A young Marine reservist was tragically killed when a contractor cut a propane line on the property of his rental home. DCSTB Principal Jim Sammon filed suit and after almost a year of litigation was able to successfully craft a significant Confidential Settlement on behalf of the Estate.
Andrew Thompson interviewed on “Buckeye Surgeon Blog”
I was interviewed by local General Surgeon Jeffrey Parks, M.D. yesterday on his widely-followed Buckeye Surgeon Blog on the topic of medical malpractice cases. Although it was a hostile environment, it was a good opportunity to dispel some myths about the judicial system. Thank you to Dr. Parks for the opportunity.
You can check out the full post here.
Third Circuit Court of Appeals Interprets FRSA
The Third Circuit Court of Appeals reversed a lower court’s decision in favor of the railroad in a claim brought pursuant to the Federal Rail Safety Act (FRSA). The case, Araujo v. New Jersey Transit Rail Operations, Inc., was decided on February 19, 2013, and is the first interpretation of the FRSA by a federal court of appeals. Included in the decision is the affirmation of Congress’ intent that the FRSA be protective of plaintiff-employees. The burden of proof is much lower on an employee claiming retaliation than the burden on the railroad to establish a defense. The inequities built into the statute are intentional, and are meant to address the long history in the railroad industry of harassing employees who engage in protected activity. The court stated in its opinion that “the rail industry has a long history of underreporting incidents and accidents in compliance with Federal regulations. The underreporting of railroad employee injuries has long been a particular problem, and railroad labor organizations have frequently complained that harassment of employees who reported injuries is a common railroad management practice.”
As I’ve previously written on this blog, it is a common practice by some railroads to use a system of employee rules testing as a form of harassment. Within this system, railroad management and supervisors selectively enforce rules, which are typically overlooked or ignored, against employees who have recently engaged in protected activity. The Araujo decision makes clear that even if an employee violates a railroad’s written rules, it is not a valid defense to an FRSA claim if the employee can show that the rule was never previously enforced. (“While the facts in the record may show that Araujo was technically in violation of written rules, they do not shed any light on whether NJT’s decision to file disciplinary charges was retaliatory.”)
The Third Circuit’s decision was the first step in establishing the full extent to which the FRSA can provide protection to railroad employees who engage in protected activities. Hopefully the railroads are paying attention.
Wrongful Death Damages Available Under the FELA
A tragic accident occurred yesterday at the ArcelorMittal steel plant in Cleveland, Ohio when a 50 year old railroad employee was killed after falling from a train car.
The incident raises the question of what damages are available to the individual’s family under the Federal Employers’ Liability Act (FELA). When a railroad employee is killed at work, a lawsuit can be filed by the surviving spouse or other representative of the worker’s estate. Like other injury claims under the FELA, the first step in such a case is to prove that the employee’s death was caused or contributed to by the railroad’s negligence or violation of a railroad safety statute. Once liability to established, the surviving spouse, children and next of kin are entitled to recover damages for (1) the conscious pain and suffering of the employee before his or her death; (2) the pecuniary damages of the surviving family members, which includes the value of wages, money, benefits, goods and services the employee would have contributed to those family members during his worklife; (3) his or her medical expenses; and (4) funeral expenses.
What is notably missing is the mental and emotional distress of the deceased employee’s loved ones. Although this is the largest element of loss in such a case, the statute does not require the railroad to pay such damages under the FELA.
Although the railroad industry is much safer than it used to be, the accident that occurred yesterday is a somber reminder of how dangerous railroading can be. Make sure that your spouse or loved ones know who to call and where to turn if something happens to you at work.
Administrative Law Judge Rejects Railroad’s Argument In Case Under FRSA
I previously wrote a post about how railroads can use a system of operational rules testing as a form of harassment and retaliation after workers report safety concerns or injuries on duty. In one such case where those allegations have been made against CSX, an Administrative Law Judge recently rejected the railroad’s argument that the case should be dismissed because the railroad had a legitimate justification (the alleged rules violations) for suspending my client. The ALJ found that there was “ample evidence” to question whether the employee’s injury reports contributed to the railroad’s decision to suspend him. The ALJ noted that my client was subjected to 20 different rules tests on the date of the subject occurrence, whereas the engineer on the crew (who did not previously report an injury) was only tested on six rules. Other employees subjected to a higher number of tests on a given day had also previously reported injuries. The case will proceed to a full hearing in the spring for a determination of whether this disparate treatment, and subsequent suspension, was a violation of the FRSA. A copy of the full decision, Case No. 2012-FRS-00010, will be posted here by the Department of Labor.
