SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
MICHAEL KITNURSE
PLAINTIFF, Civil No SX 14 CV 361
v ACTION FOR DAMAGES
CERTAIN UNDERWRITERS AT LLOYDS
OF LONDON SUBSCRIBING T0 POLICY i
NUMBER CPS200601660
I CITE AS 2021 VI SUPER 8P
DEFENDANTS i
Appearances
Lee J Rohn, Esq
Lee J Rohn and Associates LLC
Christiansted U S Virgin Islands
For Plamnfl'
James L Hymes, III, Esq
Law Offices of James L Hymes [II P C
St Thomas U S Virgin Islands
For Defendant Marshall and Sterling
Garry Garten, Esq
Law Office of Garry Garten
St Thomas U S Virgin Islands
For Defendant Certain Underwriters at Lloyds of London
MEMORANDUM OPINION AND ORDER
WILLOCKS Presiding Judge
‘][ I THIS MATTER came before the Court on the following filings
On May 1 l 2018 Plaintiff Michael Kitnurse (hereinafter Plaintiff ) filed a motion
to amend complaint On May 24 2018 Defendant Marshall and Sterling
(hereinafter M&S ) filed an opposition to Plaintiff’s motion Defendant Certain
Underwriters at Lloyds of London subscribing to policy number CP8200601660
(hereinafter Lloyds of London and collectively with Defendant M&S
Defendants ) did not file an opposition On June 11 2018 Plaintiff filed a reply
and a motion to file Plaintiff’s reply late Defendants did not file an opposition to
Plaintiff’s motion for leave to file Plaintiff’s reply late
On November 7 2018 Plaintiff and Defendant M&S filed a stipulation for
dismissal with prejudice of Plaintiff’s claims against Defendant M&S
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On December 10 2018 Plaintiff filed a motion for entry of default against
Defendant Lloyds of London Subsequently Defendant Lloyds of London filed an
opposition and Plaintiff filed a reply thereafter
On February 20 2019 Defendant M&S filed a notice to the Court On February
22 2019 Plaintiff filed a response to Defendant M&S 5 February 20 2019 notice
and motion to enforce settlement On March 7 2019 Defendant M&S filed a
document that consisted of its (1) motion to strike Plaintiff’s response and motion
to enforce settlement, (ii) opposition to Plaintiff’ s motion to enforce settlement (iii)
motion to enforce and enter judgment on the mediated settlement agreement and
(iv) notice of filing the document under seal On March 15 2019 Defendant M&S
filed a motion for entry of order permitting filing under seal nunc pro tune
On December 10, 2019, Plaintiff and Defendant M&S filed a joint motion for
dismissal with prejudice as to Defendant M&S On December 16 2019 Defendant
Lloyds of London filed an opposition thereto On January 7 2020 Defendant M&S
filed a reply to Defendant Lloyds of London 5 opposition On January 9 2020
Kayla Kimursel filed a reply to Defendant Lloyds of London 3 opposition
BACKGROUND
‘ll 2 On September 8 2014 Plaintiff as the assignee of claims from John Phuoc le d/b/a Nails
Time filed a complaint against Defendants In the complaint Plaintiff alleged inter alia, that [a]
law suit was brought in St Croix entitled Michael Kltnurse vs John Phuoc 1e d/b/a Nazis Time
and Jane Doe District Court Civil No 112/2012 ’ [a]s such John Phuoc le tendered the defense
and indemnification of the claims [0 Defendant Lloyds of London ‘ Lloyds of London denied
indemnification of the claim ’ [a]s a result of the denial and due to economic necessity John
Phuoc 1e entered into a consent judgment in favor of Kitnurse in the amount of $1,000,000 and
assigned all claims he had against [Defendants] ‘ [t]he policy is a commercial general liability
[t]he policy required [Defendant Lloyds of London] to pay those sums that Phuoc 1e may become
legally obligated to pay for bodily injury arising out of an occurrence that takes place in the
coverage territory during the policy period Phuoc le could not afford counsel to defend him in
' According to Plaintiff’s motion to amend complaint Kayla Kitnurse is the daughter 01 Plaintiff While Plaintiff s
motion to amend complaint moved to substitute her as the personal representative of Plaintiff‘s estate the motion is
still currently pending Thus at this juncture she is not a party to this lawsuit
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a declaratory judgment action filed against him by Lloyds of London and reasonably believed he
would lose the claim of Kitnurse at trial and not be able to pay the verdict which Defendant Lloyds
of London had refused to indemnify him for On May 07 2014 Phuoc 1e assigned all his claims
against Defendants including but not limited to contractual, statutory and tort claims and [a]s a
result Phuoc 1e assigned his claims to Plaintiff and Plaintiff is entitled to recover the amount of his
Consent Judgment and Phuoc 1e damages of Attorney fees and costs and other economic losses ’
(Comp! ‘lI‘li 6 10 l6 I7 25) The complaint alleged the following counts against Defendants 7
Count I
26 The Plaintiff sets forth paragraph 1 through 24 as if fully set fonh herein
27 To the extent the Defendants contest the assignment or the validity of the terms Plaintiff
seeks a declaration that (l) the assignment and each of its terms is valid and enforceable
and that (2) the Defendants do not have a valid defense to enforcement of the assignment
Count II
28 The Plaintiff sets forth paragraph 1 through 26 as if fully set forth herein
29 Title 22 of the Virgin Islands code governs insurance transactions affecting subjects
located in the U S V I See 22 VIC 1 Insurance carriers owe a duty of good faith and
honesty and equity in all insurance matters A breach of those duties creates extra
contractual, quasi contractual, and tort liability
30 Defendant Lloyds [of London] breached that duty when it failed to properly underwrite
Phuoc 1e s policy and failed to reveal the same to him
31 Defendant Lloyds of London further breached that duty when it refused to reform
Phuoc le 5 insurance policy to cover the claims of Kitnurse
32 The Plaintiff sets forth paragraph 1 through 30 as if fuily set forth herein
33 Marshall and Sterling was acting as agent for Defendant Lloyds of London
34 To the extent the policy as written did not cover Plaintiffs claims against Phuoc [e the
Defendant Marshall and Sterling breached its contractual duties to Lloyds of London of
which Phuoc 1e was a third party beneficiary
35 As a result Marshall and Sterling is liable to Phuoc 1e and by assignment to Plaintiff in
the amount of one million dollars plus Phuoc 1e S Attorney fees and costs and pre and post
judgment interest
