IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
                             DIVISION OF ST. THOMAS AND ST. JOHN
                                                         KEKE



JUSTIN NIGG and LORRAINE NIGG                        )
                                                     )
                  Plaintiffs,                        )
                                                     )
                  vs                                 )          CASE NO.    ST-2022-CV-00240
                                                     )
MARRIOTT HOTEL MANAGEMENT _                          )
COMPANY (VIRGIN ISLANDS), INC                        )          Cite as 2025 V.I. Super 5
CREF3 USVI HOTEL OWNER, INC                          )
MANITOU NORTH AMERICA, LLC                           )
BLUEWATER CONSTRUCTION INC                           )
JEREMY HENKEL, and PROJECT                           )
DEVELOPMENT SERVICES, INC                            )
                                                     )
                  Defendants                         )
                                                     )

                                       MEMORANDUM               OPINION

        THIS MATTER comes before the Court on Defendant CREF3 USVI Hotel Owner, Inc.’s

(“CREF3”)     Rule     12(b)(6) Motion to Dismiss Count II (Contractual Indemnity) of Defendant

Project Development Services, Inc.’s (““PDSI’”) Crossclaims.              For the reasons set forth below, the

Court will grant CREF3’s Motion to Dismiss

I       PROCEDURAL              AND FACTUAL          BACKGROUND

        This action was filed on July 16, 2022, by Plaintiffs Justin Nigg (individually and as the

representative of the Estate of John Nigg) and Lorraine Nigg (individually)! against Defendants

CREF3, Marriott Hotel Management Company (Virgin Islands), Inc. (“Marriott”), Manitou North

America, LLC (“Manitou”), Bluewater Construction Inc. (“Bluewater”), and                     Jeremy Henkel.? On



' Justin Nigg is John Nigg’s son, and Lorraine Nigg is John Nigg’s mother.
  Marriot was dismissed by Notice of Dismissal filed on August 28, 2022. The Court granted Plaintiffs and
Manitou’s Joint Motion for Dismissal with Prejudice on January 20, 2023
Niggv. Marriot et. al
Case No. ST-22-CV-240
Memorandum Opinion
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February 16, 2023, Plaintiffs filed a First Amended Complaint (“Complaint”), adding PDSI as a

defendant.    According to the Complaint, in a Project Management Agreement effective May              1,

2021, CREF3 contracted PDSI to provide project management services in connection with the

renovation of the Frenchman’s Reef & Morning Star Marriott Beach Resort.’ On July 17, 2021,

Nigg had a fatal accident while operating a forklift used to renovate the hotel. Plaintiffs claim that

“Nigg’s death was caused by the wrongful acts and/or negligence of the Defendants.”

         On October 17, 2024, PDSI filed an Answer, including Crossclaims against both Bluewater

and CREF3.      PDSI asserted that Bluewater and CREF3 “have failed to indemnify and/or defend

PDSI thereby breaching their contractual obligations.”> Specifically, PDSI claimed that          “CREF3

agreed to obtain an owner-controlled insurance program (“OCIP policy’) which was in place for

the Frenchman’s Reef & Morningstar Resort Restoration Project to broadly provide indemnity and

defense to PDSI for damages because of ‘bodily injury’ that arises out of the Project.” Thus, PDSI

claims that CREF3 must indemnify PDS] if the Court enters a judgment for damages against PDSI

         In turn, CREF3 moved to dismiss PDSI’s Crossclaim for indemnification based on a failure

to state a claim for relief under Rule 12(b)(6) of the Virgin Islands Rules of Civil Procedure

(“VIRCP”).      CREF3        asserted that it has no duty to indemnify   PDSI   under the OCIP    Policy

(effective on    January 1, 2019) because the OCIP Policy is not an agreement between CREF3 and

PDSI.   CREF3 further argues that reference to the OCIP Policy would violate Rule 411 of the

Virgin Islands Rules of Evidence. Moreover, CREF3 contends that a separate contract between the

parties, the Project Management Agreement (effective on May 1, 2021), is controlling and, in fact,



3 First Am. Compl. at § 15
4 First Am. Compl. at 9
> PDSI’s Crossclaim at 7
§ Id
Nigg v. Marriot et. al
Case No. ST-22-CV-240
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creates a duty on PDSI to indemnify and hold harmless CREF3 in this matter. The contract also

states    that    the   Agreement   “supersedes   any   and   all    prior    written     or oral   agreements    or

understandings between the parties.” As part of its Motion, CREF3 submitted copies of the OCIP

