                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 05a0300p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                         X
                                 Plaintiffs-Appellants, -
 JAMES R. LUKOWSKI and LESTER J. BLAUVELT,
                                                          -
                                                          -
                                                          -
                                                              No. 04-4141
           v.
                                                          ,
                                                           >
 CSX TRANSPORTATION, INC.; ESTATE OF JOHN D.              -
                                                          -
 and as Administrator of the Estate of John D. Reese, -
 REESE; and MAURA GOSSARD REESE, Individually

                                Defendants-Appellees. -
                                                          -
                                                         N
                          Appeal from the United States District Court
                         for the Northern District of Ohio at Cleveland.
               Nos. 03-07031; 03-07032—James G. Carr, Chief District Judge.
                                             Argued: June 7, 2005
                                      Decided and Filed: July 19, 2005
             Before: CLAY and SUTTON, Circuit Judges; O’MEARA, District Judge.*
                                              _________________
                                                    COUNSEL
ARGUED: Steven P. Garmisa, HOEY & FARINA, Chicago, Illinois, for Appellants. Richard F.
Ellenberger, ANSPACH MEEKS ELLENBERGER LLP, Toledo, Ohio, Mark J. Metusalem,
NATIONWIDE INSURANCE COMPANY, Toledo, Ohio, for Appellees. ON BRIEF: Steven P.
Garmisa, James T. Foley, HOEY & FARINA, Chicago, Illinois, for Appellants. Richard F.
Ellenberger, Garrick O. White, ANSPACH MEEKS ELLENBERGER LLP, Toledo, Ohio, Mark
J. Metusalem, NATIONWIDE INSURANCE COMPANY, Toledo, Ohio, for Appellees.
                                              _________________
                                                  OPINION
                                              _________________
         CLAY, Circuit Judge. Plaintiffs James R. Lukowski and Lester J. Blauvelt appeal from the
district court’s grant of summary judgment to Defendants CSX Transportation, Inc., the Estate of
John D. Reese, and Maura Gossard Reese as the Administrator of the Estate of John D. Reese, in
this tort action arising from a collision between a train and a passenger automobile, brought pursuant


         *
         The Honorable John Corbett O’Meara, United States District Judge for the Eastern District of Michigan, sitting
by designation.


                                                          1
No. 04-4141               Lukowski, et al. v. CSX Transportation, et al.                                       Page 2


to the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51, et seq., and Ohio common law.
For the reasons that follow, we AFFIRM the district court’s judgment.
                                             I.    BACKGROUND
        At all times relevant to this lawsuit, Plaintiffs were employees of CSX Transportation, Inc.
(“CSXT”). Around 4:00 p.m. on July 16, 2000, Lukowski was the conductor/brakeman, and
Blauvelt the engineer, on a train heading west through Allen County, Ohio. The train approached
an “unguarded” crossing at Rumbaugh Road, traveling at a speed of approximately         50 miles per
hour, with its whistle blowing and headlights and ditch lights operating properly.1 There were some
tree branches and vegetation next to or alongside the track that obstructed the train crew’s view of
the crossing until shortly before the train was about to pass across the road. Right before the train
went through the crossing, Blauvelt saw a truck between three and five feet from the tracks, but at
that point it was too late for him to stop the train. Similarly, Lukowski saw “a blotch of white” as
the train approached the crossing, but was not immediately able to tell that the blotch was a truck.
        The train and the truck collided as both attempted to go through the crossing at the same
time. During the collision, Blauvelt and Lukowski were jostled around inside the train, but neither
was thrown from his seat, and the train did not derail. As the train came to a stop, Blauvelt made
an emergency call to report the accident, and sent Lukowski outside the train to investigate. When
Lukowski walked back to the crossing, he saw the dead body of the driver of the truck, John Reese
(“Reese”). Soon afterward, having not heard anything from Lukowski, Blauvelt also went back to
the crossing, and also saw Reese’s body.
        Both Blauvelt and Lukowski claim to suffer from severe post-traumatic stress disorder as a
result of witnessing Reese’s body after the accident. It is undisputed that Lukowski was unable to
return to work for about seven months following the accident, and that when he did return, he was
assigned to a yard job because he feared another accident. Blauvelt was also unable to return to
work for several months, but he eventually came back as an emergency call center operator. In
August 2001, Blauvelt had to stop working entirely due to increasing anxiety and emotional
problems.
         Tests performed after the accident showed that Reese had a blood alcohol level of .095, and
nine empty    beer cans were found inside the cab of the truck during a post-accident inventory
search.2 Plaintiffs allege, and Defendants do not dispute, that Reese violated a number of Ohio
traffic laws in proceeding through the rail crossing without stopping and looking for a train.
Plaintiffs filed the instant lawsuit on July 15, 2002, seeking damages for their emotional injuries.
Plaintiffs alleged claims against CSXT under FELA, and Ohio common law claims against the
Estate of John D. Reese (“Reese Estate”) and    Reese’s widow, Maura Reese, both individually and
as the Administrator of the Reese Estate.3 Specifically, Plaintiffs claimed that their emotional
injuries were a direct and proximate result of Reese’s negligence, and, additionally, that Maura


