                           IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2005-CA-00389-SCT

ILLINOIS CENTRAL RAILROAD COMPANY

v.

MILTON McDANIEL AND BETTYE C.
McWILLIAMS, EXECUTRIX OF THE ESTATE OF
LARRY McWILLIAMS, DECEASED

AND

KELLY C. ROBINSON v. ILLINOIS CENTRAL
RAILROAD COMPANY

                               ON MOTION FOR REHEARING

DATE OF JUDGMENT:                             12/08/2004
TRIAL JUDGE:                                  HON. LAMAR PICKARD
COURT FROM WHICH APPEALED:                    JEFFERSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                      LONNIE D. BAILEY
                                              GLENN F. BECKHAM
                                              EDWARD BLACKMON, JR.
                                              THOMAS R. PETERS
ATTORNEYS FOR APPELLEES:                      THOMAS W. BROCK
                                              WILLIAM S. GUY
                                              WAYNE DOWDY
NATURE OF THE CASE:                           CIVIL - PERSONAL INJURY
DISPOSITION:                                  AFFIRMED - 08/31/2006
MOTION FOR REHEARING FILED:                   07/20/2006
MANDATE ISSUED:

        EN BANC.

        SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.     The motion for rehearing is denied.   The original opinion is withdrawn, and this opinion

is substituted therefor.
¶2.       Plaintiffs filed suit against Illinois Central Railroad Company (ICRR) in the Circuit

Court of Jefferson County under the case name Robert Allen, et al v. Illinois Cent. R.R. Co.,

and pursuant to then existing Mississippi law regarding joinder and venue.               Plaintiffs asserted

their claims for asbestos related personal injuries under the Federal Employers Liability Act

(FELA). 45 U.S.C. §§ 51-60 (1939). Prior to the commencement of trial in the matter, ICRR

entered into a contingent settlement agreement with the remaining plaintiffs.                     Plaintiffs’

counsel filed two separate motions with the circuit court to enforce the settlement agreement

on behalf of a small number of the remaining plaintiffs, more than two years after the

contingent settlement was agreed upon.             After several hearings, the circuit court granted, in

part, and denied, in part the plaintiffs’ motion to enforce the settlement agreement, and

overruled ICRR’s motion to dismiss, and to compel production, to allow further investigation

and discovery, and for findings and conclusions of law.              ICRR, feeling aggrieved, appealed to

this Court regarding the enforcement of the settlement between ICRR and plaintiffs Milton

McDaniel (McDaniel) and Larry McWilliams (McWilliams).                     In addition, plaintiffs’ counsel

filed a     cross- appeal, on behalf of plaintiff Kelly Robinson (Robinson), pertaining to

Robinson’s dismissal for not conforming to the applicable statute of limitations.

¶3.       Finding no error, we affirm the findings of the circuit court.

                                                    FACTS

¶4.       On June 19, 2001, counsel for ICRR sent a letter to plaintiffs’ counsel stipulating the

payment to thirteen specifically named plaintiffs in the cause of Robert Allen, et al v. Illinois

Cent. R.R. Co. The letter also set forth a contingent payment procedure detailing the payment

of negotiated amounts to the remainder of the plaintiffs involved in Robert Allen, et al v.

                                                        2
Illinois Cent. R.R. Co. Pursuant to the agreed upon payment procedure, ICRR would not tender

payment for any remaining plaintiffs’ claims without receiving certain documentation from

each individual plaintiff, including:    a pulmonary questionnaire, authorizations, and medical

documentation establishing the claimed disease process.      Also, ICRR reserved the right to

assert three defenses to payment under the conditional settlement agreement including a

statute of limitations defense, evidence of a prior release, or if the plaintiff was never in the

employment of ICRR.       As both ICRR and the plaintiffs assert, numerous claims were settled

in accordance with the established procedure.

¶5.    In September 2003, and again in January 2004, after ICRR suspended settlement

payments, the plaintiffs filed motions with the Circuit Court of Jefferson County prompting

the circuit court to enforce the settlement agreement.     ICRR would eventually oppose any

further enforcement of the settlement due to alleged irregularities in the documentation of

certain claims by way of its motion to dismiss certain claims in the case.      The circuit court

then entertained four separate hearings pertaining to issues raised in connection with these

motions.

