|
Straight
Track #86 Part II: Navigating Unchartered Waters
| Does The FELA Apply To U.S. Citizens Working In Canada?
Robert Drummond
Hoey & Farina Attorney
1-888-425-1212
In Edition #83 of Straight
Track, we discussed whether the FELA applied to U.S. Citizens who were injured while working in Canada. |
|
|
The United States Supreme Court has ruled that the FELA does not apply. One U.S. Court of Appeals has ruled that a railroader injured in Canada may file a claim under his or her Workers’ Compensation Law. There are 50 state Workers’ Compensation Laws providing different remedies for the state residents that they cover. Most of these laws provide that the employer must first elect to be covered by the State Workers’ Compensation Law. Some states require that the employer purchase liability insurance if they are to be covered by the Workers’ Compensation Law. This was the case in the Rogers v. Conrail 948 F2d 858 (1991). Other states allow the employer to be self-insured, and still participate in the Workers’ Compensation system. This is the case in Illinois. However, the employer/carrier, must first elect to be covered by the state Workers’ Compensation Law. In the event that the employer does not elect to be covered by the state Workers’ Compensation Law, the employee may be given the option to file suit against the employer in a court of law. To determine what rights the employee would have requires an analysis of each individual state workers’ compensation scheme. If the employer/carrier complies with the state requirements, the only remedy that an employee would have is under Workers’ Compensation.
We have been asked if the carrier could provide a different remedy. This article cannot provide a definitive answer to that question. However, it would appear that the carrier could elect to provide a remedy other than the state Workers’ Compensation system where the state law allows the employer to elect out of that system.
The critical issue here is whether the carrier, who is likely entitled to elect coverage under the State Workers’ Compensation Law, would agree to elect another remedy. While this is hypothetically possible under the laws of some states, this is a decision that the state law grants exclusively to the employer. Most employers have elected to be covered by these laws because of the limitation on damage awards for specific injuries, and the elimination of damages for pain and suffering, disfigurement, and the right to trial by a jury. Given the historical animosity of the carriers to the
FELA, it is highly unlikely that they would voluntarily replace a workers’ compensation remedy with one that resembles the
FELA.
In order to determine if this could hypothetically be possible, one would first have to look at the law of the state in which the employee and carrier have their primary employment relationship. If this state law allows the carrier to elect out of the Workers’ Compensation System and provides for a court action, this could provide the basis for court jurisdiction for an alternative remedy. The FELA was designed to eliminate many of the defenses which an employer had under state law. For example, under state law, the employer was not liable for the negligence of a fellow employee (the Fellow Servant Doctrine). Also under some states’ law, contributory negligence of the employer prevented recovery. In addition, the employer was not liable where the employee had knowingly assumed the risk of a dangerous work activity. If the employer is not covered by Workers’ Compensation, the court remedy may be subject to these same defenses that were eliminated by the
FELA. Thus, under this scenario, and absent the protection of the FELA, the employee may be better served by the Workers’ Compensation coverage.
Nothing in the Railway Labor Act would prohibit the employer from agreeing that these defenses could not be asserted in such an action. The carrier could stipulate that in the state court remedy the rights and remedies under the FELA would apply. Although I have looked, I could not find any cases that have litigated such an arrangement. Such a circumstance would be on the cutting edge of the law in attempting to fashion such a remedy. Your efforts to create a remedy similar to, or identical to the FELA for injuries occurring in Canada raises more questions than there are currently answers. Although choice of law provisions in contracts are generally given deference by the courts, the choice must not be contrary to the states “public policy.” If it is not, the next question is what court could the action be brought in. And finally, whether the Court would apply the provisions of the
FELA, which are likely contrary to the existing state law. Although one could hope that the courts would recognize the need to fill this void with the broad remedy of the
FELA, this is far from certain. I hope that this article provides food for thought, because I cannot provide, given the fifty state laws involved, a definitive answer.
[top]
|