         1
           An “unguarded” crossing is one in which cautionary signs, a stop line on the road, and standard crossbucks
are visible as one approaches the crossing; however, the lighted, motorized gates that are common in busy and heavily
populated areas were not installed at the Rumbaugh Road crossing.
         2
          In Ohio at the time of the accident, the legal limit for driving under the influence of alcohol was .10. Ohio
has since amended the law, and the legal limit is now .08. See Ohio Rev. Code § 4511.19 (A)(1)(d).
         3
           Jurisdiction against CSXT is premised on federal question jurisdiction under 28 U.S.C. § 1331. Plaintiffs are
citizens of Indiana, the Reese Estate and Maura Reese are citizens of Ohio, and CSXT is a Virginia corporation with its
principal place of business in Jacksonville, Florida; therefore, there is complete diversity of citizenship between the
parties, and jurisdiction against the Reese Estate and Maura Reese is premised on 28 U.S.C. § 1332.
No. 04-4141           Lukowski, et al. v. CSX Transportation, et al.                            Page 3


Reese was individually liable for the accident because she negligently entrusted her husband with
the truck when she knew or should have known that he would operate it under the influence of
alcohol. Plaintiffs claimed that CSXT was at fault for failing to properly maintain vegetation and
trees along the right-of-way, which obstructed Plaintiffs’ view of the Rumbaugh Road crossing until
it was too late for them to safely stop the train.
         This suit was initially filed in United States District Court for the Northern District of
Indiana, but venue was transferred to the Northern District of Ohio in January 2003. After the
transfer of venue, Defendants moved for summary judgment. Without addressing the merits of
Plaintiffs’ claims against the Reese Estate and Maura Reese as Administrator, the district court
found that the Estate and Mrs. Reese were entitled to summary judgment because Plaintiffs failed
to follow the estate claim notification procedures set forth in Ohio Rev. Code § 2117.06. The court
also granted summary judgment to Maura Reese on the merits of the negligent entrustment claim
against her, finding that there was no genuine issue of material fact on the question of whether Mrs.
Reese knew or should have known that her husband was intoxicated on the afternoon of the accident,
or that he had a propensity to drive while intoxicated. Finally, the court granted CSXT’s motion for
summary judgment, holding that under FELA, a plaintiff may only recover for emotional injuries
that result from a fear of physical injury to his or her own person. See Lukowski v. CSX Transp.,
Inc., 332 F. Supp. 2d 1065, 1068 (N.D. Ohio 2004). The court found that rather than making a claim
that their emotional distress was a result of their fear for personal physical injury, Plaintiffs claim
that they suffered emotional distress due to a fear for Reese’s physical safety. Id. (“Plaintiffs have
neither alleged nor shown that the emotional consequences of the accident resulted from any
apprehension of possible injuries to themselves. On the contrary, they attribute the disabling
consequences of the accident to what they saw in its aftermath, and a sense of guilt at not having
been able to see the truck and stop the train.”). According to the district court, such emotional
distress is not cognizable under FELA in light of the Supreme Court’s decision in Consolidated Rail
Corp. v. Gottshall, 512 U.S. 532 (1994). Id. at 1068-69. Plaintiffs now appeal the district court’s
grant of summary judgment to CSXT, the Reese Estate, and Maura Reese as Administrator of the
estate only.
                                        II.   DISCUSSION
        A.      Emotional Distress Claims Under FELA
         This case presents a matter of first impression in this circuit: whether a plaintiff who is
within the “zone of danger” may recover damages under FELA for emotional distress suffered not
as a result of fear for personal physical safety, but rather, as a result of witnessing a third party’s
peril. The district court answered that question in the negative, but Plaintiffs argue that because they
were in the zone of danger, they are automatically entitled to recover for any emotional injuries
resulting from CSXT’s negligence, regardless of the cause of the emotional distress. We review the
district court’s grant of summary judgment de novo. Moorer v. Baptist Mem. Hosp., 398 F.3d 469,
486 (6th Cir. 2005). Additionally, as a purely legal issue, we review the district court’s
interpretation of FELA de novo. See, e.g., Shanklin v. Norfolk S. Ry. Co., 369 F.3d 978, 985 (6th
Cir. 2004); United States v. Graham, 327 F.3d 460, 464 (6th Cir. 2003).
        The starting point for any analysis of emotional distress claims under FELA is the Supreme
Court’s decision in Gottshall. In Gottshall, the Court held that in order to recover emotional distress
damages under FELA, a plaintiff must demonstrate that he or she was within the “zone of danger”
of physical impact. Gottshall, 512 U.S. at 555-56. This is so because Congress’ purpose in adopting
FELA was “to provide compensation for the injuries and deaths caused by the physical dangers of
railroad work.” Id. at 555. Thus, “FELA was (and is) aimed at ensuring ‘the security of the person
from physical invasions or menaces.’” Id. at 555-56 (quoting Lancaster v. Norfolk & W. Ry. Co.,
773 F.2d 807, 813 (7th Cir.), cert. denied, 480 U.S. 945 (1987)). However, even though the goal
No. 04-4141           Lukowski, et al. v. CSX Transportation, et al.                           Page 4


