Supreme Court of California Justia
Docket No. S099479
Lund v. San Joaquin Valley R.R.

Filed 7/3/03

IN THE SUPREME COURT OF CALIFORNIA

RONALD G. LUND,
Plaintiff and Respondent,
S099479
v.
) Ct.App.
5
F034334
SAN JOAQUIN VALLEY RAILROAD,
Kern
County
Defendant and Appellant.
Super. Ct. No. 235336

Under the Federal Employers Liability Act (FELA), a railroad employee
injured by the employer’s negligence may sue the employer for negligence. The
action may be filed in either a state or a federal court. (45 U.S.C. § 56.) This case
raises two questions pertaining to actions brought in California courts.
First, should the trial court tell the jury that the injured employee is not
entitled to benefits under California’s workers’ compensation law? The answer is
no, unless a case presents unusual circumstances where the probative value of this
information outweighs its prejudicial effect.
Second, if the employer rejects the employee’s pretrial settlement offer and
the employee at trial obtains a judgment more favorable than the offer, may the
trial court award the employee prejudgment interest under California law? The
answer is no, because federal law prohibits such an award.
1


I. FACTS
Plaintiff Ronald G. Lund worked as a trackman for defendant San Joaquin
Valley Railroad. In the spring of 1997, he and other employees were replacing
worn railroad ties. After replacing those ties with new ones, the workers used a
“hydrospiker,” a machine that drives spikes through the ties and into prepunched
holes in tie plates under the rails. The hydrospiker did not drive all the spikes in
correctly. Plaintiff’s supervisor then told him to use a “spike maul,” a
sledgehammer with an elongated head, to drive in spikes that the hydrospiker had
only partially driven in. While swinging the spike maul, plaintiff tore two tendons
in his shoulder. The injury permanently damaged his shoulder, rendering him
unable to perform his job.
Plaintiff sued defendant for negligence under the FELA. He alleged that
the spikes could not be driven in with the spike maul because they were too big for
the holes in the tie plates, and that defendant should have given him an pneumatic
spike driver, or air gun, to accomplish the task. Before trial, plaintiff made a
settlement offer, which defendant rejected.
At plaintiff’s request, the trial court told prospective jurors: “State
Workers’ Compensation is not available to the plaintiff in this case.” At the close
of evidence, the trial court reiterated that comment: “As I instructed you at the
beginning of the case . . . the employee does not have the right to Workers’
Compensation benefits . . . even though . . . the alleged accident did occur here in
the state of California.” The jury found defendant negligent, and awarded plaintiff
damages of $538,570. Relying on California law, the court awarded plaintiff an
additional $22,280.57 in prejudgment interest under Civil Code section 3291.
The Court of Appeal affirmed the judgment. We granted defendant’s
petition for review.
2
II. THE FELA (45 U.S.C. § 51 ET SEQ.)
In California, injured employees are generally entitled to workers’
compensation benefits, irrespective of whether the employer was at fault. (Lab.
Code, § 3200 et seq.) But those benefits are not available to railroad employees
who suffer on-the-job injuries; their right of recovery is governed by the FELA,
which permits recovery only if the employer acted negligently. (45 U.S.C. § 51.)
The FELA, enacted by Congress in 1908, is “founded on common-law
concepts of negligence and injury” (Urie v. Thompson (1949) 337 U.S. 163, 182)
to “provide a federal remedy for railroad workers who suffer personal injuries as a
result of the negligence of their employer or their fellow employees” (Atchison T.
& S. F. R. Co. v. Buell (1987) 480 U.S. 557, 561). Through the FELA, Congress
intended to create “ ‘uniformity throughout the Union’ with respect to railroads’
financial responsibility for injuries to their employees” (Norfolk & Western R. Co.
v. Liepelt (1980) 444 U.S. 490, 493, fn. 5) and to “eliminate a number of
traditional defenses to tort liability and to facilitate recovery in meritorious cases”
(Atchison, T. & S.F.R. Co., supra, at p. 561). Courts construe the FELA liberally
to fulfill the act’s remedial purposes. (Consolidated Rail Corporation v. Gottshall
(1994) 512 U.S. 532, 543; Atchison T. & S. F. R. Co., supra, at p. 562.)
As noted at the outset, a FELA action can be brought in either federal or
state court. When, as here, a FELA action is brought in state court, state law
governs procedural questions while federal law governs substantive issues. (St.
Louis Southwestern R. Co. v. Dickerson (1985) 470 U.S. 409, 411.) State
procedure does not apply, however, if it results in the denial of a federal right
granted by Congress. (Arnold v. Panhandle & S. F. R. Co. (1957) 353 U.S. 360,
361; Brown v. Western R. of Alabama (1949) 338 U.S. 294, 296; see also Wright,
Law of Federal Courts (4th ed. 1983) State Enforcement of Federal Law, § 45,
3
p. 272 [expressing the view that the applicability of state procedure in federal
claim cases “has become so shrunken as to fall within the maxim de minimis”].)

