SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
CHARLES HUDDLESTON AND JESSIE ' Civil No SX 2022 CV 480
HUDDLESTON
PLAINTIFFS,
V JURY TRIAL DEMANDED
M G C , INC , A U S VIRGIN ISLANDS
CORPORATION,
DEFENDANT CITE AS 2024 VI SUPER 22
M G C , INC , A U S VIRGIN ISLANDS
CORPORATION,
THIRD PARTY PLAINTIFF,
V
GOVERNMENT OF THE VIRGIN
ISLANDS
THIRD PARTY DEFENDANT
Appearances
Douglas L Capdeville, Esq Nathan J Mirocha, Esq
Law Office of Douglas L Capdeville, P C MirochaLaw, LLC
St Croix U S Virgin Islands St Croix U S Virgin Islands
For Defendant/Thzrd Party Plamtzfl For Plamttffls'
Christopher M Timmons, Esq , Esq
DEPARTMENT OF JUSTICE
St Croix, U S Virgin Islands
For Third Party Defendant
MEMORANDUM OPINION AND ORDER
WILLOCKS, Administrative Judge
1] l THIS MATTER came before the Court on Third Party Defendant Government of the
Virgin Islands’ (hereinafter “GVI”) motion to dismiss, filed on April 3, 2023 In response, Third
Party Plaintiff M G C , Inc (hereinafter “MGC ) filed an opposition and GVI filed a reply thereto
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BACKGROUND
1! 2 On October 19 2022 Plaintiff Charles Huddleston and Plaintiff Huddleston (collectively
hereinafter Plaintiffs ’) filed a complaint against MGC, a security company on St Croix,
US
Virgin Islands, in connection with the Virgin Islands Police Department 3 (hereinafter ‘
VIPD )
response to MGC’s report that an alarm was triggered and a robbery was in progress at Plaintiffs
who were not MGC’s customers residence at 61 Estate Solitude, St Croix, U S Virgin Islands
on October 6, 2022 On December 1, 2022, MGC filed an answer to Plaintiffs’ complaint
On
February 8 2023 MGC filed a motion to file a third party complaint against GVI which the Court
subsequently granted In its third party complaint, MGC alleged the following causes of action
against GVI for the actions of VIPD contribution and indemnification ‘ On April 3, 2023, GVI
filed this instant motion to dismiss the third party complaint
DISCUSSION
1] 3 In its motion, GVI argued that the complaint should be dismissed for lack ofsubject matter
jurisdiction and for failure to state a claim upon which relief can be granted pursuant to Rule
12(b)(1) and 12(b)(6) of the Virgin Islands Rules of Civil Procedure
1 Motion to Dismiss for Lack of Subject Matter Jurisdiction
1] 4 In its motion GVI argued that the Court lacked subject matter jurisdiction over MGC’s
claims against GVI because MGC failed to comply with the pre filing requirements of the Virgin
Islands Tort Claims Act (hereinafter ‘ VITCA ), which are jurisdictional to wit GVI argued that
' Here MGC 3 third party complaint did not set forth counts in separate numbered paragraphs
with separate
designation of the specific names of each count in the pleadings as required by the Virgin Islands Rules of
Civil
Procedure (hereinafter Rule 8 ) Thus the specific causes of action are deduced from the allegations
in MGC 5 third
party complaint to wit In the event that Plaintiffs are allowed recovery on their claims from MGC,
then MGC is
entitled to contribution and/or indemnity from GVI which is or may be liable to MGC for all or part of Plaintiffs
damages should they prevail at trial (TPC )
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“[the injuries] allegedly occurred on October 6, 2022, ’ which is when the contribution claim
accrued,1 and the 90 day notice period under the VITCA has long expired (Motion )
I! 5 In its opposition, MGC did not dispute that the VITCA is applicable in this instance, but
argued that for the purposes of the 90 day notice period under the VITCA the contribution claim
accrued either from the [date of] entry ofjudgment against the defendant or the date of payment
of more than the defendant’s pro rata share to the plaintiff ’3 (Opp 5 ) Alternatively, MGC argued
that if the Coutt agrees with the accrual date argued by GVI, then ‘ the Court has discretion to grant
MGC leave to file a late notice of intent ”4 (Id )
1] 6 In its reply, GVI reiterated that the contribution claim accrued on the date of the injury 5
(Reply I 3 ) As to MGC s alternate argument, GVI pointed out that MGC ‘ did not file a motion,
no affidavits are before the Court and no reasonable excuse has been given ’ so the Court should
not grant MGC a discretionary extension for the compliance of the pre filing requirements of the
VITCA (Id at 3 4 )
A Standard of Review
1] 7 A motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(l) of the
Virgin Islands Rules of Civil Procedure challenges the court’s authority to hear the case V I R
CW P 12(b)(a) The applicable standard of review under Rule 12(b)(1) differs depending on
whether the moving party has made a facial attack or a factual attack on the court's power to hear
the case James St Jules v Thompson 2015 V I LEXIS 74 at *6 (VI Super Ct June 25 2015)
’ For its argument on the accrual date of the contribution claim, GVI did not cite to any authority
3 For its argument on the accrual date of the contribution claim, MGC relied on Dublin v V 1 Tel Corp , 15 V I 214
(VI Terr Ct June9 I978)
4 For its alternative argument, MGC relied on Title 33 V I C § 3409(c)
5 For its argument on the accrual date of the contribution claim, GVI relied on Martinez v Frazer, 23 V I 53 (V I
Terr Ct October 23 [987)
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When the attack on subject matter jurisdiction is facial, it ‘ is an argument that considers a claim
on its face and asserts that it is insufficient to invoke the subject matter jurisdiction of the court
based on a Jurisdictional defect, ’ and “the court must only consider the allegations ofthe complaint
and documents referenced therein and attached thereto, in the light most favorable to the
plaintiff James St Jules v Thompson 2015 V I LEXIS 74 at *6 7 (V I Super Ct June 25
2015) (internal quotation marks and citations omitted) In other words under a facial attack, the
Court must ‘ apply the same standard of review it would use in considering a motion to dismiss