COUNT IV
36 The Plaintiff sets forth paragraph 1 through 34 as if fully set forth herein
37 As agent of Lloyds of London Marshall and Sterling negligently and improperly
underwrote Phuoc le 5 insurance policy
Plaintifl did not include the name of the specific cause of action for each count Thus, the statement of each cause of
action provided by Plaintifl tor eaLh count is reproduced herein
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38 Defendants failed to warn or inform Phuoc 1e that it had not properly underwritten the
insurance policy in breach of its duties to do so
39 As a result Phuoc 1e suffered damages as set forth herein and which were assigned to
Plaintiff
COUNT V
40 The Plaintiff sets forth paragraph 1 through 38 as if fully set forth herein
41 To the extent Marshall and Sterling was the agent of Phuoc 1e then it breached its duties
as agent when it failed to properly underwrite the Phuoc 1e insurance policy
42 Defendant Marshall and Sterling failed to inform Phuoc 1e that the policy had not been
properly underwritten
43 As a result Phuoc 1e suffered damages as set forth herein which he has assigned to
Plaintiff
COUNT VI
44 The Plaintiff sets forth paragraph I through 42 as if fully set forth herein
45 Phuoc le went to Defendants to obtain liability insurance that would defend and
indemnify him against all claims for negligent conduct
46 Defendants represented to Phuoc le that it had underwritten an insurance policy for
Phuoc [e that would insure Phuoc [e for all claims of negligence
47 Phuoc le reasonably relied on the representations of the Defendants to his detriment
48 Defendants knew or should have known that those representations were not accurate
but failed to disclose the same to Phuoc le
49 Defendants engaged in negligent misrepresentation
50 Defendants engaged in intentional misrepresentation
5| Defendants engaged in misrepresentation as set out in section 539 543 545, 552 of the
Restatement of Torts
52 Phuoc 1e relied on those misrepresentations to his detriment
53 As a result Phuoc le was damaged as set forth herein and has assigned those damages
to the Plaintiff
COUNT VII
54 The Plaintiff sets forth paragraph 1 through 44 as if fully set forth herein
55 Upon information Defendants knew that they did not intend to provide Phuoc 1e with
an insurance policy that would insure him for all claims of negligent liability including but
not limited to the types of claims of the Plaintiff
56 Defendants knew Phuoc [e believed and expected Defendants to provide him with a
policy that insured him against all claims and knew if failed to do so but failed to disclose
those facts to Phuoc le
57 Defendants also affirmatively represented to Phuoc 1e that the insurance policy
provided to him and for which he paid covered him for all claims of liability as a result of
negligent conduct and Defendants knew those representations were false
58 Phuoc 1e reasonably relied on those representations to his detriment
59 Defendants are in violation of sections 530 531 532 534 536 538A 539 541A 542
545 of the Restatement of Torts
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60 As a result Phuoc le sustained damages as alleged herein which he has assigned to
Plaintiff
‘1[ 3 A copy of the consent judgment and a copy of the assignment and agreement not to execute
(hereinafter “Assignment Agreement ’) are attached to the complaint as Exhibit 1 and Exhibit 2
respectively On March 25 2015, the Court entered a sua sponte order seeking proof of service for
Defendant Lloyds of London In response on March 30 2015 Plaintiff filed a motion for leave to
serve Defendant Lloyds of London out of time On June 29 2015, the Court entered an order
whereby the Court found that Plaintiff has failed to demonstrate good cause but exercised its power
to grant a discretionary extension of time and granted Plaintiff s motion for leave to serve
Defendant Lloyds of London out of time and ordered Plaintiff to serve Defendant Lloyds of
London within forty five (45) days from the date of entry of the order On July I 2015 the Court
inadvertently entered another order granting Plaintiff s motion for leave to serve Defendant Lloyds
of London out of time and ordered Plaintiff to serve Defendant Lloyds of London within sixty (60)
days from the date of entry of the order
‘|[ 4 On September 4 2015 Plaintiff filed a notice of proof of service of the summons and
complaint upon Defendant Lloyds of London and attached a copy of the summons as Exhibit 1
According to the return of service for the summons the summons and complaint was served on
Defendant Lloyds of London on August 17 2015 On the same date September4 2015 Defendant
Lloyds of London filed a limited entry of appearance to quash service and moved to dismiss for
untimely service and a motion to quash service and dismiss complaint against Defendant Lloyds
of London (hereinafter Motion to Quash ) Plaintiff filed an opposition thereto and Defendant
Lloyds of London filed a reply thereafter In its Motion to Quash Defendant Lloyds of London
asked the Court to reconsider its previous June 29 2015 order granting Plaintiff’s motion for leave
to serve Defendant Lloyds of London out of time and moved to quash service and dismiss the
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complaint Defendant Lloyds of London also advised the Court that most of the same issues in
this case were already being litigated with [Defendant Lloyds of London] in another case (Motion
to Quash, p 1) In Plaintiff’s opposition to Defendant Lloyds of London 5 Motion to Quash
Plaintiff indicated that Plaintiff construed Defendant s motion as being filed pursuant to Rule
l2(b)(5) of Federal Rules of Civil Procedure and requested the Court to deny Defendant s motion
Thereafter Defendant Lloyds of London filed a reply to Plaintiff’s opposition
‘l[ 5 On May 1 l 2018 Plaintiff filed a motion to amend complaint and moved to substitute a
personal representative for Plaintiff s estate since Plaintiff has passed away on August 30 2017 ‘
On October 22 2018 an interim mediation report was filed regarding the October 12 2019
mediation conference between All Plaintiffs 4 Plaintiff’s trial counsel ’ All Defendants
(except [Defendant Lloyds of London]) and Defendant s trial counsel (Interim Mediation
Report p l) The interim mediation report indicated that [t]he conflict has been partially resolve
