IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
Master Case No. SX-2019-MC-069
IN RE: Hurricane Maria Insurance (Complex Litigation Division)
Cases.
Re: SX-19-CV-063, 219, 222, 239,
258, 307, 354, 433,
442, 486
Cite as: 2026 VI Super 4P
Appearances:
Lee Rohn, Esq.
Lee J. Rohn and Associates, LLC
56 King Street, Third Floor
Christiansted, V.I. 00820
For Plaintiffs
Matthew L. Litsky, Esq.
Phelps Dunbar, LLP
100 South Ashley Dr., Suite 2000
Tampa, Fl 33602-5311
For Defendants Certain Underwriters at Lloyd’s, London Subscribing to Policy
No. HOCJC1423, Defendants Marshall and Sterling, Inc., and Marshall and
Sterling St. Croix
Eric A. Hiller, Esq.
Clyde & Co. U.S. LLP
1221 Brickell Avenue, Suite 1600
Miami, Fl 33131
For Defendant Certain Interested Underwriters at Lloyd’s of London
Justin King, Esq.
Clyde & Co. U.S. LLP
1221 Brickell Avenue, Suite 1600
Miami, Fl 33131
For Defendant Certain Interested Underwriters at Lloyd’s of London
Sharmane Davis-Brathwaite, Esq.
Brathwaite Law LLC
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4001 Raphune Hill, Suite 109
St. Thomas, VI 00802
For Defendant Certain Underwriters at Lloyd’s of London Subscribing to Policy
No. B0621PFANE000217
Rafael F. Muilenburg, Esq.
Morrisette & Muilenburg, LLP
P.O. Box 1239
St. John, V.I. 00831
For Defendant Executive Insurance Services, Inc.
Douglas J. Kress, Esq.
Schwed, Kahle & Kress, P.A.
11410 N. Jog Road, Suite 100
Palm Beach Gardens, F.L. 33418
For Defendant Executive Insurance Services, Inc.
Douglas L. Capdeville, Esq.
Law Offices of Douglas L. Capdeville, P.C.
2107 Company Street, Lot 4
Christiansted, V.I. 00822
For Defendant Executive Insurance Services, Inc.
Robert J. Kuczynski, Esq.
Beckstedt & Associates
2162 Church Street
Christiansted, V.I. 00820
For Defendants Marshall & Sterling St. Croix, Inc., Marshall and Sterling St.
Thomas and Theodore Tunick & Co.
Carl A. Beckstedt, III, Esq.
Beckstedt & Associates
2162 Church Street
Christiansted, V.I. 00820
For Defendant Marshall & Sterling St. Croix, Inc.
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Rachel E. Hudgins, Esq.
Fields Howell LLP
1180 W Peachtree Street, Suite 1600
Atlanta, G.A. 30309
For Defendant Cornerstone Services, Inc.
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MEMORANDUM OPINION
(Filed February 6, 2026)
Andrews, Jr., Judge
INTRODUCTION
¶1 Plaintiffs, Virgin Islands property owners, bring this action against
defendant insurance companies and their agents for damage to their properties
caused by Hurricane Maria which struck the territory on September 19, 2017.
They claim the defendants breached their insurance contracts by, among other
things, improperly underwriting their policies, underestimating their property
losses, and making false representations regarding their policies. Defendant,
Certain Interested Underwriters at Lloyd’s of London (Lloyd’s) moves this Court to
compel Plaintiffs to submit to an appraisal procedure as provided in their insurance
policies. 1 Plaintiffs contend that Lloyd’s has waived its right to appraisal by
waiting too long to invoke it. For the reasons mentioned below, this Court
1
Approximately ninety-seven (97) similar cases are grouped under the above-captioned master
case. Lloyd’s was named as a defendant in forty-seven (47) cases and filed motions to compel
appraisal in twenty-five (25) of them (the Court notes that two cases were removed to the District
Court of the Virgin Islands (19-465 – removed on 06/20/25 and 19-500 – removed on 06/11/25)).
Further, the plaintiffs dismissed Lloyd’s as a defendant in 19-475, and 19-481. This opinion
addresses the motions filed in ten (10) cases (referenced above) selected by the Court from the
twenty-five (25) cases.
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concludes Lloyd’s timely invoked the appraisal procedure and will hence grant its
motions to compel.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶2 On September 19, 2017, Category 5 Hurricane Maria struck the Virgin
Islands territory and caused island wide devastation on St. Croix. Plaintiffs
suffered damages to their homes as a result of the storm. They had insured their
properties with defendant Lloyd’s, an insurance underwriter, through its agents
defendants Marshall and Sterling, Inc., Marshall and Sterling St. Croix, Executive
Ins. Svcs., Inc., Cornerstone Svcs., Inc. or Theodore Tunick and Co. Each policy
contained the following appraisal clause:
If you and we fail to agree on the amount of loss, either may demand
an appraisal of the loss. In this event, each party will choose a
competent and impartial appraiser within 20 days after receiving a
written request from the other. The two appraisers will choose an
umpire. If they cannot agree upon an umpire within 15 days, you or
we may request that the choice be made by a judge of a court of
record in the state where the “residence premises” is located. The
appraisers will separately set the amount of loss. If the appraisers
submit a written report of an agreement to us, the amount agreed
upon will be the amount of the loss. If they fail to agree, they will
submit their differences to the umpire. A decision agreed to by any
two will set the amount of loss.
Mots. to Compel: Conditions Ex. A § I (19-063, 19-219, 19-222, 19-19-239, 19-
258, 19-307, 19-354, 19-433, 19-442, 19-486).
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¶3 Subsequent to the storm, Plaintiffs filed insurance claims with Lloyd’s
through their agents. The parties calculated differing amounts regarding
Plaintiffs’ dwelling losses as follows:
LOSS CALCULATION
Case No. By Plaintiffs By Lloyd’s
19-063 (Gibson) $257,000 2 $110,6173
19-219 (Odom) $378,5004 $245,8015
19-222 (Fanelli) $386,6196 $101,3897
19-239 (Johannes) $122,273 8 $64,7169
19-258 (Prescott) $39,02010 $30,85811
2
Pl.’s Suppl. Br. Re Waiver 2; Gibson Affirmation Ex. A, at 2; Proof of Loss Ex.
2, 04/27/18 (19-063).
3
Mot. to Compel 3 (Background).
4
Pl.’s Suppl. Br. Re. Waiver 5 ($378,000); Odom Affirmation Ex. A, at 2
($378,500); Proof of Loss Ex. 2, 04/25/18; Scarlett Affirmation Ex. B, at 1
($378,500) (19-219).
5
Lloyd’s Resp. to Ct.’s Order 4; Copies of two (2) Checks Ex. N (SX-2019-MC-
069).
6
Pl.’s Suppl. Br. Re Waiver 5; Fanelli Affirmation Ex. A, at 2; Scarlett Affirmation
Ex. B, at 2 (19-222). The Court notes that Plaintiff had submitted an earlier loss
estimate of $159,160. See also Fanelli Affirmation 2.
7
Mot. to Compel 2 (19-222).
8
Pl.’s Suppl. Br. Re Waiver 4; Johannes Affirmation Ex. A, at 2 (19-239);
9
Mot. to Compel 2 (Background) (19-239). The Court notes that Plaintiff alleges
Lloyd’s loss estimate was $43,577. See Pl.’s Suppl. Br. Re Waiver 4 (19-239).
See also Johannes Affirmation Ex. A, at 2. The difference is immaterial to the
Court’s analysis as the parties clearly had differing loss calculations.
10
Lloyd’s Resp. to Ct.’s Order 2 (SX-2019-MC-069).
11
Id.
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19-307 (Donaie) $230,00012 $189,10013
19-354 (Nicholas) $23,82014 $17,44315
19-433 (Martin) $166,31516 $85,00017
19-442 (Jacobs) $45,93718 $30,99819
19-486 (Rodgers) $166,10020 $75,09121
On the dates indicated on the chart below: the parties exchanged communications
regarding the disputed claims; Lloyd’s made payment consistent with its loss
calculations; Plaintiffs served complaints on Defendants; Lloyd’s demanded
appraisals; and Lloyd’s subsequently filed the instant Motions to Compel
Appraisal.22
Filing and
12
Pl.’s Suppl. Br. Re Waiver 4; Donaie Affirmation Ex. A, at 2 (19-307).
