THERESE A JAQUA V CANADIAN NATIONAL RAILROAD INC
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STATE OF MICHIGAN
COURT OF APPEALS
THERESE A. JAQUA, as personal representative
of the ESTATE OF JOHN D. JAQUA,
FOR PUBLICATION
March 6, 2007
9:10 a.m.
Plaintiff-Appellee,
v
CANADIAN NATIONAL RAILROAD, INC.,
d/b/a GRAND TRUNK WESTERN RAILROAD,
INC.,
Defendant-Appellant.
No. 268506
Wayne Circuit Court
LC No. 04-424486-NO
Official Reported Version
Before: Saad, P.J., and Cavanagh and Schuette, JJ.
SAAD, P.J.
I. Nature of the Case
The railroad employer's appeal of the trial court's denial of summary disposition on
plaintiff 's claim under the Federal Employers' Liability Act (FELA), 45 USC 51 et seq., raises a
question of the permissible scope of releases under FELA. Section 5 of FELA prohibits a
railroad from requiring employees to sign agreements that allow the railroad to escape liability
imposed under the act. But the United States Supreme Court has also ruled that § 5 does not
prevent an employer from settling a specific claim and controversy with an employee. The
narrow question here is whether § 5 permits a release of only known injuries or conditions that
exist at the time of the release, as the Court of Appeals for the Sixth Circuit has ruled, or whether
§ 5 also permits the release of known risks of future injuries or conditions, as the Court of
Appeals for the Third Circuit has ruled.
In this case, the employee released his employer from liability for asbestos exposure and
asbestosis, which was a condition he had at the time of the release, but he also released his
employer for liability for cancer, a condition he knew he was at risk of developing in the future.
The trial court relied on the Sixth Circuit's decision in Babbitt v Norfolk & W R Co, 104 F3d 89
(CA 6, 1997), and denied the railroad's claim that the lawsuit is barred by the release. We
reverse because we adopt the ruling of the Third Circuit in Wicker v Consolidated Rail Corp, 142
F3d 690 (CA 3, 1998), which offers the better reasoned result. The rationale in Wicker allows
the employer and the employee the freedom to negotiate and settle claims, but protects the
employee from releasing the employer for unknown liability that was not considered and
resolved in an informed manner. Here, the employee's doctor advised him that he was at risk of
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developing lung cancer and the employee negotiated, with the help of counsel, to settle that
known risk, as well as existing injuries. Thus, pursuant to Wicker, the employee or his estate
may not sue to recover for cancer because it was the very same risk for which the employee
received settlement proceeds. Accordingly, we reverse the trial court's denial of summary
disposition.
II. Facts
On August 9, 2004, John Jaqua filed a complaint under FELA for injuries he allegedly
sustained while working for the defendant railroad. Jaqua specifically alleged that he contracted
cancer because, during his 38 years as a railroad employee, he was exposed to asbestos and
asbestos dust. Jaqua died of lung cancer on September 15, 2004, and the personal representative
for his estate amended the complaint to assert a claim for wrongful death.1
Defendant filed a motion for summary disposition and argued that plaintiff 's claim is
barred because, on December 4, 2002, Jaqua signed an agreement that released defendant from
personal injury claims for occupational illnesses, including cancer. In response, plaintiff argued
that the agreement is only valid to the extent it released claims for illnesses Jaqua suffered at the
time he signed the agreement, which only included asbestosis, not cancer. The trial court agreed
with plaintiff and denied defendant's motion.
The release provides, in relevant part:
WHEREAS, the Undersigned alleges that the Releasees were negligent
and/or violated the Federal Employers Liability Act, among other things, in
allowing an allegedly unsafe work condition to exist that the Undersigned alleges
created an exposure or exposures to asbestos . . . or other agent. The Undersigned
asserts that such exposure caused a condition, injury, disease and/or deficiency in
the Undersigned including, but not limited to plaques, calcifications, thickening,
asbestosis, silicosis, severe and permanent injuries to the lungs, respiratory
system, nerves and/or nervous system, cancer, and any and all other conditions,
diseases or injuries existing prior to the date of this Release Agreement which are
known to the Undersigned or reasonably could have been known prior to the date
of this Release Agreement and which may further develop in the future as a result
of what now exists, arising from or as a result of the alleged exposures or which
may further develop as a result of the Undersigned's current known conditions,
which allegedly developed over time while working in the Grand Trunk Western
Railroad Incorporated's employ.
