SOUTHEAST TEXAS RECORD

A local judge has been tasked to decide whether or not a rail switch operator company can 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, is asking 172nd District Judge Donald Floyd to grant its motion for summary judgment.

During a March 17 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 because he received Worker's Compensation, Ashworth cannot sue his employer under Texas law, which is why he is pursuing a FELA claim.

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.

He also said Railserve provides services outside of Huntsman owned or leased lines.

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.

"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 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 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 pursuing a the FELA claim against his employer, Railserve, on allegations it failed to provide him a safe place to work and failed to comply with government regulations.

Yeates is 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