White v. Mercury Marine , 129 F.3d 1428 ( 1997 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 96-2931
________________________
D.C. Docket No. 94-395-CIV-FTM-25D
S. PAUL WHITE,
Plaintiff-Appellant,
GLYNNOLA WHITE,
Plaintiff,
versus
MERCURY MARINE, DIVISION
OF BRUNSWICK, INC., BRUNSWICK
CORP.,
Defendants-
Appellees,
RONALD GOLL, et al.,
Movants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 1, 1997)
Before ANDERSON, DUBINA and CARNES, Circuit Judges.
CARNES, Circuit Judge:
This appeal concerns a maritime worker's effort to recover
from the manufacturer of marine engines for the hearing loss he
suffered because of exposure to the noise of those engines during
his employment. Plaintiff S. Paul White appeals the district
court's grant of summary judgment in favor of Mercury Marine
Division of Brunswick, Inc. (“Mercury Marine”). The district court
held that White's claim was barred by the general maritime statute
of limitations, 46 U.S.C. App. § 763a. On appeal, White concedes
that he cannot recover for the hearing loss he suffered due to
engine noise exposure which occurred outside § 763a's three-year
limitations period. However, he asks us to adopt a “modified
continuing tort theory” under which he would not be barred from
recovering for the hearing loss suffered due to exposure within the
limitations period. For the reasons set out below, we decline to
adopt the modified continuing tort theory in general maritime law
and affirm the judgment of the district court.
I. FACTS AND PROCEDURAL HISTORY
S. Paul White began his employment with the Florida Marine
Patrol (“FMP”) in 1964. As a patrol officer from 1964 to 1984,
White spent six to eight hours per day, 5 days a week, patrolling
Florida's territorial waters in FMP boats. In 1984, White achieved
the rank of sergeant, and later he became a lieutenant. In his
capacity as a sergeant or lieutenant, White spent as much as half
of his work time on land. However, he spent the remainder of his
work time in FMP boats. White retired in 1995.
2
During his thirty-one years as an FMP officer, White patrolled
Florida's waters in several types of boats. One common feature of
those boats was that they had Mercury Marine engines. The amount
of engine noise exposure depends on a variety of factors, including
the size of the engine, its installation, any muffling of the
engine, how open the throttle is, and the location of the operator.
White's FMP boats had either 50, 120, 140 or 260 horsepower
engines, and the operator was positioned close to the engine.
White, as a water patrol officer, was exposed to substantial noise
from Mercury Marine's engines throughout his employment.
Not surprisingly, White now has poor hearing. He wears two
hearing aids. Understandably, he attributes his poor hearing to
being continuously exposed for more than three decades to the loud
noise created by Mercury Marine engines on the boats he operated.
The parties agree that White's hearing is impaired, and they also
agree that at least as early as 1984 White became aware that the
loud engine noise was causing him hearing loss. In that year, a
doctor advised White that his constant exposure to loud engine
noise was causing his hearing loss, and that he should wear ear
protection.1 Another doctor gave White the same advice in 1988.
In 1990 White filed a workman's compensation claim in which he
stated that the constant exposure to engine noise had caused his
gradual loss of hearing.
1
White never wore ear protection while he was on the job. The
record is unclear as to whether he simply chose not to wear it or
the performance of his duties precluded him from doing so.
3
It was not until 1994 that White sued Mercury Marine in
federal district court.2 His complaint included claims against
Mercury Marine for negligence, strict liability, and breach of the
implied warranties of merchantability and fitness for a particular
purpose. Mercury Marine deposed White, thereby learning of his
long-standing awareness of the cause of his hearing loss. Shortly
thereafter, Mercury Marine filed a motion for summary judgment,
contending that the three-year statute of limitations for general
maritime claims, 46 U.S.C. App. § 763a, barred White's claims.
In response, White argued for application of the “modified”
continuing tort theory, which is best explained in terms of that
which it modifies, the “pure” continuing tort theory. Under the
pure version of the continuing tort theory, a cause of action for
any of the damages a plaintiff has suffered does not “accrue” until
the defendant's tortious conduct ceases. See, e.g., Everhart v.
