                                      2019 IL 124454



                                        IN THE
                               SUPREME COURT
                                            OF
                         THE STATE OF ILLINOIS




                                   (Docket No. 124454)

     MELVIN AMMONS et al., Appellees, v. CANADIAN NATIONAL RAILWAY
             COMPANY et al. (Wisconsin Central, Ltd., Appellant).


         Opinion filed December 19, 2019.—Rehearing denied January 27, 2020.



        JUSTICE GARMAN delivered the judgment of the court, with opinion.

        Chief Justice Burke and Justices Thomas, Karmeier, and Theis concurred in the
     judgment and opinion.

        Justice Kilbride dissented, with opinion, joined by Justice Neville.

         Justice Kilbride dissented upon denial of rehearing, with opinion, joined by
     Justice Neville.

                                        OPINION

¶1       The Federal Employers’ Liability Act (FELA) (45 U.S.C. § 51 et seq. (2012))
     provides the exclusive remedy for railroad employees to recover damages for
     injuries suffered due to their employer’s negligence. This appeal asks whether
     counterclaims filed by a railroad employer against its allegedly negligent
     employees are prohibited by sections 55 and 60 of the FELA. We hold that they are
     not prohibited. We reverse the appellate court’s decision and remand to the circuit
     court for further proceedings.


¶2                                     BACKGROUND

¶3       Plaintiffs Melvin Ammons and Darrin Riley filed separate lawsuits under the
     FELA against defendant Wisconsin Central, Ltd. (Wisconsin Central), for injuries
     they sustained during their employment with the railroad in December 2014.
     Ammons was employed as a conductor, and Riley was the locomotive engineer
     when the train they were operating struck another train that was stationary on the
     same track. In their lawsuits, both plaintiffs alleged Wisconsin Central was
     negligent in violating various rules and regulations, which resulted in their injuries.
     As the lawsuits concerned the same incident and contained similar issues, the Cook
     County circuit court consolidated the cases.

¶4       Wisconsin Central denied liability and filed counterclaims against both
     plaintiffs. In the counterclaims, Wisconsin Central alleged that plaintiffs failed to
     exercise ordinary care and acted in an otherwise careless and negligent manner. As
     a result of its employees’ negligence, Wisconsin Central claimed multiple
     locomotives, railroad cars, railroad track, and railroad track structures sustained
     significant damage, which caused it to spend significant amounts of money to
     repair, perform environmental cleanup and remediation, and incur other incidental
     and consequential damages. Wisconsin Central sought damages in excess of $1
     million.

¶5       Plaintiffs filed a motion to dismiss the counterclaims pursuant to section 2-615
     of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2016)), arguing
     Wisconsin Central’s counterclaims violated sections 55 and 60 of the FELA.
     Section 55 of the FELA prohibits “[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 liability.” 45 U.S.C. § 55 (2012). Section 60 of the FELA
     prohibits “[a]ny contract, rule, regulation, or device whatsoever, the purpose, intent,
     or effect of which shall be to prevent employees of any common carrier from




                                              -2-
     furnishing voluntarily information to a person in interest as to the facts incident to
     the injury or death of any employee.” Id. § 60.

¶6       Plaintiffs argued that Wisconsin Central’s counterclaims constituted a “device”
     designed to exempt itself from liability to pay damages to injured employees, to
     deter railroad employees from providing information regarding injury or death of
     an employee, or both. As the counterclaims had the potential to negate any
     compensation plaintiffs received for their injuries, plaintiffs argued allowing the
     counterclaims would have a chilling effect on the filing of injury claims under the
     FELA.

¶7      The circuit court granted plaintiffs’ motion to dismiss, finding a state common-
     law counterclaim brought by a common carrier employer against an employee
     constituted a “device” under the FELA because a successful counterclaim could
     reduce or effectively eliminate a damages award to the employee.

