UN THE SUPERIOR COURT
OFTHE VIRGIN ISLANDS

FILED

January 13, 2022 04:58 eM
$¥-2015-CV-00156

TAMARA CHARLES
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
CLERK OFTHE COUNT DIVISION OF ST. CROIX

IN RE: Refinery Workers Toxic Tort | Master Case No. SX-2015-CV-198
Litigation. (Complex Litigation Division)

Re: SX-2006-CV-231, -238

Cite as: 

Appearances:

Thomas Alkon, Esq.

Law Offices of Thomas Alkon
PO Box 223032
Christiansted, V.1. 00822

For Plaintiffs

Korey A. Nelson, Esq., Charles Jacob Gower, Esq. and
Harry Rick Yelton, Esq.

Burns Charest LLP

365 Canal Street, Suite 1170

New Orleans, LA 70130

For Plaintiffs

J. Russell Pate, Esq.
The Pate Law Firm
PO Box 890

St. Thomas, VI 00804
For Plaintiffs

Warren T. Burns, Esq. and Daniel T. Charest, Esq.
Burns Charest, LLP

900 Jackson Street, Ste. 500

Dallas, TX 75202

For Plaintiffs

Jerry Hudson Evans, Esa.

Richard, Patrick, Westbook, & Brickman LLC
PO Box 1007

Mit. Pleasant, SC 29465

For Plaintiffs
In Re: Refinery Workers Toxic Tort Litigation, SX-15-CV-198

Memorandum Opinion

Page 2

Carl A. Beckstedt Il, Esq.

Beckstedt & Kuczynski LLP

2162 Church Street

Christiansted, V.I. 00820

For Defendants Hess Corporation and Hess Oil New York Corporation
(formerly Hess Oil Virgin Islands Corporation)

Carolyn F. O’Connor, Esq. and Joseph T. Hanlon, Esq.

Wilson Elser Moskowitz Eldelman & Dicker LLP

200 Campus Drive

Florham Park, NJ 07932-0668

For Defendants Hess Corporation and Hess Oil New York Corporation (formerly
Hess Oil Virgin Islands Corporation)

W. Mark Wilczynski, Esq.,

Law Offices of W. Mark Wilxynski
P.O. Box 1150

St. Thomas, V.1. 00804-1150

For Litwin Corporation

James L. Hymes, Esq.
Hymes and Zebedee

No. 10 Norre Gade

St. Thomas, V.!. 00804-150
For Litwin Corporation

MEMORANDUM OPINION
(Filed January 13, 2022)

Andrews, Jr., Judge

INTRODUCTION
1 Plaintiffs bring this action for damages against defendant oil refinery
companies. They allege, during their employment, Defendants negligently

exposed them to toxic substances which caused them to suffer disease and
In Re: Refinery Workers Toxic Tort Litigation, SX-15-CV-198
2022 Vi Super 3U

Memorandum Opinion

Page 3

illnesses. Defendants Hess Corporation and Hess Oil Virgin islands Corporation
now move this Court to stay its proceedings and compel Plaintiffs to arbitrate their
claims pursuant to an agreement they signed. Plaintiffs respond that Defendants’
request for arbitration is untimely and the arbitration agreement is inapplicable to
Defendants. For the reasons mentioned below, this Court concludes the
arbitration agreement is unenforceable and Defendants’ motion to compel is
nevertheless untimely. The Court will thus deny the motion to compel.
FACTUAL BACKGROUND

12 January 27, 2004 and May 5, 2005, Plaintiffs Kendal Roberts and Kadar
Mohansingh, respectively, executed arbitration agreements with their then
employer, HOVENSA, L.L.C. On March 14, 2006, they commenced the above-
captioned civil actions against Amerada Hess Corporation ( Hess), Hess Oil Virgin
Islands Corporation (HOVIC), Litwin Corporation, and Universal! Oi! Products.’
They seek damages for injuries allegedly suffered as a result of their exposure to
asbestos, silica, and catalyst dust while employed at Hess Oil Virgin Islands
Refinery. See Complaints (SX-2006-CV-231, Mar. 14, 2006; SX-2006-CV-

