SOUTHEAST TEXAS RECORD

Judge Donald Floyd has ruled that a local rail switching company cannot be defined as a "railroad common carrier" and be sued under the Federal Employers Liability Act.

As reported by the Southeast Texas Record in July 2007, Perry Ashworth sued his employer Railserve Inc., along with Rescar, Union Tank Car and Huntsman Petrochemical after his leg was severed when a railcar rolled over him at a yard inside the Port Arthur Huntsman refinery.

Following nearly two years of litigation, the suit's sole remaining defendant, Railserve, had its motion for summary judgment granted Monday, March 30, by Judge Floyd of the 172nd Judicial District.

During the March 17 summary judgment hearing, defense attorney Mike Eaves told Judge Floyd switch servicing companies, such as Railserve, are not a common carrier of goods and therefore barred from any FELA claims.

"The evidence clearly shows Railserve was only performing switching services," Eaves said. "And that's not what a common carrier does."

A common carrier is a business that transports people, goods or services and is licensed or authorized to provide its services to the general public.

Eaves argued that Ashworth is only seeking a federal claim under FELA because he already received Workers' Compensation and is therefore prohibited by Texas law from suing his employer in state court.

The Federal Employers Liability Act was passed by the U.S. Congress in 1906 to protect and compensate railroad workers injured on the job. Unlike State Worker's Compensation Law, FELA requires the injured worker to prove that the railroad was "legally negligent", at least in part, in causing the injury.

If a worker can prove negligence, he is entitled to full compensation which can be many times greater than what can be awarded by workers' compensation for non-railroad employees.

During the hearing, plaintiff's attorney Tommy Yeates cited cases where Railserve, or similar switch companies, were designated as a railroad and/or a common goods carrier and accountable under FELA.

Railserve is not the first defendant in the suit to seek summary judgment.

On July 15, 2008, Judge Floyd granted Huntsman's and Union Tank Car's motions for summary judgment and dismissed the companies from Ashworth's lawsuit, leaving Railserve and Rescar as defendants.

The companies were dismissed because Ashworth had been provided worker's comp, court papers say.

In August, Rescar appealed the summary judgment ruling against Huntsman, but dropped the appeal In January after reaching a settlement agreement with the plaintiff.

Court records show that Rescar had settled with the plaintiff and was non-suited on Jan. 12, leaving Railserve as the lone defendant.

Case history

According to the original complaint, Ashworth claims he was working at the Huntsman facility to rearrange the rail cars so that they could be spotted when he engaged the manual break and started to uncouple the end rail car.

However, in court documents Ashworth says the rail car rolled and entangled his right leg, which was severed below the knee.

Court documents show Huntsman agreed to provide workers' compensation coverage for Railserve employees. After Ashworth was injured April 10, 2007, he received $291,658.34 in worker's comp benefits.

Ashworth was represented by Tommy Yeates, an attorney for the Moore Landrey LLP in Beaumont.

Eaves is a managing partner at Calvert Eaves Clarke & Stelly in Beaumont.

Case No. E179-635