Opinion
E032080.
10-9-2003
ROGER WOLFE, Plaintiff and Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant and Respondent.
Visse & Ya&ntil;ez, Jess P. Ya&ntil;ez and Melanie Cameron for Plaintiff and Appellant. Michael L. Whitcomb, Robert N. Belt and Joseph P. Mascovich for Defendant and Respondent.
This is an action for damages for personal injuries in which the trial court granted summary judgment in favor of the defendant on the ground that the plaintiffs claim was barred by the statute of limitations. We will affirm because the defendant established in its motion as a matter of undisputed fact that the plaintiffs cause of action accrued more than three years before he filed suit and therefore was barred by the pertinent statute of limitations.
FACTUAL AND PROCEDURAL BACKGROUND
In April of 2001, Roger Wolfe sued Union Pacific Railroad Company, seeking damages under the Federal Employers Liability Act (45 U.S.C. § 51 et seq.; FELA). In his complaint, Wolfe alleged that he had worked for Union Pacific (hereafter, the defendant) from 1963 through 1999 and that the performance of his job duties during that period had caused him to suffer trauma to his back and legs. He also alleged that he "was not aware of, and had no reason or basis to know of his cumulatively caused injuries until on or about July, 1999, at which time he understood that the injury to his back and legs were as a result of his employment." He prayed for damages both under FELA and under the Boiler Inspection Statutes (49 U.S.C. § 20701 et seq.).
State courts and federal courts exercise concurrent jurisdiction over FELA cases. (45 U.S.C. § 56.)
In its answer to the complaint, the defendant alleged that the action was barred by the applicable three-year statute of limitations. In January of 2002, the defendant moved for summary judgment exclusively on that ground. The trial court denied that motion in April of 2002, finding that disputed issues of fact remained to be tried.
The defendant promptly brought a new motion, for summary judgment or summary adjudication, on the same grounds. The trial court granted that second motion for summary judgment in May of 2002. The plaintiff appeals from the judgment entered in favor of the defendant.
CONTENTIONS
The plaintiff contends that the trial court erred by granting summary judgment in favor of the defendant, both because the trial court overlooked procedural deficiencies in the motion despite the plaintiffs objection and because the defendant failed to establish the date that the plaintiffs cause of action accrued as a matter of undisputed fact.
ANALYSIS
A. ALTHOUGH THE MOVING PARTYS SEPARATE STATEMENT WAS
TECHNICALLY DEFICIENT, THE TRIAL COURT DID NOT ABUSE
ITS DISCRETION BY FAILING TO DENY THE MOTION ON THAT
GROUND.
A party moving for summary judgment must include in its moving papers "a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the courts discretion constitute a sufficient ground for denial of the motion." (Code Civ. Proc., § 437c, subd. (b).) Moreover, the separate statement "must separately identify each cause of action, claim, issue of duty or affirmative defense, and each supporting material fact claimed to be without dispute with respect to the cause of action, claim, issue of duty, or affirmative defense." (Cal. Rules of Court, rule 342(d).)
Here, the motion was made on the basis of a single affirmative defense, to wit, that the action was barred by the applicable statute of limitations because it was not filed within three years of the accrual of the cause of action. The plaintiff concedes that the notice of motion sufficiently identifies the potentially dispositive issue, but complains that the defendants separate statement fails to identify that issue. The plaintiff made the same objection below, but the trial court did not expressly rule on it.
Although the separate statement did not reiterate the affirmative defense on which the motion was based, the trial court did not abuse its discretion by failing to deny the motion on the basis of that omission. The plaintiff could not have been confused or otherwise prejudiced by that omission because the defense was expressly identified in the notice of motion as the sole ground for the motion. There being no other defenses or issues from which to distinguish the facts relating to the statute of limitations defense, the repetition of that issue in the separate statement would have served no purpose in this instance.
B. ON THE MERITS, THE TRIAL COURT PROPERLY GRANTED THE
MOTION FOR SUMMARY JUDGMENT.
A motion for summary judgment is properly granted if the moving party has shown "that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A moving defendant establishes that he or she is entitled to judgment as a matter of law by demonstrating "that the action has no merit . . . ." (Id., subd. (a).) "A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown . . . that there is a complete defense to that cause of action." (Id., subd. (p)(2).)
The statute of limitations applicable to FELA actions states: "No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued." (45 U.S.C. § 56.) Accordingly, the issue presented by the defendants motion is whether the defendant established as a matter of undisputed fact that the plaintiffs cause of action accrued more than three years before April 13, 2001, when it was filed.