of FELA is compensation for physical injuries, the statute “refers simply to ‘injury,’ which may
encompass both physical and emotional injury.” Id. at 556. Balancing the statute’s goal and its
broad language, the common law “zone of danger test limits recovery for emotional injury to those
plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are
placed in immediate risk of physical harm by that conduct. That is, those within the zone of danger
of physical impact can recover for fright, and those outside of it cannot.” Id. at 547-48 (quotation
and citation omitted); see Szymanski v. Columbia Transp. Co., 154 F.3d 591, 594 (6th Cir. 1998) (en
banc) (explaining that Gottshall “held that claims essentially based on infliction of emotional
distress must meet the common law ‘zone of danger’ rule, requiring that a plaintiff making such a
claim suffer a physical impact, or be in the zone of danger of suffering such an impact”). The
Gottshall Court summed up its holding as follows:
               Under this test, a worker within the zone of danger of physical impact
               will be able to recover for emotional injury caused by fear of physical
               injury to himself, whereas a worker outside the zone will not.
               Railroad employees will thus be able to recover for injuries--physical
               and emotional--caused by the negligent conduct of their employers
               that threatens them imminently with physical impact. This rule will
               further Congress’ goal in enacting [FELA] of alleviating the physical
               dangers of railroading.
Gottshall, 512 U.S. at 556 (emphasis added).
        The district court concluded that Plaintiffs were at least arguably within the zone of danger,
a conclusion that we assume to be correct. Plaintiffs were operating the train during the collision,
and they were jostled around in their seats, which caused minor physical injury. Thus, Plaintiffs
sustained a slight physical impact, and due to the nature of the accident, they were also placed in
immediate risk of physical harm. However, because Gottshall plainly uses the phrase “emotional
injury caused by physical injury to himself,” the district court concluded that recovery is limited to
emotional distress damages suffered as a result of a fear for one’s own physical safety.
        While the language of Gottshall is apparently clear in its limitation of emotional distress
damages, there is a dearth of case law discussing the issue presented here. Like this Court, no other
Circuit has addressed the question of whether emotional distress damages under FELA must be tied
to a fear for personal physical safety. On remand from the Supreme Court in Gottshall, the Third
Circuit specifically left the question open. See Gottshall v. Consol. Rail Corp., 56 F.3d 530, 535 n.7
(3d Cir. 1995) (noting that “it is not clear whether a plaintiff would be required, in a FELA action
for negligent infliction of emotional distress, to fear physical injury to himself as a prima facie
element or whether the lack of such fear would merely be considered in determining damages”);
accord Bloom v. Consol. Rail Corp., 41 F.3d 911, 915 n.4 (3d Cir. 1994). The district court in the
instant case relied on the Northern District of Indiana’s decision in Marschand v. Norfolk and
Western Railway Co., 876 F. Supp. 1528 (N.D. Ind. 1995), aff’d. 81 F.3d 714 (7th Cir. 1996), which
holds that only emotional injuries resulting from a threat of imminent physical harm to the plaintiff
are recoverable under FELA. The Marschand court reasoned that such recovery “is appropriate
because the employee’s injury is the proximate result of the Railroad’s breach of a duty owed
directly to the employee,” whereas “[e]motional damages caused by witnessing harm or peril to
another . . . are not caused by a breach of duty owned to the employee-plaintiff. Rather, they arise
as a result of the railroad’s independent and separate breach of duty owed to the injured third
person.” 876 F. Supp. at 1535-36 (citations omitted).
        In contrast to Marschand, the Kansas Supreme Court has held that a plaintiff within the zone
of danger may recover damages under FELA for emotional distress suffered as a result of witnessing
a third party’s peril, so long as the plaintiff also suffers emotional injury resulting from a fear for
No. 04-4141           Lukowski, et al. v. CSX Transportation, et al.                             Page 5