Policy and Project Management Agreement to the Court

          On December 19, 2024,        PDSI filed a Response,       arguing that PDSI has adequately pled a

claim for indemnity against CREF3 under this jurisdiction’s notice-pleading standard. On January

8, 2025, CREF3          filed a Reply, reiterating its initial arguments and asserting that the Court may

consider the Agreement’s terms in conjunction with the OCIP Policy to determine the Motion to

Dismiss

II        LEGAL STANDARD

          Rule 12(b)(6) of the VIRCP governs motions to dismiss for failure to state a claim upon

which relief can be granted.          Rule   12(b)(6) motions test the sufficiency of the complaint or

crossclaim. Hess Oil Virgin Islands Corp. v. Fluor Daniel,            72 V.1. 676,      719 (V.I. Super. Ct. 2020)

Under Rule 8(a)(2) of the VIRCP, “a pleading that states a claim for relief must contain                    ‘a short

and plain statement of the claim showing that the pleader is entitled to relief.’” This Court sits in

a “notice-pleading jurisdiction.”      V.I. R. Civ. P. 8(a). Thus, a complaint or crossclaim is deemed

sufficient       “so long as it adequately alleges facts that put an accused party on notice of claims

brought against it.”      Mills-Williams v. Mapp, 67 V.1. 574, 585 (V.I. 2017). Even if a complaint or

crossclaim is “vague, inartfully drafted, a bare-bones outline, or not a model of specificity, the

complaint may still be adequate so long as it can reasonably be read as supporting a claim for

relief, giving the defendant notice of that claim.” Basic Servs.,            v. Gov't. of Virgin Islands, 71 V.1




” See id. at Section 26
Nigg v. Marriot et. al.
Case No. ST-22-CV-240
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652, 660 (V.I. 2019) (quoting Casaday v. Allstate Ins. Co.,              

 (Utah App. 2010)

The issue is “not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled

to offer evidence to support the claim.”          Raymond v. Assefa, 

, *2 (V.1. Super. Ct

2017). Notice-pleading is a more liberal approach than the plausible claim standard applied in Bel/

Ail. Corp. v. Twombly, 

 (2007)

           In determining a 12(b)(6) motion, the Court “must accept all well-pleaded allegations as

true and view them in a light most favorable to the pleader.” Smith v. L. Offs. of Karin A. Bentz

P.C.,   

,          *2 (V.I. Super. Ct. 2017).      However,     allegations will not be reasonable

nor will inferences in favor of the plaintiff be fair, where they contradict facts contained in the

public records, are judicially noticed by the Court, a document the claimant relied on to frame its

claim   or a document          referenced     in the pleadings       whose    authenticity     the parties   have   not

questioned. Hunt v. Downs,          

, *20 (V.I. Super. Ct. 2021)

Ill        DISCUSSION

           (a) Consideration of the OCIP Policy and Project Management Agreement on a Rule
12(b)(6) Motion

           Generally, a court ruling on a motion to dismiss may not consider matters extraneous to

the pleadings.        If the court considers matters          outside the pleadings          when   ruling on a Rule

12(b)(6)     motion to dismiss,      it must convert the motion into one for summary judgment.® sland

Tile & Marble,      LLC v. Bertrand, 57 V.1. 596, 612 (V.I. 2012)             (“if, on a motion under Rule 12(b)(6)

matters outside the pleadings are presented to and not excluded by the court, the motion must be



8 See Rule 12(d) of the VIRCP, which states
           If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not
           excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All
           parties must be given a reasonable opportunity to present all the material that is pertinent to the
           motion
Nigg v. Marriot et. al
Case No. ST-22-CV-240
Memorandum       Opinion
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treated as one for summary judgment under Rule 56”); see also V.I.R.                            Civ P. Rule 12(d)

However,       there are well-established exceptions to the general rule.                 A court may      consider

documents “(1) attached to the pleadings, (2) incorporated into the pleadings by reference, (3) of

public record, and (4) integral to a claim or upon which the claim is based” without converting the

motion to dismiss to a motion for summary judgment.                Virgin Islands Port Authority v. Four Star