under Rule 12(b)(6) James St Jules, 2015 V I 74, at *7 On the other hand, when the attack on
subject matterjurisdiction is factual, the defendant disputes the existence of certain jurisdictional
facts alleged by plaintiffs” and the Court ‘ is free to weigh the evidence and satisfy itself as to the
existence of its power to hear the case ’James St Jules, 2015 V 1 74, at *7; see Martinez v
Colombian Emeralds Inc 51 VI 174 189 (VI 2009) (Under Rule 12(b)(1) the court is free
to weigh the evidence and satisfy itself as to the existence of its power to hear the case ”); see also
Daley Jeflers v Graham 69 V I 931 939 n 8 (2018) ( When an attack on subject matter
Jurisdiction is factual the Superior Court is free to evaluate the merits ofjurisdictional claims and
may look beyond the face of the complaint to make this determination ”) In such a case, “no
presumptive truthfulness attaches to plaintiff‘s allegations [and] the burden of proving the
existence of subject matter jurisdiction lies with the plaintiff James St Jules, 2015 V I 74, at *7,
see Franczs v Govtofthe VI No ST 13 CV 387 2014 VI LEXIS 43 at *2 3 (VI Super Ct
July 10 2014) ( Once a defendant challenges a plaintiff‘s pleading on FED R ClV P 12(b)(l)
grounds, the burden shifts to the plaintiff to demonstrate the Court has the authority to hear and
decide the case ”)
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B Analysis
18 While MGC did not dispute that the VITCA is applicable in this instance the Court must
still perform its own analysis to determine that the VITCA is indeed applicable See Henry v
Dennery 2013 V 1 Supreme LEXIS 4 at *6 (V I 2013) (the Virgin Islands Supreme Court has
repeatedly instructed that parties cannot simply stipulate to the law )
i Whether the VITCA is Applicable
‘1 9 The Revised Organic Act grants sovereign immunity to the Government of the Virgin
Islands for tort claims Sec Title 48 U S C § 1541(b) ( That no tort action shall be brought against
the government of the Virgin Islands or against any officer or employee thereof in his official
capacity without the consent of the legislature constituted by this Act [48 USCS § 1541 et seq ] )
“The VITCA provides the mechanism by which persons may sue the Government in tort in the
courts ofthe Virgin Islands Fleming v Cruz 62 V I 702 718 (V I 2015) see Title 33 V I C §
3408(a)( Subject to the provisions of section 3416 of this chapter, the Government of the United
States Virgin Islands hereby waives its immunity from liability and action and hereby assumes
liability with respect to 111qu or loss of property or personal injury or death caused by the
negligent or wrongful act or omission of an employee of the Government of the United States
Virgin Islands while acting within the scope of his office or employment, under circumstances
where the Government of the United States Virgin Islands, if a private person, would be liable to
the claimant in accordance with the law of the place where the act or omission occurred The
Government consents to have the liability determined in accordance with the same rule of law as
applied to actions in the courts of the Virgin Islands against individuals or corporations, Provided
That the claimant complies with the provisions of this chapter ) Here, MGC sued GVI for
contribution and indemnification based on tort law by claiming that GVI is jointly and severally
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liable or wholly liable for Plaintiffs’ injury as the result the conduct of VIPD, which is an
“executive department in the Government of the Virgin Islands,” Title 3 V I C § 251, and under
VITCA, ‘Govemment of the Virgin Islands includes the executive, legislative, and judicial
branches of the Government of the Virgin Islands, agencies and instrumentalities of the
Government of the Virgin Islands Title 33 V I C § 3401 As such the VITCA is applicable
to the facts of this case
ii Whether MGC Complied with the Pre Filing Requirements of the
VITCA
1] 10 The VITCA provides that “[n]0 Judgment shall be granted in favor of any claimant unless
such claimant shall have complied with the provisions of this section [3409] Title 33 V I C §
3409 Title 33, section 3409 of the Virgin Islands Code provides
No judgment shall be granted in favor of any claimant unless such claimant shall have
complied with the provisions of this section applicable to his claim
(a) a claim for the appropriation by the Government of lands or any right, title of interest
in or to lands shall be filed within two years after the accrual of such claim,
(b) a claim by an executor or administrator of a decedent who lefi him or her surviving a
husband, wife or next of kin, for damages for a wrongful act, neglect or default, on the pan
of the Government by which the decedent's death was caused shall be filed within ninety
days afier the appointment of such executor or administrator, unless the claimant shall
within such time file a written notice of intention to file a claim therefor in which event the
claim shall be filed within two years afier the death of the decedent In any event such
claim shall be filed within two years after the death of the decedent;
(c) a claim to recover damages for injuries to property or for personal injury caused by the
tort of an officer or employee of the Government of the United States Virgin Islands while
acting as such officer or employee, shall be filed within ninety days after the accrual of
such claim unless the claimant shall within such time file a written notice of intention to
file a claim therefor, in which event the claim shall be filed within two years after the
accrual of such claim
A claimant who fails to file a claim or notice of intention, as provided in the foregoing
subsections, within the time limited therein for filing the notice of intention, may,
nevertheless, in the discretion ofthe court, be permitted to file such claim at any time within
two years after the accrual thereof, or in the case of a claim for wrongful death within two