1. Under the Federal Discovery Rule, a Cause of Action Accrues When the
Claimant Knows Both the Existence of His Injury and Its Cause.
"A cause of action for a tort accrues when there has been an invasion of a plaintiffs legally protected interest, which in most cases occurs at the time that the tortious act is committed." (Wagner v. Apex Marine Ship Management Corp. (2000) 83 Cal.App.4th 1444, 1448 [Jones Act, 46 U.S.C. Appen. § 688].) "`In some cases, however, the injured person may not realize that a tort has been committed upon his person, since he may sustain a latent injury which either is not or cannot be discovered until long after the tortious act that caused the injury has occurred and after the applicable statute of limitations otherwise would have run. In such a case, courts have routinely applied the so-called discovery rule to toll the running of the statute of limitations." (Id. at pp. 1448-1449, quoting Albertson v. T.J. Stevenson & Co., Inc. (5th Cir. 1984) 749 F.2d 223, 229 [Jones Act].) Because it is inequitable to bar from seeking redress someone who has no idea that he has been harmed, the limitation period begins to run only when a plaintiff knows of, or in the exercise of a reasonably diligent investigation should have discovered, his claim. (Bibeau v. Pacific Northwest Research Foundation, Inc. (9th Cir. 1999) 188 F.3d 1105, 1108.)
The FELA provides remedies, not only for accidental injuries, but also for occupational diseases or injuries. (Urie v. Thompson (1949) 337 U.S. 163, 180-181 .) As the United States Supreme Court explained, "when the employers negligence impairs or destroys an employees health by requiring him to work under conditions likely to bring about such harmful consequences, the injury to the employee is just as great when it follows . . . from a carriers negligent course pursued over an extended period of time as when it comes with the suddenness of lightning. . . . We do not think the mere difference in the time required for different acts of negligence to take effect and disclose their harmful, disabling consequences would justify excluding the one type of injury from the Acts coverage . . . ." (Id. at pp. 186-187.)
When applying the statute of limitations to the former type of injury — i.e., when "`the injurious consequences . . . are the product of a period of time rather than a point of time" — the Urie court said that the employees cause of action does not accrue until "`the accumulated effects of the deleterious [conditions] manifest themselves. . . ." (Urie v. Thompson, supra, 337 U.S. at p. 170, quoting Associated Indem. Corp. v. Indus. Acc. Com. (1932) 124 Cal.App. 378, 381.)
The United States Supreme Court revisited the discovery rule in United States v. Kubrick (1979) 444 U.S. 111 (Kubrick). In Kubrick, the high court held that, for purposes of the Federal Tort Claims Act (28 U.S.C. § 2410(b)), a cause of action accrues when the plaintiff knows or in the exercise of reasonable diligence should have discovered both the existence and the cause of his injury. (Id. at pp. 113, 120, fn. 7.) The court noted that the rule in Urie v. Thompson, supra, although announced in the context of an action under FELA, had frequently been applied to cases under the Federal Tort Claims Act. (Kubrick, p. 120, fn. 7.) Similarly, the Kubrick rule applies to FELA cases. (Dubose v. Kansas City Southern Ry. Co. (5th Cir. 1984) 729 F.2d 1026, 1029-1030; see, e.g., Fries v. Chicago & Northwestern Transp. Co. (7th Cir. 1990) 909 F.2d 1092, 1095; Monarch v. Southern Pacific Transportation Co. (1999) 70 Cal.App.4th 1197, 1203.)
The plaintiff argues for a different standard, relying principally upon the pre-Kubrick decision of the California Supreme Court in Coots v. Southern Pacific Co. (1958) 49 Cal.2d 805 (Coots). After quoting at length from Urie v. Thompson, supra, the Coots court held that a FELA cause of action accrues when an occupational illness manifests itself to such a degree that the plaintiff should have known that the condition would lead to disability. (Coots, p. 810.)
When interpreting or applying federal law, the decisions of the United States Supreme Court are binding on state courts. (Rohr Aircraft Corp. v. County of San Diego (1959) 51 Cal.2d 759, 764; Forsyth v. Jones (1997) 57 Cal.App.4th 776, 782.) However, we are also bound by the decisions of the California Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), even on questions of federal law, unless those decisions are contrary to United States Supreme Court rulings (People v. Superior Court (Williams) (1992) 8 Cal.App.4th 688, 702-703).