[t]he parties are submitting a stipulation for the Court’s approval ’ and [s]ome issues still require
Court resolution (Interim Mediation Report) More specifically, the interim mediation report
indicated that [Defendant M&S appeared and the case has been completely resolved as to
[Defendant M&S] “[Defendant] Lloyds of London did not appear, and [t]he case remains
pending as to [Defendant Lloyds of London (Id ) On November 7 2018 Plaintiff and Defendant
M&S filed a stipulation for dismissal with prejudice of Plaintiff 3 claims against Defendant M&S s
3 The motion was signed by Mary Faith Carpenter Esq of Lee J Rohn and Associates LLC as Attorneys for
Plaintilf (Motion to Amend Complaint p 2)
4 As noted above Plaintiff Michael Kitnurse has passed away before the interim mediation There is no indication
of the person(s) that appeared on behalf 01' Plaintiff at the interim mediation report
5 The stipulation was signed by Lee J Rohn Esq of Lee J Rohn and Associates LLC as Attorneys tor Plaintiff
and James L Hymes III Esq of Law Offices 01 James L Hymes 111 P C as Attorneys for Defendant M&S
(Stipulation for Dismissal with Prejudice 01 Plaintiff 5 Claims Against Defendant M&S p 2)
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‘l[ 6 On December 10 2018 Plaintiff filed a motion for entry of default against Defendant
Lloyds of London 6 On February 20 2019 Defendant M&S filed a notice to the Court (hereinafter
February 20 2019 Notice ) On February 22 2019 Plaintiff filed a response to Defendant M&S 5
February 20 2019 Notice and motion to enforce settlement 7 On March 7 2019 Defendant M&S
filed a document that consisted of (i) motion to strike Plaintiff's response and motion to enforce
settlement, (ii) opposition to Plaintiff’s motion to enforce settlement (iii) motion to enforce and
enter judgment on the mediated settlement agreement and (iv) notice of filing the document under
seal On March 15 2019 Defendant M&S filed a motion for entry of order permitting filing under
seal, nunc pro tune On December 10 2019 Plaintiff and Defendant M&S filed ajoint motion for
dismissal with prejudice as to Defendant M&S 8
‘|[ 7 On May 26 2020 the Court entered a memorandum opinion and order whereby the Court
ordered inter alia, that Counts 11 1V, VI and VII of the complaint are dismissed as against
Defendant Lloyds of London 9 (May 26 2020 Order)
DISCUSSION
(ll 8 The Court will address the motions in chronological order
I Plaintiff’s Motion to Amend Complaint, filed on May 11, 2018'0
6 The motion was signed by Lee J Rohn Esq 01 Lee I Rohn and Associates LLC as Attorneys tor Plaintill
(Motion for Entry of Default p 10)
7 The response and motion was signed by Lee J Rohn Esq of Lee J Rohn and Associates LLC as Attorneys tor
Plaintift (Response to Defendant M&S 5 February 20 2019 Notice and motion to enforce settlement p 2)
3 The joint motion was signed by Lee J Rohn Esq at Lee J Rohn and Associates LLC as Attorneys for Plaintifl"
and JamesL Hymes III Esq of Law Offices 01 James L Hymes III PC as Attorneys for DefendantM&S (Joint
Motion for Dismissal with Prejudice as to Defendant M&S p 2)
9 The May 26 2020 memorandum opinion and order addressed Detendant Lloyds 01 London 5 motion to quash and
dismiss complaint filed on September 4 2015 the Court granted in part and denied in part Detendant Lloyds of
London 5 motion to quash and dismiss complaint
'0 While the title of Plaintiff’s motion is motion to amend complaint Plaintitf s motion sought to substitute a
personal representative of Plaintift s estate because Plaintitf passed away Plaintiff s motion referenced Rule 25 01
Virgin Islands Rules of Civil Procedure which governs the substitution of a party upon death The Virgin Islands
Supreme Court has consistently held that the substance not the title of a motion determines under which rule the
motion is construed See Rodriguez v Bureau of Carr 70 VI 92 1| 9 (VI 2019) (citing Joseph v Bureau of
Corrections 54 V I 644 648 n 2 (V I 201 l) (explaining that this Court has consistently held that the substance not
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El 9 In his motion Plaintiff advised that Michael Kitnurse died on August 30 2017 and attached
a copy of a death certificate from Florida for decedent Mike M Kitnurse (Motion, Exhibit l)
Plaintiff also advised that Kayla Melisa Kitnurse daughter of decedent Mike M Kitnurse, has
consented to serve as the personal representative of the estate of Mike M Kitnurse and attached
notarized document titled Consent to Serve as Personal Representative (Motion, Exhibit 2) As
such Plaintiff sought leave to file a first amended complaint
(II l0 In its opposition Defendant M&S pointed out that [t]he motion does not indicate if
Michael Kitnurse and Mike M Kitnurse are in fact the same individuals and “[t]here is no
explanation as to why the original Complaint was in the name of Michael Kitnurse and/or why his
Estate is denominated Mike M Kitnurse (Opp pp 1 2) Defendant M&S also pointed out that
(i) ‘The motion as filed does not indicate if Michael Kitnurse died intestate or left a will [it] only
seeks to permit someone to act as the Personal Representative of the Estate without indicating if
that person is an administratrix or an executrix ’ (Id at p 2) (ii) ‘The motion as filed does not
indicate where or if an official estate proceeding has been instituted in this or some other
jurisdiction and [t]his is important since the personal representative acts on behalf of an estate
(Id ) (iii) “Kayla Melissa Kitnurse is a resident of the State of Florida and does not reside in the
Territory’ and Section 235(a) of Title 15 of the Virgin Islands Code provides that non residents
are not qualified to act as the executor or administrator of the estate in the Virgin Islands (Id )
Defendant M&S noted that “it does not necessarily oppose a substitution of someone to represent
the interest of Michael Kitnurse if he is deceased’ and instead only requests that this Court enter
the title of a motion determines its meaning) As such the Court will construe Plaintiff’s motion to amend complaint
as a motion for substitution ot a personal representative on behalt oi the estate 0! Michael Kitnurse
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an appropriate order which allows for the proper representation of the interests of the estate of Mr
Kitnurse in accordance with the laws governing the same