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years afier the decedent's death The application for such permission shall be made upon
motion based upon affidavits showing a reasonable excuse for the failure to file the notice
of intention and that the Virgin Islands or its appropriate department or agency had, prior
to the expiration of the time limited for the filing of the notice of intention, actual
knowledge of the facts constituting the claim The claim proposed to be filed, containing
all of the information set forth in section 3410 of this title, shall accompany such
application No such application shall be granted if the court shall find that the Government
of the United States Virgin Islands has been substantially prejudiced by the failure of the
claimant to file such notice of intention within the time limited therefor But if the claimant
shall be under legal disability, the claim may be presented within two years after such
disability is removed
Title 33 V I C § 3409
The VITCA further provides the requirements concerning the claim or the notice of intention
The claim or notice of intention shall be filed in the Office of the Governor and a copy
shall be served upon the Attorney General and a written receipt therefor shall be issued
with the date of filing indicated thereon The claim shall state the time when and the place
where such claim arose, the nature of same, and items of damage or injuries claimed to
have been sustained and the total sum claimed The notice of intention to file a claim shall
set forth the same matters except that the items of damage or injuries and the sum claimed
need not be stated The claim and notice of intention to file a claim shall be verified
Title 33 V I C § 3410
1| 1] The Court recognizes that the Virgin Islands Supreme Court has not yet determined
whether the pre filing requirements of the VITCA are jurisdictional or claims processing rules
See e g Alexander v Wilson, 73 V I 528, 1[ 13 (V I 2020) ( It remains an issue of first impression
in the Virgin Islands whether the pertinent provisions of the VITCA are jurisdictional, or claims
processing rules which may be waived ) Fleming v Cm 62 V I 702, 718 n 13 (V I 2015) (‘ In
this case, we do no decide whether the VITCA 3 claim filing requirements are jurisdictional We
leave a decision on whether the VITCA 3 claim filing mandates are jurisdictional for another
day ’) However, in Richardson v Knud Handsen Mem [Hosp , 744 F 2d IOO7 1010 (3d Cir
1984), the Third Circuit Court of Appeals, in its capacity as the de facto court of last resort of the
Virgin Islands, held that compliance with the pre filing requirements under the VITCA are
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jurisdictional, and Richardson remains binding on the Virgin Islands Superior Court See e g
Yuxtang Peng v Williams 67 V I 482 485 n 2 (V I Super Ct July 24 2017) 6 Christopher v
6 In Yuxtang Peng, the Court addressed the issue of whether Richardson is still binding on Virgin Islands Superior
Court
In Richardson the Third Circuit Court ofAppeals exercising its power as the final arbiter of Virgin Islands
local law held that the terms under which the Government of the Virgin Islands consented to waive its
immunity from tort liability as embodied in the VITCA are Jurisdictional and ‘ It follows that the terms may
not be waived 744 F 2d at 1010 The Supreme Court of the Virgin Islands has made it clear that decisions
rendered by the Third Circuit while serving as the de facto court of last resort in the Virgin Islands “are
binding upon the Superior Court of the Virgin Islands even if they would only represent persuasive authority
when [the Supreme Court] considers an issue Najawzcz 1 People of the Virgin Islands, 58 V I 315, 327
28 (V l 2013) (intemal citation omitted); see also In re People of the Virgin Islands 51 V I 374 n 9 (V I
2009) Thus the Third Circuit 5 holding in Richardson remains binding on this Court
The Court notes that, while the case in Richardson originated in the District Court of the Virgin Islands in
1980 the District Court was acting as a territorial court when it adjudicated Richardson 5 claim for wrongful
death See Callwood l Enos 230 F 3d 627 43 V I 293 297 98 (3d Cir 2000) (The District Conn of the
Virgin Islands used to have general original jurisdiction over all civil actions arising under territorial law in
which the amount in controversy was more than $500) see also Carty v Beech Aircraft Corp , 679 F 2d
1051 1057 19 V l 641 (3d Cir 1982) (characterizing jurisdiction of the District Court of the Virgin Islands
under the Revised Organic Act prior to the 1984 amendments as “more like a state court of general
jurisdiction than a United States district court ) For a detailed description of the development of the
judiciary of the Virgin Islands see James St Jules t Thompson 2015 V l LEXIS 74 at *16 2O
67 V I 482 485 n 2 (V 1 Super Ct July 24 2017)
Furthermore, the Court notes that in this instance, the Court need not undertake a Banks analysis concerning the
VITCA because it is an issue of statutory interpretation rather than a detennination of common law See In re L 0 F ,
62 V I 655 661 n 6 (V 1 2015) (The Supreme Court of the Virgin Islands has established that a Banks analysis is not
required for statutory interpretation ) see also Smith 1 Henley 67 V I 965 970 n 2 (V 1 2017)
(‘A Banks analysis was unnecessary, however, because the issue here is purely a matter of statutory interpretation
not common law ) Banks 1 Int] Rental & Leasmg Corp 55 V1 967 (VI 2011) Additionally the Court also notes
that in Wallace v People ofthe V I , the Virgin Islands Supreme Court reaffinned that [i]t is true that prior decisions
of the Appellate Division remain binding upon the Superiox Court unless overturned by this Court 71 V I 703, 738
n 5 (V I 2019) (citing Defoe i Phillip 56 V I 109 119 (V I 2012) ( This Court is not required to follow decisions
of the District Court or the Third Circuit interpreting local Virgin Islands law In addition to previously holding that
