Railroad Locomotive Engineer Must Plead More Than Fear of Cancer for FELA Claim To Proceed
Posted on Apr 25, 2014
The U.S. District Court for the Eastern District of California dismissed a railroad locomotive engineer’s claims that his employer created an unsafe work environment by doing nothing to mitigate dust from the asbestos used on locomotives and rolling stock. The plaintiff claimed damages for, among other things, mental anguish caused by the fear of cancer and for the failure of his employer to warn about the risks of exposure to asbestos. In dismissing the claims with leave to amend, the court explained that the plaintiff’s complaint did not presently plead an actual injury in fact, which is...
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Eleventh Circuit Agrees with District Court that $4.35 Million Settlement Cannot Be Enforced Against Insurer
Posted on Apr 25, 2014
Working for a subcontractor of a project’s general contractor, a worker fell off a ladder and died as a result of his injuries. His estate brought a wrongful death suit against several defendants including the general contractor. The general contractor claimed that its insurer under a commercial general liability insurance policy had a duty to defend and indemnify the suit. The insurer, relying on a policy exclusion relating to injuries for any of the general contractor’s employees, refused coverage on the grounds that the exclusion extended to the subcontractor’s employees as a matter of...
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Secretary Foxx: DOT to Send Draft Rule to White House Next Week Including Tougher Railcar Standards for Crude Oil and Ethanol
Posted on Apr 25, 2014
On Thursday, U.S. Department of Transportation Secretary Anthony Foxx announced he would send the White House a draft rule to enhance the safety of railcars used to transport crude oil and ethanol next week. The announcement came during Secretary Foxx’s visit to Casselton, N.D., the site of a derailment and explosion of Bakken crude oil in December. The draft rule will be the latest in a line of efforts to improve safety of crude-by-rail, including DOT’s February 25 emergency order, amended and restated on March 6, which mandates that all persons who offer crude oil for transportation in...
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Mine Review Commission Vacates ALJ Penalty Assessment Against Coal Preparation Plant for Relying on Outdated Information
Posted on Apr 23, 2014
The Federal Mine Safety and Health Review Commission vacated an ALJ’s penalty assessment in a case brought by MSHA against a coal preparation plant. In his assessment, the ALJ significantly reduced MSHA’s initial penalties for four regulatory violations related to mobile equipment defects. The ALJ based his reductions, in part, on a comparison of the newly assessed penalties to penalties that MSHA previously assessed against the company, finding that the new penalties should be reduced to place them in line with the older penalties. The Review Commission found that the older penalties were...
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Mississippi Appellate Court Reverses Dismissal of Workers’ Claims Where Lower Court Relied on Evidence Outside Pleadings Without Converting Motion To Dismiss Into Motion for Summary Judgment
Posted on Apr 23, 2014
Following an employee’s death in an explosion at his workplace, the employee’s estate filed suit against the worker’s employer, alleging that it “willfully, recklessly, egregiously[,] and intentionally” failed to provide a safe working environment, “with an intent to injure.” The estate also sued the employer’s parent corporation, alleging that it failed to supervise its subsidiary. The trial court granted the defendants’ Rule 12(b)(6) motion to dismiss, finding that by accepting $2,000 in funeral expenses as part of workers’ compensation benefits, the estate made an election of remedies...
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Ninth Circuit Finds Track Inspector’s Negligent Mismanagement Claims Not Preempted By Railway Labor Act
Posted on Apr 23, 2014
The Ninth Circuit found that a railroad track inspector’s claims for negligent mismanagement against a railway company were not preempted by the Railway Labor Act. Plaintiff, a union member subject to a collective bargaining agreement, sued the company under Montana law after he was suspended without back pay following a collision incident. Plaintiff alleged that (1) the railway company’s mismanagement and negligence caused the collision; and that (2) the railway company mismanaged the investigation of the collision and the resulting disciplinary proceedings. The Ninth Circuit found that...
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New Jersey Appellate Court Finds That Manufacturer Has Duty To Warn That Component Parts of Products Contain Asbestos Even Though Parts Will Be Replaced
Posted on Apr 23, 2014
The Superior Court of New Jersey, Appellate Division found that a pump manufacturer had a duty to warn workers that component parts of its pumps contained asbestos even though those parts would later be replaced. Analyzing the question of duty under a strict liability theory, the court held that the plaintiffs were entitled to the inference that the manufacturer knew that its pumps and their asbestos-containing component parts posed a danger that was reasonably foreseeable because the manufacturer knew at the time it introduced the pumps into the market that the parts would have to be...
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