             IN THE SUPREME COURT OF MISSISSIPPI

                     NO. 2015-CT-00644-SCT

ILLINOIS CENTRAL RAILROAD COMPANY

v.

BENNIE OAKES, DECEASED, BY AND
THROUGH CLARA HAGAN, HIS
REPRESENTATIVE

                    ON WRIT OF CERTIORARI

DATE OF JUDGMENT:             03/01/2013
TRIAL JUDGE:                  HON. ISADORE W. PATRICK, JR.
TRIAL COURT ATTORNEYS:        TOMMIE G. WILLIAMS
                              MARC A. BIGGERS
                              F. EWIN HENSON, III
                              ROBERT S. UPSHAW
                              CLINTON M. GUENTHER
                              RICHARD C. WILLIAMS, JR.
                              RICHARD L. KIMMEL
                              HUGH GILLON
                              PATRICK M. TATUM
                              JAMES LAWRENCE WILSON, IV
                              STEVEN CAVITT COOKSTON
                              PETER L. CORSON
                              CHARLES CAMERON AUERSWALD
                              TOMMIE GREGORY WILLIAMS, JR.
                              WILLIAM LOCK MORTON, III
COURT FROM WHICH APPEALED:    WARREN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:      GLENN F. BECKHAM
                              HARRIS FREDERICK POWERS, III
ATTORNEYS FOR APPELLEE:       HENRY DEAN ANDREWS, JR.
                              TIMOTHY W. PORTER
                              PATRICK MALOUF
                              JOHN TIMOTHY GIVENS
NATURE OF THE CASE:           CIVIL - PERSONAL INJURY
DISPOSITION:                  REVERSED AND REMANDED - 02/15/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
       EN BANC.

       COLEMAN, JUSTICE, FOR THE COURT:

¶1.    The issue presented in the instant case is whether the defendant is entitled to a setoff

for money already paid to the plaintiff for the same injuries alleged to have been caused by

the defendant. It is not, as treated by the dissent, a case about apportionment of fault

amongst different tortfeasors. As described by Illinois Central, who as appellant framed the

issues for appeal, “This case is about whether, once those damages are assessed by a jury, a

railroad company under the [Federal Employers’ Liability Act] is entitled to a credit or

reduction of that verdict for sums that have already been paid by others to the Plaintiff for

the same injuries and damages.” In Illinois Central’s answer, it raised an affirmative defense

that “it is entitled to apportionment or set off liability and/or damages for any negligence of

or damages caused by third parties, including but not limited to other employers and

manufacturers, distributors, and sellers of products to which plaintiff claims the decedent

was exposed as alleged in the complaint.” However, Illinois Central later clarified its

position that it was not attempting to have negligence apportioned, and the circuit court

echoed the clarification by stating that Illinois Central had not “tried to use a third, an empty

chair for any other defendants.”

¶2.    The Court of Appeals issued an opinion affirming the Warren County Circuit Court’s

denial of Illinois Central Railroad’s request for a setoff of a jury verdict awarded to Bennie

Oakes through his representative Clara Hagan. We hold that the Court of Appeals


                                               2
misconstrued the primary case it relied upon and ignored other federal precedent; therefore,

we reverse the Court of Appeals’ judgment and the circuit court’s denial of Illinois Central’s

motion for a setoff. We remand for proceedings consistent with our opinion.

                        FACTS AND PROCEDURAL HISTORY

¶3.    On February 13, 2009, Clara Hagan filed a complaint, as the representative of Bennie

Oakes, against Illinois Central in the Warren County Circuit Court. The complaint, brought

under the provisions of the Federal Employers Liability Act,1 sought to recover damages for

“personal injuries and/or death sustained by Bennie Oak[e]s, deceased, while [Oakes] was

employed by [Illinois Central] and while engaging in interstate commerce.”

¶4.    Oakes had been an employee of Illinois Central from 1952 through 1994 and “was

exposed to asbestos on a daily basis.” The complaint contained allegations that:

       As a result of his exposure to asbestos containing products and materials,
       [Oakes] has developed asbestosis, lung cancer, shortness of breath, reduced
       lung function, cough, chest congestion, and is at increased risk to develop one
       or more of the following diseases: mesothelioma, asbestos related pleural
       disease, mixed dust pneumoconiosis, sleep interruption, aggravation of pre-
       existing and co-existing disease, throat cancer, laryngeal cancer, colon,
       stomach, and other asbestos related cancer.

