Davis, Justice: (See footnote 1)
In this action brought under the Federal Employer's Liability Act (hereinafter referred to as the FELA), Mrs. Freda Ratliff (hereinafter referred to as Mrs. Ratliff), in her capacity as executrix of the estate of her deceased husband, Mr. Sparrell Ratliff, Jr., plaintiff below and appellant herein, asks this Court to review an award of summary judgment in favor of Norfolk Southern Railway Company (hereinafter referred to as Norfolk Southern), defendant below and appellee herein. In determining whether summary judgment was appropriate, this Court must determine whether a release executed by Sparrell Ratliff, Jr., in connection with a voluntary separation program offered by his employer, Norfolk Southern, violates 45 U.S.C. § 55 (1908) (2000 ed.), (See footnote 2) which prohibits employers
from exempting themselves from FELA liability. After a review of the parties' briefs, the record submitted on appeal, the brief submitted by the Association of American Railroads as Amicus Curiae, (See footnote 3) and having heard the oral arguments of the parties, we conclude that the circuit court erred in granting summary judgment to Norfolk Southern. Because Sparrell Ratliff, Jr.'s, release was executed in the context of a voluntary separation program, as opposed to being executed in compromise of a claimed liability, it must reflect a bargained- for settlement of a claim for mesothelioma in order to be valid under 45 U.S.C. § 55.
(Footnote added). An included Program Description provided additional detail regarding the program, and stated, inter alia, that, in order to participate in the program, an employee would be required to execute a resignation and release that is a total and absolute release of any employment rights with any Norfolk Southern Company and of any claims of any kind whatsoever arising from your employment relationship with the Company. (See footnote 8) A copy of the resignation and release document that employees would be required to execute in order to participate in the program was also included, along with an Application for Participation in Separation Program. Mr. Ratliff applied for the program and was approved. Accordingly, he executed the required resignation and release, which stated in relevant part:
I, S. RATLIFF, JR., [social security number omitted], in consideration of the sum of THIRTY-FIVE THOUSAND DOLLARS ($35,000.00), the receipt of which is hereby acknowledged, hereby resign and surrender any right to employment by Norfolk Southern Corporation, Norfolk and Western Railway Company, Southern Railway Company or any employer affiliated with or controlled by any of the aforenamed companies, for convenience referred to hereinafter collectively as the Company, and hereby release and forever discharge the Company from any claim (with the exception of vested pension rights), demand, action or cause of action, of any kind whatsoever, known or unknown, which I have or could have on account of, or in any manner arising out of or connected with, my employment by the said Company, or the termination thereof, including but not limited to any claim or right asserted under or arising out of any agreement, regulation, condition or statute affording me employment protection, protecting me from employment or covering the conditions of my employment. . . .
(Emphasis added). The release signed by Mr. Ratliff was identical to the sample release that was included in the information packet offering the voluntary separation program, with the exception that the actual release executed by Mr. Ratliff specified his name, social security number, the actual amount of the consideration he received, and the amount of taxes withheld therefrom. There is nothing in the record of this action indicating that Mr. Ratliff was represented by, or consulted with, a lawyer before signing the resignation and release.
In April 2005, nineteen years after his voluntary separation from Norfolk Southern, Mr. Ratliff was diagnosed with mesothelioma. (See footnote 9) He died in July 2005. The instant FELA action was filed by Mrs. Ratliff, in her capacity as executrix of Mr. Ratliff's estate, in or around October 2005. (See footnote 10) Norfolk Southern filed its answer denying liability, and, after a period of discovery, filed a motion for summary judgment asserting that the action was barred by virtue of the release that had been executed by Mr. Ratliff in connection with the voluntary separation program. Mrs. Ratliff subsequently filed her own motion for summary judgment asserting that, pursuant to the provisions of 45 U.S.C. § 55, (See footnote 11) the release was void. Following a hearing, the circuit court indicated that it was inclined to grant summary judgment in favor of Norfolk Southern, but that it had been
persuaded by counsel for plaintiff that a jury trial on the factual issue of intent would serve the interests of judicial economy in that a resolution of that factual issue might narrow the issues to be presented in any appeal of the judgment in this case. Therefore, the court determined to conduct a jury trial . . . solely on the subject of the intent of the parties in entering into the Release, with the parties to conduct any additional necessary discovery on the subject of the Release before trial.
