PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 99-12571
D.C. Docket No. 98-01311-CV-JLK
SEA-LAND SERVICE, INC.,
Plaintiff-Appellee,
versus
PEDRO SELLAN,
Defendant-Appellant.
Appeal from the United States District
Court for the
Southern District of Florida
(October 26, 2000)
Before EDMONDSON and MARCUS, Circuit
Judges, and RESTANI1,
Judge.
RESTANI, Judge:
Appellant Pedro Sellan ("Sellan")
appeals from a final judgment declaring enforceable a Settlement
Agreement (the "Agreement") to preclude plaintiff from
proceeding on an injury claim against appellee Sea-Land Service,
Inc. ("Sea-Land"). Sellan alleges that the relevant
provision of the Agreement is voided by The Federal Employers'
Liability Act ("FELA"), 45 U.S.C.A. § 55 (1994),
because the provision exempts Sea-Land, a common carrier, from
liability under the Act by releasing it from future claims.
We affirm the district court's holding
that the provision at issue is part of a valid settlement of
a present claim of total disability for sea duty and represents
an enforceable agreement that Sellan will not work for Sea-Land
in the future, and if he does, that Sea-Land is not responsible
for his injuries. Thus, Sellan is precluded from pursuing the
new injury claim against Sea-Land.
Jurisdiction
The district court had federal question
jurisdiction over the complaint seeking declaratory relief pursuant
to 28 U.S.C. § 2201 et seq. and 28 U.S.C. § 1333. Appellate
jurisdiction is under 28 U.S.C. § 1291, as this is an appeal
from a final judgment.
Facts
On November 6, 1993, while employed
as a chief steward aboard Sea-Land's vessel, Sea-Land Expedition,
Sellan experienced an onset of low back pain, which he reported
occurred after moving a heavy box of meat. As a result of this
injury, Sellan brought a claim against Sea-Land for total disability
from work at sea. Sea-Land paid all maintenance and all medical
expenses for Sellan's November 6, 1993, back injury claim, including
surgery.
On January 5, 1995, Sellan's surgeon
reported to Sea-Land that Sellan was permanently not fit for
duty. On May 12, 1995, he found Sellan had reached maximum medical
improvement and assigned a permanent disability of 56% of the
total body according to the Minnesota guidelines.
On account of Sellan's November
6, 1993 injury and its consequences, Sea-Land paid Sellan $364,500
in exchange for a Release and a "Settlement Agreement Not
to Sail or Work" dated July 27, 1995. In the Agreement,
Sellan acknowledged "that [his] doctors have recommended
that he no longer engage in the career as merchant seaman"
and "[f]or this reason [he] further states and acknowledges
that it is for his own benefit and safety not to seek employment
and/or to navigate aboard vessels owned, managed, and/or operated
by Sea-Land Service, Inc."
Paragraph 4 of the Agreement reads:
In addition to, and as an integral
part of, the above referenced Release of All Rights, and in consideration
of total payments equaling Three Hundred Sixty Four Thousand
Five Hundred and 00/100 Dollars ($364,000.00), the parties have
agreed that Mr. Sellan will not work, sail and/or navigate, and/or
seek to sail, navigate or work, in any capacity, including shore
relief, aboard vessels owned, managed, and/or operated by Sea-Land
Service, Inc., and/or any of its affiliates and/or subsidiaries,
in the future.
In pertinent part, paragraph 5 reads1:
However, if for any reason, including
oversight or consent, Mr. Pedro Sellan is able to re-engage in
service aboard a vessel owned, managed and/or operated by Sea-Land
Service . . . then he shall do so at his own risk, and the company
will bear no responsibility for an illness and/or injuries he
may suffer while in service aboard any such vessel.
In the spring of 1997, Sellan paid
his back dues to the Seafarer's International Union and, on April
14, 1997, underwent a union physical for purposes of assessing
his duty status. The union doctor performing the physical testified
that he was not told by Sellan of the medical history surrounding
the November 6, 1993 incident. Accordingly, Sellan was declared
fit for duty.
During a time when Sea-Land was
unable to conduct pre-employment background checks because of
technical difficulties Sellan was dispatched from his union's
hiring hall to join plaintiff's vessel, Sea-Land Crusader, again
as chief steward. The collective bargaining agreement gives the
union the power in the first instance to designate the employees
to be sent to a Sea- Land vessel. When the Union dispatches a
seaman to a vessel, he or she may pass on the job for any reason
and wait for the next available assignment. Sellan, however,
boarded the Sea-Land Crusader without informing anyone about
either the Agreement never again to sail aboard a Sea-Land vessel
or the finding of permanent not-fit-for-duty status.