, 2006). On November 6, 2014 and January 7, 2015, defendants Hess

1 Plaintiffs’ cases are grouped under the instant master case (SX-2015-CV-1 98). A total of 10 active
similar casas, including the instant plaintiffs, remain currently grouped thereunder. Pursuant to the
parties stipulation, this Court dismissed Plaintiffs' cases against defendant Universal Oil Products
on December 4" and 6h, 2009.
In Re: Refinery Workers Toxic Tort Litigation, SX-15-CV-198

Memorandum Opinion

Page 4

and HOVIC filed motions to compel Plaintiffs to arbitrate their claims.2 SX-2006-
GV-231, CMS No. 41; SX-2006-CV-238, CMS No. 57. Plaintiffs opposed the
motions on November 17, 2014 and January 9, 2015. SX-2006-CV-231, CMS No.
43; SX-2006-CV-238, CMS No. 57. Defendants replied to Plaintiffs’ oppositions
on November 21, 2014 and January 22, 2015. SX-2006-CV-231, CMS No. 44; SX-
2006-CV-238, CMS No. 58. On October 16, 2019, this Court held a hearing on
Defendants’ motions and took the matter under advisement. SX-2015-CV-1 98,
CMS No. 185.
APPLICABLE LAW

8 Defendants premised their motion to compel upon the Federal Arbitration
Act (FAA). HOVIC and Hess Supp Brief, p 2, 11/14/16 (stating “HOVIC and Hess
filed their Motions to Compe! Arbitration under Section 3 of the FAA.”). The Virgin
Supreme Court has held that the FAA applies to the Virgin Islands where an

interstate nexus exists. Whyte v. Bockino, 

, 760 (V.I. 2018). The party

seeking arbitration bears the initial burden to establish that an agreement to
arbitrate exists. 

 (“Thus, a party seeking to compel arbitration must not only show
that an agreement to arbitrate exists, but that the contract evidences an interstate

nexus.”). Assuming such an agreement exists, the Court must then determine

2 The third remaining defendant, Litwin Corporation, is not a party to the instant motion to compel
arbitration,
In Re: Refinery Workers Toxie Tort Litigation, SX-15-CV-198
2022 Vl Super 3U

Memorandum Opinion

Page 5

whether the issue raised is referable to arbitration under the agreement. 

. Accordingly, to prevail on their motion, Defendants must establish the
existence of a valid agreement to arbitrate, an arbitrable issue and an interstate
nexus,
LEGAL ANALYSIS
14 Defendants Hess and HOVIC seek an order compelling Plaintiffs to arbitrate
their claims. They assert that Plaintiffs’ claims are subject to an arbitration
agreement; hence, the instant proceedings must be stayed and arbitration
compelled. Mot. to Compel,p 1. Plaintiffs respond that:
a) The six-year limitations period to enforce the terms of the arbitration
contract expired, on March 14, 2012, before Defendant’s filed their
motion to compel. Opp. to Mot. to Compel, p 2.;
b) Defendants’ Motion to Compe! Arbitration was made outside the
limitations period provided in the Dispute Resolution Plan. Hearing

Transcript, 10/16/19, pp 14-17; and

c) Defendants have no rights under the Dispute Resolution Plan since they
did not agree to be bound by it. Hearing Transcript, 10/16/19, pp 18-19.

The prime issue emanating from the parties’ contentions is whether a valid
arbitration agreement between the parties exist. This Court thinks not. Even if
one exists, Defendant's motion to compel is untimely; hence, the agreement would

be unenforceable,
In Re: Refinery Workers Toxic Tort Litigation, SX-15-CV-198

Memorandum Opinion

Page 6

1) There is No Valid Arbitration Agreement Between the Parties.
15 In determining a motion to compel arbitration, the Court's first task is to
determine the existence of an agreement to arbitrate. The party seeking to

compel arbitration bears the burden to “show that an agreement to arbitrate exists.”