Rich's Inc., 194 S.E.2d 425, 428 (Ga. 1972)(holding that the
statute of limitations is tolled until the defendant's continuing
tortious activity is eliminated). Under the pure continuing tort
theory, a plaintiff may recover for all the harm he has suffered,
not just that suffered during the limitations period. See Taylor
v. Meirick, 712 F.2d 1112, 1118 (7th Cir. 1983). By contrast, the
modified version of that theory allows recovery for only that part
of the injury the plaintiff suffered during the limitations period.
Here, that would be the damage to White's hearing caused by the
2
White's wife also sued, asserting derivative causes of
action, but she does not appeal the dismissal of her claims.
4
noise exposure occurring within three years before the lawsuit was
filed. Apparently White chose to argue for the modified version of
the continuing tort theory instead of the more plaintiff-friendly
pure version, because he felt that with the modified version he
would have more to work with insofar as the decisions of this
Circuit were concerned.
The district court granted Mercury Marine's motion for summary
judgment, holding that the statute of limitations bars White's
claims. The court began its opinion by noting that this case fell
within the admiralty jurisdiction -- a point which White does not
contest in this Court -- and therefore general maritime law
applied. The general maritime statute of limitations, 46 U.S.C.
App. § 763a, states that a cause of action must be “commenced
within three years from the date the cause of action accrued.”
Finding no controlling precedent that defines when a cause of
action “accrues” under the general maritime law, the court chose to
apply the “discovery rule,” which had been applied by the Supreme
Court in Urie v. Thompson, 337 U.S. 163, 69 S. Ct. 1018 (1949), a
Federal Employers' Liability Act case. Because White had
discovered his cause of action more than three years before he
filed suit, the district court held that White's cause of action
had accrued more than three years before the complaint was filed,
therefore, the suit was time-barred. The court entered judgment in
favor of Mercury Marine, and White appealed.
5
II. STANDARD OF REVIEW
This Court reviews a district court's grant of summary
judgment de novo, applying the same legal standard employed by the
district court. See, e.g., Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1117 (11th Cir. 1993). Summary judgment is appropriate if
the record shows no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. See,
e.g., Eberhart v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990).
When deciding whether summary judgment is appropriate, “all
evidence and reasonable factual inferences drawn therefrom” are
reviewed in a light most favorable to the non-moving party. Warren
v. Crawford, 927 F.2d 559, 562 (11th Cir. 1991).
Whether the district court should have applied the modified
continuing tort theory or the discovery rule is a question of law,
which we decide de novo. See, e.g., Blohm v. Commissioner , 994
F.2d 1542, 1548 (11th Cir. 1993).
III. DISCUSSION
The parties agree that White’s claim is governed by general
maritime law. See Southern Pacific Co. v. Jensen , 244 U.S. 205,
215, 37 S. Ct. 524, 528 (1917)(“[I]n the absence of some
controlling statute the general maritime law as accepted by the
federal courts constitutes part of our national law applicable to
matters within the admiralty and maritime jurisdiction.”).
However, the general maritime statute of limitations, 46 U.S.C.
App. § 763a, offers little specific guidance for choosing between
6
the modified continuing tort theory and the discovery rule. It
states:
Unless otherwise specified by law, a suit for recovery of
damages for personal injury or death, or both, arising
out of a maritime tort, shall not be maintained unless
commenced within three years from the date the cause of
action accrued.
46 U.S.C. App. § 763a. “Accrue” is the operative word, the marking
point that gives the statute its bite. Unfortunately, Congress did
not define “accrue,” and thus failed to specify the depth of the
bite. Mercury Marine argues that we should define “accrue” by
referring to the discovery rule, while White argues that “accrue”
as used in § 763a, should encompass the modified continuing tort
theory. Neither party's position finds much support in the word
“accrue” itself, which simply means to become enforceable. See
Random House Unabridged Dictionary, 13 (2d ed. 1993). The
dictionary definition of accrue is unhelpful because when White's
claims became legally enforceable, or when they stopped being
enforceable, is the issue.
White concedes here, as he did in the district court, that he
knew of both his injury and its cause more than three years before
he filed suit. If we use the discovery rule to define when White's
cause of action accrued, the statute of limitations bars his suit.
If we use the modified continuing tort theory, it does not. This
appeal turns on our choice between the two.
