Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan,
Koontz, JJ., and Poff, Senior Justice
GORDON GAY
v. Record No. 961214 OPINION BY JUSTICE ELIZABETH B. LACY
February 28, 1997
NORFOLK AND WESTERN RAILWAY COMPANY
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
Thomas V. Warren, Judge
In this case, we consider whether a deposition was
properly used as a basis for entering summary judgment and the
proper standard for determining the accrual date of a cause of
action under the Federal Employers' Liability Act (FELA), 45
U.S.C. §§ 51 through 60.
On February 1, 1994, Gordon Gay filed a motion for
judgment against his former employer, Norfolk and Western
Railway Company (N&W), pursuant to FELA. Gay claimed that he
was injured by exposure to diesel fumes and exhaust emitted by
N&W's locomotives during his employment from September 8, 1956
to December 9, 1993. N&W filed a Motion to Dismiss for Lack of
Subject Matter Jurisdiction based on Gay's deposition and
pleadings. N&W claimed that Gay's motion for judgment was not
filed within FELA's three-year statute of limitation period, 45
U.S.C. § 56, because his cause of action arose in 1989 when he
was diagnosed with myelodysplasia, a form of leukemia, or
chronic anemia.
At the hearing on N&W's motion, Gay argued that the motion
was "essentially a motion for summary judgment" and objected to
the use of his deposition in considering the motion. The trial
court held that Gay had waived his objection to the use of the
deposition, that the cause of action accrued when Gay was
diagnosed in 1989, and, therefore, the three-year limitations
period barred his action. We awarded Gay an appeal.
Gay assigns error to the trial court's ruling that he
waived his objection to the use of his deposition. Gay also
claims that reasonable people could differ as to when the cause
of action accrued and, therefore, the trial court erred in
holding that, as a matter of law, the cause of action accrued
in 1989. We consider these issues in order.
I.
During the hearing on N&W's motion, Gay objected to the
use of his deposition as a basis for summary judgment, relying
on Rule 3:18 and Code § 8.01-420. The trial court held that
Gay waived his objection because he did not raise it until
after the motion was made, briefed, and argued. That ruling
was error.
Rule 3:18 and § 8.01-420 impose a very specific condition;
namely, the parties must agree to the use of depositions before
they may serve as a basis in whole, or in part, for the entry
of summary judgment. This condition requires some showing of
acquiescence in the use of a deposition. The record in this
case cannot support a finding that Gay agreed to the use of his
deposition. Cf. Parker v. Elco Elevator Co., 250 Va. 278, 281
n.2, 462 S.E.2d 98, 100 n.2 (1995) (no objection made at any
time to use of deposition). Gay unequivocally objected to the
use of his deposition before the trial court entered judgment.
We agree that the better practice would have been for Gay to
have made his objection known earlier in the proceedings.
Nevertheless, in the absence of any basis to conclude that Gay
agreed to the use of his deposition, the trial court could not
enter summary judgment based in whole, or in part, on that
deposition.
Accordingly, the trial court erred in holding that Gay
waived his objection to the trial court's use of his deposition
and in entering summary judgment based on the deposition
without agreement by the parties as required by Rule 3:18 and
*
§ 8.01-420. This conclusion requires that we reverse the
judgment of the trial court and remand the case for further
proceedings; however, because Gay's claim relating to the
method of determining the accrual date of his cause of action
will arise on remand, we also address this issue.
II.
The federal courts apply a discovery rule for ascertaining
when an employee's cause of action accrues under the FELA.
This rule, simply stated, is that the cause of action accrues
when the employee "knows or should know" that he was injured
and that the injury was work-related. United States v.
Kubrick, 444 U.S. 111, 120 n.7 (1979) (citing Urie v. Thompson,
337 U.S. 163, 169-170 (1949)); Townley v. Norfolk & Western
*
N&W also argues that the trial court's use of the
deposition testimony was not error because its motion was not a
motion for summary judgment but a "Motion to Dismiss for Lack
of Subject Matter Jurisdiction" and, therefore, Rule 3:18 and §
8.01-420 do not apply. This argument is disingenuous.
Regardless of the label N&W placed on it, this motion was
functionally a motion for summary judgment and subject to Rule
3:18 and § 8.01-420.
Ry., 887 F.2d 498, 501 (4th Cir. 1989); Young v. Clinchfield
R.R. Co., 288 F.2d 499, 503 (4th Cir. 1961). Formal
confirmation by a physician or other expert that an illness or
injury is work-related is not necessary for a cause of action
to accrue. Townley, 887 F.2d at 501; Albert v. Maine Central
R.R. Co., 905 F.2d 541, 544 (1st Cir. 1990).
N&W argues that the trial court correctly held that Gay's
cause of action accrued in 1989 when he was diagnosed with
leukemia because Gay testified that, at that point, he
suspected his leukemia was caused by inhalation of diesel
fumes. N&W relies primarily on Townley v. Norfolk & Western
Railway for the proposition that an employee "knows or should
know" that his injury is work-related when he "suspects" such a
causal relationship. Our review of Townley, however, does not
support N&W's reading of that case.
In Townley, the court considered the time at which a
railroad employee "knew or should have known" that he had black
lung disease. The employee had worked around coal dust from
1948 to 1979. He suffered respiratory and heart problems for
10 years before he retired on disability in 1979. The employee
testified that he knew that other railroad workers exposed to
coal dust had contracted black lung disease and that railroad
workers were encouraged to apply for black lung benefits. In
1980, the employee requested that his employer send him the
information he needed to apply for black lung benefits. The
employee argued that because he did not know that he had black
lung disease, his cause of action did not accrue until he
received a formal diagnosis of the disease from the doctor in
1984.
In discussing when the employee's cause of action arose,
the court in Townley stated that the employee's action "accrued
no later than 1980 when . . . he suspected that he suffered
from black lung and that his condition was caused by his work
on the railroad." Id. at 501. This statement, however, does
not mean that if a plaintiff "suspected" his condition was
work-related he "knew or should have known" the injury was
work-related. The full holding of the case is that, based on
all the evidence, it was "obvious from [the employee's] actions
that he possessed sufficient information that he knew, or
should have known, that he had been injured by his work with
the railroad [in 1980]." Id.
An employee's mere suspicion of an injury or its probable
cause, standing alone, is not the operative standard for
determining when a cause of action accrues under FELA. Rather,
all the relevant evidence must be considered. In making this
determination, several factors have been identified, including
the degree of inquiry made by the employee, the number of
possible causes of the injury, whether medical advice indicated
no causal connection between the injury and the workplace,
DuBose v. Kansas City Southern Ry. Co., 729 F.2d 1026, 1031
(5th Cir. 1984); the complexity of the employee's symptoms, the
expert knowledge or diagnostic skill of the medical doctors or
experts consulted, Young, 288 F.2d at 503-04; and the existence
of a medically recognized and documented causal link between
the employee's symptoms and his working conditions, Stoleson v.
United States, 629 F.2d 1265, 1267 (7th Cir. 1980) (action
brought under FTCA which applies same discovery rule applied to
action brought under FELA). On remand, considering all the
relevant evidence, if reasonable persons could disagree about
when Gay "knew or should have known" that his injury was work-
related, the issue should be submitted to the jury. It is
improper, however, to resolve the issue solely on the basis
that an employee suspected that his illness was work-related.
For these reasons, we will reverse the judgment of the
trial court and remand the case for further proceedings.
Reversed and remanded.