Because the discovery rule applicable to FELA and other federal claims statutes is a matter of federal law, opinions of the United States Supreme Court interpreting that rule control over any inconsistent opinions by any other court. The California courts 1958 decision in Coots, supra, is inconsistent with the federal courts 1979 decision in Kubrick, supra. Therefore, we must the follow the interpretation in Kubrick rather than that in Coots.
The plaintiff also relies on cases applying Californias discovery rule to tort claims under California law. But his reliance is misplaced, because the California discovery rule differs from the federal discovery rule. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109, fn. 4.) Under Californias discovery rule, the limitation period does not begin to run when the plaintiff knows of her injury and its factual or physical cause. Instead, it begins to run only when the plaintiff also suspects or should reasonably suspect a negligent or other wrongful cause. (Jolly, pp. 1109-1110, 1114; Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1057; Ward v. Westinghouse Canada, Inc. (9th Cir. 1994) 32 F.3d 1405, 1407.) The United States Supreme Court has expressly declined to include that additional element in the federal rule. (Kubrick, supra, 444 U.S. at pp. 121-123.) Therefore, cases applying the California rule have no application here.
The plaintiff also seems to argue that the statute cannot begin to run until the effects manifest themselves to a physician who diagnoses a causal connection between the injury and the plaintiffs employment. For that proposition, he quotes the following language: "The effects must manifest themselves to a physician rather than to an unschooled employee before limitations begin to run." (Aerojet-General Shipyards, Inc. v. OKeeffe (5th Cir. 1969) 413 F.2d 793, 796, fn. omitted.) But that quotation is taken out of context. In that case, "the claimants self-diagnosis was expressly rejected by several physicians, who told him that his problems were not work related. The claimant knew that his symptoms were truly work related only after being so advised by a physician a few years later." (Emmons v. Southern Pacific Transp. Co. (5th Cir. 1983) 701 F.2d 1112, 1122 [distinguishing Aerojet-General].) "Aerojet-General did not hold
. . . that in the absence of prior erroneous medical advice, . . . a correct medical diagnosis is necessary to determine the date from which the limitations period begins to run." (Sun Shipbuilding & Dry Dock Co. v. Bowman (3d Cir. 1975) 507 F.2d 146, 149-150 [refusing to follow the language quoted by the plaintiff].)
2. The Defendant Established as a Matter of Undisputed Fact That Plaintiff
Knew of His Injury and Reasonably Should Have Known of its Cause Prior to April of 1998.
The statute-of-limitations defense raises an issue of fact. (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1112.) In particular, whether a claimant knew or should have known of his cause of action at a particular time is a factual issue to be resolved by the trier of fact. (Maughan v. SW Servicing, Inc. (10th Cir. 1985) 758 F.2d 1381, 1387.) But "where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper." (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1112.) Accordingly, we turn to an examination of the record to determine whether the defendant established as a matter of undisputed facts that the plaintiff knew or should have known of his injury and its cause more than three years before he filed his action.
The defendant established that the plaintiff consulted a chiropractor, Dr. Maddux, in 1988 because the plaintiff was experiencing neck pain. At the same time, he complained to Dr. Maddux about pain to his back. From 1988 to 1996 or 1997, the plaintiff continued to have some back and neck pain. He consulted a different chiropractor, Dr. Bartlett, for back pain in 1996 or 1997. In October of 1996, Dr. Bartlett diagnosed the plaintiff as suffering from lumbar, thoracic, and cervical disorders or syndromes. When examined by a radiologist in November of 1999, the plaintiff complained of chronic low back pain with weakness in both legs over the past two years.
The plaintiff objected to the defendants evidence of this and numerous other facts on that ground "that the requisite elements of admissibility have not been established." That objection is too vague to satisfy the statutory requirement that an evidentiary objection be "so stated as to make clear the specific ground of the objection . . . ." (Evid. Code, § 353, subd. (a).) Even had it been sufficiently specific, the objection would have been waived by the plaintiffs failure to obtain a ruling on it. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1.)
This uncontradicted evidence establishes as a matter of undisputed fact that the plaintiff knew of his injury before April of 1998, three years before he filed this action. The primary area of dispute is whether the plaintiff also knew, or through the exercise of reasonable diligence should have discovered, by April of 1998 that his injury had been caused by his employment.
