PRESENT: Lemons, C.J., Mims, McClanahan, Powell, Kelsey, McCullough, JJ., and Lacy, S.J.

ALAN BARRY COLE, AS EXECUTOR
OF THE ESTATE OF AARON JETHRO
COLE
                                                                  OPINION BY
v. Record No. 161163                                       JUSTICE WILLIAM C. MIMS
                                                                 August 31, 2017
NORFOLK SOUTHERN RAILWAY COMPANY

                 FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                              Charles N. Dorsey, Judge

       In this appeal, we consider whether a release of liability is void under the Federal

Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et seq.

                              I. Background and Procedural History

       For more than 35 years, Aaron J. Cole worked as a machinist for Norfolk Southern

Railway Company (“NSRC”). During this time, he was regularly exposed to toxic substances

and dust, including asbestos. In 1996, he filed a complaint in the circuit court alleging that he

contracted “occupational pneumoconiosis, including but not limited to asbestosis” as a result of

NSRC’s negligence. His complaint also alleged that he suffered

               from extreme nervousness, mental anxiety and fear of contracting
               mesothelioma, lung cancer and/or other cancers and/or other
               conditions caused by exposure to harmful and toxic dust and/or
               conditions including, but not limited to, cor pulmonale. In
               addition, [Cole], because of his occupational pneumoconiosis, now
               has an increased risk of contracting mesothelioma, lung cancer,
               and/or other cancers and/or other conditions.

       On May 15, 2000, the parties entered into a settlement agreement whereby Cole, who

was 78 years old and represented by counsel, signed a release of liability in exchange for

$20,000. In pertinent part, the release states that Cole

               does hereby RELEASE AND FOREVER DISCHARGE [NSRC]
               . . . from all liability for all claims or actions for pulmonary-
               respiratory occupational diseases and/or other known injuries,
               physical, mental or financial, suffered or incurred by [Cole],
               including, but not limited to: (a) medical, hospital and funeral
               expenses, (b) pain and suffering, (c) loss of income, (d) increased
               risk of cancer, (e) fear of cancer, (f) any and all forms of cancer,
               including mesothelioma[,] (g) and all costs, expenses and damages
               whatsoever, including all claims, debts, demands, actions, or
               causes of action of any kind, in law or equity, which [Cole] has or
               may have at common law or by statute or by virtue of any action
               under [FELA] . . ., in whole or in part, arising out of:

               Exposure to toxic substances, including asbestos, silica, sand, coal
               dust, work place dust and all other toxic dusts, fibers, fumes,
               vapors, or mists used by NSRC during [Cole’s] employment by
               NSRC.

       On February 16, 2009, Cole was diagnosed with lung cancer; he died on November 14,

2010. Alan B. Cole, as the executor of Cole’s estate, filed a complaint in the circuit court

alleging under FELA that Cole’s death was the direct and proximate result of NSRC’s

negligence. In a plea in bar, NSRC argued that the complaint should be dismissed because the

claim was released as part of the settlement of Cole’s 1996 asbestosis action. Cole responded

that the release was void under § 5 of FELA, which states 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 act . . . shall to that extent
               be void.

45 U.S.C. § 55.

       Upon consideration of an evidentiary stipulation submitted by the parties, the circuit

court granted NSRC’s plea in bar. It acknowledged that a federal circuit split has resulted in two

tests for evaluating the validity of releases under § 5 of FELA, but concluded that the release was

valid under either test. We granted Cole this appeal.




                                                  2
                                            II. Analysis

       “The jurisdiction of the courts of the United States under [FELA] shall be concurrent

with that of the courts of the several States.” 45 U.S.C. § 56. However, “[s]tate courts are

required to apply federal substantive law in adjudicating FELA claims.” Monessen Southwestern

Ry. Co. v. Morgan, 486 U.S. 330, 335 (1988); Dice v. Akron, Canton & Youngston R.R. Co., 342

U.S. 359, 361 (1952) (“[U]niform application throughout the country [is] essential to effectuate

[FELA’s] purposes.”). Thus, the “validity of releases under [FELA] raises a federal question to

be determined by federal law rather than state law.” Id. While we are bound by the decisions of

the United States Supreme Court construing FELA, Chesapeake & Ohio Ry. Co. v. Martin, 283

U.S. 209, 220-21 (1931), there is no similar obligation with respect to decisions of the lower

federal courts. Toghill v. Commonwealth, 289 Va. 220, 227, 768 S.E.2d 674, 677 (2015) (citing

Lockhart v. Fretwell, 506 U.S. 364, 376 (1993) (Thomas, J., concurring) (“[N]either federal

supremacy nor any other principle of federal law requires that a state court’s interpretation of

federal law give way to a (lower) federal court’s interpretation.”)).