III. TRIAL COURT’S INSTRUCTION ON PLAINTIFF’S INELIGIBILITY
FOR STATE WORKERS’ COMPENSATION BENEFITS
Defendant faults the trial court for telling the jury, at plaintiff’s request, that
as an injured railroad worker plaintiff was ineligible for workers’ compensation
benefits ordinarily available to injured employees under California law.
Because defendant had not objected at trial to the challenged instruction,
the Court of Appeal precluded defendant from raising the issue on appeal. A party
may, however, challenge on appeal an erroneous instruction without objecting at
trial. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 949; Griesel v. Dart Industries,
Inc. (1979) 23 Cal.3d 578, 583, fn. 4; Code Civ. Proc., § 647.) To support its
conclusion that defendant did not preserve the issue, the Court of Appeal relied on
the rule that when a trial court gives a jury instruction that is legally correct but is
“ ‘too general, lacks clarity, or is incomplete’ ” (Conservatorship of Gregory
(2000) 80 Cal.App.4th 514, 520, quoting 7 Witkin, Cal. Procedure (4th ed. 1997)
Trial, § 272, pp. 318-319), a party may challenge the instruction on appeal only if
it had asked the trial court to give a clarifying instruction. But here defendant
does not contend that the instruction was too general, lacked clarity, or was
incomplete. Rather, defendant argues that the instruction conveyed irrelevant
prejudicial information to the jury – that plaintiff was ineligible for workers’
compensation. No objection was necessary to preserve this claim. We therefore
address its merits.
Ordinarily, the first step in analyzing that issue would be to determine
whether the instruction pertained to a state procedure, or instead was a substantive
matter, and thus, as noted earlier, governed by federal law. Here, however, we
need not undertake such an evaluation. Under both federal and California law the
4


jury in a FELA action should, as a general rule, not be told whether the injured
railroad worker action can also seek recovery from any other source, such as
workers’ compensation. Because federal and California law on this subject are
identical, we need not decide which one controls.1 Below, we discuss the
pertinent features of both laws.
A. Federal Law
If an injured plaintiff gets some compensation for the injury from a
collateral source such as insurance, that payment is, under the collateral source
doctrine, not deducted from the damages that the plaintiff can collect from the
tortfeasor. (See 1 Dobbs, Law of Remedies (2d ed. 1993) § 3.8(1), pp. 372-373.)
The collateral source rule is “generally accepted in the United States” (Helfend v.
Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 6; see also Rest.2d Torts,
§§ 920, 920A), and the federal courts apply the rule in FELA actions (Eichel v.
New York Central R. Co. (1963) 375 U.S. 253, 254 (Eichel)).
The question whether to tell the jury about collateral compensation is
analytically distinct from the collateral source rule itself. But because the two
issues are so closely linked, courts often draw no distinction between the two. A
recent federal appellate decision observed: “The case law sometimes confuses
these interrelated principles, moving effortlessly from the substantive to the
evidentiary strands of the collateral source doctrine, and back, with little
differentiation.” (Fitzgerald v. Expressway Sewerage Const., Inc. (1st Cir. 1999)
177 F.3d 71, 73.)

