White v. Mercury Marine, Div. of Brunswick, Inc., 96-2931

• Decision Date: 01 December 1997
• Docket Number: No. 96-2931,96-2931
• Parties: , 11 Fla. L. Weekly Fed. C 872 S. Paul WHITE, Plaintiff-Appellant, Glynnola White, Plaintiff, v. MERCURY MARINE, DIVISION OF BRUNSWICK, INC., Brunswick Corp., Defendants-Appellees, Ronald Goll, et al., Movants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1428

129 F.3d 1428

1998 A.M.C. 305, 11 Fla. L. Weekly Fed. C 872

S. Paul WHITE, Plaintiff-Appellant Glynnola White, Plaintiff, v. MERCURY MARINE, DIVISION OF BRUNSWICK, INC., Brunswick Corp., Defendants-Appellees Ronald Goll, et al., Movants.

No. 96-2931.

United States Court of Appeals Eleventh Circuit.

Dec. 1, 1997.

Bruce R. Marx, George Mitchell, Mitchell, McAlpin & Associates, Miami, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Florida

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, five 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.

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.

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., 229 Ga. 798, 194 S.E.2d 425, 428 (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 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, 93 L.Ed. 1282 (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.

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., Eberhardt 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, 61 L.Ed. 1086 (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 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 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, 516 U.S. 199, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996). In that case, the Supreme Court held that courts may use state...