       A. Validity of Releases Under § 5 of FELA

       FELA renders common carrier railroads liable in damages to any person suffering injury

while employed by the carrier if the injury resulted in whole or in part from the carrier’s

negligence. 45 U.S.C. § 51. When FELA was enacted in 1908, “[t]he injury rate among railroad

employees . . . was horrific – the average life expectancy of a switchman was seven years, and a

brakeman’s chance of dying from natural causes was less than one in five.” Thomas E. Baker,

Why Congress Should Repeal the Federal Employers’ Liability Act of 1908, 29 Harv. J. on

Legis. 79, 81-82 (1992). FELA therefore was designed to “shift[] part of the ‘human overhead’

of doing business from employees to their employers.” Conrail v. Gottshall, 512 U.S. 532, 542


                                                  3
(1994) (quoting Tiller v. Atlantic Coast Line R.R. Co., 318 U.S. 54, 58 (1943)). To that end,

“Congress did away with several common-law tort defenses that had effectively barred recovery

by injured workers.” Id. As cataloged in Gottshall, FELA “abolished the fellow servant rule,

rejected the doctrine of contributory negligence in favor of . . . comparative negligence,” and, in

a 1939 amendment, “abolished the assumption of risk defense.” Id. at 542-43.

       At issue in the present case, Congress also “prohibited employers from exempting

themselves from FELA through contract.” Id. at 543. As noted, § 5 of FELA provides 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 act, shall to that extent be
                 void.

45 U.S.C. § 55. This section was primarily aimed at two specific practices. First, many railroads

required employees to sign “a contract of employment which by its terms released the company

from liability for damages arising out of the negligence of other employees.” H.R. Rep. No.

1386, 60th Cong., 1st Sess. 6 (1908). Second, it was common for railroads to utilize relief

agreements, whereby the railroad would provide benefits to injured workers conditioned on a

waiver of any claims against the railroad. Philadelphia, Balt. & Wash. R.R. v. Schubert, 224

U.S. 603, 612 (1912) (“The practice of maintaining relief departments, which had been

extensively adopted, and of including in the contract of membership provision for release from

liability [by] employe[e]s who accepted benefits, was well known to Congress” when it enacted

§ 5 of FELA.).

       “Shortly after FELA’s adoption, the [United States] Supreme Court began to establish the

boundaries of § 5.” Wicker v. Conrail, 142 F.3d 690, 696 (3d Cir. 1997). In Schubert, for

example, an employee contributed a portion of his salary to a relief fund established by his

railroad employer until he was injured. 224 U.S. at 606. After accepting benefits from the relief


                                                   4
fund, he filed a FELA claim against the railroad for damages related to his injury. Id. at 607-08.

The railroad argued that his claim was barred because his acceptance of benefits from the relief

fund was conditioned upon the release of all claims against the railroad. Id. at 606-08. The

Supreme Court held that the release directly violated § 5 of FELA because its purpose was to

provide the railroad with immunity from liability. Id. at 611-12.

        The Supreme Court revisited the issue in Duncan v. Thompson, 315 U.S. 1 (1942).

There, an injured employee signed a contract whereby he accepted $600 to cover living expenses

upon the condition that he return the money before bringing any claim against the employer. Id.

at 3. He nevertheless filed a FELA claim without refunding the $600, and the employer raised

the contract as a defense. Id. The Supreme Court held that the contract was void under § 5 of

FELA because, in light of the employee’s dire financial circumstances, the contract’s “purpose

or intent” was “to exempt [the railroad] from any liability” under FELA. Id. at 7.

        However, § 5 of FELA is not without limitations. In Callen v. Pennsylvania Railroad

Company, 332 U.S. 625, 626 (1948), an employee brought a FELA action after injury to his back

in the course of his employment. After his injuries, but prior to filing suit, the employee

executed a general release freeing the railroad from liability in exchange for $250. Id. at 626-27.

While the primary issue on appeal was the accuracy of certain jury instructions, the Court also

dismissed an argument raised by the employee that the release was void under § 5 of FELA. Id.

at 627-31. The Court held that

               [i]t is obvious that a release is not a device to exempt from liability
               but is a means of compromising a claimed liability and to that
               extent recognizing its possibility. Where controversies exist as to
               whether there is liability, and if so for how much, Congress has not
               said that parties may not settle their claims without litigation.