‘11 1 1 In his reply " Plaintiff stated that since learning that the decedent 5 legal name was Mike
M Kitnruse rather than Michael M Kitnurse, Plaintiff has sought to amend the party 3 name
to “Estate of Mike M Kitnurse and that [t]his is simply the correction of a clerical error (Reply
p 1) Plaintiff also stated that he sought to amend its complaint to substitute the decedent 5
daughter, Kayla Melissa Kitnurse as the personal representative of decedent s estate of the
purposes of this litigation because Mike Kitnurse is now deceased ’ (Id) Plaintiff argued that
Kayla Melissa Kitnurse is qualified as a personal representative in this instance for the following
reasons (i) Title 15 V I C § 235(a) codifies the qualifications of an executor or administrator in
the administration of an estate and ‘ [t]hat is not what Plaintiff seeks to do here (Id at p 2); (ii)
Title 5 V I C § 78 is applicable here and this Court has consistently granted substitutions in
similar survival and wrongful death actions pursuant to Title 5 V I C § 78 ’ '7 (Id at pp 2 3) (iii)
Rule 25(a)(l) is applicable here and Plaintiff timey filed its motion to amend complaint well
within the prescribedtwo year period ’ (Id at p 3) and (iv) While [t]he decedentdied intestate
and his estate has not been opened to probate that does not prevent the substitution of a personal
representative in this tort action ’ ” (Id at p 4)
” Plaintiff contemporaneously filed a motion for leave to tile Plainttfl 5 reply late At this time the Court will include
the arguments made therein for the sake of completeness but the Court will reserve ruling on the motion tor the
reasons stated in this Memorandum Opinion and Order
'7 Plaintiff referenced Augustin
2017 WL 3614263 at ‘ 15 ( The personal representatives sought leave to substitute
leave within two years after the date 01 each respective plaintitf s death The requests were also made on motion,
served on Defendants Accordingly the Court will grant each motion by separate order )(internal citation omitted),
Jones v Lockeed Martm Corp
2017 WL 5633319 at ”‘18 (Super Ct Nov 22 2017) ( [T]he Court will grant the
motion in Velez since L Velez timely requested leave to substitute herselt in place of A Velez and continue his
lawsuit )
'3 Plaintiff referenced Augustin
2017 WL 3614263 at 7 15 ( [the Virgin Islands Supreme] Court nevertheless chose
to adopt a rule of civil procedure that expressly and unambiguously eliminated the requirement to open an estate as a
prerequisite for bringing or maintaining a wrongful death claim or a survival claim ) ( Claims brought by or
continued by a personal representative are often referred to as a survival claims or survival actions ”) Der Weer 2014
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A Standard of Review
‘11 11 Under Virgin Islands law when someone dies, two things happen procedurally Augustin
v Hess 011 Vtrgm Islands Corp 67 V I 488 505 (Super Ct Aug 23 2017) First any personal
injury claims the person may have had abate unless there is authority extending the life of
those claims Id (quotmg Der Weer v Hess 011 V I Corp 61 V I 87 102 (Super Ct
2014)) Under Title 5 V I C § 77 claims arising out of a wrong which results in physical injury
to the person or out of a statute imposing liability for such injury shall not abate by reason of the
death of the wrongdoer or any other person liable for damages for such injury nor by reason of
the death of the person injured or of any other person who owns any such thing in action Title 5
V I C § 77 Second if a person 5 death was caused by or resulted from someone else 5 actions or
failure to act, then that person s survivors can only recover if authority creates a cause of action
for wrongful death Augustin 67 V I at 506 (quoting Der Weer 61 V I at 102) Title 5 V IC §
76 gives the survivors of someone whose death occurred wrongfully the right to sue for wrongful
death Title 5 V I C § 76 ’4 It is important to note the distinctions between wrongful death claims
and survival claims Wrongful death is a new claim with its own elements that must be alleged
in a complaint and proven at trial whereas a survival claim is not really a claim It is merely a
WL 7340231 *ll (Super Ct Dec 22 2014) as corrected (Dec 23 2014)( Damagesadeceased person may have
suffered from a personal injury are recovered in a survival action )
1‘ Title 5 V I C § 76 provides in relevant part
§ 76 Action for wrongtul death
Right of action
(c) When the death of a person is caused by the wrongful act negligence detauIt or breach of contract or
warranty of any person including those occurring on navigable waters and the event would have entitled the
person injured to maintain an action and recover damages if death had not ensued the person or water cratt
that would have been liable in damages if death had not ensued shall be liable for damages as specified in
this section notwithstanding the death of the person injured although death was caused under circumstances
constituting a felony
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vehicle for pursuing someone else 5 claims Id 67 V I at 521 (Der Weer 64 V I at
138 (quotation marks brackets and citation omitted»
‘|[ 12 If a claim has been filed and is still pending when the person dies the procedure for the
substitution of the decedent 5 personal representatives or successor requires a motion and is
governed by Title 5 V I C § 78 (hereinafter Section 78 ) and Rule 25 of the Virgin Islands Rules
of Civil Procedure (hereinafter Rule 25 ) Title 5 V IC § 78 ‘5 V I R Civ P 25 '6 Both Section
78 and Rule 25 set forth a two year deadline after the date of the death to file the motion for
substitution Id While some jurisdictions require a personal representative, such as an executor or
an administrator to be appointed first the Virgin Islands Supreme Court in promulgating Rule
l7(e) of Virgin Islands Rules of Civil Procedure (hereinafter Rule l7(e) , expressly eliminated
the requirement to open an estate as a prerequisite for bringing or maintaining wrongful death suits
" Title 5 V l C § 78 provides
§ 78 Substitution of parties
No action shall abate by the death or disability 01 a party or by the transfer 01 any interest therein it the cause
0t anion survives or continues In case of the death or disability of a party the court may at any time within
two years thereatter on motion allow the action to be continued by or against his personal representatives
