                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2018-CA-00285-SCT

ANDREW L. WARD, JR., AS PERSONAL
REPRESENTATIVE OF LARRY AND MILDRED
SEWARD, DECEASED

v.

ILLINOIS CENTRAL RAILROAD COMPANY


DATE OF JUDGMENT:                          01/30/2018
TRIAL JUDGE:                               HON. CELESTE EMBREY WILSON
TRIAL COURT ATTORNEYS:                     PATRICK STEVEN O’BRIEN
                                           CHARLES EDWARD SOREY, II
                                           STEPHANIE CAMILLE REIFERS
                                           BROOKS E. KOSTAKIS
COURT FROM WHICH APPEALED:                 DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   CHARLES EDWARD SOREY, II
                                           PATRICK STEVEN O’BRIEN
ATTORNEYS FOR APPELLEE:                    STEPHANIE CAMILLE REIFERS
                                           THOMAS R. PETERS
                                           BROOKS E. KOSTAKIS
NATURE OF THE CASE:                        CIVIL - WRONGFUL DEATH
DISPOSITION:                               AFFIRMED - 05/23/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       CHAMBERLIN, JUSTICE, FOR THE COURT:

¶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

                                               2
       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.


                                              3
       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 if they were
              exposed to asbestos?

       A.     No. But I believe exposure to diesel exhaust could be a contributing
              force in asbestosis.

       Q.     How is that?

       A.     Well, I think that some people believe that exposure to diesel exhaust
              can cause asbestosis or asbestosis-related diseases. So that’s probably
              why it was included in there.

¶6.    The trial court granted Illinois Central’s motion for summary judgment.1 The trial

court concluded that “[t]he Plaintiff has failed to provide any evidence that would create a

question of fact as to whether Mr. Seward did not contemplate (or otherwise have the

opportunity to contemplate) the risks of his exposure to the above-listed toxins when he

settled his prior claims.” Ward appealed the trial court’s grant of summary judgment.



       1
        Although Illinois Central brought other motions, the grant of summary judgment is
the only motion addressed by the parties on appeal.

                                             4
                              STATEMENT OF THE ISSUE

¶7.    Although the parties style the issue slightly differently, both parties agree that the only

issue on appeal is whether summary judgment was properly granted.

                                STANDARD OF REVIEW

¶8.    The Court applies de novo review to the grant or denial of summary judgment. Ill.

Cent. R.R. Co. v. Jackson, 179 So. 3d 1037, 1044 (Miss. 2015) (citing Serv. Cos., Inc. v.

Estate of Vaughn, 169 So. 3d 875, 878 (Miss. 2015)). Summary judgment is appropriate “if

the pleadings, depositions, answers to interrogatories and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). “A fact

is material if it tends to resolve any of the issues properly raised by the parties.” Holland v.

Peoples Bank & Tr. Co., 3 So. 3d 94, 99 (Miss. 2008) (internal quotation marks omitted)

(quoting Simpson v. Boyd, 880 So. 2d 1047, 1050 (Miss. 2004)). The moving party bears

the burden of demonstrating the absence of a genuine issue of material fact. Jackson, 179

So. 3d at 1044 (citing Hoseman v. Harris, 163 So. 3d 263, 267 (Miss. 2015)). Further, the

Court has provided,

       “A motion for summary judgment should be overruled unless the trial court
       finds, beyond a reasonable doubt, that the plaintiff would be unable to prove
       any facts to support his claim.” The lower court is prohibited from trying the
       issues; “it may only determine whether there are issues to be tried.” The
       non-moving party . . . has the burden of providing “‘supportive evidence of
       significant and probative value’ in opposition to the motion for summary
       judgment.”

Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So. 2d 790, 795–96 (Miss. 1995)

(emphasis removed) (citations omitted).

                                               5
                                         ANALYSIS

       Whether the trial court erred in granting Illinois Central Railroad
       Company’s motion for summary judgment.

¶9.    This case is governed by the Federal Employers’ Liability Act (FELA). “FELA was

designed ‘to enable injured railroad workers to overcome a number of traditional defenses

to tort liability that had previously operated to bar their actions.’” Wicker v. Consol. Rail

Corp., 142 F.3d 690, 696 (3d Cir. 1998) (quoting Lewy v. S. Pac. Transp. Co., 799 F.2d

1281, 1287 (9th Cir. 1986)). In pertinent part, FELA provides, “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.A. § 55 (West 2007).2

¶10.   Courts around the country have adopted different approaches to interpreting Section

5 of the FELA. In Wicker, the United States Court of Appeals for the Third Circuit stated

that “[t]o the extent that a release chronicles the scope and duration of the known risks, it

would supply strong evidence in support of the release defense.” Wicker, 142 F.3d at 701.

