FOR OFFICIAL PUBLICATION
SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
HESS OIL VIRGIN ISLANDS CORPORATION ) CASE NO SX 05 CV 165
)
Plaintiff ) COMPLEX LITIGATION DIVISION
)
V )
)
FLUOR DANIEL, individually and as successor in )
interest to FLUOR ENGINEERS AND CONSTRUCTORS )
INC FLUOR ENGINEERS AND CONSTRUCTORS INC )
FLOUR CORPORATION TUTHILL CORPORATION )
individually and as successor in interest to COPPUS )
MURRAY GROUP and/or COPPUS TURBINES )
ALLTITE GASKET COMPANY JOHN CRANE f/k/a )
CRANE PACKING COMPANY RUBBER AND GASKET )
COMPANY OF P R AUSTIN INDUSTRIAL INC f/k/a )
TECHNICAL MAINTENANCE INC AUSTIN TM] INC )
and/or AUSTIN INDUSTRIES KELLOGG BROWN & )
ROOT, a Halliburton Company, individually and as )
successor in interest to BROWN & ROOT OVERSEAS )
INC CB] SERVICES INC INSTRUMENTATION & )
ELECTRICAL SYSTEMS SERVICES BORN INC f/k/a )
BORN ENGINEERING COMPANY SAINT GOBAIN )
ADVANCED CERAMICS, as successor in interest to )
CARBORUNDUM CORPORATION CONTROL )
ASSOCIATES THE DARCOID COMPANY INC a/k/a )
DARCOID RUBBER COMPANY GERARD PACKING 8: )
BELTING CORPORATION INSULATION )
DISTRIBUTORS CORPORATION ISLAND SUPPLY )
COMPANY RESAL INCORPORATED PARSONS )
INFRASTRUCTURE 8: TECHNOLOGY GROUP as )
successor in interest to THE RALPH M PARSONS )
COMPANY STERLING PACKING & GASKET DIVISION )
STANDCO INDUSTRIES INC STRAHMAN VALVES )
INC CON RAD a division of U S INDUSTRIES P H )
SALES INCORPORATED a/k/a P H SALES COMPANY )
JOHN ZINK COMPANY a/k/a lOI-IN ZINK COMPANY )
LLC ZINCLAHOMA INC 3M a/k/a MINNESOTA )
MINING 8:. MANUFACTURING COMPANY 3M PUERTO )
RICO INC VIACOM INC f/k/a WESTINGHOUSE )
ELECTRIC CORPORATION UNIVERSAL OIL )
PRODUCTS a/k/a UOP CDI CORPORATION as )
successor in interest to CDI ENGINEERING )
SOLUTIONS CDI ENGINEERING GROUP CDI )
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Case No SX 05 CV 165
Memorandum Opinion
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ENGINEERING INC CDI STUBBS OVERBECK )
STUBBS OVERBECK 8: ASSOCIATES INC CDI )
ENGINEERING SOLUTIONS as successor in interest )
to CDI ENGINEERING GROUP CDI ENGINEERING )
INC CDI STUBBS OVERBECK STUBBS OVERBECK & )
ASSOCIATES INC CDI ENGINEERING GROUP as )
successor in interest to CDI ENGINEERING INC CDI )
STUBBS OVERBECK STUBBS OVERBECK & ]
ASSOCIATES INC BROWN FINTUBE COMPANY )
KOCH ENGINEERING C0 , as successor in interest to )
BROWN FINTUBE COMPANY OHMSTEDE MACHINE )
WORKS a/k/a OHMSTEDE INC BROS )
INCORPORATED a division of AMERICAN HOIST )
AND DERRICK CERTAINTEED PRODUCTS )
CORPORATION ELLIOTT COMPANY a division of )
CARRIER FOSTER WHEELER CORPORATION )
individually and as successor in interest to FORTY )
EIGHT INSULATIONS INC GARLOCK INC )
LOCKHEED MARTIN CORPORATION individually )
and as successor in interest to MARTIN MARIETTA )
CORPORATION MARTIN MARIETTA ALUMINUM )
INC and MARTIN MARIETTA ALUMINUM )
PROPERTIES INC MARTIN MARIETTA )
CORPORATION, individually and as successor in )
interest to MARTIN MARIETTA ALUMINUM INC and )
MARTIN MARIETTA ALUMINUM PROPERTIES INC )
MARTIN MARIETTA MATERIALS INC individually )
and as successor in interest to MARTIN MARIETTA )
CORPORATION MARTIN MARIETTA ALUMINUM )