13
Pl.’s Suppl. Br. Re Waiver 4; Donaie Affirmation Ex. A, at 3 (Lloyd’s calculation
was $170,00) (19-307); Mot. to Compel 2 (CLA adjusted Plaintiff’s Dwelling loss
was calculated at $189,100).
14
Pl.’s Suppl. Br. Re Waiver 4; Nicholas Affirmation Ex. A, at 2 (19-354).
15
Lloyd’s Resp. to Ct.’s Order 3 – 4 (SX-2019-MC-069).
16
Pl.’s Suppl. Br. Re Waiver 4; Martin Affirmation Ex. A, at 2 (19-433).
17
Mot. to Compel 3; See also Pl.’s Suppl. Br. Re Waiver: Martin Affirmation Ex.
A, at 2. (19-433). Note: The $85,000 includes a $15,000 deductible.
18
Pl.’s Suppl. Br. Re Waiver 4; Jacobs’ Affirmation Ex. A, at 2; Mot. to
Compel Appraisal 2 (19-442) (alleging Plaintiff claimed $45,406).
19
Mot. to Compel Appraisal 3 (19-442).
20
Pl.’s Suppl. Br. Re Waiver 4 (19-486); Rodgers Affirmation Ex. A, at 1.
21
Lloyd’s Resp. to Ct.’s Order 3; Check Payment Description Ex. G, 04/19/22
(SX-2019-MC-069).
22
Lloyd’s also sought to stay the litigation pending the appraisal process if
granted. In light of the Court’s decision to order appraisal it will issue an order
staying litigation pending the appraisal process.
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Parties’ Last Pre-suit Insurance Service of Appraisal MTC
Case No. Communication Payment Complaint Demand Filed
19-063 01/21/19*23 05/08/1924 02/21/1925 04/30/1926 05/06/1927
(Gibson) 02/27/19** 28 04/01/1929
*Plaintiff’s adjuster advised he was waiting to review a couple matters with the plaintiff.
**Lloyd’s adjuster inquired from Plaintiff’s adjuster whether they were in a position to
submit a revised claim.
19-219 10/31/18*30 12/04/1831 05/14/1932 07/12/1933 07/12/1934
(Odom) After 10/31/18**35 06/03/1936
*Plaintiffs issued a Proof of Loss to Lloyd’s dated 10/31/18.
**On or about 12/04/18 Plaintiffs accepted payment (two checks dated 10/26/18)
consistent with the amount claimed in their 10/31/18 Proof of Loss.
23
Reply in Supp. of Mot. to Compel: E-mails Ex. C, at 1 – 2; Lloyd’s Notice of
Compliance with Ct.’s Order 1 (19-063).
24
Lloyd’s Notice of Compliance with Ct.’s Order 1 (SX-2019-MC-069); Pl.’s
Suppl. Br. Re Waiver: Gibson Affirmation Ex. A, at 2 (19-063).
25
Compl., CMS 4; Lloyd’s Notice of Compliance with Ct.’s Order 1 (19-063).
26
Mot. to Compel 4; See also Pl.’s Suppl. Br. Re Waiver: Gibson Affirmation Ex.
A, at 2 (19-063).
27
Mot. to Compel, CMS 27 (19-063).
28
Reply in Supp. of Mot. to Compel: E-mails Ex. C, at 1 (19-063).
29
Notice of Proof of Svc., CMS 16 (19-063).
30
Lloyd’s Resp. to Ct.’s Order 4; Proof of Loss Ex. M (SX-2019-MC-069).
31
Lloyd’s Resp. to Ct.’s Order 4; Checks Ex. N (SX-2019-MC-069); See also Pl.’s
Supp. Br. Re Waiver: Odom Affirmation Ex. A, at 2 (19-219).
32
Compl., CMS 4; Lloyd’s Notice of Compliance with Ct.’s Order 2 (19-219).
33
Mot. to Compel 3; Pl.’s Suppl. Br. Re Waiver: Odom Affirmation Ex. A, at 2
(19-219).
34
Mot. to Compel, CMS 16, 07/12/19 (19-219).
35
Pl.’s Suppl. Br. Re Waiver: Odom Affirmation Ex. A, at 2 (19-219); Lloyd’s
Resp. to Ct.’s Order 4; Checks Ex. N (19-219).
36
Notice of Proof of Svc., CMS 12, 06/21/19 (19-219).
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19-222 06-25-18 to 08/13/1837 05/14/1938 07/05/1939 07/09/1940
(Fanelli) 10-27-18*41 06/03/1942
*Numerous discussions regarding the amount of loss occurred.
19-239 01/19/18* 01/19/1843 05/30/1944 11/19/1945 11/21/1946
(Johannes) 06/28/1947
*Plaintiff accepted a check for insurance payment.
19-258 11/04/17*48 01/19/1849 06/12/1950 07/22/1951 07/22/1952
(Prescott) 01/19/18**53 07/01/1954
*Plaintiff executed an acceptance form indicating a loss amount of $25,108.
**Plaintiff accepted a check from Defendants in the amount of $25,108.
37
Lloyd’s Notice of Compliance with Ct.’s Order 2 (SX-2019-MC-069); Pl.’s Suppl.
Br. Re Waiver: Fanelli Affirmation Ex. A, at 2 (19-222).
38
Compl., CMS 3, 05/14/19 (SX-19-CV-222).
39
Mot. to Compel: Letter to Pl.’s Counsel Ex. B; Pl.’s Suppl. Br. Re Waiver: Fanelli
Affirmation Ex. A, at 2.
40
Mot. to Compel, CMS 16, 07/09/19 (19-222).
41
Pl.’s Suppl. Br. Re Waiver: Scarlett Affirmation Ex. B, at 2 (19-222).
42
Notice of Proof of Svc., CMS 9, 06/21/19 (19-222).
43
Mot. to Compel 3 (19-239).
44
Compl., CMS 5 (19-239).
45
Pl.’s Suppl. Br. Re Waiver: Johannes Affirmation Ex. A, at 3 (19-239).
46
Mot. to Compel, CMS 35, 11/21/19 (19-239).
47
Notice of Proof of Svc., CMS 15, 07/11/19 (19-239).
48
Lloyd’s Resp. to Ct.’s Order: Form of Acceptance Ex. C (SX-2019-MC-069).
49
Lloyd’s Resp. to Ct.’s Order: Settlement Calculations Ex. B (SX-2019-MC-069);
Pl.’s Suppl. Br. Re Waiver: Prescott Affirmation Ex. A, at 2.
50
Compl., CMS 4 (19-258).
51
Pl.’s Suppl. Br. Re Waiver: Prescott Affirmation Ex. A, at 1 (19-258).
52
Mot. to Compel, CMS 12 (19-258).
53
Pl.’s Suppl. Br. Re Waiver 4; Lloyd’s Resp. to Ct.’s ’s Order: Ex. D (19-258).
54
Lloyd’s Resp. to Ct.’s Order: Notice of Proof of Svc. Ex. E (SX-2019-
MC-069; See also Notice of Proof of Svc., CMS 10, 07/11/19 (19-258).
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19-307 08/03/18*55 05/01/1856 07/16/1957 11/20/1958 11/27/1959
(Donaie) 07/29/1960
*Plaintiff’s agent emailed Lloyd’s adjuster about setting up an appointment and
bringing the claim to a resolution.
19-354 01/10/18*61 01/18/18**62 07/25/1963 11/12/1964 11/13/1965
(Nicholas) 09/10/1966
*Plaintiff executed an acceptance form reflecting a personal property loss of
$6,976 in full discharge of his property damage claim.
**This payment was only for personal property loss as the deductible amount,
according to Lloyd’s, exceeded Lloyd’s dwelling loss calculation.
19-433 March - June 2019*67 07/17/1968 09/06/1969 02/05/2070 08/03/2071
(Martin) 12/11/1972
*Plaintiff accepted Lloyd’s payment of $70,000 under protest.
55
Pl.’s Suppl. Br. Re Waiver: Donaie Affirmation Ex. A; E-mail Chain Ex. 2 (19-
307).
56
Pl.’s Suppl. Br. Re Waiver: Donaie Affirmation Ex. A, at 3 (19-307.
57
Compl., CMS 1 (SX-19-CV-307).
58
Pl.’s Suppl. Br. Re Waiver: Donaie Affirmation Ex. A, at 3 (19-307).
59
Mot. to Compel, CMS 27 (19-307).
60
Notice of Proof of Svc., CMS 13, 08/13/19 (19-307).