In Illinois Central Railroad Co. v. Acuff, the Court adopted Wicker’s “known risk” test.3 Ill.


       2
        45 U.S.C.A. § 55 is also referred to as Section 5 of the FELA.
       3
        An employee negotiating a claim for an existing controversy materially differs from
an employee agreeing to a voluntary end to his or her employment and not negotiating the
settlement of an existing controversy. Ratliff v. Norfolk S. Ry. Co., 680 S.E.2d 28, 38 (W.
Va. 2009) (citing Babbitt v. Norfolk & W. Ry. Co., 104 F.3d 89 (6th Cir. 1997)); see also
Wicker, 142 F.3d at 700. For an employee agreeing to a voluntary end to his or her
employment, the Babbitt Court employed a bright-line rule stating that a release is only valid
when it reflects “a bargained-for settlement of a known claim for a specific injury . . . .”
Babbitt, 104 F.3d at 93. Some courts have noted the material factual difference between the
application of the Babbitt and Wicker tests. See Wicker, 142 F.3d at 700; Ratliff, 680 S.E.2d

                                               6
Cent. R.R. Co. v. Acuff, 950 So. 2d 947, 960 (Miss. 2006) (“[U]nder the specific language

of Section 5 of the FELA and United States Supreme Court precedent, we find the Third

Circuit’s approach allowing the release of future claims based on specific risks known to the

parties to be appropriate.”).

¶11.     Ward argues that the trial court overlooked the existence of the affidavit and the

deposition testimony of Peirce, Seward’s attorney. Ward concludes that Peirce’s testimony

makes Seward’s intent a fact-intensive inquiry. Further, Ward argues that the determination

of whether the release was boilerplate is also a jury issue. On the other hand, Illinois Central

compares this case to Acuff and argues that summary judgment was appropriate. Illinois

Central points to the release and to the pulmonary questionnaire and states that they are

“limited to specific known risks.” Further, Illinois Central states that Peirce’s testimony was

“immaterial and insufficient to create a material issue of fact in light of the other undisputed

evidence.”

¶12.     Here, under Acuff and Wicker, the inquiry is two-fold. The Court considers whether

the release at issue is boilerplate and whether the risk of developing brain cancer was known

and contemplated by Seward at the time he signed the release.

¶13.     Notably, Wicker explained the importance of allowing parties the right to quantify and

limit future liabilities. It stated that “the parties may want to settle controversies about

potential liability and damages related to known risks even if there is no present




at 38.

                                               7
manifestation of injury.” Wicker, 142 F.3d at 700–01. Further, although Wicker supported

the use of releases, it also qualified the power of the release, stating,

       But we are wary of making the validity of the release turn on the writing alone
       because of the ease in writing detailed boiler plate [sic] agreements; draft
       releases might well include an extensive catalog of every chemical and hazard
       known to railroad employment. For this reason, we think the written release
       should not be conclusive. We recognize that what is involved is a
       fact-intensive process, but trial courts are competent to make these kinds of
       determinations.

Id. at 701. The release “may be strong, but not conclusive, evidence of the parties’ intent.”

Id. Wicker defined specific situations requiring a fact-intensive inquiry: “[w]here a specific

known risk or malady is not mentioned in the release, it would seem difficult for the

employer to show it was known to the employee and that he or she intended to release

liability for it[,]” and “where a release merely details a laundry list of diseases or hazards, the

employee may attack that release as boiler plate [sic], not reflecting his or her intent.” Id.

To determine if the release was boilerplate, the Wicker Court looked to the language of the

release. The Wicker Court differentiated between releases that “recite a series of generic

hazards to which [the employee] might have been exposed” and releases that provide

“specific risks the employees faced during the course of their employment.” Id.