A pre-trial conference for the intent trial was scheduled for July 20, 2007. However, on that date, at the parties' request, the circuit court instead considered their renewed motions for summary judgment. The circuit court observed that Mrs. Ratliff presented no new or additional evidence to support [her] argument that the release was prohibited by 45 U.S.C. § 55, and observed further that Mrs. Ratliff had conducted discovery in anticipation of trial and had not suggested that she required additional time for further discovery. The circuit court found that [t]he limiting words of the release are very specific, and that Mrs. Ratliff had presented no evidence that the release was not intended to comprehend the alleged occupational injury alleged by the plaintiff. Additionally, the circuit court observed that there was no evidence of fraud, the consideration paid was sufficient to support the release, there was no mutual mistake of fact, and the risk of mesothelioma was known, at least to Norfolk Southern, at the time the release was executed. Finally, the circuit court observed that Mrs. Ratliff
has no direct evidence bearing on the issue of Mr. Ratliff's intent, since Mr. Ratliff died without testifying about the Release, since the plaintiff filed an affidavit saying that she and Mr. Ratliff never discussed the meaning and effect of the Release, and since the plaintiff has pointed to no witness or other direct evidence showing what Mr. Ratliff believed about the release beyond the text of the Release itself.
Accordingly, by order entered September 19, 2007, the circuit court granted summary
judgment in favor of Norfolk Southern. This appeal followed. (See footnote 12)
'[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963). Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d 247 (1992).
Syl. pt. 2, Painter, 192 W. Va. 189, 451 S.E.2d 755. Finally, we note that [t]he circuit
court's function at the summary judgment stage is not to weigh the evidence and determine
the truth of the matter, but is to determine whether there is a genuine issue for trial. Syl. pt.
3, Id. With due consideration for the foregoing standards, we proceed to our discussion of
the issues herein raised.
we are constrained to follow federal case law interpreting
FELA. Federal and state courts have concurrent jurisdiction of
claims brought under FELA. 45 U.S.C. § 56 (1948) (The
jurisdiction of the courts of the United States under this chapter
shall be concurrent with that of the courts of the several States. Id., in part.) In FELA claims, although a state court may use
procedural rules applicable to civil actions in the state court
unless otherwise directed by the act, . . . substantive issues
concerning a claim under the [FELA] are determined by the
provisions of the act and interpretative decisions of federal
courts construing the [FELA][.] Chapman v. Union Pacific
R.R., 237 Neb. 617, 467 N.W.2d 388, 393 (1991) (citing, e.g.,
Monessen Southwestern R. Co. v. Morgan, 486 U.S. 330, 108
S. Ct. 1837, 100 L. Ed. 2d 349 (1988); St. Louis Southwestern
R. Co. v. Dickerson, 470 U.S. 409, 105 S. Ct. 1347, 84 L. Ed. 2d
303 (1985); Chesapeake & Ohio R. Co. v. Kuhn, 284 U.S. 44,
52 S. Ct. 45, 76 L. Ed. 157 (1931)). Indeed, only if federal law
controls can FELA be given the uniform application
throughout the country essential to effectuate its purposes. Dice v. Akron, Canton & Youngstown R. Co., 342 U.S. 359, 361,
72 S. Ct. 312, 314, 96 L. Ed. 398 (1952). . . . Thus, 'state
courts are bound by interpretation of the . . . [FELA] given by
the federal courts.' Chapman, 467 N.W.2d at 393 (internal
McGraw v. Norfolk & Western Ry. Co., 201 W. Va. 675, 679, 500 S.E.2d 300, 304 (1997).
