The opinion of the court was delivered by: Justice McNULTY
Appeal from the Circuit Court of Cook County
Honorable Michael Hogan and Donald O'Connell, Judges Presiding
Dwayne Noakes sued National Railroad Passenger Corporation (Amtrak) under the Federal Employers' Liability Act 45 U.S.C. §51 et seq. (1988)) (FELA). He later voluntarily dismissed the case, and then he tried to resurrect it in two different ways. He filed a new lawsuit, but the trial court dismissed it under the FELA statute of limitations. He then moved to vacate the voluntary dismissal, but the trial court denied the motion. He appealed from both decisions, and we consolidated the appeals.
Plaintiff began working for Amtrak in 1986. In 1993 he started to experience significant problems with his arms and hands. A doctor who treated him in May 1993 diagnosed his condition as carpal tunnel syndrome. Plaintiff underwent surgeries in August and September 1993 to relieve the condition. He filed his initial suit against Amtrak in December 1993. He returned to work for Amtrak in March 1994. Sometime thereafter he experienced new pains and numbness in several fingers, and he again sought medical treatment.
The court set the case for trial to begin in February 1998. Plaintiff moved for voluntary dismissal of the case, without requesting leave to later vacate the dismissal. On February 23, 1998, the court granted the voluntary dismissal.
In April 1998 plaintiff filed a new lawsuit against Amtrak. In the new complaint's first count he alleged that after he returned to work in March 1994 he suffered new injuries. In 1995 doctors diagnosed his condition as rotator cuff tendinitis and reinjury of the carpal tunnel. He charged Amtrak with new violations of the FELA. The second count of the new complaint repeated the allegations of the complaint he voluntarily dismissed, charging violations of the FELA before May 1993.
Amtrak moved to dismiss the second count with prejudice based on the FELA statute of limitations. The court granted the motion and expressly found no just reason to delay enforcement or appeal. Plaintiff filed a timely appeal from that order, and that appeal is docket number 1-99-1092.
Plaintiff also moved to vacate the voluntary dismissal of his original lawsuit. The trial court denied the motion and plaintiff again filed a notice of appeal, in docket number 1-99-1093.
For docket number 1-99-1092, we agree with the trial court's implicit finding that the dismissal of the second count finally disposed of a separate part of the lawsuit. Accordingly, we have jurisdiction pursuant to Supreme Court Rule 304(a). 155 Ill. 2d R. 304(a); Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 502-03, 687 N.E.2d 871 (1997).
On appeal, plaintiff contends that the FELA statute of limitations does not bar the new lawsuit. The FELA provides that the plaintiff must commence an action within three years from its accrual. 45 U.S.C. §56 (1988). Plaintiff did not file the new lawsuit until April 1998, although he knew of his cause of action against Amtrak by December 1993. He claims first that section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 1998)) gives him the right to file the new lawsuit within one year of his voluntary dismissal of the original suit.
For cases arising under the FELA, the law of the forum governs procedural matters, but federal law controls all substantive rights. Laird v. Illinois Central Gulf R.R. Co., 208 Ill. App. 3d 51, 68-69, 566 N.E.2d 944 (1991). The three-year limitations period in the FELA is "'a condition of liability constituting a substantial part of the right created.'" Huett v. Illinois Central Gulf R.R. Co., 268 Ill. App. 3d 494, 498, 644 N.E.2d 474 (1994), quoting Herb v. Pitcairn, 384 Ill. 237, 242, 51 N.E.2d 277 (1943). Hence, federal law controls the application of the limitations period. Huett, 268 Ill. App. 3d at 498.
In Burnett v. New York Central R.R. Co., 380 U.S. 424, 13 L. Ed. 2d 941, 85 S. Ct. 1050 (1965), the trial court in Ohio dismissed an FELA lawsuit because of improper venue. The plaintiff immediately filed a new suit with proper venue, but the trial court dismissed because he filed the new lawsuit more than three years after the cause of action accrued. The plaintiff argued on appeal that the Ohio saving statute, which permitted refiling within a year of the dismissal without prejudice, gave him the right to bring the new case. The Supreme Court rejected that argument, finding that "[t]he incorporation of variant state saving statutes would defeat the aim of a federal limitation provision designed to produce national uniformity." Burnett, 380 U.S. at 433, 13 L. Ed. 2d at 948, 85 S. Ct. at 1057. The Court explicitly listed the Illinois predecessor of section 13-217 as a saving statute that could not operate to protect a plaintiff's right to refile an action after the three-year limitations period. Burnett, 380 U.S. at 431, n.9, 13 L. Ed. 2d at 947, n.9, 85 S. Ct. at 1056, n.9. Burnett constrains us to hold that section 13-217 cannot protect plaintiff's cause of action under the FELA.
But in Burnett the Court held that "the FELA limitation period is not totally inflexible, but, under appropriate circumstances, it may be extended beyond three years." Burnett, 380 U.S. at 427, 13 L. Ed. 2d at 944-45, 85 S. Ct. at 1054. The court listed several circumstances that warranted equitable tolling of the limitations period, and concluded that, when the "plaintiff's case is dismissed for improper venue, the FELA limitation is tolled during the pendency of the state suit." Burnett, 380 U.S. at 435, 13 L. Ed. 2d at 949, 85 S. Ct. at 1058. The Court reversed the Ohio court's dismissal and remanded for the case to proceed on it merits.
Plaintiff here argues that in this case appropriate circumstances, within the meaning of Burnett, warrant tolling the limitations period during the pendency of his original complaint. See Huett, 268 ...