¶6.    At the first two motion hearings, the circuit court reopened discovery and directed both

parties to file briefs in anticipation of a final hearing on the settlement issues.       At the

succeeding motion hearing, the circuit court denied ICRR’s motion to dismiss and granted the

plaintiffs’ motion to enforce the settlement agreement.     Specifically, regarding the individual

plaintiffs currently on appeal, the circuit court found that releases signed by plaintiffs

McDaniel and McWilliams did not bar them from participation in the settlement agreement.

The circuit court also considered the claim of Robinson, and determined Robinson’s cause of


                                                 3
action was barred by the applicable statute of limitations.         ICRR subsequently motioned the

circuit court to reconsider its findings based on newly discovered evidence, to withhold entry

of final judgment to allow further investigation, and for findings of fact and conclusions of law.

The circuit court denied ICRR’s motions in a final hearing on the issues, and ICRR perfected

the present appeal with this Court regarding McDaniel and McWilliams.              Plaintiffs perfected

a cross-appeal with this Court regarding the circuit court’s findings pertaining to the dismissal

of Robinson from the action.          After full consideration of the issues, we find no error by the

trial court and accordingly affirm.

                                               ANALYSIS

¶7.     We have decreed on numerous occasions “[t]his court will not disturb the findings of

the chancellor unless it is shown the chancellor was clearly erroneous and the chancellor

abused his discretion.” Howard v. Totalfina E & P USA, Inc., 899 So. 2d 882, 888 (Miss.

2005) (citing Hill v. Southeastern Floor Covering Co., Inc., 596 So. 2d 874, 877 (Miss.

1992); Bell v. Parker, 563 So. 2d 594, 597 (Miss. 1990)).                Also, “a circuit judge sitting

without a jury is accorded the same deference with regard to [] factual findings as is a

chancellor.” Kight v. Sheppard Bldg. Supply, Inc., 537 So. 2d 1355, 1358 (Miss. 1989)

(citing Hardy v. First Nat’l Bank of Vicksburg, 505 So. 2d 1021, 1023 (Miss. 1987)).

“Abuse of discretion is found when the reviewing court has a ‘definite and firm conviction’ that

the court below committed a clear error of judgment and the conclusion it reached upon a

weighing of the relevant factors.” Howard, 899 So. 2d at 888 (citing Caracci v. Int’l Paper

Co., 699 So. 2d 546, 556 (Miss. 1997)).




                                                     4
        I. MOTION TO ENFORCE SETTLEMENT AGREEMENT

¶8.     ICRR asserts the circuit court committed reversible error by granting the plaintiffs’

motion to enforce the settlement agreement and ordering ICRR to pay the requisite settlement

amounts, in light of false affidavits submitted to ICRR by the plaintiffs.                On appeal ICRR

argues, specifically, both McDaniel and McWilliams provided false, sworn affidavits in an

attempt to distill settlement funds from ICRR.             McDaniel and McWilliams dismiss ICRR’s

claims as an attempt to distort innocuous details into facts constituting reversible error.

¶9.     ICRR alleges it began to grow curious and concerned about the contingent settlement

procedure sometime after it was agreed upon by the parties.              ICRR asserts its concerns were

piqued after it became aware of incongruities involving plaintiff Fred Tyler (Tyler) in a similar

contingent settlement      agreement. 1        During its investigation,       ICRR discovered    Tyler’s

participation in a previous, 1996 Jefferson County, asbestos case.2              ICRR then learned Tyler

was diagnosed with an asbestos related disease more than three years before filing suit against

ICRR, thus allowing for a statute of limitations defense as set forth in the settlement

agreement.      According to ICRR, “Tyler’s non- disclosure of his participation and settlements

received in the Cosey case raised a red flag for ICRR.” In response to ICRR’s concerns in this

case, counsel for the plaintiffs sent a letter to ICRR wherein the plaintiffs agreed to provide




        1
            Eakins v. Illinois Cent. R.R. Co., Civil Action No. 2001-65 (Cir. Ct. of Jefferson
County).
        2
        Cosey v. E.D. Bullard Company, Civil Action No. 2001-65 (Cir. Ct. of Jefferson
County) (eventually removed to U.S.D.C., No. 99-CV-164 (S.D. Miss.)).

