480 F.2d 1088
Joseph BERKELEY, Appellant,
WEST INDIES ENTERPRISES, INC.
United States Court of Appeals,
Argued Jan. 29, 1973.
Decided June 8, 1973.
As Amended June 12, 1973.
Rehearing Denied June 26, 1973.
Thomas Alkon, Isherwood & Colianni, Christiansted, St. Croix, V. I., for appellant.
Roger L. Campbell, Loud & Campbell, St. Thomas, V. I., and Irwin J. Silverlight, Nichols & Silverlight, Christiansted, St. Croix, V. I., for appellee.
Before MARIS, VAN DUSEN and ROSENN, Circuit Judges.
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. Sec. 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 Sec. 263 of the Workmen's Compensation Act, 24 V.I.C. Sec. 263. The plaintiff opposed the motion for dismissal, asserting that his action for the 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. Sec. 31(5)(A).
The district court, after hearing argument, concluded that Sec. 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. Sec. 32, from the provisions of which Sec. 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, - V.I. -. 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 Sec. 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. Sec. 31 in pertinent part provides:
"Sec. 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: