Jermaine Thomas v. Iron Horse Terminals, L.L.C.

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-23-00203-CV
________________

JERMAINE THOMAS, Appellant

V.

IRON HORSE TERMINALS, L.L.C., Appellees
________________________________________________________________________

On Appeal from the 172nd District Court
Jefferson County, Texas
Trial Cause No. E-208891
________________________________________________________________________

MEMORANDUM OPINION

Appellant Jermaine Thomas (“Thomas”) appeals from an order granting a

motion for summary judgment in favor of Iron Horse Terminals, L.L.C. (“IHT”).

Thomas contends that the trial court erred in granting the motion for summary

judgment because IHT is a common carrier under the Federal Employers’ Liability

Act (“FELA”), and that Thomas’s election of workers’ compensation benefits does

not bar his FELA claim. For the reasons discussed below, we affirm the trial court’s

judgment.

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Background

On October 20, 2020, Thomas, while working as a train conductor, was

injured while in the course and scope of his employment with IHT. Thomas and two

coworkers, an engineer and a switchman/brakeman, were preparing to move rail cars

to an adjacent track, when Thomas was injured when rail cars collided on the track.

As a result of the collision, Thomas was knocked back and landed on the rail tracks

as the rail car moved towards him. The rail cars rolled over Thomas causing a broken

pelvis, lower spine fractures, fractured ribs, and abrasions.

One year later, Thomas sued his employer, IHT. In his petition, Thomas

sought all rights and remedies under FELA for his injuries. Thomas alleged that

FELA applied because IHT engaged in interstate commerce.

IHT generally denied the allegations in Thomas’s original petition and

specifically denied that FELA applied because, at the time of his injury, IHT was

not a common carrier operating a railroad engaged in interstate commerce and not

governed under the provisions of FELA. IHT stated that Thomas was barred from

seeking remedies under FELA because his exclusive remedy was workers’

compensation for his work-related injury. See Tex. Lab. Code Ann. § 408.001

(“Recovery of workers’ compensation benefits is the exclusive remedy of an

employee covered by workers’ compensation insurance coverage [] against an

employer [] for the death or work-related injury sustained by the employee.”).

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In October 2022, IHT filed its Motion for Summary Judgment. In the Motion,

IHT argued that it is a subscriber to Texas Workers’ Compensation benefits and that

Thomas was notified of IHT’s subscription when hired. IHT argued that his injury

is covered under its workers’ compensation insurance policy which, is Thomas’s

only remedy.

IHT further argued that even if Thomas is not estopped from recovering under

FELA, Thomas’s FELA claim would fail because IHT is not a common carrier under

the statute. IHT argued that it was a drop off and pick up facility and that its contracts

with Burlington Northern Santa Fe and Union Pacific Railway Company

(collectively referred to as “railway companies”) allowed the railway companies to

drop and pick up on designated tracks. IHT contracted with ExxonMobil for storage

and shipping services, and ExxonMobil would also deliver railcars to IHT. IHT

employees would sort, switch, and store railcars for both ExxonMobil and railway

companies, but IHT employees never transported railcars beyond the boundaries of

the IHT facility. IHT argued that it has never held itself out to the public as a common

carrier, did not have published rates, and did not serve as a link between railway

companies.

IHT attached as exhibits to the Motion for Summary Judgment: Plaintiff’s

Original Petition, Texas Mutual Workers’ Compensation Insurance Policy in effect

at the time of Thomas’s injury, IHT Workers’ Compensation Notice, and an

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Affidavit of Cody Birdwell dated September 10, 2022. In Birdwell’s affidavit, he

stated that he was the General Manager for IHT, and that in October 2020, IHT

offered rail car storage and switching services at its Beaumont facility. Birdwell

further stated that railway companies used IHT storage tracks as railcar drop off and

pickup, and once delivered, IHT employees would sort, switch, and store the rail

cars within the IHT facility. He explained that IHT employees did not move rail cars

beyond the IHT facility, nor did IHT link two common carriers or contract with any

railroad to perform that railroad’s common carrier functions. IHT contracted with

the railway companies separately for drop off and pick up at designated IHT tracks,

and with ExxonMobil for railcar storage and switching services. Birdwell further

stated that it did not hold itself out as a common carrier; at the time of the accident,

IHT did not transport persons or property beyond the IHT facility; and IHT did not

have published rates for the public at large to contract under.