According to the plaintiffs deposition, he sought treatment in the 1980s from Dr. Maddux for pressure the plaintiff felt in his back after operating a switch at work. In 1988 the plaintiff saw Dr. Maddux for neck pain that occurred as a result of work. Although he could not recall whether he told Dr. Maddux that he was getting back pain from performing his duties at work, the plaintiff acknowledged that he probably described his work duties to Dr. Maddux. In doing so, the plaintiff confirmed that he would have said his duties included operating switches, getting on and off locomotives, tying and releasing hand brakes, aligning draw bars, walking along the trains on the ballast, occasionally changing out a knuckle, and sitting in the seat when the train is moving. In 1996 or 1997, the plaintiff began treatment with Dr. Bartlett for pain or pressure he felt in his back from operating a switch at work. The plaintiff acknowledged that he had neck and back pain although he did not seek treatment between 1988 when he was last seen by Dr. Maddux, and 1996 or 1997 when he started treatment with Dr. Bartlett. According to the plaintiff, he "just grinned and beared it."
The foregoing facts establish that by 1996 or 1997 when he started treatment with Dr. Bartlett, the plaintiff was aware of facts sufficient to give rise to a duty to investigate the cause of his back pain. (See Fries v. Chicago & Northwestern Transp. Co., supra, 909 F.2d at pp. 1095-1096 [once injury becomes apparent, injured person has affirmative duty to discover its cause]; accord, Matson v. Burlington Northern Santa Fe R.R. (10th Cir. 2001) 240 F.3d 1233, 1235; Bibeau v. Pacific Northwest Research Foundation, supra, 188 F.3d 1105 at p. 1108.) "[A] plaintiff must act diligently and cannot wait until the injury is actually made known to him by some unplanned incident, such as the unexpected medical diagnosis that occurred here. Rather, upon experiencing symptoms a plaintiff has a duty to investigate both the injury and any suspect cause. [Citation.]" (Fries v. Chicago & Northwestern Transp. Co., supra, 909 F.2d 1092 at pp. 1095-1096.)
The facts of this case are very similar to those in Tolston v. National R.R. Passenger Corp. (7th Cir. 1996) 102 F.3d 863, in which the plaintiff was precluded from recovering for her injuries based on her failure to investigate whether they were caused by her employment. Tolston suffered from chronic knee pain, for which she sought medical care beginning 10 years before she filed her lawsuit against her employer. The condition steadily worsened. (Id. at pp. 864-866.) Wolfe too initially sought medical treatment for neck and back pain in 1988, more than 10 years before he filed his lawsuit against his employer in 2001. Although Wolfe stopped medical treatment for a time, his back and neck pain persisted and became severe enough that he sought treatment again in 1996 or 1997. Tolston performed work functions that she knew put added stress on her knees. (Id. at p. 866.) Wolfe acknowledged that his work was very physically demanding and that 37 years of performing his job duties had probably taken a toll on his body. Tolston believed that her symptoms were caused by the ordinary wear and tear on the body caused by aging. (Ibid.) Wolfe actually attributed some of his back and neck pain to work related incidents while also believing that some of his back pain was also due to aging.
The Tolston court held that once the plaintiff was aware of the injury, she had a duty to investigate its cause and that duty was not excused by the plaintiffs belief that her condition resulted from ordinary wear and tear. "At some point, persons with degenerative conditions have a duty to investigate cause. [Citation.]" (Tolston v. National R.R. Passenger Corp., supra, 102 F.3d at p. 866.) It further held that from an objective standpoint, the plaintiffs knowledge of an injury sufficient to require medical treatment triggered the need for the plaintiff to investigate the cause of the injury. Failure to act in a reasonably diligent fashion in conducting an investigation precluded the plaintiff from obtaining recovery for those injuries. (Id. at pp. 865-866; see also Kubrick, supra, 444 U.S. at pp. 122-124.)
The plaintiffs knowledge in this case likewise gave rise to the same duty. The plaintiff knew the nature of his employment and also knew that he had suffered back and neck pain as the result of work related incidents. That knowledge combined with the chronic or persistent pain and steadily worsening physical condition, gave rise to a duty to investigate whether his employment activities were the cause of his pain. Because the duty to investigate arose as much as 10 years but at least five years before he filed his action, the plaintiffs suit is barred by the pertinent statute of limitations. In short, we conclude that the plaintiff reasonably should have discovered the work-related cause of his condition more than three years before he filed his complaint.
DISPOSITION
The judgment is affirmed. Each party to bear its own costs on appeal.
We concur: Ramirez P. J. and Ward J.