* * *
1
For ease of reference, we refer to the personal representative as "plaintiff" throughout this
opinion.
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The Undersigned declares and represents that the injuries and illnesses
which have been sustained, including mental conditions, resulting from exposure
to any substance, condition or environment or a belief that Undersigned was
exposed to any substance, condition or environment are, or may be permanent,
and that recovery therefrom is uncertain and indefinite and that they may cause or
lead to other deleterious conditions. In making this Release, it is understood and
agreed that the Undersigned relies wholly upon the Undersigned's own judgment,
belief, and knowledge of the nature, extent, effect, duration, and other possible
results of said illnesses, conditions, exposures, and liability therefore, and that this
Release is made without reliance upon any statement or representation by
Releasees or their representatives, the making of any such statements or
representations being specifically denied.
* * *
WHEREAS, the Undersigned and Releasees wish to finally compromise
all claims, demands, and liabilities which are known against each other for the
above-referenced pulmonary conditions of Undersigned involving the alleged
negligence and/or violation of the Federal Employers Liability Act of Releasees
in their alleged failure to provide a reasonably safe workplace.
* * *
For the good and valuable consideration received under this Release and
Settlement Agreement, receipt of which is hereby acknowledged, the Undersigned
releases and forever discharges Releasees from any and all claims, demands,
causes of action, obligations, damages and liabilities, arising in tort and/or under
the Federal Employers Liability Act . . . .
* * *
IT IS FURTHER UNDERSTOOD AND AGREED that the pulmonary
and/or respiratory injuries from which Undersigned allegedly suffers are of a kind
and nature that the underlying pathology and/or symptoms might worsen in the
future as the natural progression of this pathology or with normal aging, and the
Undersigned is voluntarily accepting the risk of future worsening of his
conditions and knowingly waives and releases any and all claims of the same. . . .
IT IS FURTHER UNDERSTOOD AND AGREED that this Release and
Settlement Agreement is intended by the parties to release any and all existing
claims for the injuries or conditions suffered or alleged to have been suffered as a
result of the above-referenced exposures by the Undersigned as a result of the
Undersigned's years of service with the Grand Trunk Western Railroad
Incorporated, including any aggravation of any pre-existing condition or
progression of any condition, known or which reasonably could have been known
by the Undersigned.
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Defendant contends, and we hold, that the release is enforceable as written and it bars plaintiff 's
claim for damages for Jaqua's cancer.
III. Analysis
A. Applicable Law: Federal Law Controls Under FELA
This case arises under FELA, and the validity of the release is controlled by federal law.
As this Court explained in Boyt v Grand Trunk W R, 233 Mich App 179, 183; 592 NW2d 426
(1998):
In state courts, a review of a claim arising under the FELA is to be made
in accordance with federal law. Norfolk & W R Co v Liepelt, 444 US 490, 492;
100 S Ct 755, 62 L Ed 2d 689 (1980); Blake v Consolidated Rail Corp, 176 Mich
App 506, 517; 439 NW2d 914 (1989). However, such a case is subject to state
procedural rules.[2] Gortney v Norfolk & W R Co, 216 Mich App 535, 538; 549
NW2d 612 (1996).
The parties dispute which federal circuit court decision governs this action. Specifically, the
parties question whether this Court is required to follow the Sixth Circuit's opinion in Babbitt or
whether it may follow a decision from another federal circuit. Our Supreme Court answered this
question in Abela v Gen Motors Corp, 469 Mich 603, 606; 677 NW2d 325 (2004):
Although state courts are bound by the decisions of the United States
Supreme Court construing federal law, Chesapeake & O R Co v Martin, 283 US
209, 220-221; 51 S Ct 453, 75 L Ed 983 (1931), there is no similar obligation
with respect to decisions of the lower federal courts. Winget v Grand Trunk W R
Co, 210 Mich 100, 117; 177 NW2d [sic] 273 (1920). See generally 21 CJS,
Courts, § 159, pp 195-197; 20 Am Jur 2d, Courts, § 171, pp 454-455.
In other words, "[a]lthough lower federal court decisions may be persuasive, they are not binding
on state courts." Abela, supra at 607.