61
Lloyd’s Resp. to Ct.’s Order 4; Acceptance Form Ex. J (SX-2019-MC-069); Opp.
to Mot. to Compel: Nicholas Affirmation Ex. A, at 2 (19-354).
62
Lloyd’s Resp. to Ct.’s Order 3 – 4 (SX-2019-MC-069).
63
Compl., CMS 1 (19-354).
64
Pl.’s Suppl. Br. Re Waiver: Nicholas Affirmation Ex. A, at 3 (19-354).
65
Mot. to Compel, CMS 16 (19-354).
66
Notice of Proof of Svc., CMS 13, 09/25/19 (19-354).
67
Mot. to Compel 3 (19-433); Pl.’s Br. Re Waiver: Martin Affirmation Ex. A, at
2(19-433).
68
Lloyd’s Notice of Compliance with Ct.’s Order 3 (SX-2019-MC-069).
69
Compl., CMS 2 (19-433).
70
Mot. to Compel: Appraisal Demand Letter Ex. B (19-433); Pl.’s Br. Re Waiver:
Martin Affirmation Ex. A, at 3 (19-433).
71
Mot. to Compel, CMS 27, 08/03/20 (19-433).
72
Notice of Proof of Svc., CMS 23, 02/25/20 (19-433).
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19-442 Feb. 2018*73 11/17/1774 09/10/1975 11/01/1976 11/06/1977
(Jacobs) 03/15/1878 09/27/1979
*Plaintiff submitted an estimate to Lloyd’s.
19-486 Late 2017*80 Early 201881 09/19/1982 02/04/2083 02-05-2084
(Rodgers) 12/23/1985
*Plaintiffs executed an Acceptance Form re payment.
Subsequent to the receipt of payment, Plaintiffs filed suit in 2019 against defendant
insurance companies and their agents as follows:
Case No. Plaintiff (s) Defendants
19-063 Hope Gibson Lloyd’s
Marshal and Sterling, Inc.
Marshal and Sterling St. Croix
19-219 Noyl and Kelly Odom Lloyd’s
Executive Insurance Svcs., Inc.
19-222 Daniel & Beatrix Fanelli Lloyd’s
Cornerstone Services, Inc.
73
Pl.’s Suppl. Br. Re Waiver: Jacobs Affirmation Ex. A, at 2 (19-442).
74
Lloyd’s Notice of Compliance with Ct.’s Order 3 (SX-2019-MC-069).
75
Compl., CMS 2 (19-442).
76
Mot. to Compel 4 Ex. B (Letter to L. Rohn); Pl.’s Suppl. Br. Re Waiver: Jacobs
Affirmation Ex. A, at 3 (19-442).
77
Mot. to Compel, CMS 23, 11/06/19 (19-442).
78
Lloyd’s Notice of Compliance with Ct.’s Order 3 (SX-2019-MC-069).
79
Notice of Proof of Svc., CMS 11, 10/10/19 (19-442).
80
Lloyd’s Resp. to Ct.’s Order 3; Ex. G (Check); Ex. F (Acceptance Form) (SX-
2019-MC-069).
81
Pl.’s Suppl. Br. Re Waiver: Rodgers Affirmation Ex. A, at 2 (19-486).
82
Compl., CMS 2 (19-486).
83
Pl.’s Suppl. Br. Re Waiver: Rodgers Affirmation Ex. A, at 2 (19-486).
84
Mot. to Compel, CMS 19, 02/05/20 (19-486).
85
Notice of Proof of Svc., CMS 15, 01/14/20 (19-486).
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19-239 Renita Johannes Lloyd’s
Marshal and Sterling, Inc.
Marshall and Sterling St. Croix
19-258 Traney Prescott Lloyd’s
Executive Insurance Services
19-307 Benedicta E. Donaie Lloyd’s
Marshall and Sterling, Inc.
Marshall and Sterling St. Croix
19-354 Charlesworth Nicholas Lloyd’s
Executive Insurance Services, Inc.
19-433 Alvin A. Martin Lloyd’s
Theodore Tunick & Company
19-442 Monica Y. Jacobs Lloyd’s
Marshall and Sterling, Inc.
Marshall and Sterling St. Croix
19-486 Roy A. and Deborah Lloyd’s
J. Rogers Executive Insurance Services
See Complaints 19-063, 219, 222, 239, 258, 307, 354, 433, 442, 486. They allege
numerous causes of action against Defendants including: misrepresentation;
breach of contract; violation of 5 V.I.C. § 228(a); breach of duty of good faith; and
violation of 5 V.I.C. § 310.
As indicated above, Lloyd’s filed motions to compel in these matters in 2019
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and February 2020. On February 16, 2022, March 13, 2020 and March 27, 2020,
defendant Executive Insurance Services, Inc. joined Lloyd’s Motion to Compel in
three cases. Notice of Joinder, SX-2019-CV-219, 354, 486. None of the other
defendants has joined Lloyd’s motion to compel. Plaintiffs filed oppositions to
Lloyd’s motions to compel and Lloyd’s filed replies in all but two cases (i.e., 19-219
and 19-486). This Court held a hearing on the motions to compel on April 1, 2022,
required further submissions by the parties, and took the matter under advisement.
On or about April 19, 2022, the parties filed supplemental briefs.
LEGAL STANDARD
Lloyd’s seek to compel Plaintiffs’ compliance with an appraisal clause in their
insurance contracts. Plaintiffs contend Lloyd’s waived its right to demand
appraisal. The party claiming waiver bears the burden to establish it. Cf. Whyte
v. Bockino, 69 V.I. 749, 766 (V.I. 2018) (stating that in regards to an arbitration
waiver, “the burden to show a party waived its right to arbitration is on the party
claiming waiver.”); See also Gray v. Contributionship, 784 F.Supp.3d 367, 374 (D.
Md. Sep. 12, 2024) (stating that “the party resisting appraisal ‘bears the heavy
burden of proving waiver’”) (citing MicroStrategy, Inc. v. Lauricia, 268 F.3d 244,
249 (4th Cir. 2001)); 611 Carpenter LLC v. Atl. Casualty Ins. Co., No. 1:23-CV-
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00823-DII, 2024 U.S. Dist. LEXIS 89900, at *5 (W.D. Tex. May 20, 2024) (stating
that the party claiming waiver has the burden to show waiver and prejudice.)
It is axiomatic that a waiver is an intentional relinquishment of a known right
or privilege. Morgan v. Sundance, Inc., 596 U.S. 411, 417 (2022); Ubiles v. People
of the Virgin Islands, 66 V.I. 572, 586 (V.I. 2017) (stating that “[a] waiver is
ordinarily an intentional relinquishment or abandonment of a known right or
privilege.” (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938))); Abramsen v.
Vince Bedminster, 45 V.I. 3, 9 (V.I. Terr. Ct. 2002) (stating that “according to Virgin
Islands law, a waiver is “an intentional relinquishment of a known right or privilege.”
(citing Marcelly v. Mohan, 16 V.I. 575, 580 (V.I. Super. Ct. 1979))). The
touchstone factor in determining whether a waiver is prejudice as waivers are not
lightly inferred. Whyte, 69 V.I. at 766. (stating in the arbitration context that “[w]e
cannot lightly infer waiver” . . . ‘prejudice is the touchtone for determining whether
the right to arbitrate has been waived’ through litigation conduct’.”). In
determining waivers, the Court should consider the timeliness of the motion to
compel and “the extent to which the compelling party engaged in litigation.” Id. at
766 – 67. The Virgin Islands Supreme Court has emphasized that a party waives
the right to compel “arbitration,” for instance, “when it delays invoking the right and
prejudice results from the delay.” Id. Hence, a party claiming waiver must show:
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1) there was an unreasonable delay in invoking appraisal; and 2) prejudice resulted
from the delay.
LEGAL ANALYSIS
Lloyd’s seeks an order compelling Plaintiffs to submit to the appraisal
procedure provided in their insurance policies. It claims appraisal is appropriate
since the primary dispute concerns the amount of loss. See, e.g., Mot. to Compel
3 (19-219).86 Except for Johannes and Donaie, Plaintiffs do not contest the validity
of the appraisal provision in their contracts. Instead, they oppose its application
on various waiver grounds:87
1) the appraisal request is untimely, and hence waived, since it was
not made within 30 days of Plaintiffs’ submission of a proof of
claim, pursuant to 22 V.I.C. § 228(a);88
2) the filing of Plaintiffs’ suit forecloses Lloyd’s ability to request an
appraisal after the fact;89 and
3) Lloyd’s waived its right to demand appraisal by waiting too long to
86
Lloyd’s make substantially the same legal argument in support of its motion to
compel in each of the ten cases addressed in this opinion. The Court’s
analyses and conclusions thus apply equally to all motions to compel in these
ten cases.
