Joseph v. Hess Oil, Virgin Islands Corp.

867 F.2d 179, 1989 U.S. App. LEXIS 1224
CourtCourt of Appeals for the Third Circuit
DecidedFebruary 9, 1989
DocketNo. 88-3039
StatusPublished
Cited by3 cases

This text of 867 F.2d 179 (Joseph v. Hess Oil, Virgin Islands Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joseph v. Hess Oil, Virgin Islands Corp., 867 F.2d 179, 1989 U.S. App. LEXIS 1224 (3d Cir. 1989).

Opinion

OPINION OF THE COURT

SCIRICA, Circuit Judge.

This is an appeal, from an order of the district court granting the defendants’ motion for summary judgment pursuant to Fed.R.Civ.P. 56. The district court found that the plaintiff’s tort claim was barred by the Virgin Island’s two year statute of limitations. For reasons that follow, we conclude that a material question of fact exists with regard to the date plaintiff knew or should have known that he had contracted an asbestos-related disease. Accordingly, we will reverse the grant of summary judgment and remand to the district court.

I.

Appellant Benoit Joseph, the plaintiff below, was employed as an insulator at the Hess Oil Virgin Islands Corp. (HOVIC) petrochemical refinery in St. Croix, Virgin Islands, from 1967 to 1986.1 It is undisputed that during this time he often worked with asbestos insulation.

At some point in late 1982, Joseph’s supervisor pulled Joseph’s crew off a job site because the crew had not been working with protection from the asbestos insulation. Later on, at his deposition, Joseph stated that it was on that day that he became aware that asbestos was a “bad thing.” App. at 155-56.

After the incident with Joseph’s supervisor, Litwin Panamerican Corporation, Jo[181]*181seph’s then employer, had him examined by Dr. Cebedo. The examination was part of a program to examine the lungs of Litwin’s insulators. App. at 256. The medical report2 filed by Dr. Cebedo states:

CLINICAL DATA: Worked 14 years; smokes less one pack cigarettes/day/20 years; denied any pulmonary illness; lungs-clear; heart-negative 200/120.
CHEST X-RAY: Lungs-clear; hypertensive cardiovascular disease.
SPIOMETRY [sic]: Slightly restrictive ventilatory defect and suggests superimposed airway obstruction.

App. at 254. Joseph was then referred to Dr. Farrell to have a pulmonary function test. The results of the screening, conducted November 30, 1982, were as follows:

SUMMARY: Spirometry reveals a slightly restrictive ventilatory defect and suggests superimposed airway obstruction. If clinically indicated, further studies with response to broncho-dilators are advised.

App. at 255.

Joseph continued to work at HOVIC until 1986. Some time in 1986, Joseph’s attorneys sent him to be examined by Dr. Farrell, who on March 11, 1986, diagnosed Joseph as having asbestosis.3 On April 25, 1986, Joseph filed a fourteen count complaint against HOVIC4, including a demand for a jury trial, seeking compensatory and punitive damages for injuries caused by exposure to asbestos.

HOVIC moved for summary judgment contending that no material question of fact was raised with regard to the date Joseph discovered that he suffered from an asbestos-related disease. HOVIC argued that Joseph’s deposition testimony and the doctors’ reports established that Joseph knew or should have known that he suffered from an asbestos-related disease in late 1982. The district court applied the discovery rule, stating that Joseph was required to file suit within the appropriate statute of limitations after he knew or should have known that he had contracted an asbestos-related disease. The court agreed with HOVIC that Joseph was aware of his condition in 1982, and found Joseph’s complaint barred by the Virgin Island’s two-year statute of limitations for personal injury actions. Joseph v. Hess Oil Virgin Islands Corp., 671 F.Supp. 1043, 1048 (D.V.I.1987) (citing 5 V.I.C. § 31(5)(A) (1977)). The court granted HOVIC’s motion for summary judgment.5

Joseph filed a motion for reconsideration pursuant to Fed.R.Civ.P. 59(e) and a motion for relief from judgment pursuant to Fed. R.Civ.P. 60(b). In support of the Rule 60(b) motion, Joseph submitted an affidavit from Dr. Cebedo stating that if Joseph had asked him in 1982 whether he had an asbestos-related disease, he would have told Joseph that he did not know. The district court denied reconsideration under Rule 59(e) and denied relief pursuant to Rule 60(b). Joseph filed a timely notice of appeal to this order.6 We have jurisdiction under 28 U.S.C. § 1291.

II.

Our standard of review in an appeal from a grant of summary judgment is plenary. [182]*182“On review the appellate court is required to apply the same test the district court should have utilized initially.” Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). Federal Rule of Civil Procedure 56(c) “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

Any inferences to be drawn from the evidence before the district court must be viewed in the light most favorable to the party opposing the motion, in this case, Joseph. Joseph’s allegations must be taken as true, and when these conflict with those of HOVIC, Joseph must receive the benefit of the doubt. Goodman, 534 F.2d at 573. Under Rule 56, HOVIC may only prevail if they show “that there is no genuine issue as to any material fact and that [they are] entitled to judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). An issue is genuine only if “the evidence is such that a reasonable jury could return a verdict” for plaintiff. Id. at 248, 106 S.Ct. at 2510.

We apply these standards in deciding whether there is a genuine issue as to the date Joseph knew or should have known that he contracted an asbestos-related disease. This date will determine whether his action is time-barred as a matter of law.

III.

The statute of limitations for a personal injury action in the Virgin Islands is two years. 5 V.I.C. § 31(5)(A) (1977).7 However, application of the equitable “discovery rule” tolls the statute of limitation when the injury or its cause is not immediately evident to the victim. See Deleski v. Raymark Industries, Inc., 819 F.2d 377, 379 (3d Cir.1987); Cowgill v. Raymark Industries, Inc., 780 F.2d 324, 332 (3d Cir.1986); Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d 548, 553 (3d Cir.1985);

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Joseph v. Hess Oil
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Bluebook (online)
867 F.2d 179, 1989 U.S. App. LEXIS 1224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joseph-v-hess-oil-virgin-islands-corp-ca3-1989.