Joseph Berkeley v. West Indies Enterprises, Inc

480 F.2d 1088, 10 V.I. 619

• Court: Court of Appeals for the Third Circuit
• Decided: June 26, 1973
• Docket: 72-1138
• Status: Published

Opinions

OPINION OF THE COURT

MARIS, Circuit Judge

The plaintiff, Joseph Berkeley, a workman employed by a subcontractor, brought this third-party action in the District Court of the Virgin Islands against the defendant, West Indies Enterprises, Inc., the prime contractor, to recover damages for severe injuries, allegedly resulting from the defendant’s negligence, which had been suffered by the plaintiff during the course of his employment as a carpenter. The question for decision on this appeal is whether the action was timely brought.

The date of the plaintiff’s injury was November 23, 1968; he applied for compensation under the Virgin Islands Workmen’s Compensation Act, 24 V.I.C. §§ 251 et seq., and was awarded compensation pursuant to a final order of the Commissioner of Labor dated June 24, 1969. The present suit was brought on November 18,1970, more than one year from the time of the Commissioner’s decision but less than two years from the date of the plaintiff’s injury. The defendant filed an answer and a motion to dismiss the complaint in which it asserted that the plaintiff’s claim was barred by the special statute of limitations contained in § 263 of the Workmen’s Compensation Act, 24 V.I.C. § 263. The plaintiff opposed the motion for dismissal, asserting that his action for recovery of damages for personal injuries was governed by the general statute of limitations which provides that an action for injury to the person be brought within two years from the time of injury. 5 V.I.C. §31(5) (A).

The district court, after hearing argument, concluded that § 263 did not clearly express a legislative intent that the one-year limitation for which it provided should apply to a personal injury action brought by an injured employee against a third party and that in the absence of clear language to the contrary, the general statutory two-year limitation for such actions applied. An order was entered denying the defendant’s motion to dismiss the complaint. However, the district court subsequently reconsidered the defendant’s motion. In view of the construction given by the courts of Puerto Rico to the similar one-year limitation contained in the Workmen’s Accident Compensation Act of that commonwealth, 11 L.P.R.A. § 32, from the provisions of which § 263 of the Virgin Islands Act had originally been taken, the district court decided that it should apply the one-year limitation, as thus construed, to the present case. Berkeley v. West Indies Enterprises, Inc., 1971, 9 V.I. 251. Accordingly, the district court vacated its prior order and entered an order granting the defendant’s motion to dismiss the complaint as untimely filed. From that order the plaintiff has taken the present appeal.

The plaintiff contends, on this appeal, that the district court was right upon its initial consideration of the motion to dismiss in holding that the general two-year statute of limitations applies to this personal injury action and that the court on reconsideration erred in concluding that the special one-year limitation in § 263 of the Workmen’s Compensation Act applies and bars the present action. We turn, then, to examine the provisions of the statutes in question. 5 V.I.C. § 31 in pertinent part provides:

Ҥ 31. Time for commencement of various actions

“Civil actions shall only be commenced within the periods prescribed below after the cause of action shall have accrued, except when, in special cases, a different limitation is prescribed by statute:

“(5) Two years—

“(A) An action for . . . any injury to the person . . .”.

§ 263 of the Virgin Islands Workmen’s Compensation Act, 24 V.I.C. § 263,¹ in pertinent part provides:

Ҥ 263. Liability of third persons; subrogation

“In cases where the injury, . . . entitling the workman or employee ... to compensation in accordance with this chapter has been caused under circumstances making third persons responsible for such injury, . . . the injured workman or employee . . . may claim and recover damages from the third person responsible for said injury, . . . within one year following the date of the final decision of the case by the Commissioner, who may subrogate himself to the rights of the workman or employee or his beneficiaries to institute the same action ...”.