87
Although each Plaintiff has separate factual circumstances regarding their
property loss, they set forth the same legal basis in opposition to Lloyd’s motion
to compel appraisal. As such, the Court’s analyses and conclusions apply
equally to all Plaintiffs. Further, Plaintiffs set forth other grounds in support to
their waiver argument which this Court finds without merit and does not address.
88
See, e.g., Opp. to Mot. to Compel 7 – 9; Pl.’s Suppl. Br. Re Waiver 16 (19-219).
89
See, e.g., Opp. to Mot. to Compel 6 (19-219).
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seek it.90
Lloyd’s counter that, in four cases (i.e., 2019-219, 258, 354, and 486), Plaintiffs
executed Forms of Acceptance indicating the amount was in full discharge of their
claim and were paid. Hence, the argument continues, there was no impasse or
need to seek appraisal until Plaintiffs filed suit. See Lloyd’s Resp. to Ct.’s Order 5
– 8 (SX-19-MC-069). Lloyd’s further argue that Plaintiffs cannot show prejudice
resulting from its demand for appraisal. Id. at 10 – 11. This Court must thus
decide whether Lloyd’s unreasonably delayed invoking appraisal and, if so,
whether such delay resulted in prejudice to Plaintiffs.
At the outset, the Court notes that appraisal clauses are generally preferred
as they provide a means for prompt resolution of claims without resorting to the
courts. See First Protective Ins. Co. v. Hess, 81 So. 3d 482, 485 (Fla. 1st DCA
2011). Here, an appraisal, if authorized, would afford the parties an efficient
objective mechanism to determine the value of Plaintiffs’ losses. It would also
spare all parties the burden, time, and expense of litigating the amount of loss. In
this light, the Court proceeds to analyze the issues presented.
1) Section 228(a) Does Not Preclude Lloyd’s Demand For Appraisal.
90
See, e.g., Pl.’s Suppl. Br. Re Waiver 15, 17 – 18 (19-219).
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Plaintiffs rely on 22 V.I.C. § 228(a) to support their position that Lloyd’s
appraisal demand is untimely. In pertinent part, the statute provides:
Effective 90 days after February 24, 1984, insurance
companies doing business in the Virgin Islands shall have
thirty (30) calendar days from the date on which an agreement
to settle is signed or a proof of claim has been filed, whichever
comes last, to make payment of all sums due under an
insurance policy.
22 V.I.C. § 228(a). Plaintiffs contend “any request for an appraisal, was required
to be made prior to the expiration of the 30 days, to effectuate the payment
deadline requirements of the statute.” Opp. to Mot. Compel 9 (19-219). Lloyd’s
counter that Section 228(a) does not address appraisal and there was no
agreement to settle. See, e.g., Reply in Supp. of Mot. to Compel 2 (19-222). As
explained below, Plaintiffs’ reliance on Section 228 is misplaced.
The Legislature added Section 228 to the Virgin Island Code in 1984, and it
appears no Virgin Islands court has addressed Subsection 228(a). Plaintiffs’
contention thus presents a novel issue. In construing Section 228(a), this Court
commences “with the plain and ordinary meaning of the statutory language.”
Wilkinson v. People of the Virgin Islands, 2025 V.I. 4, 8 (V.I. 2025). The Court
finds the statute unambiguous. The plain reading reveals it requires insurance
companies to pay all sums due under an insurance policy by the later of: 1) 30
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days after an agreement to settle is signed; or 2) 30 days after a proof of claim is
filed. The statute can only reasonably be interpreted to require payment once
there is agreement as to all sums due (i.e., where there is an undisputed proof of
claim). Hence, if an insurance company does not dispute the loss figure
submitted in the insured’s proof of claim, payment is due within 30 days of filing
the claim. If the insurance company disputes the insured’s loss claim and the
parties subsequently arrive at an agreement to settle, payment is due within 30
days of such agreement. Therefore, absent an uncontested proof of claim or an
agreement to settle, there is no determination of “all sums due” and Section 228(a)
payment deadline is not triggered.
Plaintiffs’ interpretation would require an insurer to make payment of a claim,
or demand appraisal, within 30 days of filing the insured’s claim even if the parties
are in negotiations. The Court finds such an interpretation unreasonable as it
would severely hamper settlement negotiations. Further, the statute is silent as
to the impact of an insurance company’s failure to pay within the 30 days and says
nothing about appraisal. The parties’ policy, however, does provide for appraisal
and imposes no deadline for demanding it. The policy simply provides that any
party may demand appraisal if they (insurer and insured) fail to agree on the
amount of loss. See, e.g., Mot. to Compel 3 (19-219). As to payment, the policy
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provides that “Loss will be payable 60 days after we receive your proof of loss and:
1) reach an agreement with you; 2) there is an entry of a final judgment; or 3) there
is a filing of an appraisal award with us.” Id. Therefore, Plaintiffs contracted to
receive payment upon fulfillment of one of the above conditions, none of which
occurred in any of their cases within 30 days of filing proof of claim. Their
contractual payment provision supersedes Section 228(a), even if it was
applicable.
The Court’s conclusion is supported by Virgin Islands law which bars the
use of an insurer’s receipt of proof of loss or claim forms as a waiver of any policy
provision or defense of the insurer thereunder. See 22 V.I.C. § 843(2) (stating
“None of the following acts by or on behalf of an insurer shall be deemed to
constitute a waiver of any provision of a policy or any defense of the insurer
thereunder: . . . (2) furnishing forms for reporting a loss or claim, for giving
information relative thereto, or for making proof of loss, or receiving or
acknowledging receipt of any such forms or proofs completed or uncompleted . .
.”). For these reasons, Plaintiffs’ reliance on Section 228(a) to support their
contention that payment was due within 30 days of submission of their proof of
claim is misplaced.
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2) The Filing of Plaintiffs’ Suits Does Not Foreclose Lloyd’s Ability to
Demand Appraisal.
Plaintiffs claim they filed suit after negotiations had reached an impasse and
such suit forecloses Lloyd’s ability to request an appraisal after the fact. Opp. to
Mot. to Compel 5 – 6 (19-219). They submit no authority for their position and this
Court is aware of none. To the contrary, the parties’ policy states, “If you and we
fail to agree on the amount of loss, either may demand an appraisal of the loss.”
See, e.g., Mot. to Compel 2 (19-219). It imposes no deadline to request an
appraisal. As such, it permits an appraisal demand before or after litigation has
commenced. Further, as a general rule, an appraisal may be demanded for the
first time after commencement of litigation. Castle Key Ins. Co. v. Wooden Family
Trust, 321 So. 3d 346, 349 (Fla.1st DCA 2021). The mere filing of a lawsuit does
not ipso facto preclude an appraisal demand. Absent a waiver, courts routinely
permit invocation of appraisal after a suit is filed. 611 Carpenter LLC, No. 1:23-CV-
00823, 2024 U.S. Dist. LEXIS 89900, at *5. Accordingly, the mere filing of
Plaintiffs’ lawsuit does not preclude Lloyd’s appraisal demand.
3) Lloyd’s Did Not Waive Its Right to Demand Appraisal.
Plaintiffs Johannes and Donaie claim the appraisal clause in the parties’
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contract is invalid. The Court finds their contention meritless. 91 All Plaintiffs
argue Lloyd’s waived its right to appraisal by waiting too long to demand it. As
Plaintiffs are the parties claiming waiver, they carry the burden to establish it.
