Adolip v Mobil Oil Micronesia Inc [2002] FMSC 12; 10 FSM Intrm. 587 (Pon. 2002) (5 April 2002)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as Adolip v. Mobil Oil Micronesia, Inc.
[2002] FMSC 12; 10 FSM Intrm. 587 (Pon. 2002)

[2002] FMSC 12; [10 FSM Intrm. 587]

ALTINA ADOLIP and HERMINO ADOLIP,
through his next friend, Altina Adolip,
Plaintiff,

vs.

MOBIL OIL MICRONESIA, INC., MOBIL OIL
CORPORATION and MOBIL OIL GUAM, INC.,
Defendants.

CIVIL ACTION NO. 1999-041

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Decided: April 5, 2002

[10 FSM Intrm. 588]

APPEARANCES:

For the Plaintiff:
Daniel J. Berman, Esq.
P.O. Box 1491
Kolonia, Pohnpei FM 96941

For the Defendants:
Fredrick L. Ramp, Esq.
Law Office of Fredrick L. Ramp
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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HEADNOTES

Statutes of Limitation
When there is a two year statute of limitations for actions for injury to or for the death of one caused by the wrongful act or neglect of another, when the plaintiff, who was an adult at the time she was injured, filed her complaint over seven years after the injury, and when the testimony yields no information why the statute of limitations had not run two years after the date of the accident, a motion to dismiss based on the statute of limitations will be granted. Adolip v. Mobil Oil Micronesia, Inc., [2002] FMSC 12; 10 FSM Intrm. 587, 589 (Pon. 2002).

Civil Procedure - Summary Judgment
When the plaintiff fails to guide the court to any part of the record that contains a competent opinion based on the facts of this case that contradicts the defendants' expert's competent opinion in a manner sufficient to raise an issue of fact, summary judgment for the defendants is appropriate. Adolip v. Mobil Oil Micronesia, Inc., [2002] FMSC 12; 10 FSM Intrm. 587, 590 (Pon. 2002).

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COURT'S OPINION

MARTIN YINUG, Associate Justice:

The court has received and considered the motion for summary judgment of defendants (collectively "Mobil"), plaintiff Altina Adolip's response, and Mobil's reply. Mobil's motion is granted.

Mobil's January 21, 2002, and January 24, 2002, motions for enlargement of time are granted. All remaining pending motions are denied as moot.

Plaintiff Altina Adolip ("Adolip") testified at her deposition taken on March 4, 2000, that approximately eight years earlier on May 31, 1992, she filled a kerosene stove with kerosene purchased that same day from Bernard's service station. She filled the stove and lit it. She did not recall whether it was a matter of seconds or minutes later, but after she had moved away from the stove and was about two and a half feet away from the stove it exploded. Adolip, who was four months pregnant with her son Hermino, sustained burns to the back of her legs. Adolip testified that Hermino was not injured in any way by the explosion. She also testified that Hermino is the only one among her seven children to develop a lung problem. The lung problem apparently first appeared about three months after he was born.

[10 FSM Intrm. 589]

At the outset, summary judgment as to Hermino's claim is granted. Adolip testified that Hermino was not injured at the time of the explosion, nor does the record disclose any causative connection between the accident and the later lung problem.

As to Adolip's claim, Mobil has moved for summary judgment on a statute of limitations basis. The accident occurred on May 31, 1992, while the complaint was filed over seven years later on August 10, 1999. Title 6, Section 803(4) of the FSM Code provides for a two year statute of limitations for "actions for injury to or for the death of one caused by the wrongful act or neglect of another." In responding to Mobil's limitations argument, Adolip makes reference to only one part of the sizable record in this case. Citing page 67 of Adolip's deposition, Adolip states that "[a]lthough Plaintiff Altina Adolip was an adult at the time she was injured, she had no knowledge that the kerosene she had purchased was contaminated by gasoline." Pl.'s Opp'n to the Defs.' Motions [sic] for Summary Judgment on All Claims at 26 (Dec. 18, 2001). The only arguably relevant information on page 67 of her deposition would seem to be that she "[she] never smelled anything," which presumably means she did not sense the smell of gasoline at the time the accident occurred. But this testimony yields no information to explain why the two year limitations period had not run on May 31, 1994, which would have been two years after the date of the accident. Nor does this testimony explain why the limitations period would not have expired sometime during the more than five years that elapsed from May 31, 1994, until the complaint was filed on August 10, 1999. Mobil's motion based on the applicable statute of limitations is therefore granted.

But even if the court were to find that Adolip's claim was not time barred, the court would grant Mobil's motion on another basis. A part of the record in this case is the transcript of Dr. Joseph Shepherd's testimony in Lebehn v. Mobil Oil Micronesia, Inc., [2001] FMSC 28; 10 FSM Intrm. 348 (Pon. 2001).^[1] Dr. Shepherd is Mobil's expert witness, and is competent to render an expert opinion under Rules 702-704 of the FSM Rules of Evidence. In his testimony in Lebehn, a transcript of which is attached to Mobil's motion for summary judgment as exhibit "E," Dr. Shepherd opined on the causation question in this case. Dr. Shepherd offered a summary of operative events consistent with Adolip's testimony,^[2] and concluded that the events as described by Adolip were not physically possible. Ex. "E" to Mobil's Motion for Summary Judgment at 110. Adolip offered no objection to this opinion either in the course of Lebehn, nor in this case as Dr. Shepherd's opinion has been submitted through the transcript of his

[2002] FMSC 41; [10 FSM Intrm. 590]

testimony in Lebehn, which has been made part of the record in the case at bar. Moreover, Adolip fails to guide the court to any part of the record that contains a competent opinion based on the facts of this case that contradicts Dr. Shepherd's opinion in a manner sufficient to raise an issue of fact. On this state of the record, summary judgment is appropriate. United States v. Various Slot Machines on Guam[1981] USCA9 1539; , 658 F.2d 697, 700-01 (9th Cir. 1981).

Accordingly, summary judgment in Mobil's favor is granted. A judgment issues herewith.

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^[1] Also today, the court enters orders granting motions for summary judgment in Suldan v. Mobil Oil Micronesia, Inc., [2002] FMSC 11; 10 FSM Intrm. 574 (Pon.2002); George v. Mobil Oil Micronesia, Inc., [2002] FMSC 41; 10 FSM Intrm. 590 (Pon. 2002); William v. Mobil Oil Micronesia, Inc., [2002] FMSC 42; 10 FSM Intrm. 584 (Pon. 2002). These cases, Lebehn, and the case at bar all deal with injuries that allegedly resulted from contaminated kerosene sold by Mobil. Counsel in all of these cases are the same.

^[2] The account of the accident in the hospital medical record, exhibit "H" to Mobil's reply, is different from the account that she gave approximately eight years later at her deposition. The photocopy of that record submitted as exhibit "H" to the reply is not perfectly legible, but almost so, and reads as follows:

Yo _ from Mwand U came to ER via ambulance because of Burn. Earlier tonight, the kids were decanting kerosene when some spilled over and soaked her dress. The pt was sitting on a flatform [sic] lower than the place that the kids were decanting the kerosene. Then on lighting a kerosene torch, the torch exploded (torch → kerosene in bottle with cloth wick) [then a small picture of the bottle torch, with notation "see picture"] The fire caught the pts dress where it was soaked and it burst into flames. Pt. claimed that upon trying to rid herself of her clothes she also burn her hands. Received singe burn to the face, anterior part of body, anterior part of lower extremities.