APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS (D.C. Civil Action No. 76-128).
Seitz, Chief Judge and Gibbons and Hunter, Circuit Judges.
This interlocutory appeal, granted pursuant to 28 U.S.C. § 1292(b)*fn1 presents two intriguing issues of statutory construction of the Virgin Islands Code as it applies to workmen's compensation third party suits and their statute of limitations. First, we are asked to determine whether or not the Code's infancy tolling provision also applies to third party suits described in the workmen's compensation chapter. Second, if we decide that the tolling provision does apply, we are asked to consider the effect on that tolling provision of the legislative lowering of the age of majority. We hold that the infancy tolling provision of 5 V.I.C. § 36 does apply to third party suits described in 24 V.I.C. § 263, and that the lowering of the "age of majority" in the title on family relations, 16 V.I.C. § 261, does not affect the infancy provision of the general tolling statute, 5 V.I.C. § 36.
Steven Keith Galvan was 18 years old on June 1, 1973, when he was injured in the course of his employment. On that day his employer, Fisher-Hess Construction Company (Fisher-Hess), sent him, as a member of a construction crew, to work on property belonging to Hess Oil Virgin Islands Corporation (Hess Oil). The job consisted of adding crushed rocks to a firewall; it involved using a large hydraulic crane, supplied by Hess Oil, and operated by Fisher-Hess employees, to dump the crushed rocks. Galvan was injured when a cable attached to the upper end of the crane's boom brushed against an uninsulated distribution phase wire belonging to the Virgin Islands Water and Power Authority (VIWAPA). Galvan was at that moment touching the crane's clam-bucket fastened to the cable's lower end; he received a severe shock, burns, and other injuries.
Galvan applied for and received workmen's compensation benefits, as provided in 24 V.I.C. §§ 251-285. Although those benefits are exclusive as regards the employer's liability,*fn2 they are not the injured employee's sole remedy. If a third party is potentially liable for the injury the employee may proceed against that third party. If the workmen's compensation board has already made payments to the employee for that injury, it too may proceed against that third party to recover the benefits it has paid. In any event, if workmen's compensation payments have been made, the Commissioner will be joined as a plaintiff in an employee's suit. 24 V.I.C. § 263.
Galvan apparently thought that Hess Oil and VIWAPA would be liable to him in a tort suit for his injuries. He filed a complaint against Hess Oil and VIWAPA on February 12, 1976.*fn3 The statute of limitations of 24 V.I.C. § 263 was raised as an affirmative defense. Galvan responded that the 1975 amendment to 24 V.I.C. § 263 made clear that the Code's general tolling provisions were intended to apply to § 263 cases. If so, he had until two years after his 21st birthday to bring the suit; he moved to strike the affirmative defense.
Hess Oil and VIWAPA then moved for summary judgment, arguing that 1) the applicable statute was 24 V.I.C. § 263 as it was worded at the time of the injury, and as interpreted by this court in Berkeley v. West Indies Enterprises, Inc., 480 F.2d 1088 (3d Cir. 1973), and 2) in any event, no disability tolling could occur because the age of majority had been lowered to 18.
The district judge ruled that 1) the general disability provisions of 5 V.I.C. § 36 do apply to third party claims described in 24 V.I.C. § 263 and 2) the change of age in 16 V.I.C. (Domestic Relations) § 261 does not affect the infancy tolling provision in 5 V.I.C. § 36. Thus the Court held that Galvan was not barred from bringing his tort action against Hess Oil and VIWAPA. For the following reasons, we agree.
At the outset, in deciding whether third party claims described in 24 V.I.C. § 263 are governed by the general tolling provisions of 5 V.I.C. § 36, we must determine which § 263 applies - § 263 as it existed at the time of Galvan's injury in 1973, or as amended in 1975.
Section 263 prior to its 1975 amendment*fn4 provided for subrogation by the Commissioner of the Virgin Islands Department of Labor in claims on behalf of the injured employee against third parties, in order to recover any amounts paid to the employee under the workmen's compensation act. The procedure was as follows. Beginning with the date of the agency's final decision on the employee's claim for workmen's compensation payments, the Commissioner would have 90 days within which to bring suit, as subrogee, against third parties. After that 90 day period expired, the employee would have one year from the date of the final decision, that is, some nine months, within which to bring suit on his or her own behalf, although even then the employee was required to join the Commissioner as a plaintiff. Thus the Commissioner was assured a recoupment of workmen's compensation payment whenever the employee recovered at least that amount from a third party tortfeasor. Whether the suit was brought by the Commissioner or the employee, any excess over the recouped workmen's compensation payments was for the employee.
We construed the time limits of old § 263 as a specific statute of limitations, controlling whenever an employee who had received workmen's compensation benefits then brought suit against a third party. Berkeley v. West Indies Enterprises, Inc., 480 F.2d 1088 (3d Cir. 1973). The injured employee in Berkeley filed a third party complaint after the specified one year from the date of the agency's final decision, but before the expiration of the general two year statute of limitations applicable to tort suits, 5 V.I.C. § 31(5). This court rejected the argument that the general two year statute of limitations would apply, on the grounds that a special statutory period had been chosen for § 263 cases; moreover, ...