Submitted: May 8, 2014
Upon Defendants' Motion to Dismiss GRANTED
David T. Crumplar, Esquire, Jacobs & Crumplar, P.A., Wilmington, Delaware and Ben Vinson, Esquire, Ben A. Vinson, Jr. Attorney, Tampa Florida Attorneys for Plaintiff.
Loreto P. Rufo, Esquire, Rufo Associates, PA, Hockessin, Delaware Attorney for Defendants.
ERIC M. DAVIS JUDGE
This is civil tort action. In this action, Plaintiff Roderick Stillwell alleges that, due to Defendants' wrongful conduct, Mr. Stillwell was exposed to asbestos and, as a result of that exposure, developed asbestosis.
Now before the Court is Defendants' Motion to Dismiss Based on Application of the Delaware "Borrowing Statute" (the "Motion").  In the Motion, Defendants contend that Mr. Stillwell's claims are barred by the applicable statute of limitations. Defendants argue that Mr. Stillwell's claims are barred regardless of whether the three-year Maritime statute applies or whether the Delaware two-year statute of limitations applies under the "Borrowing Statute." Mr. Stillwell opposes the Motion, arguing that the three-year Maritime statute of limitations applies. Mr. Stillwell maintains that he filed his claims within the applicable statute of limitations because he did not have a definitive medical diagnosis of asbestosis until late September 2009. In response, Defendants point out that in May of 2009 Mr. Stillwell filed a claim for disability benefits with the United States Department of Veteran's Administration (the "VA") claiming that he had been diagnosed with asbestosis.
For the reasons set forth in this opinion, the Motion is GRANTED.
Mr. Stillwell first sought treatment for his injuries at a VA hospital in Fresno, California in April of 2009. This treatment followed an emergency room visit on March 30, 2009, during which Mr. Stillwell was treated as having bronchitis. After Mr. Stillwell's symptoms failed to subside he sought treatment at the Fresno VA hospital.
On April 29, 2009, the VA advised Mr. Stillwell that he had "increased interstitial markings, " and ordered a CT scan. On May 5, 2009 the VA noted in Mr. Stillwell's medical records that the CT scan revealed "interstitial fibrotic changes." In his deposition, Mr. Stillwell indicated that the VA discussed the results of the CT scan with him. "They told me that based on the information they had on my service history and the asbestos that they suspected was in my lungs, that I probably had an infectious – asbestos disease of some sort." After the VA discussed the results of the CT scan, Mr. Still indicated that he received further examination from a lung specialist who recommended that Mr. Stillwell apply for government disability.
Mr. Stillwell applied for disability benefits with the VA on May 22, 2009. On Mr. Stillwell's application for disability benefits (the "Application"), Mr. Stillwell indicated the injury for which he was claiming benefits was "Asbestosis/Lung Condition." Mr. Stillwell also indicated that this condition was caused by his "in-service exposure to asbestos while stationed on [the] USS Ticonderoga/CVA-14." In the Application, Mr. Stillwell further stated: "I've been diagnosed & treated at the Fresno VAMC; Please obtain any & all records necessary."
On June 25, 2009, the VA wrote to Mr. Stillwell, requesting more information on his asbestosis and lung condition. In his response Mr. Stillwell stated that he was "responding to the VA letter dated 06/25/2009 in regards to the asbestosis, lung condition." Mr. Stillwell included a June 22, 2009 report from Peter Baylor, M.D., a pulmonary specialist. In that report, Dr. Baylor, noted "CT scan shows some changes consistent with early interstitial fibrosis." Dr. Baylor also noted that it was "hard to know whether he has IFP due to asbestos or restriction due to obesity. He likely has asbestosis." Mr. Stillwell also submitted a statement in support of his ...