decisions of our predecessor court, the Appellate Division of the District Court of the Virgin Islands, are
not binding on us, we have also recently held that this Court unlike the Superior Court is not compelled to treat
the Third Circuit's interpretation of Virgin Islands law as binding precedent Although the establishment of this Court
has changed the relationship between the local Virgin islands judiciary and the Third Circuit, this Court's creation did
not erase pre existing case law, and thus precedent that was extant when the Court became operational continues
unless and until this Court address the issues discussed there Accordingly, decisions rendered by the Third Circuit and
the Appellate Division of the District Court are binding upon the Superior Court even if they would only represent
persuasive authority when this court considers an issue ’” (quoting Judi’s ofSt Crozx Car Rental v Weston, 49 V I
396 403 n 7 (VI 2008)’ In re People of the V I 51 VI 374 389 n 9 (VI 2009))» The Court is nevertheless
cognizant that, in flamed t flamed, the Virgin Islands Supreme Court held that “decisions of the Appellate Division
and the Third Circuit addressing issues of Virgin Islands common law are no longer binding on the Superior Court, ’
63 V l 529 535 (VI 2015) (citing Go» I o} the VI 1 Connor 60 V l 597 605 n 1 (VI 2014)) and that decisions
issued by the Appellate Division after 2007, like decisions of the District Court or Third Circuit heard through
diversity or supplementaljurisdiction are not binding on the Superior Court, 63 V I at 535 (citing Better Bldg Mamt
o} the! I Inc 1 Lee 60VI 740 755 56 (VI 2014) Waltersv Walters 60V] 768 777 n 10(VI 2014) People
v Simmonds
56 VI 84 90 (V1 Super Ct 2012) Edwardsv HOVE’VSA LLC 497 F 3d 355 359 61 (3d Cir 2007))
However Richardson did not concern common law and it was issued prior to 2007 As such until the Virgin Islands
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Gov Juan F Luzs Hosp & Med Ctr 2016 165 *1! (V I Super Ct Oct 12 2016) ( despite any
contrary intimations from the Supreme Court, this Court is bound by the Third Circuit's precedent
in chhardson and must consider challenges to the VITCA' s prefiling requirements as challenges
to subject matterjurisdiction unless and until the Supreme Court ofthe Virgin Islands conclusively
determines otherwise ’); Richardson v Schneider Medical Regional Cetner, 2017 V I LEXIS 168
(V I Super Ct Dec 4 2017)‘ Hansen v Gov Juan F Luzs Hosp & Med Ctr 2018 V I LEXIS
87 *9 (V 1 Super Ct June 22 2018)
fl 12 Given that GVI s motion to dismiss alleged lack of jurisdiction based on MGC’s
noncompliance with the prefiling requirements of the VITCA, it depends on a determination of
facts such as whether MGC timely complied with the pre filing requirements of the VITCA by
filing the claim or notice of intention with the Office of the Governor and serving a copy upon the
Attorney General Thus, GVI made a factual attack on the Court 8 power to hear this instant case
against GVI, which means that the Court is free to weigh the evidence and MGC has the burden
of proving the existence of subject matter jurisdiction
1] 13 In this instance, the Court must determine the accrual date of MGC’s claims against GVI
See Samuel v Gov t ofthe V I 44 V I 201 205 (V l Terr Ct March 1 2002)( Determining an
accrual date is essential in assessing whether a claimant has complied with the pre filing
procedures of VITCA, specifically the stringent 90 day notice period to file a claim or notice of
intent ’) In summary, MGC relied on Dublin and GVI relied on Martina for the determination
of the accrual date for MGC 5 contribution claim, and neither party made any attempt to cite or
Supreme Court explicitly declares that all decisions of the Appellate Division and the Third Circutt are no longer
binding on the Virgin Islands Superior Court or definitively proclaims that the pre filing requirements of the VITCA
are not jurisdictional, the Court continues to find Richardson binding
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distinguish any authority against their position7 In any event, the cases cited by MGC and 6V]
Dublin and Martinez are not binding on this Court because the decision of a Territorial Court
judge is not binding upon a Superior Court judge 3 See Farris v Nurse 76 V I 492, 498 n 8 (V I
2022) (“It is well established that a prior decision of one Superior Court judge in one case does
not constitute controlling authority in any subsequent proceeding ’ )(quoting Ednei v Edney,
64
VI 661 665 n2 (V1 2016)) see also In the Matter on0
60 VI 654 661 n 8 (VI 2014)
( [T]he decision of a single Superior Court judge is not binding precedent on other Superior
Court judges ) (citing Threadgzll v Armstrong World Indus
928 F 2d 1366 1371 & n 7 (3d Cir
1991)) Furthermore while the VITCA was patterned after the New York equivalent the New
York Court of Claims Act (hereinafier ‘ NYCCA ), the notice provisions therein are in fact
different See Gan ale. v Stevens N0 82 191 1983 U S Dist LEXIS 20508 at *4 5 n 2 (D VI
Mar 22, 1983) (‘ Although the Virgin Islands Tort Claims Act was ‘primarily drawn from’ the
New York Court of Claims Act N Y Judiciary Law §§8 12 (McKinney 1981) the filing
requirements contained in the two statutes differ in one dramatic respect The New York act
7 The Court reminds the parties that they have a duty to cite authority for and against the positions being advocated,
and not just authority that supports its position See V l R Cw P ll(b)(5) ( By presenting to the court a pleading
written motion or other paper whether by signing filing submitting or later advocating it an attorney or self
represented party certifies that to the best of the person's knowledge, information and belief, formed after an inquiry
reasonable under the circumstances that the applicable Virgin Islands law has been cited, including authority
for and against the positions being advocated by the party ) (emphasis added)
