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Joseph v. Hess Oil

filed: February 9, 1989.

BENOIT JOSEPH, APPELLANT
v.
HESS OIL, VIRGIN ISLANDS CORPORATION, AMERADA HESS CORPORATION, ST. CROIX PETROCHEMICAL CORPORATION, KEENE CORPORATION, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO BALDWIN EHRET-HILL CO., KEENE BUILDING PRODUCTS CO., AND EHRET MAGNESIA MANUFACTURING CO., OWENS-CORNING FIBERGLAS CORPORATION, PITTSBURGH CORNING CORPORATION, CELOTEX CORP., SUCCESSOR IN INTEREST TO PHILLIP CAREY MANUFACTURING CO., PHILIP CORPORATION, BRIGGS MANUFACTURING COMPANY AND PANACON CORPORATION, EAGLE-PICHER INDUSTRIES, INC., RAYMARK INDUSTRIES, INC., SUCCESSOR IN INTEREST TO RAYBESTOS MANHATTAN, INC., AND GAF CORPORATION



On Appeal from the United States District Court for the Virgin Islands, St. Croix, D.C. Civil Action No. 86-0089.

Greenberg, Scirica and Weis, Circuit Judges.

Author: Scirica

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.*fn1 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, Joseph'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 report*fn2 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 bronchodilators 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.*fn3 On April 25, 1986, Joseph filed a fourteen count complaint against HOVIC*fn4, including a demand for a jury trial, ...


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