                                  STATE OF MINNESOTA

                                     IN SUPREME COURT

                                         A13-0915

Court of Appeals                                                            Dietzen, J.
                                                               Concurring, Lillehaug, J.

Dennis E. Kinworthy,

                     Appellant,

vs.                                                               Filed: March 4, 2015
                                                             Office of Appellate Courts
Soo Line Railroad Company,
d/b/a CP Rail System,

                     Respondent.
                            ________________________

Randal W. LeNeave, Richard L. Carlson, Hunegs, LeNeave, & Kvas, P.A., Wayzata,
Minnesota, for appellant.

Megan K. Ricke, Jeffrey A. Abrahamson, Ricke & Sweeney, P.A., Saint Paul, Minnesota,
for respondent.
                            ________________________

                                       SYLLABUS

       1.     The recoverability of prejudgment interest in an action brought in state

court under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 (2012), is

governed by federal substantive law.

       2.     Pursuant to existing federal law, a successful plaintiff in a FELA action

brought in state court is not entitled to post-verdict, prejudgment interest under Minn.

Stat. § 549.09, subd. 1(a) (2014).

       Affirmed.

                                            1
                                      OPINION

DIETZEN, Justice.

       The issue in this case is whether a successful plaintiff in a state court action

brought under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60 (2012),

is entitled to interest under Minnesota law from the date of the jury verdict until the date

of the entry of judgment. Appellant Dennis Kinworthy brought a FELA lawsuit against

respondent Soo Line Railroad Company, and the jury awarded him damages for his

injuries.   The district court denied Kinworthy’s post-trial motion under Minn. Stat.

§ 549.09, subd. 1(a) (2014) for interest from the date of the verdict to the date of

judgment, on the ground that prejudgment interest is not available in a FELA action. The

court of appeals affirmed. Because post-verdict, prejudgment interest is not available in a

FELA action as a matter of federal substantive law, we affirm.

       Dennis Kinworthy was injured on January 24, 2009, during the course of his

employment as a conductor with respondent Soo Line. Kinworthy brought an action

against Soo Line in Minnesota state court seeking the recovery of damages under FELA

and the Locomotive Inspection Act (LIA), 49 U.S.C. §§ 20701-20703 (2012).1 After

trial, the jury returned a verdict in favor of Kinworthy for $340,000, finding that the

railroad had violated LIA.




1
       The Supreme Court has interpreted the LIA to be an amendment to FELA, such
that proof of a violation of LIA is effective to show negligence as a matter of law under
FELA. See Urie v. Thompson, 337 U.S. 163, 189 (1949).


                                             2
       Kinworthy subsequently filed a motion to amend the judgment, requesting

$7,854.30 in interest on the judgment, calculated from the date of the verdict until the

date the judgment was entered, pursuant to Minn. Stat. § 549.09, subd. 1(a). Soo Line

opposed Kinworthy’s motion, and the district court denied the motion on the ground that

prejudgment interest is not available in FELA cases under binding precedent from the

United States Supreme Court. See Monessen Sw. Ry. v. Morgan, 486 U.S. 330 (1988).

       The court of appeals affirmed the denial of prejudgment interest, concluding that

Monessen, 486 U.S. 330, is controlling and that federal substantive law does not permit

prejudgment interest in FELA actions. Kinworthy v. Soo Line R.R., 841 N.W.2d 363,

367-68 (Minn. App. 2013).

                                              I.

       Kinworthy argues that his FELA case, which was commenced in Minnesota state

court, is subject to state procedural rules; that post-verdict interest under Minn. Stat.

§ 549.09, subd. 1(a), is a procedural rule; and therefore, that he is entitled to post-verdict

interest under the statute. Thus, Kinworthy argues that federal precedent on prejudgment

interest does not apply. Soo Line counters that Kinworthy is not entitled to post-verdict,

prejudgment interest in his state court FELA action because under Monessen, 486 U.S. at

338, prejudgment interest is not available in FELA actions.

       There are no factual disputes in this appeal; rather, the application of Minn. Stat.

§ 549.09, subd. 1(a), in a state court FELA action is a question of law, which we review

de novo. See Monessen, 486 U.S. at 335.




                                              3
       Under Minnesota law, a successful plaintiff in a state court action generally may

recover pre-verdict interest. Minn. Stat. § 549.09, subd. 1(b). Once a verdict is rendered,

“[t]he court administrator shall stay entry of judgment for thirty days . . . unless the court

orders otherwise.” Minn. Gen. R. Prac. 125. During this delay between the verdict and

the entry of judgment, a successful plaintiff generally may recover “interest from the time

of the verdict, award, or report until judgment is finally entered,” or post-verdict interest.