The Court must note that interestingly CV! and MGC only made arguments as to the accrual of MGC 5 contribution
claim and not as to MGC s indemnification claim This is an example of why it is important for a litigant to comply
with Rule 8, which mandates that the pleading should set forth counts in separate numbered paragraphs with separate
designation of the specific names of each count in the pleadings V 1 R ClV P 8 It is for the benefit of everyone
involved the plaintiff the defendant the Court to have the claims clearly identified See Arno v Hess Corp , 71
V1 463,499 (V1 Super Ct Oct 17 2019)( the law favors clarity and precision especially in pleadings ) In the
interest of efficiency, the Court will nevertheless address the accrual of both claims herein in the event that MGC
intended to proceed with both claims against GVI
8 The Territorial Court is the predecessor of the Superior Court Manda i Govt ofthe VI , 56 V I 194 201 n 3 (V I
2012) (observing that the name of the Territorial Court was changed to the Superior Court on October 29 2004), and
thus the Territorial Court and the modern Superior Court are treated as equivalents see Farms, 76 V I at 498 n 8
(treating the Territorial Court as the direct equivalent of the modem Superior Court) (citing Hodge v Bluebeard's
Castle Inc 62 V I 671 676 & n 2 (V I 2015)
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provides that the filing of a ‘claim actually triggers the commencement of a lawsuit in the abate
Court of Claims By contrast, neither the ‘notice of intention nor the claim’ described in our act
amounts to a civil complaint In Bye i New York State,
90 Misc 2d 265 394 N Y S 2d 381 383
(Ct (I 1977) the Court of Claims acknowledged that a document which is not the vehicle for
commencing a lawsuit cannot properly be made ‘the subject ofattack as substantively insufficient
because there [is] nothing to dismiss ”’) (citation omitted), see also Ashley v Am Airlines Inc ,
No 85 CW 0614 (PKL) 1988 U S Dist LEXIS 11612 at *15 I6 18 (S DN Y Oct 21 1988)
( ‘Upon examination, however the Court finds that the VITCA differs from the NYCCA (in both
its earlier and current versions) in several significant respects Finally and most importantly in
the present case, the New York Court of Appeals has taken a different view than a Virgin Islands
court in deciding a key question under each act namely, when a claim for indemnification or
contribution against the government accmes for purposes of the Act's notice requirements While
both acts raise the gate which had barred plaintiffs from bringing suit against the government at
common law, the NYCCA offers plaintiffs a relatively unobstructed avenue to recovery, while the
VITCA provides a much narrower crawlspace ) As such, the Court will not resort to New York
judicial decisions in this area for guidance
1] 14 Here, by alleging a contribution claim against GVl, MGC is alleging that GVI also played
a role in causing injury to Plaintiffs and thus seeking contribution from GVI in the event that MGC
is found liable to Plaintiffs; by alleging an indemnification claim against GVl, MGC is alleging
that GVl was solely responsible in causing injury to Plaintiffs and thus seeking to shift the entire
liability from itself to GVl in the event that MGC is found liable to Plaintiffs See Willie v
Amerada Hess Corp 66 V I 23 87 (V I Super Ct Feb 28 2017) ( Indemnification and
contribution differ in the extent to which a tortfeasor is able to rid himself of liability Where
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Indus Inc
502 F 2d 259
11 VI 220 241 n 17 (3d Cir 1974) (emphasis added» Given that
neither party has identified a statute or a binding decision from an authoritative court that addresses
the issue of whether the accrual of contribution claim and indemnification claim is the same as the
underlying predicate tort a Banks analysis is necessary 9 See Banks v International Rental &
Leasmg Corp 55 V I 967 977 78 (V I 2011) see also Gov t ofthe Virgin Islands v Connor 60
V I 597 (V I 2014) (‘ Thus, the Superior Court, when considering a question not foreclosed by
prior precedent from this Court must perform a three part analysis as set forth in Banks ”) In
Robbins v Port ofSale Inc , the court performed a Banks analysis as to the issue of whether the
limitations of actions for indemnity and contribution are the same as the predicate tort's, which
also addressed the accrual date of such claims 62 V I 151 154 (V I Super Ct March 6 2015)
The Robbins court concluded that the soundest rule of law for the Virgin Islands is that “that the
statute of limitations for contribution and indemnity in the Virgin Islands is not coterminous with
the statute of limitations for the predicate tort; the causes of action for contribution and indemnity
do not accrue at the time of the tort, but only when liability is discharged ” Id , 62 V I at 158 59
Having reviewed the Banks analysis conducted in Robbins, this Court agrees with its reasoning
and conclusion and adopts its Banks analysis and conclusion as though the same was set forth
herein Based on this conclusion, the Court finds that the 90 day notice period has not expired
However, this raises the issue of whether a claimant can comply with the VITCA’s pre filing
requirements prior to the accrual of a contribution claim/indemnification claim The language of
9 “A Banks analysis calls for the balancing of three non dispositive factors that include “( 1) whether any Virgin
Islands courts have previously adopted a particular rule; (2) the position taken by a majority of courts from other
jurisdictions, and (3) most importantly, which approach represents the soundest rule for the Virgin Islands "
Reynolds v Ro/m
70 VI 887 893 (VI 2019) (quoting Simon v Joseph
59 VI 611 623 (VI 2013)) Although
only the Superior Court is required to conduct Banks analyses Connor 60 V I at 603 (citing Banks, 55 V I 967) the
parties are again reminded of their duties under Rule 1 l of the Virgin Islands Rules of Civil Procedure See supra