1
In Morse v. Southern Pac. Transportation Co. (1976) 63 Cal.App.3d 128,
133-138, the Court of Appeal held that federal law controls in deciding whether
the jury should be told that the plaintiff in a FELA action has received collateral
benefits. Because we hold that federal and state law are identical on the issue
before us, we need not decide whether Morse is correct.
5


The United States Supreme Court held in Eichel, supra, 375 U.S. 253, that
in a FELA case brought in federal court the jury should not be told that the
plaintiff has received benefits from a collateral source. In Eichel, the defendant
sought to show that the plaintiff had received disability pension benefits under the
Railroad Retirement Act of 1937 (a collateral source), arguing the evidence was
relevant to prove that the plaintiff was malingering. The high court held the
evidence to be inadmissible, noting that because collateral source evidence is
“readily subject to misuse by a jury,” the likelihood of misuse “clearly outweighs”
the value of such evidence. (Eichel, supra, at p. 255.)
Often, as in Eichel, supra, 375 U.S. 253, the question whether to tell the
jury about a collateral source of recovery arises when the plaintiff can recover
collateral benefits. The issue here is slightly different – whether the jury should be
told that the plaintiff cannot recover a collateral benefit. Federal courts, however,
have reached the same result in both situations: ordinarily the jury should not be
given that information.
In Stillman v. Norfolk & Western Ry. Co. (4th Cir. 1987) 811 F.2d 834, the
trial court barred the plaintiff, Stillman, from telling the jury in a FELA action that
he was ineligible for workers’ compensation benefits. The federal appellate court
upheld the ruling. It explained: “Stillman’s ineligibility for workers’
compensation benefits was completely irrelevant to the issues presented in this
case, and allowing the jury to consider such information could have prejudiced the
Railroad. [Citation.] Moreover, we note that defendants in FELA cases are not
permitted to inform the jury that a plaintiff has received benefits from a collateral
source. [Citations.] We perceive no reason for a different rule when the plaintiff
in a FELA case seeks to inform the jury of the absence of benefits from a
collateral source.” (Id. at p. 838.)
6
Federal courts, and those state courts that have viewed the question as
being governed by federal law, have consistently held that, in general, the jury in a
FELA action should not be told that the plaintiff cannot recover benefits from
workers’ compensation or other collateral sources. (Stillman v. Norfolk & Western
Ry. Co., supra, 811 F.2d at p. 838; Weinell v. McKeesport Connecting Railroad
Company (3d Cir. 1969) 411 F.2d 510, 512; Kodack v. Long Island Rail Road
Company (2d Cir. 1965) 342 F.2d 244, 247; Snyder v. Lehigh Valley Railroad
Company (3d Cir. 1957) 245 F.2d 112, 116; Hileman v. Pittsburgh & Lake Erie R.
Co. (Pa. 1996) 685 A.2d 994, 996-997 [applying state and federal law]; see also
CSX Transportation, Inc. v. Whittler (Fla.App. 1991) 584 So.2d 579, 584 [citing
Stillman with approval, but holding that the issue was waived by failure to object];
Kansas City Southern Ry. Co. v. Stokes (Tex.Ct.App. 2000) 20 S.W.3d 45, 49
[agreeing with Stillman without explaining whether it is applying federal or state
law]; Parsons v. Norfolk and Western Ry. Co. (W.Va. 1991) 408 S.E.2d 668, 673-
674 [harmless error for the plaintiff to tell jury in closing argument that a FELA
action is the plaintiff’s “only means of recovery”].) Plaintiff here has not cited
any decision to the contrary.
B. California law
Like the federal courts, California has adopted the collateral source rule.
(Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725, 729 (Hrnjak); Helfend v. Southern
Cal. Rapid Transit Dist., supra, 2 Cal.3d 1, 6; but see Civ. Code, § 3333.1,
partially abrogating the rule in actions against a health care provider based on
professional negligence.) As we have explained: “The collateral source rule
expresses a policy judgment in favor of encouraging citizens to purchase and
maintain insurance for personal injuries and for other eventualities. . . . If we were
to permit a tortfeasor to mitigate damages with payments from plaintiff’s
7
insurance, plaintiff would be in a position inferior to that of having bought no
insurance, because his payment of premiums would have earned no benefit.
Defendant should not be able to avoid payment of full compensation for the injury
inflicted merely because the victim has had the foresight to provide himself with
insurance.” (Helfend, supra, 2 Cal.3d at p. 10.)
And like the federal courts, California has adopted the closely related
principle that, as a general rule, jurors should not be told that the plaintiff can
recover compensation from a collateral source. We so held in Hrnjak v. Graymar,