DCSTB Partner Tom Connick Successfully Defends Real Estate Appraiser In Alleged Million Dollar Civil Conspiracy And Consumer Fraud Case
On August 17, 2011 DCSTB Partner, Tom Connick, went to trial in a case that had been pending and litigated since 2006, wherein Tom’s client, a professional real estate appraiser, was accused of participating in a predatory lending/flipping scheme, that allegedly damaged Plaintiffs in excess of one million dollars. After approximately five (5) days in trial, Tom successfully convinced the trial court to grant his client a directed verdict, i.e. dismissal, on all claims. After hearing arguments of counsel, the trial court agreed with Tom and dismissed all counts alleged against his client. The Plaintiffs appealed. Just recently, on June 21, 2012, in the case of U.S. Bank, Etc., Et Al. v. Cynthia Amir, ET Al, Slip Copy, 2012 WL 2355620, 2012-Ohio-2772, Ohio App. 8 Dist., June 21, 2012 (97438), the Ohio Eighth District Court of Appeals affirmed the trial court’s ruling in favor of Tom’s client. This is a significant Appellate victory for Tom’s client, as Plaintiffs had made a demand and alleged damages for over One Million Dollars. And, in fact, other Defendants in this case were deemed liable for over 1.8 Million Dollars. Notably, however, both at trial and on appeal, Tom successfully presented arguments showing that his client did not participate in the alleged fraudulent real estate scheme, whatsoever. This case is also significant for outlining Ohio case law related to alleged real estate appraiser liability in the context of the Ohio Consumer Sales Practices Act, Fraud and Civil Conspiracy.
Congratulations to Tom on another job well-done!!
OSHA finds Norfolk Southern Railway in violation of FRSA, awards $800,000 in damages
The Occupational Safety and Health Administration announced yesterday that it has ordered Norfolk Southern Railway Co. to pay over $800,000 in damages on the claims of three employees who were retaliated against after reporting injuries at work. The awards include $525,000 in punitive damages and attorneys’ fees. As previously discussed in this blog, if employees are aggressive in pursuing claims under the Federal Rail Safety Act, and OSHA and other courts continue to award substantial damages, the culture of intimidation and harassment in the railroad industry will come to an end.
Kudos To Partner Tom Connick On A Job Well Done
One of the guiding principles under which DCSTB is founded, is to always provide our clients with uncompromising, zealous and unsurpassed high quality legal services and counsel. Congrats to Tom Connick for being recognized by one our clients (see below) for doing just that in reaching a successful outcome. Nice job, Tom!!
Tom,
Thank you for getting this done. In many years of business, law enforcement and personal life I have never met a lawyer who was as solid as you. You did not not budge, you held the Defendant to the fire; and on both cases settling was a matter of economics not admitting defeat.
I would recommend you in a heartbeat to colleagues and while I hope we don’t have to work together again I would not hesitate to contact you when in need.
Best regards,
Dennis W. Matson
CEO/President
DCSTB Victorious Again in the 8th District Court of Appeals
Congratulations to DCSTB Partner Tom Connick and Associate Anthony Trzaska in persuading the 8th District Court of Appeals to affirm the underlying Trial Court’s Order granting DCSTB Client, the City of Cleveland, Summary Judgment in a toxic tort/premises liability case. Plaintiff/Appellant, Thomas Kruzer, alleged that he contracted Legionnaire’s Disease while working at Thrifty Rent-A-Car, located on City property at the Cleveland Hopkins International Airport. Mr. Kruzer alleged that the City failed to properly maintain its HVAC system, which caused him to contract Legionnaire’s Disease. However, Tom and Anthony successfully argued that Mr. Kruzer failed to present any evidence that the alleged legionella bacterium was present at the City property, or that he contracted the disease while working at the City property. The Court further expressly held that Plaintiff/Appellant’s argument that he could rely upon the doctrine of res ipsa loquitor in order to prevail on his negligence claim, lacked merit as a matter of law. The Appellate Court Opinion in Alan E. Kruzer, et al. v. City of Cleveland, et al. (8th Dist. C.A. 97168) can be found here. Congratulations Tom an Anthony!!