Whyte, 69 V.I. at 766. They must show Lloyd’s intentionally relinquished or
abandoned their right to demand appraisal. Ubiles, 66 V.I. 572 at 586 (citing
Johnson v. Zerbst, 304 U .S. 458, 464 (1938)). Such an intent may exist where
there is an unreasonable delay in demanding appraisal. If waiver is established,
Plaintiffs must further show they suffered prejudice by Lloyd’s untimely demand for
appraisal. See Whyte, 69 V.I. at 766. Plaintiffs argue that whether the right to
appraisal has been waived is a question of fact. Pl.’s Suppl. Br. Re Waiver 8 (19-
219 – Odom). Here, however, the pertinent facts are undisputed, and this Court
may proceed to determine waiver as a matter of law. See In re SureChoice
Underwriters Reciprocal Exchange, 702 S.W.3d 876, 882 (Tex. Ct. App. 2024)
(stating that “[o]rdinarily, waiver is a question of fact, but when the facts are
91
Johannes claims the appraisal clause in the parties’ insurance contract is not
valid for want of approval by the Commissioner of Insurance as required by 22 V.I.C. § 810. Opp.
to Mot. to Compel 6. Section 810 speaks to the form of a contract and not to clauses or the other
provisions therein. Further, Johannes’ complaint is premised on an insurance contract. See
Compl. at 4 (“Defendant Lloyd’s insured Plaintiff against windstorm damages.”); Id. at 15 (“At all
times relevant, Defendant were bound by a written insurance contract with Plaintiff.”). The Court
presumes Johannes’ complaint is premised on a valid contract and finds her argument without
merit. If not, there is no basis for her breach of contract claims. Plaintiff Donaie makes the
same claim which is likewise meritless. See Opp. to Mot. to Compel 6 (19-307).
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admitted or clearly established waiver is a question of law.”); Koehl v. RLI Ins. Co.,
367 So.3d 122, 129 (La. 5th Ct. App. 2023) (stating “When the facts are
undisputed, however, waiver is a question of law.” (citing Highlands Ins. Co. v.
Allstate Ins. Co., 688 F.3d 398, 404 (5th Cir. 1982))); Koors v. Steffen, 916 N.E.
2d 212, 217 (Ind. Ct. App. 2009) (stating “[w]aiver is generally a question of fact;
however, the trial court may, as a matter of law, make a determination regarding
waiver where there are no undisputed facts and the undisputed facts establish that
a party is entitled to judgment.”); Old Republic Ins. Co. v. Fsr Brokerage, 80 Cal.
App. 4th 666, 679 (Cal. App. 2d 2000). (stating that “the trial court may properly
resolve an issue of waiver as a question of law when the underlying facts are
undisputed.”).
The parties’ insurance policy sets no deadline to demand appraisal. It
simply states, “if you and we fail to agree on the amount of the loss, either may
demand an appraisal of the loss.” See Mot. to Compel 4 (19-219). Under these
circumstances, simple logic dictates the demand (pursuant to the policy) must be
made within a reasonable time from the date of an impasse. Terra Indus., Inc. v.
Commonwealth Ins. Co. of Am., 981 F. Supp. 581, 597 (N.D. I.A. 1997) (stating
that “decisions of various courts interpret an ‘appraisal’ clause lacking a specific
time for demand to be made to require that the demand be made within a
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‘reasonable” time.”); Castanon v. Safeco Ins. Co. of Ind., No. 5:21-CV-00851-XR,
2022 U.S. District LEXIS 121483, at *4 (W.D. Tex. Jul. 8, 2022) (stating that
“[w]hen an insurance policy is silent regarding the deadline to invoke an appraisal
clause, the demand for an appraisal must be made within a reasonable time.”).
The reasonableness of an appraisal delay is measured from the point of impasse.
See In re Universal Underwriters of Tex. Ins. Co., 345 S.W.3d 404, 408 (Tex.
2011). In some circumstances such impasse may not happen until a complaint is
filed. Terra Indus., 981 F. Supp. at 598 (stating that “[t]hus, the policy contemplates
a demand for appraisal at any time after an impasse has been reached. Such a
condition may not occur until suit is filed . . . when appraisal is not demanded until
after suit is filed, the question is whether the demand for appraisal was waived or
instead was made within a reasonable time after impasse was reached.”).
The Court’s analysis thus commences with a determination of when the
parties reached an impasse and whether Lloyd’s demanded an appraisal within a
reasonable time thereafter. An impasse is defined as “a point in negotiations in
which agreement cannot be reached.” Impasse, Black’s Law Dictionary (10th ed.
2014). It is “that point at which the parties have exhausted the prospects of
concluding an agreement and further discussions would be fruitless.” In other
words, “an impasse is a state of facts in which the parties, despite the best of faith,
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are simply deadlocked.” Laborers Health & Welfare Trust Fund v. Advanced
Lightweight Concrete Co., 484 U.S. 539, 543, n 5 (1988). Mere disagreement or
dispute as to the amount of loss does not equate to an impasse. This is
particularly so where negotiations are ongoing. See In re Universal Underwriters
of Tex. Ins. Co., 345 S.W. at 408 (stating that “[a]n impasse is not the same as a
disagreement about the amount of loss. Ongoing negotiations, even when the
parties disagree, do not trigger a party's obligation to demand appraisal.").
Further, it would be unfair to charge a party with delay in demanding appraisal
where they are unaware that the other party no longer wishes to negotiate or where
one party reasonably believes a settlement has been reached. As such, an
impasse occurs only when there is a mutual understanding that one or both parties
are no longer willing to pursue settlement. Here, the parties differ as to when, as
a matter of law, an impasse occurred. Based on the pertinent undisputed facts,
the Court will determine the point of impasse as to each plaintiff.
A) GIBSON (SX-2019-CV-063)
Plaintiff Hope Gibson submitted her proof of loss to Lloyd’s on April 27, 2018
in the amount of $257,000. Lloyd’s Notice of Compliance with Ct’s Order 1; Pl.’s
Suppl. Br. Re Waiver: Gibson Affirmation Ex. A; Proof of Loss Ex. 2. Lloyd’s
estimated her loss at $110,617. Mot. to Compel 3. Gibson now claims the parties
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reached “an impasse on June 11, 2018 given the discrepancy in the claims.” Pl.’s
Suppl. Br. Re Waiver 16 (19-063). As stated above, however, a mere discrepancy
in claims, as a matter of law, does not equate to an impasse. In fact, Plaintiff
concedes the parties communicated numerous times between June 11, 2018 and
March 18, 2019 but Defendant never demanded an appraisal. Id. By this
concession, Plaintiff demonstrates there was no impasse until at least March 18,
2019. This is consistent with the position taken in her initial opposition to Lloyd’s
motion. Plaintiff there asserted she “filed the instant suit once it was clear that
negotiations between Plaintiff and Defendants had reached an impasse.” Opp. to
Mot. to Compel 5 (19-063). By this assertion, Gibson conceded an impasse
occurred around February 21, 2019, the date she filed her complaint. See Compl.
(19-063). Consistent with this concession, Lloyd’s submitted evidence of
electronic mail communications, between Gibson’s agent and Lloyd’s, from 2018
through February 27, 2019, regarding her loss claim. Reply in Supp. of Mot. to
Compel: E-mails Ex. C, at 1 – 5 (19-063). On January 21 2019, Gibson’s adjuster
advised Lloyd’s he was waiting to review a couple of matters. Id. at 1 – 2. On
February 27, 2019, Lloyd’s adjuster inquired from Gibson’s adjuster whether they
were in a position to submit a revised claim. Id. at 1. Gibson’s adjuster also
affirmed that “[b]etween June 11, 2018 and March 18, 2019 I communicated
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numerous times directly with Thomas Innocenti to adjust the loss . . .” Pl.’s Br. Re
Waiver: Scarlett Affirmation Ex. B, at 2 (19-063). Under these circumstances, it
is evident the parties were engaged in negotiations from at least April 27, 2018
(when proof of loss was submitted) until around March 2019. Their mere
disagreement or dispute as to the amount of loss did not constitute an impasse.
In light of these uncontested facts regarding the parties’ ongoing
negotiations, this Court concludes that no impasse occurred until Gibson served
notice of her complaint upon Lloyd’s on April 1, 2019. Such service constituted
the first clear signal that Gibson was no longer willing to negotiate, and an
agreement could not be reached. Lloyd’s filed its appraisal demand 29 days later
on April 30, 2019. The timing of such demand is not unreasonable. Under the
circumstances Lloyd’s did not intentionally relinquish its right to demand appraisal.
B) ODOM (SX-2019-CV-219)
Plaintiffs Noyl and Kelly Odom submitted their proof of loss to Lloyd’s on
April 25, 2018 in the amount of $378,500. Pl.’s Suppl. Br. Re. Waiver: Odom
Affirmation Ex. A; Proof of Loss Ex. 2 (19-219). Six months later, on October 31,
2018, they submitted a revised proof of loss in the amount of $245,801 (including
$10,000 for personal property loss). Lloyd’s Resp. to Ct.’s Order: Proof of Loss Ex.
M (19-219). Lloyd’s issued payment of $245,801 on or about December 4, 2018.