Inc., supra, 4 Cal.3d 725. There, the trial court allowed the defendant in a
personal injury action to introduce evidence that the plaintiff had received
insurance benefits, asserting the evidence was relevant to the plaintiff’s “motives
in seeking medical help and his credibility as a witness.” (Id. at p. 728.) We held
the trial court abused its discretion under Evidence Code section 352 in admitting
this evidence of collateral source benefits. We explained: “The potentially
prejudicial impact of evidence that a personal injury plaintiff received collateral
insurance payments varies little from case to case. Even with cautionary
instructions, there is substantial danger that the jurors will take the evidence into
account in assessing the damages to be awarded to an injured plaintiff. Thus,
introduction of the evidence on a limited admissibility theory creates the danger of
circumventing the salutary policies underlying the collateral source rule.
Admission despite such ominous potential should be permitted only upon a
persuasive showing that the evidence sought to be introduced is of substantial
probative value.” (Hrnjak, supra, 4 Cal.3d at pp. 732-733, fn. omitted.)
Plaintiff here argues the rule should be different when it is the plaintiff who
seeks to offer evidence that benefits from a collateral source are not available. He
contends, as he did at trial, that unless so told, the jury may well have assumed
that he was receiving those benefits in addition to the damages sought under the
8
FELA, leading the jury to conclude that he was seeking double recovery for his
work-related injuries. In support, plaintiff cites Bohme v. Southern Pac. Co.
(1970) 8 Cal.App.3d 291 (Bohme).
In Bohme, a railroad employee sued his employer under the FELA for
injuries suffered in a fall at work. At trial, both the plaintiff and the trial court told
the jury that he was ineligible for workers’ compensation benefits. The jury
returned a verdict in favor of the plaintiff. On appeal, the railroad argued the jury
should not have been told of the plaintiff’s ineligibility for workers’
compensation. The Court of Appeal disagreed. It reasoned that most jurors know
that an injured employee can get workers’ compensation benefits under state law,
and unless told that such compensation is not available to the plaintiff, they may
wonder why the plaintiff is suing the employer. It is to prevent such speculation,
the Bohme court said, that a trial court can tell the jury of the plaintiff’s
ineligibility for worker’s compensation. (Bohme, supra, 8 Cal.App.3d at pp. 298-
299.)
As the Bohme court observed, not telling jurors in a FELA action of the
plaintiff employee’s ineligibility for workers’ compensation may lead them to
speculate why the injured employee is suing the employer. We note, however,
that if jurors are told that the injured employee is ineligible for workers’
compensation benefits, they may consider it unfair that in a FELA action the
injured worker can recover only if the employer’s negligence caused the injury.
That concern might, in turn, lead the jury to award damages regardless of fault.
There is an additional reason why the jury in a FELA action should not be
told of the plaintiff’s ineligibility for state workers’ compensation benefits. As
defendant’s amicus curiae, the Association of American Railroads, points out in its
brief, many injured railroad employees can receive compensation for their injuries,
regardless of fault, under the Railroad Retirement Act of 1974. (45 U.S.C.
9
§§ 231-231v.) That law permits some permanently injured railroad workers,
depending on age and years of service, to receive a disability annuity. As noted
earlier, the collateral source rule prohibits a defendant in a FELA action from
telling the jury of the availability to the injured worker of this collateral source of
compensation. Given that prohibition, it would be unfair to allow a plaintiff in a
FELA action to tell the jury of the unavailability of workers’ compensation
benefits.
For the reasons given above, we hold that in a FELA action brought in state
court the jury, as a general rule, should not be told of the injured employee’s
ineligibility for benefits flowing from California’s workers’ compensation law or
any other collateral source. We disapprove Bohme v. Southern Pac. Co., supra, 8
Cal.App.3d 291, to the extent that it is inconsistent with this conclusion.2
There may, however, be unusual circumstances that would permit such
disclosure in a FELA action. Trial courts may find, in the appropriate exercise of
discretion under Evidence Code section 352, that the probative value of such
evidence outweighs its prejudicial effects. As we have held in the past, evidence
that the plaintiff in a personal injury action has received compensation from a
collateral source should be admitted “only upon a persuasive showing that the

