Over the past few years, the Southeast Texas Record has reported on several defendants escaping a Federal Employers Liability Act suit filed by Perry Ashworth, who had his leg severed when a railcar rolled over him at a yard inside the Port Arthur Huntsman refinery.

On May 27 justices seated on the Texas Ninth District Court of Appeals affirmed a lower court's ruling granting summary judgment to Railserve, the suit's sole remaining defendant.

In July 2007, Ashworth filed a FELA suit against Railserve, Rescar, Union Tank Car and Huntsman Petrochemical, alleging all four defendants negligently caused the runaway railcar to run over his leg.

Court papers show that Ashworth 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.

Following his April 10, 2007, injury, Ashworth received $291,658.34 in worker's compensation benefits.

Because he already received workers' comp, Ashworth pursued a federal claim under FELA since he was prohibited by Texas law from suing his employer in state court.

Eventually, all the defendants successfully proved that they could not be defined as common carrier and sued under FELA.

Railserve had its motion for summary judgment granted on March 30, 2009, by 172nd District Court Judge Donald Floyd, who ruled that the local rail switching company cannot be defined as a "railroad common carrier" under FELA.

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. Oral arguments in the case were heard on April 8, and justices were tasked to decide whether Railserve could be defined as a common carrier.

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

Conversely, Railserve attorney Richard Sheehy contended Railserve falls out of the common carrier definition and that a company that provides in-plant switching is not a common carrier.

"In this case, Railserve contracted with Huntsman. Huntsman is not a common carrier," Justice David Gaultney opined.

"We conclude Railserve was not operating as a common carrier by railroad at the Huntsman facility within the meaning of that term under FELA. Appellant's sole issue is overruled. The trial court's judgment is affirmed."

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

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