¶8       The appellate court affirmed the circuit court’s dismissal. 2018 IL App (1st)
     172648. Noting several federal cases have found counterclaims for property
     damage do not fall within the meaning of “device” under section 55 of the FELA,
     the appellate court found a lack of a clear consensus and stated cases to the contrary
     conclude “the counterclaims are retaliatory devices calculated to intimidate and
     exert economic pressure on injured employees, curtail their rights when asserting
     injury claims and supplying information, and ultimately, exempt the railways from
     liability under the FELA.” Id. ¶ 19. The appellate court concluded that prohibiting
     counterclaims by railroads against their employees is the correct interpretation of
     sections 55 and 60 of the FELA “and is the interpretation most consistent with the
     FELA’s overarching goal of providing a remedy to employees injured while
     participating in this dangerous occupation.” Id. ¶ 21.

¶9       Justice Pierce dissented, believing “a railroad’s counterclaim for property
     damages is not a ‘device’ used to ‘exempt’ a railroad from ‘liability’ under the
     FELA.” Id. ¶ 35 (Pierce, J., dissenting). The dissent expressed concern that the
     majority’s decision “would produce the absurd result that an uninjured employee
     that negligently causes property damage would be liable for damages but an injured
     employee that negligently causes damages would be immune from a property
     damage claim.” Id. ¶ 40.




                                             -3-
¶ 10       Wisconsin Central petitioned this court for leave to appeal, and we allowed that
       petition. Ill. S. Ct. R. 315 (eff. July 1, 2018). The Illinois Trial Lawyers Association
       and the Academy of Rail Labor Attorneys sought, and we granted, leave to file
       amicus briefs. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).


¶ 11                                        ANALYSIS

¶ 12                                   I. Standard of Review

¶ 13       The appellate court affirmed the circuit court’s order dismissing Wisconsin
       Central’s counterclaims pursuant to plaintiffs’ motion under section 2-615 of the
       Code. Although the motion to dismiss would have been more appropriately filed
       under section 2-619 of the Code (735 ILCS 5/2-619 (West 2016)) because
       plaintiffs’ motion sought to raise an affirmative matter seeking to avoid the legal
       effect of or defeat the claim, our review of a dismissal under either section is
       de novo. Patrick Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31.


¶ 14                     II. Whether Wisconsin Central’s Counterclaims
                                Against Plaintiffs Are Prohibited

¶ 15                                       A. The FELA

¶ 16      The FELA provides, in relevant part, that

          “[e]very common carrier by railroad while engaging in commerce *** shall be
          liable in damages to any person suffering injury while he is employed by such
          carrier in such commerce *** for such injury or death resulting in whole or in
          part from the negligence of any of the officers, agents, or employees of such
          carrier.” 45 U.S.C. § 51 (2012).

       Congress enacted the FELA in 1908 in response to the rising toll of serious injuries
       and death to railroad workers. Norfolk Southern Ry. Co. v. Sorrell, 549 U.S. 158,
       165 (2007). To further the humanitarian purposes of the FELA, Congress
       eliminated several of the common-law defenses that had previously barred railroad
       workers from prevailing on their injury claims. Consolidated R. Corp. v. Gottshall,
       512 U.S. 532, 542 (1994). For example, Congress “abolished the fellow servant




                                                -4-
       rule, rejected the doctrine of contributory negligence in favor of that of comparative
       negligence, and prohibited employers from exempting themselves from FELA
       through contract; a 1939 amendment abolished the assumption of risk defense.” Id.
       at 542-43.



¶ 17                    B. Federal Court Interpretation of Federal Statutes

¶ 18       This case necessarily requires us to interpret the language of sections 55 and 60
       of the FELA and consider the decisions of federal courts analyzing these sections.

           “When interpreting federal statutes, we look to the decision of the United States
           Supreme Court and federal circuit and district courts. [Citation.] United States
           Supreme Court interpretation of federal law is clearly binding on this court.
           However, in the absence of a United States Supreme Court decision, the weight
           this court gives to federal circuit and district court interpretations of federal law
           depends on factors such as uniformity of law and the soundness of the
           decisions.” State Bank of Cherry v. CGB Enterprises, Inc., 2013 IL 113836,
           ¶ 33.

       Therefore, “if the lower federal courts are uniform on their interpretation of a
       federal statute, this court, in the interest of preserving unity, will give considerable
       weight to those courts’ interpretations of federal law and find them to be highly
       persuasive.” (Emphasis in original.) Id. ¶ 35. If, however, the federal courts are
       split, we may elect to follow those decisions we believe are better reasoned. Id.