Here, there are United States Supreme Court cases that address the legal issues presented
by the parties, including the scope of FELA's § 5. Accordingly, this Court is bound to follow
those rulings. However, this Court is not bound to follow a particular circuit's decision and may
choose the view it determines to be most appropriate as long as it comports with the Supreme
Court's decisions. See MacInnes v MacInnes, 260 Mich App 280, 286 n 3; 677 NW2d 889
(2004).
2
Michigan appellate courts review a trial court's decision on a motion for summary disposition
de novo. Prentis Family Foundation v Barbara Ann Karmanos Cancer Institute, 266 Mich App
39, 43; 698 NW2d 900 (2005). To reach a decision, we examine the documents submitted by the
parties to determine whether the moving party is entitled to judgment as a matter of law. Davis v
Detroit, 269 Mich App 376, 378; 711 NW2d 462 (2005).
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As set forth earlier, the release agreement states that, according to Jaqua, during his
employment from 1950 to 1988, he was exposed to asbestos and the exposure caused asbestosis
and other injuries to his lungs and respiratory system, including cancer. The document further
provides that, in exchange for a cash settlement, Jaqua released all tort and FELA claims for
diseases or illnesses that arose before the parties entered into the agreement as well as illnesses
Jaqua might foreseeably develop because of the exposure. The release specifically contemplates
that Jaqua's condition could worsen or that additional pulmonary illnesses could develop.
It is undisputed that the party attacking the validity of a FELA release has the burden to
establish that it is invalid. Callen v Pennsylvania R Co, 332 US 625, 630; 68 S Ct 296; 92 L Ed
242 (1948). Plaintiff does not contend that the release agreement is ambiguous, and the language
the parties employed shows that Jaqua unequivocally waived claims for any existing asbestosis
and cancer, as well as any claims related to the progression or worsening of his pulmonary
illnesses.
Notwithstanding the plain language of the release, plaintiff contends, and the trial court
agreed, that, pursuant to Babbitt, § 5 of FELA, 45 USC 55, prohibits the enforcement of the
agreement. 45 USC 55 provides:
Any 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: Provided, That in any action
brought against any such common carrier under or by virtue of any of the
provisions of this chapter, such common carrier may set off therein any sum it has
contributed or paid to any insurance, relief benefit, or indemnity that may have
been paid to the injured employee or the person entitled thereto on account of the
injury or death for which said action was brought.
In Wicker, supra at 696, the Third Circuit explained the purpose and history of FELA and of 45
USC 55:
In 1908, FELA "was enacted because the Congress was dissatisfied with
the common-law duty of the master to his servant." Rogers v. Missouri Pacific R.
Co., 352 U.S. 500, 507; 77 S. Ct. 443, 449; 1 L. Ed. 2d 493 (1957). Congress
sought to "ensure that the employees' suits would not be defeated by the same
devices which Congress perceived to have been used in the immediate past by the
railroads to avoid liability." Damron v. Norfolk & W. Ry. Co., 925 F. Supp. 520,
523 (N.D. Ohio, 1995). Thus, FELA was designed "to enable injured railroad
workers to overcome a number of traditional defenses to tort liability that had
previously operated to bar their actions." Lewy v. Southern Pac. Transp. Co., 799
F.2d 1281, 1287 (9th Cir. 1986). For example, the Act abolished the doctrine of
assumption of risk, applied comparative rather than contributory negligence, and
sought to prevent employers from contracting out of FELA liability. See S. Rep.
460, 60th Cong., 1st Sess. 2-3 (1908). With respect to the last of these, Congress
noted that many railroads "insist[ed] on a contract with their employees,
discharging the company from liability for personal injuries." H.R. Rep. 1386,
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60th Cong. 1st Sess. 6 (1908). Section 5 was passed specifically to remedy this
problem.
In Babbitt, supra at 91, the Sixth Circuit observed that "45 U.S.C. § 51 of FELA provides that
the purpose of the Act is to hold a negligent employer liable for injuries suffered by an
employee." The panel cited 45 USC 55, and reiterated that an employer may not contract with
an employee for the purpose of exempting itself from liability. Id. at 92. But the Babbitt court
further explained:
However, 45 U.S.C. § 55 is not without its exceptions. As Norfolk
correctly argues, the Supreme Court has held that a release of FELA claims can
have the same effect as any other release, in that it may constitute a settlement or
compromise, rather than an attempt to escape liability.