INC and MARTIN MARIETTA ALUMINUM )
PROPERTIES INC PACIFIC VALVES RARITAN )
SUPPLY COMPANY, individually and as successor in )
interest to BRIDGE SUPPLY COMPANY UNION PUMP )
COMPANY ST CROIX COMPRESSION AND )
ROTATING EQUIPMENT SERVICES IOHN DOES/JANE )
DOES ET ALS and/or IOHN DOE INC ET ALS )
I
Defendants )
I
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Cite as 2020 VI Super 50
Appearances
CARL A BECKSTEDT III ESQ
Beckstedt 8: Associates
Christiansted VI 00820
For Hess Oil Virgin Islands Corporation
JOHN H BENHAM ESQ
Law Office of John H Benham, P C
St Thomas VI 00801
For FIuor Daniel Fluor Engineers & Constructors, Fluor Corporation, Gerard Packing & Belting
Corporation Amdura Corporation, and Standco Industries, Inc
W MARK WILCZYNSKI ESQ
Law Office of W Mark Wilczynski, P C
St Thomas VI 00804
Forjohn Cranef/k/a Crane Packing Company
IAMES L HYMES I}! ESQ
Law Office ofIames L Hymes P C
St Thomas VI 00802
For Saint Gobam Advanced Ceramlcs, Viacom Inc f/k/a Westinghouse Electric Corporation, and
Foster Wheeler Corporation
MICHAEL] SANFORD ESQ
RYAN C STUTZMAN ESQ
Sanford, Amerling 8: Associates
Christiansted V! 00820
For Virgin Islands Industrial Maintenance Corporation Riggers & Erectors International, Inc, Union
Pump Inc Resal, Inc, Garlock, Inc,Austm Industrial Inc f/k/a TechmcalMamtenance Inc Austin
TM] Inc and/orAustm Industries and PH Sales Inc
MARK D HODGE ESQ
Hodge & Hodge
St Thomas VI 00802
For CBI Serwces Inc and Parsons Infrastructure & Technology Group, Inc
BERNARD C PATTIE ESQ
Law Offices of Bernard C Pattie, P C
Christiansted V1 00820
For CD1 Corporation CD1 Engineering Group, CD1 Engineering, Inc, CDI Stubbs Overbeck Stubbs
Overbeck & Assocmtes Inc CD1 Engineering Solutions Stubbs Overbeck & Assocmtes Inc
Hess Oil VI Corp v Fluor Daniel er a]
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RICHARD H HUNTER ESQ
Hunter & Cole
Christiansted V100820
For Raritan Supply Company Tuthill Corporation Born Inc, Universal Oil Products, Elliott Company
Strahman Valves Inc and Certain Teed Products Corporation
SIMONE RD FRANCIS ESQ
SOFIA L MITCHELL ESQ
Ogletree, Deakins Nash, Smoak & Stewart, LLC
St Thomas V100802
For Lockheed Martin Corporation Martin Marietta Corporation, 3M, and 3M Puerto Rico Inc
EUGENIO W A GEIGEL SIMOUNET ESQ
GS Law Offices P C
Gallows Bay VI 00824
For Rubber & Gasket Co ofPuerto Rico Inc
DOUGLAS L CAPDEVILLE ESQ
ALISHA UDHWANI ESQ
Law Offices of Douglas Capdeville P C
Christiansted V100822
For Alltite Gasket Company
ANDREW C SIMPSON ESQ
Law Offices of Andrew C Simpson, P C
Christiansted V100822
Forjohn Zink Company Zinclahoma, Inc, Brown Fintube Company, and Koch Engineering Company
MEMORANDuM QEMION
MOLLOY judge
111 BEFORE THE COURT are several motions to dismiss for failure to state a claim for relief, for
lack of subject matter jurisdiction, and for summary judgment Plaintiff Hess Oil Virgin Islands
Corporation [ HOVIC ] commenced this action for contribution indemnification, and breach of
contract to recoup monies paid to settle asbestos related claims asserted by 149 individuals in the