his or her own safety. See Grube v. Union Pacific R.R. Co., 886 P.2d 845, 851 (Kan. 1994) (“We
also agree that the entire damages may include emotional distress resulting from concern or fear for
the safety of another person as long as plaintiff establishes that he or she suffered imminent
apprehension of physical harm.”). Grube interpreted Gottshall to hold that the “essential elements
for recovery under the zone of danger test are that plaintiff be within the zone of danger and suffer
imminent apprehension of physical harm which causes or contributes to the emotional injury.” Id.
The Grube court ultimately denied recovery to the plaintiff because although he was within the zone
of danger, he failed to establish that his emotional injuries resulted in whole or in part from a fear
for his own physical safety. Id.
        Plaintiffs do not point to any case, nor were we able to find one, which does not hold that
fear for personal physical safety is an essential element of an emotional distress claim under FELA.
Given Gottshall’s explicit reference to “emotional injury caused by fear of physical injury to
himself,” we hold that in order to recover damages for emotional distress under FELA, the plaintiff
must demonstrate that his or her emotional injury results from a fear for his or her own physical
safety. Our holding is further supported by Gottshall’s reminder that the primary purpose of FELA
is compensation for physical injuries and deaths caused by railroad work. See Gottshall, 512 U.S.
at 556. Because it is unnecessary for us to decide, we leave open the question of whether emotional
distress damages must be solely the result of fear for personal safety, e.g., the Marschand rule, or
whether recoverable emotional distress damages may only partially be the result of fear for one’s
own safety, e.g., the Grube rule. It is unnecessary for us to answer this question because Plaintiffs
have not alleged or demonstrated that their emotional injuries were caused by anything other than
seeing Reese’s body after the accident. See Lukowski, supra, 332 F. Supp. 2d at 1068. Therefore,
Plaintiffs cannot recover emotional distress damages under FELA, and the district court properly
granted judgment in favor of CSXT.
        B.      Ohio Common Law Claims
        “A federal court sitting in diversity applies the substantive law of the state in which it sits.”
Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 566 (6th Cir. 2001) (citing Klaxon Co. v. Stentor
Elec. Mfg. Co., 313 U.S. 487, 496 (1941); Macurdy v. Sikov & Love, P.A., 894 F.2d 818, 820 (6th
Cir. 1990)). In the instant case, the parties agree that Ohio law governs Plaintiffs’ claims against
the Reese Estate and Maura Reese. The district court held that under the plain terms of Ohio Rev.
Code § 2117.06, Plaintiffs’ claims are barred because they were not presented to Mrs. Reese, as
administrator of the estate, within the time allotted in the statute. We review the district court’s
grant of summary judgment de novo. Moorer, supra, 398 F.3d at 486.
        Section 2117.06 provides, in relevant part,
                (A) All creditors having claims against an estate, including claims
                arising out of . . . tort . . . shall present their claims in one of the
                following manners:
                        (1) To the executor or administrator in a writing;
                        (2) To the executor or administrator in a writing, and
                        to the probate court by filing a copy of the writing
                        with it;
                        (3) In a writing that is sent by ordinary mail addressed
                        to the decedent and that is actually received by the
                        executor or administrator within the appropriate time
                        specified in division (B) of this section . . .
No. 04-4141           Lukowski, et al. v. CSX Transportation, et al.                             Page 6