¶ 19       Having determined the standard for assigning weight to federal court decisions
       interpreting federal law, we now apply that standard in our interpretation of the
       language found in sections 55 and 60 of the FELA. As the United States Supreme
       Court has not addressed this issue, we turn to the lower federal courts to guide our
       interpretation of the statute.

¶ 20      In arguing that sections 55 and 60 of the FELA do not bar counterclaims
       brought by railroads asserting their common-law right to recover property damages
       against FELA plaintiffs, Wisconsin Central relies on Cavanaugh v. Western
       Maryland Ry. Co., 729 F.2d 289 (4th Cir. 1984), Sprague v. Boston & Maine Corp.,




                                                 -5-
       769 F.2d 26 (1st Cir. 1985), Nordgren v. Burlington Northern R.R. Co., 101 F.3d
       1246 (8th Cir. 1996), and Withhart v. Otto Candies, L.L.C., 431 F.3d 840 (5th Cir.
       2005). In arguing that the counterclaims by Wisconsin Central are prohibited
       because they would defeat the broad remedial purpose of the FELA, plaintiffs rely
       in large part on Deering v. National Maintenance & Repair, Inc., 627 F.3d 1039
       (7th Cir. 2010). We will look at each case in turn.

¶ 21       In Cavanaugh, 729 F.2d at 290, the plaintiff train engineer was injured when
       his train collided head-on with another train. The plaintiff filed an FELA action to
       recover for personal injuries, and the railroad defendants counterclaimed under
       state law for $1.7 million in property damages sustained by them in the same
       accident. Id. After the plaintiff moved to dismiss the counterclaim, the district court
       granted the motion, finding the counterclaim would violate sections 55 and 60 and
       be contrary to the public policy reflected in the FELA. Id.

¶ 22       On appeal, the Fourth Circuit began its analysis by recognizing the “well
       accepted common law principle that a master or employer has a right of action
       against his employee for property damages suffered by him ‘arising out of ordinary
       acts of negligence committed within the scope of [his] employment’ by the
       offending employee.” Id. (quoting Stack v. Chicago, Milwaukee, St. Paul & Pacific
       R.R. Co., 615 P.2d 457, 459 (Wash. 1980) (en banc)).

¶ 23       The plaintiff argued that the defendants’ counterclaim constituted a “device” in
       violation of section 55 and to allow it would deprive the plaintiff of his right to
       recovery under the FELA and chill justifiable claims. Id. at 292. The Fourth Circuit
       found the argument unpersuasive. Id.

¶ 24       In looking at section 55, the court of appeals stated that neither the express
       language of the statute nor the legislative history suggested the word “device” was
       meant to include a railroad’s counterclaim to recover losses in connection with the
       accident in which the employee was injured. Id. The court found the critical word
       in the definition of “device” was “exemption,” as it was only when the contract or
       device qualified as an exemption from liability that it became void under section
       55. Id. As a counterclaim was not an exemption of liability, it was not a device
       within the meaning of the statute. Id.




                                                -6-
¶ 25        The court of appeals also considered the plaintiff’s argument that sections 55
       and 60 evince a legislative purpose to prohibit counterclaims by the defendant
       railroads in FELA actions “because the filing of such counterclaims will unfairly
       coerce or intimidate the injured employee from filing and pursuing his FELA
       action.” Id. at 293. The court disagreed, finding nothing in the legislative history to
       support the plaintiff’s reasoning, and noted “[t]he same argument could be
       advanced against the admissibility of a counterclaim in any tort action.” Id. at 294.

¶ 26       The dissenting judge contended that the majority construed sections 55 and 60
       too narrowly and that allowing “the railroads’ counterclaim to proceed would
       pervert the letter and spirit of the FELA and would destroy the FELA as a viable
       remedy for injured railroad workers.” Id. at 296 (Hall, J., dissenting). The dissent
       believed the railroads’ counterclaim was a “ ‘device’ calculated to intimidate and
       exert economic pressure upon [the plaintiff], to curtail and chill his rights, and
       ultimately to exempt railroads from liability under the FELA.” Id.

