concurring in part and dissenting in part.
{¶ 50} I concur with the holding that federal law, rather than former R.C. 2307.31, governs the issue whether Norfolk is entitled to a setoff of settlement amounts received by the appellees.
{¶ 51} Having reviewed the controlling Federal Employers’ Liability Act (“FELA”) and the precedent established by the United States Supreme Court in interpreting it, I dissent, however, from the majority’s holding that Norfolk is entitled to a pro tanto credit for those settlements in arriving at the final amount of the judgment against it. Both the trial court and the court of appeals disallowed a setoff. I would affirm their judgments because under federal law, Norfolk may not be credited in the amount of those payments. Recognition of a credit would exempt Norfolk from a portion of its liability to the appellees, in contradiction of the express language of the FELA.
{¶ 52} The FELA provides that “[e]very common carrier by railroad while engaging in commerce between any of the several States * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in the case of the death of such employee, to his or her personal representative * * * for such injury or death * * * resulting in whole or in part * * * by reason of any defect or insufficiency, due to its negligence, in its * * * equipment.” (Emphasis added.) Section 51, Title 45, U.S.Code.
{¶ 53} The FELA further provides:
{¶ 54} “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.” (Emphasis sic.) Section 55, Title 45, U.S.Code.
{¶ 55} Thus, Section 51 expressly provides that a common carrier is liable for the amount of damages sustained by its employee if caused “in whole or in part” by the carrier. Section 55 expressly provides that a carrier cannot exempt itself from that liability by “[a]ny contract, rule, regulation, or device whatsoever.” This language precludes application of any common-law rules, to the extent they *401may have existed at the time of the adoption of the FELA, that provide a setoff in an amount of settlement payments from a joint tortfeasor.
{¶ 56} I agree with the majority that McDermott, Inc. v. AmClyde (1994), 511 U.S. 202, 114 S.Ct. 1461, 128 L.Ed.2d 148, is not relevant to the issue before us. McDermott involved a claim by an owner of a crane against the crane’s manufacturer where the plaintiffs offshore platform deck and the crane itself were damaged when the crane’s main hook and supporting slings broke. It was decided based on the federal common law of admiralty. It did not involve a statutory FELA claim asserting that the negligence of a common carrier caused, in whole or in part, injury to or death of an employee. I find Sections 51 and 55, Title 45, U.S.Code, controlling in the FELA case before us. Those statutes did not apply in McDermott.
{¶ 57} We are instead bound to follow the latest interpretation of the FELA by the United States Supreme Court in Norfolk & W. Ry. Co. v. Ayers (2003), 538 U.S. 135, 123 S.Ct. 1210, 155 L.Ed.2d 261. The court unanimously concluded in Ayers that damages may not be apportioned among joint tortfeasors according to the degree of fault attributed to each tortfeasor. Id. at 159-166, 123 S.Ct. 1210, 155 L.Ed.2d 261. The majority recognized that the FELA expressly directs apportionment of responsibility between employer and employee based on the comparative fault of only those two parties and that the statute “expressly prescribes no other apportionment.” Id. at 161, 123 S.Ct. 1210, 155 L.Ed.2d 261. It refused to “narrow employer liability without a textual warrant,” id., characterizing Norfolk’s view as “an untenable reading” of congressional silence on the issue of apportionment. Id.
{¶ 58} Congress did, however, specifically address the matter of setoffs where amounts have been “paid to the injured employee * * * on account of the injury or death for which said action was brought.” Section 55, Title 45, U.S.Code. It authorized a setoff benefiting the employer only in those instances where the carrier has “contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee.” Id. Even then, Congress provided for setoff only in the amount of premiums paid by the carrier — not the full amount of benefits received.
{¶ 59} Norfolk seeks a reduction in the final judgment of damages for which it is liable based on the fact that settlement payments by other tortfeasors were previously made to the appellees. In so doing, it asks for adoption of a rule of contribution referred to by the Seventh Circuit as “claim reduction.” In re Oil Spill by Amoco Cadiz (C.A.7, 1992), 954 F.2d 1279, 1315. That rule provides that by “accepting a settlement from any party, the plaintiff foregoes the ability to collect from the remaining defendants any damages attributable to the settling party’s share of fault.” Id.
Kevin E. McDermott and Mary Brigid Sweeney, for appellees Ralph E. Seaford and Horace T. Thomas. Gallagher, Sharp, Fulton & Norman, Kevin C. Alexandersen, Monica A. Sansalone, and Holly M. Olarczuk-Smith; Burns, White & Hickton, L.L.C., and David A. Damico, for appellant. Squire, Sanders & Dempsey, L.L.P., Charles F. Clark, and Robin G. Weaver, urging reversal for amicus curiae, Association of American Railroads.{¶ 60} A claim-reduction approach is inconsistent with Section 55, Title 45, U.S.Code. Moreover, the United States Supreme Court has on more than one occasion refused to incorporate a claim-reduction rule into federal common law when urged to do so. Edmonds v. Compagnie Generate Transatlantique (1979), 443 U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d 521; Texas Industries, Inc. v. Radcliff Materials, Inc. (1981), 451 U.S. 630, 637-638, 101 S.Ct. 2061, 68 L.Ed.2d 500 (“Some amici and commentators have suggested that the total amount of the plaintiffs claim should be reduced by the amount of any settlement with any one co-conspirator; others strongly disagree. * * * Regardless of the particular rule adopted for allocating damages or enforcing settlements, the complexity of the issues involved may result in additional trial and pretrial proceedings, thus adding new complications to what already is complex litigation”).
{¶ 61} I am sympathetic to Norfolk’s argument that denial of a setoff representing settlement amounts received by an FELA claimant could result in the claimant receiving sums exceeding the amount of damages a jury finds was sustained. However, the United States Congress and the United States Supreme Court have settled that issue. In Ayers, the court observed that the “FELA’s express terms, reinforced by consistent judicial applications of the Act, allow a worker to recover his entire damages from a railroad whose negligence jointly caused an injury (here, the chronic disease asbestosis), thus placing on the railroad the burden of seeking contribution from other tortfeasors.” Id., 538 U.S. at 141, 123 S.Ct. 1210, 155 L.Ed.2d 261. Moreover, the possibility that a plaintiff might recover sums in excess of a jury award in an FELA case has long existed based on application of the traditional collateral-source rule, which Section 55 largely preserves. As emphasized by the court in Ayers, the issue whether public policy warrants FELA reform, including reform in the application of the FELA to asbestos cases, is a matter for Congress and not the courts. Id., 538 U.S. at 166,123 S.Ct. 1210,155 L.Ed.2d 261.
Lanzinger, J., concurs in the foregoing opinion.