Case Name: Mark G. Maynard v Norfolk Southern Railway
Date: 18th June 2009
Court: Court of Appeals of Ohio – Fourth District – Scioto County
Judge: Judge Harsha
Citation: 2009 WL 1844054 (Ohio App. 4 Dist.)

Background: The appellant, Mark G. Maynard, filed suit against the appellee, Norfolk Southern Railway. Maynard alleged that as a direct and proximate result of Norfolk’s violations of the FELA and the Locomotive Boiler Inspection Act (“LBIA”), he developed pulmonary problems due to exposures to various toxic substances, including asbestos.

Maynard’s complaint did not state when he learned of these pulmonary problems or first linked them to his employment with Norfolk.

Norfolk filed an answer in which it asserted several affirmative defenses, including statute of limitations and failure to state a claim upon which relief can be granted. Norfolk filed a motion to dismiss, arguing that Maynard failed to state a claim upon which relief could be granted because his claims were barred by the FELA’s three year statute of limitations. Further, Norfolk contended that the limitations period applied to Maynard’s LIBA claims because lawsuits under that act are maintained under the FELA.

According to Norfolk, Maynard filed suit against it on December 18, 2003, but then dismissed the action by an agreed order. Therefore, Norfolk contended that the statute of limitations began to run on December 18, 2003, when Maynard dismissed the action.

The trial court found that Maynard’s claim was barred by the FELA’s statute of limitations and that there was no legal or equitable basis to circumvent the expired limitations. After the court granted Norfolk’s motion to dismiss, Maynard filed this appeal.

Issue: Maynard assigned the following errors for this Court to review:
(1) The lower court erred in holding there was no legal basis to circumvent the statute of limitations period.
(2) The lower court erred in holding there was no equitable basis to circumvent the statute of limitations period.

Held:
First assignment of error:
In his first assignment of error, Maynard contended that the trial court improperly considered evidence outside the pleadings when it ruled on Norfolk’s Civ.R. 12(C) motion. However, a party asserting error must call it to the court’s attention at the time the error could have been corrected or avoided.

Because Maynard failed to object to the evidence Norfolk attached to its Civ.R. 12(C) motion, he forfeited the right to appeal any error in the trial court’s consideration of this evidence to conclude that Maynard filed his claims outside the FELA’s limitations period. Therefore, this Court overruled Maynard’s first assignment of error.

Second assignment of error:
Maynard contended in his second assignment of error that the trial court should have tolled the statute of limitations on equitable grounds because (1) he promptly filed the other action; (2) Norfolk knew of that action and defended against it, so it would not be prejudiced by tolling; and (3) without tolling, Maynard would lose the right to pursue his claims, so he would suffer great prejudice.

However, Maynard failed to make his argument in the trial court. Because Maynard failed to make an equitable tolling argument in the trial court, he failed to properly preserve the argument for appellate review and forfeited the right to raise the issue on appeal. Therefore, this Court overruled Maynard’s second assignment of error.

Comments:

Equitable tolling is a part of tort law, which states that a statute of limitations shall not bar a claim in case where the plaintiff, despite use of due diligence, could not or did not discover the injury until after the expiration of the limitations period.

For example, when pursuing one of several legal remedies, the statute of limitations on the remedies not being pursued will be equitably tolled if the plaintiff can show:
· Timely notice to the adverse party is given within the applicable statute of limitations of filing first claim
· Lack of prejudice to the defendant
· Reasonable good faith conduct on the part of the plaintiff.

Steve Gordon
http://www.gordon-elias.com