EMMETT E. COOMER

,;VUyr-rMr (&Turf of

RENDERED : AUGUST 26, 2010

TO BE PUBLISHED

2008-SC-000784-DG

ON REVIEW FROM COURT OF APPEALS

V. CASE NO. 2006-CA-002054-MR

PERRY CIRCUIT COURT NO. 03-CI-00363

CSX TRANSPORTATION, INC. APPELLEE

OPINION OF THE COURT BY JUSTICE SCHRODER

REVERSING AND REMANDING

Appellant Emmett Coomer appeals from a summary judgment in favor of

Appellee CSX Transportation, Inc. (CSX) based on the doctrine of resjudicata.

We conclude that a genuine issue of material fact exists as to when Coomer's

second cause of action accrued. Therefore, summaryjudgment was

inappropriate on the issue of claim preclusion . We also conclude that

Coomer's claim is not barred by issue preclusion . Therefore, we reverse the

opinion of the Court of Appeals and remand to Perry Circuit Court.

I. BACKGROUND

Coomer has worked for CSX for over 20 years in a number of general

labor positions, including most recently as a trackman. On October 8, 2001,

Coomer filed suit against CSX under the Federal Employers' Liability Act
(FELA) 1 in Jefferson Circuit Court. In his Jefferson Circuit suit, Coomer

alleged that he suffered from carpal tunnel syndrome and ulnar neuropathy as

a result of repetitive and cumulative occupational trauma to his hands, wrists,

and arms . As required for a successful claim under FELA, Coomer alleged that

his injuries were the result of CSX's negligence, including failure to provide a

reasonably safe workplace, failure to warn of the risks posed by job duties, and

failure to properly supervise and enforce safety procedures .

Coomer also suffered from pain in his neck, back, shoulders, and knees.

According to Coomer, while his Jefferson Circuit case was pending, he learned

for the first time that this pain was connected to his employment with CSX.

On October 4, 2002, Dr. Craig Beard, one of Coomer's physicians, wrote a

letter stating that Coomer's neck, back, and knee pain was "50% related to his

job."

Attorneys for Coomer and CSX discussed the possibility of Coomer

amending his Jefferson Circuit complaint to include negligence claims related

to his neck, back, shoulder, and knee pain. In a letter to Coomer's counsel

dated June 2, 2003, counsel for CSX stated:

1 45 U.S.C. § 51, et seq.

As I indicated, an independent medical exam has

already been conducted on your client and any

additional [injuries] would necessitate another

independent medical exam. Furthermore, the addition

of injuries at this point would jeopardize the trial date

of July 29, 2003. Accordingly, I maintain my objection

to any amendment to the Complaint. Should you and

your client wish to pursue a cause of action for any
injuries in addition to those set forth in your initial

Complaint, you will need to file a separate action.

Coomer never filed a motion to amend his Jefferson Circuit complaint .

On June 24, 2003, Coomer filed the instant case-a second FELA action

in Perry Circuit Court. The Perry Circuit complaint alleged Coomer suffered

from neck, back, shoulder, and knee pain as a result of repetitive and

cumulative occupational trauma. The Perry Circuit complaint also alleged that

these injuries were a result of negligence by CSX, including failure to provide a

reasonably safe workplace, failure to monitor and warn, and failure to take

measures to reduce possible trauma.

The Jefferson Circuit Court granted summary judgment in favor of the

defendant on July 21, 2003, finding that Coomer had failed to produce any

evidence of negligence on the part of CSX. 2 On March 31, 2006, CSX filed a

motion for summaryjudgment in Perry Circuit Court, arguing that the Perry

Circuit case was barred by the doctrine of resjudicata as a result of the

disposition of the Jefferson Circuit case.

The Perry Circuit Court granted CSX's motion for summary judgment on

May 2, 2006. The court found that Coomer's claims were barred by the

doctrine of resjudicata, and CSX had demonstrated all essential elements of

both issue preclusion and claim preclusion. Specifically, the court concluded

that the injuries at issue arose out of the same transactional nucleus of facts

2 The Perry Circuit Court stayed proceedings while the Jefferson Circuit case was on

appeal. On July 30, 2004, the Court of Appeals affirmed the judgment of the

Jefferson Circuit Court.
as in the Jefferson Circuit case, i.e. excessive and harmful repetitive stress and

cumulative trauma over the course of Coomer's career at CSX. The court went

on to state that "Plaintiff is therefore barred as matter of law, based upon the

doctrine of resjudicata, from splitting his cause of action (and in particular,

splitting his damages) between the Jefferson Circuit Court and the Perry

Circuit Court."