Thomas responded to IHT’s Motion for Summary Judgment and argued that

IHT has continuously acted as a common carrier and is subject to liability under

FELA. According to Thomas, IHT maintained more than thirty-five miles of railroad

tracks inside their facility that were connected to interstate main lines. These tracks

allowed railway companies to have ingress and egress capabilities to IHT. Thomas

stated that IHT acts as a middleman between the railway companies and

ExxonMobil, the ultimate destination of the railcars, despite railway companies

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having the ability to take their railcars directly into the ExxonMobil facility. Thomas

argued that IHT provided services including material handling, modular construction

rail logistics support, pipeline construction materials by rail, laydown, dry bulk,

transload, and liquid transload. Railway companies would bring materials to IHT

that would be taken to other locations. Thomas argued that IHT had contracts

directly with railway companies that are both considered to be common carriers.

Thomas further argued that IHT provides through a third party, maintenance services

and inspections for Federal Railroad Administration (“FRA”) compliance, and that

through the FRA, IHT is designated as a railroad. Finally, although the railway

companies did not pay IHT for their services in 2020, IHT later contracted with the

railway companies for renumeration.

Thomas argued that IHT is a common carrier under FELA when considering

the Lone Star factors. See Lone Star Steel Co. v. McGee, 380 F.2d 640, 647 (5th Cir.

1967). Thomas argued that IHT performed rail services through the services they

provided including storage and switching services, operating a three-man crew, and

providing railcar maintenance and inspections. Thomas argued that IHT performed

rail services as part of the total rail service contracted for by a member of the public.

According to Thomas, the services that IHT contracted to provide with the railway

companies, are services that another railroad obligated itself to perform. Thomas

argued that IHT is the link between the railway companies and ExxonMobil, and

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that IHT’s contract with ExxonMobil to provide rail services is the performance of

rail service that is “part of the total rail service contracted for by a member of the

public[]” considered in Lone Star. Id. Thomas argued that it is a material issue of

fact if IHT’s performance is part of the total rail service contracted for by a member

of the public.

Thomas further argued although IHT confirmed that the railway companies

did not pay for IHT’s services in 2020, the railway companies do contract with IHT

for renumeration today. According to Thomas, a material issue of fact existed

regarding renumeration between IHT and the railway companies. Thomas stated that

IHT’s operations are more extensive than those of an in-plant facility, and more

appropriately should be considered a linking carrier or mixed-function carrier. IHT

should be considered a linking carrier since it has a contractual relationship with the

linking entity and the common carrier, and as a rail entity linking two or more

common carriers. Thomas argued that IHT could also be considered a mixed-

function carrier because IHT was part of the common carrier system of the railway

companies by providing rail service to the public and acting as an intermediary.

Thomas attached as exhibits a portion of the deposition transcript of Willie

Harris, a portion of the deposition transcript of Cody Birdwell, a portion of the

deposition transcript of Plaintiff Jermaine Thomas, Plaintiff’s Original Petition,

photos from IHT’s website dated January 18, 2023, photos from IHT’s website dated

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September 8, 2022, and photos from a search on the Federal Railroad

Administration’s website regarding IHT.

IHT replied to Thomas’s opposition to its motion for summary judgment and

argued IHT was still entitled to summary judgment because Thomas failed to address

IHT’s argument that Thomas’s election of workers’ compensation benefits bars his

FELA claim regardless of IHT’s classification, and that Thomas failed to meet his

burden of demonstrating that IHT was a common carrier as of the date of his injury.

IHT attached as exhibits an affidavit by Cody Birdwell dated September 10, 2022,

and the complete deposition transcript of Cody Birdwell.

A hearing on IHT’s Motion for Summary Judgment was held on March 2,

2023. At the hearing, IHT argued that IHT is not a common carrier and subject to

FELA because IHT does not hold itself out to the public as a railroad that engages

in interstate commerce, the railway companies do not have an ownership interest in

IHT, IHT did not receive any money from the railway companies for the services at

the IHT facility, IHT is not an intermediary connecting two rail carriers, and IHT

did not engage in interstate commerce. IHT then provided the trial court with

examples of situations similar to those in this case, where the trial court held that the

entity was not a railroad and not a FELA employer.

In response, Thomas argued that IHT is a common carrier because courts have

held that terminal facilities were an integral part of the railroad line, and its services

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were public in nature. According to Thomas, IHT did not only perform switching

services, but also received and rearranged the railcars at the facility. Thomas argued

that IHT is a linking entity, and a business used to facilitate rail services of its

customers.

That same day, the trial court signed an order granting IHT’s Motion for

Summary Judgment and dismissing Thomas’s claims and causes of action against

IHT. This appeal followed challenging the trial court’s order.

Standard of Review

We review a summary judgment de novo. Shell Oil Co. v. Writt, 464 S.W.3d

650, 654 (Tex. 2015). If the trial court’s order granting summary judgment does not

specify the basis for the ruling, we must affirm the trial court’s judgment on any

meritorious theory advanced by the movant in the motion for summary judgment.

W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). In reviewing a summary

judgment, we consider the evidence in the light most favorable to the non-movant

and resolve any doubt in the non-movant’s favor. Ford Motor Co. v. Ridgway, 135

S.W.3d 598, 601 (Tex. 2004); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-

49 (Tex. 1985).

Analysis

The movant on a traditional motion for summary judgment has the burden of

showing that no genuine issue of material fact exists and that it is entitled to

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judgment as a matter of law. Hillis v. McCall, 602 S.W.3d 436, 439-40 (Tex. 2020);

Tex. R. Civ. P. 166a(c). If the movant satisfies this initial burden on the issues

expressly presented in the motion, then the burden shifts to the non-movant to

present to the trial court any issues or evidence that would preclude a summary

judgment. See City of Hous. v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79

(Tex. 1979). “Issues not expressly presented to the trial court by written motion,

answer or other response shall not be considered on appeal as grounds for reversal.”

Tex. R. Civ. P. 166a(c). Consequently, the non-movant must expressly present in

writing any reasons the non-movant contends avoids the movant’s entitlement to

summary judgment. Clear Creek Basin Auth., 589 S.W.2d at 677-78.

In his first issue, Thomas argues that IHT is a common carrier under FELA.

Thomas argues that IHT is performing a part of the total rail service contracted for

by a member of the public. According to Thomas, IHT contracted with the two

railway companies, who are both considered to be common carriers in the industry

and IHT serves as a linking carrier between the railway companies and ExxonMobil.

Thomas argues that IHT’s contract with ExxonMobil to provide rail service creates

a material issue of fact regarding if the total rail service contracted for was by a

member of the public. Thomas further argues that IHT’s contract with the railway

companies, which are common carriers, and that this offer of service to common

carriers can be deemed to be IHT holding itself out to the public. Although at the

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time of the incident, IHT stated that the railway companies did not pay IHT for its

services, the current contracts between the companies are for renumeration, and this

supports a material issue of fact.

FELA applies to common carriers by railroad who are engaging in interstate

commerce. 45 U.S.C.A. §§ 51, 57; see also Edwards v. Pac. Fruit Express Co., 390

U.S. 538, 539-540 (1968). A common carrier for purposes of FELA liability has

been described as

one who holds himself out to the public as engaged in the business of
transportation of persons or property from place to place for
compensation, offering his services to the public generally. The
distinctive characteristic of a common carrier is that he undertakes to
carry for all people indifferently, and hence is regarded in some respects
as a public servant.

Kieronski v. Wyandotte Terminal R.R. Co., 806 F.2d 107, 108 (6th Cir. 1986)

(quoting Kelly v. Gen. Elec. Co., 110 F.Supp. 4, 6 (E.D. Pa.), aff’d, 204 F.2d 692 (3d

Cir.), cert. denied, 346 U.S. 886 (1953)). The plaintiff bears the burden of proving

that the defendant is a common carrier, and the plaintiff “therefore must present

affirmative evidence indicating such.” Mickler v. Nimishillen and Tuscarawas Ry.

Co., 13 F.3d 184, 189 n.3 (6th Cir.), cert. denied, 511 U.S. 1084 (1994).

In Lone Star Steel Company, 380 F.2d 640, cert. denied, 389 U.S. 977 (1967),

the Fifth Circuit Court of Appeals identified the relevant factors in determining

whether a railroad is a common carrier. Id. at 647. The factors considered are

whether: (1) the entity is actually performing rail service; (2) the service being
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performed is part of the total rail service contracted for by a member of the public;

(3) the entity is performing as part of a system of interstate rail transportation by

virtue of common ownership between itself and a railroad or by a contractual

relationship with a railroad, and hence such entity is deemed to be holding itself out

to the public; and (4) remuneration for the services performed is received in some

manner, such as a fixed charge or by a percentage of the profits, from a railroad. Id.