Minn. Stat. § 549.09, subd. 1(a). Thus, a successful plaintiff in a state court action is

generally entitled to recover not only pre-verdict interest, but also post-verdict interest

until the date judgment is entered. Id., subd. 1(a)-(b).

       To determine whether a successful plaintiff is entitled to recover post-verdict,

prejudgment interest in a state court FELA action, we first discuss the nature of a cause

of action under FELA, and then examine relevant case law regarding the availability of

post-verdict, prejudgment interest.

                                             A.

       Under FELA, a railroad “shall be liable in damages to any [employee] suffering

injury . . . from the negligence” of the railroad or its employees. 45 U.S.C. § 51.

Congress enacted FELA in 1908 to “provide a federal remedy for railroad workers who

suffer personal injuries as a result of the negligence of their employer or their fellow

employees.” Atchison, Topeka & Santa Fe Ry. v. Buell, 480 U.S. 557, 561 & n.5 (1987).

FELA was enacted to achieve national uniformity in personal injury actions brought by

railroad employees against their railroad employers.           Dice v. Akron, Canton &

Youngstown R.R., 342 U.S. 359, 361 (1952); N.Y. Cent. R.R. v. Winfield, 244 U.S. 147,


                                              4
149 (1917). An injured railroad employee may bring a FELA claim in either state or

federal court. 45 U.S.C. § 56 (“The jurisdiction of the courts of the United States under

this chapter shall be concurrent with that of the courts of the several States.”).

       When a plaintiff chooses to bring a FELA claim in state court, as is the case here,

federal law governs all substantive matters, but procedural matters are subject to state

procedural rules. St. Louis Sw. Ry. v. Dickerson, 470 U.S. 409, 411 (1985); Brown v. W.

Ry. of Ala., 338 U.S. 294, 296 (1949).         A state’s classification of its own law as

procedural is not dispositive; instead, we must look to federal law to determine what is

procedural and what is substantive. See Monessen, 486 U.S. at 336; Dice, 342 U.S. at

363; Brown, 338 U.S. at 298-99. Thus, a state court faced with the question of whether a

particular issue in the case is governed by federal or state law must determine whether the

issue is a “procedural” matter in which the state applies its own law, or a “substantive”

matter in which the state court applies federal law.

       The United States Supreme Court, however, has also considered principles of

uniformity and the supremacy of federal law in determining whether state law applies to

FELA causes of action. Based upon these considerations, some state rules that have

traditionally been regarded as procedural, such as presumptions, jury trials, pleadings,

statutes of limitations, and damages, have been deemed substantive in FELA cases in

order to ensure uniform enforcement of the Act. See, e.g., Dickerson, 470 U.S. at 411

(jury instructions regarding the proper measure of damages are substantive); Chesapeake




                                              5
& Ohio Ry. v. Kelly, 241 U.S. 485, 489-90 (1916) (proper measure of damages is

substantive).2

       More recently, the Supreme Court applied principles of uniformity and supremacy

of federal law in a case that squarely addressed whether prejudgment interest is available

in a state court FELA action. Monessen Sw. Ry. v. Morgan, 486 U.S. 330 (1988). In

Monessen, the Court considered whether, pursuant to local practice, a state court may

award pre-verdict, prejudgment interest in a FELA action brought in state court. 486

U.S. at 334. There, a railroad employee brought a FELA action against his employer in

Pennsylvania state court and was awarded $125,000 in damages and approximately

$27,000 in prejudgment interest under the Pennsylvania Rules of Civil Procedure. 486

U.S. at 332. The Court reversed and remanded the award of prejudgment interest,

holding that state courts may not award “prejudgment interest” pursuant to a state rule of

civil procedure in FELA actions.       486 U.S. at 338-39.     The Court concluded that

prejudgment interest constitutes a substantial part of a defendant’s potential liability

under FELA, and therefore should be determined by federal substantive law, not state

procedural rules. 486 U.S. at 336. Based upon its analysis, the Court concluded that

federal law does not authorize the award of prejudgment interest in a FELA action. 486

U.S. at 336-38. Specifically, the Court reasoned that when Congress enacted FELA in

2
       See also Norfolk & W. Ry. v. Liepelt, 444 U.S. 490, 492-93 (1980) (jury
instructions are substantive); Dice, 342 U.S. at 363 (jury trial is substantive); Brown, 338
U.S. at 295-96 (pleadings standard is substantive); New Orleans & Ne. R.R. v. Harris,
247 U.S. 367, 372 (1918) (presumption in favor of plaintiffs is substantive); Atl. Coast
Line R.R. v. Burnette, 239 U.S. 199, 201 (1915) (statute of limitations is substantive);
Cent. Vt. Ry. v. White, 238 U.S. 507, 512 (1915) (burden of proof is substantive).


