Wilkerson v. Burlington Northern Railroad

795 So. 2d 663, 2000 Ala. LEXIS 369
CourtSupreme Court of Alabama
DecidedSeptember 8, 2000
Docket1990769
StatusPublished

This text of 795 So. 2d 663 (Wilkerson v. Burlington Northern Railroad) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilkerson v. Burlington Northern Railroad, 795 So. 2d 663, 2000 Ala. LEXIS 369 (Ala. 2000).

Opinion

MADDOX, Justice.

This case presents the question whether the statute of limitations bars the plaintiffs action to recover damages for injuries he alleges he suffered as a result of an alleged workplace exposure to asbestos. For the reasons discussed below, we conclude that that question may not be answered until a jury determines when the plaintiffs cause of action accrued.

Thomas Edison Wilkerson sued his former employers, Burlington Northern Railroad Company (“Burlington”) and Illinois Central Railroad Company (“Illinois Central”), alleging “severe injury to his body and respiratory system, resulting in ... impairment, disability and occupationally related disease.” He claims the injury was caused by exposure to asbestos over a roughly 30-year period he worked for the defendants. He also alleged:

“[H]e has suffered great pain, extreme nervousness, and mental anguish and believes that his injuries and disability are permanent in nature and that he will be forced to suffer the same for the remainder of his life; that he has an increased risk of developing cancer and further, that his expected life span has been gravely shortened.”

The defendants moved for a summary judgment; the trial court granted then-motions. Wilkerson appealed to this Court from the summary judgment for the defendants. Pursuant to § 12-2-7(6), Ala. Code 1975, this Court transferred the appeal to the Court of Civil Appeals. The Court of Civil Appeals affirmed. Wilkerson v. Burlington N. R.R., 795 So.2d 657 (Ala.Civ.App.1999). We granted Wilkerson’s petition for certiorari review. We now reverse and remand.

The trial court entered the summary judgment on the conclusion that Wilkerson had not filed his action within the three-year statute-of-limitations period of the Federal Employers’ Liability Act (“FELA”). See 45 U.S.C. § 56. The Court of Civil Appeals affirmed, on the same rationale. However, two of the Judges of that court dissented, concluding that the statute of limitations did not bar this action.

In Kindred v. Burlington Northern Railroad Co., 742 So.2d 155 (Ala.1999), this Court recently considered another case wherein the plaintiff brought an asbestos-related FELA action. In that case, Justice Cook wrote for the Court:

“When a claim accrues, for statute-of-limitations purposes, is a question of law if the facts are undisputed and the evidence warrants but one conclusion. See LeBlang Motors, Ltd. v. Subaru of America, Inc., 148 F.3d 680 (7th Cir.1998); JN Exploration & Production v. Western Gas Resources, Inc., 153 F.3d 906 (8th Cir.1998); DXS, Inc. v. Siemens Medical Systems, Inc., 100 F.3d 462 (6th Cir.1996). However, when a disputed issue of fact is raised, the de[665]*665termination of the date of accrual of a cause of action for statute-of-limitations purposes is a question of fact to be submitted to and decided by a jury. Id. This Court has written:
“ ‘Federal courts have interpreted two 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 [a] FELA claim accrues, and the statutory period of limitations begins to run, “when the plaintiff possesses sufficient critical facts from which the injury and its cause, including its work-relatedness, should be plainly known.” ’ ”

742 So.2d at 157. In Kindred, the plaintiff had testified in a deposition as follows:

“ ‘Q. When did you first start figuring out you had any problem breathing that would be related to your work?
“ ‘A. Well, I can’t recall right now.
“ ‘Q. Okay. Would it have been — When you retired, did you have any trouble breathing at all?
“ ‘A. I—
“ ‘Q. Had you noticed any shortness of breath by age 65?
“ ‘A. Well, my breathing wasn’t as good as it had been being.
“ ‘Q. Did you think that that had anything to do with those long years that you had worked for the railroad and for T & T and all other odd jobs you had?
“‘A. I believe so.’”

742 So.2d at 157. This Court held that Kindred’s deposition testimony raised an issue of fact to be resolved by a jury:

“When asked, during his deposition, whether he believed his breathing problems had anything to do with his years of employment with the railroad, Kindred replied, T believe so.’ [Burlington (also the defendant in the Kindred case)] contends that Kindred’s statement indicates that he knew of his injury and its cause 22 years before he filed this lawsuit. However, Kindred’s response is ambiguous and leaves a question as to whether he was referring to his knowledge at the time of the deposition or his knowledge in 1973. Furthermore, in the deposition testimony appearing just before this response, Kindred states that he does not recall when he first suspected that his breathing problem could be work-related. Therefore, a disputed question of fact is raised regarding the date of accrual, for statute-of-limitations purposes; this creates a question of fact for the jury.”

742 So.2d at 158.

In this case, the evidence tends to show that in 1984 Wilkerson attended a meeting organized by his union to discuss with, union members the possibility that they could have been exposed to asbestos in their workplaces. Attorneys were present at that meeting, and they told union members that the members could sign up for medical examinations to determine whether they were suffering from asbestos exposure. Wilkerson signed up for an evaluation. Several months later, Dr. James A. Merchant wrote the following in a letter he sent to Wilkerson:

“I am writing to give you the results of your medical screening examination completed in Birmingham, Alabama in August of 1984. Results of your examination were recently referred to me for interpretation and reporting to you.
“The results of your chest radiographic evaluation revealed some rounded and irregular opacities laterally in the mid and lower lung zones. The cardiac shadow was noted to be somewhat enlarged. No other abnormalities were [666]*666noted. This film is of borderline significance in regard to pneumoconiosis.
“The results of your pulmonary function evaluation found the FVC, the FEV, and your expiratory flow rates to be within the normal range.
“The tests that were performed were designed for screening purposes only. They are not the same as a comprehensive medical evaluation by your personal physician.

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Related

Urie v. Thompson
337 U.S. 163 (Supreme Court, 1949)
United States v. Kubrick
444 U.S. 111 (Supreme Court, 1979)
Kindred v. Burlington Northern Railroad Co.
742 So. 2d 155 (Supreme Court of Alabama, 1999)
LeBlang Motors, Ltd. v. Subaru of America, Inc.
148 F.3d 680 (Seventh Circuit, 1998)
Wilkerson v. Burlington Northern Railroad
795 So. 2d 657 (Court of Civil Appeals of Alabama, 1999)

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Bluebook (online)
795 So. 2d 663, 2000 Ala. LEXIS 369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilkerson-v-burlington-northern-railroad-ala-2000.