or suLcessor in interest
‘° Rule 25 provides in relevant part
Rule 25 Substitution of Parties
(21) Death
(1) Substitution 1f the Clamt Is Not Extingmshed It a party dies and the claim is not extinguished the court
may order substitution of the proper party A motion for substitution may be made by any party or by the
decedents successor or representative The motion may be granted at any time within two years after the
death
(2) Confirmation Among the Remammg Parnes After a party's death if the right sought to be enforced
survives only to or against the remaining parties the action does not abate but proceeds in favor of or against
the remaining parties The death should be noted on the record
(3) Semee A motion to substitute together with a notice of hearing must be served on the parties as provided
in Rule 5 and on nonparties as provided in Rule 4 A statement noting death must be served in the same
manner
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filed under Title 5 V I C § 76 and survival actions filed under Title 5 V IC § 77 V I R CIv P
l7(e)” see also Raymondv Assefa 69 VI 953 (VI 2018) '3
B Michael Kitnurse v Mike M Kitnurse
SI 13 Before the Court reaches the issue of the substitution of a personal representative for
Plaintiff‘s estate the Court must address the issue of whether Michael Kitnurse the named plaintiff
in this action and Mike M Kitnurse, the named decedent on the death certificate submitted by
Plaintiff are the same individual According to the document titled Case Information and Litigant
Data Form Plaintiff filed on September 3 20M the date of birth for Michael Kitnurse is
September 10 1970 which matches the date of birth on the death certificate for Mike M Kitnurse
Moreover Mike is a common name derived from Michael Additionally the Court cannot find
and Defendant M&S did not claim in its opposition, any benefits or advantages gained in Plaintiff’s
position in this case from Plaintiff’s death As such the Court concludes that Michael Kitnurse
and Mike M Kitnurse are the same individual and the Court will take judicial notice of the death
' Rule [7 of Virgin Islands Rules oi Civil Procedure provides in pertinent part as follows
Rule I7 Plaintiff and Defendant Capacity Public Officers
(e) Actions for Wrongful Death and Survival
In wrongful death suits filed under 5 V I C § 76 and in survival actions filed under 5 V IC § 77 the action
may be prosecuted in the name of a plaintitl identified in the complaint as acting as a personal
representative The named plaintifl shall serve as personal representative throughout the proceeding unless
replaced by order of the court V l R Clv P l7(e)
" The Virgin Islands Supreme Court pointed out in Rawmmd
Importantly the accompanying Advisory Committee Note emphasizes that the purpose oi Rule l7(e) is to
clarify that a probate estate need not be opened as a prerequisite to appointment of
a personal representative under sections 76 or 77
Subpart (e) is a provision dealing specifically with wrongful death and survival actions under 5
V I C §76 and § 77 T0 maul an) unnecessar} requirement to open an estate and to permit swift
commencement of proceedings where required for statute of limitations or other purposes this
subpart of the rule provides that an action may be prosecuted in the name of a plaintift who is
identified in the complaint as acting as a personal representative although court appointment to that
position has not at that time been made The named plaintiff will serve as personal representative
throughout the proceeding unless replaced by order of the court VI R Clv P 17 ADVISORY
COMMITTEE NOTE (emphasis added)
Raymond 69 VI at 958 59
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0f Plaintiff on August 30 2017 See In re Deceased Plamnfls 2020 VI SUPER 53 at ‘][ 50 ( Courts
can take judicial notice of the death of a party ) Cf People ex rel J G 59 V I 347 365 n 16
(V 1 2013) (courts can take judicial notice of death certificates)
(l[ 14 This raises an interesting issue Plaintiff Michael Kitnurse—could not move for the
substitution of a personal representative here because he died So, the question becomes whether
Plaintiff s attorney has the authority to move for the substitution of a personal representative here
after Plaintiff’s death? Courts in the Virgin Islands have acknowledged the general rule that the
death of the client revokes his attorney 5 authority to act for him In re Alumina Dust Claims, 67
VI 172 l89n ll (Super Ct Jan 10 2017) see also Jone.“ Lockheed Martm Corporation 68
V I 158 189 (Super Ct Nov 22 2017) (collecting cases) If that is the case then Plaintiff's
attorney could not move for the substitution of a personal representative for Plaintiff’s estate here
because Plaintiff’s attorney lacked the authority Jones 68 V 1 at 191 (the court held that death
of the client revokes his attorneys authority to act for him and that that same attorney has no
authority to act in a pending case on behalf of a deceased client unless and until the client's heirs
executor, administrator or duly appointed personal representative re retain the same attorney or
the client otherwise authorized the attorney to act after his death ) (internal quotations and citation
omitted) Currently there are no Virgin Islands law or rules and no prior precedent from the Virgin
Islands Supreme Court addressing this issue ‘When presented with a question concerning what
law applies and the law is not settled by binding precedent or statute courts applying Virgin
Islands law must consider and weigh three factors what approach Virgin Islands courts have taken
in the past what approach courts in other jurisdictions take and lastly what approach represents
the soundest rule for the Virgin Islands Jones 68 V I at 190 (citing Gov t of the V] v Connor
60 VI 597 603 (2014) (per curtam) ( [T]he Superior Court when considering a question not
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foreclosed by prior precedent from this Court must perform a three part analysis as set forth
in Banks [v International Rental and Leasmg Corporation 55 V I 967 (201 l)] )) The Court will
set a briefing schedule and give the parties an opportunity to address this question
C Substitution of Personal Representative
‘][ 15 Assuming arguendo that, after reviewing the patties briefs and conducting its own Banks
analysis the Court determines that the soundest rule of law for the Virgin Islands is to hold that