¶ 27       In Sprague, 769 F.2d at 27, the plaintiff train engineer sued the railroad under
       the FELA for injuries he suffered when the locomotive he was operating collided
       with a train. The railroad filed a counterclaim for damages to the vehicles involved
       in the accident. Id.

¶ 28      On appeal, the plaintiff argued the railroad’s counterclaim should have been
       dismissed because Congress implicitly rescinded an employer’s right to sue its
       employees for property damage. Id. at 28. The First Circuit found the reasoning in
       Cavanaugh persuasive and agreed with its analysis. Id. at 29.

¶ 29       In Nordgren, 101 F.3d at 1247, the plaintiff train conductor filed an FELA suit
       seeking damages for personal injuries allegedly caused by the railroad’s
       negligence. The railroad sought to file a counterclaim to recover property damage
       sustained in the train collision but was denied the opportunity to do so. Id.

¶ 30        On appeal, the Eighth Circuit considered whether the FELA precluded a
       railroad from counterclaiming for property damages. Id. at 1248. The court noted
       the United States Supreme Court “has recognized FELA as a broad remedial statute
       and has construed FELA liberally in order to accomplish Congress’s goals.” Id. at
       1249. The plaintiff argued the word “device” in section 55 encompassed a state-
       law based counterclaim for property damages, which precluded the railroad’s




                                                -7-
       counterclaim. Id. at 1250. After acknowledging the rulings in Sprague and
       Cavanaugh, the Eighth Circuit found the phrase “any device whatsoever” was
       informed by its preceding terms of “contract,” “rule,” and “regulation.” Id. at 1250-
       51. The court stated the latter terms related to “legal instruments” that railroads had
       used prior to the enactment of the FELA to exempt themselves from liability and
       “ ‘any device whatsoever’ refers only to any other creative agreements or
       arrangements the railroad might come up with to exempt itself from liability.” Id.
       at 1251. Moreover, finding that “only when something exempts the railroad from
       FELA liability can it be a device,” the court concluded a counterclaim does not
       constitute a “device” under section 55 because it does not exempt the railroad from
       FELA liability. Id. While the court acknowledged the plaintiff’s concerns about
       counterclaims frustrating the purpose of the FELA, it stated “Congress’s silence on
       this issue speaks volumes.” Id. at 1253.

¶ 31       The dissenting judge believed the railroad’s counterclaims were “devices”
       under sections 55 and 60 of the FELA. Id. (McMillian, J., dissenting). Relying on
       a 1985 law review article, the dissenting judge concluded the counterclaims would
       frustrate the remedial purpose of the FELA and could inhibit coworkers of the
       injured employee from volunteering information pertinent to an FELA action. Id.
       at 1255-58 (citing William P. Murphy, Sidetracking the FELA: The Railroads’
       Property Damage Claims, 69 Minn. L. Rev. 349 (1985)).

¶ 32       In Withhart, 431 F.3d at 841, the plaintiff was an employee on a maritime vessel
       and was injured at sea as a result of a collision. The plaintiff filed a complaint under
       the Jones Act (46 U.S.C. app. § 688 (2000)), and the shipowner filed a negligence
       counterclaim against him for property damage. Withhart, 431 F.3d at 841. The
       district court dismissed the counterclaim. Id.

¶ 33       The Fourth Circuit noted that Congress created a negligence cause of action for
       ship personnel against the employers when it passed the Jones Act and it extended
       to seamen “the same rights granted to railway employees by FELA.” Id. at 843.
       Thus, the court found interpretations of the FELA were instructive in Jones Act
       cases. Id.

¶ 34       The plaintiff argued Congress implicitly rescinded an employer’s common-law
       right to sue its employees under the FELA and the Jones Act. Id. However, the Fifth
       Circuit disagreed, finding the rulings in Cavanaugh, Sprague, and Nordgren to be



                                                -8-
       persuasive. Id. Thus, the court held “no statutory provision in the FELA, and
       consequently, in the Jones Act, prohibits a shipowner-employer from pursuing a
       claim against its negligent seaman-employee for property damage.” Id. at 845.