2
Although trial courts in FELA actions ordinarily should not tell the jury of
the employee’s ineligibility for workers’ compensation benefits, in some
circumstances, such as when the jury asks about the availability of workers’
compensation, the trial court may instruct the jury not to discuss or consider
whether the employee has received such benefits. (See Snyder v. Lehigh Valley
Railroad Company, supra
, 245 F.2d at p. 116 [When the jury asked if the plaintiff
in an FELA case was receiving workers’ compensation, the trial court “should
have admonished the jury that the plaintiff’s receipt or non-receipt of workmen’s
compensation was not in the case; that they must put it out of their minds.”].) A
somewhat similar instruction, BAJI No. 1.04, tells juries not to discuss or consider
whether the defendant has insurance for the plaintiff’s claim.
10


evidence sought to be introduced is of substantive probative value.” (Hrnjak,
supra, 4 Cal.3d at p. 733.) That reasoning also applies when, as here, the question
is whether to tell the jury that a plaintiff has not received compensation from a
collateral source.
Federal law, too, grants trial courts discretion not to apply the collateral
source rule in those unusual situations where the probative value of collateral
source evidence outweighs its prejudicial effects. For instance, in Santa Maria v.
Metro-North Commuter R. R. (2d Cir. 1996) 81 F.3d 265, 272-273, the federal
appellate court noted that “the general rule in FELA cases is that evidence of
payments . . . from collateral sources is not admissible” but held that “such
evidence may be admissible if the plaintiff puts his financial status in issue.”
Similarly, the court in Moses v. Union Pacific R. R. (8th Cir. 1995) 64 F.3d 413,
416, the court acknowledged the “familiar law” that the defendant may not inquire
into the plaintiff’s collateral sources of compensation, but found an exception to
this rule in “these limited kinds of situations, where plaintiff’s case itself has made
the existence of collateral sources of probative value.” (See also McGrath v.
Consolidated Rail Corp. (1st Cir. 1998) 136 F.3d 838, 841 [“We do not read [the
high court’s decision in] Eichel as requiring the per se exclusion of collateral
source evidence in FELA cases”]; Savoie v. Otto Candies, Inc. (5th Cir. 1982) 692
F.2d 363, 371, fn. 8; Sheehy v. Southern Pac. Transp. Co. (9th Cir. 1980) 631 F.2d
649, 652.)
Here, a highly unusual circumstance supported the trial court’s instruction
on plaintiff’s ineligibility for workers’ compensation. Plaintiff testified that in
1991, before the job injuries in this case, he injured his shoulder when he slipped
while climbing up the side of a boxcar. On cross-examination, plaintiff said that
he had filed a claim for workers’ compensation benefits because of that injury, and
that he had signed a series of documents prepared by his doctor, each entitled “30-
11
day continuing report of disability,” pertaining to that application. He also
admitted that six months after the injury, he told defendant in a job application that
he had no previous work-related injuries, and that in discovery proceedings in this
case he said he did not recall making a previous demand for workers’
compensation.3
In his closing argument to the jury, defense counsel repeatedly mentioned
plaintiff’s 1991 workers’ compensation claim. He attacked plaintiff’s credibility,
pointing out that plaintiff’s application for workers’ compensation stated that the
injury occurred on February 27, 1991, but that plaintiff had seen his doctor for
treatment of the shoulder on February 12, 1991. Defense counsel argued that the
present damage to plaintiff’s shoulder did not occur when he swung the spike
maul in 1997, but that it resulted because his 1991 injury was aggravated by his
work on the railroad in the ensuing six years.
Thus, plaintiff’s previous injury, and his application for workers’
compensation benefits as a result of that injury, were significant issues at trial. We
consider it highly likely that plaintiff’s statement about workers’ compensation for
the 1991 injury would lead the jury to conclude that in this case he also received
such benefits, and that he was seeking yet another recovery under the FELA. To
prevent a misconception by the jury that plaintiff was seeking double recovery, the
trial court did not abuse its discretion in telling the jury of plaintiff’s ineligibility
for workers’ compensation.