death does not terminate the attorney client relationship and thereby the Court finds that
Plaintiff’ s attorney had the authority to move for the substitution of a personal representative here
As noted above, once an action has been commenced and a necessary party to the action dies, both
Section 78 and Rule 25 govern the procedure for the substitution of the decedent 5 personal
representative or successor Here Plaintiff’s motion for substitution was timely filed within the
two year deadline set forth in Section 78 and Rule 25
([l 16 In his motion Plaintiff argued that this Court has consistently granted substitutions in
similar survival and wrongful death actions pursuant to Title 5 V I C § 78 and cited to Augustin
and Jones in support of his argument However those cases are distinguishable from this instant
case In Augustin and Jones '9 the plaintiffs commenced their lawsuits against the defendants for
‘9 In Augusta: the plaintiffs commenced their personal injury actions against the defendants to wit they sued tor
negligence and demanded damages allegedly from exposure to asbestos 67 V I at 494 Subsequently during pre
trial litigation, eight plaintitfs passed away and personal representatives were appointed by the Probate Division of
the Superior Court and each moved the Court to continue the lawsuits as survival actions 67 V I at 493 94 The Court
had some reservations regarding the procedures tor appointing personal representatives but ultimately tound these
reservations mooted by the promulgation of Rule |7(e) and granted each plaintiff‘s motion Id 67 V I at 520
In Jones the plaintitf A Velez commenced his personal injury action against the detendants to wit he sued
Lockheed Martin Martin Marietta and GEC for damages allegedly from exposure to asbestos and other toxic
substances during the time he worked at the former Martin Marietta alumina refinery on St Croix Jones 68 V l at
I85 Subsequently during pre trial litigation A Velez passed away and his wife L Velez upon petition was
appointed personal representative by the Probate Division of the Superior Court L Velez then filed a motion to
substitute herself In place of her husband to continue the lawsuit Id The Jones court determined that A Velez s wite s
timely filed motion to substitute was properly before the court and granted her motion to substitute The court did not
discuss the applicability of Rule 17(8) but if it were addressed the Court would have found Rule |7(e) applicable
because (i) A Velez sued the defendants for alleged physical injury (ii) under Title 5 V I C § 77 {a} thing arising
out ot a wrong which results in physical injury to the person or out ot a statute imposing liability for such injury shall
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physical injury and therefore those lawsuits are within the scope of Title 5 V I C § 77 Thus
when those plaintiffs passed away Rule l7(e) was applicable and eliminated the requirement to
open an estate as a prerequisite In this case, Plaintiff did not sue Defendants for physical injury or
wrongful death This litigation was commenced by Plaintiff, as the assignee of claims from John
Phuoc 1e d/b/a Nails Time pursuant to the Assignment Agreement against John Phuoc 1e d/b/a
Nails Time 3 insurance companies andlor underwriters See Comp] As such Plaintiff’s lawsuit
does not fall under the scope of Title 5 V I C § 76 or Title 5 V I C § 77 and thereby Rule l7(e)
is not applicable since Rule l7(e) only expressly eliminates the requirement to open an estate as a
prerequisite for bringing or maintaining wrongful death actions under Title 5 V I C § 76 and
survival actions under Title 5 V I C § 77 70 This raises several questions
1 Which Claims Survive After a Person’s Death?
(ll 17 Not all claims survive after a person 5 death See e g Title 5 V IC § 37(a) (If a person
entitled to bring an action dies before the expiration of the time limited for the commencement
thereof, and the cause of action survives an action may be commenced by his personal
representatives after the expiration of the time and within one year from his death ) (emphasis
added) Title 5 V I C § 78 ( No action shall abate by the death or disability of a party or by the
transfer of any interest therein if the cause of action survives or continues ) (emphasis added)
In the Virgin Islands personal injury claims survive after a person 5 death Title 5 V I C § 77 (“A
not abate by reason 01 the death of the person injured and (iii) Rule l7(e) expressly eliminates the requirement
to open an estate as a prerequisite for bringing or maintaining survival actions under Title 5 V I C § 77
’0 The Court finds the pertinent language of Rule l7(e) plain and unambiguous and thereby the Court will give effect
to the plain words 01 the rule See Banks ofNS v Dore 57 VI 105 11‘! 14 (Super Ct Oct 19 2012) (citing
Corraspe v People 53 V I 470 480 481 (V 1 2010) ( The rules of this Court are applied using the same standards
which govern the construction of statutes" and the primary objective of the trial court is to give effect to plain words
utilized in the subject rule ) People v Rtvera 54 V I 116 125 (Super Ct 2010) ( The procedural rules of courts
are construed in accordance with the canons of statutory construction ) In re People 49 V I 297, 106 (V I 2007))
( We believe the pertinent language is plain and unambiguous thereby dispensing with a resort to the canons of
construction )
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thing arising out of a wrong which results in physical injury to the person or out of a statute
imposing liability for such injury shall not abate by reason of the death of the person injured )
However currently there are no Virgin Islands laws or rules and no prior precedent from the
Virgin Islands Supreme Court concerning which claims, aside from personal injury claims, survive
after a person’s death Thus before the Court reaches the issue of the substitution of a personal
representative, the Court must first determine which of Plaintiff’s claims if any survived
Plaintiff 5 death Plaintiff and Defendant M&S did not address this issue in their respective briefs
As such the Court will set a briefing schedule and give the parties an opportunity to address this
question
2 Whether an Estate Must be Opened Before the Appointment of a Personal
Representative When Rule 17(e) does not Apply?
