United States District Court, D. Colorado
ARTHUR F. WINDHORST, by and through Diane M. Windorst as spouse and Next Friend, Plaintiff,
BNSF RAILWAY COMPANY, f/k/a BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant.
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
(DKT # 26)
Reid Neureiter United States Magistrate Judge
matter is before me on Defendant's Motion for Summary
Judgment on Plaintiff Diane Windhorst's survival claim.
(Dkt #26.) Plaintiff filed a response. (Dkt. #28.) Defendant
filed a reply. (Dkt. #29.) I heard extensive oral argument on
the Motion on May 7, 2019. Having considered the briefing,
the attached exhibits, and the arguments of counsel, I find
Defendant's motion should be and is hereby
Summary of Decision.
Windhorst, as the personal representative of the Estate of
Arthur Windhorst, filed this federal lawsuit on October 21,
2018, seeking recovery against BNSF Railway Company
(“BNSF”) under the Federal Employers Liability
Act, 45 U.S.C. § 51, et seq
(“FELA”). Mrs. Windhorst claims that BNSF's
negligence caused her late husband's laryngeal carcinoma
cancer and she is pursuing two claims against BNSF: a
survival claim and a wrongful death claim. BNSF asserts in
its Motion for Summary Judgment that the survival claim is
barred by the FELA's statute of limitations, as it was
filed more than three years after Mr. Windhorst knew or
should have known his employment at BNSF might be a potential
cause of his cancer.
seeks dismissal of the survival claim based on the statute of
limitations for FELA claims. It is undisputed that Mr.
Windhorst filed a lawsuit bringing claims against
BNSF within the mandatory three-year statutory period after
discovering his claim. Mr. Windhorst promptly served BNSF.
But he had filed his lawsuit in the wrong court, choosing to
file in Illinois state court, rather than in federal court in
Colorado. Because BNSF had operations in Illinois, but was
neither incorporated there nor had its principal place of
business there, the Illinois state court lacked personal
jurisdiction over BNSF under the Supreme Court's
reasoning in Daimler AG v. Bauman, 571 U.S. 117
(2014), as expanded to FELA claims in BNSF Ry. Co. v.
Tyrell, 137 S.Ct. 1549 (2017).
business day after the Illinois state court action was
dismissed for lack of jurisdiction, Mr. Windhorst filed this
suit in federal court in Colorado, which indisputably has
personal jurisdiction over BNSF. But by the time this federal
action was filed in the District of Colorado, the statute of
limitations had arguably run. So, the critical question posed
by Defendant's motion and Mr. Windhorst's response
is, accepting that the statute of limitations had run by the
time suit was filed in Colorado, whether the statute of
limitations was equitably tolled during the pendency of the
Illinois state court case? If so, the disputed claim
survives. If not, then Mr. Windhorst's claim fails as
that the statute of limitations was equitably tolled during
the pendency of the state court case, and I decline to
dismiss Plaintiff's survivorship claim on statute of
limitations grounds. It is not contested that BNSF received
notice of Plaintiff's claims within the statutory period.
There is no prejudice to BNSF from the delay in filing in
federal court in Colorado. Had suit been filed in federal
court in Illinois, rather than state court, the case simply
could have been transferred to the District of Colorado,
pursuant to 28 U.S.C. § 1406(a), and there would not
have been any statute of limitations problem.
Supreme Court has recognized that, in FELA cases, the statute
of limitations may be tolled where suit was originally filed
in the wrong venue. Burnett v. N.Y. Cent. R.R. Co.,
380 U.S. 424, 427 (1965). Lack of personal jurisdiction, like
improper venue, can be waived by a defendant. Although BNSF
did not waive the personal jurisdiction issue here, this is
not a case where the Plaintiff filed suit in a court that
lacked subject matter jurisdiction over FELA cases. There was
a reasonable (albeit incorrect) basis for filing suit in
Illinois state court. Once the Illinois state court case was
dismissed, the Plaintiff showed diligence by promptly
re-filing in federal court in Colorado. The Supreme Court has
said that the FELA is a remedial statute that should be
interpreted liberally to favor the allegedly injured party.
For all these reasons, explained in more detail below, I find
the statute of limitations to have been equitably tolled
during the pendency of the Illinois state court proceeding.
Undisputed Facts for Purposes of Summary Judgment.
June 6, 1977, Mr. Windhorst filled out an employment
application with Burlington Northern (“BN”), a
predecessor to BNSF, seeking a carman position. The
application shows that Mr. Windhorst then resided in
Colorado, and was married to Mrs. Windhorst.
Windhorst worked for BN from 1977 to 1992.
July 15, 2015, Mr. Windhorst was diagnosed with cancer.
July 27, 2015, Mr. Windhorst admitted to occupational
exposure to alleged carcinogens as a retired railroad
statute of limitations on FELA claims is three years from
when the plaintiff knew or should have known of the existence
of the claim. 45 U.S.C. § 56; Matson v. Burlington
N. Santa Fe R.R., 240 F.3d 1233, 1236 (10th Cir. 2001)
(“[A] FELA claim accrues when the plaintiff knows or
should know that his injury is merely work-related.”).
June 18, 2018, Mr. Windhorst, by and through his wife Mrs.
Windhorst, as spouse and Next Friend, filed a complaint under
the FELA in the Circuit Court of Cook County, Illinois (the
“Illinois Suit”), seeking recovery against BNSF
and two other railroads, the Erie Lackawanna Railway and the
Consolidated Rail Corporation.
Illinois Suit alleged two counts of negligence against BNSF,
filed as counts III and IV. Count III stated that
“Plaintiff worked for BNSF based out of a train yard
located in Denver, Colorado from approximately 1973 until
1993, when he retired from railroad work.”
Count III of the Illinois Suit also alleged that BNSF
conducted and continues to conduct substantial business
within Cook County, Illinois at multiple major facilities and
offices. At oral argument, BNSF's counsel did not dispute
that BNSF ...