GALVAN v. HESS OIL VIRGIN ISLANDS CORP

JAMES HUNTER, III, Circuit Judge:

This interlocutory appeal, granted pursuant to 28 U.S.C. § 1292(b) 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 the 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, 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. 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 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, the language of § 263 was adopted from the parallel Puerto Rican statute and Puerto Rico's statute had been interpreted to provide a special statute of limitations for such cases.

In response to the Berkeley holding, the Virgin Islands Legislature amended § 263, in an Act whose preamble is worth noting:

Whereas the following amendment is to be construed liberally in favor of the Commissioner of Labor and any injured workman;

Whereas it was never the intent of the Legislature to shorten the normal two-year Statute of Limitations of tort actions but only to toll it until such time as a final order in any compensable case could be entered by the Commissioner of Labor; and

Whereas by reason of certain ambiguity in the present statute, Title 24, Virgin Islands Code, section 263, there has been some contention that said present statute creates a special class of tort claimants, namely workmen, and discriminates against them by specifying a shortened Statute of Limitations in which to seek judicial relief; and

Whereas it was never the intent of the Legislature to shorten the two-year Statute of Limitations nor was it the intent for said present Statute to be in derogation of the normal Statute of Limitations; and

Whereas it was only the intent of the Legislature to protect the Commissioner of Labor's right of subrogation and to afford his Department sufficient time in which to fully investigate any compensation case before it; and

Whereas in fact it was indeed the intention of the Legislature with the present statute to extend the Statute of Limitations for the benefit of the Commissioner of Labor for any injured claimant; and

Whereas the following amendment is to be remedial and curative by removing any ambiguities therein; . . . .

The changes made in § 263 provide that 1) instead of using the date of the agency's decision to begin a time period, the employee's date of injury will be used; 2) after that date the employee will have two years within which to bring suit; and 3) there is no 90 day, or other, period during which only the Commissioner can bring suit; the Commissioner is entitled to do so within two years of the employee's injury. The amendment was specifically declared retroactive "to all causes of action accruing before the date of enactment." Virgin Islands, Act of Jan. 16, 1975, No. 3662, § 2.

In view of the declared retroactive application of amended § 263, we find no reason to apply the old § 263 to this case. Thus we avoid any confrontation with our holding in Berkeley, supra. In any event, we note that even in Berkeley we did not discuss the applicability of the general tolling provisions.

We are persuaded that the legislature, in amending § 263, intended to place all injured employees on an equal procedural footing: those who received workmen's compensation benefits would have the same rights against third party tortfeasors as those who received none. Given the remedial nature of the workmen's compensation act, and the legislative mandate to construe the amended § 263 liberally in favor of any injured employee, we are not inclined to penalize one class of injured employees — those who have received workmen's compensation benefits.

To return to a basic point, the suits here involved are negligence suits. They are not suits created by a novel statutory scheme; they are simple personal injury suits. There is clearly no requirement that an injured employee must request workmen's compensation payments; the employee can decide to proceed solely against a third party tortfeasor just as any other claimant can. In that situation, the two year statute of limitations and the tolling provisions of 5 V.I.C. § 36 would apply. In particular, an 18-year-old injured employee would benefit from a tolling of the two year statute until he or she reached age 21. Nor is anyone unfairly harmed by allowing the injured employee to proceed under the normal tolling provisions. The Commissioner is assured of recouping the amount paid in workmen's compensation, to the extent that the employee recovers it in the third party suit; any excess will go to the employee. The only party who may complain is the third party tortfeasor, but that complaint is not freighted with justice, since the tortfeasor will not be liable for double payments for the same wrong.

We see the purpose of 24 V.I.C. § 263, as amended, to be assurance that the Commissioner will be able to recoup payments when a third party tortfeasor is found liable. As such it governs the relationship between the recipient employee and the Commissioner, and the relationship between the Commissioner and a third party tortfeasor, but is not intended — as the amending legislative history makes clear — to interfere with the relationship between the injured employee and the third party tortfeasor. An incident of that "normal" relationship between an injured employee and an alleged third party tortfeasor is the tolling of the statute of limitations whenever the plaintiff is "under the age of twenty-one years." Thus we hold that the tolling provisions of 5 V.I.C. § 36 do apply to suits by injured employees against third party tortfeasors.

The second issue before us is whether the 1972 amendment to 16 V.I.C. (Domestic Relations) § 261, which changed the "age of majority" from 21 to 18, has amended by implication the infancy tolling provision in 5 V.I.C. (Judicial Procedure) § 36(a)(1) to read that the statute is tolled only if one is under age 18. Since Galvan was already 18 at the time of the injury, defendants contend that the tolling provision would not apply here, even if it did apply to 24 V.I.C. § 263.

Our first consideration — well described by the district judge — is a presumption against amendments by implication. If the legislature has not directly amended a statute, it is only in the rarest case that a court should rule the statute amended. See, e.g., United States v. Welden, 377 U.S. 95, 102 n. 12, 84 S.Ct. 1082, 12 L.Ed.2d 152 (1964) (amendments by implication not favored). To do so is to rule that a statute does not mean what it plainly says. A reader of 5 V.I.C. § 36(a)(1) would not know that "under the age of twenty-one years" means "under the age of eighteen years." The tolling statute nowhere refers to an "age of majority", which would alert a reader to look elsewhere. When presented with a similar issue in Tavernier v. Weyerhaeuser Company, 309 F.2d 87 (9th Cir. 1962), the Ninth Circuit reached a common sense solution: "When the tolling statute says, with no exceptions, `within the age of 21 years,' we think that all persons within that age should be entitled to rely upon its plain import, rather than required to read it as if it said `within the age of majority.'" Id. at 90.

We have also considered legislative intent in amending the age of majority provision, 16 V.I.C. § 261. First, the Act that amended 16 V.I.C. § 261 also amended an unrelated section in the same title, 16 V.I.C. § 231, dealing with emancipation by parental consent for the purpose of administering property. In that section, the previous age 18, was lowered to age 16. The Act itself contains no preamble expressing its purpose. We find it significant, however, as did the district judge, that on that same day the Legislature passed two other acts altering age requirements; one act related to the capacity to devise real property, the other dealt with parental consent for marriage. This piecemeal approach speaks against an intent to establish a blanket age change.

Thus we hold that the age of majority provision appearing in the title labelled "Domestic Relations," 16 V.I.C. § 261, does not affect the tolling provision appearing in the "Judicial Procedure" title, 5 V.I.C. § 36(a)(1). One who reads the phrase in 5 V.I.C. § 36(a)(1), "under the age of twenty-one years;" is entitled to proceed as if it means "twenty-one years."

The interlocutory order of the district judge that defendants' statute of limitations affirmative defense be stricken will be affirmed.