Id. at 631.



                                                  5
       B. Circuit Split

       Application of § 5 of FELA remains unclear in many respects. The United States

Supreme Court has not clarified what constitutes a “controversy” that parties may settle without

litigation. Wicker, 142 F.3d at 698 (“Although the Supreme Court in Callen refused to void the

releases executed in compromise of an employee’s claims, the Court has not had occasion to

explain how wide a net its ruling casts.”). Courts have diverged when a release attempts to

extinguish claims for known injuries and also for known risks of future injuries that have yet to,

and may never, manifest. That is the question we address here.

       A circuit split has developed regarding the validity of such releases. In Babbitt v. Norfolk

& Western Railway Company, 104 F.3d 89 (6th Cir. 1997), the United States Court of Appeals

for the Sixth Circuit employed what has become known as the “bright-line test.” In that case,

several employees of a railroad signed a general release of claims as part of a voluntary

separation program terminating their employment. Id. at 90. They subsequently sued, alleging

that the railroad negligently exposed them to excessive noise levels causing hearing loss. Id.

The district court granted the railroad’s motion for summary judgment on the ground that the

release barred the claims. Id. at 90. On appeal, the court reasoned that

               where there exists a dispute between an employer and employee
               with respect to a FELA claim, the parties may release their specific
               claims as part of an out-of-court settlement without contravening
               the Act. However, where the release was not executed as part of a
               specific settlement of FELA claims, 45 U.S.C. § 55 precludes the
               employer from claiming the release as a bar to liability. To be
               valid, a release must reflect a bargained-for settlement of a known
               claim for a specific injury, as contrasted with an attempt to
               extinguish potential future claims the employee might have arising
               from injuries known or unknown by him.

Id. at 93 (emphases added) (internal citations omitted). The court then reversed the grant of

summary judgment and remanded the case for a determination of “whether the [r]elease was


                                                 6
executed as part of a settlement for damages sustained for the [employees’] specific [hearing

loss] injuries.” Id.

        However, this bright-line test was rejected by the United States Court of Appeals for the

Third Circuit in Wicker. 142 F.3d at 701. In Wicker, five employees sued their former employer

under FELA for injuries resulting from exposure to toxic chemicals. Id. at 692. Each employee

had previously executed a general release in the course of settling unrelated FELA claims. Id.

These releases “appeared to settle all claims for all injuries past and future.” Id. In addressing

the validity of these releases, the court acknowledged that for a release to be valid under FELA,

it must “at least have been executed as part of a negotiation settling a dispute between the

employee and the employer.” Id. at 700. It then stated that in such a negotiation,

                it is entirely conceivable that both employee and employer could
                fully comprehend future risks and potential liabilities and, for
                different reasons, want an immediate and permanent settlement
                . . . . To put it another way, the parties may want to settle
                controversies about potential liability and damages related to
                known risks even if there is no present manifestation of injury.

Id. at 700-01 (emphasis added). Accordingly, the court implemented a fact-intensive approach

that has become known as the “risk of harm” test. Under this test,

                a release does not violate [FELA] provided it is executed for valid
                consideration as part of a settlement, and the scope of the release is
                limited to those risks which are known to the parties at the time the
                release is signed. Claims relating to unknown risks do not
                constitute “controversies,” and may not be waived under § 5 of
                FELA.

Id. at 701 (citing Callen, 332 U.S. at 631). The Wicker court then provided significant guidance

for the application of its risk of harm test. It noted that determining whether a “known risk” was

released is a “fact-bound” inquiry that must examine the “parties’ intent at the time the

agreement was made.” Id. at 700. It observed that the language of a release may be “strong, but



                                                  7
not conclusive, evidence of [this] intent.” Id. at 701. Thus, “where a release merely details a

laundry list of diseases or hazards, the employee may attack that release as boilerplate, not

reflecting his or her intent.” Id.

        As both the Babbitt and Wicker courts acknowledged, for a release to survive § 5 of

FELA, Callen requires that it be executed pursuant to the settlement of an existing controversy.

Wicker, 142 F.3d at 700 (“To be valid under FELA, a release must at least have been executed as

part of a negotiation settling a dispute between the employee and the employer.”); Babbitt, 104

F.3d at 93 (“[W]here [a] release was not executed as part of a specific settlement of FELA

claims, 45 U.S.C. § 55 precludes the employer from claiming the release as a bar to liability.”).