¶ 35       In contrast to the rulings in the previous four cases, plaintiffs rely on the Seventh
       Circuit’s decision in Deering. There, the plaintiff riverboat pilot sued the defendant
       employer under the Jones Act for injuries he sustained in an accident on the
       Mississippi River. Deering, 627 F.3d at 1040. The defendant filed a counterclaim
       for damages the plaintiff allegedly caused to the boat, but the district court
       dismissed it as in the nature of a setoff and prohibited by the Jones Act. Id.

¶ 36       The court of appeals in that case noted “a suit or counterclaim by a shipowner
       against a seaman is a setoff against the seaman’s personal injury claim; the question
       is whether such a setoff is permissible.” Id. at 1043. In looking at the language of
       section 55 of the FELA, the court found the defendant’s counterclaim for setoff
       constituted a “device” and thus was prohibited. Id. However, the court
       acknowledged that the issue presented in this case was not before it and, not
       wanting to create a conflict with the Fifth Circuit in Withhart, stated it would “leave
       for a future day” whether property damage claims by an employer should be
       permitted in an employee’s personal injury case under the FELA. Id. at 1048.

¶ 37       After considering the opinions of the five federal courts of appeal, we find better
       reasoned those four that found counterclaims are not prohibited under sections 55
       and 60 of the FELA. First, nothing in the FELA suggests it was intended to abrogate
       an employer’s common-law right to assert claims against its workers who
       negligently caused damage to company property. Nordgren, 101 F.3d at 1252-53;
       Cavanaugh, 729 F.2d at 290-91.

¶ 38       Second, the plain language of section 55 of the FELA does not evince an intent
       by Congress to prohibit an employer’s counterclaims. Section 55 provides “[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). The parties agree the
       Seventh Circuit’s statements on section 55 amount to judicial dictum, which is “an
       expression of opinion upon a point in a case argued by counsel and deliberately
       passed upon by the court, though not essential to the disposition of the cause.” Cates
       v. Cates, 156 Ill. 2d 76, 80 (1993). “[A] judicial dictum is entitled to much weight,



                                                 -9-
       and should be followed unless found to be erroneous.” Id. We find the Seventh
       Circuit’s reasoning unpersuasive.

¶ 39       The Seventh Circuit found “device” similar to the word “contract” and stated a
       counterclaim had the same effect as a provision in an employment contract where
       the employee waives the employer’s liability. Deering, 627 F.3d at 1044. However,
       a counterclaim does not equate to a contract, rule, or regulation. A counterclaim
       does not create rights between the parties but is an independent cause of action
       seeking to assert rights against another. See Wilson v. Tromly, 404 Ill. 307, 309-10
       (1949) (“A counterclaim is an independent cause of action.”). Unlike a contract,
       rule, or regulation that can be rendered “void,” a counterclaim, while subject to
       dismissal, would not suffer the same fate as being void.

¶ 40       The Seventh Circuit also dismissed the doctrine of ejusdem generis, which
       states that, “when a statutory clause specifically describes several classes of persons
       or things and then includes ‘other persons or things,’ the word ‘other’ is interpreted
       to mean ‘other such like.’ ” Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill.
       2d 463, 492 (2009) (quoting People v. Davis, 199 Ill. 2d 130, 138 (2002)); see also
       Bullman v. City of Chicago, 367 Ill. 217, 226 (1937) (utilizing the doctrine of
       ejusdem generis to construe the words “ ‘junk, rags,’ ” and “ ‘any second-hand
       article whatsoever’ ” to mean that the general words “any second-hand article
       whatsoever” include “only things of the same kind as those indicated by the
       preceding particular and specific words”). Here, we find the words “or device
       whatsoever” are to be interpreted like “contract,” “rule,” and “regulation,” the latter
       three referring to legal instruments that an employer could use to escape liability.
       Nordgren, 101 F.3d at 1251.