                                             6
1908, the federal common law did not allow prejudgment interest in personal injury or

wrongful death suits, and there is no evidence that Congress intended to abrogate the

common law sub silentio. Id. at 337-38. Moreover, when Monessen was decided, federal

and state courts had concluded with virtual unanimity over more than seven decades that

prejudgment interest is not available under FELA. 486 U.S. at 338. Further, neither

FELA nor the federal interest statute, 28 U.S.C. § 1961 (2012), mention prejudgment

interest. 486 U.S. at 336. Consequently, prejudgment interest is not available in a FELA

action.

                                              B.

          With these principles in mind, we return to the question of whether Kinworthy is

entitled to recover post-verdict, prejudgment interest. Essentially, Kinworthy makes

three arguments. First, Kinworthy relies upon Lienhard v. State, 431 N.W.2d 861 (Minn.

1988), to argue that he is entitled to interest from the time of the verdict until the entry of

judgment under state law. See Minn. Stat. § 549.09, subd. 1. According to Kinworthy,

pre-verdict and post-verdict interest serve “different purposes” and therefore should

receive different treatment. It is true that in Lienhard we described post-verdict interest

and post-judgment interest as “compensation for the loss of use of money as a result of

the nonpayment of a liquidated sum, for which liability has already been determined.”

431 N.W.2d at 865.        But the classification of post-verdict, prejudgment interest as

substantive or procedural in a FELA action must be resolved by federal law, not state

law. See Monessen, 486 U.S. at 336; Dice, 342 U.S. at 363; Brown, 338 U.S. at 298-99.




                                              7
Consequently, our classification of post-verdict, prejudgment interest as procedural in

Lienhard is not relevant to the issue before us.3

       Second, Kinworthy relies upon several decisions from other states to argue that

Monessen did not address the issue of post-verdict, prejudgment interest, and therefore




3
       Kinworthy also argues that providing for post-verdict, prejudgment interest under
Minn. Stat. § 549.09, subd. 1(a), promotes the uniformity envisioned by Congress when it
enacted FELA by equalizing the interest available in a Minnesota state court and
Minnesota federal district court. Specifically, Kinworthy argues that the delay caused by
the automatic stay in Minn. Gen. R. Prac. 125 deprives state court FELA litigants of
interest they would receive upon an immediate entry of judgment in the federal system.
Compare Minn. Gen. R. Prac. 125 (providing for the stay of entry of judgment for 30
days “after the court orders judgment following a trial unless the court orders
otherwise”), with Fed. R. Civ. P. 58(b) (providing generally for the prompt entry of
judgment when the jury returns a general verdict or the court awards “a sum certain”).

       Kinworthy’s uniformity argument lacks merit. It is true that differences in the
rules of civil procedure in federal district court and in Minnesota state court may result in
a practical circumstance in which a FELA plaintiff in Minnesota federal district court
receives interest from the date of verdict, but a FELA plaintiff in Minnesota state court
does not begin to receive interest until the date of the judgment following the
determination of post-trial motions. Notably, Minn. R. Civ. P. 58.01 provides for the
entry of judgment upon a jury verdict “forthwith,” and Minn. Gen. R. Prac. 125 does not
prevent the district court from ordering the immediate entry of judgment without a 30-
day stay. Thus, a successful FELA plaintiff may request immediate entry of judgment in
state court, and the state court has the authority to eliminate the loss of interest in FELA
cases by declining to delay the entry of judgment if the court concludes it is appropriate
to do so.

       Moreover, Congress enacted FELA to achieve national uniformity, and that
uniformity is achieved when federal substantive law governs the adjudication of FELA
claims in state courts. Here, Kinworthy seeks to substitute state law—Minn. Stat.
§ 549.09, subd. 1(a)—for federal substantive law, which would result in a lack of
uniformity because the state law is not the same as federal law on point.




                                              8
Monessen is not dispositive.4     We agree that the precise issue before the Court in

Monessen involved pre-verdict interest, not post-verdict, prejudgment interest. But the

Monessen opinion broadly concluded that “prejudgment interest” of any kind is not

recoverable in a state court FELA action.        Monessen, 486 U.S. at 336.       The basic

definition of “prejudgment interest” in the opinion clearly means any and all interest that

accrues before the entry of the judgment in the case.