In Babbitt, the plaintiffs signed release agreements as part of the railroad's early
retirement program, and they later sued the railroad to recover for hearing loss that they claimed
resulted from exposure to excessive noise at work. Id. at 90. The agreement generally released
the railroad's liability for all claims, known or unknown, arising out of the plaintiffs'
employment. Id. at 91. In analyzing the effect of the release, the Babbitt court considered three
Supreme Court cases that involved releases and subsequent FELA claims: Callen, supra;
Philadelphia, Baltimore, & Washington R Co v Schubert, 224 US 603; 32 S Ct 589; 56 L Ed 911
(1912); and Duncan v Thompson, 315 US 1; 62 S Ct 422; 86 L Ed 575 (1942). In Callen, the
plaintiff sued for injuries he sustained in a railroad accident after he signed a general release
agreement that, in exchange for a cash payment, waived any claim for injuries he sustained in the
accident. Callen, supra at 626-627. The Callen Court upheld the validity of the release because
it was "not a device to exempt from liability but [was] a means of compromising a claimed
liability . . . ." Id. at 631. In other words, the Court recognized that 45 USC 55 is not violated by
a release that settles a "controversy" with regard to the employer's liability and the extent of that
liability for a particular accident or exposure. Id.
In Schubert, the plaintiff contributed a portion of his salary to a "relief fund" until he was
injured on the job. Schubert, supra at 606. He received benefits from the fund, but then filed a
FELA claim for damages. Id. at 608. The railroad company argued that the plaintiff 's claims
were barred because he agreed, as a member of the relief fund, that if he collected from the fund,
he would release all personal injury claims against his employer. Id. at 606-608. The Supreme
Court ruled that the release did not preclude the plaintiff 's claim for damages because the
purpose of the general release was to provide immunity to the railroad for any injury resulting in
collection from the relief fund, in direct violation of 45 USC 55. Id. at 611-612.
In Duncan, the plaintiff was injured after he fell from a locomotive and, when he
continued to suffer from his injuries, his employer paid $600 toward his living expenses in
exchange for his agreement to "endeavor, in good faith, to adjust and settle any claim "for
injuries" without resorting to litigation." Duncan, supra at 2-3. As the Babbitt court
summarized, the Supreme Court ruled that the release did not bar the plaintiff 's later FELA
claim because "[t]he money that was exchanged was earmarked for living expenses, not
settlement purposes, and the promise that was procured was given in exchange for a promise not
to sue." Babbitt, supra at 92, citing Duncan, supra at 7-8. The Babbitt court observed that,
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unlike Callen, in which the railroad and employee entered into an agreement to settle the
railroad's liability for the plaintiff 's specific injuries, Duncan and Schubert involved general
releases that "granted general immunity to the railroad, as opposed to addressing a specific
instance of disputed liability . . . ." Babbitt, supra at 92-93. The Babbitt court further explained:
Consequently, where there exists a dispute between an employer and
employee with respect to a FELA claim, the parties may release their specific
claims as part of an out-of-court settlement without contravening the Act.
However, where the release was not executed as part of a specific settlement of
FELA claims, 45 U.S.C. § 55 precludes the employer from claiming the release as
a bar to liability. Schubert, 224 U.S. at 612, 32 S. Ct. at 591-92. To be valid, a
release must reflect a bargained-for settlement of a known claim for a specific
injury, as contrasted with an attempt to extinguish potential future claims the
employee might have arising from injuries known or unknown by him. [Id. at
93.]
Because the district court in Babbitt failed to decide whether the general releases signed by the
plaintiffs as part of the retirement program were intended to resolve the plaintiffs' specific claims
of hearing loss, the Sixth Circuit remanded Babbitt for further proceedings. Id.
Clearly, the Supreme Court requires that the release be pursuant to a "controversy" with
regard to the employer's liability and the extent of that liability for a particular accident or
exposure. Callen, supra at 631. Accordingly, a release must relate to a specific claim, such as a
railroad's liability for injuries caused by asbestos exposure, rather than being a blanket release of
liability for any occupational illnesses. Also, the release must specify that it is intended to settle
the employee's claim that the employer is liable for causing the exposure or accident that led to
the injuries. However, because it is broadly worded, Babbitt appears to hold, and other courts
have interpreted Babbitt as holding, not only that the release must relate to a settlement of
liability for injuries caused by a particular accident or exposure, but that, when the employee
signs the release, he or she must be suffering from the precise injury raised in the later FELA
action. In other words, Babbitt appears to hold that a release executed as part of a settlement for
an accident or exposure cannot bar claims arising when the employee's condition worsens, or
when an additional illness develops because of the same accident or exposure, even if the
additional illness or worsened condition is explicitly contemplated by the release. However,
nothing in Callen, Duncan, or Schubert suggests that an employee cannot settle his or her claims
for injuries the parties know or have reason to know may worsen, spread, or lead to additional
medical complications, and, therefore, we believe that Babbitt's holding is overly broad.