Ohio OT laws do not apply to railroad workers
I was recently asked at a union meeting whether any laws in Ohio provide recourse to a railroad worker who was not paid 1 ½ times his regular rate of pay for hours worked in excess of eight hours. The short answer, unfortunately, is no. The reasons, in Ohio and also other states, are explained below.
Ohio Revised Code §4111.03(A) requires employers to pay one and one-half times an employee’s wage rate for any hours worked in excess of forty hours in a given workweek. (Unlike some other states, Ohio does not mandate overtime pay for extra hours worked in a day; the protection only applies to the 40 hour workweek.) The law exempts from its coverage, however, any employee that is also exempted from the overtime provisions of the federal Fair Labor Standards Act, at 29 U.S.C. §207 and §213. Buried within these federal exemptions, at §213(b)(2), are employees “of an employer engaged in the operation of a rail carrier subject to part A of subtitle IV of Title 49,” which includes almost all major railroads in the United States. The analysis in Ohio, and any other states that adopt the FLSA exemptions, is therefore easy — railroad workers are specifically exempt from protection, meaning they have no statutory right to be paid more than their hourly rate for hours in excess of 40 in a week.
Some other states have previously tried to pass laws protecting railroad workers’ rights to receive overtime pay. These attempts have also been unsuccessful. In R.J. Corman Railroad Co. v. Palmore (6th Cir. 1993), 999 F.2d 149, for example, the railroad challenged a Kentucky state overtime law that did not exempt workers in the railroad industry. The railroad argued that the issue of wages and hours in the rail industry is covered by federal law, and states cannot impose their own rules. Kentucky argued that since there is no federal rail law the expressly addressed overtime either by providing for or forbidding it, there is no conflict with its regulation. The court adopted the railroad’s position, and held that the Kentucky law, as applied to railroad workers, was preempted by federal law. Although there was no federal statute that directly conflicted with the state regulation, the court concluded “that the congressional purpose behind the Adamson Act [establishing a basic 8 hour workday in the rail industry] and Congress’s longstanding decision to regulate railroads on a national level make it reasonable to infer that Congress has impliedly preempted the area of overtime regulation for railroad employees.” Id. at 154. The Kentucky overtime law, like Ohio’s, did not apply to workers in the rail industry.
Like other issues dealing with wages and hours, the only remedy available for a railroad worker who is not paid overtime is the grievance procedure set forth in the Railway Labor Act. Although the law does not require payment of overtime, collective bargaining agreements in the industry certainly do.
“The FELA is a platypus”
“In the taxonomy of the law, the Federal Employers’ Liability Act…is a platypus. Intended to provide a remedy for injured railroad workers, the FELA ‘hovers ambivalently between workers’ compensation law and the common law of negligence. It is neither, but it partakes of characteristics of both.’”
Page v. National Railroad Passenger Corp. (Md. App.) 2011 WL 3862852, quoting CSX v. Miller (Md. App. 2004), 159 Md. App. 123, 129.
This clever quote from a Maryland Appeals Court decision reminds us that railroad workers are not automatically entitled to compensation when they are injured (like workers’ compensation). It also makes clear, however, that railroaders should not be held to the standard of traditional negligence law. To promote safety in the railroad industry, Congress intended the FELA to provide a liberal remedy to railroad workers. The resulting compensation system under the FELA requires a showing of railroad negligence, but only a slight connection between that negligence and the employee’s injury.
Employees can best protect themselves under the FELA when they frequently provide a railroad with notice of dangerous conditions (in writing), by immediately reporting injuries, by acting as witnesses and testifying on behalf of fellow injured employees, by getting medical care and treatment with their own physician and carefully following the treatment plan, and by not returning to work (despite pressure from the railroad) until they have achieved a full recovery. Most importantly, get immediate legal advice from an attorney who is familiar with the railroad industry. The FELA, like a platypus, is unique, and injured workers should get guidance from someone who understands the nuances and complexities of the law.