On October 31, 1997, about three
weeks after he returned to work, Sellan reported re-injuring
his back aboard the Sea-Land Crusader in circumstances substantially
identical to his November 6, 1993, injury. The October 31, 1997,
injury occurred in the ordinary course of performance of duties
as chief steward, again as a claimed result of lifting a heavy
box of meat in the vessel's galley.
Sea-Land commenced this action for
judgment declaring the Agreement with Sellan enforceable to preclude
him from pursuing an action in Florida state court seeking recovery
of damages on account of the October 31, 1997, injury. The district
court found that Sellan, with full understanding and in exchange
for appropriate consideration, had executed a general release
and entered into the Agreement, and as a result was bound by
its terms; and that the Agreement did not run afoul of FELA,
45 U.S.C. § 55. The district court specifically enforced
the terms of the Agreement and entered final declaratory judgment
in Sea- Land's favor.
The only issue pursued by Sellan
in this appeal is whether Paragraph 5 of the Agreement Not to
Sail or Work violates the following provision of FELA:
Any contract, rule, regulation,
or device whatsoever, the purpose or intent of which shall be
to enable any common carrier to exempt itself from any liability
created by this chapter, shall to that extent be void . . . .
45 U.S.C. § 55.
Discussion
Appellant challenges none of the
district court's factual findings. We apply a de novo
standard of review to the issue of law before us, that is, whether
Paragraph 5 of the agreement violates FELA. Godfrey v. BellSouth
Telecom., Inc., 89 F.3d 755, 757 (11th Cir. 1996).
The Supreme Court has held that
a release does not violate FELA where it is "not a device
to exempt from liability but is a means of compromising a claimed
liability . . . ." Callen v. Pa. R.R. Co., 332 U.S.
625, 631 (1948). In Callen, the Court upheld a general
release, in exchange for two hundred and fifty dollars, of the
employer railroad from liability for specific injuries sustained
in an accident. Callen, 332 U.S. at 626. In contrast,
in Philadelphia, Baltimore & Washington R.R. Co. v. Schubert,
224 U.S. 603, 612-13 (1912), and Duncan v. Thompson, 315
U.S. 1, 7-8 (1942), the Court rejected under FELA general releases
that did not involve express settlement of claims for specific
injuries.
Rights under FELA fundamentally
are premised on the existence of an employment relationship.
The purpose of 45 U.S.C. § 55 is to prevent employers from
undermining the liability scheme created by FELA for their negligence.
Philadelphia, 224 U.S. at 609. It prevents employers from
restricting FELA rights as a condition of employment. See
Wicker v. Consol. Rail Corp., 142 F.3d 690, 700-01 (3rd
Cir. 1998).
Here, Sea-Land compromised a claim
of permanent total disability and attempted to prevent a re-injury
to Sellan, which would result in detriment to him and to Sea-Land.
The Agreement was designed to make sure that a totally disabled
seaman would not work for Sea-Land as a seaman under the Jones
Act. Such an agreement is not a violation of a federal statute
designed to protect railroad workers and seamen from overreaching
as a condition of either obtaining or maintaining employment.
In general, an employer is entitled
to refuse re-employment to avoid liability for re-injuries following
a lifetime settlement for a claimed permanent disability. See,
e.g., Sands v. Union Pac. R. Co., 148 F. Supp 422
(D. Or. 1956)(injured railroad worker seeking re-employment estopped
from asserting fitness for duty given high risk of re-injury).
Under FELA, a carrier will be liable if its negligence "played
any part, even the slightest, in producing the employee's injury."
Armstrong v. Kansas City S. Ry. Co., 752 F.2d 1110, 1113
(5th Cir. 1985). FELA employers also may be liable if they negligently
assign employees tasks that are beyond their physical capacities.
Fletcher v. Union Pac. R. Co., 621 F.2d 902, 908-09 (8th
Cir. 1980). Refusal to rehire permanently and totally disabled
seamen appears to be the only effective means of both protecting
them from further injury and satisfying the employer's duties
and, hence, foreclosing a shipowner's liability for future harm
to such seamen.
Here, Sellan claimed that it was
not safe after his November 6, 1993, accident for him to work
at sea and that he was totally disabled and unable to do the
work he was performing when allegedly injured aboard the Sea-Land
Crusader. Sea-Land could bargain for an agreement settling such
a claim and barring Sellan's future employment on its vessels,
and it could put teeth in the agreement by leaving the risk of
re-injury with Sellan.