¶14.   The Acuff Court faced facts similar to this case, including an affidavit from the

attorney involved in the original lawsuit. Acuff, 950 So. 2d at 958. However, in Acuff,

Illinois Central filed a motion to enforce the settlement agreement, and the parties agreed to

have the trial judge determine all issues of law and fact. Id. at 952. The trial judge treated

the known-risk analysis as fact-intensive and sat as the finder of fact. Id. On appeal, the



                                                8
Court applied an abuse-of-discretion standard of review.4 Id. Therefore, although we cite

Acuff for its adoption of Wicker, it provides little guidance regarding whether a contested

issue of material fact exists.

¶15.   Because the caselaw in Mississippi is limited, the Court looks to other states and

federal courts for guidance. Wicker has been applied supporting and rejecting the grant of

summary judgment.

¶16.   In Jaqua v. Canadian National Railroad, Inc., 734 N.W.2d 228 (Mich. Ct. App.

2007), the Court of Appeals of Michigan noted the specificity within the release at issue and

granted summary judgment. Id. at 337. The Jaqua Court stated, “Jaqua specifically settled

claims regarding cancer as well as any other illnesses related to his asbestos exposure. The

release addressed a specific instance of disputed liability and specific injuries that Jaqua

suffered, or was at great risk of suffering in the future—asbestosis and lung cancer.” Id.

(footnote omitted).

¶17.   Similarly, in Blackwell v. CSX Transportation, Inc., 102 A.3d 864 (Md. Ct. Spec.

App. 2014), the Court of Special Appeals of Maryland affirmed the grant of summary

judgment. Id. at 873. It adopted Wicker and held that the first release contemplated the

second suit. Id. Specifically, it held that the first release had released CSX Transport from

“any new or additional repetitive stress or cumulative trauma injury either presently existing

or that may arise in the future to the lower extremities or other body parts.” Id. Blackwell’s


       4
       Similarly, in Illinois Central Railroad Co. v. McDaniel, 951 So. 2d 523, 525 (Miss.
2006), Illinois Central filed a motion to enforce the settlement agreement. The Court
reviewed the trial court’s findings under an abuse-of-discretion standard of review. Id. at
526.

                                              9
subsequent suit was due to “bilateral plantar fasciitis,” an injury to his lower extremity;

therefore, the court concluded that the first release specifically contemplated the second suit.

Id.

¶18.   Courts have also looked to Wicker to conclude that the interpretation of releases is

fact-intensive and to support denial of summary judgment. Wicker, 142 F.3d at 701. The

Supreme Court of Virginia recently addressed the application of Wicker’s known-risk test

to a settlement and release. Cole v. Norfolk S. Ry. Co., 803 S.E.2d 346, 352 (Va. 2017).

Similar to Acuff, the analysis was fact-intensive, and the trial judge sat as the finder of fact.

Id. at 353.

¶19.   Further, in Sinclair v. Burlington Northern and Santa Fe Railway Co., 200 P.3d 46

(Mont. 2008), the Supreme Court of Montana applied Wicker and denied summary judgment.

The Sinclair Court considered the lack of specificity within the release, stating that “the

release does not even specifically mention exposure to manganese poisoning at all.” Id. at

60. The court then denied summary judgment, concluding that “the language of the release

in this case is not sufficient to show an absence of a genuine issue of material fact . . . .” Id.

¶20.   The Court now turns to the specific language of this release which it states,

       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 . . . .



                                               10
(Emphasis added.) Turning to our summary-judgment standard, the question is whether “the

pleadings, depositions, answers to interrogatories and admissions on file, together with the

affidavits, . . . show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). Here, the parties

disagree on whether Peirce’s testimony creates a genuine issue of material fact.

¶21.   The first question is whether the language is boilerplate. Although the release does

not address the development of anaplastic oligodemdroglioma, it does clearly provide for the

release of cancer. No dispute exists that anaplastic oligodemdroglioma is a type of cancer.

Like in Blackwell, although the exact name of the illness was not listed on the release, the

illness provided is still sufficiently specific. See Blackwell, 102 A.3d at 873; see also

Wicker, 142 F.3d at 701 (upholding releases that provide “specific risks the employees faced

during the course of their employment”). Peirce did not testify regarding whether the

release’s language was boilerplate. While the dissent maintains that Seward’s release is not

distinguishable from the releases in Wicker as far as an inclusive list of chemical exposures

and diseases are concerned, Seward’s release is more specific and limited than the Wicker

releases. Diss. ¶30. The releases in Wicker released the railroad from injuries “known or

unknown” and, in Wicker’s release, “foreseen or unforeseen.” Wicker, 142 F.3d at 693–94.