Bockino, 69 V.I. at 760; Jim Parker Bldg. Co. v. G&S Glass & Supply Co., 

 (Ala. 2011) (stating “[i]he party seeking to compel arbitration has the
initial burden of proving the existence of a written contract calling for arbitration
and proving that contract evidences a transaction involving interstate commerce.”).
‘16 Defendants assert that Plaintiffs’ claims are subject to a valid arbitration
jreement. Mot. to Compel, p 1. Their assertion is based on Agreements
executed by Plaintiffs on May 5, 2005 and January 27, 2004 “to be bound by and
comply with the terms of HOVENSA’s Dispute Resolution Program with respect to
any matter related to, and arising before, during or after’ their employment with
HOVENSA. Mot. to Compel, Ex. B. The terms of the Program are outlined in a
document titled “The HOVENSA DISPUTE RESOLUTION PLAN (the DRP).” The
stated purpose and intent of the plan provides as follows:
The Plan is designed to provide a program for the quick, fair,
accessible and inexpensive resolution of Disputes between
HOVENSA L.L.C. (the “Company”) and the Company’s present and
former Employees and Applicants for employment, related to or
arising out of a current, former or potential employment relationship

with the Company. The Plan is intended to create an exclusive
procedural mechanism for the final resolution of all Disputes falling
In Re: Refinery Workers Toxic Tort Litigation, SX-15-CV-198

Memorandum Opinion

Page 7

within its terms. It is not intended to take away from or enlarge
substantive rights available under law. The Plan contractually
modifies the employment relationship between the Company and its
Employees, but only to the extent expressly stated in this Plan. The
Plan should be interpreted in accordance with these purposes.

DRP {1 1. A simple reading of the Plan’s purpose reveals that it applies to
HOVENSA L.L.C. also referred to as the “Company” and its employees. The DRP
defines “Company” as

HOVENSA L.L.C. and every subsidiary of HOVENSA, any Electing
Entity, any entity or person alleged to have joint and several liability
concerning any Dispute, ... : provided, however, that in the case of
an Electing Entity, “Company” will include the Electing Entity only to
the extent_provided in the Electing Entity’s aqreement to be

bound by the Pian.
DRP {] 2C. (emphasis added). The Plan defines “Electing Entity” to mean

Any legal entity which has agreed to be bound by the Plan as provided

herein and includes the Company’s members, Hess Oil Virgin Islands

Corp. and PDVSA V.I., Inc. and their parents Amerada Hess

Corporation and Petroieos de Venezuela, S.A.
DRP {| 2E. Thus, defendant Hess and HOVIC are intended Electing Entities
under the Plan. This, however, does not end the analysis as the Plan restricts
which Electing Entities are included in “the Company” and hence covered by the
Plan.

17 Defendants concede that “HOVIC, Hess, and HOVENSA are all separate

corporate entities.” HOVIC and Hess Supp. Brief, p 4, n 3, 11/14/16. They
In Re: Refinery Workers Toxic Tort Litigation, SX-15-CV-198

Memorandum Opinion

Page 8

nonetheless maintain that “since HOVIC and HESS are specifically defined by the
Plan and Rules as ‘Electing Entities’ Plaintiff's claims against these entities are
subject to the DRP and its arbitration provision because they are named third-party
beneficiaries to the agreement.” Mot. to Compel, p 3. In light of their separation
from Hovensa, however, Defendants, though defined as Electing Entities, are
included in the Plan only to the extent provided in their agreement to be bound by
the Plan. DAP 7 2C. Defendants have neither produced nor even asserted that
such an agreement to be bound exists. To the contrary they admit that the motion
to compel was filed on November 6, 2014, “after receiving discovery revealing that
Plaintiff was subject to an arbitration agreement he signed with HOVENSA, L.L.C.”
HOVIC and Hess’ Supp. Brief, p 3, 11/14/16. Defendants received the agreement
in October 2014. Had they executed agreements to be bound by the DRP they
would have been on notice, since 2006 (when the complaints were filed), of the
possibility that Plaintiffs were parties to the agreement as well and would have had
cause to search for Plaintiffs’ arbitration agreement. Under those circumstances
it should not have taken eight years to seek and obtain a copy of that agreement.
It is thus patently obvious that Defendants were unaware of the existence of the
DRP prior to October 2014. Hence, they could not have agreed to be bound by
the plan and therefore are not “Electing Entities” thereunder. Accordingly,

Defendants have failed to establish the existence of a valid arbitration agreement
in Re: Refinery Workers Toxic Tort Litigation, SX-15-CV-198

Memorandum Opinion

Page 9

between Plaintiffs and them. Without knowledge of the terms (pursuant to an
agreement to be bound) describing the extent to which Defendants, as electing
entities, agreed to be bound there is no agreement to enforce.