That is, the release must relate to a specific claim, such as a railroad’s liability for injuries caused

by asbestos exposure, as opposed to a broad release exempting a railroad from liability for any

occupational illness. The opinions in Schubert and Duncan confirm that releases executed

outside of this context are void.

        However, Babbitt’s bright-line test also dictates that even if executed in this context, a

release may not “extinguish potential future claims the employee might have arising from

injuries known or unknown by him,” but rather only “the specific injur[y] in controversy.”

Babbitt, 104 F.3d at 93 (emphasis in original). Due to this broad wording, courts have

interpreted Babbitt as holding that a release must relate to a settlement for specific injuries

caused by a particular accident or exposure and that the employee must be suffering from the

injury sought to be released when the release is executed. Jaqua v. Canadian Nat’l R.R., 734

N.W.2d 228, 234 (Mich. App. 2007) (observing that Babbitt requires that the employee “must be

suffering from the precise injury raised in the later FELA action” when the release is signed);

Wicker, 142 F.3d at 700 (“A bright line rule like the one set forth in Babbitt, limit[s] the release



                                                   8
to the injuries known to the employee at the time the release is executed.”) (emphasis added);

Illinois Cent. R.R. v. Acuff, 950 So.2d 947, 960 (Miss. 2006) (“Babbitt’s rule barring the release

of future claims unfairly restricts the ability of an employer and employee to knowingly and

voluntarily settle both current and future claims, should the parties so desire.”) (emphasis added).

       In other words, under the bright-line test, a release executed as part of a negotiated

settlement for a specific injury or claim cannot release a future claim for an additional injury that

may develop from the same accident or exposure, even if the additional injury is contemplated

by the parties and explicitly contained in the release. Jaqua, 734 N.W.2d at 234. However,

nothing in Callen, Duncan, or Schubert suggests that § 5 of FELA was intended to have such a

limiting effect on the ability of parties to settle their FELA claims. Indeed, the bright-line test

               “requires an unrealistic view on how parties compromise
               claims. . . . This is particularly true with respect to claims based
               upon exposure to asbestos, where effects of the exposure may be
               latent for a considerable period of time. If a new claim were
               permitted for each and every new manifestation of the asbestos
               exposure, regardless of the extent of the parties’ awareness of such
               risks, there would be no incentive on the part of the railroad
               defendant to ever compromise such claims. This result would not
               further the public policy of encouraging settlement of claims.”

Id. at 236 (quoting Oliverio v. Consolidated Rail Corp., 822 N.Y.S.2d 699, 701-02 (2006)).

       We therefore conclude that the risk of harm test provides the better rule, permitting the

enforcement of a release not only for the specific injuries already manifested at the time of its

execution, but also for known risks of future injuries from the same accident or exposure. 1 See



       1
         In reaching this conclusion, we note that the risk of harm test has been adopted by the
majority of courts that have considered the issue. See, e.g., Sea-Land Serv., Inc. v. Sellan, 231
F.3d 848, 851 (11th Cir. 2000); Loyal v. Norfolk S. Corp., 507 S.E.2d 499, 502 (Ga. Ct. App.
1998); Acuff, 950 S.2d at 960; Jaqua, 734 N.W.2d at 235-36; Sinclair v. Burlington N. & Santa
Fe Ry., 200 P.3d 46, 59 (Mont. 2008); see also Brooke Granger, Comment: Known Injuries vs.
Known Risks: Finding the Appropriate Standard for Determining the Validity of Releases Under
the Federal Employers’ Liability Act, 52 Hous. L. Rev. 1463, 1482 (Spring 2015) (Wicker’s

                                                  9
Loyal v. Norfolk S. Corp., 507 S.E.2d 499, 502 (Ga. App. 1998) (in an industry where claims for

occupational diseases are common, “it is important to both the employer and employee to be able

to settle potential claims regarding injuries or diseases prior to actual discovery”).

       C. Application of the Risk of Harm Test

       Under the risk of harm test, a release “does not violate § 5 [of FELA] provided it is

executed for valid consideration as part of a settlement, and the scope of the release is limited to

those risks which are known to the parties at the time the release is signed. Claims relating to

unknown risks do not constitute ‘controversies,’ and may not be waived under § 5 of FELA.”