IHT acknowledges that it performs rail service. See Nichols v. Pabtex, Inc.,

151 F.Supp.2d 772, 778 (E.D. Tex. 2001) (“[activities of the defendant] included

‘switching cars’…, a practice that even [the defendant] admitted would constitute

rail service[]”); see also Iverson v. S. Minn. Beet Sugar Coop., 62 F.3d 259, 262-63

(8th Cir. 1995) (holding that switching cars and putting them into position for

unloading at various loading docks is rail service and meets the first Lone Star

factor). Even so, application of each of the remaining three Lone Star factors

indicates IHT is not a common carrier for FELA purposes.

At his deposition, IHT President, Cody Birdwell, testified that the property

and rail on-site is owned by IHT only. Neither ExxonMobil nor the railway

companies have an ownership interest in IHT. IHT served as warehouse for

ExxonMobil, and ExxonMobil’s payment for storage is IHT’s main source of

revenue. IHT only had Industry Track Agreements with the railway companies to

use the certain specified railway tracks available to them, and the operations and

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maintenance of the tracks. IHT did not receive any revenue from the railway

companies, nor did it contract to move railcars in interstate commerce or outside the

IHT facility. IHT maintained its tracks used by the railway companies up to the IHT

property line, and the railway companies maintained the tracks outside of the IHT

property. Birdwell testified that IHT is not an intermediary between the railway

companies and ExxonMobil because the companies have separate railway

connections to and from ExxonMobil. He explained that IHT served as a warehouse

to store railcars for ExxonMobil temporarily. At the time of the incident, IHT did

not move railcars outside the IHT facility, did not perform transloading activities,

and did not perform any railcar repairs or maintenance.

Additionally, in his affidavit, Birdwell stated that IHT provided switching and

storage services for the railway companies and ExxonMobil when railcars were

dropped off. IHT did not contract with any railway company to perform common

carrier functions, and did not link two common carriers together. IHT contracted

with the railway companies separately to allow them to drop and pickup on

designated tracks. IHT contracted with ExxonMobil for railcar storage and switching

services. IHT does not hold itself out as a common carrier, and at the time of the

incident, IHT did not transport persons or property beyond the IHT facility. IHT

does not have published rates that the public at large can contract under.

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Birdwell’s deposition testimony and affidavit confirm that IHT was the sole

owner of the rails on its property, that IHT provided storage and switching services

to the railway companies and ExxonMobil, and that IHT did not contract with the

railway companies to provide common carrier functions. At the time of the incident,

IHT did not collect payment from any common carrier railroad, only ExxonMobil.

In sum, application of the Lone Star considerations demonstrates as a matter

of law that IHT was not “one who holds himself out to the public as engaged in the

business of transportation of persons or property from place to place for

compensation, offering his services to the public generally.” Lone Star Steel Co.,

380 F.2d at 643 (quoting Kelly., 110 F.Supp. at 6). IHT did not provide rail services

that a common carrier was otherwise obligated to perform; did not share ownership

in a common carrier; did not contract with a common carrier to provide rail services;

did not link common carriers together; and did not receive renumeration from a

common carrier. Accordingly, IHT was not a “common carrier by railroad” under

FELA, and the district court properly granted summary judgment in IHT’s favor.

We overrule Thomas’s first issue.

Next, Thomas argues that his election of workers’ compensation benefits does

not bar a claim for benefits under FELA. Having determined that IHT is not a

common carrier under FELA, a claim for benefits under FELA is not applicable. See

45 U.S.C.A. §§ 51, 57; see also Edwards, 390 U.S. at 540 (explaining that FELA

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applies to common carriers by railroad who are engaging in interstate commerce).

Therefore, we need not address Thomas’s second issue. See Tex. R. App. P. 47.1

(requiring appellate court to hand down an opinion as brief as practicable addressing

all issues necessary to the appeal’s resolution).

Conclusion

Having considered and overruled Thomas’s arguments, we affirm the trial

court’s order granting summary judgment in favor of IHT.

AFFIRMED.

W. SCOTT GOLEMON
Chief Justice

Submitted on May 6, 2024
Opinion Delivered June 19, 2025

Before Golemon, C.J., Wright and Chambers, JJ.

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