2) Defendant’s Motion to Compel Is Untimely.

78 Even if Defendants and Plaintiffs were parties to the DRP, the motion to
compel is untimely. Defendants premised their motion to compel on the DRP and
the Federal Arbitration Act. They claim that “Plaintiff's claims are subject to an
arbitration agreement [the DRP] and therefore, pursuant to the Federal Arbitration
Act (FAA), 9 U.S.C. 1, must be stayed and arbitration compelied.” Mots. to Compel,
p 1. Defendants’ motion is thus an attempt to enforce an arbitration clause in a

contract. See Valentin v. Grapetree Shores, 2015 V.|. LEXIS 76, No. SX-11-CV-

305, at *4 (V.I. Super. Ct. Jun. 30, 2015) (stating “[CJourts have long recognized
that arbitration is a creature of contract.”}. The statute of limitations for such
contract claim is governed by Virgin Islands law. That time period is six (6) years
“after the cause of action shall have accrued.” 5 V.I. § 31(a)(3}A). Pursuant to
federal law, "an action to compel arbitration under the [FAA] accrues only when
the respondent unequivocally refuses to arbitrate, either by failing to comply with
an arbitration demand or by otherwise unambiguously manifesting an intention not

to arbitrate the subject matter of the dispute." PaineWebber Inc. v. Faragalli, 

 (3d Cir. 1995); 

. Plaintiffs’ filing of complaints on
In Re: Refinery Workers Toxic Tort Litigation, SX-15-CV-198

Memorandum Opinion

Page 10

March 14, 2006, constituted an unambiguous manifestation of their intent not to

arbitrate the dispute raised therein. Beijing Shougang Mining Inv. Co. v. Mongolia,

11 F.4" 144, 162 (2"4 Cir. 2021) (stating “{A] party has refused to arbitrate if it
commences litigation or is ordered to arbitrate the dispute [by relevant arbitral

authority] and fails to do so.”)(citing Jacobs v. U.S.A. Track & Field, 

 (2d Cir. 2004)); Ailen v. Horter Inv. Mgmt. LLC, 2020 U.S. Dist, LEXIS 181315

at “4-5, Sep. 30, 2020 (S.D. Ohio 2020) (stating “A party has ‘refused to arbitrate
within the meaning of Section 4 if it ‘commences litigation or is ordered to arbitrate

the dispute by the relevant authority and fails to do so.”") citing LAIF X SPRL v.

Axtel, S.A. de C.V., 

 (2d Cir. 2004); Jones v. GMC, 640 Supp.

2m 1124, 1145 (D. Ariz. 2009) (stating “[T]he very commencing of litigation can
itself be interpreted as a refusal to arbitrate.”). As such, the time for filing a motion
to compel arbitration expired on March 14, 2012, six (6) years after Plaintiffs filed
their complaints.? Defendants filed their motions to compel on November 6, 2014

and January 7, 2015. Such filings were therefore untimely.

3 Defendants argue that the six-year statute of limitations for filing their motions to compel did
not accrue until Plaintiffs opposed Defendants’ motions to compel on November 14, 2014.
Reply to Opp. to Defs. Mot. to Compel, p 3. On that date, they contend, Plaintiffs first
refused to arbitrate. The logic of Defendant's position escapes the Court. By this reasoning,
the deadline to file a motion to compel, in the instant context, will always expire six (6) or more
years “after” the motion is filed. Hence, the motion will never be untimely. It is far more
reasonable to consider the filing of the complaint as manifesting the desire not to arbitrate and
as the accrual date of the limitations statute.
In Re: Refinery Workers Toxic Tort Litigation, SX-15-CV-198

Memorandum Opinion

Page 11

19 The motions to compel arbitration were also filed outside the more restrictive
time constraints of the arbitration agreement which provided:

A Party must initiate proceedings under the Plan within 180 days

after the event which gives rise to the Dispute or the time allowed by

applicable law for the filing of a judicial complaint, whichever is longer.