Aviation, 

, *3 (V.L. Super. Ct. 2020); see also In re Burlington Coat Factory

Sec. Litig.,   

 (3d Cir. 1997); Hinton v. Corr. Corp.              of Am.,   

 (D.D.C.     2009) (“Matters that are not outside the pleadings a court may consider on a motion to

dismiss include the facts alleged in the complaint, documents attached as or incorporated by

reference in the complaint, or documents upon which the plaintiff's complaint necessarily relies

even if the document is produced not by the plaintiff in the complaint but by the defendant in a

motion to dismiss.”).         Thus, “the court may consider documents whose contents are alleged in the

complaint [or crossclaim] and whose authenticity no party questions, but which are not physically

attached to the pleading.”            Guardian Ins. Co. v. Abdallah,   74 V.1. 128,   130 (V.L. Super. Ct. 2021)

(citing Pryor v. NCAA,          

 (3d Cir. 2002); Barnes v. GCI Operations,             LLC, 

,      *2 (V.I. Super. Ct. 2017); Pension Benefit Guar. Corp. v. White Consol. Indus.,                

,   (3d.    Cir.    1993) (in deciding a Rule 12(b)(6) motion to dismiss,           a court may

consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion

to dismiss if the plaintiff's claims are based on the document.) Daniels v. Dauphin Cnty. Dist

Attorney's Off, 

,                *3 (3d. Cir. 2024) (a court may       “consider extrinsic

documents which are "integral to or explicitly relied upon in the complaint                             as well as

undisputedly authentic documents attached to a motion to dismiss.”’)
Nigg v. Marriot et. al.
Case No. ST-22-CV-240
Memorandum         Opinion
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         There is no need for the Court to convert CREF3's motion to dismiss into a motion for

summary judgment.            In this instance, the documents are explicitly identified in the pleadings, the

authenticity of the documents has not been questioned, and they are integral to PDSI’s crossclaim

The two documents            CREF3     relies on to support its motion     -OCIP    Policy and     -the Project

Management         Agreement - are referenced in the pleadings, and their authenticity has not been

questioned.     In Count II of the crossclaim, PDSI specifically references the “OCIP Policy.”

Additionally, in paragraph           1 of its Answer, Affirmative Defenses and Crossclaims, PDSI also

specifically admits to the allegation stated in paragraph 15 of the First Amended Complaint, which

refers to the “Project Management Agreement effective May 1, 2021” by which “CREF3 engaged

Project Development Services, Inc. . . to provide project management services in connection the

renovation of the resort.” In paragraph 4 of the crossclaim, PDSI alleges that ‘CREF3 and PDSI

were in privity of the contract with each other or intended third party beneficiaries of the contracts

each was a party to.” The OCIP Policy under which PDSI claims it is a third-party beneficiary,

and the Project Development Agreement to which the parties are in privity are the two contracts

attached to the motion to dismiss and which, obviously, are the documents                 integral to PDSI’s

claim. See e.g.,     Mathis vy. United Homes,     LLC,   

 (E.D.N.Y.   2009) (the

court considered the allegations set forth in the cross-claims and the plaintiffs’ complaints, which

were integral to the cross-claims, as well as the documents on which the cross-claims rely in ruling

on a 12(b)(6) motion to dismiss). As long as the documents are integral to the claimant’s claims,

the Court may consider them even though they are not incorporated by reference in the crossclaim

Therefore, the documents attached to CREF3’s motion, which are integral to the crossclaim, may




° Crossclaim at 14
Nigg v. Marriot et. al
Case No. ST-22-CV-240
Memorandum       Opinion
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be considered by the Court without converting the motion to dismiss into one for summary

judgment

          PDSI cannot overcome a 12(b)(6) motion by intentionally and improperly withholding

essential documents that are integral to its crossclaim, undisputedly authentic, and upon which

PDSI relied in asserting that crossclaim. Courts have been wary of the similar tactics advanced by

PDSI in this case. Hicks v. Wells Fargo Bank,           N.A.,   

,     *7-8

(W.D.N.Y.     2020) (stating that a plaintiff whose claims are grounded on documents cannot           “defeat

a Rule 12(b)(6) motion simply by cherry-picking ‘helpful’ documents to cite in the complaint,

while deliberately ignoring other relevant documents that might tend to undercut his claims.”);

Soderlund v. Zibolski,     

 (Wis. Ct. App.    2015) (“The incorporation-by

reference doctrine prevents a plaintiff from evading dismissal simply by failing to attach to his

complaint a document that proves his claim has no merit.”); Cortec Industries, Inc. v. Sum Holding

L.P.,   

 (2d Cir.    1991) ("Plaintiffs' failure to include matters of which as pleaders

they had notice and which were integral to their claim - and that they apparently most wanted to

avoid - may not serve as a means of forestalling the [] court's decision on [a 12(b)(6)] motion.")