A. SUPPLEMENTING GENERAL MARITIME LAW
Before we choose between the discovery rule and the modified
continuing tort theory, we address White's contention that we
7
should “supplement” the general maritime law on this issue with
Florida law. The Supreme Court followed the approach of
“supplementing” state law for general maritime law purposes in
Yamaha Motor Corp., U.S.A. v. Calhoun, --- U.S. ----, 116 S. Ct.
619 (1996). In that case, the Supreme Court held that courts may
use state law to supplement the remedies available for wrongful
death under the general maritime law. See id., 116 S. Ct. at 629.
Noting that Congress had not prescribed a comprehensive tort regime
to be uniformly applied, the Court reasoned that state remedies
were not displaced by maritime law. See id. 116 S. Ct. at 628; see
also Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513
U.S. ---, ---, 115 S. Ct. 1043, 1054 (1995)(holding that the
exercise of admiralty jurisdiction “does not result in automatic
displacement of state law.”). The Yamaha court did, however,
reiterate that state laws inconsistent with the substance of
federal maritime law should be given no effect. See Yamaha, 116 S.
Ct. at 624.
Florida has adopted the pure continuing tort theory. See
Seaboard Air Line R.R. Co. v. Holt, 92 So. 2d 169, 170 (Fla. 1956);
Halkey-Roberts Corp. v. Mackal, 641 So. 2d 445, 447 (Fla. Dist. Ct.
App. 1994). Whether we may rely on Florida's adoption of that
theory to supplement the general maritime law depends on the two
factors outlined in Yamaha: 1) Is the pure continuing tort theory
inconsistent with the substance of federal maritime law; and 2) Has
Congress prescribed a rule in this area that must be uniformly
applied in federal maritime law cases? See Yamaha, 116 S. Ct. at
8
628. The pure continuing tort theory is not inconsistent with the
general maritime statute of limitations because the word “accrue”
does not embrace or reject it.
However, application of Florida law would contradict the
second Yamaha requirement of the absence of congressional action in
the area. The very existence of a federal general
maritime statute
of limitations implies that it should be applied uniformly across
the nation. The federal concern with balancing the interests of
maritime plaintiffs to obtain redress for their injuries against
the interests of defendants and the court system in avoiding the
problems caused by stale claims does not vary from state to state.
Accordingly, the definition of the federal statutory term “accrue”
should not vary based on whether the forum state has adopted a
version of the continuing tort theory. See Yamaha, --- U.S. at ---
n.8, 116 S. Ct. at 626, n. 8 (“[S]tate law must yield to the needs
of a uniform federal maritime law when [the law makes] inroads on
a harmonious system”)(internal citation and quatoes omitted); In re
Amtrack “Sunset Limited” Train Crash, 121 F.3d 1421, 1424-25 (11th
Cir. 1997)(noting that Yamaha did not overrule the “bedrock
admiralty principles” of harmony and uniformity in admiralty and
maritime law). Thus, we cannot use Florida law to supplement the
general maritime statute of limitations in this or any other case,
and that would be equally true if Florida had adopted the modified
continuing tort theory that White espouses.
9
B. CONSTRUCTION OF SECTION 763a
Given the ambiguity of the statutory term “accrued,” this
would be an appropriate occasion in which to resort to legislative
history. See, e.g., United States v. Garcia, 718 F.2d 1528, 1533
(11th Cir.1983) ("Review of legislative history is only justified
when a statute is inescapably ambiguous"). However, neither party
has pointed us to anything in the legislative history of § 763a
that is helpful, nor have we been able to find any guidance there
ourselves. Decisional law is a different matter.
Although there is no binding precedent directly on point, we
do not write on an entirely clean slate. We have for guidance two
Supreme Court decisions interpreting statute of limitations
language materially identical to that of § 763a. Those cases, Urie
v. Thompson, 337 U.S. 163, 68 S. Ct. 1018 (1949), and United States
v. Kubrick, 444 U.S. 111, 100 S. Ct. 352 (1979), involved
interpretations of the Federal Employers' Liability Act (FELA) and
Federal Tort Claims Act (FTCA), respectively. Although the general
maritime law has been recognized as a distinct body of federal
common law, see In re Air Disaster At Lockerbie Scotland, 37 F.3d
804, 828 (2d Cir. 1994), this Court has used precedents from other
areas of law to inform its maritime decisions in the past, see,
e.g., Flores v. Carnival Cruise Lines, 47 F.3d 1120, 1125 n.4 (11th
Cir. 1995).
