Alexander v. Missouri Pacific Railroad

827 S.W.2d 757, 1992 Mo. App. LEXIS 581, 1992 WL 59704
CourtMissouri Court of Appeals
DecidedMarch 31, 1992
DocketNo. 60329
StatusPublished
Cited by4 cases

This text of 827 S.W.2d 757 (Alexander v. Missouri Pacific Railroad) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alexander v. Missouri Pacific Railroad, 827 S.W.2d 757, 1992 Mo. App. LEXIS 581, 1992 WL 59704 (Mo. Ct. App. 1992).

Opinion

CRIST, Judge.

Plaintiff appeals the trial court’s grant of summary judgment for Employer in Plaintiff’s suit for recovery for occupational hearing loss under the Federal Employers’ Liability Act. We affirm.

Plaintiff Kerry Alexander has been employed by the Missouri Pacific Railroad (Employer) since early 1972 as a brakeman and conductor. Prior to that time, he served in the military and was exposed to noise from helicopters. Plaintiff has also hunted with guns and without hearing protection a great deal throughout his life.

Before leaving active duty in the military, Plaintiff failed a hearing test. He passed a second test. On June 13, 1985, Plaintiff was administered a hearing test as part of a government study. This test showed that Plaintiff had a high frequency hearing loss. Plaintiff was advised to have his hearing checked further by his own doctor. On August 5, 1985, Plaintiff saw Dr. S. Phanjiphand, an ear, nose and throat specialist. Dr. Phanjiphand told Plaintiff [758]*758that he had suffered a sensory neural hearing loss and that his exposure to noise at the railroad was affecting his ability to hear. The doctor further advised Plaintiff to wear ear plugs on the job.

Plaintiff filed suit on February 14, 1989, under the Federal Employers Liability Act (FELA). On April 17, 1991, the trial court sustained Employer’s Motion for Summary Judgment on the grounds that the suit was untimely filed under FELA, 45 U.S.C. § 56.

Employer initially contends Plaintiffs brief violates Supreme Court Rule 84.04. Employer submits that Plaintiffs jurisdictional statement is insufficient, the Statement of Facts is deficient, and the Points Relied On are merely abstract statements of law. We find that while these aspects of Plaintiffs brief could be improved upon, the brief is “not so totally lacking in conformity to the rule that the harsh action of dismissal should result.” Counts v. Morrison-Knudsen, Inc., 663 S.W.2d 357, 364[23] (Mo.App.1983).

Plaintiffs initial point on appeal is that his claim was not barred by the Statute of Limitations. Plaintiff argues that in cases of long-term exposure to hazards to hearing, the statute of limitations is tolled until the time of the last exposure to the hazard. Here, Plaintiff asserts his last exposure to the noise of the railroad engines was within the statutory time period.

FELA cases must be commenced within three years from the date the cause of action accrued. 45 U.S.C. § 56. A discovery rule has evolved to determine the date of accrual in occupational disease cases brought under FELA. Federal courts have interpreted two United States Supreme Court cases, Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), and United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), to mean that an occupational disease claim is deemed to accrue under FELA when the claimant is aware or has reason to be aware that he has been injured and is aware or has reason to be aware of the cause of his injury. DuBose v. Kansas City Southern Ry. Co., 729 F.2d 1026, 1030 (5th Cir.1984), cert. denied, 469 U.S. 854, 105 S.Ct. 179, 83 L.Ed.2d 113 (1984); Kichline v. Consolidated Rail Corp., 800 F.2d 356, 359 (3rd Cir.1986); Albert v. Maine Central Railroad Company, 905 F.2d 541, 544 (1st Cir.1990). The trial court relied on this rule to bar Plaintiffs claim as untimely, finding that Plaintiff was aware both of his injury and of its cause more than three years before he filed suit.

Plaintiff relies on Fletcher v. Union Pacific Ry. Co., 621 F.2d 902 (8th Cir.1980), and Fowkes v. Pennsylvania R. Co., 264 F.2d 397 (3rd Cir.1959), to support his argument that the statute was tolled until his last exposure to the hazard. Plaintiffs reliance on Fletcher is misplaced. In Fletcher, the plaintiff injured his back in 1962. Thereafter, he suffered chronic, severe back problems. However, he continued to perform his job, which required heavy lifting. In 1973, Fletcher’s doctor wrote to the railroad recommending that Fletcher be placed on light duty. However, Fletcher was not given light duty until 1975. Fletcher filed suit in 1977, alleging two separate claims. In the first, he sought recovery for the original back injury in 1962. In the second, he sought recovery for negligent assignment to jobs requiring heavy lifting even after the railroad knew of his injury. The court affirmed the dismissal of the first claim on the basis of expiration of the limitations period because Fletcher clearly knew of his injury and its cause many years before he filed suit. Fletcher, 621 F.2d at 907. The court reversed the dismissal as to the second count, holding that it constituted a charge of negligence separate and apart from the negligence which gave rise to the original injury. Because the negligent assignment occurred within three years prior to filing suit, this claim was not barred. Id. at 908[5].

In the instant case, Plaintiff's claim for any deterioration of his hearing outside the three-year limitations period is clearly comparable to Fletcher’s claim for the original injury. Fletcher does not support Plaintiff’s contention that his claim for his entire injury should not be barred because some [759]*759exacerbation of the hearing loss occurred within the limitations period.

Fowkes is also of no assistance to Plaintiff. In Fowkes, the employee developed arthritis in his shoulder due to the use of an air hammer over many years. The jury specifically found that the plaintiff did not know, nor should he have known, of the existence of his injury more than three years before he filed suit. Fowkes, 264 F.2d at 398. In Kichline, 800 F.2d at 360, the Third Circuit Court of Appeals stated:

We understand Fowkes to mean that continuing conduct of defendant will not stop the ticking of the limitations clock begun when plaintiff obtained requisite information. On discovering an injury and its cause, a claimant must choose to sue or forego that remedy. This interpretation is supported by Kubrick, which requires a plaintiff to take prompt action to seek redress.

In further support of his contention, Plaintiff cites the cases of Wehrman v. U.S., 830 F.2d 1480 (8th Cir.1987), and Page v. United States, 729 F.2d 818 (D.C.Cir.1984). These cases are also inapposite.

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