It will be seen that the Legislature expressly recognized by the language of § 31 that a limitation different from the general limitations imposed by that section might be prescribed in special cases. We are satisfied that prescribing such a special limitation is exactly what the Legislature did when it enacted § 263 of the Workmen’s Compensation Act. § 263 preserves to an injured employee his right to claim and recover damages from the third person responsible for his injury subject, of course, to the right of the Commissioner to subrogate himself to that right for the benefit of the Government Insurance Fund to the extent of the expenses of that Fund in the case. But the right of the employee to bring suit on his third-party claim is subjected by the Act to two limitations. The “employee ... may not institute any action ... until after the expiration of the 90 days from the decision of the case by the Commissioner.” And he may bring it “within one year following the date of the final decision of the case by the Commissioner.” While the latter language admittedly could be more precise we believe that it indicates a legislative intention to establish a limitation of one year upon the bringing of such a third-party suit. If this were not so and the general two-year limitation of 5 V.I.C. § 31 were held to be applicable that statute would always limit the injured employee to less than two years in which to bring his suit. Indeed, if the decision of the Commissioner on the employee’s claim is delayed — in the present case it took more than seven months — his time thereafter for bringing suit might actually be much shorter than one year or, if the decision were long delayed, it might be cut off altogether, and this without any fault on the injured employee’s part but solely as the result of the time taken by the Commissioner to reach a decision on the employee’s claim for compensation. On the other hand, if it were to be held that the general two-year limitation does not apply to such suits and that § 263 does not supply a special limitation on the time for bringing them there would be no limitation whatever on such third-party suits. We do not think that either result could have been intended by the Legislature.

If § 263 as we have construed it were less clear than we believe it to be, our construction would nonetheless be compelled by the legislative history of the Act. The Act, which now appears in title 24 of the Virgin Islands Code, is a codification of the Kean Workmen’s Compensation Act which was enacted by an Ordinance of the Municipal Council of St. Thomas and St. John, approved March 9, 1954. That Ordinance was taken directly, in somewhat abbreviated form, from the Workmen’s Accident Compensation Act of Puerto Rico, 11 L.P.R.A. §§ 1 et seq. 24 V.I.C. §§ 251, 263, Historical Note; Carmona v. De Jongh, D.C. 1958, 3 V.I. 281, 157 F.Supp. 540; Caribbean Eng. Corp. v. Acting Com’r of Agr. & Labor, D.C. 1958, 3 V.I. 339, 162 F.Supp. 193. Indeed, in the case of § 263 of the Virgin Islands Act, with which we are here concerned, the pertinent language is virtually identical, except for the title of the public officer involved; with that of present § 32 [formerly § 31] of the Puerto Rico Act. Under these circumstances there comes into play the rule of statutory construction which is settled in the Virgin Islands that the language of a Virgin Islands statute which has been taken from the statutes of another jurisdiction is to be construed to mean what the highest court of the jurisdiction from which it was taken had, prior to its enactment in the Virgin Islands, construed it to mean. Municipality v. Stakemann, D.C. 1924, 1 V.I. 60; James v. Henry, D.C. 1957, 3 V.I. 273, 157 F.Supp. 226; Williams v. Dowling, 3 Cir. 1963, 4 V.I. 465, 318 F.2d 642; Caribe Construction Co. v. Penn, 3 Cir. 1965, 5 V.I. 180, 342 F.2d 964; Paiewonsky v. Paiewonsky, 3 Cir. 1971, 8 V.I. 421, 446 F.2d 178. And see Willis v. Eastern Trust and Banking Co., 1898, 169 U.S. 295. In the case of Moreno v. Penzol, 1952, 73 P.R.R. 12, the Supreme Court of Puerto Rico applied the one-year limitation of § 31 [now § 32] of the Workmen’s Accident Compensation Act of Puerto Rico to bar a suit brought by an injured employee against a third party more than one year after the final decision of his case by the Manager of the State Insurance Fund, whose duties in this regard correspond to those of the Commissioner of Labor in the Virgin Islands. It thus appears that when the Workmen’s Compensation Act of the Municipality of St. Thomas and St. John was taken from the Puerto Rico law in 1954 it brought with it the judicially settled meaning that what is now 24 V.I.C. § 263 imposes a special one-year limitation upon suits for damages brought by injured employees, or the Commissioner of Labor as their subrogee, against third parties alleged to be responsible for the injury. We conclude that the district court rightly held, on reconsideration, that the plaintiff’s suit was barred by the limitation of § 263 and should be dismissed.

