Railserve left as lone defendant in FELA suit

David Yates Jan. 26, 2009, 8:33am

As reported by the Southeast Texas Record in July 2007, Perry Ashworth sued his employer Railserve Inc., along with Rescar Inc. and Huntsman Petrochemical Corp. after his leg was severed when a rail car rolled over him inside the local Huntsman refinery.

On July 15, 2008, Judge Donald Floyd of the 172nd Judicial District granted Huntsman's motion for summary judgment and dismissed the petrochemical company from Ashworth's lawsuit, leaving Railserve and Rescar as defendants.

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

"The appellant, Rescar Inc., filed a motion to dismiss this appeal," the Jan. 22 opinion by justices on the Texas Ninth District Court of Appeals states. "The motion is voluntarily made by the appellant prior to any decision of this Court and should be granted. No other party filed notice of appeal. The motion to dismiss is granted and the appeal is dismissed."

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

Railserve provides contract in-plant rail service; Rescar provides mechanical repair, exterior painting, interior coating and cleaning to rail cars.

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.

Since Ashworth already received benefits for his injury from Huntsman, the company moved for dismissal under Texas civil law.

Ashworth is still pursuing a Federal Employers' Liability Act claim against his employer, Railserve, on allegations it failed to provide him a safe place to work and failed to comply with government regulations.

The plaintiff is represented by the attorney Tommy Yeates of the Moore, Landrey law firm.

Trial case No. E179-635
Appeals case No. 09-08-00349-CV

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