                                                      5
an affidavit from each remaining plaintiff regarding all prior asbestos litigation.3   This letter

provided in pertinent part:

                  With regard to the Tyler matter, we have spoken to Mr. Tyler. It is
        apparent that when Mr. Tyler was questioned about prior litigation, he
        understood that he was being asked about a prior case against the railroad. Also,
        the questionnaire that he signed states “Yes” as the response to the question
        about prior litigation against asbestos manufacturers.
                  To make sure that this situation does not occur again, we will be
        supplying affidavits from all remaining unpaid Allen and Eakins plaintiffs
        regarding all prior asbestos litigation. If a plaintiff has been involved in prior
        litigation, we will provide you with any document that we can obtain for your
        review.

¶10.    In accordance with the letter, the plaintiffs produced fifty-eight affidavits disclosing

other asbestos litigation, and after an investigation of its own accord, ICRR determined fifty-

six of the plaintiffs’ affidavits were false.            Specifically, ICRR claims McDaniel and

McWilliams excluded information from their affidavits regarding their status as named

plaintiffs in separate and additional asbestos cases. McDaniel’s affidavit states:

                I have never been a plaintiff or a claimant in any asbestos suit other than
        Allen v. ICRR, No. 2000-100, in the Circuit Court of Jefferson County,
        Mississippi and Alderson v. Garlock, Inc., et al, No. 2002- 124- CV3, in the
        Circuit Court of Jones County, Mississippi, Second Judicial District.

ICRR points out this affidavit fails to mention McDaniel’s participation as a plaintiff in

McNeil v. Dresser Industries, Inc., 2002-283-CV9.

¶11.    Betty McWilliams, executrix of the estate of Larry McWilliams, submitted the affidavit

ICRR takes issue with; it states:




        3
        The first page of the facsimile letter dates the document April 22, 2002; however this
is apparently a mistake as the second page of the document sets the date correctly as April 22,
2004.

                                                     6
                Larry L. McWilliams has never been a plaintiff or a claimant in any
        asbestos suit other than Allen v. ICRR, No. 2000-100, in the Circuit Court of
        Jefferson County, MS and Moore v. Garlock, Inc. et al, No. 2002-470, in the
        Circuit Court of Smith County, MS.

ICRR points out this affidavit fails to mention McWilliams’ participation as a plaintiff in

McNeil, and Acuff v. American Optical Corporation, 2003-159-CV8.

¶12.      ICRR insists the plaintiffs’ omissions of McNeil and Acuff from, not only the

McDaniel and        McWilliams       affidavits, but also from twenty-nine additional affidavits,

constituted an egregious and pervasive pattern of deception.          Conversely, plaintiffs’ counsel

claim an unintentional mistake due to their own oversight resulted in the harmless absence of

McNei l and Acuff from the affidavits.         Plaintiffs point out both McNeil and Acuff were filed

after the case at bar.      Plaintiffs contend they therefore conformed to the procedure set forth

in their letter, whereby they voluntarily agreed to furnish affidavits concerning only prior

asbestos litigation, see supra.

¶13.    The circuit court heard virtually identical arguments from both parties in open court.

During the hearing the circuit court stated:

        I think this case will turn on what your supplemental agreement says. If the
        plaintiffs were only to disclose prior, and I emphasize “prior” participation in
        asbestos litigation, then I believe that the court should disregard this argument
        and allow them to recover provided they have complied with all other aspects of
        the settlement agreement. If it says to disclose all participation in asbestos
        litigation, both past and present, then that may be another situation, and I need
        to determine whether this is such bad faith of a material breach of the agreement
        that it warrants dismissal of the plaintiffs. I need to know what the supplemental
        agreement says.




                                                    7
The circuit court thereafter allowed both parties to argue their positions on omission of

McNeil and Acuff from certain affidavits.            The circuit court then made its findings on the

record, and those findings, in pertinent part, were as follows:

        I believe you, counsel, that these things were omitted by inadvertence. I will
        suggest to you that when you’re dealing with something that’s - - I mean, if we
        were talking about a simple letter, you inadvertently left something out of a
        letter to the Illinois Central or something to that effect, that’s one thing, but
        when you’re signing an affidavit or having people sign affidavits, if they’re
        swearing to things that are inadvertently wrong, that can have serious
        consequences. I mean, an affidavit is something that you need to make sure is
        correct before you allow the plaintiffs or whoever to sign it. In any event, the
        errors have been discovered. I don’t think there’s any prejudice.

The circuit court then denied ICRR’s motion to dismiss and granted the plaintiffs’ motion to

enforce the settlement agreement.