footnote 7
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However, this raises the issue of whether a claimant can comply with the VITCA’s pre filing
requirements prior to the accrual of a contribution claim/indemnification claim The language of
Title 33 V I C § 3409(c) is ambiguous as to this issue since the statute s ‘silence could be
interpreted as either permitting or not permitting compliance prior to the accrual of the claim See
One St Peter LLC v 3d of Land Use Appeals
67 VI 920 924 (2017) ( Statutory language
is ambiguous when it is susceptible to more than one interpretation ”) Thus, the Conn will now
‘ proceed to examine the legislative history ofthe statute and its purpose to ascertain if [a pr0posed]
interpretation was within the legislature's intent ’ One St Peter LLC v Bd ofLand Use Appeals,
67 V I 920 926 (V I 2017) (quoting Sonson v People 59 V I 590 598 (V I 2013)) [C]ourts
must assume that the legislature intends for the entirety of the statutory language, as well as the
whole statutory scheme, to be effective, unless to do so would lead to unjust or absurd results or
would otherwise undermine the legislative intent Willis v People of the V I 71 V I 789, 825
(V 1 2019) In Brunn v Dowdye, the Virgin Islands Supreme Court identified that the intent of the
pre filing notice requirements under the VITCA is to afford the Government an opportunity to
make an investigation in order to determine if the claims should be settled without suit 59 V I
899 911 (V I 2013) see thllzps v Govt ofthe VI No 617 1983 1984 V I LEXIS 38 at *3
(V I Terr Ct Aug 14 1984) ( The purpose behind the ninety day notice provision of the Tort
Claims Act is to prevent the presentation of stale claims so that the Government has an adequate
opportunity to investigate and to explore the merits of a claim and to pursue a settlement while the
evidence remains fresh in the memory of witnesses ’) To interpret Title 33 V I C § 3409(c) to
not permit compliance prior to the accrual of a contribution claim/indemniflcation claim would
undermine the legislative intent to afford the Government an opportunity to investigate More
specifically, since Plaintiffs are suing MGC for the underlying predicate tort and MGC is seeking
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contribution/indemnification from GVI, it aligns with legislative intent to notify GVI sooner while
Plaintiffs’ suit against MGC is still ongoing rather than later afier Plaintiffs suit against MGC
have concluded Accordingly, the Court finds that Title 33 V I C § 3409(c) permits compliance
ofthe VITCA’s pre filing requirements prior to the accrual of a contribution claim/indemnification
claim Thus the Court has subject matter jurisdiction over this matter so long as MGC complies
with the VITCA’s pre filing requirements The Court finds that, by serving the Attorney General
with a copy of its third party complaint, MGC has complied with VITCA 3 pre filing requirement
of serving a copy of its claims upon the Attorney General Title 33 V I C § 3410 However, MGC
still needs to file its claims with the Office of the Governor since notifying the Attorney General
is not the same as notifying the Office of the Governor, which the VITCA clearly required Title
33 V I C § 3410 ( The claim or notice of intention shall be filed in the Office of the Governor and
a copy shall be served upon the Attorney General ) As such, the Court will order MGC to file
a copy of its third party complaint at the Office of the Governor and upon MGC filing a notice of
compliance, GVI s motion to dismiss for the lack of subject matter jurisdiction will be deemed
denied See James St Jules 2015 V l 74, at *7 (noting that when an attack on subject matter
jurisdiction is factual, “no presumptive truthfulness attaches to plaintiff‘s allegations [and] the
burden of proving the existence of subject matter jurisdiction lies with the plaintiff )
2 Motion to Dismiss for Failure to State a Claim Upon Which Relief can be Granted
1] [5 In its motion, GVI argued that MGC s third party complaint fail[ed] to state a claim upon
which relief can be granted because in the context of the facts alleged, [GVI] owes no
individualized duty to members of the public, and thus the actions of the VIPD in responding to
[MGC’s] false alarm cannot be the basis for a negligence claim ’ (Motion 10 ll ) GVI stated that
“[w]hether law enforcement owes a particularized or individualized duty has not been determined
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by Virgin Islands’ Courts” and thus, after conducting 21 Banks analysis, concluded that the soundest
rule for the Virgin Islands is to hold that the Law Enforcement owes no Individualized Duty
Absent a Special Relationship (Id , at 13) (emphasis omitted )
1| 16 In its opposition, MGC argued that the Court should deny GVI’s motion to dismiss for
failure to state a claim upon which relief can be granted because “(1) MGC has made sufficient
claims putting the GVI on notice for negligent acts and omissions ’ of the VIPD officers as
contemplated by V I R Civ P 8 and the VITCA and (2) at this juncture procedurally the Court
does not need to decide the motion to dismiss on the merits (Opp 7 )
11 17 In its reply, GVI reiterated that ‘ law enforcement owes no general duty to the public ’ and
‘ nowhere in the VITCA does the statute create duties that do not otherwise exist (Reply )
A Standard of Review
1] 18 Rule 12(b)(6) of the Virgin Islands Rules of Civil Procedure (hereinafter Rule 12(b)(6) )
allows a party to assert the defense of “failure to state a claim upon which relief can be granted ’
by motion and move for dismissal The Rule 12(b)(6) motion tests the sufficiency of the complaint
Rule 8 of the Virgin Islands Rules of Civil Procedure (hereinafter “Rule 8”) requires, Inter aha, “a
short and plain statement of the claim showing that the pleader is entitled to relief because this
is a notice pleading jurisdiction and the pleading shall be set forth in separate numbered