We begin our analysis with a review of the FELA provision that prohibits a common carrier from exempting itself from liability imposed by FELA. In this regard, § 5 of the FELA states:
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.
45 U.S.C. § 55 (emphasis added).
Though the foregoing provision is broadly stated to exclude any device attempting to exempt a common carrier from any liability created under the FELA, the Supreme Court of the United States has recognized that there are circumstances under which a release would not violate § 5. (See footnote 13) See Callen v Pennsylvania R.R. Co., 332 U.S. 625, 68 S. Ct. 296, 92 L. Ed. 242 (1948).
In Callen, a railway brakeman allegedly sustained a severe and permanent back injury when he jumped from a railway car in an attempt to avoid a more serious injury. The brakeman subsequently brought a FELA action. One of the defenses asserted by his employer, Pennsylvania Railroad Company, was that he had executed a general release. The evidence presented established that the brakeman had received consideration of $250 in exchange for
a general release of all claims and demands which I have or can or may have against the said Pennsylvania Railroad Company for or by reason of personal injuries sustained by me at the time and place involved in the suit. It also released claims for loss of time and expense, and recited that the payment was in compromise and not an admission of liability, that plaintiff read and understood the agreement and that the sum of money stated therein is all that he was to receive.
Callen, 332 U.S. at 626-27, 68 S. Ct. at 297, 92 L. Ed. 242. Following a verdict in favor of the brakeman in the amount of $24,990.00, Pennsylvania Railroad appealed to the Third Circuit. The Court of Appeals reversed the trial court, and remanded the case for a new trial based upon its finding that the trial court had incorrectly instructed the jury and, in so doing, had withdrawn from the jury the question of the validity of the release. On subsequent appeal to the United States Supreme Court, the Third Circuit's ruling was affirmed. Of relevance to the case at bar, the Supreme Court noted that the brakeman contended that the release violated 45 U.S.C. § 5 of the FELA insofar as the release represented an attempt by Pennsylvania Railroad to exempt itself from a liability created by the FELA. The Supreme Court observed that, because the case was being remanded, there would be an opportunity to resolve this issue at trial. Although the Supreme Court did not engage in a detailed analysis of 45 U.S.C. § 55, the Court commented that
[i]t is obvious that a release is not a device to exempt from
liability but is a means of compromising a claimed liability and
to that extent recognizing its possibility. Where controversies
exist as to whether there is liability, and if so for how much,
Congress has not said that parties may not settle their claims without litigation.
332 U.S. at 631, 68 S. Ct. at 298-99, 92 L. Ed. 242. While the United States Supreme Court
has, subsequent to Callen, addressed 45 U.S.C. § 55 in other contexts, (See footnote 14) it has not
conclusively settled the manner in which this section may properly be applied. (See footnote 15)
Two federal circuit courts of appeal have, however, addressed the proper scope and application of § 5 of the FELA in light of the Supreme Court's holding in Callen. (See footnote 16) TheSixth Circuit addressed this issue in Babbitt v. Norfolk & Western Railway Co., 104 F.3d 89 (6th Cir. 1997); and the Third Circuit case of Wicker v. Consolidated Rail Corp., 142 F.3d
690 (3d Cir. 1998), similarly explored the parameters of § 5 of the FELA. (See footnote 17)
Babbit involved several former employees of Norfolk & Western Railway Company (hereinafter referred to as N &W) who, similar to Mr. Ratliff, signed a general release as part of a voluntary separation program. Subsequent thereto, the employees sued N&W under the FELA seeking damages for hearing loss. N&W defended on the basis of the release the employees had signed at the time of their voluntary separation. In determining whether the releases violated § 5 of the FELA, the Sixth Circuit observed that it is clear that the purpose of [the] FELA, as stated in 45 U.S.C. §§ 51 and 55, is to require negligent railroads to assume liability for injuries to employees in the course of their employment. Babbitt, 104 F.3d at 91 (citations omitted). The court went on to note, however, that a release may constitute a settlement or compromise, rather than an attempt to escape liability in which case such a release would not run afoul of the FELA. Babbitt, 104 F.3d at 92 (citing Callen, 332 U.S. 625, 68 S. Ct. 296, 92 L. Ed. 242).
