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Crowe v. CSX Transportation, Inc.

Court of Special Appeals of Maryland

August 28, 2019


          Circuit Court for Baltimore City Case No.: 24X16000585

          Fader, C.J., Graeff, Eyler, James R. (Senior Judge, Specially Assigned), JJ. [*]


          EYLER, JAMES R., J.

         Clyde Jackson Crowe, and his wife, Veronica Crowe, filed suit in the Circuit Court for Baltimore City against CSX Transportation, Inc. (CSX), and nineteen other defendants, seeking damages under the Federal Employer's Liability Act (FELA), 45 U.S.C. §§ 51-60, in pertinent part, alleging that Mr. Crowe was exposed to asbestos during his employment with CSX and that such exposure caused him to develop malignant mesothelioma.

         CSX filed a motion to dismiss or, in the alternative, for summary judgment, arguing that Mr. Crowe's claim for damages against CSX under FELA was barred because the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901-950, provided his exclusive remedy against CSX for employment-related claims. Following oral argument, the circuit court granted CSX's motion and entered judgment in favor of CSX. This appeal followed.

         Mr. Crowe presents two issues for our review, which we have rephrased as follows:[1]

1. Did the circuit court err in concluding that Mr. Crowe's FELA claim against CSX is barred by the LHWCA?
2. Assuming the 1972 Amendments to the LHWCA apply to Mr. Crowe's claims, does he meet the "status" requirement of a maritime employee under the 1972 Amendments to the LHWCA?

         For the reasons stated below, we conclude that the 1972 Amendments apply to Mr. Crowe; Mr. Crowe was a maritime worker within the meaning of the Amendments; and the LHWCA provides the exclusive remedy. Thus, the circuit court did not err in entering judgment in favor of CSX. We affirm the judgment of the circuit court.


         From 1960 to 1969, Mr. Crowe was employed by Western Maryland Railway, predecessor to CSX, [2] as a railway operator and foreman at the Port Covington railyard and port facility in Baltimore, Maryland. The operations at that location consisted of loading and unloading ships; storing the freight in warehouses; and shipping the goods to customers via railcars and trucks. Mr. Crowe's job duties included supervising the loading of freight from the warehouses onto railcars and trucks. According to Mr. Crowe, twice per year between 1960 and 1969, burlap bags of raw asbestos arrived by ship at Port Covington. Dockworkers unloaded the burlap bags of asbestos from ships using a metal hook. The hook frequently tore holes in the burlap bags, allowing raw asbestos to spill from the bags. Dockworkers loaded the bags of asbestos onto pallets and delivered them to warehouses for storage. The bags of asbestos could remain in the warehouses for up to one month before they were shipped out on railcars or trucks.

         While supervising the railroad workers who loaded the stored bags of asbestos onto railcars and trucks, he was in close contact with the workers handling bags of asbestos, including torn bags. On occasion, Mr. Crowe participated in physically moving the freight. Mr. Crowe was exposed to asbestos fibers in the warehouse and during the loading of the asbestos bags onto railcars and trucks.

         On August 30, 2016, Mr. Crowe was diagnosed with malignant mesothelioma, allegedly caused by his exposure to asbestos fibers from 1960 to 1969. On December 21, 2016, he and Mrs. Crowe brought a personal injury action in circuit court under FELA.


         In this case, the circuit court did not specify whether it granted CSX's motion to dismiss or motion for summary judgment. The motion papers were supported by answers to interrogatories and deposition testimony. When, as here, a trial court considers materials outside the complaint, we ordinarily treat a motion to dismiss as a motion for summary judgment. We review the grant of the motion "without deference for legal correctness." Floyd v. Mayor & City Council of Baltimore, 463 Md. 226, 241 (2019), reconsideration denied (May 16, 2019). Because a circuit court's decision to grant summary judgment is a question of law, our review is de novo. Vito v. Grueff, 453 Md. 88, 104 (2017).


