Appeals court hears oral arguments over FELA 'common carrier' status

David Yates Apr. 13, 2010, 10:37am

Whether a rail switching company can be defined as "railroad common carrier" and sued under the Federal Employers Liability Act is a legal quandary Texas appellate justices will soon answer.

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 rail car rolled over him at a yard inside the Port Arthur Huntsman refinery.

Two years later, the suit's sole remaining defendant, Railserve, had its motion for summary judgment granted on March 30, 2009, by Judge Donald Floyd, 172nd District Court.

Judge Floyd ruled that the local rail switching company cannot be defined as a "railroad common carrier" under the FELA act.

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

Ashworth appealed the decision and on Thursday, April 8, attorneys for both sides argued their case before justices seated on the Ninth Court of Appeals of Texas.

"Railserve falls way out of (the common carrier) definition," said Railserve attorney Richard Sheehy during oral arguments. "A company that provides in-plant switching is not a common carrier. There is no dispute that Railserve is not a common carrier."

Vincent Marable III, an attorney representing Ashworth, argued that "the phrase common carrier is not specifically defined by federal law."

He said Railserve had a contract with a common carrier and therefore could be sued under FELA.

Ashworth appealed Floyd's decision and is actively pursuing 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, records show.

In his suit, Ashworth claims he was working at the Huntsman facility to rearrange the railcars so that they could be spotted when he engaged the manual break and started to uncouple the end rail car.

The railcar rolled and entangled his right leg, which was severed below the knee.

After Ashworth was injured April 10, 2007, he received $291,658.34 in worker's compensation benefits.

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.

Trial case No. E179-635
Appeals case No. 09-09-00187-CV

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