¶ 41       The words “or device whatsoever” are also defined by the phrase that follows:
       “the purpose or intent of which shall be to enable any common carrier to exempt
       itself from any liability.” 45 U.S.C. § 55 (2012). Unlike a contractual agreement or
       a release, a counterclaim does not extinguish a plaintiff’s FELA cause of action or
       exempt the railroad employer from liability. Nordgren, 101 F.3d at 1251;
       Cavanaugh, 729 F.2d at 292. Here, Wisconsin Central could still be found liable to
       plaintiffs in their FELA claims. Thus, we find the specific language of section 55
       does not encompass counterclaims filed by an employer against its allegedly
       negligent employees.




                                               - 10 -
¶ 42       We also find counterclaims are not prohibited by section 60 of the FELA, which
       voids “[a]ny contract, rule, regulation, or device whatsoever, the purpose, intent, or
       effect of which shall be to prevent employees of any common carrier from
       furnishing voluntarily information to a person in interest as to the facts incident to
       the injury or death of any employee.” 45 U.S.C. § 60 (2012). The court in Deering
       did not discuss section 60. The Fourth Circuit in Cavanaugh noted section 60 was
       intended to keep the railroad from preventing other employees from providing
       information to the injured employee in the latter’s lawsuit against the railroad.
       Cavanaugh, 729 F.2d at 293. We fail to see how a counterclaim against an allegedly
       negligent employee would prevent other employees from stepping forward to
       provide relevant information. Instead, like section 55, section 60 prohibits railroad
       employers from thwarting an employee’s ability to provide information by way of
       “contract, rule, regulation or device whatsoever,” and a counterclaim has no such
       muzzling effect on those employees.

¶ 43       Third, we note there are several cases that fall on both sides of the issue. For
       example, in 1980, the Washington Supreme Court held the railroad’s counterclaim
       violated sections 55 and 60 of the FELA because the counterclaim had the potential
       to discourage employees from filing FELA actions or providing information as to
       facts relating to an employee’s injury or death. Stack, 615 P.2d at 460-61; see also
       Blanchard v. Union Pacific R.R. Co., No. 15-0689-DRH, 2016 WL 411019, at *2
       (S.D. Ill. Feb. 2, 2016) (finding Deering instructive and dismissing the railroad’s
       counterclaim). In contrast, a federal district court recently followed the “majority
       view” in adopting the reasoning set forth in Withhart, Nordgren, Sprague, and
       Cavanaugh and concluded counterclaims are not a “device” under section 55 of the
       FELA. Norfolk Southern Ry. Co. v. Tobergte, No. 5:18-cv-207-KKC, 2018 WL
       6492606, at *3 (E.D. Ky. Dec. 10, 2018).

¶ 44        Cavanaugh was decided in 1984, and since that time, three federal courts of
       appeal have followed its reasoning, and only one, in dictum, has disagreed.
       Congress, however, has not stepped in to amend sections 55 and 60 of the FELA to
       specifically prohibit an employer’s counterclaims. Considering the arguments and
       case law on both sides of the issue throughout the years, we find such silence telling.
       See Hilton v. South Carolina Public Rys. Comm’n, 502 U.S. 197, 202 (1991)
       (stating Congress had had almost 30 years to correct the Supreme Court’s decision
       if it disagreed with it and, because it had chosen not to do so, the Court accorded




                                               - 11 -
       weight to Congress’s continued acceptance of its earlier holding). Given the
       employer’s long-standing right to sue its employees for negligence and considering
       the plain language of the statute, the federal court decisions, and Congress’s silence,
       we hold sections 55 and 60 of the FELA do not prohibit a railroad employer from
       filing a counterclaim for property damages against its employees.


¶ 45                                      CONCLUSION

¶ 46       We reverse the judgment of the appellate court that upheld the circuit court’s
       dismissal of Wisconsin Central’s counterclaims and remand to the circuit court for
       further proceedings.


¶ 47      Judgments reversed.

¶ 48      Cause remanded.