         Thus, in determining the Motion to Dismiss, the Court may consider both the OCIP Policy

and the Project Management Agreement because they are documents integral to or explicitly relied

upon by PDSI’s Crossclaim.         The Crossclaim cites the OCIP Policy; therefore, the Court may

consider the document.     Furthermore, under the incorporation-by-reference doctrine, the failure to

mention or include a copy of the Agreement does not preclude its review by the Court.                   The

Agreement is not a document that falls outside the pleadings, but rather, it is a document that the

Court necessarily must address to determine whether PDSI is entitled to relief. Moreover, any

concern about viewing documents outside of the complaint is dissipated by the fact that PDSI has
Nigg v. Marriot et. al
Case No. ST-22-CV-240
Memorandum Opinion
Page 8 of 12

notice of the Agreement to which it is a party. The Court shall, therefore, consider the contents of

the OCIP Policy and the Agreement when addressing CREF3’s arguments

(b) The OCIP Policy

          PDSI claims that pursuant to the “OCIP         Program, CREF3     agreed to obtain an owner

controlled “OCIP Policy” to         “broadly provide indemnity and defense to PDSI for damages because

of ‘bodily injury’        that arises out of the [Frenchman’s Reef & Morningstar Resort Restoration]

Project.” It further claims that CREF3          has breached   its contractual obligation by failing to

indemnify or defend PDSI.'° CREF3 counters that the OCIP Policy is not a contract between

CREF3     and PDSI,        and CREF3   has no indemnity obligation to PDSI under the OCIP policy

CREF3 argues that the          “OCIP Policy is not an agreement between PDS] and CREF3.     Rather, the

OCIP Policy is a liability insurance policy procured by CREF3’s predecessor in interest and later

assigned to CREF3.””'! Therefore, CREF3 contends it has no duty to PDSI under the Policy and

that PDSI is improperly attempting to litigate an insurance coverage dispute in this matter.          In

response to CREF3’s claim that there is no privity of contract between CREF3 and PDS! under

the OCIP Policy, PDSI argues that it is a third-party beneficiary under the OCIP policy

        To establish a breach of contract claim, PDSI must show that there was (1) an agreement;

(2) a duty created by that agreement; (3) a breach of that duty; and (4) damages. Phillip v. Marsh

Monsanto, 

 (V.I. 2017).        PDSI cannot satisfy the most basic element for a breach

of contract claim as the OCIP policy is not an agreement between PDSI and CREF3.                It is an

agreement between the insurance company and the project owner.             Hence, PDSI has no direct

contractual claims against CREF3 under the OCIP Policy



1 Crosselaim at 13
'' Mot. to Dismiss at 5
Nigg v. Marriot et. al.
Case No, ST-22-CV-240
Memorandum        Opinion
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         A review of the OCIP policy shows that the Project Owner (CREF3 as successor in interest)

and “all contractors/subcontractors working on behalf of the Construction Manager and/or Project

Owner and/or Project Owner’s Representative for the [Frenchman’s Reef & Morningstar Resort

Restoration] Project” are insured under the policy.'* Pursuant to the OCIP Policy, the obligations

to be performed under the contract rest not on CREF3 but on the insurer. The insurer is required

to provide any insurance coverage, not CREF3.       In other words, CREF3 is the promisee, and the

insurer is the promisor. The Supreme Court of the Virgin Islands has adopted the legal principle

that “[a] promise in a contract creates a duty in the promisor to any intended beneficiary to perform

the promise and the intended beneficiary may enforce that duty” Petrus v. Queem Charotte Hotel

Corp.,   

 (V.I. 2012) (citing Restatement of (Second) of Contracts          §304)); see also

Prasad v. George Washington Univ.,      

, D.D.C.2019)          ("[i}t is well established

that an intended third-party beneficiary can sue the promisor to enforce a contractual covenant

The intended third-party    beneficiary cannot,   however,   sue   the   promisee     for    breach   of the

promisee's contract with the promisor.”)

         The insurance policy provides that the insurer “will pay those sums that the insured

becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage.’”"