According to the complaint, due to Illinois Central’s negligence in exposing Oakes to

asbestos daily, Oakes incurred injury and damages.

¶5.    The first trial occurred in 2011 but resulted in a hung jury. The jury in the second trial


       1
         “The Federal Employers’ Liability Act . . . 45 U.S.C. §§ 51-60, makes common
railroads liable in damages to employees who suffer work-related injuries caused ‘in whole
or in part’ by the railroad’s negligence.” Norfolk & Western Ry. Co. v. Ayers, 538 U. S.
135, 140 (2003).

                                               3
found in favor of Hagan and awarded $250,000 in damages; however, the jury also

apportioned fault, with Illinois Central being twenty percent at fault and Oakes being eighty

percent at fault. Therefore, the circuit court adjusted the damages accordingly, and the total

award was $50,000. Illinois Central filed a Motion for Entry of Judgment and Setoff to have

the damages reduced further based on its discovery that Hagan had received more than

$65,000 in payments from asbestos trusts for Oakes’s injuries and death. The circuit court

denied Illinois Central’s motion and entered the judgment of $50,000 plus eight percent

interest.

¶6.    Illinois Central appealed, and the case was assigned to the Court of Appeals. Writing

for the Court of Appeals, Judge Greenlee framed the issue on appeal as “whether setoff

against a jury verdict is required in [Federal Employers’ Liability Act] cases where the

claimant has already settled with separate tortfeasors.” Illinois Cent. R.R. Co. v. Oakes,

2016 WL 7647571, *1 (¶ 4) (Miss. Ct. App. Dec. 13, 2016). The Court of Appeals held:

       Because an injured railroad employee can recover all his damages from his
       railroad employer if the employer’s negligence caused any part of the
       employee’s injury, and because the collateral source rule does not allow for a
       defendant to avoid payment of damages based on compensation to the plaintiff
       from a third party that was not a party to the action, we find that an allowance
       of setoff for recoveries from nonparty tortfeasors is inconsistent with the
       [Federal Employers’ Liability Act]’s intent, the statutory language, and
       Mississippi and U.S. Supreme Court precedent.

Id. at *3 (¶11). Judge Wilson authored a dissent, joined by Presiding Judge Griffis, and

explained that: “The sole issue in this appeal is whether the judgment against Illinois Central

should be offset . . . based on settlement payments that Hagan or Oakes previously received


                                              4
from the bankruptcy trusts of the manufacturers of the asbestos to which Oakes was

exposed.” Id. at *3 (¶ 14). He further explained that “[t]he majority rule on this issue of

federal law is that Illinois Central is entitled to such an offset . . . .” Finally, the dissent

concluded:

       Nothing in the [Federal Employers’ Liability Act] entitles the plaintiff to more
       than one recovery for his damages. This case involves an injury caused by
       exposure to asbestos; the plaintiff has already been compensated for this same
       injury by the manufacturers of the asbestos; and there is no reason that her
       recovery against Illinois Central should not be reduced to account for those
       payments.

Id. at *5 (¶ 22). Based on the Court of Appeals’ decision, Illinois Central filed a petition for

writ of certiorari, which the Court granted.

¶7.    In its petition, Illinois Central argued that the Court of Appeals decision is in

“‘irreconcilable conflict’ with previous opinions . . . and disregards the controlling federal

law on the issue.” Additionally, Illinois Central submitted that the primary case of Norfolk

& Western Railway Company v. Ayers, 538 U.S. 135 (2003), relied upon by the Court of

Appeals’ decision, was misconstrued and misapplied to the present case. Illinois Central also

argued that the Court of Appeals’ decision erred in holding that the collateral source rule

applied to asbestos trusts set up by the now-bankrupt asbestos manufacturers as a condition

of their bankruptcy proceedings. Finally, Illinois Central contended that the Court of

Appeals’ decision effectively “obliterates” the one-recovery rule by allowing Hagan to

collect from the asbestos trust for the asbestos-related injury and also from Illinois Central

for the same asbestos-related injury.