Sellan heavily relies upon the Sixth
Circuit's determination that under FELA, an employer's release
"must reflect a bargained-for settlement of a known claim
for a specific injury, as contrasted with an attempt to extinguish
potential future claims the employee might have arising from
injuries known or unknown by him." Babbitt v. Norfolk
& W. Ry. Co., 104 F.3d 89, 93 (6th Cir. 1997). In Babbitt,
the employer wanted to "buy its peace" by having employees
sign a general release upon retirement in order to ensure for
the employer no further exposure to liability. Id. at
91. The court remanded for the district court to determine whether
the release was executed as part of a settlement for damages
sustained for specific injuries. Id. at 93.
Here, in contrast, there clearly
was a settlement of current injury claims. Sellan received medical
advice during both his treatment and the settlement negotiations
relevant to the risk of re-injury. On January 5, 1995, Sellan's
neurosurgeon and treating physician declared Sellan "100
per cent disabled to resume his former job on the ship . . .
." Sea-Land's Trial Ex. A, at 3. The doctor further recognized
the risk of Sellan re- injuring his back by placing severe restrictions
on Sellan's performing future tasks, including lifting more than
15 pounds, pushing, pulling, and standing or sitting for long
periods of time. Id. The doctor's subsequent letter of
May 12, 1995 confirmed Sellan's status as permanently not fit
for duty. Sea- Land's Trial Ex. D, at 1.
Section 5 of FELA "allows an
employer to negotiate a release of claims with an employee provided
the release is limited to those risks which are known by the
parties at the time the release is negotiated." Wicker,
142 F.3d at 702. Contrary to Sellan's argument, enforcement of
the Agreement is consistent with the Wicker holding that:
a release does not violate §
5 [of FELA] provided it is executed for valid consideration as
part of a settlement, and the scope of the release is limited
to those risks which are known to the parties at the time the
release is signed.
Id.
at 701. The Agreement was intended to prevent the very risk at
issue here.
Further, under the Agreement Sellan
was paid both for his current expenses and for his entire work-life
expectancy. The Agreement was intended both to prevent Sellan
from suffering re- injury and for Sea-Land to avoid paying again
what had already been paid, a work lifetime of compensation.
Plaintiff cites a number of cases dealing with post-release liability
for new injuries or aggravation of old injuries. E.g.,
Wilson v. CSX Trans., Inc., 83 F.3d 742 (6th Cir. 1996)
(release ineffective to shield employer from liability for new
injury after re- employment); Stephens v. Ala. State Docks
Term. R., 723 So.2d 83 (Ala. Civ. App. 1998) (prior signed
release does not prevent recovery for aggravation of the original
injury that is caused by a subsequent on-the-job accident). Such
cases are inapposite. Plaintiff cites no case in which a previously
totally disabled employee was permitted to recover under FELA
for injuries incurred as a result of breaching an agreement not
to return to work. Here Sellan accepted all of the benefits of
the Agreement. He is not permitted to benefit from breaching
the Agreement by returning to work at Sea-Land. See Ballard
v. El Dorado Tire Co., 512 F.2d 901, 907-08 (5th Cir. 1975)
(promissor may not benefit from his own failure of performance).
As noted in Wicker, 142 F.3d at 698, cases involving the
validity of releases under FELA are fact-driven. The entire fact
pattern at issue here requires enforcement of the Agreement.
Conclusion
Sellan received the advantage of
a settlement that fully covered his medical expenses and was
intended to compensate him for a lifetime of work. The settlement
agreement included provisions forbidding future employment by
a totally disabled seaman that would expose him to known and
unacceptable risks. The settlement agreement properly left the
risk of future injury with Sellan should he breach the Agreement
by returning to work. Sellan accepted the benefits of his bargain
and then breached it by surreptitiously gaining re-employment
as a seaman with Sea-Land. Sellan cannot succeed under these
facts. Nor can Paragraph 5 of the Agreement be read in isolation.
It is not intended to condition employment with an exception
from liability; it is part of a valid overall settlement of a
specific claim of injury, and it does not run afoul of FELA.
The judgment of the District Court
is
AFFIRMED.
FOOTNOTES
--------------
[1]
Honorable Jane A. Restani, Judge
of the United States Court of International Trade, sitting by
designation.
--------------
[1]
While Sellan argues that the
Agreement contemplated his return to work, we conclude this argument
is meritless. We give weight to the plain meaning of the title
of the Agreement: "Settlement Agreement Not to Sail or Work."
Also, the district court found that the agreement not to sail
or work was a necessary term of the contract, without which Sea-Land
would not have entered into the settlement agreement. SeeSea-Land
Serv., Inc. v. Sellan, 64 F. Supp. 2d 1255, 1259 (S.D. Fla.
1999). The district court also found that the "settlement
was structured to cover [Sellan's] inability to return to the
sea for the remainder of his career and was intended to supplement
the salary of any sedentary job he obtained." Id.
at 1261.
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