On motion to vacate summary judgment, the Perry Circuit Court

accepted an affidavit from Tyler Kress, Ph. D, a board certified ergonomist. Dr.

Kress stated that "the mechanism of injury for back injury for Mr. Coomer is

primarily lifting/load-related as opposed to the primary mechanism of injury to

his upper extremity, which is use of handtools and vibration."

The Perry Circuit Court ultimately denied Coomer's motion to vacate

summary judgment. The Court of Appeals then affirmed the judgment of the

Perry Circuit Court. This Court has now granted discretionary review to

determine whether Coomer's Perry Circuit claims are barred by the doctrine of

resjudicata.

II. ANALYSIS

Coomer argues that the Perry Circuit Court erred in granting summary

judgment on the issue of resjudicata, and that the Court of Appeals erred in

affirming that ruling. "The standard of review on appeal of a summary

judgment is whether the trial court correctly found that there were no genuine

issues as to any material fact and that the moving party was entitled to
judgment as a matter of law."3 "An appellate court need not defer to the trial

court's decision on summary judgment and will review the issue de nouo

because only legal questions and no factual findings are involved. "4

The doctrine of resjudicata "stands for the principle that once the rights

of the parties have been finally determined, litigation should end. "5 It is "an

affirmative defense which operates to bar repetitious suits involving the same

cause of action. "6 The doctrine is comprised of two subparts : claim preclusion

and issue preclusion .

A. Claim Preclusion and the Rule Against Splitting Causes of Action

For further litigation to be barred by claim preclusion, three elements

must be present: (1) identity of the parties, (2) identity of the causes of action,

and (3) resolution on the merits .$ As in most cases involving claim preclusion,

the only element in dispute in this case is the second-identity of the causes of

action.

3 Scfres u. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) . See also Pearson ex rel. Trent

u. National Feeding Systems, Inc., 90 S.W.3d 46, 49 (Ky. 2002) ; Hallahan u. The

CourierJournal, 138 S.W.3d 699, 704 (Ky. App. 2004) .

4 Hallahan, 138 S.W.3d at 705.

5 Slone u. R&S Mining, Inc., 74 S.W.3d 259, 261 (Ky. 2002).

6 Yeoman u. Commonwealth, Health Policy Bd., 983 S.W.2d 459, 464 (Ky. 1998) .

7 Id. at 464-65 .

8 Id. at 465.
Closely related is the rule against splitting causes of action. 9 The rule,

"found in Restatement (Second) ofJudgments, §§ 24 and 26, is an equitable

rule, limiting all causes of action arising out of a single `transaction' to a single

procedure." 10 It rests upon the concept that "parties are required to bring

forward their whole case" and may not try it piecemeal. I I Therefore, it "applies

not only to the points upon which the court was required by the parties to form

an opinion and pronounce judgment, but to every point which properly

belonged to the subject of litigation, and which the parties, exercising

reasonable diligence, might have brought forward at the ti me. "12

"The key inquiry in deciding whether the lawsuits concern the same

controversy is whether they both arise from the same transactional nucleus of

facts ." 13 Both of Coomer's complaints include broadly pled allegations that

CSX failed to provide him with a reasonably safe workplace over the course of

9 The rule against splitting causes of action has been described as "a subsidiary of the

doctrine of res judicata." Watts ex rel. Watts v. K, S & H, 957 S.W.2d 233, 236 (Ky.

1997) . Essentially, it is one aspect to be considered when determining whether

there is identity of the causes of action. In determining whether there is identity of

the causes of action, Kentucky courts apply the "transactional" approach from the

RESTATEMENT (SECOND) OF JUDGMENTS, § 24. See Smith v. Bob Smith Chevrolet, Inc.,

275 F. Supp. 2d 808, 813 (W.D. Ky. 2003) (applying Kentucky law) . See also

Yeoman, 983 S.W.2d at 465 ("The key inquiry in deciding whether the lawsuits

concern the same controversy is whether they both arise from the same

transactional nucleus of facts.") . "Thus, the rule against splitting claims is nothing

more than that aspect of resjudicata which requires the court to determine the

scope of the prior claim; i.e., to decide if the second action involves issues which

should have been litigated in the first action, but were not." Harris v. Ashley, 165

F.3d 27, 1998 WL 681219, at *3 (6th Cir. Sept. 14, 1998) (applying Kentucky law) .

to Capital Holding Corp. v. Bailey, 873 S.W.2d 187, 193 (Ky. 1994) .