We need only add that there appears to be a sound basis in public policy for providing a special statute of limitations with respect to suits against third parties by an injured employee who has applied for compensation under the Workmen’s Compensation Act. For such a provision makes certain that an injured employee will not be prejudiced in his right to sue a third-party tortfeasor by any undue delay beyond his control which may occur in the Commissioner’s reaching a decision upon his claim for compensation. As we have already pointed out, if the general two-year statute were applicable and the Commissioner’s proceedings should take a long time, the period within which the employee could exercise his right to bring a third-party suit might be drastically shortened or the right might even be cut off before he could exercise it. Under the special limitation provided by § 263 of the Act, on the other hand, the employee’s right to bring a third-party suit will never be cut off until the Commissioner’s decision on his claim for compensation has been rendered, no matter how much time has elapsed since the date of the injury. See Larson, Workmen’s Compensation Law, Vol. 2, § 75.30.

The order of the district court will be affirmed.

1 “In cases where the injury, the occupational disease, or the death entitling the workman or employee or his beneficiaries to compensation in accordance with this chapter has been caused under circumstances making third persons responsible for such injury, disease or death, the injured workman or employee or his beneficiaries may claim and recover damages from the third person responsible for said injury, disease, or death, within one year following the date of the final decision of the case by the Commissioner, who may subrogate himself to the rights of the workman or employee or his beneficiaries to institute the same action in the following manner:

“When an injured workman or employee, or his beneficiaries in case of death, may be entitled to institute an action for damages against a third person in cases where the Government Insurance Fund, in accordance with the terms of this chapter, is obliged to compensate in any manner or to furnish treatment, the Commissioner shall subrogate himself to the rights of the workman or employee or of his beneficiaries, and may institute proceedings against such third person in the name of the injured workman or employee or of his beneficiaries, within 90 days following the date of the ■final decision of the case, and any sum which as a result of the action, or by virtue of a judicial compromise, may be obtained in excess of the expenses incurred in the case shall be delivered to the injured workman or employee or to his beneficiaries entitled thereto. The workman or employee or his beneficiaries shall be parties in every proceeding instituted by the Commissioner under the provisions of this section, and it shall be the duty of the Commissioner to serve written notice on them of such proceedings within 5 days after the action is instituted.

“If the Commissioner should fail to institute action against the third person responsible within the term of 90 days from the date of the final decision of the case, the workman or employee or his beneficiaries shall be fully at liberty to institute such action in their behalf, without being obliged to reimburse the Government Insurance Fund for the expenses incurred in the case.

“The injured workman or employee or his beneficiaries may not institute any action, nor may compromise any right of action they may have against the third person responsible for the damages until after the expiration of the 90 days from the decision of the case by the Commissioner.

“No compromise between the injured workman or employee, or his beneficiaries in case of death, and the third person responsible, made before the expiration of the term of 90 days after the decision or after the expiration of said term, if the Commissioner has filed his complaint, shall be valid or effective in law unless the expenses incurred by the Government Insurance Fund in the case are first paid. No judgment shall be entered in actions of this nature, and no compromise whatsoever as to the rights of the parties to said actions shall be approved, without making express reserve of the rights of the Government Insurance Fund to reimbursement of all expenses incurred. The clerk of the court taking cognizance of any claim of the above-described nature, shall notify the Commissioner of any order entered by the court which affects the rights of the parties to the case, as well as the final disposition thereof.

“The Commissioner may compromise as to his rights against a third party responsible for the damages. No such extrajudicial compromise, however, shall affect the rights of the workman or employee, or of his beneficiaries, without their express consent and approval.

“Any sum obtained by the Commissioner through the means provided in this section shall be covered into the Government Insurance Fund.” 24 V.I.C. § 263.