The Third Circuit offers the better analysis—that a release is valid under § 5 if it is
executed pursuant to a settlement for a specific accident or exposure "and the scope of the
release is limited to those risks which are known to the parties at the time the release is signed."
Wicker, supra at 701. In Wicker, the plaintiffs signed releases to settle claims for personal
injuries they sustained while employed with the defendant railroad. Wicker, supra at 692.
Specifically, two of the plaintiffs sustained injuries related to asbestos exposure and three
sustained back injuries. Id. at 692-693. Each plaintiff signed release agreements that purported
to "settle all claims for all injuries past and future." Id. at 692. However, the plaintiffs later
"suffered injuries as a result of exposure to toxic chemicals" at one of the railroad's plants. Id.
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They filed complaints and alleged that the releases were unenforceable because they violated
FELA, 45 USC 55. Id. at 694. The plaintiffs argued that they did not know about injuries
related to the chemical exposure until after they signed the releases and that the releases were too
general to be enforceable. Id. at 695. In response, the railroad argued that the releases clearly
settled all past and future claims and that, regardless, each plaintiff suffered symptoms of
chemical-related injuries before signing the releases and that, therefore, they "were on notice of a
potential health problem at that time." Id.
After reviewing the history of FELA, the Wicker court considered the Supreme Court's
opinions in Callen, Duncan, and Schubert, and concluded:
The language [of Callen] is clear. Releases are not per se invalid under
FELA. Although the Court did not explain what will qualify as a "compromis[e]
[of] a claimed liability" it did say that parties may settle "[w]here controversies
exist as to whether there is liability, and if so for how much." The explicit
requirement is that a controversy must exist. [Id. at 697.]
The Wicker court noted that the plaintiffs' claims were unrelated to those that apparently
prompted the release agreements. Id. at 699. The Court also discussed the Sixth Circuit's
opinion in Babbitt and observed that it "appears to establish a broad, legal rule prohibiting the
use of general releases in cases such as this." Id. However, the Wicker court observed that, in
Babbitt, the releases were signed as part of a voluntary, early-retirement program offered to all
employees "and were not the product of negotiations settling a claim" between the employee and
the employer. Id. at 700. The court further observed:
A bright line rule like the one set forth in Babbitt, limiting the release to
those injuries known to the employee at the time the release is executed, has the
benefit of predictability. Under Babbitt, "a release must reflect a bargained-forsettlement of a known claim for a specific injury, as contrasted with an attempt to
extinguish potential future claims the employee might have arising from injuries
known or unknown by him." [Babbitt, supra] at 93. The Sixth Circuit noted that
the releases in Schubert and Duncan were void because they "granted general
immunity to the railroad as opposed to addressing a specific instance of disputed
liability." Id.
Yet, it is entirely conceivable that both employee and employer could fully
comprehend future risks and potential liabilities and, for different reasons, want
an immediate and permanent settlement. The employer may desire to quantify
and limit its future liabilities and the employee may desire an immediate
settlement rather than waiting to see if injuries develop in the future. To put it
another way, the parties may want to settle controversies about potential liability
and damages related to known risks even if there is no present manifestation of
injury. [Id. at 700-701.]
The Wicker court held that "a release does not violate § 5 provided it is executed for valid
consideration as part of a settlement, and the scope of the release is limited to those risks which
are known to the parties at the time the releases is signed." Id. at 701. In other words, "a release
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that spells out the quantity, location and duration of potential risks to which the employee has
been exposed—for example toxic exposure—allowing the employee to make a reasoned decision
whether to release the employer from liability for future injuries of specifically known risks does
not violate § 5 of FELA." Id.