Havel v. Villa St. Joseph – Decision to Bifurcate Trial Is Not Within Discretion of Lower Courts
In Havel v. Villa St. Jospeh, 2012-Ohio-552, the Ohio Supreme Court this week upheld a statute passed in 2005 that requires a trial to be split into two phases — or “bifurcated” — when a party is seeking both compensatory and punitive damages. The bifurcation of a trial requires a different jury to hear each phase of the case. The Court’s decision states that trials must be bifurcated pursuant to the statute, taking away a lower court’s discretion to decide whether bifurcation is warranted on a case-by-case basis.
Previously, pursuant to the Civil Rules of Court, judges were allowed to deny a request for bifurcation and allow a single jury to decide what amount of compensatory damages should be awarded and, at the same time, determine if the facts warranted an award of punitive damages against a defendant. This would save the courts’ and parties’ time, money and resources. Although rare, the finding of punitive damages in civil jury trials has remained one of the best methods of deterring egregious behavior of a party and preventing future occurrences.
By upholding the Constitutionality of the statute requiring bifurcation, the Havel decision will make it much more difficult to prove that punitive damages are warranted in cases.
DCSTB recovers over $4,000,000 for client in insurance dispute
DCSTB recently settled a bad faith insurance claim on the eve of trial for $3,750,000 against one of the largest insurance carriers in the world. Rob Dubyak’s corporate client initially approached him with a $22,000 commercial property damage claim for the client’s building. When the insurance company improperly investigated the claim, delayed payment of benefits, and refused to pay Rob’s client what was owed under the insurance policy, the firm filed suit for bad faith denial of benefits. Led by the efforts of Tom Connick, who has over 15 years of insurance law/litigation experience, the firm fought for our client for over two years of intense litigation. Tom and Rob took over 20 depositions, including those of claims adjusters, insurance and damage experts, and the insurance company’s claims executives. The extensive work of DCSTB exposed the inexcusable breach of contract and bad faith of the defendant. Although the insurance company maintains that it was not liable, it ultimately agreed to pay DCSTB’s client a multi-million dollar settlement. In total, DCSTB recovered approximately $4,400,000 for the client.
The case combined over 35 years of litigation experience of these two DCSTB partners. The firm was able to develop the necessary strategy to protect the client’s commercial property interests, while at the same time masterfully analyzing the insurance policy to make sure that the insurance company paid our client’s substantial damages, including for the interruption in her business and lost profits. Tom Connick focuses a large part of his practice on representing both insurers and policyholders in a variety of insurance-related legal issues, including bad faith litigation. Rob Dubyak represents many commercial property owners and has extensive commercial litigation experience and expertise in helping them in all aspects of transactions and litigation. The combined expertise of DCSTB’s attorneys make the firm uniquely suited for handling such complex litigation matters.
Congratulations to Tom and Rob on this phenomenal result for our client.
Whether you are an insurer or a policyholder, if you have any insurance law issue, including claims of bad faith denial of benefits, that requires legal counsel, you can contact Tom Connick directly at (216) 364-0502 or tconnick@dctblaw.com. If you need assistance with any other commercial or litigation matter, you can contact any of the attorneys at DCSTB at (216) 364-0500.
DCSTB Settles Class Action Against Enterprise Rent-A-Car
Congratulations to DCSTB Partner Tom Connick who, along with colleague and co-counsel Edward W. Cochran, recently received Final Approval of a Class Action claim against Enterprise Rent-A-Car and its subsidiary companies, brought on behalf of their client, Robert Wittbrot. In September 2008, Mr. Wittbrot, while driving a rented a car from Enterprise, was identified by a red light photo enforcement program as having run a red light. A citation was sent automatically to Enterprise as the registered vehicle owner. Before notifying Mr. Wittbrot, Enterprise automatically paid the $100.00 ticket by charging the amount to Mr. Wittbrot’s credit card, along with an additional $20.00 administrative fee. On November 13, 2008, Mr. Wittbrot received a letter from Enterprise (dated November 7, 2008) notifying him of the citation and the amount of the charges. The payment and timing of the notification did not allow Mr. Wittbrot to challenge the validity of the citation.