‘][ 18 Assuming some or all of Plaintiff’s causes of action survives Plaintiff’s death, then the
Court must determine whether an estate must be opened before the appointment of a personal
representative to continue a survival action when Rule 17(e) does not apply Currently there are
no Virgin Islands laws or rules and no prior precedent from the Virgin Islands Supreme Court
addressing this issue The Augustin court had the following concerns regarding the appointment of
a personal representative without first opening an estate
The Personal Representatives are correct in one regard an estate exists upon the death
of the decedent whether a probate has been opened or not The opening of probate does
not create an estate (Supp Br 13 )
‘ The term probate is commonly used with reference to the formal establishment of
a document as the last will and testament of the testator as a basis for the distribution
of his property and the issuance of letters testamentary to the persons named therein
as executors The term ‘ probate, however, also has a broader meaning
including all proceedings incident to the administration and settlement of estates
and perhaps also the establishment of the meaning of a will as well as its execution
In re Estate ofAlexander 63 A D 2d 612 405 N Y S 2d 613 614 (1978) (Murphy P J
dissenting) (quoting Chase Natl Bank v Chicago Title & Trust Co 164 Misc 508 299
N Y S 926 941 (Sup Ct 1934)) accord In re Will of Lamb 303 N C 452 279 S E 2d
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781 786 (1981)( The word probate means the judicial process by which a court of
competent jurisdiction in a duly constituted proceeding tests the validity of the instrument
before the court and ascertains whether or not it is the last will of the deceased (citing In
re Will ofMarks 259 N C 326 130 S E 2d 673 (1963) Brusze v Craig 232 N C 701 62
S E 2d 330 (1950) Steven s Executors v Smart 3 Executors 4 N C 83 (1814))
It is this broader and more general sense of the word probate the Court had in mind the
proceedings to administer settle and transfer one persons property both real and
personal, including choses in action to another and how courts in the Virgin Islands
empower a personal representative to take on some of this responsibility if letters
testamentary or of administration are not issued If the Court was imprecise earlier the
Court elaborates here because one of the reservations the Court had concerned potential
creditors particularly if the phrase personal representative was intended to be synonymous
with the terms executor or administrator as well as other heirs of the decedent
If personal representatives are appointed in the Superior Court of the Virgin Islands through
what are essentially ex parte non adversarial miscellaneous proceedings that give a
semblance of legal status to an estate but without formally opening an estate or, for
example giving notice to creditors or requiring that the personal representative acting on
the estate 5 behalf be bonded Alumina Dust Claims 2017 V [ LEXIS 2 at *33
n 3 (citing 15 V I C § 239(a)) then indeed [c]oncems could arise Id First the judge
presiding over the civil action has no assurances that the personal representative appointed
by the Probate Court is the proper party But see V I R Clv P 25(a)(l) ( If a party dies
and the claim is not extinguished the court may order substitution of the proper party )
That is, the judge presiding over the civil action does not determine whether the proposed
personal representative is the proper party Instead the probate court makes the
appointment through an ex parte, non adversarial, miscellaneous probate proceeding that
occurs outside of the civil action The tail wags the dog here What else can the judge
presiding over the civil action do other than allow substitution by the person the probate
court appointed? If that is correct it effectively deprives the judge of any discretion to
decide whether to allow substitution and who to substitute Cf. In re Estate of Johnson
2010 WY 63
231 P 3d 873 881 (2010) ( The only test of who is appointed as personal
representative despite the lack of guidance within the wrongful death act cannot simply
be who first gets to the courthouse )
Similarly regarding creditors, must the personal representative appointed through a
miscellaneous probate proceeding give notice to creditors? Virgin Islands law requires that
[e]very executor or administrator shall immediately after his appointment, publish a
notice Such notice shall require all persons having claims against the estate to present
them with the proper vouchers within six months from the date of the notice to the
executor or administrator 15 V I C § 391 If executors and administrators are a specie
of personal representatives then shouldnt even the personal representative appointed to
take over a pending civil action have to give notice to creditors?" Or does the personal
" The Augustin court noted that Virgin Islands law does not define the phrase personal representative at least not
in the context of prosecuting or defending civil actions in court and thus the court had concerns regarding the capacity
of the personal representative 67 V I at 506 The Augusta: court further noted that Title 5 V I C § 4901 and Title 15
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representative only have to commence probate proceedings and formally open an estate
once judgment is entered or a settlement reached assuming money exchanges hands? Or
can the personal representative bypass probate entirely? If so it could mean that Virgin
Islands courts are unknowingly complicit in helping the heirs avoid the creditors claims of
the deceased Assume for arguments sake that a jury awards Mrs Calixte or Clarke
Baptiste three million dollars in damages Assume further that Mr Calixte or Mr Clarke
before they died left a two thousand dollar balance due on a credit card or a five hundred
dollar bill with a local vendor Mrs Calixte and Clarke Baptiste's response to the Court s
concerns is that, that s not their concern They do not have to give notice to creditors at any
time even if after they receive a sizeable settlement, because they do not have to commence
formal probate proceedings at any time Instead, “the onus is on the creditor to open
probate All awards for the decedent's estate are subject to the claims of creditors who
have complied With the requtrements ofprobate law concerning claims (Supp Br 7 8
(quoting 5 V I C § 76(e)) )
Lastly if the person appointed personal representative to maintain or commence a survival
action does not have to be named in a will or qualified under the law as an
administrator, see 15 V [C §§ 235(a), 236 then disputes could arise later over whether
that person was in fact the proper party or even a proper party Cf. VI R CIv P
25(a)(1) ( [T]he court may order substitution of the proper party (emphasis added» Two
other Superior Court judges have raised similar concerns See generally Brown v
Lorlllard Inc ST 10 CV 692 2012 V I LEXIS 107 at *5 7 (Super Ct Mar 30
2012) ( While this Court cannot disregard the persuasive authority allowing an individual
who has not received letters testamentary or letters of administration to represent a yet to
be probated estate the Court does question the wisdom of eliminating the initiation of
probate proceedings at least the acquisition of letters testamentary or letters of
administration and only reluctantly follows the holdings cited by Plaintiff This Court has
szgmficant reservations about allowmg the substmmon to take place Among those
reservations are (I) it is not clear whether decedent 3 son Christian Brown is decedent s
