Taal v. Union Pacific R. Co.
Decision Date | 10 April 1991 |
Citation | 106 Or.App. 488,809 P.2d 104 |
Parties | Arlan W. TAAL, Appellant, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Respondent. A8811-05958; CA A64279. |
Court | Oregon Court of Appeals |
James N. Westwood, Portland, argued the cause for appellant. With him on the briefs were Miller, Nash, Wiener, Hager & Carlsen, Thomas M. Schneiger and Bricker, Zakovics & Querin, P.C., Portland.
Thomas W. Brown, Portland, argued the cause for respondent. With him on the brief was Cosgrave, Vergeer & Kester, Portland.
Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.
Plaintiff, a railroad worker, brought this action against his employer under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq., alleging that he suffers the occupational diseases of hearing loss and tinnitus. The complaint was filed on November 1, 1988. Defendant moved for summary judgment on the ground that the action is barred by the three-year limitation period of 45 U.S.C. § 56. The trial court granted the motion, and plaintiff appeals from the resulting judgment. We reverse and remand.
The issue is whether the evidence in the summary judgment proceeding leaves a material factual question as to whether plaintiff knew or should have known "the condition and its cause" before November 1, 1985. See McCoy v. Union Pacific Railroad Co., 102 Or.App. 620, 623-24, 796 P.2d 646 (1990), and authorities there cited. Defendant relied on a recorded interview with plaintiff by its claims agent, which took place in February, 1988. Plaintiff told the agent that he first noticed a hearing problem "in the middle of 1985," which he later explained, in response to the agent's question, meant
Plaintiff submitted his deposition, taken approximately one year after the interview with the agent, and contends that it created a material factual question and would support a finding that his discovery of the problem occurred after November 1, 1985. We quote from the deposition:
The parties stipulated at the hearing that plaintiff consulted Kubler before the end of October, 1985.
Defendant argues that, under Clapp v. Oregonian Publishing Company, 83 Or.App. 575, 732 P.2d 928 (1987), and Henderson-Rubio v. May Dept. Stores, 53 Or.App. 575, 632 P.2d 1289 (1981), plaintiff could not create a genuine issue of fact simply by using his deposition to contradict his earlier statements to the agent. Plaintiff relies on Cope v. Western American Ins. Co., 95 Or.App. 114, 768 P.2d 410 (1989), aff'd 309 Or. 232, 785 P.2d 1050 (1990), where we said:
"In this case, plaintiff did offer an explanation for the inconsistency between her deposition testimony and the assertions made in her affidavit." 95 Or.App. at 119, 768 P.2d 410.
See also Georges v. Severson, 94 Or.App. 41, 764 P.2d 586 (1988).
Similarly, here, plaintiff's deposition does offer an explanation for the inconsistency. Plaintiff stated that his earlier recollection of June, July or August as the time of discovery was corrected by his seeing in the chart notes that he did not consult Petrusek until November. Inferentially, his point is that he now recalls discovering the condition at or around the time that he saw Petrusek and that his prior remembrance of an earlier date was wrong.
Defendant argues, in essence, that plaintiff's explanation is unbelievable and a "sham." Defendant points out, in particular, that plaintiff told the claims agent in the interview that he had seen Petrusek in November, 1985. Therefore, his later reading of Petrusek's note could not have changed any recollections that he had at the time of the interview. Defendant analogizes the situation to Clapp v. Oregonian Publishing Company, supra, where we said:
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