¶14.    This Court agrees with the circuit court that the absence of McNeil and Acuff in the

affidavits at issue was inadvertent, not willful and intentional as ICRR insists.     Therefore, the

circuit court did not abuse its discretion.

¶15.    In addition, we remind the attorneys of this State that they should be very careful when

signing, or having a client sign, a sworn statement such as an affidavit. Although sanctions were

not deemed appropriate by the circuit court in this case, all attorneys should nonetheless heed

the circuit court’s warning that swearing to false or incorrect statements could result in a

myriad of dire consequences. The process of simply reading and verifying what is being signed

operates as a seine for filtering out potential drastic errors caused by a factually incorrect

sworn statement. Thus, this Court finds that such a preemptive warning, or admonition, offered

to the legal community by this Court will operate as a preventive measure, to combat future

affidavit inconsistencies. Nevertheless, this issue is without merit.


                                                      8
           II. MOTION TO RECONSIDER

¶16.       Subsequent to the circuit court’s grant of the plaintiffs’ motion to enforce the

settlement agreement ICRR filed its motion to reconsider the ruling, to compel production,

for further discovery and investigation, and for findings of fact and conclusions of law.      The

circuit court heard ICRR’s motion to reconsider its previous findings in open court.         ICRR

argued at the hearing that the circuit court abused its discretion when it failed to reconsider its

findings in light of newly discovered evidence.4        Further, ICRR asserted the circuit court

committed additional error by refusing to compel production of documents, refusing to allow

discovery, and refusing a request for the court’s findings of fact and conclusions of law

pursuant to M.R.C.P. 52(a).

¶17.       After hearing arguments on the motion by both parties, the circuit court denied ICRR’s

motion to reconsider.       Today, on appeal, ICRR presents this Court with virtually identical

arguments as it presented to the circuit court.        ICRR claims the circuit court abused its

discretion by denying the motion to reconsider.

¶18.       ICRR initially raised the issue of newly discovered evidence at the motion hearing. The

majority of      ICRR’s argument on newly discovered evidence consisted of a rehash of ICRR’s

previous arguments regarding the absence of McNeil and Acuff from the plaintiffs’ affidavits.

In response the circuit court echoed its findings from the previous hearing, see supra, by

stating:



           4
         ICRR claims to have new evidence that the plaintiffs were aware of McNeil and Acuff
at the time they signed the affidavits at issue. ICRR insists two documents pertaining to
McNeil’s current status in bankruptcy proceedings conclusively prove plaintiffs’ counsel did
not inadvertently omit McNeil and Acuff at the time the affidavits were drafted.

                                                  9
        I believe that there was no intent to defraud from what I’ve heard so far. It
        appears to me that there was a mistake made, and it was bad wording of your
        document that there was a mistake made and that the affidavit should have been
        worded differently, and I believe that. And I also believe that both you and your
        client should be more careful before they sign affidavits and anything of that
        nature under oath. I think that certainly they should be more careful and you
        should be more careful in instructing your clients. I will say that without
        hesitation; however, I don’t see that there’s any intent to defraud. From what I
        have before me at this point, I don’t see any intent to defraud.

¶19.    ICRR then requested the circuit court to compel production of documents regarding

an addendum to a contract of employment between the plaintiffs and their attorneys. Regarding

this request, the circuit court declared:

        Well, counsel [for ICRR], and I would grant that if there were something that
        you gain from the information that you’re requesting. First, of all you need to
        understand the information that you’re requesting is privileged.

        ...

        I would order that that privilege be - - that you produce the documents and things
        of that nature under exceptional circumstances, and if I felt that the information
        that you could obtain from reading these documents would show me that the
        language of this affidavit was intentional and that the folks intended to defraud
        you rather than a mistake in the drafting of the document by the attorney, then
        I might consider that, but I don’t see any way it could possibly do that, so I’m not
        going to allow you to get those things.

¶20.    At the conclusion of the hearing, the circuit court pointed out McNeil and Acuff were

filed after the case at bar, thus there was no statute of limitations defense that could be raised,

and ICRR agreed. Moreover, the circuit court did not find that any of ICRR’s requests would

lead to proof of its allegations.           The circuit court ultimately denied ICRR’s motion to

reconsider its ruling regarding ICRR’s motion to dismiss, and to compel production, to allow

further investigation and discovery, and for findings and conclusions of law.