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Id. Ex. N (checks); Pl.’s Suppl. Br. Re Waiver: Odom Affirmation Ex. A, at 2 (19-
219). The Odoms now claim the parties “reached an impasse when Plaintiff
rejected Defendant’s estimate of loss/settlement offer” presumably after Lloyd’s
submitted their settlement offer on October 17, 2018. Pl.’s Suppl. Br. Re Waiver
17 (19-219). They further contend their revised proof of loss represented a partial
payment. Id. The Proof of Loss they executed however, states that the $245,801
figure represents “the Whole Loss and Damage.” See Lloyd’s Resp. to Ct.’s Order
Ex. M. Further, in their initial opposition to Lloyd’s motion, the Odoms asserted
they “filed the instant suit once it was clear that negotiations between Plaintiff and
Defendants had reached an impasse.” Opp. to Mot. to Compel 5 (19-219). By this
assertion they conceded an impasse occurred around May 14, 2019, the date they
filed their complaint. See Compl. (19-219).
Lloyd’s asserts there was no communication nor dispute between the parties
after payment was tendered in December 2018. Lloyd’s Resp. to Ct.’s Order 4 – 5
(SX-2019-MC-069). It is noteworthy that the Odoms admit “[o]n or about
December 4, 2018, Plaintiffs and Defendants reached an initial settlement of
$217,376.12 . . . but Plaintiffs were always clear that this amount was unacceptable
and that Plaintiff’s losses far exceeded Defendant’s settlement offer.” Pl.’s Suppl.
Br. Re Waiver 4 (19-219). This assertion is inconsistent with their revised proof
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of loss which indicates “The Whole Loss and Damage was . . . $245,801.” Lloyd’s
Resp. to Ct.’s Order: Proof of Loss Ex. M (19-219). The Odoms also rely on a
statement by Lloyd’s adjuster that they should file suit to reach a resolution given
the clear dispute. Id. at 5. Such statement, the Court concludes, does not
establish an impasse particularly since the Odoms subsequently accepted Lloyd’s
settlement amount.
In light of these facts the Court concludes that no impasse was evident until
the Odoms served their complaint upon Lloyd’s on June 3, 2019. Such service
constituted the first clear signal that an irreconcilable dispute existed between the
parties. Lloyd’s filed its appraisal demand 39 days later on July 12, 2019. The
timing of such demand is not unreasonable. Under the circumstances Lloyd’s did
not intentionally relinquish its right to demand appraisal.
C) FANELLI (SX-2019-CV-222)
Plaintiffs Daniel and Beatrix Fanelli submitted an initial proof of loss to
Lloyd’s on November 24, 2017, in the amount of $159,160. Pl.’s Suppl. Br. Re
Waiver: Fanelli Affirmation 2 (19-222). On July 5, 2018, they submitted a revised
proof of loss in the amount of $386,619. Id.; Scarlett Affirmation Ex. B, at 2. On
August ,13, 2018, the Fanellis accepted a partial payment of $99,251. Lloyd’s
Notice of Compliance with Ct.’s Order 2 (SX-2019-MC-069); Pl.’s Supp. Br. Re
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Waiver: Fanelli Affirmation Ex. A, at 2.
The Fanellis now claim “Defendants clearly reached an impasse when
Plaintiffs rejected Defendants’ estimate of loss/settlement offer and Defendants
agreed to release the undisputed settlement funds . . . There was an obvious and
certain dispute on June 25, 2018, as to the coverage position and amount of loss
given that PCC and Defendants agreed that the undisputed amount should be
released.” Pl.’s Suppl. Br. Re Waiver 16 (19-222). Their mere disagreement does
not constitute an impasse. Further, in their initial opposition to Lloyd’s motion to
compel appraisal, the Fanellis asserted they “filed the instant suit once it was clear
that negotiations between Plaintiff and Defendants had reached an impasse.” Opp.
to Mot. to Compel 5 (19-222). By this assertion, the Fanellis conceded an
impasse occurred around May 14, 2019, the date they filed their complaint. See
Compl. (19-222). In fact, the parties were in discussions even after the Fanellis
acceptance of partial payment on August 13, 2018. Their adjuster affirmed that
between June 15, 2018 and October 27, 2018, he communicated numerous times
with Lloyd’s agents regarding Fanellis’ loss claim. Pl.’s Suppl. Br. Re Waiver:
Scarlett Affirmation Ex. B, at 2 (19-222). Under these circumstances, nothing
presented establishes that further negotiations would have be futile such that an
impasse had been reached.
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In light of these uncontested facts, this Court concludes that no impasse
occurred until the Fanellis served notice of their complaint upon Lloyd’s on July 5,
2019. Such service constituted the first clear signal that they were no longer
willing to negotiate, and an agreement could not be reached. Lloyd’s filed its
appraisal demand 4 days later on July 9, 2019. The timing of such demand is not
unreasonable. Under the circumstances Lloyd’s did not intentionally relinquish its
right to demand appraisal.
D) JOHANNES (SX-2019-CV-239)
Plaintiff Rita N. Johannes submitted her loss estimate of $122,273 to Lloyd’s
in January 2018. Pl.’s Suppl. Br. Re Waiver: Johannes Affirmation Ex A, at 2 (19-
239),. She alleges Lloyd’s paid her $43,577 for her loss on January 9, 2018. 92 Id.
at 2. Johannes now claims the parties “reached an impasse when Defendants
rejected Plaintiff’s estimate after inspecting her property and failed to demand an
appraisal . . . Plaintiff provided her estimate to Defendants and, in or around
January 2018, Defendants sent Plaintiff their estimate/counter-offer for $43,577.07
– nearly a third of Plaintiff’s estimate-and told her she was not entitled to anything
more. The impasse was apparent because Defendants rejected Plaintiff’s
92
Lloyd’s alleges they paid Johannes $60,156. However, the difference is immaterial for
purposes of the instant motion.
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estimate and countered for only one-third of the estimate provided.” Pl.’s Suppl.
Br. Re Waiver 15 (19-239). However, in her initial opposition to Lloyd’s motion to
compel, Johannes stated she “filed the instant suit once it was clear that Lloyds
never intended to live up to its obligations . . . Defendant rejected these documents
submitted by Plaintiff. As such, negotiations had clearly reached an impasse, and
Plaintiff had no choice but to file suit.” Opp. to Mot. to Compel 6 – 7 (19-239). By
this assertion Johannes conceded an impasse occurred around May 30, 2019, the
date she filed her complaint. See Compl. (19-239). Lloyd’s claim Johannes
concluded her claim adjustment upon signing a proof of loss and accepting
payment on January 19, 2018. Under these circumstances, it is evident the
parties were engaged in negotiations up until payment on January 19, 2018.
Lloyd’s mere rejection of Johannes’ loss estimate did not constitute an impasse.
In light of these uncontested facts, this Court concludes that no impasse
occurred until Johannes served notice of her complaint upon Lloyd’s on June 28,
2019. Such service constituted the first clear signal that Johannes was no longer
willing to negotiate, and an agreement could not be reached. Lloyd’s filed its
appraisal demand approximately 5 months later on November 19, 2019. The
timing of such demand is not unreasonable. Under the circumstances Lloyd’s did
not intentionally relinquish its right to demand appraisal.
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E) PRESCOTT (SX-2019-CV-258)
Plaintiff Traney Prescott submitted her proof of loss estimate, dated
November 4, 2017, to Lloyd’s in the amount of $39,020. Lloyd’s Resp. to Ct.’s
Order Ex. A (Estimate) (SX-2019-MC-069). Lloyd’s estimated her loss at $30,858
(less a $5,750 deductible) Id. at 2 Ex. B (Settlement Calculations). Prescott
executed a Form of Acceptance on November 18, 2017 agreeing that the amount
of her loss was $25,108 (30,858 – 5,750) in full and final discharge of her claim.
Lloyd’s Resp. to Ct.’s Order: Settlement Calculations Ex. B; Form of Acceptance
Ex. C (SX-2019-MC-069). She accepted payment in the amount of the $25,108
on January 19, 2018. Pl.’s Suppl. Br. Re Waiver: Prescott Affirmation Ex. A, at 2.
Prescott claims there was a clear impasse on January 19, 2018, when Lloyd’s
adjuster told her to take their offer ($25,108) or she would get nothing. Pl.’s Suppl.
