employees under the FELA and the Jones Act. Id. However, the Fifth
Circuit disagreed, finding the rulings in Cavanaugh, Sprague, and Nordgren to be
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persuasive. Id. Thus, the court held “no statutory provision in the FELA, and
consequently, in the Jones Act, prohibits a shipowner-employer from pursuing a
claim against its negligent seaman-employee for property damage.” Id. at 845.
¶ 35 In contrast to the rulings in the previous four cases, plaintiffs rely on the Seventh
Circuit’s decision in Deering. There, the plaintiff riverboat pilot sued the defendant
employer under the Jones Act for injuries he sustained in an accident on the
Mississippi River. Deering, 627 F.3d at 1040. The defendant filed a counterclaim
for damages the plaintiff allegedly caused to the boat, but the district court
dismissed it as in the nature of a setoff and prohibited by the Jones Act. Id.
¶ 36 The court of appeals in that case noted “a suit or counterclaim by a shipowner
against a seaman is a setoff against the seaman’s personal injury claim; the question
is whether such a setoff is permissible.” Id. at 1043. In looking at the language of
section 55 of the FELA, the court found the defendant’s counterclaim for setoff
constituted a “device” and thus was prohibited. Id. However, the court
acknowledged that the issue presented in this case was not before it and, not
wanting to create a conflict with the Fifth Circuit in Withhart, stated it would “leave
for a future day” whether property damage claims by an employer should be
permitted in an employee’s personal injury case under the FELA. Id. at 1048.
¶ 37 After considering the opinions of the five federal courts of appeal, we find better
reasoned those four that found counterclaims are not prohibited under sections 55
and 60 of the FELA. First, nothing in the FELA suggests it was intended to abrogate
an employer’s common-law right to assert claims against its workers who
negligently caused damage to company property. Nordgren, 101 F.3d at 1252-53;
Cavanaugh, 729 F.2d at 290-91.
¶ 38 Second, the plain language of section 55 of the FELA does not evince an intent
by Congress to prohibit an employer’s counterclaims. Section 55 provides “[a]ny
contract, rule, regulation, or device whatsoever, the purpose or intent of which shall
be to enable any common carrier to exempt itself from any liability created by this
chapter, shall to that extent be void.” 45 U.S.C. § 55 (2012). The parties agree the
Seventh Circuit’s statements on section 55 amount to judicial dictum, which is “an
expression of opinion upon a point in a case argued by counsel and deliberately
passed upon by the court, though not essential to the disposition of the cause.” Cates
v. Cates, 156 Ill. 2d 76, 80 (1993). “[A] judicial dictum is entitled to much weight,
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and should be followed unless found to be erroneous.” Id. We find the Seventh
Circuit’s reasoning unpersuasive.
¶ 39 The Seventh Circuit found “device” similar to the word “contract” and stated a
counterclaim had the same effect as a provision in an employment contract where
the employee waives the employer’s liability. Deering, 627 F.3d at 1044. However,
a counterclaim does not equate to a contract, rule, or regulation. A counterclaim
does not create rights between the parties but is an independent cause of action
seeking to assert rights against another. See Wilson v. Tromly, 404 Ill. 307, 309-10
(1949) (“A counterclaim is an independent cause of action.”). Unlike a contract,
rule, or regulation that can be rendered “void,” a counterclaim, while subject to
dismissal, would not suffer the same fate as being void.
¶ 40 The Seventh Circuit also dismissed the doctrine of ejusdem generis, which
states that, “when a statutory clause specifically describes several classes of persons
or things and then includes ‘other persons or things,’ the word ‘other’ is interpreted
to mean ‘other such like.’ ” Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill.
2d 463, 492 (2009) (quoting People v. Davis, 199 Ill. 2d 130, 138 (2002)); see also
Bullman v. City of Chicago, 367 Ill. 217, 226 (1937) (utilizing the doctrine of
ejusdem generis to construe the words “ ‘junk, rags,’ ” and “ ‘any second-hand
article whatsoever’ ” to mean that the general words “any second-hand article
whatsoever” include “only things of the same kind as those indicated by the
preceding particular and specific words”). Here, we find the words “or device
whatsoever” are to be interpreted like “contract,” “rule,” and “regulation,” the latter
three referring to legal instruments that an employer could use to escape liability.