                                                    10
¶21.    It is clear to this Court that the circuit court gave ICRR’s motion for reconsideration

due consideration.      Furthermore, although this Court prefers trial courts to make separate

particularized findings of fact and conclusions of law, general findings of fact and conclusions

of law do not require reversal, and they technically conform to the requirements of M.R.C.P.

52. Cent ury 21 Deep South Props. Ltd. v. Corson, 612 So. 2d 359, 366-67 (Miss. 1992). In

this case, the circuit court made several findings on the record regarding its decision to deny

ICRR’s motion.       Moreover, these findings are sufficiently situated as to allow this Court to

make its own findings.     In accordance with the circuit court’s on-the-record findings, we find

the circuit court did not abuse its discretion when it denied ICRR’s motion.      Thus, this issue

is without merit.

        III. RELEASES

¶22.    ICRR now alleges it need not tender payment to either McDaniel or McWilliams

because both previously released their asbestos claims against ICRR. 5        Specifically, ICRR

insists McDaniel personally released his claim by signing an occupational injury release,

thereby releasing all personal injury claims he had against ICRR.        Also, ICCR maintains

McWilliams released his claim because his claim has already been settled pursuant to the

settlement agreement.

        McDaniel

¶23.    In 1998, while employed by ICRR, McDaniel suffered a career ending back injury when

he attempted to set a defective hand brake.     Due to the injury he suffered, McDaniel sent his



        5
         The contingent settlement procedure provided three defenses to payment for ICRR,
see supra, and one of those defenses was a release of claim.

                                                11
demands to ICRR’s claims department. As evinced by ICRR memoranda, McDaniel and ICRR

subsequently settled his claim for the back injury suffered.             As part of the back injury

settlement, McDaniel signed a document titled Final Settlement Release and Agreement Not

to Return to Work.        The language of this document released ICRR for a number of ailments,

including exposure to asbestos, see infra.        Although he was x-rayed approximately one month

prior to signing the release, McDaniel’s x-ray was not read until several months after the

release was signed. Thus, McDaniel contends that at the time he signed the release at issue,

he was not aware of his potential claim against ICRR for asbestos related injuries.         Moreover,

McDaniel maintains the release was ineffective as to his claim in this case.

¶24.        Just as with every plaintiffs’ claim in this case, McDaniel’s claim was filed under FELA.

Therefore, this Court must determine whether § 5 of FELA applies to McDaniel’s claim

because § 5 of FELA limits ICRR’s ability to fully exempt itself from liability.         Section 5 of

FELA states in pertinent part “[a]ny contract, rule, regulation, or device whatsoever, the

purpose or intent of which shall be to enable any common carrier to exempt itself from any

liability created by this chapter, shall to that extent be void. . . .” 45 U.S.C. § 55. The issue of

release presently before this Court has previously been considered in two different federal

circuits.

¶25.        First, in Babbitt v. Norfolk & Western Ry. Co., 104 F.3d 89 (6th Cir. 1997), the United

States Court of Appeals,          Sixth Circuit, considered a general release issue in regard to

employee FELA claims against a railroad employer.                In Babbit, the Court considered the

claims of plaintiff-employees       under FELA on the grounds the defendant-railroad was

responsible for hearing loss during the course of their employment.            At issue in Babbitt was


                                                    12
a general release signed by the plaintiffs upon resignation from the railroad.   The Sixth Circuit

determined:

       where there exists a dispute between an employer and employee with respect to
       a FELA claim, the parties may release their specific claims as part of an out-of-
       court settlement without contravening the Act. However, where the release was
       not executed as part of a specific settlement of FELA claims, 45 U.S.C. § 55
       precludes the employer from claiming the release as a bar to liability.
       Philadelphia, Baltimore, & Washington R.R. Co. v. Schubert, 224 U.S. 603,
       612, 32 S. Ct. 589, 591-92, 56 L. Ed 911 (1912). To be valid, a release mus t
       reflect a bargained-for settlement of a known claim for a specific injury,
       as contrasted with an attempt to extinguish potential future claims the
       employee might have arising from injuries known or unknown by him.

Babbitt, 104 F. 3d at 93 (emphasis added).

¶26.   In the case presently before this Court, the only known injury at the time McDaniel

signed the release was the severe back injury he suffered as a result of a defective hand brake.