¶ 49      JUSTICE KILBRIDE, dissenting:

¶ 50       As the majority explains, the federal courts are split on their interpretation of
       the Federal Employers’ Liability Act (FELA) (45 U.S.C. § 51 et seq. (2012)) as it
       applies to the circumstances presented by this case. We must, therefore, review the
       federal decisions and follow those we consider better reasoned. Contrary to the
       majority, I believe the better reasoned decisions hold that the FELA prohibits
       counterclaims by railroads against their workers for damages to railroad property.
       The alternative interpretation adopted by the majority defeats the purpose of the
       FELA to provide a remedy for railroad workers injured as a result of the railroad’s
       negligence. Accordingly, I respectfully dissent.

¶ 51       The majority reviews the federal court of appeals decisions weighing on this
       issue. In my view, the Seventh Circuit’s opinion in Deering v. National
       Maintenance & Repair, Inc., 627 F.3d 1039, 1041 (7th Cir. 2010), is persuasive. In
       that case, a riverboat pilot suffered career-ending injuries when the towboat he was
       operating was swamped and sank in the Mississippi River. The plaintiff filed a
       claim for personal injuries under the Jones Act (46 U.S.C. § 30101 et seq. (2006)),
       the admiralty counterpart to the FELA. Deering, 627 F.3d at 1041. The employer




                                               - 12 -
       responded by filing a counterclaim for damages it alleged the plaintiff caused to the
       towboat. The district court granted the plaintiff’s motion to dismiss the employer’s
       counterclaim, holding it was in the nature of a setoff to the plaintiff’s Jones Act
       claim. Deering, 627 F.3d at 1041-42. In affirming, the Seventh Circuit observed
       that

          “shipowners, unless they are trying to reduce or eliminate their liability for
          personal injuries caused by their negligence, do not sue their employees for
          property damage except in the very rare case in which the employee is so highly
          paid as to be worth suing. In the case of seamen, even if they are riverboat pilots
          rather than just deckhands, such suits are unknown—unless, as in this case, the
          seaman is seeking damages from the employer. As a practical matter, then, a
          suit or counterclaim by a shipowner against a seaman is a setoff against the
          seaman’s personal injury claim.” Deering, 627 F.3d at 1043.

¶ 52       The Seventh Circuit observed that the FELA is incorporated by reference into
       the Jones Act and determined that setoffs are not permitted under section 55 of the
       FELA, prohibiting “ ‘[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.’ ” Deering, 627 F.3d at 1043 (quoting 45
       U.S.C. § 55 (2006)). The employer’s counterclaim for damages to the towboat was
       properly described as a device intended to enable the employer to exempt itself
       from liability because that was the only purpose of the counterclaim in those
       circumstances. Deering, 627 F.3d at 1043. The Seventh Circuit concluded that the
       phrase “any device whatsoever” should be construed broadly as a catchall given
       Congress’s intent to provide a remedy for injured employees. Deering, 627 F.3d at
       1044.

¶ 53        Similarly, in Stack v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 615
       P.2d 457, 461 (Wash. 1980) (en banc), the Washington Supreme Court held a
       railroad’s counterclaim for $1.5 million in property damage was barred by the
       FELA. The court concluded that the remedial purpose of the FELA supported a
       broad interpretation of the term “device.” Stack, 615 P.2d at 460. More recently, in
       Blanchard v. Union Pacific R.R. Co., No. 15-0689-DRH, 2016 WL 411019 (S.D.
       Ill. Feb. 2, 2016), the federal district court granted a FELA plaintiff’s motion to
       dismiss a counterclaim for property damage filed by a railroad, holding the




                                              - 13 -
       counterclaim violated the public policy reflected in the FELA. The district court
       found the counterclaim was a device calculated to intimidate and exert economic
       pressure on the plaintiff, to curtail his rights, and ultimately to exempt the railroad
       from liability under the FELA. Blanchard, 2016 WL 411019, at *3; see also Yoch
       v. Burlington Northern R.R. Co., 608 F. Supp. 597, 598 (D. Colo. 1985) (concluding
       “the more realistic and less legalistic view” is that the railroad’s $5 million property
       damage counterclaim is a “device” within the meaning of the FELA).