3
The record does not explain how plaintiff could have received workers’
compensation for the 1991 injury. In his brief, plaintiff states he sustained the
injury while working for a subcontractor, not the railroad, and therefore his injury
was not covered by the FELA.
12


At oral argument in this court, defendant stressed that the defense only
questioned plaintiff about his previous application for workers’ compensation
benefits after the trial court had already instructed the jurors, in voir dire, that
plaintiff was ineligible to receive those benefits here. But the trial court may have
known when it gave the instruction that the defense intended to question plaintiff
about that application. Because defendant, the appellant in this case, has not
provided us with a record of the hearing at which the court granted plaintiff’s
motion to give the instruction, it cannot argue to the contrary.
IV. PREJUDGMENT INTEREST
The trial court awarded plaintiff $22,281 in prejudgment interest under
Civil Code section 3291. That section states that if a plaintiff in a personal injury
action makes a settlement offer that the defendant does not accept before trial or
within 30 days after the offer, whichever occurs first, and the plaintiff thereafter
“obtains a more favorable judgment,” the defendant must pay “interest at the legal
rate of 10 percent per annum calculated from the date of the plaintiff’s first offer
. . . which is exceeded by the judgment, and interest shall accrue until the
satisfaction of judgment.” (Ibid.) The Court of Appeal upheld the award,
rejecting defendant’s claim that prejudgment interest could not be awarded under
the FELA. As we shall explain, the Court of Appeal was wrong.
The high court’s decision in Monessen Southwestern R. Co. v. Morgan
(1988) 486 U.S. 330 (Monessen) is dispositive here. There, a railroad employee
permanently injured his back in a fall at work. He brought a FELA action against
his employer in a Pennsylvania court. The jury awarded him $125,000 in
damages. In addition, the trial court awarded him approximately $27,000 in
prejudgment interest under rule 238 of the Pennsylvania Rules of Civil Procedure.
The United States Supreme Court held the prejudgment interest award to be
improper.
13
The high court first determined whether prejudgment interest was
procedural (governed by state law) or substantive (governed by federal law). The
Pennsylvania court had classified its prejudgment interest rule as procedural, but
the high court disagreed. It explained that prejudgment interest is a form of
damages, and “ ‘the proper measure of damages [under the FELA] is inseparably
connected with the right of action,’ and therefore is an issue of substance that
‘must be settled according to general principles of law as administered in the
Federal courts.’ ” (Monessen, supra, 486 U.S. at p. 335.)
The high court in Monessen then considered whether federal law authorized
the award of prejudgment interest in a FELA action and held that it did not, noting
that nothing in the FELA or any other federal law permitted such an award.
(Monessen, supra, 486 U.S. at pp. 336-339.)
Here, the Court of Appeal attempted to distinguish Monessen, reasoning
that California’s prejudgment interest law permits prejudgment interest only in
“exceptional circumstances,” whereas Pennsylvania’s prejudgment interest rule is
“generally applicable.” This exaggerates the difference between the two
provisions. Under California law, plaintiff here was entitled to prejudgment
interest if, after making a settlement offer that the defendant refused, plaintiff
thereafter obtained a more favorable judgment at trial. By contrast, the plaintiff in
Monessen was entitled to prejudgment interest under Pennsylvania law unless the
defendant made a settlement offer and the plaintiff’s recovery did not exceed 125
percent of the offer. (See Morgan v. Monessen Southwestern Ry. Co. (Pa. 1986)
518 A.2d 1171, 1177.) These minor differences provide no basis for the
distinction the Court of Appeal sought to draw between the high court’s decision
in Monessen and this case. The two laws have similar purposes: They both
permit plaintiffs to recover prejudgment interest only if certain conditions
designed to encourage pretrial settlements are satisfied.
14
The Court of Appeal described California’s prejudgment interest law as
reflecting “the strong state interest in controlling the conduct of litigation in the
state’s courts.” But that interest is virtually identical to the purpose of
Pennsylvania’s prejudgment interest rule, which was at issue in Monessen and
which was created to achieve the “fundamental goal of prompting meaningful
negotiations in major cases so as to unclutter the courts.” (Morgan v. Monessen
Southwestern Ry. Co., supra, 518 A.2d at p. 1177.) Given the high court’s
conclusion in Monessen that the policy underlying Pennsylvania’s prejudgment
interest rule had to give way to Congress’s decision not to allow prejudgment
interest in FELA actions, we see no basis for concluding otherwise with regard to
the policy reflected in California’s prejudgment interest law.
Congress enacted the FELA to achieve national uniformity in personal
injury actions by railroad employees against their employers. (New York Central
R. R. Co. v. Moore-McCormack Co. Winfield (1917) 244 U.S. 147, 149; Morse v.
Southern Pac. Transportation Co., supra, 63 Cal.App.3d 128, 136.) That goal
would be frustrated if FELA plaintiffs could recover prejudgment interest simply
by filing their actions in state court rather than in federal court, where such
recovery is precluded. Even if prejudgment interest could be considered
procedural rather than substantive, “state procedure must give way if it impedes
the uniform application of the federal statute essential to effectuate its purpose,
even though the procedure would apply to similar actions arising under state law.”
(McCarroll v. L.A. County etc. Carpenters (1957) 49 Cal.2d 45, 61-62.)
15