                                               5
                                        ANALYSIS

¶8.    As the Court of Appeals noted, the issue in the present case is whether Illinois Central

is entitled to a setoff of the jury verdict based on Oakes’s or Hagan’s receipt of settlement

funds from an asbestos bankruptcy trust. We hold that it is, and the Court of Appeals and the

circuit court erred in concluding otherwise. Additionally, the dissent makes the same mistake

as the Court of Appeals by analyzing the case as an apportionment case instead of reviewing

it as a question of whether double recovery is prohibited.

¶9.    The Court of Appeals’ majority opinion based its holding primarily on the United

States Supreme Court case of Ayers. The majority states that the Supreme Court in Ayers

rejected “the suggestion that the [Federal Employers’ Liability Act] would permit damages

to be apportioned among joint tortfeasors according to the degree of fault attributable to

each.” Oakes, 2016 WL 7647571, *2 (¶8) (citing Ayers, 538 U.S. at 161-65). Further, “[t]he

Ayers Court found significant that Congress, while expressly directing in the [Federal

Employers’ Liability Act] the apportionment of responsibility between employers and

employee based on comparative fault, did not provide for such apportionment among

potentially liable tortfeasors.” Id. We hold that the Court of Appeals’ majority opinion

misunderstood and misapplied Ayers, while dismissing a bounty of other federal caselaw

directly on the issue.

¶10.   In Ayers, six former employees of Norfolk & Western Railway Company sued the

company after they were diagnosis with asbestosis. Ayers, 538 U.S. at 140. The case

presented two issues involving the Federal Employers’ Liability Act, with the second issue

                                              6
being pertinent to the present case.

         The second issue concerns the extent of the railroad’s liability when third
         parties not before the court – for example, prior or subsequent employers or
         asbestos manufacturers or suppliers – may have contributed to the worker’s
         injury. Is the railroad answerable in full to the employee, so that pursuit of
         contribution or indemnity from other potentially liable enterprises is the
         railroad’s sole damages-award-sharing recourse? Or is the railroad initially
         entitled to an apportionment among injury causing tortfeasors, i.e., a division
         of damages limiting the railroad’s liability to the injured employee to a
         proportionate share?

Id. at 140-41. Ultimately, the Supreme Court opinion held that the injured employee “may

recover his or her full damages from the railroad, regardless of whether the injury was also

caused ‘in part’ by the actions of a third party.” Id. at 165.

¶11.     We do not read Ayers to analyze, much less prohibit, setoffs of jury verdicts. First,

as the Court of Appeals’ dissent pointed out, the Supreme Court noted that a setoff had

occurred in Ayers, and there was no negative reaction or treatment of the setoff in the

opinion. According to Ayers: “After reduction for three claimants’ comparative negligence

from smoking and for settlements with non-[Federal Employers’ Liability Act] entities, the

final judgments amounted to approximately $4.9 million.” Ayers, 538 U.S. at 143 (emphasis

added). The Court of Appeals’ majority does not mention the above-quoted language and

does not attempt to explain or distinguish why the Supreme Court took no issue with a setoff

there.

¶12.     More importantly, our review of Ayers indicates that setoffs were not the issue. The

issue in Ayers was whether fault could be apportioned among joint tortfeasors, and Ayers

stands for the premise that a plaintiff may recover its full amount of damages from one

                                               7
defendant and places the burden on the defendant to seek contribution from other nonparty

tortfeasors later. Ayers, 538 U.S. at 141. For example, in the present case, had Illinois

Central asked that the jury apportion fault to Illinois Central, Oakes, and the nonparty

asbestos trusts, standing in the place of the now-bankrupt asbestos manufacturers, such

request would have run afoul of Ayers. However, that is not what happened, and the jury

apportioned fault between Illinois Central and Oakes, as permitted by the Federal Employers’

Liability Act and Ayers. As the Court of Appeals’ dissent explained:

       It is one thing to hold, as the Ayers Court did, that an employee’s recovery
       should not be reduced based on a jury’s apportionment of fault to a nonparty.
       It is quite another thing to suggest that an employee should be able to recover
       the same damages over and over again from different parties, without any
       offset for compensation he has already received.

Oakes, 2016 WL 7647571, *4 (¶ 19). Simply, Ayers does not apply to the facts and issue of

the present case. The trial court in the above-styled case has never apportioned fault to the

asbestos trusts and, had it done so, it would have erred pursuant to Ayers. The settling

asbestos trusts never have been held to be liable for the plaintiffs’ injuries.