The Babbitt court reviewed the decision in Callen, and distinguished that case from two earlier opinions by the Supreme Court of the United States: Philadelphia, Baltimore, & Washington Railroad Co. v. Schubert, 224 U.S. 603, 32 S. Ct. 589, 56 L. Ed. 911 (1912), and Duncan v. Thompson, 315 U.S. 1, 62 S. Ct. 422, 86 L.Ed. 575 (1942). (See footnote 18) The Babbitt court then reasoned that, unlike Schubert and Duncan, Callen involved a contract that settled an actual controversy. 104 F.3d at 92. The court explained that
[i]n contrast [to Callen,] Schubert and Duncan did not involve express agreements to settle claims for specific injuries, but instead centered around a general release. Because the releases in Schubert and Duncan had granted general immunity to the railroad, as opposed to addressing a specific instance of disputed liability, they were void.
Babbitt, 104 F.3d at 92-93. The Babbitt court then reasoned that,
[i]n light of this case precedent, it is clear that FELA is
not offended when there is a compromise of a claim of liability
that settles a specific injury sustained by an employee. Schubert, 224 U.S. at 612, 32 S. Ct. at 591-92; Duncan, 315 U.S. at 7, 62 S Ct. at 424 (stating that a bona fide compromise and settlement of claims arising under the act passes muster); Boyd v. Grand Trunk Western R. Co., 338 U.S. 263, 70 S. Ct. 26, 94 L. Ed. 55 (1949) (noting that a full compromise enabling the parties to settle their dispute without litigation does not contravene FELA); South Buffalo Ry. Co. v. Ahern, 344 U.S. 367, 73 S. Ct. 340, 97 L.Ed. 395 (1953) (stating that full and fair compromises of FELA claims do not clash with the policy of the Act).
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. . . . 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.
104 F.3d at, 93 (emphasis added) (internal citation omitted). Because the lower court had
not analyzed whether the releases at issue had been executed by the Babbitt plaintiffs in
settlement of their specific hearing loss claims, the Sixth Circuit reversed and remanded the
case for such a determination. See also Damron v. Norfolk & Western Ry. Co., 925 F. Supp
520, 526 (N.D. OH 1995) (finding release executed as part of voluntary separation program
was void under 45 U.S.C. § 55 due to absence of compromise of claimed liability as required
by Callen, and commenting [t]his court has difficulty fathoming how a release obtained
under such circumstances could be construed as a compromise.). Cf. Jaqua v. Canadian
Nat'l R.R., 274 Mich. App. 540, 551, 734 N.W.2d 228, 234 (2007) (observing that [c]learly
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. . . .
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. . . . (internal citation omitted)).
The Third Circuit case of Wicker v. Consolidated Rail Corp., 142 F.3d 690, on the other hand, involved five former employees who filed FELA actions against their former employer claiming injury resulting from their exposure to toxic chemicals. Each of the employees had previously executed a general release in the course of settling an unrelated FELA claim. (See footnote 19) While the releases were not identical, each appeared to settle all claims for all injuries past and future. Wicker, 142 F.3d at 692. Additionally, each plaintiff negotiated his release in the context of terminating, or already having terminated, his employment with Conrail. Id. at 694. In determining whether the releases were void under § 5 of the FELA, the Wicker court observed that
[t]o be valid under FELA, a release must at least have
been executed as part of a negotiation settling a dispute between
the employee and the employer. Schubert[ (See footnote 20) ] and Duncan[ (See footnote 21) ] hold that a release of FELA claims given as a condition of employment, or signed without negotiation, is void under § 5. As noted, the holding in Babbitt was based in part on the fact that the releases formed part of a voluntary separation program, and were not the product of negotiations settling a claim. See also Damron v. Norfolk & Western Railway Co., 925 F. Supp. 520, 525 (N.D. Ohio 1995).