Wicker, 142 F.3d at 701. 2 The focus of this test is not on whether the language of a release

explicitly includes a known risk of future injury, but whether the employee intended to release

liability for this known risk. A release’s language may be “strong, but not conclusive, evidence

of” this intent. Id. But “where a release merely details a laundry list of diseases or hazards, the

employee may attack that release as boilerplate, not reflecting his or her intent.” Id.

       Determining the intent of the parties at the time a release is executed is necessarily “a

fact-intensive process.” Id. In the present case, this question of fact was presented to the circuit

court in the context of NSRC’s plea in bar. “A plea in bar asserts a single issue, which, if

proved, creates a bar to a plaintiff’s recovery.” Hawthorne v. VanMarter, 279 Va. 566, 577, 692

S.E.2d 226, 233 (2010). Where, as here, facts are disputed, “the ‘whole matter of law and fact’

may be decided by the court.” Id. at 578, 692 S.E.2d at 234. In such cases, “the circuit court’s


“known risk standard has proven to be more popular than the application of the Sixth Circuit’s
bright line, known injury rule.”).
        2
          It is not contested that when Cole signed the release he was represented by counsel and
engaged in “a negotiation settling” an existing controversy. Wicker, 142 F.3d at 700. These
circumstances are significantly distinguishable from the practices Congress was targeting with §
5 of FELA, such as railroads requiring employees to sign “a contract of employment which by its
terms released the company from liability for damages arising out of the negligence of other
employees.” H.R. Rep. No. 1386, 60th Cong., 1st Sess. 6 (1908).

                                                 10
factual findings are accorded the weight of a jury finding and will not be disturbed on appeal

unless they are plainly wrong or without evidentiary support.” Id. at 577, 692 S.E.2d at 233

(citing Jennings v. Kay Jennings Family Ltd. P’ship, 275 Va. 594, 600, 659 S.E.2d 283, 287

(2008)).

        In this case, the circuit court found as fact that when Cole signed the release “he had

contemplated his injuries; he knew of the possible future effects of his injuries [including the risk

of developing cancer]; and he was ready and willing to release [NSRC] from those claims.” This

finding is binding on appeal because it is not plainly wrong or without evidentiary support. First,

the release specifically purports to release NSRC from “all liability for claims or actions for

pulmonary-respiratory occupational diseases . . . including . . . increased risk of cancer, . . . fear

of cancer, . . . [and] any and all forms of cancer, including mesothelioma.” While this language

is not “conclusive,” it is nonetheless “strong . . . evidence” that Cole intended to release all future

cancer claims that might arise from his exposure to asbestos. Wicker, 142 F.3d at 701.

        Next, and most significantly, the release’s language is similar to much of the wording

contained in Cole’s 1996 asbestosis complaint. There, Cole specifically put at issue his “fear of

contracting . . . lung cancer and/or other cancers” and “increased risk of contracting

mesothelioma, lung cancer, and/or other cancers,” demonstrating that he was aware of these

risks. He then settled this claim with a release that specifically absolved NSRC from “any”

liability related to Cole’s “increased risk of cancer, . . . fear of cancer, . . . [and] any and all forms

of cancer.” Given this similar wording, it was reasonable for the circuit court to conclude that

when the parties executed the release they knew, and intended to resolve, all the issues raised in

Cole’s complaint, including any future cancer claims arising from his exposure to asbestos.




                                                   11
       Nevertheless, Cole argues that the circuit court should have determined that the release

was invalid under the risk of harm test because it contains “boilerplate.” However, the risk of

harm test does not dictate that all releases containing such commonly-used provisions are void.

Rather, the Third Circuit merely said in Wicker that such a release may be attacked by an

employee as not reflecting his intent. Cole did attack the release on this basis in the proceedings

below, but the circuit court nevertheless found that the evidence demonstrated Cole’s intent to

release any future claim for lung cancer. The fact-intensive risk of harm test is intentionally

designed to allow trial courts to resolve these sorts of factual questions. Wicker, 142 F.3d at 701

(“We recognize that [the risk of harm test] is a fact-intensive process, but trial courts are

competent to make these kinds of determinations.”). 3

       In sum, the circuit court’s factual conclusion that Cole intended to release all future

cancer claims when he executed the release, including the present lung cancer claim, is not

plainly wrong or without evidentiary support. Thus, applying the risk of harm test, the release of

this claim did not violate § 5 of FELA. 4

       D. Norfolk & Western Railway v. Ayers

       In his second assignment of error, Cole argues that the circuit court erred by failing to

hold that the release was void as a result of the United States Supreme Court’s decision in