¶13.   Since Ayers is not on point, we must look at other federal caselaw for guidance

regarding whether Illinois Central is entitled to a setoff of the jury verdict. The leading

federal case is Schadel v. Iowa Interstate Railroad, Ltd., 381 F.3d 671, 676 (7th Cir. 2004).

In Schadel, Douglas Schadel was injured on the job when a car driven by Brenda

Kowalewicz careened through the warning gates and struck him. Id. at 673. Schadel sued

the railroad company under the Federal Employers’ Liability Act and also sued Kowalewicz

under state law. Id. Schadel settled with Kowalewicz prior to trial, and she was dismissed

                                               8
from the case. Id. Kowalewicz’s dismissal also extinguished the railroad company’s cross-

claim against her for contribution and indemnity. Id. at 674. At the trial between Schadel

and the railroad company, the railroad company was not permitted to introduce

Kowalewicz’s settlement, and the jury was permitted to allocate fault only between Schadel

and the railroad company. Id. However, once the jury returned a verdict, the trial court

reduced the verdict based on Schadel’s negligence and reduced the verdict further based on

the Kowalewicz settlement. Id. The railroad company appealed, arguing that the trial court

should have used a proportionate-share approach, which would have allowed the jury to

allocate “responsibility among all three parties and impose[] damages on [the railroad

company] only to the extent of its share of the liability.” Id.        After analyzing four

approaches to address the allocation of damages in actions involving multiple tortfeasors, the

Seventh Circuit concluded that the pro tanto approach, or the dollar-for-dollar approach,

which the trial court applied, was the correct result consistent with the Federal Employers’

Liability Act. Id. at 678. The Seventh Circuit’s approach in Schadel was adopted in

Mancini v. CSX Transporation, Inc., No. 08-CV-933, 2010 WL 2985964, at *6 (N.D. N.Y.

July 27, 2010); Benson v. CSX Transp. Inc., 274 F. App’x 273, 276 (4th Cir. 2008);

Krueger v. Soo Line Railroad, No. 02-C-0611, 2005 WL 2234610, at *1 (E.D. Wis. Sept.

12, 2005); and Hess v. Norfolk Southern Railway Company, 835 N.E. 2d 679, 689 (¶ 48)

(Ohio 2005), and we join the other jurisdictions in holding that the Schadel approach of a pro

tanto credit in cases like the present is appropriate.

¶14.   Even though Ayers does not apply to the issue presented in the case sub judice

                                               9
because the issue there was whether, under the Federal Employers’ Liability Act, fault could

be attributed to nonrailroad joint tortfeasors and the issue today is whether, after a verdict in

which fault is not attributed to any other tortfeasors the defendant is entitled to a setoff equal

to money already paid to the plaintiff for the same injuries, the principal purpose of the

Federal Employers’ Liability Act announced therein reinforces our holding. As argued by

Oakes, “[The Federal Employers’ Liability Act]’s express terms, reinforced by consistent

judicial applications of the Act, allow a worker to recover his entire damages from a railroad

whose negligence jointly caused an injury . . . , thus placing on the railroad the burden of

seeking contribution from other tortfeasors.” Ayers, 538 U.S. at 141. After adjustment for

fault apportioned to Oakes, the jury’s verdict awarded him $50,000 in damages. The

asbestos trusts have paid him more than $50,000. Accordingly, he has recovered his entire

damages from the asbestos trusts, and with the setoff, the Federal Employers’ Liability Act’s

purpose has been fulfilled. Nowhere in Ayers or any other authorities cited by Oakes is there

any indication that the Federal Employers’ Liability Act contemplates that a plaintiff would

receive more than his entire damages, as would be the case absent the setoff.

¶15.   Indeed, the Ayers Court’s description of the Federal Employers’ Liability Act and its

effect on and partial abridgement of the common law of damages buttresses our holding.