Although McDaniel was x-rayed approximately one month prior to signing ICRR’s release

form, the x-ray was not read until several months after he signed the release.       Furthermore,

there is no evidence McDaniel was aware he may have a potential asbestos-related injury.

Therefore, in accordance with the Sixth Circuit’s view, the release McDaniel signed would not

bar him from settlement.

¶27.   Similarly, in Wicker v. Consol. Rail Corp., 142 F.3d 690 (3d Cir. 1998), the United

States Court of Appeals, Third Circuit, also considered the FELA claims of plaintiff-

employees who were injured due to exposure to toxic chemicals during the course of their

employment with defendant-railroad.    However, Wicker failed to fully adopt the Sixth Circuit’s

rationale in Babbitt. Instead of applying the Sixth Circuit’s bright-line rule, Wicker noted “that

what is involved is a very fact-intensive process, but trial courts are competent to make these


                                               13
kinds of determinations.”      Id. at 701.      Furthermore, Wicker provided “where a release merely

details a laundry list of diseases or hazards, the employee may attack that release as

boilerplate, not reflecting his or her intent.” Id.

¶28.       Hence, it is patently clear the Third Circuit strongly disfavors the use of “blanket

releases” as applied in FELA claims.              Wicker provided an example of what constitutes a

sufficient release:

           a release that spells out the quantity, location and duration of potential risks to
           which the employee has been exposed-for example toxic exposure-allowing the
           employee to make a reasoned decision whether to release the employer from
           liability for future injuries of specifically known risks does not violate § 5 of
           FELA.

Id. at 701. Accordingly, Wicker ultimately held:

           As noted, we hold that § 5 of FELA allows an employer to negotiate a release
           of claims with an employee provided the release is limited to those risks which
           are known by the parties at the time the release is negotiated. In the case before
           us, we find the releases signed by the parties violate § 5 because they purport to
           settle all claims regardless whether the parties knew of the potential risks.

Id. at 702.

¶29.       The release McDaniel signed as a result of an on the job injury settlement, covered a

vast and extensive spectrum of potential injuries which could potentially arise in McDaniel’s

future.6       Also, included within the language of the document appears the following phrase:


           6
         The following portion of the release at issue reads like a “laundry list” of potential
claims from which ICRR sought exemption:

           . . . the undersigned does hereby fully, completely and forever release,
           discharge, and acquit Illinois Central Railroad Company. . . from any and all
           claims, losses, damages, injuries or diseases which are presently known to exist
           ans were or are directly or indirectly caused by or resulting from injuries which
           occurred on or about May 4, 1998, as well as any alleged exposure of the

                                                      14
THIS IS NOT A RECEIPT FOR WAGES - IT IS A GENERAL RELEASE. This further evinces

that the release at issue was in fact the dreaded “laundry list” general release, disfavored by

both Babbitt and Wicker. The language found in the McDaniel release is clearly an overbroad

list of generic hazards, rather than the specific risks of asbestos McDaniel faced.          Therefore,

pursuant to the Third Circuit’s school of thought McDaniel’s release would not pass muster

under § 5 of FELA.

¶30.   Conversely, ICRR propounds the United States Supreme Court decision of Callen v.

Pennsylvania R. Co., 332 U.S. 625, 68 S. Ct. 296, 92 L. Ed. 242 (1948), is controlling

authority. However, this Court does not agree due to numerous factual and legal dissimilarities

between Callen and this case. Callen involved an instance where a plaintiff suffered a severe

back injury during the course of his employment with the railroad.              The plaintiff eventually

filed suit against the railroad as a result of the injuries he sustained.       Among its defenses to

liability, the railroad claimed the plaintiff executed a valid release specifically pertaining to

the plaintiff’s claims arising out of the back injuries involved in the suit.     Callen, 332 U.S. at

626-27.    The release at issue in Callen arose out of the plaintiff’s back injury and was



       undersigned to asbestos, coal dust, sand, silica, welding fumes, brass fumes,
       diesel fumes, fuel fumes, paint vapors, methylbromide , ammonia, gas, lead,
       PCB, dioxin, or other toxic or noxious chemical exposure and all other fumes,
       dusts, mists, gases and vapors from any chemical or agent, injuries or diseases
       which are presently known to exist and were or are directly or indirectly caused
       by or resulting from the exposure of the undersigned to noise, including
       incidents or exposures which may have aggravated any pre-existing condition,
       as well as injuries to the upper extremities of my body including neck,
       shoulders, arms and wrists due to repetitive motion/strain and/or cumulative
       trauma - commonly known as Carpal Tunnel Syndrome, while the undersigned
       was in the employ or environment of the Illinois Central Railroad Company. .
       ..