The first Supreme Court precedent, Urie v. Thompson construed
the FELA language requiring that any lawsuit under the statute be
filed “within three years from the day the cause of action
10
accrued.” In that case, a railroad worker sued his employer a
year after he had become incapacitated by silicosis. See id., at
165-66 69 S. Ct. at 1022-1023. He had been exposed to silica dust
for thirty years before filing suit. The railroad argued that
because the worker must have contracted silicosis more than three
years before his suit was filed, his cause of action had “accrued”
outside of the limitations period, therefore, the suit was barred.
See id. at 169, 69 S. Ct. at 1024. The Supreme Court rejected that
interpretation of the word “accrued” in favor of the discovery
theory of accrual, under which the cause of action accrues on the
date the worker first knew or should have known of his injury and
its cause. See id. at 170, 69 S. Ct. at 1025 (citing Assoc.
Indemnity Corp. v. Industrial Accident Comm'n, 12 P.2d 1075, 1076
(Cal. Dist. Ct. App. 1932).
The Urie court explained that adopting an actual occurrence or
onset theory of accrual would punish the worker's “blameless
ignorance” in ways that the FELA's “humane legislative plan” never
intended. See id. Indeed, it would result in the FELA providing
nothing more than a “delusive remedy” for occupational illnesses
that have a slow and gradual onset from accumulated exposure. In
the actual case before it, for example, the initial onset theory
would mean that “at some past moment in time, unknown and
inherently unknowable even in retrospect, Urie was charged with the
slow and tragic disintegration of his lungs,” and his “failure to
diagnose within the applicable statute of limitations a disease
11
whose symptoms had not yet obtruded on his consciousness” would bar
any recovery. Id. at 169, 69 S. Ct. at 1024.
The railroad contended alternatively that each inhalation of
silica dust was a separate tort giving rise to a fresh cause of
action. See id. Therefore, it argued, Urie's recovery should be
limited to the damages caused by the dust he inhaled during the
three years preceding his suit. The Supreme Court rejected that
argument. Considering the overall purpose of the Federal
Employer's Liability Act, the court stated:
mechanical analysis of the “accrual” of [Urie's] injury -
whether breath by breath, or at one unrecorded moment in
the progress of the disease - can only serve to thwart
the congressional purpose [of including occupational
diseases in the category of compensable injuries]
Id. The Court criticized the “breath by breath” measurement of
accrual, because it would “limit petitioner's damages to that
aggravation of his progressive injury traceable to the last
eighteen of his employment.” Id. at 170, 69 S. Ct. at 1024.
The modified continuing tort theory the petitioner urges us to
adopt today is little more than the modern equivalent of the
“breath by breath” theory that Urie rejected. Under the modified
continuing tort theory a plaintiff may recover damages for any
increase in injury caused by the defendant within the limitations
period, even though he “discovered” his injury before the
limitations period. See Santiago v. Lykes Bros. S.S. Co., Inc.,
986 F.3d 423, 428 (11th Cir. 1993).3
3
White contends that this Court adopted the “modified”
continuing tort theory in Santiago, a Jones Act case. Santiago
involved a maritime worker who suffered a hearing loss after
12
Faced with the similarity between the old “breath by breath”
theory rejected in Urie and the modified continuing tort theory he
favors, White argues that the reason the Supreme Court rejected the
breath by breath theory in Urie was that it as unfairly limited the
plaintiff's recovery under the facts of that case, while
application of the materially identical modified continuing tort
theory will permit this plaintiff to recover. However, the
discovery rule, as a rule of law, is not to be applied only when it
will benefit a plaintiff. It protects plaintiffs who are unaware
of their injury, while requiring those plaintiffs who have
“discovered” their injury to file suit within the prescribed
period. It, like the statute of limitations in general, is a
spending years in a ship’s engine room. The Santiago Court
concluded that the district court’s jury instructions, which were
really a recitation of the pure continuing tort theory, were
incorrect statements of the continuing tort theory. See id. at
427. In other words, if a continuing tort theory was to be applied
in a Jones Act case, it should be the modified instead of the pure
version. White argues that this Court would not have outlined the
“proper” continuing tort theory for the trial on remand had it not
accepted the theory.