Nordgren, 101 F.3d at 1251.
¶ 41 The words “or device whatsoever” are also defined by the phrase that follows:
“the purpose or intent of which shall be to enable any common carrier to exempt
itself from any liability.” 45 U.S.C. § 55 (2012). Unlike a contractual agreement or
a release, a counterclaim does not extinguish a plaintiff’s FELA cause of action or
exempt the railroad employer from liability. Nordgren, 101 F.3d at 1251;
Cavanaugh, 729 F.2d at 292. Here, Wisconsin Central could still be found liable to
plaintiffs in their FELA claims. Thus, we find the specific language of section 55
does not encompass counterclaims filed by an employer against its allegedly
negligent employees.
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¶ 42 We also find counterclaims are not prohibited by section 60 of the FELA, which
voids “[a]ny contract, rule, regulation, or device whatsoever, the purpose, intent, or
effect of which shall be to prevent employees of any common carrier from
furnishing voluntarily information to a person in interest as to the facts incident to
the injury or death of any employee.” 45 U.S.C. § 60 (2012). The court in Deering
did not discuss section 60. The Fourth Circuit in Cavanaugh noted section 60 was
intended to keep the railroad from preventing other employees from providing
information to the injured employee in the latter’s lawsuit against the railroad.
Cavanaugh, 729 F.2d at 293. We fail to see how a counterclaim against an allegedly
negligent employee would prevent other employees from stepping forward to
provide relevant information. Instead, like section 55, section 60 prohibits railroad
employers from thwarting an employee’s ability to provide information by way of
“contract, rule, regulation or device whatsoever,” and a counterclaim has no such
muzzling effect on those employees.
¶ 43 Third, we note there are several cases that fall on both sides of the issue. For
example, in 1980, the Washington Supreme Court held the railroad’s counterclaim
violated sections 55 and 60 of the FELA because the counterclaim had the potential
to discourage employees from filing FELA actions or providing information as to
facts relating to an employee’s injury or death. Stack, 615 P.2d at 460-61; see also
Blanchard v. Union Pacific R.R. Co., No. 15-0689-DRH, 2016 WL 411019, at *2
(S.D. Ill. Feb. 2, 2016) (finding Deering instructive and dismissing the railroad’s
counterclaim). In contrast, a federal district court recently followed the “majority
view” in adopting the reasoning set forth in Withhart, Nordgren, Sprague, and
Cavanaugh and concluded counterclaims are not a “device” under section 55 of the
FELA. Norfolk Southern Ry. Co. v. Tobergte, No. 5:18-cv-207-KKC, 2018 WL
6492606, at *3 (E.D. Ky. Dec. 10, 2018).
¶ 44 Cavanaugh was decided in 1984, and since that time, three federal courts of
appeal have followed its reasoning, and only one, in dictum, has disagreed.
Congress, however, has not stepped in to amend sections 55 and 60 of the FELA to
specifically prohibit an employer’s counterclaims. Considering the arguments and
case law on both sides of the issue throughout the years, we find such silence telling.
See Hilton v. South Carolina Public Rys. Comm’n, 502 U.S. 197, 202 (1991)
(stating Congress had had almost 30 years to correct the Supreme Court’s decision
if it disagreed with it and, because it had chosen not to do so, the Court accorded
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weight to Congress’s continued acceptance of its earlier holding). Given the
employer’s long-standing right to sue its employees for negligence and considering
the plain language of the statute, the federal court decisions, and Congress’s silence,
we hold sections 55 and 60 of the FELA do not prohibit a railroad employer from
filing a counterclaim for property damages against its employees.
¶ 45 CONCLUSION
¶ 46 We reverse the judgment of the appellate court that upheld the circuit court’s
dismissal of Wisconsin Central’s counterclaims and remand to the circuit court for
further proceedings.
¶ 47 Judgments reversed.
¶ 48 Cause remanded.