Any claim not raised within this period will be deemed barred by

limitations.
Hovensa Dispute Resolution Plan, 3G. This limitation plainly applies to any
party — that is, employee or employer —- who makes a claim. Here, Defendants
(employer) sought to initiate arbitration proceedings when they claimed (via the
instant motion to compel) the dispute raised by Plaintiffs is subject to arbitration
pursuant to the DRP. Such claim was required to be made by the longer of 180
days after the event that gave rise to Plaintiffs’ dispute, or the time provided by law
for filing a complaint. The event giving rise to the dispute arose on March 74,
2006, at the latest, when the complaints were filed. By the 180-day timeline,
Defendants were required to initiate arbitration proceedings by September 14,
2006. The complaints alleged negligence and fraudulent conceatment on the part
of Defendants. Complaints, pp 4-8. The time limit for filing such claims is two (2)
years after the cause of action accrues. 5 V.I.C. § 31(a)(5)(A). At the latest, such
accrual would have occurred on March 14, 2006 and Defendants’ claim had to be

filed by March 14, 2008. Hence, Defendants’ Motions to Compel were filed

outside both the 180-day and two-year time iimits.
In Re: Refinery Workers Toxic Tort Litigation, SX-15-CV-198

Memorandum Opinion

Page 12

CONCLUSION
qio0 =6This Court concludes that defendants Hess and HOVIC were not parties to
the arbitration agreement (i.e. the DRP) and hence cannot enforce it. Further,
even they were parties to the agreement, their motions to compel arbitration were
untimely filed. Accordingly, the motions to compel arbitration will be denied. An

order consistent herewith will be entered contemporaneously.

AGL to

ALPHONSO G. ANDREWS, JR.
Superior Court Judge

ATTEST:
TAMARA CHARLES

Uh COURT

COURT CLERK

IN THE SUPERIOR COURT
OF THE VIRGIN ISLANDS

January 14, 2022 12:47 &M
“TAMARA CHARLES IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
CLERK OF THE COURT DIVISION OF ST. CROIX

IN RE: Refinery Workers Toxic Tort | Master Case No. SX-2015-CV-198
Litigation. (Complex Litigation Division)

Re: SX-2006-CV-231, -238

AMENDED ORDER DENYING MOTION TO COMPEL ARBITRATION’
This matter came before the Court on Defendants’ Motions to Compel
Arbitration filed on November 6, 2014 and January 7, 2015, Plaintiffs’ Oppositions
thereto filed on November 17, 2014 and January 9, 2015 and Defendants’ Replies
filed on November 21, 2014 and January 22, 2015. Consistent with the
Memorandum Opinion filed in this matter on January 13, 2022, it is hereby

ORDERED that Defendants’ Motions to Compel Arbitration are DENIED.

Srp

DATE: January 14, 2022 ALPHONSO G. ANDREWS, JR.
Superior Court Judge

ATTEST:

TAMARA CHARLES

“Ah COURT

COURT CLERK

1 This Amendment corrects the previous Order which referenced “Plaintiffs” instead of “Defendants”
Motion to Compel in the SO ORDERED paragraph.
IN THE SUPERIOR COURT
OF THE VIRGIN ISLANDS

FILED

January 13, 2022 05:00 eM
SX-2015-CV-00198
TAMARA CHARLES

eee EU nL IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX

IN RE: Refinery Workers Toxic Tort | Master Case No. SX-2015-CV-198
Litigation. (Complex Litigation Division)

Re: SX-2006-CV-231, -238

ORDER DENYING MOTION TO COMPEL ARBITRATION
This matter came before the Court on Defendants’ Motions to Compe!
Arbitration filed on November 6, 2014 and January 7, 2015, Plaintiffs’ Oppositions
thereto filed on November 17, 2014 and January 9, 2015 and Defendants’ Replies
filed on November 21, 2014 and January 22, 2015. Consistent with the
Memorandum Opinion filed in this matter on even date herewith, it is hereby

ORDERED that Plaintiffs’ Motions to Compe Arbitration are DENIED.

MPa

DATE: January 13, 2022 ALPHONSO G. ANDREWS, JR.
Superior Court Judge

ATTEST:

TAMARA CHARLES

Mh COURT

COURT CLERK