DISPOSITION
We reverse the judgment of the Court of Appeal, and we direct that court to
modify the superior court’s judgment by striking the award of prejudgment
interest and to otherwise affirm the judgment.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.
PREMO, J.*

*
Associate Justice of the Court of Appeal, Sixth Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
16


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Lund v. San Joaquin Valley Railroad
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 90 Cal.App.4th 247
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S099479
Date Filed: July 3, 2003
__________________________________________________________________________________

Court:

Superior
County: Kern
Judge: Arthur E. Wallace

__________________________________________________________________________________

Attorneys for Appellant:

Dowling, Aaron & Keeler, William T. McLaughlin II, Timothy R. Sullivan; Lane Powell Spears Lubersky
and Michael B. King for Defendant and Appellant.

Crosby, Heafey, Roach & May and Joseph P. Mascovich for Association of American Railroads as Amicus
Curiae on behalf of Defendant and Appellant.

Crosby, Heafey, Roach & May, Joseph P. Mascovich; Brasher Law Firm and William A. Brasher for The
Burlington Northern and Santa Fe Railway Company and Union Pacific Railroad Company as Amici
Curiae on behalf of Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Miller & Reivitis, Kimberly A. Miller, Michael E. Reivitis; and Charlotte E. Costan for Plaintiff and
Respondent.


1


Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael B. King
Lane Powell Spears Lubersky
1420 Fifth Avenue, Suite 4100
Seattle, WA 98101
(206) 223-7000

Charlotte E. Costan
1220 Country Club Drive
Burbank, CA 91501
(818) 842-8932
2


Opinion Information
Date:Docket Number:
Thu, 07/03/2003S099479

Parties
1San Joaquin Valley Railroad (Defendant and Appellant)
Lane Powell Spears & Lubersky, LLP
1420 Fifth Avenue, Suite 4100
Seattle, WA 98101

Represented by Michael King
Lane Powell Spears Lubersky LLP
1420 Fifth Ave., Suite 4100
Seattle, WA

2San Joaquin Valley Railroad (Defendant and Appellant)
Lane Powell Spears & Lubersky, LLP
1420 Fifth Avenue, Suite 4100
Seattle, WA 98101

Represented by Timothy R. Sullivan
Dowling Aaron & Keeler
6051 N Fresno St #200
Fresno, CA

3San Joaquin Valley Railroad (Defendant and Appellant)
Lane Powell Spears & Lubersky, LLP
1420 Fifth Avenue, Suite 4100
Seattle, WA 98101

Represented by William T. Mclaughlin
Dowling, Aaron & Keeler
6051 North Fresno, Suite 200
Fresno, CA

4Lund, Ronald G. (Plaintiff and Respondent)
Represented by Charlotte E. Costan
Attorney At Law
1220 Country Club Drive
Burbank, CA

5Lund, Ronald G. (Plaintiff and Respondent)
Represented by Kimberlee A. Miller
Miller & Reivitis
11601 Wilshire Blvd #500
Los Angeles, CA

6Association Of American Railroads (Amicus curiae)
Represented by Joseph P. Mascovich
Union Pacific Railroad Co.
10031 Foothills Blvd., Suite 200
Roseville, CA


Disposition
Jul 3 2003Opinion: Reversed

Dockets
Jul 31 2001Petition for review filed
  By counsel for Applt. {San Joaquin Valley Railroad}
Jul 31 2001Record requested
 