11 Arnold v. K-Mart Corp., 747 S.W.2d 130, 132 (Ky. App. 1988) (quoting Hays v.

Sturgill, 302 Ky. 31, 193 S.W.2d 648, 650 (1946)) .

12 Id.

13 Yeoman, 983 S.W.2d at 465.
his career. Both complaints allege cumulative, repetitive stress injuries that

occurred over the course of his career. Because of the nature of Coomer's

injuries, there are no single, distinct transactions that he alleges to be torts.

Rather, CSX's allegedly negligent conduct occurred over the course of many

years, and was repetitive and cumulative in nature . Because of the broad

nature of Coomer's allegations of negligence, his entire career must be

considered a single "transaction." The injuries alleged in each of Coomer's

complaints therefore arose from the same transactional nucleus of facts .

However, the rule against splitting causes of action is an equitable rule,

and it is subject to a number of exceptions. 14 For example, the rule does not

necessarily bar a subsequent suit on "matters which were `not germane to,

implied in or essentially connected with the actual issues in the case . . . . "' 15

Nor does the rule apply to a cause of action before it accrues . 16

As this Court recognized in Lipsteuer u. CSX Transportation, Inc., the

"discovery rule" applies to FELA cases . 17 Therefore, under FELA, "a cause of

action accrues when a plaintiff knows or, in the exercise of reasonable

diligence, should know of both the injury and its cause." 18

The Court of Appeals concluded that, even viewing the facts most

favorably to Coomer, his cause of action for neck, back, shoulder, and knee

14 Capital Holding, 873 S.W.2d at 193. See also RESTATEMENT (SECOND) OF JUDGMENTS

3 26 (1982) (listing exceptions to the general rule) .

15 Watts, 957 S.W.2d at 237 (quoting Hayes, 193 S.W.2d at 648) .

16 Capital Holding, 873 S.W.2d at 193 .

17 37 S.W.3d 732, 737 (Ky. 2000) (citing Urie u. Thompson, 337 U.S. 163 (1949)) .

1 8 Lipsteuer, 37 S.W.3d at 737.
injuries (the subject of the Perry Circuit case) accrued on October 4, 2002,

when Dr. Beard wrote a letter linking Coomer's pain to his work at CSX. This

date places the accrual one year after Coomer filed his Jefferson Circuit suit

and approximately nine months before that case was dismissed. Therefore, the

Court ofAppeals reasoned, Coomer should have amended his Jefferson Circuit

complaint to include these additional injuries, and his failure to do so means

that a second suit is barred by resjudicata. Coomer argues that applying res

judicata to his neck, back, shoulder, and knee injuries improperly shortened

his three-year statute of limitations under FELA, 1 9 thus infringing on his

substantive federal rights . We agree with Coomer's basic argument, but on

slightly different grounds.

In Capital Holding Corp. v. Bailey, a couple who had been exposed to

asbestos in a building sued the building owner both for negligence and for

outrageous conduct causing severe emotional distress. 20 This Court held that,

because the couple had not suffered any physical injury from the exposure,

their negligence cause of action had not yet accrued. 21 In addressing the

couple's argument that the rule against splitting causes of action required that

both the negligence and outrageous conduct claims be brought at the same

time, this Court explained:

19 45 U.S.C . § 56 .

20 873 S.W.2d at 190 .

21 Id. at 193 .

The rule against splitting causes of action[], found in

Restatement (Second) of Judgments, §§ 24 and 26, is
an equitable rule, limiting all causes of action arising

out of a single "transaction" to a single procedure. But

it has a number of exceptions, and the present

situation provides such an exception because the

plaintiffs cannot sue on the negligence claim before the

cause of action accrues. This is the same equitable

consideration that underlies the decision in the

Louisville Trust Co. v. Johns-Manville Products, [580

S.W.2d 497 (Ky. 1979)] case, extending the discovery

rule to a claim otherwise cut off by a statute of

limitations, and it is a corollary to our refusal to

recognize a statute of repose cutting off a cause of

action before it exists (see Tabler v. Wallace, [704

S.W.2d 179 (Ky. 1985)1) . 22

Therefore, the rule against splitting causes of action does not apply to claims

that have not yet accrued. We see no difficulty applying principles of equity to

extend this exception to causes of action that accrue while litigation is pending.