Enterprise’s actions violated Ohio Revised Code § 4511.092 by failing to notify the issuing authority of the name and address of the person renting the car at the time of the violation, and by unilaterally paying the ticket and charging Mr. Wittbrot an additional administrative fee of $20.00. Although Enterprise denied all liability, it agreed to a 100% refund to all Class Members who were charged the unlawful administrative fee, and further agreed to injunctive relief, which includes Enterprise agreeing to indefinitely stop charging any more administrative fees associated with camera citations. Except in very limited circumstances, Enterprise further agreed to no longer pay the citations issued to it, but instead to put the issuer of the citation on notice of the name and address of the violating renter.
Enterprise was also required to pay costs, Court approved attorney fees and a Court approved incentive fee to Mr. Wittbrot for his role in successfully challenging Enterprise’s improper practices and procedures.
If you feel that your rights and the rights of those similarly situated with you have been violated, and you want to serve as a Class Representative in a Class Action, please contact Tom Connick directly at (216) 364-0502 or tconnick@dctblaw.com for a free consultation.
Why I Practice Railroad Law
When I tell people that I specialize in railroad law, they inevitably wonder two things. What is railroad law? I imagine people thinking that I have Sir Topham Hatt as a client and we discuss the legality of certain train moves by Thomas and Percy on the island of Sodor. (It’s not exactly like that. You can get a good idea of the answer to that question by reading previous blog posts.) The second thing people wonder is how I found out about railroad law and why I decided to make a career out of it. This post tries to give a clear answer to that question.
I come from a family of railroaders. I have grandparents, great-grandparents, uncles and cousins who work as conductors, engineers, and signalmen. Below is a photograph of my great-grandfather, Daniel Haley (far left). He worked for the Buffalo Rochester & Pittsburgh Railway in the early 1900′s, mostly transporting coal from Pennsylvania to Buffalo. He was a member of Local 681 of the Brotherhood of Locomotive Firemen & Engineers. He retired from the Baltimore & Ohio Railroad in 1939. Next to him in the photograph is Michael Haley, his brother.
Daniel Haley (far left) and Michael Haley (second from left)
My grandfather (Daniel’s son) is pictured below. John Haley was an engineer for Conrail and worked out of Salamanca, New York. Some of his sons and grandsons also worked for the railroad, and still live in Salamanca. Although he died when I was relatively young, I still have vivid memories of my grandfather. I would bring him my report cards from school and he would give me a silver dollar for good grades. Perhaps it’s only fitting that I would put my education to good use by helping people like him.
John Haley
I knew before I went to law school that I wanted to practice railroad law. My step-father was a vice president in the United Transportation Union, representing engineers and conductors from across the United States and parts of Canada. I grew up at union meetings and conventions. From a young age, I learned about the issues railroad employees have to deal with, including the risk of injury and the constant threat of harassment and intimidation. The labor relations departments of most major railroads in this country have a mindset that has not yet progressed beyond the Industrial Revolution. Railroad workers are treated by management like they are the enemy, even though they work long hours and weekends, away from home, and in dangerous conditions to help generate billions of dollars in revenue for the company.
I became a lawyer so I could help railroad employees deal with these issues. If the railroads are forced to comply with the law, and are challenged when they don’t, it helps to make the job safer and more secure for everyone. With that kind of payoff, why would I do anything else?
Summit County Court agrees to certify class action
The Summit County Court of Common Pleas decided last Friday to certify a class action brought by Tom Connick on behalf of a group of residents of a mobile home park who were charged excessive fees for natural gas by the owners of the park since the 1990′s. The Judge rejected arguments by the park owners that there were too many differences between the class members, such as their length of residence or whether they were current on rent to the park, to allow the case to be handled as a class action. The court held that the Plaintiff satisfied all elements under Civil Rule 23 for certification, and that the case would move forward as a class.
Stretching the meaning of “equipment safety guard” in Ohio’s Employment Intentional Tort Statute
In a decision recently issued by the Eighth District Court of Appeals (Cuyahoga County), Hewitt v. L.E. Myers Co., 2011-Ohio-5413, the court upheld a lower court’s decision and a jury finding under the “new” employment intentional tort statute, R.C. §2745.01.
The decision is interesting as, rather than attempting to establish a “deliberate intent” intentional tort, the Plaintiff took the tact of establishing the case by use of the third part of the statute. Part C sets forth a “rebuttable presumption” of an employer intentional tort when an employer has removed an “equipment safety guard”.
