WEST VIRGINIA RECORD

CHARLESTON -- The West Virginia Supreme Court of Appeals, in a unanimous decision earlier this month, found in favor of CSX Transportation Inc. in a lawsuit filed over an employee's asbestos-related injuries.

The Court, in its Oct. 11 ruling, affirmed the Kanawha Circuit Court's award of summary judgment in favor of the railroad company.

In May 2003, plaintiff Jimmie Gillon filed an action against CSX under the Federal Employers' Liability Act, or FELA. He alleged that he suffered asbestos-related injuries, including lung cancer, as a result of his exposure to asbestos during his employment with CSX.

In response, CSX filed a motion for summary judgment on the basis of its prior settlement agreement and release agreement with Gillon.

The company argued in its motion that Gillon had signed a release agreement dated May 18, 1995 in an earlier action he filed against the railroad company for injuries allegedly resulting from occupational exposure to asbestos. Gillon settled the earlier claim for $12,000.

In that release, Gillon discharged CSX from "all claims for all known and unknown, manifested and unmanifested, suspected and unanticipated occupational diseases or injuries, including cancer, arising from or contributed to by exposure to any and all toxic and pathogenic particulate matter, including but not limited to, asbestos..."

CSX argued the release "expressly and explicitly" covered claims arising under FELA.

The company also noted that Gillon acknowledged in the release that a "portion of the monies paid for this release agreement is for ... possible future manifestation of either the effects of and/or injury or disease due to alleged exposure to such substances ..."

CSX also noted that Gillon executed the release upon the advice and approval of his legal counsel at the time.

However, Gillon argued he wasn't diagnosed with lung cancer until March 2003 -- nearly eight years after he signed the release.

He claimed the cancer and its causes were unknown to him, at least until the date of his diagnosis, and that he was previously "without knowledge" of the potential risks of lung cancer arising from asbestos exposure.

Last October, the Kanawha Circuit Court entered an order granting CSX's motion for summary judgment.

The court found: Gillon executed the earlier release in the context of settling FELA claims; that the release specifically released future cancer claims caused by asbestos exposure; that it was clear from the release's language that Gillon was well aware that he was at risk of developing cancer from his alleged occupational exposures when he executed the release; that he was represented by counsel at the time; and that he had "knowingly and upon the advice of counsel comprised his future cancer claim" when he executed the release.

The state's high court, in its five-page memorandum decision, agreed with the lower court.

The Court said "it is clear from the unambiguous terms of the release," which Gillon signed with the advice of legal counsel in an earlier FELA claim, that he was aware he was releasing any future claim that he might have associated with the development of cancer.

Therefore, CSX is entitled to summary judgment on the basis of the prior release, the Court concluded.