Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ward v. Illinois Central Railroad Co.

Supreme Court of Mississippi, En Banc

May 23, 2019

ANDREW L. WARD, JR., AS PERSONAL REPRESENTATIVE OF LARRY AND MILDRED SEWARD, DECEASED
v.
ILLINOIS CENTRAL RAILROAD COMPANY

          DATE OF JUDGMENT: 01/30/2018

          DESOTO COUNTY CIRCUIT COURT HON. CELESTE EMBREY WILSON JUDGE

          TRIAL COURT ATTORNEYS: PATRICK STEVEN O'BRIEN CHARLES EDWARD SOREY, II STEPHANIE CAMILLE REIFERS BROOKS E. KOSTAKIS

          ATTORNEYS FOR APPELLANT: CHARLES EDWARD SOREY, II PATRICK STEVEN O'BRIEN

          ATTORNEYS FOR APPELLEE: STEPHANIE CAMILLE REIFERS THOMAS R. PETERS BROOKS E. KOSTAKIS

          CHAMBERLIN, JUSTICE

         ¶1. Andrew L. Ward sued Illinois Central Railroad Company on behalf of Larry Seward. Ward alleged that Illinois Central breached its duty of care and failed to provide Seward with a safe place to work, allegedly causing Seward's brain cancer. Illinois Central filed a motion for summary judgment based on a previous settlement and release that Seward had entered into with Illinois Central before his death. The trial court granted Illinois Central's motion for summary judgment. Ward appealed the trial court's grant of summary judgment. The Court affirms.

         STATEMENT OF FACTS

         ¶2. Larry Seward worked for Illinois Central Railroad Company from 1961 to 2004. In 2005, Seward settled an asbestosis claim with Illinois Central. He subsequently developed and passed away from anaplastic oligodendroglioma, a type of brain cancer.

         ¶3. In 2012, Andrew L. Ward sued Illinois Central on behalf of Seward. Ward alleged that Illinois Central breached its duty of care and failed to provide Seward with a safe place to work. The complaint detailed specific issues with the work environment, including Seward's exposure to chemicals and hazardous conditions. The complaint alleged that the working environment "caused, in whole or in part," Seward's brain cancer.

         ¶4. Illinois Central filed a motion for summary judgment based on the settlement and release that Seward signed in 2005. The 2005 settlement was due to an asbestos-related illness. In pertinent part, the release provided,

[T]he Undersigned alleges [that Releasees (Illinois Central)] created an exposure or exposures to asbestos, coal, coal dust, welding fumes, brass fumes, diesel fumes, dust, paint vapors, fuel fumes, methyl bromide, ammonia gas, sand, silica, Dow Clean, solvents, cleaners, degreasers, and other fumes, dusts, mists, gases, and vapors from any material, chemical, toxin or other agent. The Undersigned asserts that such exposure caused a condition, injury, disease and/or deficiency (hereinafter, referred to as "condition") in the Undersigned including, but not limited to plaques, calcifications, thickening, pneumoconiosis including asbestosis and silicosis, severe and permanent injuries to the lungs, respiratory system, nerves and/or nervous system, cancer, and any and all other conditions, diseases or injuries existing prior to the date of this Release Agreement which are known to the Undersigned or reasonably could have been known prior to the date of this Release Agreement and which may further develop in the future as a result of what now exists, arising from or as a result of the alleged exposures or which may further develop as a result of the Undersigned's current known or unknown conditions, which allegedly developed over time while working in one or more of the Releasees employ, which are expressly released herein.

         In the process of making the settlement, Illinois Central asked Seward to fill out its "Pulmonary Questionnaire." The pulmonary questionnaire asked Seward to "[p]lease check all chemicals you allege exposures from while employed at Illinois Central." Seward placed an "x" or a check mark next to asbestos, diesel exhaust, silica, solvents, degreasers, coal, chemicals and weed spray. He also checked that he had been diagnosed with asbestosis, bronchitis and pneumonia.

         ¶5. Ward presented the testimony of Robert Peirce Jr. Peirce was Seward's attorney at the time of the 2005 settlement and release. Peirce's affidavit stated that "Mr. Seward and myself were unaware that Mr. Seward has suffered exposures to chemical which would ultimately cause him to contract primary brain cancer . . . ." Peirce further provided that he "did not negotiate or obtain any monies from Illinois Central Railroad Company to compensate Mr. Seward for anything other than his lung injury" and if he "[h]ad known that Mr. Seward would subsequently develop anaplastic oligodemdroglioma or any other occupational cancer not listed in the Complaint or Release [he] would have demanded additional compensation for Mr. Seward." Peirce also provided the following deposition testimony:

Q. You agree with me that these questionnaires ask about exposure beyond asbestos to each of these individuals; correct?
A. No, I don't agree with that.
Q. What do you think the purpose of question 3A is?
A. It says check all the chemicals you allege exposure from while employed at Illinois Central.
Q. So do you think they're looking for exposures beyond just asbestos in answer to that question?
A. No.
Q. What do you think they're looking for?
A. I think they're looking for asbestos exposure.
. . . .
Q. Is it your position the railroad didn't want to know that they were exposed to diesel exhaust, they just wanted to know ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.