So it might seem, except that the Santiago Court went out of
its way to avoid making that theory part of the law of this
Circuit. The Court pointed out that we had applied the discovery
rule instead “in numerous other federal statutory contexts,” id. at
427 and n.3, and noted that since the split the Fifth Circuit had
rejected the continuing tort theory in a Jones Act case involving
similar facts, see id. at 427. The actual holding in Santiago was
that the relevant jury instruction changed the issue to the
surprise and detriment of the defendant on the last day of trial,
and was also “an erroneous statement of the law under the
continuing tort theory.” Id. The most the Santiago Court was
willing to say as to the law of the Circuit was that, “[t]he
Eleventh Circuit has not squarely addressed the issue of the
continuing tort theory under the Jones Act,” and “[w]e do not rule
out the continuing tort theory.” Id. at 427-28. That decision did
not rule the theory in, either.
13
neutral balancing of interests, which must be neutrally applied
regardless of the party it benefits in a particular case. That
point is illustrated by the Kubrick decision, which applied the
discovery rule to the detriment of the plaintiff in that case.
In United States v. Kubrick, 444 U.S. 111, 113, 100 S. Ct.
352, 354-55 (1979), the Supreme Court was faced with the task of
construing the Federal Tort Claims Act statute of limitations,
which barred any claim not presented to the proper federal agency
“within two years after such claim accrues.” The issue in Kubrick
was whether a claim “accrues” when the plaintiff knows of both his
injury and its cause, but does not know that the injury was
negligently inflicted. See id. at 116, 356. The Supreme Court
rejected the contention that a plaintiff must know of a
tortfeasor's negligence before a cause of action will accrue. Id.
at 122, 100 S. Ct. 359. The Court reasoned that plaintiffs who are
armed with the facts about the harm they have suffered, namely
their injury and its cause, are able to protect themselves by
seeking advice in the medical and legal communities. Id. at 123,
100 S. Ct. at 360. The Supreme Court applied the discovery rule in
Kubrick, as it did in Urie, and refined that rule to clarify that
discovery of the injury and its cause -- and not the realization
that a cause of action exists -- marks the date the limitations
period starts running. As it happened, under the facts of that
case, the discovery rule operated to bar the plaintiff's lawsuit,
because he had been aware of his injury and its cause for more than
14
two years before he presented a claim. See id. at 118-125, 100 S.
Ct. at 357-61.
In its Kubrick opinion, the Supreme Court noted that statutes
of limitations often bar perfectly valid claims, and indeed “that
is their very purpose.” Id. at 125, 100 S. Ct. at 361. They exist
as statutes of repose which, after plaintiffs have had what the
legislature deems a reasonable period of time to bring claims,
“protect defendants and the courts from having to deal with cases
in which the search for truth may be seriously impaired by the loss
of evidence, whether by death or disappearance of witnesses, fading
memories, disappearance of documents, or otherwise.” Id. at 117,
100 S. Ct. at 357. The importance legislatures have accorded the
interests protected by civil statutes of limitations is evident
from the fact that they are as ubiquitous as the rights whose
vindication they condition upon timely assertion.
So, twice the Supreme Court has been presented with federal
statute of limitations language materially identical to that in the
general maritime statute of limitations, and twice the Supreme
Court has held that courts should use the discovery rule to
determine when a cause of action accrues. It is a familiar canon
of statutory construction that courts should generally construe
similar statutory language similarly. See, e.g., EEOC v. Reno, 758
F.2d 581, 583-84 (11th Cir. 1985)(finding that because provisions
of the Age Discrimination in Employment Act “were taken in haec
verba from Title VII, decisions under the analagous section of
Title VII [are] highly relevant to the issue before [the Court]”);
15
cf. also Knight v. Georgia, 992 F.2d 1541, 1545 (11th Cir.