To the extent that PDSI is an intended third-party beneficiary under the OCIP policy, its claim is

against the non-party insurer. Therefore, based solely on the OCIP Policy,              PDSI cannot hold

CREF3 liable for indemnification

(c) The Project Management Agreement




'? OCIP Policy at 1
'3 OCIP Policy at 4
Nigg v. Marriot et. al.
Case No. ST-22-CV-240
Memorandum Opinion
Page 10 of 12


          CREF3 asserts that a separate contract, the Project Management Agreement, controls and

proves that PDSI’s claim has no merit.               The Court agrees.       It is well-settled that “[w]here the

language of a contract is clear and unambiguous, the parties’ intent must be derived from the plain

meaning of its terms.”      Phillip v. Marsh-Monsanto,        

 (V.I. 2017) (citing 11 Williston

on Contracts § 32:2 which provides that                “[i]f the language clearly conveys the parties’ lawful

intentions, then ... the court is obligated to enforce the agreement according to its terms.”). The

Project Management Agreement’s language is clear, and to the extent there are any conflicts, the

Project Management Agreement supersedes the OCIP Policy, which was entered into before the

Project Management Agreement

          The   Project     Management     Agreement,       in which     PDSI     promised   to provide      project

management services for the renovation of the hotel, states in relevant part that

          [PDSI] shall indemnify and hold harmless [CREF3] ... from and against any and
          all claims, liabilities, loss, damages, fines, penalties or costs (“Claims”) of any
          nature, including reasonable attorneys’ fees, whether by reason of death of or injury
          to any person or loss of or damage to any property or otherwise, to the extent arising
          out of (1) the negligent acts or omissions of [PDSI] or any of its employees or agents
          or (ii) the breach of this Agreement by [PDSI] or any of its employees or agents
          [PDSI’s] indemnification obligation under this Paragraph 15.1 shall not apply to
          the extent Claims are attributable to the gross negligence of willful misconduct of
          [CREF3] or Indemnitees.'4
Furthermore, the Project Management Agreement includes an “Entirety of the Agreement”

clause,   providing       that the Agreement         “supersedes   any and     all prior written   or oral

agreements      or understandings      between       the parties.”'!° Adhering     to the clause’s plain

language, the Project Management Agreement controls the relationship between PDSI and

CREF3.      Additionally, it would supersede the OCIP Policy because the Agreement was



'4 See Exhibit A at Section 15.1. (emphasis added)
'S See id. at Section 26
Nigg v. Marriot et. al
Case No. ST-22-CV-240
Memorandum Opinion
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entered      into     in 2021   and     the    OCIP     Policy   in 2019.     Moreover,      the   Agreement

unambiguously provides that “[PDSI] shall indemnify and hold harmless [CREF3]”                            from

claims based on the death of an individual that PDSI caused through its negligent acts or

omissions.       If PDSI     is found     liable for Nigg’s      death,   the claim      for indemnification

necessarily arises out of PDSI’s negligence that caused the death of a person. Thus, under

the Agreement, PDSI must hold CREF3 harmless from any liability it may have in this

matter, nullifying PDSI’s Crossclaim for indemnification.                    Accordingly, the Court shall

grant CREF3’s Motion to Dismiss PDSI’s Crossclaim for Contractual Indemnity (Count

II)

           IV. CONCLUSION

           The      Court, having     considered      the OCIP   Policy and the Project Management

Agreement, finds that PDSI has failed to state a claim for relief. PDSI may not sue CREF3

to enforce the OCIP Policy as the Policy is not an agreement between PDSI and CREF3

PDSI, as an intended third-party beneficiary, may only enforce the OCIP Policy against

the non-party insurer promisor, not the promisee, CREF3.                    Furthermore, even if the OCIP

Policy could be enforced as to CREF3, the Project Management Agreement supersedes the

OCIP Policy and protects CREF3                  from PDSI’s Crossclaim for indemnification.              PDSI

agreed to hold CREF3 harmless in the event PDSI’s negligent acts caused the death of a

person in relation to the renovation project of the Marriot hotel. The Court shall uphold the

parties’    promises.      Accordingly,       Defendant    CREF3     USVI      Hotel    Owner,     Inc.’s Rule

12(b)(6)     Motion      to Dismiss     Count      II (Contractual   Indemnity)        of Defendant    Project

Development Services, Inc.’s Crossclaims is granted
Nigg v. Marriot et. al.
Case No. ST-22-CV-240
Memorandum Opinion
Page 12 of 12

Dated:_& / 14         fAoory
                                        CAROL THOMAS             JXCOBS
                                         Judge of the Superior Court
                                            of the Virgin Islands
ATTEST
Tamara Charles
Clerk of the Court




by Latoya       Camacho
    Court Clerk Superv bore VA‘GF HPS