paragraphs as provided in Rule 10(b), with separate designation of counts and defenses for each
claim identified in the pleading VI R Clv P 8(a)(2) As a notice pleading jurisdiction, ‘ [a]
complaint is sufficient ‘so long as it adequately alleges facts that put an accused party on notice of
claims brought against it 0xley 2018 VI LEXIS at *3 (quoting M1113 Williams 67 V I 574
585 (V I 2017)); accord Arno, 71 V I at 501 (“‘Plead the who, what, where, when, and how
sufficient information to put a defendant on notice of the conduct and actions the plaintiff
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complains of (brackets and citation omitted» “[A] complaint need not plead facts to support
each element of a claim in order to adequately allege facts that put an accused party on notice or
to show[] the pleader is entitled to relief under V I R CIV P 8(a)(2)[] [b]ut a complaint should
provide factual allegations sufficient to advise the responding party of the transaction or
occurrence on which the claim is based and identify the claim, reciting its elements, so as to enable
the defendant to respond intelligently and to enable the Court to determine on a motion to
dismiss under VI R Civ P 12(b)(6) whether the claim is adequately pled Oxley 2018 VI
LEXIS at *10 '0 see Mills Williams 67 VI at 585 (citing VI R Civ P 8 Reporters Note)
(“Virgin Islands Rule of Civil Procedure 8 expressly states that the Virgin Islands “is
a notice pleading jurisdiction, V I R Civ P 8(a) and the Reporter's Note eliminates any doubt
that this language is calculated to apply[] an approach that declines to enter dismissals of cases
based on failure to allege specific facts which, if established plausibly entitle the pleader to
relief ’ ) (emphasis in original); see also Brathwatte v H D V 1 Holding Co , 2017 V I LEXIS 76,
at *3 (V I Super Ct May 24 2017) (acknowledging that Virgin Islands Civil Procedure Rule
8(a)(2) eliminates the plausibility standard and instead will permit a complaint so long as it
adequately alleges facts that put an accused party on notice of claims brought against it ))
1] 19 ‘ When ruling on a motion to dismiss for failure to state a claim, the court does not address
the merits Oliver v Termmzx Int] Co 73 V I 210 214 (V I Super Ct April 26 2020) accord
Arno, 71 V I at 494 Instead, courts assume all reasonable factual allegations in the complaint as
'0 The Oxley court noted that ‘considering the policy of the Supreme Court of the Virgin Islands requiring the Superior
Court to conduct a Banks analysis to determine the applicable common law when confronted with an issue of common
law that has not yet been adopted by the Supreme Court of the Virgin Islands in order to enable the Superior Court to
recognize a potential Banks issue and order the parties to brief it this Court underscores that a complaint should recite
the elements of a common law claim so as to make clear the legal theory presented, given that elements among
common law claims of the same name may vary 2018 V I LEXIS *10 11 This Court agrees
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true and draw all fair inferences from such allegations ’ ’ Arno, 71 V I at 494 (quoting In re Kelvin
Manbodh Asbestos thlg Sezers 47 V I 375 380 (V I Super Ct March 3 2006)) However
“[a]llegations will not be reasonable, nor will inferences in favor of the plaintiffbe fair, where they
contradict facts either contained in the public record or Judicially noticed by the Court In re
Kelvm Manbodh Asbestos thlg Serzes 47 V I at 380
B Analysis
11 20 As noted above, MGC failed to comply with Rule 8 when its third party complaint failed
to set forth counts in separate numbered paragraphs with separate designation of the specific names
of each count, but the Court nevertheless deduced that MGC alleged a contribution claim and an
indemnification claim against GVI for the actions of VIPD '1 The Court finds unpersuasive GVI’s
argument that GVI cannot be held liable for VIPD s actions because VIPD does not owe a general
duty to the public and thereby, VIPD s actions in responding to [MGC 5] false alarm cannot be
the basis for a negligence claim (Motion ) The plain language of the VITCA is unambiguous that
the VITCA is applicable whenever an injury or loss of property or personal injury or death
(collectively, hereinafter loss”) is caused by the negligent or wrongful act or omission of any
person acting on behalf of the executive, legislative, and judicial branches of the Government
“while acting within the scope of his office or employment, under circumstances where the
Government of the United States Virgin Islands, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or omission occurred, ’ and that the
Government is to, after a claimant’s compliance with the VITCA’s pre filing requirements waive
its immunity from liability and action, and assume liability with respect to such Loss with no
exception made as to the Loss caused by the negligent or wrongfiil act or omission of VIPD Title
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33 V I C §§ 3401, 3408(a) 1° ‘ The first step when interpreting a statute is to determine whether
the language at issue has a plain and unambiguous meaning Miller v People ofthe V I , 67 V I
827, 844 (2017) It is well settled that when the language of a statute is plain and unambiguous,
no further interpretation is required See Thomas v People ofthe V I 69 V I 913 925 (V I 2018)
(noting that because ‘the statutory language [of 14 V 1 C § 2101(a)] is plain and unambiguous,
no further interpretation is required” ); see also Codrmgton v People ofthe V I , 56 V I 176, 185
(V 1 2012) ( Accordingly when the language of a statute is plain and unambiguous, a court does
not look beyond the language of the statute in interpreting the statute's meaning ’) “The Virgin
Islands Legislature has instructed that [w]ords and phrases shall be read with their context and
shall be construed according to the common and approved usage of the English language ’ Title 1