District Court ofthe Virgin islands ( District Court ) between 1997 and 2001 HOViC attached a list
of the District Court Plaintiffs and their respective case numbers to its complaint The ludicial Panel
on Multidistrict Litigation ( [PML ) eventually transferred the District Court cases to the United
States District Court for the Eastern District of Pennsylvania { Eastern District ) for coordination
under In re Asbestos Products Liability Litigation {No VI), MDL No 875 One defendant moved to
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dismiss for lack of subject matter jurisdiction claiming the Superior Court lacks jurisdiction over
contribution and indemnification claims arising out of the District Court cases Other Defendants
moved to dismiss because HOVlC was not named as a defendant in the District Court cases HOVlC
cannot seek indemnification or contribution, they assert because HOVIC was never sued by the
District Court Plaintiffs Any monies paid out were gratuitous HOVIC counters that its parent
company Amerada Hess Corporation [ Hess ) who was sued in the District Court cases is the real
party in interest in this case, and assigned its rights to HOVlC to seek contribution and
indemnification and to sue for breach of contract HOVIC s complaint does not make that allegation
however And HOVlC also contradicts itself claiming that it too is a real party in interest here
Lastly HOVlC asserts six claims in its complaint contribution contractual and common law
indemnification and breach of contract But each count concerns the claims asserted by the 149
District Court Plaintiffs So HOVIC actually asserts 149 claims for contribution, 149 claims for
common law indemnification and 149 claims for contractual indemnification in addition to its
breach of contract claims Since every defendant is named on each claim the actual number of
claims HOVIC must prove against every Defendant total over 60 000
TR For the reasons stated below this Court holds that joining multiple claims within the same
count in a complaint is improper and constitutes misjoinder Accord V I R Civ P 8(a](2] (requiring
separate designation of counts and defenses for each claim identified in the pleading ] Therefore,
the Court must sever HOVIC 3 claims The claims asserted in this case will be limited to Oliver
Abraham, the first named plaintiff on the list HOViC attached to its complaint One hundred and
forty eight severed complaints must be refiled one for each of the remaining District Court
Plaintiffs Notwithstanding the misjoinder, the Court will deny all motions insofar as they concern
Hess assignment of rights to HOVlC, grant the motions to dismiss the failure to obtain insurance
claim based on the statute of limitations but stay the dismissal pending certification of a question of
law to the Supreme Court of the Virgin islands, strike an untimely motion for summary judgment
and grant a motion to dismiss contribution and indemnification claims All other motions will be
denied without prejudice, with leave to refile once the severed complaints have been filed
1 BACKGROUND
A Federal Asbestos Tort Claims Andrew, et a! v Amerada Hess Corp , et a!