V I C §60| support viewing the terms ‘ executor, administrator and personal representative” synonymously and
also noted the resulting conflict between Title 15 V I C § 60l and Title 5 V I C § 78 it these terms of art are not
synonymous
It the phrase personal representative does not include executor and administrator meaning these terms
01 art are not synonymous then section 601 which directs that the executor or administrator must continue
the action after death directly conflicts with sections 78 of title 5 which directs that the personal
representative continues the action alter death Compare15 VIC § 601 ( When the cause 0t action
survives as herein provided the executors or administrators may maintain an action thereon against the party
against whom the cause of action accrued or after his death against his personal representatives ) mill 5
V I C § 78 ( In case of the death or disability of a party the court may allow the action to be continued
by his personal representatives ’) But it executors and administrators are simply two types or species as
the Personal Representatives put it 01personalrepresentatives Just as magistrates judges and justices are
all types of judicial otficers then there is no conflict A personal representative would include both an
executor and an administrator That would also mean that a personal representative must be either an executor
or an administrator
Augusta: 67 VI at 507 08
Nevertheless the issue of whether the terms ‘executor, administrator," and personal representative’ are
synonymous was not resolved in Augustin
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only heir at law (2) it is not clear whether Christian Brown will be able to actually
participate as the legal representative of the estate (3) it is not clear whether there are any
assets other than the choice in action’ belonging to the estate (4) if the will is probated
and counsel for Plaintiff becomes the executor, there could be a conflict of interest (5) it
is unclear whether the creditors of the estate are being timely advised of existing or
potential assets to satisfy any indebtedness of the estate, and (6) it is unclear whether there
exist any other heirs at law who may contest the will In light of these concerns although
the Court will allow the substitution the Court will keep a watchful eye on the proceedings
and reserve the right to reverse its decision on substitution should sufficient information
surface confirming inequities (footnote omitted», England v Lortllard Inc , ST 10 CV
631 2012 VI LEXIS 106 at *3 4 (Super Ct Jan 23 2012)( The Defendants argue that
without being appointed executor of Mr England 5 estate Gerald has no authority to act as
a personal representative or successor in interest ’ The Plaintiff asserts that because a
wrongful death claim is a unified claim it must be brought by the personal representative
if only one child wants it It does not matter whether one of the children disagrees The
Court agrees with the Plaintiff that the Wrongful Death Statute governs a party 5 right of
action not procedure and as such does not prevent the Court from substituting Gerald as
the Plaintiff at this time However there does appear to be a question as to Gerald s ability
to bring a wrongful death claim without being appointed executor by the probate division
The Defendants represented that they will not contest Gerald s appointment as executor As
such in an exercise of caution the Court will order that the Plaintiff offer Mr England 5
will for probate before requiring that Gerald file an amended complaint (quoting 5 V I C
§ 78)) Here for example Burton King petitioned for appointment as personal
representative to continue Mr Burton 5 lawsuit but after the Burtons had petitioned to
settle Mr Burton s estate without administration Because the probate court already entered
its final adjudication and distributed Mr Burton 5 estate, the Buttons might not be able to
seek relief from that final order later should they be unable to agree among themselves on
how to distribute whatever damages may be awarded or settlement amounts received from
this lawsuit Cf In re Estate of Watson SX 91 PB 126 2015 V1 LEXIS 151 at *11 15
(Super Ct App Div Mar 19, 2015) (reopening estates governed by same law regarding
relief from final judgments)
Augustin 67 V I at 514 17 (emphasis in original)
‘1[ 19 The Court has the same concerns here In Augustin, those concerns were mooted by the
promulgation of Rule l7(e) However as noted above Rule l7(e) is not applicable in this matter
As such the Court will set a briefing schedule and give the parties an opportunity to address the
Court 8 concerns The Court will reserve ruling on Plaintiff’s motion for substitution pending
receipt of the parties briefs
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II Remaining Outstanding Motions
‘]l 20 The Court will similarly reserve ruling on the remaining outstanding motions listed on page
one and two of this Memorandum Opinion and Order pending receipt of the parties briefs
CONCLUSION
(ll 2! Based on the foregoing the Court will order Plaintiff Defendant M&S and Defendant
Lloyds of London to file supplemental briefs to address the aforementioned questions and concerns
of the Court and reserve ruling on all the motions listed on page one and two of this Memorandum
Opinion and Order at this juncture Accordingly, it is hereby
ORDERED that within ninety (90) days from the date of entry of this Order Plaintiff
Defendant M&S and Defendant Lloyds of London shall each file a supplemental brief and address
the following questions
1 Whether Plaintiff’s death terminated the attorney client relationship and revoked
Plaintiff’s attorney 3 authority to act for him and why?
2 Which of Plaintiff’s causes of action if any, survived Plaintiff’s death and why? The
parties shall address each count separately Defendant M&S and Defendant Lloyds of
London shall only address the count(s) that it is defending Plaintiff shall include in
his supplemental brief the name of the specific cause of action for each count
3 Whether an estate must be opened before the appointment of a personal representative
for a survival claim when Rule 17(e) does not apply and why? The parties shall address
the Court 5 concerns regarding
(i) How can the judge presiding over the civil action be assured that the
personal representative appointed by the Probate Court is the proper
party?
(ii) Whether the terms executor “administrator, and ‘ personal
representative are synonymous and why? Regardless of whether these
terms of art are synonymous should the personal representative
appointed to take over a pending civil action have to give notice to
creditors and why?
(iii) If the person appointed personal representative to maintain a survival
action does not have to be named in a will or qualified under the law as
an administrator see 15 V I C §§ 235(a), 236 then disputes could arise
later over whether that person was in fact the proper party or even a
proper party How could these disputes be prevented?
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The parties are reminded to perform a Banks analysis when required and cite the proper legal
authority statute and/or rule in support of their respective supplemental briefs The Court will
reserve ruling on all the motions listed on page one and two of this Memorandum Opinion and
Order at this juncture To be clear each party has the opportunity to file one supplemental brief
and will not be permitted to file additional briefs in response to another party 5 supplemental brief
without leave of the Court
DONE and so ORDERED this 933“ day of January 2021
HAROLD W L WILLOCKS
Presiding Judge of the Superior Court