                                                 15
specifically designed and executed for future litigation as a result of that back injury.   Id.   The

facts in Callen present an issue where a release arose out of the specific injury alleged.

Conversely, the McDaniel release initially arose out of McDaniel’s back injury.             However,

ICRR asserts the release as a defense to payment for McDaniel’s current asbestos related

injuries because the broad verbiage of the release creates an anticipatory laundry list of

possible injuries effectively throwing in everything but the kitchen sink.    Therefore, Callen is

clearly distinguishable from the case at bar.

¶31.    After due consideration, this Court finds the holdings of the Sixth and Third Circuits

are compelling authority as applied to this case.     Further, after applying the holdings of both

the Sixth and Third Circuits, we find McDaniel’s release was ineffective under § 5 of FELA to

preclude his claim against ICRR for asbestos related injuries; to hold otherwise would produce

an unconscionable result.      Therefore, the circuit court did not abuse its discretion in finding

McDaniel’s release ineffective in this case.     Thus, McDaniel’s claim should not be released.

        McWilliams

¶32.    McWilliams, a former ICRR employee, entered into settlement negotiations with ICRR

after being diagnosed with asbestosis.          In accordance with the settlement agreement,

McWilliams submitted the requisite supporting documentation regarding his illness, and ICRR

agreed to payment. Prior to tendering payment, ICRR forwarded a release to McWilliams for

his asbestos related injuries. McWilliams signed the release and returned a copy of it to ICRR

along with a letter explicitly stating “[t]he enclosed copies are not effective until such time as

payment set forth above has been made by ICRR.” Further, the letter provided that ICRR would

be sent the original copy of the release upon receipt of the settlement amount.             However,

                                                 16
approximately one week later McWilliams sent an additional letter notifying ICRR he had been

diagnosed with cancer and would be withdrawing his claim, for which he had not been paid.

¶33.     ICRR argues McWilliams settled his asbestosis claim and effectively released ICRR

from any future claim.      This argument fails on several fronts.        First, the letter McWilliams

attached to the copy of the signed release clearly demonstrated the copies of the release would

not be effective until ICRR made payment.          Next, ICRR never tendered nor completed any

settlement payment whatsoever regarding McWilliams’ asbestosis injuries.                    Finally, the

settlement agreement provided that “[p]rior to payment, any plaintiffs’ diagnosis could change:

i.e., a plaintiff with a current diagnosis of asbestosis or asbestos related pleural disease could

develop a malignancy, or a plaintiff with asbestos related pleural disease could be diagnosed

with asbestosis.”     The circuit court considered this very issue regarding McWilliams and

determined:

         My ruling on that case is, if in fact the agreement between Illinois Central and
         the plaintiffs allowed him to change his type of claim upon a new diagnosis prior
         to his being paid, and he changed his diagnosis prior to being paid, it falls within
         that section; and you need to look at the new diagnosis.

¶34.     Pursuant to the settlement agreement between the parties, McWilliams was allowed to

change his type of claim because he notified ICRR of his change of diagnosis prior to payment.

Therefore, the circuit court did not abuse its discretion in its findings.        This issue is without

merit.

         IV.    CROSS-APPELLANT KELLY ROBINSON – STATUTE OF LIMITATIONS

¶35.     On cross-appeal, Robinson argues the circuit court erred in finding the applicable FELA

statute of limitations, under 45 U.S.C. § 56, had run as to his claim. 45 U.S.C. § 56 states:



                                                   17
        No action shall be maintained under this chapter unless commenced within three
        years from the day the cause of action accrued.

“Compliance with 45 U.S.C. § 56 is a condition precedent to an injured employee’s recovery

in a FELA action.” Emmons v. Southern Pacific Transp. Co., 701 F.2d 1112, 1117 (5th Cir.

1983) (citing Gulf, Colorado & Santa Fe R.R. Co. v. McClelland, 355 F.2d 196, 197 (5th Cir.

