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Schmidt v. Burlington Northern and Santa Railway Co.

May 18, 2010

JOHN SCHMIDT, PLAINTIFF-APPELLANT,
v.
BURLINGTON NORTHERN AND SANTA RAILWAY COMPANY, WESTERN FRUIT EXPRESS, INC., A DELAWARE CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding. D.C. No. 06cv193-DWM FE.

The opinion of the court was delivered by: Burns, District Judge

FOR PUBLICATION

OPINION

Argued and Submitted October 15, 2009 -- Seattle, Washington

Before: Johnnie B. Rawlinson and Consuelo M. Callahan, Circuit Judges, and Larry A. Burns,*fn1 District Judge.

Opinion by Judge Burns; Concurrence by Judge Callahan

OPINION

John Schmidt appeals the district court's grant of summary judgment in favor of Defendant Burlington Northern and Santa Fe Railway Company (BNSF) on his negligent injury claim under the Federal Employers Liability Act (FELA), 45 U.S.C. §§ 51 et seq. The district court found Schmidt did not present adequate evidence to show he was employed by BNSF. We disagree, and conclude Schmidt's evidence raises a triable issue of fact as to whether BNSF was his employer.

Background

BNSF is a major railway company and is engaged in interstate commerce. Schmidt was originally hired in 1975 by Western Fruit Express (WFE), a wholly-owned subsidiary of BNSF. WFE does not transport passengers or goods but provides, maintains, and repairs refrigerated cars and trailers for use by BNSF and other railroad lines. WFE and BNSF maintain joint facilities at Hillyard, in Spokane, Washington.

Schmidt was employed by either BNSF or WFE or both intermittently from 1975 through 1999, when he was furloughed. He was recalled to work in 2003, but BNSF's medical officer determined he was not fit to return to duty because a medical exam uncovered he had suffered a severe neck injury. Schmidt maintains his neck injury resulted from welding assignments he performed from 1992 through 1999 in the car shop in Spokane, and blames the injury on his supervisors' negligence. According to Schmidt, he worked almost continuously on projects that required hours of welding underneath railroad cars while wearing a welding hood and hard hat.

Schmidt offered the following evidence*fn2 in support of his contention that BNSF, and not WFE, was his employer during the relevant time period:

* Schmidt applied in 1975 at a Burlington Northern office to work for Burlington Northern.

* The official who first hired him in 1975 told him he was a Burlington Northern employee.

* Some of Schmidt's co-workers in the welding shop thought they worked for BNSF.

* Signage on the premises and railroad cars named BNSF, or both BNSF and WFE.

* There were two railroad car shops on the premises where Schmidt worked, one marked with a sign bearing BNSF's name only and the other bearing BNSF's ...


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