Aug 29 2001Received Court of Appeal record
  3-doghouses
Sep 26 2001VPetition for Review Granted (civil case)
  Baxter J. was recused & did not participate. Votes: George CJ, Kennard,Werdegar,Chin,Brown JJ.
Oct 11 2001Certification of interested entities or persons filed
  by counsel for aplt
Oct 26 2001Application for Extension of Time filed
  San Joaquin Valley Railroad (appellant) for a 26-day extension of time to file the Opening Brief on the Merits.
Oct 26 2001Received letter from:
  Dowling, Aaron & Keeler dated 10/25/2001 (Appellant) that Michael Be. King was admitted pro hac vice in the Fifth appellate District and also represents appellant.
Nov 1 2001Time extended to grant or deny review
  appellant to and including 11/21/2001 to file the Opening Brief on the Merits.
Nov 26 2001Opening brief on the merits filed
  by aplt 40n
Dec 18 2001Request for extension of time filed
  by resp to file the answer brief on the merits, to 1-21-02
Dec 21 2001Extension of time granted
  to 1-31-02 for resp to file the answer brief on the merits.
Jan 18 2002Answer brief on the merits filed
  By counsel for Respondent {Ronald G. Lund}
Jan 31 2002Request for extension of time filed
  for aplt to file the reply brief. to 3-5.
Feb 5 2002Extension of time granted
  to 3-5-02 for aplt to file the reply brief on the merits.
Mar 7 2002Reply brief filed (case fully briefed)
  by appellant (timely per Rule 40)
Apr 3 2002Received application to file amicus curiae brief; with brief
  by Association of American Railroads in support of aplt.
Apr 5 2002Received letter from:
  counsel for resp Lund, re availability for oral argument.
Apr 10 2002Permission to file amicus curiae brief granted
  by Association of American Railroads in support of appellant. Answers may be filed w/in 20 days.
Apr 10 2002Amicus Curiae Brief filed by:
  Assn. of American Railroads in support of aplt.
Jul 23 2002Filed letter from:
  aplt counsel re possible sched. for oral arg.
Sep 30 2002Received letter from:
  Michael B. King, counsel for appellant, dated 9/27/2002, re potential conflict with oral argument calendaring.
Nov 14 2002Filed:
  substitution of attorneys for A/C Assn. of American Railroads
Feb 21 2003Filed letter from:
  Michael King re possible scheduling of oral argument in April.
Apr 2 2003Change of Address filed for:
  Miller & Reivitis (Respondent Lund)
Apr 9 2003Case ordered on calendar
  5-6-03, 1:30pm, S.F.
Apr 18 2003Filed letter from:
  Timothy Sullivan, counsel for aplt, re pro hac vice admittance of co-counsel Michael King.
Apr 21 2003Application to appear as counsel pro hac vice granted
  The letter by counsel for San Joaquin Valley Railroad, filed in this court on 4-18-03, shall be deemed an application for permission for Mr. Michael B. King, Esq., to appear pro hac vice before this court and to present oral argument in this matter. The application to appear pro hac vice and present oral argument is granted.
May 6 2003Cause argued and submitted
 
Jul 3 2003Opinion filed: Judgment reversed
  with directions. Majority Opinion by Kennard, J. -- joined by George, C. J., Werdegar, Chin, Brown, Moreno, J.J. and Premo, JPT* *Associate Justice Sixth Appellate District, Assigned.
Jul 18 2003Rehearing petition filed
  by aplt
Jul 22 2003Time extended to consider modification or rehearing
  to 10-01-03
Sep 24 2003Rehearing denied
  Opinion Modified Baxter, J., was recused and did not participate.
Sep 24 2003Opinion modified - no change in judgment
 
Sep 24 2003Remittitur issued (civil case)
  Certified copies mailed to Fifth District Court of Appeal
Sep 29 2003Received:
  Receipt for remittitur from Fifth District, signed for by Anthony Lauria, Deputy Clerk

Briefs
Nov 26 2001Opening brief on the merits filed
 
Jan 18 2002Answer brief on the merits filed
 
Mar 7 2002Reply brief filed (case fully briefed)
 
Apr 10 2002Amicus Curiae Brief filed by:
 
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