       The Supreme Court’s decision in Kaiser Aluminum & Chemical Corp. v.

Bonjorno, 494 U.S. 827, 835 (1990), confirms this conclusion. In Kaiser, the Court

considered whether post-judgment interest under the federal interest statute, 28 U.S.C.

§ 1961, properly runs from the date of the damages verdict or the date of the entry of

judgment. 494 U.S. at 834. The Court held that under the plain language of the federal

interest statute, post-judgment interest accrues from the date of the entry of judgment, not

the date of the verdict. 494 U.S. at 836. Therefore, under federal law post-judgment

interest is calculated from the date of entry of judgment and all interest prior to the entry

of judgment is necessarily prejudgment interest.



4
       Currently, only a handful of state courts have considered the issue before us, and
those that have are split. Some states have concluded that post-verdict, prejudgment
interest is not recoverable in a FELA action. See Lund v. San Joaquin Valley R.R., 71
P.3d 770, 779 (Cal. 2003); Bodenheimer v. New Orleans Pub. Belt, 860 So. 2d 534 (La.
2003); Hairston v. Metro-North Commuter R.R., 823 N.Y.S.2d 391, 393 (N.Y. App. Div.
2006). Other state courts have concluded it is recoverable. See Lockley v. CSX Transp.,
Inc., 66 A.3d 322, 326-29 (Pa. Super. Ct. 2013); Jacobs v. Dakota, Minn. & E. R.R., 806
N.W.2d 209, 216 (S.D. 2011); Denning v. CSX Transp., Inc., No. M2012-01077, 2013
WL 5569145, at *8 (Tenn. Ct. App. Oct. 9, 2013); Weber v. Chicago & Nw. Transp. Co.,
530 N.W.2d 25, 31-32 (Wis. Ct. App. 1995).


                                             9
       It would be contrary to logic and common sense to conclude that prejudgment

interest includes interest that accrues before the jury verdict, but excludes interest that

accrues after the verdict but before entry of the judgment. Had the Court intended to

limit prejudgment interest to pre-verdict interest, and not post-verdict, prejudgment

interest, it could have easily said so. We discern no basis in Monessen to adopt the

artificial distinction between pre-verdict and post-verdict, prejudgment interest proposed

by Kinworthy. Indeed, Kinworthy proposes that we add a limitation to the holding in

Monessen that does not exist in the language of the opinion. Further, our interpretation is

supported by the underlying reasoning of the opinion. The Court in Monessen reasoned

that federal law does not authorize prejudgment interest, and there is no evidence that

Congress intended to abrogate that law. 486 U.S. at 337-38. Moreover, neither FELA

nor the federal interest statute mentions prejudgment interest. 486 U.S. at 336. The most

reasonable reading of Monessen, therefore, is that prejudgment interest, whether it is pre-

verdict or post-verdict, is not recoverable in a FELA action brought in state court.

       Our interpretation of Monessen is consistent with the principles of national

uniformity intended by Congress when it enacted FELA. A plaintiff who brings a FELA

action in state court should be subject to the same rule regarding prejudgment interest

regardless of the state in which the action is commenced.

       We conclude that prejudgment interest under Minn. Stat. § 549.09, subd. 1(a)-(b),

whether it is pre-verdict or post-verdict, is not recoverable in a FELA action brought in

Minnesota state court. The recoverability of post-verdict, prejudgment interest under

Minn. Stat. § 549.09, subd. 1(a), in a FELA action brought in state court is governed by


                                            10
federal substantive law. Pursuant to Monessen, 486 U.S. at 338, a successful plaintiff in a

FELA action is not entitled to recover post-verdict, prejudgment interest.

       Affirmed.




                                            11
                                CONCURRENCE

LILLEHAUG, Justice (concurring).

       I write separately to: (1) emphasize that we are bound by what may be overbroad

United States Supreme Court precedent that it alone can refine; and (2) highlight a

potential solution to the FELA post-verdict interest problem.

       On September 28, 2012, a jury in state district court returned a verdict in favor of

an injured worker, Dennis Kinworthy. But, as is customary in Minnesota state courts,

judgment was not entered that day. After considering post-trial motions pursuant to

Minn. R. Civ. P. 59, the district court ordered entry of judgment on November 27, 2012.

Pursuant to the automatic stay of Minn. Gen. R. Prac. 125, judgment was not entered

until December 27, 2012. Thus, there was a 90-day gap from verdict to judgment.