       “To further [the Federal Employers’ Liability Act’s] humanitarian purposes,
       Congress did away with several common-law tort defenses that had effectively
       barred recovery by injured workers.” [Consolidated Rail Corporation v.]
       Gottshall, 512 U.S. [532, 542], 114 S. Ct. 2396. As cataloged in Gottshall, the
       [Federal Employers’ Liability Act] “abolished the fellow servant rule”;
       “rejected the doctrine of contributory negligence in favor of . . . comparative
       negligence”; “prohibited employers from exempting themselves from the

                                               10
       [Federal Employers’ Liability Act] through contract”; and, in a 1939
       amendment, “abolished the assumption of risk defense.” Id. at 542-543, 114
       S. Ct. 2396; see 45 U.S.C. §§ 51-55. “Only to the extent of these explicit
       statutory alterations,” however, “is the [Federal Employers’ Liability Act] ‘an
       avowed departure from the rules of the common law.’” Gottshall, 512 U.S.
       at 544, 114 S. Ct. 2396 (quoting Sinkler v. Missouri Pacific R. Co., 356 U.S.
       326, 329, 78 S. Ct. 758, 2 L. Ed. 2d 799 (1958)).

Ayers, 538 U.S. at 145. The Ayers Court’s holding that fault may not be apportioned

between the railroad and nonrailroad defendants rests upon the Federal Employers’ Liability

Act’s negating of the common law defense of apportionment. Id. at 161. However, nothing

in the statute changes the common law on damages to the effect that a defendant, such as

Illinois Central in the case sub judice, would be prohibited from seeking a setoff from

another entity who earlier paid the plaintiff for the same injuries.

¶16.   Lastly, because we hold that Illinois Central is entitled to relief in the form of a pro

tanto setoff consistent with Schadel, we do not address the remaining issues involving the

collateral-source rule.

                                      CONCLUSION

¶17.   Although Illinois Central states in its briefs that the settlements were to compensate

Oakes and Hagan for the same injuries as alleged in the current Federal Employers’ Liability

Act lawsuit, the record is less than clear. Accordingly, we reverse the Court of Appeals’ and

the circuit court’s judgments denying Illinois Central a setoff, and we remand to the circuit

court for further proceedings consistent with the instant opinion, including, if necessary, a

hearing to determine whether the settlement indeed compensated the plaintiffs for the same

injuries and the same type of damages as alleged in the lawsuit.

                                              11
¶18.   REVERSED AND REMANDED.

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

       KING, JUSTICE, DISSENTING:

¶19.   Because I believe that the Federal Employers’ Liability Act (FELA) and Supreme

Court precedent mandate that we not apply a pro tanto setoff in this case, I respectfully

dissent.

¶20.   The majority concludes that Illinois Central is entitled to a pro tanto setoff for

asbestos trust2 payments Oakes received from parties which are not and never were parties

to the litigation at hand.3 Pro tanto credits may be allowed for joint tortfeasors who are

parties to the action. “Joint tointfeasor claims arise where the separate wrongful conduct of

two or more individuals combine to cause an injury, and each because of his conduct bears

some responsibility for the injury.” J & J Timber Co. v. Broome, 932 So. 2d 1, 8 (Miss.



       2
        The asbestos trust at issue was put into place during a Chapter 11 bankruptcy to
“direct the processing, liquidation and payment” of asbestos personal injury claims. In re
T H Agric. & Nutrition, L.L.C., No. 08-14692, 2009 WL 7193573 (S.D. N.Y. May 28,
2009).
       3
         The narrow and specific issue at hand is whether, under federal law, the defendant
is entitled to a setoff for payments received by Oakes from nonparties to the lawsuit,
something the defendant is under a burden to show. The majority unilaterally changes the
issue as to whether the plaintiff is entitled to a double recovery, and argues that the dissent
reframes the issue as apportionment of fault among tortfeasors. Neither double recovery nor
apportionment of fault among joint tortfeasors is at issue here. At issue is whether Illinois
Central may claim a setoff for trust payments made by a nonparty to the litigation at hand,
and, in this case, federal law does not allow Illinois Central to claim any setoff.

                                              12
2006) (internal quotations omitted) (emphases in original).4

¶21.   In Ayers, an asbestos case, the railroad argued that it should be allowed to apportion

liability among other nonrailroad defendants. The United States Supreme Court noted that

the FELA only allows the jury to apportion damages between the railroad and the employee,

it “does not authorize apportionment of damages between railroad and nonrailroad causes.”

Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 159-60, 123 S. Ct. 1210, 155 L. Ed. 2d

261 (2003). The Court concluded that “reading the FELA to require apportionment would

handicap plaintiffs and could vastly complicate adjudications, all the more so if . . .

manufacturers and suppliers, as well as other employers, should come within the

apportionment pool.” Id. at 165. “Once an employer has been adjudged negligent with

respect to a given injury, it accords with the FELA’s overarching purpose to require the

employer to bear the burden of identifying other responsible parties and demonstrating that

some of the costs of the injury should be spread to them[,]” referring specifically to actions

for contribution. Id. at 165, and n.23 (emphasis added). The United States Supreme Court

ultimately held that “[u]nder the FELA, an employee who suffers an ‘injury’ caused ‘in

whole or in part’ by a railroad’s negligence may recover his or her full damages from the

railroad, regardless of whether the injury was also caused ‘in part’ by the actions of a third


       4
        In Mississippi, among joint tortfeasors, it is generally recognized that a negligent
defendant “should not be allowed to escape liability for his negligence by the fortuity that a
co-defendant has settled prior to trial.” Broome, 932 So. 2d at 8-9. However, in this case,
we must apply federal law, and the FELA has a similar purpose: to fully compensate the
injured employee. Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 144-45, 123 S. Ct.
1210, 155 L. Ed. 2d 261 (2003).

                                             13
party.” Id. at 165-66. While the United States Supreme Court was addressing apportionment

among parties,5 not setoffs for a settlement, it specifically mentioned that plaintiffs would be

handicapped if apportionment was allowed among asbestos manufacturers.

¶22.   The federal cases cited by the majority are inapposite because they address setoffs due

to the settlement of a party to the suit.6 Federal joinder law allows that persons may be

joined as defendants if “any right to relief is asserted against them jointly, severally, or in the

alternative with respect to or arising out of the same transaction, occurrence, or series of

transactions or occurrences” and “any question of law or fact common to all defendants will

arise in the action.” Fed. R. Civ. P. 20(a)(2). When a plaintiff joins defendants in a lawsuit

and the complaint alleges joint liability for the injury caused, the plaintiff essentially admits

that the parties are joint tortfeasors. We have no such joinder and no such admission here.

As such, the “employer . . . bear[s] the burden of identifying other responsible parties and

demonstrating that some of the costs of the injury should be spread to them.” Ayers, 538

U.S. at 165 (emphasis added). The employer made no such demonstration here. It merely

put forth the amounts of asbestos trust settlements, without tying them to the injuries of the

case or making some demonstration that the asbestos manufacturers were joint tortfeasors.


       5
        The majority makes much of the Supreme Court’s mention in the recitation of facts
that the verdict had been reduced for settlements with non-FELA entities. Yet, it does not
appear that any setoff was appealed, much less its propriety addressed by the Supreme Court.
Moreover, it is fair to assume that the settlements were with parties to the lawsuit.
       6
        Moreover, the cases recognize that “[t]he purpose of the FELA . . . is to facilitate the
injured railroad employee’s recovery.” Schadel v. Iowa Interstate R.R., Ltd., 381 F.3d 671,
678 (7th Cir. 2004).

                                                14
¶23.      The Missouri Court of Appeals has rejected the notion that a settlement paid by a

nonparty may be used as a setoff by the railroad. Palmer v. Union Pacific R. Co., 311

S.W.3d 843 (Mo. Ct. App. 2010). It noted that allowing a setoff “overlooks the U.S.

Supreme Court’s rejection of the suggestion that FELA would permit damages to be

apportioned among joint tortfeasors according to the degree of fault attributable to each.”

Id. at 856. It found significant that “Congress, while expressly directing in FELA the

apportionment of responsibility between employer and employee based on comparative fault,

did not provide for such apportionment among potentially liable tortfeasors.” Id. The court

noted that recognizing such a credit would exempt the railroad from a portion of its liability,

which contradicts the express language of the FELA. Id. It also noted that the United States

Supreme Court expressly placed the burden on the railroad to seek contribution from other

tortfeasors, concluding that “an allowance of setoff for settlement recoveries received on

behalf of a nonrailroad tortfeasor is inconsistent with FELA’s intent, contradictory to the

act’s statutory language, and not in accordance with U.S. Supreme Court precedent.” Id.

¶24.      The United States Supreme Court has explicitly placed the burden on the employer

in FELA cases to demonstrate that other parties should bear a portion of the costs. Illinois

Central did not do so in this case. Its remedy is to seek contribution from other potential

tortfeasors, not a setoff against the damages awarded the plaintiff. Therefore, I would affirm

the judgments of the Warren County Circuit Court and the Court of Appeals denying the

setoff.

          KITCHENS, P.J., JOINS THIS OPINION.

                                              15