¶ 54       In my view, Deering, Stack, Blanchard, and Yoch are better reasoned decisions
       because they effectuate the purpose and intent of the FELA to provide a remedy for
       injured railroad workers. While the majority engages in a technical construction of
       the statutory language, we must keep in mind that “ ‘statutes always have some
       purpose or object to accomplish, whose sympathetic and imaginative discovery is
       the surest guide to their meaning.’ ” Corbett v. County of Lake, 2017 IL 121536,
       ¶ 28 (quoting Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945)). The purpose
       of the FELA is to provide compensation for injured railroad workers by imposing
       liability upon railroads for injuries resulting in whole or in part from the railroad’s
       negligence. 45 U.S.C. § 51 (2012); Kernan v. American Dredging Co., 355 U.S.
       426, 432 (1958). In Sinkler v. Missouri Pacific R.R. Co., 356 U.S. 326, 329 (1958),
       the United States Supreme Court stated that the FELA

          “was a response to the special needs of railroad workers who are daily exposed
          to the risks inherent in railroad work and are helpless to provide adequately for
          their own safety. [Citation.] The cost of human injury, an inescapable expense
          of railroading, must be borne by someone, and the FELA seeks to adjust that
          expense equitably between the worker and the carrier. [Citation].”

¶ 55        The FELA provides injured railroad workers with their exclusive remedy for
       injuries sustained as a result of their employer’s negligence (New York Central R.R.
       Co. v. Winfield, 244 U.S. 147, 151-52 (1917)), and “it is clear that the general
       congressional intent was to provide liberal recovery for injured workers” (Kernan,
       355 U.S. at 432). The statute has, therefore, been construed liberally to accomplish
       its important remedial and humanitarian purpose. Urie v. Thompson, 337 U.S. 163,
       180 (1949). Indeed, the Supreme Court has stated “[t]he coverage of the statute is
       defined in broad language, which has been construed even more broadly.” Atchison,
       Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 561-62 (1987).




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¶ 56       In my view, the analysis in Deering correctly effectuates the FELA’s important
       remedial and humanitarian purpose by construing its broad language liberally.
       Here, as in Deering, Wisconsin Central would have no incentive to sue plaintiffs
       for damage to its property if plaintiffs were not seeking damages for their personal
       injuries. A setoff for damages to the railroad’s property in these circumstances
       defeats the purpose of the FELA to provide a remedy for injured railroad workers.
       The practical effect is the same as if the railroad had exempted itself from liability
       by a contract, rule, or regulation. Wisconsin Central’s counterclaim seeks more than
       $1 million in damages to two trains and railroad tracks and reimbursement for
       environmental cleanup. It is not difficult to imagine a large award, given the
       potential cost of the damaged property. Those damages will almost certainly
       eliminate any recovery by plaintiffs for their personal injuries. The majority’s
       interpretation of the FELA allowing the railroad to exempt itself from liability
       through a setoff defeats Congress’s intent to compensate railroad workers for
       injuries caused negligently by their employer. Consistent with the FELA’s purpose,
       I believe the phrase “any device whatsoever” should be construed broadly as a
       catchall to prohibit railroads from filing counterclaims for damage to railroad
       property and thereby exempting themselves from liability for a railroad worker’s
       personal injuries.

¶ 57       In sum, I would affirm the circuit and appellate court decisions dismissing
       Wisconsin Central’s counterclaim in this case. As the appellate court held,
       prohibiting the counterclaim “is the interpretation most consistent with the FELA’s
       overarching goal of providing a remedy to employees injured while participating in
       this dangerous occupation.” 2018 IL App (1st) 172648, ¶ 21. I believe the
       majority’s technical reading of section 55 of the FELA defeats the statute’s purpose
       and undermines the congressional intent to provide a remedy for workers injured
       as a result of a railroad’s negligence. Accordingly, I respectfully dissent from the
       majority’s decision allowing Wisconsin Central to pursue its counterclaim for
       damages to railroad property.

¶ 58      JUSTICE NEVILLE joins in this dissent.




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¶ 59                  SEPARATE OPINION UPON DENIAL OF REHEARING


¶ 60      JUSTICE KILBRIDE, dissenting:

¶ 61       For the reasons I stated above, I dissent from the denial of plaintiff’s petition
       for rehearing.

¶ 62      JUSTICE NEVILLE joins in this dissent.




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