STOUT v. BURLINGTON NOR. SANTA FE

Full title: WILLIAM W. STOUT, JR. Appellant v. THE BURLINGTON NORTHERN AND SANTA FE…

Court: Court of Appeals of Texas, Second District, Fort Worth

Date published: Feb 12, 2004

No. 02-03-088-CV (Tex. App. Feb. 12, 2004)

Opinion

No. 02-03-088-CV.

Delivered: February 12, 2004.

Appeal from the 352^nd District Court of Tarrant County.

Starry Associates, P.C., and Stuart J. Starry and Marta E. Montenegro, Houston for Appellant.

Law Firm of Vince Cruz, Jr., and Vince Cruz, Jr. and Ramsey A. Abarca, Fort Worth for Appellee.

PANEL A: CAYCE, C.J.; LIVINGSTON and HOLMAN, JJ.

MEMORANDUM OPINION ¹

1 See Tex.R.App.P. 47.4.

JOHN CAYCE, Chief Justice.

Appellant William W. Stout, Jr. appeals a summary judgment dismissing the personal injury suit he brought under the Federal Employees' Liability Act (FELA)² against The Burlington Northern and Santa Fe Railway Company. In one issue, appellant contends that the trial court improperly ruled that his FELA suit is barred by limitations. We will affirm.

2 45 U.S.C.A. §§ 51-60 (West 1986).

The parties are familiar with the facts of this case and the applicable law is well-settled.

The statute of limitations period under FELA is three years from the date the cause of action accrues. 45 U.S.C.A. § 56. A cause of action accrues for limitations purposes when a claimant discovers both his injury and its underlying cause. United States v. Kubrick, 444 U.S. 111, 121-23, 100 S.Ct. 352, 359-60 (1979); Billman v. Mo. Pac. R.R. Co., 825 S.W.2d 525, 527 (Tex. App.-Fort Worth 1992, writ denied). The claimant has the burden to allege and prove that he filed suit within this limitations period. Billman, 825 S.W.2d at 527.

In his deposition, appellant admitted that he knew that he had a back injury in August of 1998 resulting from a collision between his railroad repair machine and a machine operated by another railroad worker. This uncontroverted deposition testimony conclusively proves that he discovered both his injury and its underlying cause in August of 1998. The fact that the injury subsequently turned out to be more serious than appellant first realized does not affect this accrual date. See id.

Because appellant's FELA suit was not filed until October 31, 2001, more than three years after his cause of action accrued in August of 1998, the trial court correctly ruled that his suit was time-barred. We overrule appellant's issue and affirm the trial court's summary judgment.