Also, if they included any list of exposures at all, the exposures in the releases were phrased

in generic, broad terms. Id. In contrast, Seward released Illinois Central from known and

specific injuries and conditions as well as those “which may further develop in the future as

a result of what now exists, arising from or as a result of the alleged exposures,” which had



                                               11
been listed in the release in specific detail. Therefore, the Court holds that the release was

sufficiently specific and that it was not boilerplate.

¶22.   The second question is whether the risk of developing cancer was known and

contemplated by Seward at the time he signed the release. While Seward may not

specifically have known he would develop anaplastic oligodemdroglioma, as stated above,

cancer was clearly and specifically listed on the release. Further, Ward’s complaint provides

that Seward was exposed to diesel exhaust and additional chemicals and alleges that they

“caused, in whole or in part,” Seward’s brain cancer. The release lists exposure to diesel

fumes and provides a list of additional chemicals. Also, Seward checked exposure to diesel

exhaust and chemicals on the pulmonary questionnaire. The release and the pulmonary

questionnaire illustrate that Seward was on notice of the risk of suffering from cancer due

to the listed exposures, unlike in Sinclair, in which the release did not specifically mention

exposure to manganese poisoning. Sinclair, 200 P.3d at 60. Finally, Seward signed the

release after his employment with Illinois Central had ended. Therefore, this suit cannot be

due to an exposure to chemical or diesel fumes to which Seward had not already been

exposed in 2005.

¶23.   Peirce’s after-the-fact testimony fails to change the specific language of the release

and fails to affect the additional information and intent evidence illustrated by the pulmonary

questionnaire. Thus, we hold that Peirce’s testimony fails to create a genuine issue of

material fact. Seward was on notice of the risk of cancer, including brain cancer, at the time

he signed the release.



                                              12
                                        CONCLUSION

¶24.   Accordingly, the judgment of the trial court is affirmed. Summary judgment was

properly granted to Illinois Central.

¶25.   AFFIRMED.

    COLEMAN, MAXWELL, BEAM, ISHEE AND GRIFFIS, JJ., CONCUR.
KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
KING, P.J. RANDOLPH, C.J., NOT PARTICIPATING.

       KITCHENS, PRESIDING JUSTICE, DISSENTING:

¶26.   Were this case governed by general contract law, I might agree with the majority’s

position that no genuine issues of material fact exist on whether Larry Seward waived his

right to recover from Illinois Central Railroad for the brain cancer that ultimately killed him.

But this case arose under the Federal Employers’ Liability Act (FELA), which was intended

“to provide liberal recovery for injured workers.” Kernan v. Am. Dredging Co., 355 U.S.

426, 432, 78 S. Ct. 394, 2 L. Ed. 2d 382 (1958) (citing Rogers v. Mo. Pac. R.R. Co., 352

U.S. 500, 508-10, 77 S. Ct. 443, 1 L. Ed. 2d 493 (1957)). Section 5 of FELA provides, in

part, that “[a]ny 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 (2012). Although this Court has

adopted the analysis of Wicker v. Consolidated Rail Corp., 142 F.3d 690, 701 (3d Cir. 1998),

that under section 5 an employee may release known risks, claims relating to unknown risks

may not be released. Wicker emphasized that the inquiry into the employee’s intent is fact

intensive and that the written release does not control. Id. Here, the attorney who represented

Seward in negotiating the release averred that his understanding had been that the release

                                              13
covered Seward’s lung injury claims, not future brain cancer. I find that this evidence, along

with the language of the release and pulmonary questionnaire, created genuine issues of

material fact on the question of whether Seward intended to release his claim for brain

cancer. Therefore, I would reverse the grant of summary judgment and would remand the

case for further proceedings.

¶27.   In 2005 Seward entered into settlement, and, in the same year, he executed the release

which provided, in part, that

                 WHEREAS, the Undersigned alleges that one or more of the Releasees
       were negligent and/or violated the Federal Employer’s Liability Act, the same
       being the subject of Bobby McElhenney, et al. v. Illinois Central Railroad .
       . . in allowing an allegedly unsafe work condition to exist that the Undersigned
       alleges 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, mites, gases, and vapors from any material, chemical,
       toxin or other agent. The Undersigned asserts that any 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 releases employ, which are expressly released herein.