142 F.3d at 700 (footnotes and emphasis added). The Wicker court declined to apply the Babbitt test, commenting that
[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-for-settlement of a known claim for a specific injury, and contrasted with an attempt to extinguish potential future claims the employee might have arising from injuries known or unknown by him. 104 F.3d at 93. . . .
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. 142 F.3d at 700-01.
Accordingly, the Wicker court, applying Callen, 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 release is signed. Claims relating to unknown risks do not constitute controversies, and may not be waived under § 5 of FELA. See Callen, 332 U.S. at 631, 68 S. Ct. at 298-99. For this reason, a release 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.
142 F.3d at 701. The Wicker court went on to explain that,
[t]o the extent that a release chronicles the scope and duration of the known risks, it would supply strong evidence in support of the release defense. But we are wary of making the validity of the release turn on the writing alone because of the ease in writing detailed boiler plate agreements; draft releases might well include an extensive catalog of every chemical and hazard known to railroad employment. For this reason, we think the written release should not be conclusive. We recognize that what is involved is a fact-intensive process, but trial courts are competent to make these kinds of determinations. While the elusiveness of any such determination might counsel in favor of a bright-line rule such as the Sixth Circuit adopted in Babbitt, we decline to adopt one here.
Instead, we conclude that a release may be strong, but not conclusive, evidence of the parties' intent. Where a specific known risk or malady is not mentioned in the release, it would seem difficult for the employer to show it was known to the employee and that he or she intended to release liability for it. Furthermore, where a release merely details a laundry list of diseases or hazards, the employee may attack that release as boiler plate, not reflecting his or her intent. We recognize that this is a different (and more difficult) standard for railroad employers than is typical in non-FELA situations, but given the Supreme Court's pro-employee construction of the FELA, see Kernan v. American Dredging Co., 355 U.S. 426, 432, 78 S.Ct. 394, 398, 2 L.Ed.2d 382 (1958) (it is clear that the general congressional intent was to provide liberal recovery for injured workers); Boyd, 338 U.S. at 265, 70 S. Ct. at 27 (Congress wanted Section 5 to have the full effect that its comprehensive phraseology implies.) (internal quotation omitted), we adopt it.
Id. Applying this standard to the five cases before it, the Wicker court observed that there was no dispute that all of the agreements were reached during settlement negotiations, and that the plaintiffs were all represented by counsel. 142 F.3d at 701 (emphasis added). However, the releases failed to demonstrate that the parties understood, let alone addressed or discussed, the scope of the claims being waived, and therefore did not show that the employees knew of the actual risks to which they were exposed and from which the employer was being released. Id. In the absence of any evidence that the plaintiffs were aware of the potential health risks to which [they] had been exposed, . . . they could not have properly waived these claims. Id. at 702. For this reason, the Wicker court concluded that all of the releases violated § 5 of the FELA.
Subsequent cases that have analyzed the Babbitt and Wicker decisions appear to have concluded that Babbitt and Wicker each set out a general test to be applied under any circumstances in which a court is asked to evaluate the validity of a release under § 5 of the FELA. See, e.g., Jaqua v. Canadian Nat'l R.R., Inc., 274 Mich. App. 540, 734 N.W.2d 228 (2007); Illinois Cent. R.R. Co. v. Acuff, 950 So. 2d 947 (Miss. 2006); Sinclair v. Burlington
N. & Santa Fe Ry. Co., 347 Mont. 395, 200 P.3d 46 (2008); Oliverio v. Consol. Rail Corp., 14 Misc. 3d 219, 822 N.Y.S.2d 699 (N.Y. Sup. Ct. 2006); Aswad v. Norfolk S. Ry. Co., No. 04-2536, 2006 WL 1063297 (Va. Cir. Ct 2006). Because the two tests are not in accord, these courts have indicated a need to select between them. We disagree with this conclusion.