V 1 C § 42 Miller 67 V I at 844 There is nothing in the VITCA to suggest that the Virgin Islands
Legislature intended to carve out an exception for Loss caused by the negligent or wrongful act or
p Title 33 section 3401 of the Virgin Islands Code provides
As used in this chapter the term
Government of the Virgin Islands includes the executive legislative, and judicial branches of the
Govemment of the Virgin Islands, agencies and instrumentalities of the Government of the Virgin
Islands and Governing Boards and Commissions of the Government of the Virgin Islands, including
but not limited to the Virgin Islands Government Hospitals and Health Facilities Corporation, but
does not include any contractor with the Government of the Virgin Islands
Employee of the Government includes elected or appointed officials, employees, members of
Governing Boards and Commissions and other persons acting on behalf of the Government of the
United States Virgin Islands
Title 33 V I C 9' 3408
Title 33 section 3408(a) of the Virgin Islands Code provides
Subject to the provisions of section 3416 of this chapter, the Government of the United States Virgin Islands
hereby waives its immunity from liability and action and hereby assumes liability with respect to injury or
loss of property or personal injury or death caused by the negligent or wrongful act or omission of an
employee of the Govemment of the United States Virgin Islands while acting within the scope of his office
or employment, under circumstances where the Government of the United States Virgin Islands if a private
person, would be liable to the claimant in accordance with the law of the place where the act or omission
occurred The Government consents to have the liability determined in accordance with the same rule of law
as applied to actions in the courts of the Virgin Islands against individuals or corporations; Provided That
the claimant complies with the provisions of this chapter
Title 33 V [C § 3408(a)
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omission of a VIPD officer acting on behalf of VIPD, an executive branch of the Government,
while acting within the scope of his office or employment under circumstances where the
Government, if a private person, would be liable to the claimant in accordance with the law of the
place where the act or omission occurred, so that the Government would not to waive its immunity
from liability and action, and would not assume liability with respect to such Loss [f the drafters
intended to make such an exception as to VIPD officers then the drafiers clearly could have done
so by explicitly including the exception in the VITCA As such, the Court will give effect to the
plain and unambiguous language of the VITCA and hold that the Government will after a
claimant’s compliance with the VITCA’s pre filing requirements, waive its immunity from
liability and action, and assume liability with respect to the Loss caused by the negligent or
wrongful act or omission of Government employees including VIPD employees while acting
within the scope of his office or employment, under circumstances where the Government, if a
private person would be liable to the claimant in accordance with the law of the place where the
act or omission occurred As such, the Court rejects GVl’s argument that GVl cannot be held liable
for VlPD’s actions because VIPD does not owe a general duty to the public, and in viewing all the
factual allegations in the third party complaint as true and construing it liberally in the light most
favorable to MGC the Court finds that the third party complaint adequately allege facts that put
an accused party on notice of claims brought against it Mills Williams, 67 V I at 585
Accordingly, the Court will deny GVI s motion to dismiss for failure to state a claim upon which
relief can be granted
CONCLUSION
1] 21 For the reason stated above the Court will order MGC to file a copy of its third party
complaint at the Office of the Governor and file a notice of compliance thereafter, and deny GVI’s
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Memorandum Opinion and Order 2024 VI SUPER
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motion to dismiss for failure to state a claim upon which relief can be granted At this juncture
the Court will order this matter stayed pending MGC filing a notice of compliance to prove the
existence of subject matter jurisdiction Accordingly it is hereby
ORDERED that, within thirty (30) days from the date of entry of this Memorandum
Opinion and Order, MGC shall FILE a copy of its third party complaint at the Office of the
Governor and FILE 3 notice with the Court to advise compliance thereof, and upon MGC s filing
its notice of compliance, CW 3 motion to dismiss for the lack of subject matter Jurisdiction will
be DEEMED DENIED without any fithher action from the Court It is further
ORDERED that GVI s motion to dismiss for failure to state a claim upon which relief can
be granted is DENIED And it is further
ORDERED that this matter is STAYED pending MGC filing a notice of compliance and
upon MGC s filing its notice of compliance, the stay will be LIFTED without any further action
from the Court
“A
DONE and so ORDERED this g day of January 2024
ATTEST
Tamara Charles
MiM2
HAROLD W L WILLOCK
Clerk of the Court Administrative J udge of the Superior Court
By \ 1% 2M
ourt Clerk Supervisorz:
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
District of St. Croix
Charles W. Huddleston et al, Case Number: SX-2022-CV-00480
Plaintiff Action: Negligent Infliction Of Emotional
v. Distress
M.G.C. Inc.,
Defendant.
NOTICE of ENTRY
of
Memorandum Opinion and Order
To Nathan Mirocha, Esq. Douglas L. Capdeville, Esq.
Christopher M. Timmons, Esq.
Please take notice that on January 23, 2024
a(n) Memorandum Opinion and Order
dated January 22, 2024 was/were entered
by the Clerk in the above-titled matter.
Dated January 23, 2024 Tamara Charles
Clerk of the Court
By:
Janeen Maranda
Court Clerk II