We granted CSX Transportation Inc.’s CSXT application seeking interlocutory review of the trial court’s order denying its motion for reconsideration of an order denying summary judgment. At issue in this appeal is whether judicial estoppel bars this action which was filed under the Federal Employers’ Liability Act 45 U.S.C. § 51 et seq. FELA in the State Court of Fulton County, Georgia; resolution of that issue in this particular case turns on whether state or federal law applies. The trial court, in an extensive and well-reasoned order, ruled that the issue of whether judicial estoppel acted as a bar to litigation in this case was procedural in nature and thus governed by Georgia, not federal, law. Applying Georgia law, the trial court ruled that judicial estoppel did not bar the FELA claim. We now affirm the trial court’s order. The following background facts are pertinent here: In November 2001, Jimmy Howell filed a FELA action against CSXT for injuries he allegedly received during the course of his railroad employment. In his complaint, he sought a recovery in excess of one million dollars, including damages for lost wages and benefits and medical expenses, as well as general damages. In October 2002, Howell and his wife filed a Chapter 7 bankruptcy action. On Schedule B, under “other contingent and unliquidated claims” Howell indicated his right to receive disability benefits as a result of being injured on the job with CSXT; however, he failed to specifically identify his FELA claim either under that section or under the section requiring disclosure of “all suits and administrative proceedings to which the debtor is or was a party within one year immediately preceding the filing of this bankruptcy case.” However, according to an affidavit filed by Howell’s bankruptcy attorney, Howell did disclose at the 341 hearing that he had a lawsuit against the CSXT on account of being injured. On January 17, 2003, Howell received a “no asset” discharge, meaning that his creditors received nothing, and his bankruptcy case was closed.
When CSXT subsequently learned of Howell’s bankruptcy case during discovery in the FELA case, it filed a motion for summary judgment contending that under Georgia law, Howell was judicially estopped from pursuing his FELA claim because he did not disclose that claim or his contingent right of recovery in his bankruptcy proceeding. In response, Howell successfully petitioned the bankruptcy court to reopen his case so that he could amend his schedules to reflect the pending FELA lawsuit. Howell then amended the bankruptcy petition to reflect the FELA action, but listed it only as a right to receive disability benefits and lost future earnings with a current market value of zero dollars; he also indicated that any amount he received up to $10,000 would be exempt under OCGA § 44-13-100 a 2 and 11. Because he represented his claim to be fully exempt, the Bankruptcy court did not appoint a trustee to pursue the claim. On December 9, 2003, the trial court in this case denied CSXT’s motion for summary judgment. And on January 2, 2004, the bankruptcy case was once again closed.