¶ 49 JUSTICE KILBRIDE, dissenting:
¶ 50 As the majority explains, the federal courts are split on their interpretation of
the Federal Employers’ Liability Act (FELA) (45 U.S.C. § 51 et seq. (2012)) as it
applies to the circumstances presented by this case. We must, therefore, review the
federal decisions and follow those we consider better reasoned. Contrary to the
majority, I believe the better reasoned decisions hold that the FELA prohibits
counterclaims by railroads against their workers for damages to railroad property.
The alternative interpretation adopted by the majority defeats the purpose of the
FELA to provide a remedy for railroad workers injured as a result of the railroad’s
negligence. Accordingly, I respectfully dissent.
¶ 51 The majority reviews the federal court of appeals decisions weighing on this
issue. In my view, the Seventh Circuit’s opinion in Deering v. National
Maintenance & Repair, Inc., 627 F.3d 1039, 1041 (7th Cir. 2010), is persuasive. In
that case, a riverboat pilot suffered career-ending injuries when the towboat he was
operating was swamped and sank in the Mississippi River. The plaintiff filed a
claim for personal injuries under the Jones Act (46 U.S.C. § 30101 et seq. (2006)),
the admiralty counterpart to the FELA. Deering, 627 F.3d at 1041. The employer
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responded by filing a counterclaim for damages it alleged the plaintiff caused to the
towboat. The district court granted the plaintiff’s motion to dismiss the employer’s
counterclaim, holding it was in the nature of a setoff to the plaintiff’s Jones Act
claim. Deering, 627 F.3d at 1041-42. In affirming, the Seventh Circuit observed
that
“shipowners, unless they are trying to reduce or eliminate their liability for
personal injuries caused by their negligence, do not sue their employees for
property damage except in the very rare case in which the employee is so highly
paid as to be worth suing. In the case of seamen, even if they are riverboat pilots
rather than just deckhands, such suits are unknown—unless, as in this case, the
seaman is seeking damages from the employer. As a practical matter, then, a
suit or counterclaim by a shipowner against a seaman is a setoff against the
seaman’s personal injury claim.” Deering, 627 F.3d at 1043.
¶ 52 The Seventh Circuit observed that the FELA is incorporated by reference into
the Jones Act and determined that setoffs are not permitted under section 55 of the
FELA, prohibiting “ ‘[a]ny contract, rule, regulation, or device whatsoever, the
purpose or intent of which shall be to enable any common carrier to exempt itself
from any liability created by this chapter.’ ” Deering, 627 F.3d at 1043 (quoting 45
U.S.C. § 55 (2006)). The employer’s counterclaim for damages to the towboat was
properly described as a device intended to enable the employer to exempt itself
from liability because that was the only purpose of the counterclaim in those
circumstances. Deering, 627 F.3d at 1043. The Seventh Circuit concluded that the
phrase “any device whatsoever” should be construed broadly as a catchall given
Congress’s intent to provide a remedy for injured employees. Deering, 627 F.3d at
1044.
¶ 53 Similarly, in Stack v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 615
P.2d 457, 461 (Wash. 1980) (en banc), the Washington Supreme Court held a
railroad’s counterclaim for $1.5 million in property damage was barred by the
FELA. The court concluded that the remedial purpose of the FELA supported a
broad interpretation of the term “device.” Stack, 615 P.2d at 460. More recently, in
Blanchard v. Union Pacific R.R. Co., No. 15-0689-DRH, 2016 WL 411019 (S.D.
Ill. Feb. 2, 2016), the federal district court granted a FELA plaintiff’s motion to
dismiss a counterclaim for property damage filed by a railroad, holding the
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counterclaim violated the public policy reflected in the FELA. The district court
found the counterclaim was a device calculated to intimidate and exert economic
pressure on the plaintiff, to curtail his rights, and ultimately to exempt the railroad
from liability under the FELA. Blanchard, 2016 WL 411019, at *3; see also Yoch
v. Burlington Northern R.R. Co., 608 F. Supp. 597, 598 (D. Colo. 1985) (concluding
“the more realistic and less legalistic view” is that the railroad’s $5 million property
damage counterclaim is a “device” within the meaning of the FELA).