In conjunction with the settlement and release, Seward filled out a document titled

“Pulmonary Questionnaire.” Seward indicated on the Pulmonary Questionnaire that he had

been exposed to asbestos, diesel exhaust, silica, solvents, degreasers, coal, chemicals, and

weed spray for several hours per day, six days per week, for forty-one years. He listed his

                                             14
known medical diagnoses as asbestosis, bronchitis, and pneumonia, all of which are

respiratory diseases. In 2007, Seward was diagnosed with anaplastic oligodendroglioma, a

rare form of primary brain cancer. He died in 2008, and his representative, Andrew Ward,

brought this action.

¶28.   Attorney Robert N. Peirce, Jr., had represented Seward in the settlement negotiations.

In an affidavit taken for this case, Peirce said that he had represented Seward “for damage

to his lungs due to asbestos exposure” in a lawsuit filed in Holmes County, Mississippi, on

December 19, 2002. Peirce said that he and Seward had been unaware that Seward had been

exposed to “chemicals which ultimately would cause him to contract primary brain cancer,

specifically anaplastic oligodendroglioma.” Further, Peirce averred, he had not negotiated

with Illinois Central to recover damages for injuries other than the lung injury but would

have demanded additional compensation had he known Seward would develop brain cancer.

Peirce said that neither he nor any other attorney had discussed with Seward the risk that he

could develop primary brain cancer in the future.

¶29.   In Illinois Central Railroad Co. v. Acuff, 950 So. 2d 947 (Miss. 2006), this Court

adopted Wicker’s “approach allowing the release of future claims based on specific risks

known to the parties to be appropriate.” Id. at 960. “[T]he key inquiry is whether or not the

risk of developing [the claimed injury] was known and contemplated . . . at the time [the

employee] signed [the] release.” Id. In Acuff, we recognized that “[u]nder general contract

law, parties are usually free to contract away their rights, . . . [h]owever, releases

extinguishing an employee’s claims for injuries under FELA are held to a higher standard

. . . .” Id. Therefore, the language of the release is not conclusive. Wicker, 142 F.3d at 701.

                                              15
“Where a specific known risk or malady is not mentioned in the release, it would seem

difficult for the employer to show it was known to the employee and that he or she intended

to release liability for it.” Id. A release that includes a “laundry list of diseases” may be

attacked as boilerplate and not reflective of the employee’s intent. Id. Testimony by the

plaintiff and affidavits of attorneys who represented the parties at the time of a settlement and

release are considered relevant evidence of intent. Acuff, 950 So. 2d at 961 (citing Wicker,

142 F.3d at 695). Overall, the determination of whether a plaintiff’s claim is barred by a prior

release is “a fact-intensive process.” Acuff, 950 So. 2d at 961 (quoting Wicker, 142 F.3d at

701).

¶30.    The majority acknowledges this standard, then concludes that, even after considering

the evidence in the light most favorable to the plaintiff, no genuine issues of material fact

exist about Seward’s intent to waive his claim for brain cancer. I would find that a proper

application of the standard yields a different conclusion: that genuine issues of material fact

most certainly are present in this case. The majority finds no genuine issues of material fact

on whether the release was boilerplate, because Peirce did not testify that it was boilerplate,

and because the release is somewhat more specific than the releases in Wicker. With respect

to the majority, the absence of testimony from Peirce is irrelevant because the release itself

provides sufficient evidence to enable a reasonable fact finder to conclude the release was

boilerplate.5 The release contains a laundry list of chemical exposures and diseases typical

of boilerplate contractual language. In that respect, it is similar to the releases found to be


        5
        Boilerplate refers to a standard form contract containing generic language. Wallace
v. United Miss. Bank, 726 So. 2d 578, 587 (Miss. 1998).

                                               16
boilerplate in Wicker. Wicker, 142 F.3d at 693-94, 701-02. Yet the majority usurps the fact

finder role on this issue and deems the release not boilerplate as a matter of law.

¶31.   The majority then finds no genuine issue of material fact that Seward contemplated

his risk of brain cancer when he executed the release, ascribing great importance to the fact

that the release listed “cancer” as one of the released conditions. The majority then reasons,

“[w]hile Seward may not specifically have known he would develop anaplastic

oligodendroglioma, . . . cancer was clearly and specifically listed on the release.” Maj. Op.