We agree with and adopt the rationale of Wicker. In Oliverio v Consolidated Rail Corp,
822 NYS2d 699, 701-702 (2006), the New York Supreme Court adeptly explained why Wicker
offers the better approach:
As the court in Wicker noted . . . the evaluation of the parties' intent at the
time of the execution of the release is an essential element in the inquiry of its
enforceability.
Any intention to prevent a claim unrelated to the one
compromised would be void under [45 USC 55]. However, courts have
specifically allowed a release to compromise a specific claim or claims, and to
prevent reassertion of that claim at a later date. The adoption of the Babbitt
approach requires that the parties know of the specific injury; the adoption of the
Wicker approach requires that the parties know of the specific risk. While this
court agrees that the Babbitt approach's bright line test may be easier to apply to a
particular claim, its adoption would prevent any compromise to be made for such
damage items as "fear of cancer" or "risk of permanency" despite the fact that the
parties may intend for the compromise to specifically cover those items of
damage. To adopt the Babbitt approach requires an unrealistic view on how
parties compromise claims. And while it may appear that the approach may
enable an easier resolution of the manner in which a release is enforced, the result
may be either more complicated inquiry into the exact nature and scope of the
injury compromised, or a chilling effect on the resolution by compromise of any
claims. This is particularly true with respect to claims based upon exposure to
asbestos, where effects of the exposure may be latent for a considerable period of
time. If a new claim were permitted for each and every new manifestation of the
asbestos exposure, regardless of the extent of the parties' awareness of such risks,
there would be no incentive on the part of the railroad defendant to ever
compromise such claims. This result would not further the public policy of
encouraging settlement of claims.
For these reasons, the Wicker approach is the better approach. It permits
the enforcement of the release for not only the specific injuries already manifested
at the time of its execution, but also any risks of future injury which the parties
specifically contemplated in its execution, so long as those risks are properly
within the ambit of the claim compromised. This approach provides a realistic
view of compromises and releases, while staying true to the prohibition on
blanket relinquishments of rights under FELA.
We agree that Wicker is consistent with § 5 as well as the Supreme Court's opinions in Callen,
Schubert, and Duncan, without unnecessarily broadening or narrowing the scope of the rule.
Accordingly, and for the reasons stated in Oliverio, supra, we adopt the reasoning in Wicker
here.
B. Applying Wicker
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Under the Supreme Court cases and Wicker, the release here is a valid settlement or
compromise and cannot be construed as an attempt by the railroad to escape liability. Clearly,
Jaqua and his counsel knew that Jaqua was at risk of developing cancer, and Jaqua specifically
settled claims regarding cancer as well as any other illnesses related to his asbestos exposure.3
The release addressed a specific instance of disputed liability and specific injuries that Jaqua
suffered, or was at great risk of suffering in the future—asbestosis and lung cancer. The record
also reflects that Jaqua negotiated and settled his claims and signed a clear and unequivocal
release with the advice and assistance of counsel. Accordingly, the release is enforceable.
We also agree with defendant that, because Jaqua executed a valid release of any claim
for lung cancer, his estate may not recover damages for his asbestos exposure pursuant to Mellon
v Goodyear, 277 US 335; 48 S Ct 541; 72 L Ed 906 (1928). As the Court in Mellon explained,
"[a] settlement by the wrongdoer with the injured person, in the absence of fraud or mistake,
precludes any remedy by the personal representative based upon the same wrongful act." Id. at
344. Accordingly, plaintiff 's claim is barred. Therefore, plaintiff 's claim for damages resulting
from Jaqua's lung cancer is barred by the release and the trial court should have granted summary
disposition to defendant.
Reversed.
/s/ Henry William Saad
/s/ Mark J. Cavanagh
/s/ Bill Schuette
3
Plaintiff argues that this Court should reject Wicker and that this Court already adopted the rule
set forth in Babbitt in Stephens v CSX Transp, Inc, unpublished opinion per curiam of the Court
of Appeals, issued March 19, 2002 (Docket No. 225003). Stephens is clearly distinguishable
because the disputed release in that case specifically exempted new and distinct conditions from
the settlement of liability and a new and distinct condition arose. Here, even if cancer is
considered a new and distinct condition, it was specifically included in and covered by the
release. Accordingly, and because Stephens is unpublished, plaintiff's reliance on the opinion is
unavailing. Beyer v Verizon North Inc, 270 Mich App 424, 431; 715 NW2d 328 (2006).
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