       3
           Cole also argues that the $20,000 he received for executing the release was so “meager”
that it suggests he did not understand that he was releasing claims for potentially life-threatening
illnesses. Again, this factual argument was rejected by the circuit court, and we will not reweigh
the evidence on appeal. In any event, Cole was 78 years old when he was offered $20,000 to
waive any claim for a disease he had yet to and may never develop. Considering these
circumstances, the compensation he received was not so insignificant as to demonstrate that Cole
was not aware he was waiving future cancer claims. See Wicker, 142 F.3d at 700 (“[I]t is
entirely conceivable that both employee and employer could fully comprehend future risks and
potential liabilities and, for different reasons, want an immediate and permanent settlement.”).
         4
           Because we adopt the risk of harm test, we do not address Cole’s argument that the
circuit court erred in its application of Babbitt’s bright-line test.

                                                  12
Norfolk & Western Railway v. Ayers, 538 U.S. 135 (2003). In Ayers, the Supreme Court

indicated, in dicta, that a plaintiff who successfully recovers for an asbestosis claim “may bring a

second [FELA] action if cancer develops” despite the fact that both diseases arose from the same

asbestos exposure. Id. at 152-53 & n.12. From this comment, Cole reasons that the critical

inquiry when determining whether a controversy exists is whether the claim sought to be

released has accrued at the time the release is signed. If a claim has yet to accrue, Cole suggests

that it is not a controversy that may be released under § 5 of FELA.

       This argument mirrors the approach taken by the Court of Appeals of Ohio in Fannin v.

Norfolk & Western Railway, 666 N.E.2d 291 (Ohio Ct. App. 1995), a case upon which Cole

heavily relies. In Fannin, the court began by acknowledging, in accordance with Callen, that

“where controversies exist” parties may settle FELA claims without offending § 5 of FELA. Id.

at 295. However, the court reasoned that Callen’s holding “only applies to claims which have

already arisen at the time the release is signed.” Id. (emphasis in original). That is, a “release is

valid only . . . where it disposes of an accrued FELA claim.” Id. It therefore concluded that a

release that attempts to waive a claim prior to its accrual is an attempt by the railroad to “exempt

itself from liability” and void under § 5 of FELA. Id. at 295-96.

       Cole’s argument is not persuasive. First, in Ayers, the United States Supreme Court did

not address the release of claims under § 5 of FELA. Its primary holding was that a plaintiff

may, after successfully prosecuting an asbestosis claim, recover damages for “mental anguish . . .

resulting from the fear of developing cancer.” 538 U.S. at 295-96. In reaching this conclusion,

the Court seemed to affirm in dicta that asbestosis claimants may bring a second action if cancer

later develops from the same asbestos exposure. Id. at 152-53 & n.12. But plainly this dicta




                                                 13
does not demand the result for which Cole advocates. While an employee who has previously

recovered for asbestosis may bring a second claim if cancer later develops, this does not mean

that he cannot settle his known risk of a future cancer claim as part of his initial asbestosis action

if desired. This is especially true where, as here, the asbestosis complainant places the increased

risk of future cancer at issue in his complaint. See id. at 153 (observing that the “asbestosis

claimants [in Ayers] did not seek, and the trial court did not allow, discrete damages for their

increased risk of future cancer”) (emphasis in original).

       As the opinion in Ayers does not compel us to adopt the approach taken by the Ohio

Court of Appeals in Fannin, we reject it for the same reasons we reject the bright-line test. It

represents an overly narrow reading of Callen that requires an employee to be actually suffering

from an injury before it can be released. There is nothing to suggest that § 5 of FELA was

intended to place such a limiting effect on the ability of parties to settle known risks of future

claims without litigation. The approach taken in Fannin, like the bright-line test, requires an

unrealistic view of how parties compromise claims.

                                          III.   Conclusion

       Under the risk of harm test, which we adopt as the rule of decision in the Commonwealth,

a release does not violate § 5 of FELA if it is executed as part of a negotiated settlement of a

FELA claim and is limited to those risks that were known to the parties at the time of its

execution. The focus of this test is not whether a release explicitly lists a potential future claim,

but whether the parties intended to release such a claim. The evidence in the present case

supports the circuit court’s factual finding that Cole intended to release the present lung cancer

claim as part of the settlement of his asbestosis action. Accordingly, applying the risk of harm




                                                  14
test, the release in 2000 of the present lung cancer claim was not void under § 5 of FELA. We

therefore affirm the circuit court’s judgment.

                                                                                      Affirmed.




                                                 15