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JJ3 Between 1997 and 2001, sixteen lawsuits were filed in District Court by individuals seeking
damages for exposure to asbestos The first two lawsuits were filed on July 1 1997 1 Two more were
filed on October 22 1997 2 The fifth lawsuit was filed on February 2 1998 3 Another two cases were
filed in March 1998 4 two more in April 1998 5 three in May 1998 6 one in August 1998 7 and one in
1 The first lawsuit civil no 1997/081 was filed by Samuel Andrew Tite Baptiste James & Albina Charlemagne Kaleb 8:
Teresa Edwards Carlos 8: Maria Encarnacion Miguel A and Lydia Encarnacion Nelson M Estephane, JeanBaptiste 8:
Petronilla Francois Peter Frank Claredon & Pearline Gilbert Winston Gilbert, Mario 8: Faith Harrigan, lshmale Henry,
John 8; Elma Hunt William C & Carmen Hernandez Cliff & Martha Marshall Frederick & Aloma Peters Joseph 8:
Alejandrina Prosper Ramnarine 8: Laura Rambhajan and Alfred & Eglantine Romney The second lawsuit, civil no
1997/082, was filed by Winston & Gwendolyn Crichlow, Miguel & Iris Perez Harold & Bernice Gonzales Francis &
Christiana Guide Joseph & Cheryl Ann Narinesingh Matthew 8!. Lenore Raveneau, Miguel 8: Myrna Lopez, Mathias &
Eleanor M Roseline, Saulo 8: Juanita Saldana, and Cressy 8; Margaret St Valle
2 The third lawsuit civil no 1997/ 152, was filed by Oliver & Alexandrine Abraham Hector Delacruz Francis 8: Fediana
Edward Harris & Agnes Edwardson Victor 8: Gilberta Emanuel Ignatius Gerson, Julitan & Veronica Inglis, Simon & Ivy
Montoute Nelson F & Bernadine Figueroa, Alphonse Theophilus, Lewis & Bernadin Royer Clenthworth 8: Heslyn
Reynolds Carmello Parilla 8; Luz Celnia Christian, Melvin & Iris Caesar Samuel & Agnes Carr Frank Cadogan George
& Linda Decaille Joseph 8: Lucy Doctrine, Edgar 8; Ann Drew, Jerome & Cassandra Gill John 8!. Elma Hunt Gregoire 8:
Martina Jnofinn Gregory Joseph, Peter 8: Ronise Leriche Rupert 8!. Mariza Marcelle Hamilton Roberts Rupert Roberts,
Garnett T 8: Juana Ryan Anthony Samuel, Joseph & Susan Smith Matthew Vernege, Jules 8: Magdalene Victor Simon
Taylor Welton & Lucille Nicholas, Randolph Parker, Henreker 8L Millicent Liburd Elfred & Paula Josephat, and Stephen
Royer The fourth lawsuit, civil no 1997/153 was filed by Thomas 8: Maria Altagracia Johnhope Alphonse 8c Robina
Baptiste Ryan 8: Enid Alleyne, George 8: Marie Annette Auguste Earnest A & Cynthia Zachariah Baptist, Paul 84 Theresa
Bell Pashoon & Rosalind Boodoosingh Roy Challenger, Kenneth 8: Claudia Creese, Pierre Cuffy Willy 8L Cathrine
Decembre Benedict & Angela Eustash Rupert & Enez Francis, Charles Granger, Raphael Harrigan Paul Harris, George
8; Angela Henry, Kenrick & Margie James, Flavius 8: Rachel Joseph Adolphus & Henrietta Nelson Peter & Helena Paul
Joseph Plante Hubert 8c Anastasia Polo Roosevelt President Joseph 8: Evarista Samson, Joseph & Helena Simmonds
Marcel 8: Melsades Scotland Marcel 8: Roslyn Smith, and Olson 8: Rachael Wallace
3 The fifth lawsuit civil no 1998/010 was filed by Victor & Gilberta Emanual Dionisio Ortiz 8: Mercedes Rodriguez
Diaz Thomas 8: Martha Raphael Phillip 8: Martha Daniel, Noel & Gloria Buzebe, Peter Alexander, Henry 8: Agatha
George, Jonathon & Edna Winston Simon Taylor, Otto & Tulip Jean, Lennox Cato Joseph & Millicent Pemberton, Ivan
Campo Eustace 8: Simmia Eugene, Reynaldo & Maria Gautier, Adrien Henry Juan 1 & Nellie Munoz Sanford 8: Rosa
Xavier
4 The sixth lawsuit civil no 1998/085, was filed by Alardo Baptista & Cexjesima Moreta on March 1 1, 1998 The seventh
lawsuit, civil no 1998/088, was filed on March 17 1998 by St George Felix John Durity, Aldwyn 8: Barbara Dick, Rafael