         FELA was enacted to provide a tort remedy for railroad employees who were injured in the course of their employment caused by the negligence of the employer. Merrill v. Chicago & Illinois Midland Ry., 751 F.Supp. 770, 772 (C.D. Ill. 1990). FELA, 45 U.S.C. § 51 provides, in part:

Every common carrier by railroad while engaging in ... [interstate commerce] ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, ... resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

         FELA retained a fault system. The basis of liability is negligence, but it abolished the common law defenses of contributory negligence, assumption of the risk, and the fellow servant rule. Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 542-543 (1994). "The FELA law is a hybrid. It hovers ambivalently between workers' compensation law and the common law tort of negligence. It is neither, but it partakes of characteristics of both." CSX Transp., Inc. v. Miller, 159 Md.App. 123, 129 (2004). FELA was enacted in 1906, at a time when few states had workers' compensation laws, and thousands of railroad workers were being injured, maimed, and killed on the railways. Id. at 130. "FELA has been defended as more advantageous to railroad employees than an act patterned on workers' compensation statutes." Philip D. Oliver, Once Is Enough: A Proposed Bar of the Injured Employee's Cause of Action Against A Third Party, 58 Fordham L. Rev. 117, 172 (1989). We have recognized that "although the FELA is not a workers' compensation act, the social forces that produced it and the generating spirit that drives it resonate with the language and philosophy of workers' compensation principles." CSX Transp., Inc. v. Miller, 159 Md.App. at 131.


         By the 1920s and before the LHWCA was enacted in 1927, a longshore worker injured on the land side of a port facility was generally covered by state workers' compensation statutes. A worker injured on the seaward side generally had no remedy. In Southern Pacific Co. v. Jenson, 244 U.S. 205 (1917), the Supreme Court held that a state had no power to extend a compensation remedy to workers on the seaward side. The LHWCA was enacted to provide benefits to seaside workers. "The LHWCA is remedial legislation intended to provide a remedy to workers injured during longshoring activities." Merrill, 751 F.Supp. at 775; 33 U.S.C. § 903. The LHWCA was enacted to provide federal workers' compensation benefits to maritime workers who sustained injuries upon "navigable waters" but were not covered by federal admiralty and did not have other remedies. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 257-58 (1977); Merrill, 751 F.Supp. at 775. The LHWCA provides for the payment of compensation "in respect of disability or death" caused by an injury that occurred on navigable waters. 33 U.S.C. §903.

         Initially, the LHWCA's coverage was interpreted to exclude maritime workers who suffered injuries on land. See Nacirema Operating Co. v. Johnson, 396 U.S. 212, 223 (1969). Under the caselaw prior to 1972, the "situs" determined the applicability of the LHWCA, and the dividing line was the water's edge. This created "anomalous and inconsistent results" in the coverage available to injured longshore workers. P. C. Pfeiffer Co. v. Ford, 444 U.S. 69, 72 (1979); Merrill, 751 F.Supp. at 775. See, e.g., Davis v. Department of Labor and Industries of Washington, 317 U.S. 249 (1942).

         In 1972, Congress amended the LHWCA and expanded the definition of "navigable waters of the United States" to include areas such as adjoining piers, docks and terminals customarily used in the loading, unloading, building and maintenance of ships. Caputo, 432 U.S. at 263-64. See 33 U.S.C. § 903(a). The 1972 Amendments thereby extended the location or "situs" requirement under the LHWCA to include maritime employees injured on water and land. Id.

         At the same time, Congress also enacted a "status" requirement for employees to qualify for compensation under the LHWCA. P.C. Pfeiffer Co., 444 U.S. at 73-74; 33 U.S.C. § 902(3). The status test broadened the definition of persons covered by the LHWCA to include workers "engaged in maritime employment."

The Act now extends coverage to more workers by replacing the single-situs requirement with a two-part situs and status standard. The newly broadened situs test provides compensation for an "employee" whose disability or death "results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel)." § 3(a), 33 U.S.C. § 903(a). The status test defines an employee as "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker ...

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