1993)(using substantial body of case law from another, similar
provision of the Age Discrimination in Employment Act to guide the
interpretation of the operative provision); Bodzy v. Commissioner,
321 F.2d 331, 335 (5th Cir. 1963)(holding that “provisions of the
Internal Revenue Code should be interpreted similarly where similar
language is used”). We see no good reason to give the term
“accrue” as Congress used it in the general maritime statute of
limitations a different meaning from that the Supreme Court gave
the identical term when Congress used it in the FELA and FTCA
statutes.
Furthermore, it could be argued that Congress has tacitly
accepted the Supreme Court's construction of the word “accrue.”
Congress has amended neither the FELA nor the FTCA since the
Supreme Court decided Urie and Kubrick. True, it is always
treacherous to try to divine congressional intent from silence. As
one court has aptly put it, "[n]ot every silence is pregnant."
State of Illinois Dept. of Public Aid v. Schweiker, 707 F.2d 273,
277 (7th Cir. 1983). “In some cases, Congress intends silence to
rule out a particular statutory application, while in others
Congress' silence signifies merely an expectation that nothing more
need be said in order to effectuate the relevant legislative
objective. An inference drawn from congressional silence certainly
cannot be credited when it is contrary to all other textual and
contextual evidence of congressional intent.” Burns v. United
States, 501 U.S. 129, 136, 111 S. Ct. 2182, 2186 (1991). However,
16
such an inference is not contrary to any evidence of congressional
intent here. The inference that Congress did not disapprove use of
the discovery rule to define accrual for purpose of federal
statutes of limitations is perhaps strengthened by the penultimate
sentence of the Kubrick opinion. There, the Supreme Court
practically invited Congress to set things right if the Court had
misjudged the legislative intent on the matter; it did so by noting
that Congress had the ultimate power to change the meaning of
“accrue.” See Kubrick at 127, 100 S. Ct. at 361. Nearly two
decades have passed, and Congress has not exercised that power.
Congress passed the general maritime statute of limitations --
using the word “accrue” -- in 1980, which was after both Urie and
Kubrick were decided. Congress' continued use of the term
“accrue,” without even the slightest indication of disagreement
with those two decisions, suggests that Congress tacitly accepted
the Court's interpretation, or at least was not noticeably upset
with it. After all, Congress is assumed to act with the knowledge
of existing law and interpretations when it passes new
legislation. See Merrill Lynch, Pierce, Fenner & Smith v. Curran
,
456 U.S. 353, 382, n. 66, 102 S. Ct. 1825, 1841, n. 66 (1982). We
presume that Congress “expects its statutes to be read in
conformity with [Supreme Court] precedents.” United States v.
Wells, --- U.S. ---, ---, 117 S. Ct. 921, 929 (1997).
Finally, we note that in the past we have adopted the
discovery rule where Congress has failed to enact a statute of
limitations to govern various federal causes of action. See
17
Bowling v. Founders Title Co., 773 F.2d 1175, 1178 (11th Cir.
1985)(holding that the discovery rule applies to civil RICO
claims); Durham v. Business Management Assoc., 847 F.2d 1505, 1508
(11th Cir. 1988)(same as to securities claims); Mullinax v.
McElhenney, 817 F.2d 711, 716 at n.2 (11th Cir. 1987)(same as to 28
U.S.C. § 1983 claims). In Bowling v. Founders Title Co., we noted
that while state statutes of limitations set the limitations period
for civil RICO claims, the time of accrual was governed by federal
law. See Bowling, 773 F.2d at 1178 citing Rawlings v. Ray, 312
U.S. 96, 61 S. Ct. 473 (1941). In that case, we chose consistency
in the application of the “general federal rule” -- the discovery
rule -- over a rule similar to the “pure” continuing tort theory.
See id. (“[Adopting the discovery rule] is consistent with our
practice in related fraud and securities cases”).
For all of these reasons, we hold that a cause of action
“accrues” for the purposes of 46 U.S.C. App. § 763a when the
plaintiff knew or should have known of his injury and its cause.
Because it is undisputed that White knew more than three years
before he filed suit that his loss of hearing was caused by
exposure to the loud engine noise, the district court correctly
held that his lawsuit was barred by the statute of limitations.
IV. CONCLUSION
The judgment of the district court is AFFIRMED.
18