8: Angela Saez Joseph & Isabella Serieux, Wilfred Williams Jr Oswaldo Villafane, Vaughn 8: Idona Thomas, Joseph Felix
and Matthew 8: Jennifer Joseph
5 The seventh, civil no 1998/099 and eighth lawsuits, civil no 1998/100, were filed on April 8, 1998 by Pascal
Frederick Rafeal &Angela Saez, and Wilfred Williams Jr and by David & Leonora Smith and Gorcum Trim respectively
5 The ninth lawsuit civil no 1998/118, and tenth lawsuit, civil no 1998/119 were filed on May 6, 1998 by Charles 8;
Teresa Jacob, and by Sharon Moore respectively The eleventh lawsuit civil no 1998/131 was filed on May 22 1998
by Conrad 8L Melba Williams
7 The twelfth lawsuit civil no 1998/ 189, was filed on August 25, 1998 by Fabio Caminero & Denia Altagracia
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September 1998 3 Only one case was filed in 1999, on May 27th 9 None were filed in 2000 And the
last two cases were filed on July 26, 2001 10 All sixteen lawsuits were filed by a total of 152 men who
had worked at the oil refinery owned and operated on St Croix by HOVIC at that time Many of the
workers were joined by their spouses who sued for loss of their husbands consortium While all
District Court plaintiffs asserted the same claims, they did not sue the same companies
114 For example the plaintiffs who joined Samuel Andrew in filing the first lawsuit {hereinafter
the Andrew Plaintiffs J sued Hess, Borinquen Insulation Company Inc ( Borinquen J, Raytheon
Engineers 8: Constructors inc individually and as successor to Litwin Corporation ("Litwin') and
Litwin Pan American Corporation [ Litwin Pan Am J, Owens Corning Fiberglass Corporation
Raritan Supply Company [ Raritan ), individually and as successor to Bridge Supply Company,
Madsen & Howell, Inc [ M&H ), Union Pump Company ( Union Pump ), Pittsburgh Corning
Corporation (’ Pittsburgh Corning ) individually and as successor to Unarco Industries Garlock Inc
(‘Garlock J GAP Corporation [ GAP ), individually and as successor to Ruberoid Flexitallic Gasket
Company Armstrong World Industries CertainTeed Products Corporation ( CertainTeed J, Foster
Wheeler Corporation [’Foster Wheeler'] individually and as successor to Forty Eight Insulations
Inc, 3M, Westinghouse Electric Corporation ( Westinghouse ), lngersoll Rand Corporation
( ingersoll Rand ) Elliot Company ( Elliot), Riggers 8: Erectors International Inc ( Riggers ),
Dresser Industries inc ( Dresser J, individually and as successor to Pacific Pumps, Inc, and Shell
Oil Company [ Shell ) The persons who joined Winston and Gwendolyn Crichlow [ the Crichlow
Plaintiffs ] in filing the second lawsuit as well as those who Joined Oliver and Alexandrine
Abraham ( the Abraham Plaintiffs J in filing the third lawsuit all sued the same businesses and
companies as the Andrew Plaintiffs But those persons who joined Luis and Antonia Carrion in filing
the fifteenth lawsuit [ the Carrion Plaintiffs ] sued Hess Litwin directly (not through Raytheon
purportedly as Litwin s successor) Raritan M&H Union Pump Garlock, CertainTeed
8 The thirteenth lawsuit, civil no 1998/194, was filed on September 2 1998 by Isidro 8c Patria Cruz Cabreja
9 The fourteenth lawsuit civil no 1999/ 100, was filed by Cesar 8: Carmen Iris Caraballo
10 The fifteenth lawsuit, civil no 2001 / 126, was filed by Luis & Antonia Carrion, Thomas 8: Francilla Cenac, Joseph 8:
Jessica Didier, Rawlins Doodhai, Timothy 8; Marie Ganderson Edmilford Green lvaughn 8: Jone Hurtault Bertie 8: Ingrid
Isaac Dominique 8: Pauline James Paul & Mary Leo Lionel Mondiser Charles 8: Oraine Roper Angel Santos Keiran 8?.