       Had the case been tried in federal court, judgment would have been entered

promptly after the jury verdict. Under Fed. R. Civ. P. 58, after a verdict “the clerk must,

without awaiting the court’s direction, promptly prepare, sign, and enter the judgment.”

Post-judgment interest begins to accrue from that date. See 28 U.S.C. § 1961 (2012)

(federal interest statute). In federal court, Kinworthy would have been entitled to several

thousands of dollars of post-judgment interest.

       With reluctance, I agree that Kinworthy cannot recover post-verdict prejudgment

interest during the 90-day gap because this case is controlled by Monessen Sw. Ry. v.

Morgan, 486 U.S. 330, 336 (1988), and Kaiser Aluminum & Chem. Corp. v. Bonjorno,

494 U.S. 827, 835 (1990). Together, Monessen and Kaiser hold, flatly, that interest prior

to judgment is not recoverable in FELA actions, whether in federal court or in state court.

                                           C-1
Perhaps the Supreme Court did not foresee, much less contemplate, the nuance presented

in this case: that, under some states’ statutes and rules, what is technically post-verdict

prejudgment interest is, as a practical matter, the equivalent of federal post-verdict post-

judgment interest.   But if there were to be such a carve-out from the holdings of

Monessen and Kaiser, it would be for the Supreme Court, rather than us, to wield the

scalpel.

       In my view, such a carve-out—or, alternatively, a requirement that judgment be

entered immediately in state FELA cases so as to start the running of postjudgment

interest—would be appropriate so as to equalize interest awards in state and federal

courts. This would promote the uniformity goal of FELA, see Norfolk & Western Ry. v.

Liepelt, 444 U.S. 490, 493 n.5 (1985) (goal of FELA is to create uniformity throughout

the country), and further Congress’ intent “to provide liberal recovery for injured

workers,” Kernan v. American Dredging Co., 355 U.S. 426, 432 (1958).

       Our holding in this case directly conflicts with the holding of the South Dakota

Supreme Court in Jacobs v. Dakota, Minnesota & Eastern R.R., 806 N.W.2d 209 (S.D.

2011) (interest on FELA verdict accrues from the time of the verdict and through entry of

judgment). Railroads in the north central region and their employees who move from

state to state will face inconsistent outcomes.1 This conflict between the supreme courts


1
        Railroads that serve both Minnesota and South Dakota are: BNSF Railway; Soo
Line Railroad (a subsidiary of Canadian Pacific Railway); Rapid City, Pierre & Eastern
Railroad; and Twin Cities & Western Railroad. See Official South Dakota Rail Map,
South        Dakota       Department      of     Transportation       (Nov.       2014),
http://www.sddot.com/transportation/railroads/docs/railmap.pdf; Minnesota Freight and
                                                      (Footnote continued on next page.)
                                            C-2
of neighboring states connected by rail might present the Supreme Court with a good

opportunity to refine its unequivocal holdings in Monessen and Kaiser.

      Whether or not the high court has that opportunity or takes it, our district courts

should be aware that there is a potential safety valve in Rule 125 itself. The automatic

stay applies “unless the court orders otherwise.” As the Advisory Committee’s Comment

to Rule 125 confirms, the district court “can order immediate entry of judgment in any

case.” (Emphasis added.) It strikes me that it would be well within the sound discretion

of the district court to enter judgment immediately upon a FELA verdict, by motion of a

party2 or otherwise. This step would transform into post-judgment interest what would

otherwise be post-verdict prejudgment interest. Prompt entry of judgment, as is routine

in federal court, would promote FELA uniformity and not penalize workers for

proceeding in Minnesota district courts.

      With these observations, I respectfully concur.




(Footnote continued from previous page.)
Commercial Vehicle Operations, Minnesota Department of Transportation (Dec. 2014),
http://www.dot.state.mn.us/ofrw/maps/MNRailMap.pdf; Twin Cities & Western Railroad
Company and Affiliates, Twin Cities & Western Railroad Company (Aug. 23, 2013),
http://tcwr.net/wp-content/uploads/2013/11/TCW.MPL_.SMRR_.Map_.082313.Screen-
11-4-13.pdf.
2
       No such motion was made in this case. On January 18, 2013, Kinworthy moved to
amend the judgment entered on December 27, 2012, to allow for post-verdict
prejudgment interest. The motion was denied by order dated April 1, 2013, and a motion
for reconsideration was denied by order dated April 30, 2013.

                                           C-3