¶ 22. But the release lists “cancer” as an existing condition, not as a future condition for

which Seward specifically waived liability should he develop it some time after signing the

release. The release says that “any such exposure caused . . . cancer, and any and all other

conditions, diseases or injuries existing prior to the date of this Release Agreement which

are known to[Seward] and which may further develop in the future as a result of what now

exists . . . .” (Emphasis added.) Thus, an accurate reading of the release shows that it listed

“cancer” as an existing condition; future conditions effectively were unlimited and included

anything “which may further develop in the future as a result of what now exists.” There is

no dispute that Seward was not diagnosed with brain cancer until after he had signed the

release; thus, the brain cancer could have been released only if listed in the category of

future claims. This release, most assuredly, did not do that; it did not specifically list cancer,

let alone brain cancer, as a potential future claim.

¶32.   Even assuming that Seward should have been expected to foresee from his waiver of

an existing cancer claim that he also was waiving a future cancer claim, the term “cancer”

is extremely broad, encompassing a multitude of things from melanoma, a skin condition, to

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lung cancer, to Seward’s primary brain cancer. Wicker held that a release, to be effective,

must recite the “specific known risk or malady.” Wicker, 142 F.3d at 701 (emphasis added).

A reasonable fact finder could conclude that the release signed by Seward lacked the

requisite specificity to attribute to him an intent to waive a future claim that the chemicals

to which he was exposed at Illinois Central gave him brain cancer. This is especially true

considering Peirce’s averment that he thought the release was limited to Seward’s lung

injury, that he did not discuss the risk of brain cancer with Seward before Seward signed the

release, and that he was unaware that Seward had been exposed to chemicals that carried a

risk of brain cancer. The majority finds that, because the release and pulmonary questionnaire

listed some of the same chemicals that Ward now alleges caused Seward’s brain cancer, no

genuine issues of material fact exist that Seward was on notice of the risk of developing brain

cancer from those exposures. But because nothing shows that Seward knew that exposure to

any of those chemicals carried a risk of brain cancer, I reject that analysis and would allow

the fact finder to make the determination of what Seward knew when he signed the release.

¶33.   The majority relies on two cases that found summary judgment was warranted based

on the employee’s waiver of a known risk. In Jaqua v. Canadian National Railroad, Inc.,

734 N.W. 2d 228 (Mich. Ct. App. 2007), much more evidence was presented than was

addressed here that the employee knew of the specific risk before signing the release. The

employee had signed a release similar to the release in this case; he released all claims for

existing cancer and for diseases that “may further develop in the future as a result of what

now exists.” Id. at 230. The Court of Appeals of Michigan adopted Wicker’s known-risk

approach and found that summary judgment was appropriate on a lung cancer claim brought

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by the employee’s estate. Id. at 555-56. Critically, it was undisputed that, before the

employee had signed the release, his physician had informed him that he was at risk of

developing lung cancer. Id. at 542. No such information was given to Seward in advance of

his signing the release.

¶34.   And in Blackwell v. CSX Transportation, Inc., 102 A.3d 864 (Md. Ct. Spec. App.

2014), the release itself was much more specific than the release at issue here. The release

provided that Blackwell “release[d] and forever discharge[d]” the employer from liability

from a claim that he had been exposed to “repetitive stress and cumulative trauma [that]

allegedly caused [him] to suffer knee injuries and other injuries, disorders, or diseases of the

lower extremities.” Id. at 866 (third and fourth alterations in original). And the release

provided that a substantial portion of the consideration paid to Blackwell had been to

compensate him for “the possibility of . . . the development of any new or additional

repetitive stress or cumulative trauma injury either presently existing or that may arise in the

future to the lower extremities or other body parts.” Id. Blackwell had consulted with counsel

before signing the release. Id. Thus, when Blackwell developed bilateral plantar fasciitis, a

foot condition that he claimed had been caused by repetitive trauma on the job, the court

found that the injury specifically was covered by the language of the release. Id. at 873.

Unlike in this case, the release in Blackwell was quite specific and was tailored to cover the

exact kind of injury that Blackwell later claimed had arisen from his job duties, namely, a

repetitive stress injury to the lower extremities.

¶35.   I find that genuine issues of material fact exist on whether the release signed by Larry

Seward was boilerplate and whether at the time Seward signed the release he knew and

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contemplated the risk that his chemical exposures would culminate in brain cancer.

Therefore, I would reverse the judgment of the Circuit Court of DeSoto County and would

remand the case for trial.

       KING, P.J., JOINS THIS OPINION.




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