¶ 54 In my view, Deering, Stack, Blanchard, and Yoch are better reasoned decisions
because they effectuate the purpose and intent of the FELA to provide a remedy for
injured railroad workers. While the majority engages in a technical construction of
the statutory language, we must keep in mind that “ ‘statutes always have some
purpose or object to accomplish, whose sympathetic and imaginative discovery is
the surest guide to their meaning.’ ” Corbett v. County of Lake, 2017 IL 121536,
¶ 28 (quoting Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945)). The purpose
of the FELA is to provide compensation for injured railroad workers by imposing
liability upon railroads for injuries resulting in whole or in part from the railroad’s
negligence. 45 U.S.C. § 51 (2012); Kernan v. American Dredging Co., 355 U.S.
426, 432 (1958). In Sinkler v. Missouri Pacific R.R. Co., 356 U.S. 326, 329 (1958),
the United States Supreme Court stated that the FELA
“was a response to the special needs of railroad workers who are daily exposed
to the risks inherent in railroad work and are helpless to provide adequately for
their own safety. [Citation.] The cost of human injury, an inescapable expense
of railroading, must be borne by someone, and the FELA seeks to adjust that
expense equitably between the worker and the carrier. [Citation].”
¶ 55 The FELA provides injured railroad workers with their exclusive remedy for
injuries sustained as a result of their employer’s negligence (New York Central R.R.
Co. v. Winfield, 244 U.S. 147, 151-52 (1917)), and “it is clear that the general
congressional intent was to provide liberal recovery for injured workers” (Kernan,
355 U.S. at 432). The statute has, therefore, been construed liberally to accomplish
its important remedial and humanitarian purpose. Urie v. Thompson, 337 U.S. 163,
180 (1949). Indeed, the Supreme Court has stated “[t]he coverage of the statute is
defined in broad language, which has been construed even more broadly.” Atchison,
Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 561-62 (1987).
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¶ 56 In my view, the analysis in Deering correctly effectuates the FELA’s important
remedial and humanitarian purpose by construing its broad language liberally.
Here, as in Deering, Wisconsin Central would have no incentive to sue plaintiffs
for damage to its property if plaintiffs were not seeking damages for their personal
injuries. A setoff for damages to the railroad’s property in these circumstances
defeats the purpose of the FELA to provide a remedy for injured railroad workers.
The practical effect is the same as if the railroad had exempted itself from liability
by a contract, rule, or regulation. Wisconsin Central’s counterclaim seeks more than
$1 million in damages to two trains and railroad tracks and reimbursement for
environmental cleanup. It is not difficult to imagine a large award, given the
potential cost of the damaged property. Those damages will almost certainly
eliminate any recovery by plaintiffs for their personal injuries. The majority’s
interpretation of the FELA allowing the railroad to exempt itself from liability
through a setoff defeats Congress’s intent to compensate railroad workers for
injuries caused negligently by their employer. Consistent with the FELA’s purpose,
I believe the phrase “any device whatsoever” should be construed broadly as a
catchall to prohibit railroads from filing counterclaims for damage to railroad
property and thereby exempting themselves from liability for a railroad worker’s
personal injuries.
¶ 57 In sum, I would affirm the circuit and appellate court decisions dismissing
Wisconsin Central’s counterclaim in this case. As the appellate court held,
prohibiting the counterclaim “is the interpretation most consistent with the FELA’s
overarching goal of providing a remedy to employees injured while participating in
this dangerous occupation.” 2018 IL App (1st) 172648, ¶ 21. I believe the
majority’s technical reading of section 55 of the FELA defeats the statute’s purpose
and undermines the congressional intent to provide a remedy for workers injured
as a result of a railroad’s negligence. Accordingly, I respectfully dissent from the
majority’s decision allowing Wisconsin Central to pursue its counterclaim for
damages to railroad property.
¶ 58 JUSTICE NEVILLE joins in this dissent.
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¶ 59 SEPARATE OPINION UPON DENIAL OF REHEARING
¶ 60 JUSTICE KILBRIDE, dissenting:
¶ 61 For the reasons I stated above, I dissent from the denial of plaintiff’s petition
for rehearing.
¶ 62 JUSTICE NEVILLE joins in this dissent.
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