In the case, the Plaintiff equated the rubber gloves (for an electrician) into an “equipment safety guard” as is called for in the Statute. The plaintiff was a second-step apprentice lineman who was electrocuted when his supervisor sent him (alone) into the bucket and told him that he “shouldn’t need no rubber gloves” when he went up to work on the lines.
The case shows the drafting problems that occur in the Ohio Legislature. For years the Legislature has been trying to draft an employment intentional tort statute that would survive Constitutional muster and other attacks. With R.C. §2745.01, they thought they had finally done just that – but they were likely wrong. The Legislature failed to provide a definition of the term “equipment safety guard” – either in the history, legislative notes or otherwise. This loophole will allow the courts to expand exactly what an “equipment safety guard” is – so as to likely eviscerate the initial two prongs of the deliberate intent statute.
Previously, the Sixth District Court of Appeals (Toledo) tried to give a limited expansion of the term, and stated – “ ‘equipment safety guard’ would be commonly understood to mean a device that is designed to shield the operator from exposure to or injury by a dangerous aspect of the machine.” (emphasis added) The Eighth District Court of Appeals in Hewitt thought that definition (which with “commonly understood” and “aspect” within it could mean virtually ANYTHING) was too “limited.”
So far, Courts have found that an employer not providing gloves, long sleeve shirts, or properly programmed machines, constitute evidence of a “deliberate removal of an equipment safety guard” to provide the rebuttable presumption under the statute.
Ultimately, this expansion and interpretation will get to the Ohio Supreme Court. However, without a legislative underpinning it will be hard for that Court to jump through the necessary legal hoops to stop this court and case-law expansion of the statute. As such, the Legislature would be wise to get their drafting pens out and start re-writing again.
Weingarten Rights do not apply to railroad employees
Employees covered by the National Labor Relations Act (NLRA) have a right to have a union representative or co-worker present during an investigatory interview with management when the employee reasonably believes that the interview might result in disciplinary action. This is generally described as the employee’s “Weingarten Rights,” referring to a case decided by the Supreme Court where it was held that denial of a request to have a representative present during such an interview was an unfair labor practice. NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). Since railroad employees are covered by the Railway Labor Act, not the NLRA, do they have the same right to demand that a representative accompany them to an interview conducted by a management official?
Unfortunately, the answer is no. The reason for the difference can be found in the text of the statutes. Section 7 of the NLRA gives non-railroad employees the right “to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…” 29 U.S.C. §157. The Supreme Court held in Weingarten that the request for a representative during an interview with management is considered “concerted activit[y] for…mutual aid or protection.” To put it simply, the right to have a union representative present while you are being interrogated by your supervisor protects not only you, but the entire group of people represented by the union. The language quoted prohibits a company from interfering with that right.
The language of the Railway Labor Act is more limited, however. Section 2, Fourth of the RLA provides that, “[e]mployees shall have the right to organize and bargain collectively through representatives of their own choosing…No [railroad], its officers or agents, shall deny or in any way question the right of its employees to join, organize, or assist in organizing the [union] of their choice, and it shall be unlawful for any [railroad] to interfere in any way with the organization of its employees…” 45 U.S.C. §152 Fourth. Notably missing from this section is a phrase comparable to “other mutual aid or protection.” The RLA’s focus is on protecting employees’ rights to select and form a union, and collectively bargain with the railroad through that union. The right to have a representative present during an interview with management is not covered by those rights.
Although such a right is not legally protected, railroad employees should always show up at investigatory interviews with a union representative or co-employee. A railroad official will be less likely to try to harass or intimidate if a witness is present, and he or she likely won’t know whether Weingarten rights apply or not. If the railroad official insists on speaking to the employee alone, however, the employee should not be insubordinate or refuse to cooperate. Get good advice before the interview occurs with your union representative, and if necessary, handle the interview alone.
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- Jim Sammon Reaches Settlement In Wrongful Death Claim
- Andrew Thompson interviewed on “Buckeye Surgeon Blog”
- Third Circuit Court of Appeals Interprets FRSA
- Wrongful Death Damages Available Under the FELA
- Administrative Law Judge Rejects Railroad’s Argument In Case Under FRSA
- DCSTB Principal Tom Connick Receives Preeminent AV Rating