Br. Re Waiver 14 (19-258). She contends Lloyd’s knew she demanded more than
they offered as she had told them their amount was insufficient. Lloyd’s assert
that no communication occurred between the parties from the time of payment to
the date Prescott served her lawsuit on Lloyd’s (i.e., on July 1, 2019); and that the
parties had reached an agreement. Lloyd’s Resp. to Ct.’s Order 2, 5 (SX-2019-
MC-069). This Court finds that Prescott’s execution of the Form of Acceptance
undermines her claim the parties reached an impasse as it is indicative of an intent
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not to further negotiate nor contest Lloyd’s offer.
In light of these uncontested facts, this Court concludes that no impasse
occurred until Prescott served notice of her complaint upon Lloyd’s on July 1,
2019. Such service constituted the first clear signal that Prescott was no longer
willing to negotiate, and an agreement had not been reached. Lloyd’s filed its
appraisal demand 21 days later on July 22, 2019. The timing of such demand is
not unreasonable. Under the circumstances Lloyd’s did not intentionally
relinquish its right to demand appraisal.
F) DONAIE (SX-2019-CV-307)
Plaintiff Benedicta Donaie submitted her loss estimate of $230,000 to
Lloyd’s at some point in 2018. Pl.’s Suppl. Br. Re Waiver: Donaie Affirmation Ex.
A, at 2 (19-307); Mot. to Compel 2 (19-307). Lloyd’s determined her loss to be
$189,100. Id. On May 1, 2018, Lloyd’s paid Donaie the amount it determined her
loss to be. Id. at 3. Donaie, in her opposition, claimed “Plaintiff filed the instant
suit once it was clear that Lloyd’s never intended to live up to its obligations.” Opp.
to Mot. to Compel 7 (19-307). This assertion implies any impasse occurred
around July 16, 2019, when she filed her lawsuit. However, Donaie now claims
“[d]efendants clearly reached an impasse when Defendants rejected Plaintiff’s
estimate after inspecting her property and failed to demand an appraisal.” Pl.’s
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Suppl. Br. Re Waiver 16. The inspection, she contends occurred in November
2018. She continues that “the impasse was apparent from the fact that
Defendant’s own agent told Plaintiff hat her estimate was too high.” Id. Here, the
parties clearly continued to communicate through at least November 2018 after
Plaintiff received partial payment. Lloyd’s claim the first notice they had that
Plaintiff was unhappy with the negotiations was when they were served with the
lawsuit. Reply in Supp. of Mot. to Compel 10 (19-307).
In light of these uncontested facts, this Court concludes that no impasse
occurred until Donaie served notice of her complaint upon Lloyd’s on July 29,
2019. Such service constituted the first clear signal that she was no longer willing
to negotiate, and an agreement had not been reached. Lloyd’s filed its appraisal
demand about 4 months later on November 20, 2019. The timing of such demand
is not unreasonable. Under the circumstances, Lloyd’s did not intentionally
relinquish its right to demand appraisal.
G) NICHOLAS (SX-2019-CV-354)
Plaintiff Charlesworth H. Nicholas submitted his proof of loss estimate, dated
November 3, 2017, to Lloyd’s in the amount of $23,820. Pl.’s Suppl. Br. Re Waiver:
Nicholas Affirmation Ex. A, at 2; Lloyd’s Resp. to Ct.’s Order: Estimate Ex. I (SX-
2019-MC-069). Lloyd’s estimated his loss at $17,443 (which exceeded the
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$19,500 deductible). Lloyd’s Resp. to Ct.’s Order 3 (SX-2019-MC-069). Nicholas
executed a Form of Acceptance on November 1, 2018 agreeing that the amount
of his loss was $6,976 in full and final discharge of his claim. Lloyd’s Resp. to Ct.’s
Order: Form of Acceptance Ex. J (SX-2019-MC-069). As Lloyd’s determined that
Nicholas’ deductible exceeded its calculated property loss, they made no payment
for his property (dwelling) loss. Hence the $6,976 payment represented personal
property loss only. Nicholas collected that payment made by check dated
January 18, 2018. Pl.’s. Suppl. Br. Re Waiver: Nicholas Affirmation Ex. A, at 2;
Lloyd’s Resp. to Court Order: Ex. J (Check).
Despite the Court’s order requiring submissions regarding the parties
contention as to when an impasse occurred, Nicholas did not specify such a date.
He simply claims Lloyd’s waived its right to demand appraisal when it denied his
claim without demanding appraisal. Pl.’s. Suppl. Br. Re Waiver 14. Presumably,
this denial occurred in early 2018. Mere denial of the amount of an insured’s loss
claim, however, does not equate to an impasse.
Lloyd’s assert no communication occurred between the parties from the time
of payment to when Nicholas served his complaint on Lloyd’s (i.e., on September
10, 2019); and that the parties had reached an agreement. Lloyd’s Resp. to Ct.’s
Order 4 (SX-2019-MC-069). This Court finds that Nicholas’ execution of the Form
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of Acceptance undermines his claim that the parties reached an impasse as it is
indicative of an intent not to further negotiate nor contest Lloyd’s offer.
In light of these uncontested facts, this Court concludes that no impasse
occurred until Nicholas served notice of her complaint upon Lloyd’s on September
10, 2019. Such service constituted the first clear signal that Nicholas was no
longer willing to negotiate, and an agreement had not been reached. Lloyd’s filed
its appraisal demand 47 days later on November 10, 2019. The timing of such
demand is not unreasonable. Under the circumstances Lloyd’s did not
intentionally relinquish its right to demand appraisal.
H) MARTIN (SX-2019-CV-433)
Plaintiff Avin A. Martin submitted his proof of loss estimate on July 27, 2018
to Lloyd’s in the amount of $166,315. Pl.’s Suppl. Br. Re Waiver 4; Martin
Affirmation Ex. A, at 2; Mot. to Compel 2. On or about January 24, 2019, Lloyd’s
offered Martin $11,250 to settle his claim. Mot. to Compel 3; Pl.’s Suppl. Br. Re
Waiver: Martin Affirmation Ex. A, at 2. After further discussions, Lloyd’s revised
its offer to $70,000. Mot. to Compel 3; Pl.’s Suppl. Br. Re Waiver: Martin Affirmation
Ex. A, at 2. Martin signed a release on June 17, 2019 and received payment in
the amount of $70,000 on July 17, 2019. Reply in Supp. of Mot. to Compel 4; Pl.’s
Suppl. Br. Re Waiver: Martin Affirmation Ex. A, at 2.
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Despite the Court’s order requiring submissions regarding the date the
parties contend an impasse occurred, Martin did not specify such a date.
However, in his initial opposition to the motion to compel, he asserted that he “filed
the instant suit once it was clear that Lloyd’s never intended to live up to its
obligations.” Opp. to Mot. to Compel 5. His complaint was filed on September 6,
2019. Consistent with this assertion, Lloyd’s contends the first notice it received
regarding Martin’s unhappiness with the negotiations was when it was served with
the instant lawsuit. Reply in Supp. of Mot. to Compel 10.
In light of these uncontested facts, this Court concludes that no impasse
occurred until Martin served notice of his complaint upon Lloyd’s on December 11,
2019. Such service constituted the first clear signal that an agreement had not
been reached. Lloyd’s filed its appraisal demand 56 days later on February 5,
2020. The timing of such demand is not unreasonable. Under the
circumstances Lloyd’s did not intentionally relinquish its right to demand appraisal.
I) JACOBS (SX-2019-CV-442)
Plaintiff Monica Y. Jacobs submitted her proof of loss estimate in February
2018 to Lloyd’s in the amount of $45,937. Pl.’s Suppl. Br. Re Waiver 4; Jacobs
Affirmation Ex. A, at 2; Mot. to Compel 2. Lloyd’s calculated her dwelling loss at
$30,998 and paid her $24,698 (after the deductible). Mot. to Compel 3; Pl.’s Suppl.
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Br. Re Waiver 4; Jacobs Affirmation Ex. A, at 2.
Despite the Court’s order requiring submissions regarding the date the
parties contend an impasse occurred, Jacobs did not specify such a date.
Instead, she simply states “Defendants clearly reached an impasse when
Defendants rejected Plaintiff’s estimate after inspecting her property and failed to
demand an appraisal.” Pl.’s Suppl. Br. Re Waiver 15. Mere rejection of an offer,
however, does not equate to an impasse. Plaintiff further contends that “the
impasse was apparent from the fact that Defendants’ estimate was half of Plaintiff’s
estimate and did not include any structural damage.” Id. No rule of law supports
the contention that a large disparity in estimates, without more, constitutes an
impasse.