1966)). “The burden is therefore on the claimant to allege and to prove that his cause of action

was commenced within the three-year period.” Emmons, 701 F.2d at 1118 (citing Carpent er

v. Erie R.R. Co., 132 F.2d 362, 363 (3d Cir. 1942), cert denied, 318 U.S. 788, 63 S. Ct. 983,

87 L. Ed. 1155 (1943)).

¶36.    In 1989, well over three years before this case was filed, Robinson was diagnosed with

pulmonary fibrosis. With this knowledge in hand, the circuit court found:

        With respect to Kelly Robinson, I believe that this claim should be barred by the
        statute of limitations and dismissed because he was diagnosed with pulmonary
        fibrosis in 1989. The diagnosis at least put the plaintiff on notice of the accrual
        of his cause of action and the statute of limitations ran in 1992.

The circuit court applied the United States Supreme Court case of Urie v. Thompson, 337 U.S.

163, 69 S. Ct. 1018, 93 L. Ed. 1282 (1949), in ruling Robinson’s claim was barred.            Urie

offers “the afflicted employee can be held to be ‘injured’ only when the accumulated effects

of the deleterious substance manifest themselves.” 337 U.S. at 170.         Stated another way, as

related to this case, Robinson’s claim for an asbestos related injury will begin to run when

Robinson knew or reasonably should have known the injury was present.

¶37.    Also, the circuit court applied the Federal District Court’s opinion in Williams v. S.

Pac. Trans. Co., 813 F. Supp. 1227 (S.D. Miss. 1992) to Robinson’s claim for asbestos



                                                  18
related damages.    In Williams the Federal District Court propounded “the federal courts have

applied the discovery [rule] (an objective, ‘knew or should have known’ test) to determine when

the limitation period begins to run.” Id. at 1232; see Emmons, 701 F.2d at 1119 (limitation

period begins to run when claimant becomes aware that he has been injured and that his injury

is work related); Fries v. Chi. & Nw. Transp. Co., 909 F.2d 1092, 1095 (7th Cir. 1990) (the

test is an “objective inquiry into when the plaintiff knew or should have known, in the exercise

of reasonable diligence, the essential facts of injury and cause”); Albert v. Me. Cent. R.R. Co.

905 F.2d 541, 544 (1st Cir. 1990); Townley v. Norfolk & W. Ry. Co., 887 F.2d 498, 501 (4th

Cir. 1989). Further, Williams decreed:

       Actual knowledge by the plaintiff of the governing cause of the injury is not
       necessary to a finding that the cause of action has accrued. Further, it is not
       necessary that the plaintiff be formally advised by a physician or receive a
       medical diagnosis as to the cause of injury for the action to accrue. Nor must
       the injury reach its maximum severity before the cause is deemed to accrue.
       The action accrues when the injury first manifests itself to the plaintiff. As
       recognized by the courts, the discovery rule imposes an affirmative duty on
       plaintiff to investigate the potential cause of his injury. This is a fair rule since
       the discovery rule should not be abused by plaintiffs who are aware that an injury
       exists yet choose to ignore it and fail to investigate the cause. Obviously, such
       a course of wilful inaction has the potential of visiting prejudice upon
       defendants who may be blind-sided by lawsuits long after the complained-of
       negligence.

Williams, 813 F. Supp. at 1232 (citations omitted).

¶38.   After due consideration, we find the circuit court properly applied the aforementioned

precedent to this case in rendering its ultimate finding.   Furthermore, there is nothing in the

record demonstrating Robinson met his burden of proving he commenced his action within the

three-year limitation period.   After hearing arguments by both parties, the circuit court was in

the best position to determine whether Robinson’s claim should be barred by the statute of

                                                19
limitations.   In line with this notion and the applicable standard of review, this Court finds

Robinson has failed to show the circuit court committed a clear error of judgment. Therefore,

the circuit court has not abused its discretion, and this issue is without merit.

                                              CONCLUSION

¶39.     For the aforementioned reasons the circuit court did not abuse its discretion by

ordering enforcement of the settlement agreement.             Moreover, the circuit court did not abuse

its discretion by finding cross-appellant Robinson to be barred pursuant to the statute of

limitations defense, as provided in the contingent settlement agreement.                 Therefore, the

judgment of the circuit court is affirmed regarding all issues.

¶40.     AFFIRMED.

     WALLER AND COBB, P.JJ., DIAZ, EASLEY, CARLSON AND DICKINSON, JJ.,
CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. RANDOLPH, J., NOT
PARTICIPATING.




                                                      20
