Madison - St. Clair Record

Tuesday, February 18, 2020

Steel worker's estate making FELA claims against BNSF and US Steel

Federal Court

By The Madison County Record | Dec 20, 2019

Drippsother
Dripps and Varadachari

BENTON – Mounting a rail car turns a steel mill employee into an employee of both the mill and the owner of the car, lawyers argue in a wrongful death suit. 

They seek damages for the estate of US Steel employee Tyler Dagon not only from US Steel but also from BNSF Railroad. 

BNSF had no track, engine, or employee at the Granite City mill when Dagon died.  

Roy Dripps of Maryville filed the suit in Madison County in March, under the Federal Employer Liability Act. 

Congress passed it in 1908, to reduce deaths and injuries among railroad workers. 

It precludes federal jurisdiction if a plaintiff chooses state court. 

Dripps asserted in the complaint that although US Steel nominally employed Dagon, he was an employee of BNSF for purposes of the Act. 

He wrote that the railroad owned the car Dagon boarded or attempted to board. 

“BNSF’s rail cars were being handled by the United States Steel Corporation’s crews to further tasks of BNSF’s enterprise,” Dripps wrote. 

He wrote that the railroad had the right to control Dagon’s physical conduct, and that the railroad had a significant supervisory role. 

He filed a count against each defendant under the Act, and two common law counts against the railroad.  

In April, US Steel and BNSF jointly removed the suit to district court. 

US Steel counsel Bharat Varadachari of St. Louis moved to dismiss it, arguing that US Steel wasn’t subject to the Act since it’s not a common carrier. 

He wrote that the appellate court specifically held that rail operations at the mill didn’t constitute operations of a common carrier.

BNSF counsel Sean Sullivan of Chicago moved for summary judgment against claims under the Act. 

He denied Dagon was an employee, borrowed servant, dual servant, or subservant. 

He separately asserted as an affirmative defense that Dagon carelessly attempted to mount or dismount moving equipment. 

In May, the estate moved to remand the suit to Madison County. 

In September, Senior District Judge Phil Gilbert ordered the estate to supplement the motion by Nov. 15. 

Dripps associate Michael Blotevogel filed a supplement with 21 exhibits, and Gilbert sealed it all. 

In December, defendants responded on the public docket. 

Sullivan wrote for the railroad that neither crafty wording nor frivolous invocation of the Act bars removal. 

He wrote that the railroad had no right to control Dagon’s activities and performed no supervisory role; that it had no right to control any operations on the premises and that the railroad’s crews interchanged trains with Terminal Railroad Association at a location off site. 

He wrote that US Steel trained Dagon and paid his wages and benefits. 

“US Steel, and not BNSF, imposed disciplinary action arising out of the incident, including termination of the US Steel shift manager and suspension of the US Steel plant manager, primary operations manager and safety manager,” Sullivan wrote. 

“No principle of law allows a US Steel plant rail employee to claim employee status with a railroad that never entered the plant or engaged with US Steel employees.” 

Varadachari wrote for US Steel that evidence established the claims under the Act were without factual or legal merit. 

He wrote that Blotevogel claimed in the supplement that U. S. Steel was a common carrier through its wholly owned subsidiary Transtar. 

“Plaintiff cites to no evidence that shows U. S. Steel had any duty to manage and operate Transtar,” 

Gilbert has set trial in October.

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U.S. District Court for the Southern District of Illinois

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