In Jacobs’ initial opposition to the motion to compel, she asserted that
“Defendant rejected these documents submitted by Plaintiff. As such,
negotiations had clearly reached an impasse, and Plaintiff had no choice but to file
suit-foreclosing Defendant’s ability to request an appraisal after the fact.” Opp. to
Mot. to Compel 7. Jacobs also asserted that “Plaintiff filed the instant suit once it
was clear that Lloyd’s never intended to live up to its obligations.” Her complaint
was filed on September 10, 2019. Consistent with this assertion, Lloyd’s
contends the first notice it received regarding Jacobs’ unhappiness with the
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negotiations was when they were served with her lawsuit. Reply in Supp. of Mot.
to Compel 10. In light of these uncontested facts, this Court concludes that no
impasse occurred until Jacobs served notice of her complaint upon Lloyd’s on
September 27, 2019. Such service constituted the first clear signal that an
agreement had not been reached. Lloyd’s filed its appraisal demand 35 days later
on November 1, 2019,. The timing of such demand is not unreasonable. Under
the circumstances Lloyd’s did not intentionally relinquish its right to demand
appraisal.
J) RODGERS (SX-2019-CV-486)
Plaintiffs Roy A. and Deborah Rodgers submitted their loss estimate to
Lloyd’s on October 16, 2017 in the amount of $166,160. Pl.’s Suppl. Br. Re.
Waiver: Rodgers Affirmation Ex. A; Construction Cost Estimated Ex. 1 (dated
10/16/17) (19-486); Lloyd’s Resp. to Ct.’s Order 3. Lloyd’s calculated Plaintiffs’
loss at $75,091 and issued a check for $54,341 after the deductible. Pl.’s Suppl.
Br. Re. Waiver: Rodgers Affirmation Ex. A, at 1 (19-486); Lloyd’s Resp. to Ct.’s
Order: Check Payment Description Ex. G, 04/19/22 (SX-2019-MC-069). Plaintiffs
assert the check sat in Lloyd’s office for some time and they accepted it in early
2018 because they needed the funds to repair their home. Pl.’s Suppl. Br. Re.
Waiver: Rodgers Affirmation Ex. A, at 2 (19-486).
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The Rodgers now claim the parties “reached an impasse when Plaintiff
rejected Defendant’s estimate of loss/settlement offer” in November 2017. Pl.’s
Suppl. Br. Re Waiver 15 (19-486) (emphasis supplied). They thus suggest an
impasse occurred a mere two months after the hurricane. Mere rejection of an
insured’s settlement offer, without more, does not constitute an impasse. Lloyd’s
assert the Rodgers accepted its offer after discussions and memorialized it in a
Form of Acceptance. Lloyd’s Resp. to Ct.’s Order 3. Their first notice of an
ongoing dispute was when the Rodgers served with their complaint on December
23, 2019. Id. Consistent with this contention, the Court notes that in their initial
opposition to Lloyd’s motion to compel, the Rodgers stated “after over two years
of delays, refusal to timely pay per the V.I. Insurance Code, 22 V.I.C. § 226, and
bad faith tender of a reduced amount of loss, Plaintiffs were forced to file a lawsuit
against the insures for damages.” Opp. to Mot. to Compel 3. This assertion
clearly demonstrates the parties were engaged in discussions for over two years
(way past the November 17, 2017 date contended by the Rodgers) after the
hurricane.
In light of these facts the Court concludes that no impasse was evident until
the Rodgers served their complaint upon Lloyd’s on December 23, 2019. Such
service constituted the first clear signal that an irreconcilable dispute existed
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between the parties. Lloyd’s filed its appraisal demand 40 days later on February
4, 2020. The timing of such demand is not unreasonable. Under the
circumstances, Lloyd’s did not intentionally relinquish its right to demand appraisal.
4) No Prejudice Resulted From Any Delay In Invoking Appraisal.
Even if Lloyd’s had unreasonably delayed invocation of appraisal, this Court
cannot find a waiver of such right absent a showing that prejudice to Plaintiffs
resulted from the delay. See Allen v. Hovensa, LLC, 59 V.I. 430, 437 (V.I. 2013)
(stating in the arbitration context, “[a] party waives the right to compel arbitration
when it delays invoking the right and prejudice results from the delay.”) See also
In re Universal Underwriters of Tex. Ins. Co., 345 S.W.3d at 411 (stating, “[e]ven if
Universal had waited to request appraisal, mere delay is not enough to find
waiver; a party must show that it has been prejudiced. “ In determining prejudice,
this Court considers, among other factors, the timeliness of Lloyd’s motion and the
extent to which the parties have engaged in discovery and litigation. Id.
Plaintiffs contend that they are not required to show prejudice in order to
establish waiver. See, e.g., Pl.’s Suppl. Br. Re Waiver 3 (19-063). In support, they
cite the Virgin Islands Supreme Court’s opinion in Suid v. Law Office of Karin A.
Bentz, P.C., 75 V.I. 272 (V.I. 2021). Their reliance thereon is misplaced. There,
the Virgin Islands Supreme Court held that a mediation clause in an arbitration
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agreement had been waived when the defendant took the inconsistent action of
moving to compel only arbitration. The parties’ arbitration agreement provided for
them to mediate any dispute before arbitration. The defendant, however, did not
seek to compel mediation. Instead, it sought to compel only arbitration. The
Supreme Court held the defendant “waived any protections afforded by the
mediation clause in the agreement by taking the inconsistent action of moving the
Superior Court to compel only arbitration.” Id. at 279. The instant facts are clearly
distinguishable. The only prerequisite here for seeking appraisal is a condition
that the parties cannot agree to the amount of loss. Lloyd’s, upon perceiving that
circumstance, moved to compel appraisal. It took no action inconsistent with
seeking an appraisal. Suid is thus inapposite to Plaintiffs’ case. It is not, as here,
a case involving the contention that a party delayed invoking the right to appraisal.
Whyte, 69 V.I. 766 (stating, “We have said ‘a party waives the right to compel
arbitration when it delays invoking the right and prejudice results from the delay’.”).
Lloyd’s did not, as in Suid, take any inconsistent action and hence, Suid is
inapposite. Further, nowhere in Suid does the Supreme Court even discuss the
issue of prejudice in regard to waiver. Plaintiff also cite other cases to support
their position which this Court finds irrelevant and thus will not address.
Despite arguing they need not prove prejudice, Plaintiffs nevertheless
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contend the cost of appraisal will impose too onerous a burden upon them. See,
e.g., Opp. to Mot to Compel 5 (19-354). However, such cost was anticipated
when Plaintiffs executed their insurance contracts and is not cognizable prejudice
for purposes of the waiver analysis. Here, Lloyd’s demanded appraisal within two
to five months after service of Plaintiffs’ complaints. Except for Martin, Lloyd’s
filed its motion to compel within days of its demand. (Martin’s was filed six months
after). A review of the dockets reveals little if any discovery has been conducted
and no scheduling order has been issued. In sum, at the time Lloyd’s filed its
motions to compel, the litigation was in its infancy stage and hence Plaintiffs are
hard pressed to establish any prejudice resulting from the motions to compel. See
Whyte, 69 V.I. at 767 – 68 (where court found insufficient prejudice to establish
waiver where defendant filed a motion to compel 18 months after commencement
of lawsuit; did not respond to discovery requests; provide discovery; and
consented to scheduling order.); Allen, 58 V.I. at 437 (finding insufficient prejudice
where the defendant delayed filing its motion to compel for two years.).
Accordingly, this Court finds that Plaintiffs have failed to meet their burden to prove
they suffered any prejudice which resulted from any delay in Defendants invoking
appraisal.
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CONCLUSION
For the reasons mentioned above, this Court concludes that: 1) Lloyd’s
properly invoked the parties’ appraisal provision within a reasonable time after it
became evident that the parties failed to agree on the amount of their hurricane-
related loss; and 2) no cognizable prejudice to Plaintiffs resulted from any delay in
Lloyd’s appraisal demand. As such, there was no waiver. Further, an appraisal
will help determine the merits and strength of other issues beyond the loss. For
example, if an appraisal estimate matches (or is less than) Lloyd’s calculated loss,
it will impact the merits of the plaintiff’s breach of contract and related claims and
may well facilitate resolution thereof. Accordingly, the Court will grant Lloyd’s
motions to compel appraisal. An order consistent herewith will follow.
DATE: February 6, 2026
ALPHONSO G. ANDREWS, JR.
Superior Court Judge
Attest:
TAMARA CHARLES
CLERK OF THE COURT
________________________
COURT CLERK III
02/06/2026
___________________________
DATE