KELLY G. WATSON, Plaintiff and Appellant,
BNSF RAILWAY COMPANY, a Delaware Corporation; BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY; BURLINGTON NORTHERN RAILROAD COMPANY, and DOES A-Z, Defendants and Appellees.
Submitted on Briefs: October 18, 2017
FROM: District Court of the Eighth Judicial District, In and
For the County of Cascade, Cause No. ADV 10-0740 Honorable
Gregory G. Pinski, Presiding Judge
Appellant: Allan M. McGarvey, John F. Lacey, McGarvey,
Heberling, Sullivan, & Lacey, PC, Kalispell, Montana
Appellees: Chad M. Knight, Knight Nicastro, LLC, Boulder,
Jeremiah Shea, Justice
Plaintiff Kelly G. Watson ("Watson") appeals the
January 25, 2017 Order by the Eighth Judicial District Court,
Cascade County, granting Defendant Burlington Northern and
Sante Fe Railway Company's ("BNSF") motion for
summary judgment on Watson's asbestos-related disease
claim, brought under the Federal Employers' Liability Act
("FELA"). The dispositive issue in this matter is
the Bankruptcy Court's Order enjoining claims against
W.R. Grace and other "Affiliated Entities, "
including BNSF, tolled the statute of limitations on
We reverse and remand for further proceedings consistent with
AND FACTUAL BACKGROUND
Watson was a long-term employee of BNSF in Lincoln County.
During his BNSF employment, he was exposed to vermiculite
dust. The vermiculite mined in Libby and the dust produced by
it contains amphibole asbestos. BNSF transported vermiculite
for W.R. Grace & Company and its predecessors from Libby
to various locations.
In July 2000, following widespread news reports on the
hazards posed by vermiculite dust from the W.R. Grace mine in
Libby, Watson sought a health screening offered by the Libby
Community Environmental Health Program. Watson's initial
test results for lung disease were negative.
On April 2, 2001, W.R. Grace filed a voluntary petition for
relief under Chapter 11 of the United States Bankruptcy Code
in U.S. Bankruptcy Court for the District of Delaware. The
Bankruptcy Court immediately entered a temporary restraining
order ("TRO") against actions being pursued against
Nondebtor Affiliates and certain third parties arising from
W.R. Grace's mining operations and exposure to
vermiculite dust. The TRO defined "Actions" as
"pending actions and actions that have not been filed or
are not pending as of the date of entry of this Order . . .
." It also ordered "that the prosecution and/or
commencement of all Actions are temporarily restrained
pending a resolution of [W.R. Grace]'s pending motions
for a preliminary injunction . . . ." On April 12, 2001,
the Bankruptcy Court extended the TRO, again defining
"Actions" as "pending actions and actions that
have not been filed or are not pending as of the date of
entry of this Order[, ]" and ordered that the
"Order Granting Temporary Restraining Order entered on
April 2, 2001 temporarily restraining the prosecution and/or
commencement of all Actions pending a resolution of
plaintiff's pending motions for a preliminary injunction
is hereby extended through and including April 24, 2001 . . .
." On April 18, 2001, the Bankruptcy Court entered a
preliminary injunction pending a May 3, 2001 hearing.
On May 3, 2001, the Bankruptcy Court entered a Preliminary
Injunction, which ordered "that the prosecution of all
Actions are stayed and enjoined pending a final judgment in
this adversary proceeding or further order of this Court . .
. ." The Injunction again defined "Actions" as
"any case filed or pending, " but omitted the
previously used language, "and actions that have not
been filed or are not pending."
On January 22, 2002, the Bankruptcy Court modified the May 3,
2001 Order. The January 22, 2002 Order "reinstate[d] the
bar against the commencement of new Actions against
Affiliated Entities." The January 22, 2002 Order also
restored the language that had been omitted from the May 3,
2001 Order, so that the definition of "Actions"
again included "actions that have not been filed or are
not pending . . . ...