Windhorst v. BNSF Railway Co.

          ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DKT # 26)

          N. Reid Neureiter United States Magistrate Judge

         This 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 DENIED.

         I. Summary of Decision.

         Diane 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.

         BNSF seeks dismissal of the survival claim based on the statute of limitations for FELA claims. It is undisputed that Mr. Windhorst^[1] 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).

         One 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 untimely.

         I find 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.

         The 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.

         II. Undisputed Facts for Purposes of Summary Judgment.

         1. On 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.

         2. Mr. Windhorst worked for BN from 1977 to 1992.

         3. On July 15, 2015, Mr. Windhorst was diagnosed with cancer.

         4. On July 27, 2015, Mr. Windhorst admitted to occupational exposure to alleged carcinogens as a retired railroad inspector.

         5. The 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.”).

         6. On 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.

         7. The 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.”

         8. 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 ...