A careful review of Babbitt and Wicker demonstrates a key difference between the two cases. Babbitt involved employees who signed a general release in connection with a voluntary separation (or early retirement) program, and who were not engaged in settling any specific FELA claims with their employer. Notably, Babbitt found that the facts before it were distinguishable from Callen and applied other Supreme Court precedent. Wicker, on the other hand, dealt with employees who had executed general releases in the course of settling FELA claims, and represents an extension of Callen. Thus, we perceive that the Babbit and Wicker cases actually set out different standards to be applied in different circumstances. The rationale for such a distinction lies with the posture of the employee in executing a release.
A Wicker-type employee is involved in negotiating a FELA claim and, therefore, meets the requirement of Callen that a controversy exist. Under this circumstance, a release does not violate § 5 of the FELA so long as the risk released was one known to the parties and was a risk the employee intended to release. A Babbitt-type employee, on the other hand, is not negotiating the settlement of a claim. A Babbitt employee has merely agreed to a voluntary end to his or her employment. Unlike an employee who is negotiating a FELA claim, an employee who is participating in a voluntary separation program is not engaged in a controversy as to liability as contemplated by the Supreme Court in Callen. As one court has observed, an employee who has signed a release in connection with a voluntary separation program might not have been alert to the reality that he was in an adversarial situation with the attendant need for heightened care. Aswad v. Norfolk Southern Ry. Co., No. 04-2536, 2006 WL 1063297, at *18. Accordingly, a heightened standard is required when scrutinizing a release that is executed outside the context of a controversy.
We believe that imposing a heightened standard upon a release signed in the context of a voluntary separation program, as was done in Babbitt, is in accord with the remedial purposes of the FELA.
In enacting FELA, it was Congress' intention that it be a broad, remedial statute and, as such, should be given a liberal construction by courts. Ackley v. Chicago and North Western Transp. Co., 820 F.2d 263, 266 (8th Cir.1987) (citing Urie v. Thompson, 337 U.S. 163, 180, 69 S. Ct. 1018, 1029, 93 L. Ed. 1282 (1949)). See Gardner v. CSX Transportation, Inc., 201 W. Va. [490, 498], 498 S.E.2d 473, 481 (1997).
McGraw v. Norfolk & Western Ry. Co., 201 W. Va. 675, 679, 500 S.E.2d 300, 304. (See footnote 22) Such a heightened standard would also afford employees greater protection of their FELA rights. In this regard, one court has opined that
[a] reading of 45 U.S.C. § 55 indicates that Congress intended to remove the ability of employees to sell off their FELA rights in exchange for short term gains as well as the ability of employers to pressure or defraud their employees into signing away those same rights.
Brophy v. Cincinnati, New Orleans, & Texas Pac. Ry. Co., 855 F. Supp. 213, 216 (S.D. Ohio
1994) (footnote omitted). Accordingly, we hold that, where a release has not been executed
as part of a specific settlement of a claim brought under the Federal Employer's Liability Act,
45 U.S.C. § 51, et seq., but instead was executed in connection with a voluntary separation
program, section 5 of the Act, which is codified at 45 U.S.C. § 55 (1908) (2000 ed.),
precludes an employer from claiming that the release is a bar to liability under the Act. To
be valid under section 5 of the Federal Employer's Liability Act, a release executed in
connection with a voluntary separation program must reflect a bargained-for settlement of
a known claim for a specific injury. (See footnote 23)
Turning to the instant case, in granting summary judgment to Norfolk Southern, the circuit court mistakenly placed this case within the Wicker category. However, an employee, such as Mr. Ratliff, who has executed a general release in the context of
participating in a voluntary separation program, plainly falls within the Babbitt category of cases. Therefore, in order for the release executed by Mr. Ratliff to be a valid bar to his FELA cause of action, there must be evidence that the release was executed as part of a settlement for the specific injury now in controversy, namely mesothelioma. In the absence of such evidence, the release is void pursuant to § 5 of the FELA insofar as it pertains to Mr. Ratliff's mesothelioma claims.