Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mickey v. BNSF Ry. Co.

Supreme Court of Missouri, En Banc

July 8, 2014



The railway and insurance companies were represented by William A. Brasher and Thomas P. McDermott of Boyle Brasher LLC in St. Louis.

Mickey was represented by Michael A. Wolff, Jerome J. Schlichter, Roger C. Denton and Elizabeth M. Wilkins of Schlichter Bogard & Denton LLP in St. Louis.

The United States, which participated in arguments in the case as a friend of the Court, was represented by United States Attorney Richard G. Callahan and Nicholas P. Llewellyn of the United States attorney's office in St. Louis.

Kathryn Keneally, Jonathan S. Cohen and Marion E.M. Erickson of the department of justice in Washington, D.C.



Page 208


Lawrence Mickey prevailed in a Federal Employers' Liability Act (FELA) suit against Burlington Northern Santa Fe Railway Company (BNSF) and received a general verdict of $345,000. The trial court entered judgment in the amount of the verdict plus interest and costs for a total of $348,731. After the judgment was affirmed on appeal, BNSF tendered $368.480.67, which was $12,820.80 less than what BNSF then owed on the judgment plus costs and accumulated interest. It did so because it sua sponte had determined that, under the Railroad Retirement Tax Act (RRTA), 26 U.S.C. § 3201 et seq., it was required to treat the entire judgment as if it were for lost wages and, therefore, subject to RRTA withholding taxes. The trial court found that BNSF had failed to satisfy the judgment and ordered BNSF's surety, Safeco Insurance Company, to pay Mr. Mickey the $12,820.80 that BNSF failed to pay. BNSF and Safeco appeal this ruling.[1]

This Court affirms. The RRTA does not require employers to withhold RRTA taxes on a personal injury plaintiff's FELA award. Damages received through a suit or settlement for personal injuries, including damages for lost wages, are not subject to income tax or, normally, to retirement taxes. BNSF is incorrect in arguing that the RRTA creates an exception to this law for railroad retirement taxes. The statute on which BNSF relies is part of an entirely separate act, the Railroad Retirement Act (RRA), 45 U.S.C. § 231 et seq., which governs railroad retirement benefits. It is inapplicable to the tax question at issue here. Even were it relevant to this issue, that statute, by its terms, applies only if a portion of the award is for lost wages. The verdict was a general one, however, and this Court rejects BNSF's argument that merely because lost wages were requested, this Court is required, legally or factually, to presume that a portion of the award was for lost wages. The makeup of a jury's general verdict award is a matter that this Court has held is " within the bosom of the jury" and is not a subject for speculation by this Court. Anglim v. Mo. Pac. R.R. Co., 832 S.W.2d 298, 309 (Mo. banc 1992). BNSF's appeal fails for both of these reasons.


Lawrence Mickey worked for BNSF as a yard conductor and switchman for 40 years. In 2007 he learned that he had permanent disability in his back, as well as disabling injuries to his knees, legs, and feet, and he was unable to return to work. In 2008, Mr. Mickey filed a petition against BNSF under FELA[2] seeking damages for these serious physical injuries as well as for his related emotional injuries, past and future medical expenses, and lost wages and benefits.

The trial court submitted the case to the jury using a general verdict form based on

Page 209

Missouri Approved Instruction (MAI) 36.01. The jury returned a plaintiff's verdict that stated, " We, the undersigned jurors, assess the damages of Plaintiff Larry Mickey at $345,000." The trial court entered judgment on the verdict plus costs and post-judgment interest. At no time during the instruction conference, the submission of the instructions, or after judgment did BNSF object to the use of a general verdict form based on MAI 36.01 or request or show it was entitled to the use of a special verdict form or special interrogatories.

BNSF appealed the judgment and filed a supersedeas bond in the amount of $500,000 that was executed by BNSF as principal and Safeco as surety. The court of appeals affirmed the judgment in Mickey v. BNSF Railway Company, 358 S.W.3d 138 (Mo. App. 2011).

After the appeal, BNSF tendered Mr. Mickey the judgment amount, costs, and interest but withheld $12,820.80. Mr. Mickey objected that the check was insufficient to satisfy the judgment and filed a motion under Rule 81.11 requesting the trial court to enter judgment against Safeco on the supersedeas bond as a result of BNSF's failure to satisfy the judgment. BNSF and Safeco urged the trial court to find that BNSF fully satisfied the judgment because it withheld the missing $12,820.80 to remit to the IRS as Mr. Mickey's share of railroad retirement withholding taxes that BNSF claimed were due on the $345,000 in damages awarded if one presumes that the damages are made up entirely of lost wages.[3] BNSF acknowledged that the IRS had not claimed in this, or any other published case, that it was required to withhold railroad retirement taxes -- taxes comparable to Social Security and Medicare -- but BNSF paid this amount sua sponte because, it said, it believed that the RRTA so requires.

During this same time period, BNSF filed an interpleader action in the United States District Court for the Eastern District of Missouri naming Mr. Mickey, the IRS, and the Railroad Retirement Board as defendants, and deposited the $12,820.80 with the federal district court for it to determine who was owed what amount. The IRS declined to enter its appearance. BNSF then chose sua sponte to pay the IRS the $12,820.80, and the interpleader was dismissed.

On May 24, 2012, the trial court agreed with Mr. Mickey that, in withholding the $12,820.80, BNSF had failed to satisfy the judgment. It entered judgment against Safeco for $12,820.80 and post-judgment interest. BNSF and Safeco subsequently moved to vacate and modify the May 24 judgment on the ground that BNSF fully

Page 210

satisfied the judgment because it was required to withhold the $12,820.80. The court overruled this motion. BNSF and Safeco appealed the trial court's entry of judgment against Safeco and its overruling of their motion to vacate and modify the judgment.[4] After OPINION of appeals, this Court granted transfer. Mo. Const. art. V, § 10. This Court affirms.


Construction of a statute is a question of law. City of Springfield v. Sprint Spectrum, L.P., 203 S.W.3d 177, 182 (Mo. banc 2006). This Court reviews issues of law de novo. Crocket ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.