"According to all federal Circuit Courts of Appeal that have addressed

this issue . . . claim preclusion is measured by claims that had accrued by the

time of the original pleading in the earlier action." 23 Thus, the bar on bringing

any claim which "might have been brought forward at the time"24 is limited to

22 Id.

23 Camus v. State Farm Mut. Auto. Ins . Co., 151 P.3d 678, 683 (Colo. Ct. App. 2006)

(Webb, J., concurring) (collecting cases). See, e.g., Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 530 (6th Cir. 2006) ("[R]es judicata does not apply to claims that

were not ripe at the time of the first suit .") ; Mitchell v. City ofMoore, 218 F.3d 1190,

1202-03 (10th Cir. 2000); Baker Group, L. C. v. Burlington N. & Santa Fe Ry. Co., 228

F.3d 883, 886 (8th Cir. 2000) ("It is well settled that claim preclusion does not apply

to claims that did not arise until after the first suit was filed.") (emphasis in original)

(applying Kansas law); Florida Power & Light Co. v. United States, 198 F.3d 1358,

1360 (Fed. Cir. 1999) ; Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1358 (11th

Cir. 1998); Computer Assocs. Int'l, Inc. v. Altai, Inc., 126 F.3d 365, 369 (2d Cir.

1997) ; Sec. & Exch. Comm'n. v. First Jersey Sec., Inc., 101 F. 3d 1450, 1464 (2d Cir.

1996) ; Manning v. City ofAuburn, 953 F.2d 1355, 1360 (11 th Cir. 1992) (applying

Alabama law); Los Angeles Branch NAACP v. Los Angeles Unified Sch. Dist, 750

F.2d 731, 739 (9th Cir. 1984) (en banc) (applying California law) .

24 Egbert v. Curtis, 695 S.W. 2d 123, 124 (Ky. App. 1985) .
"claims in existence at the time the original complaint is filed or claims actually

asserted by supplemental pleadings or otherwise in the earlier action . "25

Theses decisions are, based on the permissive, non-mandatory language

of Federal Rule of Civil Procedure 15 (the federal equivalent of CR 15) . 26 "[CR)

15 relates to amended and supplemental pleadings, and in substance is

identical to FRCP 15." 27 Ordinarily, when new events transpire, a plaintiff

would supplement the original complaint under CR 15.04 . But if the plaintiff

failed to do so, those claims would not be barred by resjudicata, because the

events transpired after the filing of the original complaint.

This case is somewhat unusual, in that Coomer's neck, back, shoulder,

and knee injuries occurred prior to the date he filed his Jefferson Circuit

complaint, but allegedly did not accrue until after that date. The proper

method for Coomer to include those injuries in his complaint would have been

to amend the Jefferson Circuit complaint pursuant to CR 15.01 (rather than by

supplementing his complaint, pursuant to CR 15 .04) . 28 However, the same

equitable considerations apply, and Coomer was not required to include

25 Manning, 953 F.2d at 1360 (emphasis in original) (footnote omitted) .

26 See Manning, 953 F.2d at 1360 ("Under the Federal Rules, the filing of supplemental

pleadings is optional for the plaintiff; the existence of the doctrine of res judicata

does not make the filing of supplements mandatory. The doctrine of res judicata

governs what is to be done about claims that should have been brought in an

earlier case, but the doctrine does not dictate which claims should have been

brought earlier. Other laws, such as Federal Rule of Civil Procedure 15, govern that

issue."') (emphasis in original) .

27 6 THE LATE KURT A. PHILIPPS, JR., DAVID V. KRAMER, & DAVID W. BURLEIGH, KENTUCKY

PRACTICE, Rules of Civil Procedure Annotated, Rule 15.01 (6th ed. 2005) .

28 See id., Rule 15.04 ("Amended pleadings relate to matters that occurred prior to the

filing of the original pleading and replace them entirely . A supplemental pleading

relates to events that have occurred since the pleading to be altered.") .

1 0
injuries that accrued after the date he filed the Jefferson Circuit suit.

Therefore, if Coomer's cause of action for his neck, back, shoulder, and knee

injuries accrued after the date he filed the Jefferson Circuit complaint, then he

would not be barred by resjudicata from bringing his later Perry Circuit suit

for those injuries .

The time when a plaintiff is put on notice about the cause of his injury is

a question of fact to be answered by ajury. 29 Therefore, on remand, if this case

reaches trial, the jury would be required to make a. finding as to when Coomer

knew, or in the exercise of reasonable diligence should have known, of both his

injury and its cause. 30 If ajury finds that this occurred before Coomer filed his

Jefferson Circuit case, then he would be barred by resjudicata from asserting

those claims in Perry Circuit Court. But if this occurred after the Jefferson

Circuit filing, then resjudicata would not apply.