                (B) All claims shall be presented within one year after the death of
                the decedent, whether or not the estate is released from
                administration or an executor or administrator is appointed during
                that one-year period. Every claim presented shall set forth the
                claimant’s address.
                (C) A claim that is not presented within one year after the death of
                the decedent shall be forever barred as to all parties, including, but
                not limited to, devisees, legatees and distributees. No payment shall
                be made on the claim and no action shall be maintained on the claim,
                except as otherwise provided in sections 2117.37 to 2117.42 of the
                Revised Code with reference to contingent claims . . .
Ohio Rev. Code § 2117.06 (2002) (version in effect at time of accident). Plaintiffs notified National
Insurance, the insurer of the vehicle that Reese was driving at the time of the accident, of their claim
against the estate within one year of the date of Reese’s death. It is undisputed, however, that
Plaintiffs did not serve notice on Mrs. Reese as the administrator of the estate until filing the instant
lawsuit nearly two years after Reese’s death.
        In general, presentation of notice to an insurance company is insufficient to comply with
§ 2117.06's requirement that notice be provided to the executor or administrator of the estate. See,
e.g., Beacon Mut. Indem. Co. v. Stalder, 120 N.E.2d 743, 747 (Ohio Ct. App. 1954) (“The statute
places the burden upon the claimant to present his claim. . . . If he fails to do so within the time
provided, his rights are lost. There is no duty imposed upon the administrator in this respect, except
to receive the written claim, and, in proper time, to officially act upon it. This duty cannot be
delegated to another.”) (emphasis in original). The Ohio Supreme Court has held that where a
plaintiff does not seek to recover from the assets of the estate, but only seeks recovery from the
proceeds of a liability insurance policy covering the decedent, compliance with § 2117.06 is
unnecessary. See Meinberg v. Glaser, 237 N.E.2d 605 (Ohio 1968). In Meinberg, the plaintiff was
injured in an automobile accident that was proximately caused by the decedent’s negligence, and
filed suit against the estate seeking recovery from the decedent’s liability insurance policy. The
court specifically stated that
                where it is alleged in an action for bodily injuries and property
                damage that such injuries and damage were proximately caused by
                the negligence of a decedent and that he had a policy insuring him
                against liability for such negligence and it does not appear that any
                other claims covered by such insurance have been asserted, such
                action may be brought against the executor or administrator of such
                decedent at any time within two years after the cause thereof arose
                without presenting a claim against the estate within the . . . time
                specified in Section 2117.06 . . .
Id. at 609.
         Plaintiffs argue that Meinberg is applicable here, and that they were therefore not required
to present notice of their claim to Mrs. Reese as administrator within one year of Reese’s death.
However, Meinberg makes clear that “a plaintiff who seeks to avoid the claim requirements and the
. . . time limitations of Section [] 2117.06 . . . must allege and prove that there is something other
than an asset of the estate, such as liability insurance, against which any judgment rendered in his
favor may be enforced.” Id. at 609-10 (emphasis added). In this case, Plaintiffs did not allege in
their complaint that they seek recovery only from an insurance policy that covered Reese; in fact,
their complaint does not mention an insurance policy at all, it simply demands compensation for
No. 04-4141           Lukowski, et al. v. CSX Transportation, et al.                            Page 7


each Plaintiff in excess of $200,000 in compensatory damages, plus at least $750,000 in punitive
damages. Additionally, in contrast to their current position, in their memorandum of law in
opposition to the Reese Estate’s motion for summary judgment, Plaintiffs argued that the insurance
policy on the truck Reese was driving at the time of the accident was taken out in Maura Reese’s
name and listed Mrs. Reese as the driver of the truck. Plaintiffs also stated in their memorandum
that “nowhere” on the insurance policy “does John D. Reese’s name appear.” Joint Appendix,
“J.A.” at 231. If that assertion is true, then it is unclear whether the liability insurance policy that
Plaintiffs claim to seek recovery from even covered John Reese at all.
         Furthermore, before the district court, Plaintiffs merely argued that by giving notice to the
insurance company, they complied with § 2117.06, an argument that the district court correctly
found is foreclosed under Ohio law. See Stalder, 120 N.E.2d at 747. Now, for the first time on
appeal, Plaintiffs argue that under Meinberg they were not required to submit a claim to the
administrator of the Reese estate, because they are seeking to recover solely from an insurance
policy. We hold that Plaintiffs cannot take advantage of Meinberg, because they did not allege,
much less attempt to prove, to the district court that they seek recovery solely from a liability
insurance policy that covered Reese, and not from assets of the Reese Estate. See United States v.
Ninety Three Firearms, 330 F.3d 414, 424 (6th Cir. 2003) (quoting In re Hood, 319 F.3d 755, 760
(6th Cir. 2003)) (“This court has repeatedly held that it ‘will not consider arguments raised for the
first time on appeal unless our failure to consider the issues will result in a plain miscarriage of
justice.’”); see also Sault Ste. Marie Tribe of Chippewa Indians v. United States, 288 F.3d 910, 915
(6th Cir. 2002) (“Normally, an issue not raised below may not be raised on appeal.”). Because
Plaintiffs failed to argue below that the recovery they seek is limited to the proceeds of a liability
insurance policy that covered Reese, the district court did not err in granting summary judgment to
the Reese Estate and Maura Reese as Administrator of the estate on the basis of Plaintiffs’ failure
to comply with § 2117.06.
                                       III.   CONCLUSION
       For the above reasons, we AFFIRM the district court’s judgment.