B. Issue Preclusion

The second portion of the doctrine of resjudicata is issue preclusion

(sometimes referred to as collateral estoppel) . Issue preclusion requires four

elements. First, (1) "the issue in the second case must be the same as the

issue in the first case. "31 In addition, the issue must have been (2) actually

litigated, (3) actually decided, and (4) necessary to the court's judgment. 32

29 See Lipsteuer, 37 S.W.3d at 737.

30 See id.

31 Yeoman, 983 S.W. 2d at 465 (citing RESTATEMENT (SECOND) OF JUDGMENTS § 27

(1982)) .

32 Id.
Unlike claim preclusion and the rule against splitting causes of action, which

apply broadly to any claim which "might have been brought forward at the

time[,]" 33 issue preclusion requires that "[t]he issues in the former and latter

actions . . . be identical. "34

In this case, we believe that the fact that Coomer has asserted different

mechanisms of injury in each case is sufficient to avoid the bar of issue

preclusion . If this were not true, then a single ruling on CSX's negligence

would apply to any and all claims of negligence against CSX in the future. In

the Jefferson Circuit case, Coomer asserted negligence related to excessive tool

vibration, which allegedly resulted in carpal tunnel syndrome and ulnar

neuropathy. In the instant Perry Circuit case, Coomer has asserted negligence

related to lifting and loading, allegedly resulting in neck, back, shoulder, and

knee injury. These are different issues of negligence, and issue preclusion

therefore does not apply.

C. Equitable Estoppel

Finally, Coomer argues that CSX should be estopped from asserting the

doctrine of resjudicata, based on the letter from CSX's counsel to Coomer's

counsel, stating, "Should you and your client wish to pursue a cause of action

for any injuries in addition to those set forth in your initial Complaint, you will

need to file a separate action."

The essential elements of equitable estoppel are[ :] (1)

conduct which amounts to a false representation or

33 Egbert, 695 S.W.2d at 124.

34 Yeoman, 983 S.W.2d at 465.

1 2
concealment of material facts, or, at least, which is

calculated to convey the impression that the facts are

otherwise than, and inconsistent with, those which the

party subsequently attempts to assert; (2) the

intention, or at least the expectation, that such

conduct shall be acted upon by, or influence, the other

party or other persons; and (3) knowledge, actual or

constructive, of the real facts . And, broadly speaking,

as related to the party claiming the estoppel, the

essential elements are (1) lack of knowledge and of the

means of knowledge of the truth as to the facts in

question ; (2) reliance, in good faith, upon the conduct

or statements of the party to be estopped; and (3)

action or inaction based thereon of such a character

as to change the position or status of the party

claiming the estoppel, to his injury, detriment, or

prejudice. 35

If Coomer's cause of action accrued after he filed the Jefferson Circuit

suit, then, as previously discussed, resjudicata would not apply, and Coomer's

equitable estoppel argument is moot. If Coomer's cause of action accrued prior

to the filing of the Jefferson Circuit suit, then a second suit would have been

barred by resjudicata long before CSX's counsel wrote the letter in question.

Thus, there would be no detrimental reliance.

III. CONCLUSION

Because a genuine issue of material fact exists, summary judgment

cannot be granted on the basis of resjudicata under federal precedents

pertaining to FEI.A actions. Therefore, the opinion of the Court of Appeals and

the judgment of the Perry Circuit Court are reversed. The case is hereby

35 Fluke Corp. v. LeMaster, 306 S.W.3d 55, 62 (Ky. 2010) (citing Sebastian-Voor

Properties, LLC v. Lexington-Fayette Urban County Gov't, 265 S.W.3d 190, 194-95

(Ky. 2008)) (alterations in original) .

1 3
remanded to the Perry Circuit Court for proceedings consistent with this

opinion.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Alva A. Hollon, Jr.

John Oaks Hollon

Sams & Hollon, P.A.

9424 Baymeadows Rd., Suite 160

Jacksonville, FL 32256-7967

Thomas Ira Eckert

P.O. Box 7272

Hazard, KY 41702

COUNSEL FOR APPELLEE:

Edward H. Stopher

Darryl S. Lavery

Boehl, Stopher & Graves, LLP

2300 Aegon Center

400 West Market Street

Louisville, KY 40202-3354