Anne Marie St Ange Hudson Valmont, and Isiah 8: Nina Williams The sixteenth and final, lawsuit, civil no 2001 / 127,
was filed by Hugh & Linda Morgan
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Westinghouse lngersoll Rand, Elliott, Riggers, Dresser, and Shell But the Carrion Plaintiffs also sued
Harbison Walker Refractories, Fluor Daniel individually and as successor to Fluor Engineers &
Constructors, lnc , Fluor Corporation A P Green Industries, lnc, individually and as successor to
A P Green Refractories Company Tuthill Corporation ( Tuthill ) individually and as successor to
Coppus Murray Group or Coppus Turbines, Universal Oil Products Company ( UOP ), Alltite Gasket
Company ( Alltite ), Mobil Oil Company John Crane Packing Company ( John Crane ') and Rubber
& Gasket Company of Puerto Rico ( R&G ) They also sued Gasket Holdings lnc as successor to
Flexitallic By contrast, Hugh and Linda Morgan, who filed the last lawsuit sued the same businesses
and companies as the Carrion Plaintiffs But they also sued Lockheed Martin Corporation ( LMC J
individually and as successor to Martin Marietta Corporation, Martin Marietta Aluminum lnc, and
Martin Marietta Aluminum Properties, lnc and sued Martin Marietta Corporation directly in its
individual and successor capacity and Martin Marietta Materials Inc, in its individual and successor
capacities
115 Although the JPML eventually transferred all the District Court cases to the Eastern District
they were not transferred at the same time For example the JPML issued Conditional Transfer
Order ( CTO ) No 118 on November 26, 1997, to transfer the first two cases Andrew and Crichlow
to the Eastern District on November 28 2001 by CTO No 208 Yet the JPML did not transfer the
eleventh case, Williams until July 21 2003 by CTO No 226 And the Eastern District did not initiate
formal transfer proceedings for almost every case until May 25 2007 when Transfer Order No 35
directed the Clerk of the Eastern District to initiate proceedings to transfer Andrew, Crichlow
Abraham johnhope, Emanual, Moreta Felix Frederick Smith lamb, Moore Williams Caminero
Cabreia, and Morgan Caraballo was not transferred until April 1 2011 when Transfer Order No
961 was issued And it does not appear that Carrion was transferred
1J6 Years before the District Court cases were transferred conditionally or otherwise, all but
two cases were stayed by magistrate judge order pending transfer Notwithstanding the stay and
in some instances notwithstanding the transfer proceedings still occurred in the District Court
cases It is outside the scope of this Opinion to restate the procedural history of the District Court
cases or summarize the effect of MDL transfer orders But a few examples suffice to make the point
Even though Andrew, for example, had been stayed by the District Court on October 23, 1997, and
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conditionally transferred by the [PML on November 26 1997 the District Court not the Eastern
District approved, on May 21, 2003, a stipulation the Andrew Plaintiffs had filed to dismiss their
claims against Westinghouse with prejudice Similarly, even though Caraballo was closed by the
Clerk of the District Court on April 10 2000, purportedly because it had been transferred to the
MDL the District Court still dismissed the Caraballos' claims with prejudice against Westinghouse,
R&G and Fluor Danie] before transfer and against Mobil Oil Company after transfer
117 While proceedings were underway in federal court, Hess Litwin Litwin Pan Am, Riggers
and Borinquen along with nonparties HOVIC, Fisher Hess Construction Company HOVENSA LLC
and St Croix Petrochemical Corporation, agreed to settle with the District Court Plaintiffs following
a global mediation held in Miami Florida between October let and 23rd, 2002 (collectively
referred to as Settling Defendants in the agreement and hereinafter in this Opinion) The parties
signed a formal agreement on January 16, 2003 Pursuant to the settlement agreement the Settling
Defendants released any and all claims against each other and denied liability to the District Court
Plaintiffs generally but retained the right to pursue other claims including contribution and
indemnification against anyone who was not a party to the agreement However the agreement
also provided that settlement would not be construed to release any party other than those named
and the Parties reserve their rights to pursue claims against other parties who are not signatories
to this Agreement (Def Strahman Valves Inc 5 Mot for Summ I Ex 4) Settlement monies were
paid by HOVlC to the District Court Plaintiffs on or about March 26, 2003 (Comp! 1M) However
the dockets for the District Court cases do not Show that any stipulated dismissal by and between
the Settling Defendants and the District Court Plaintiffs were filed or approved by either the District
Court or the Eastern District instead, except for the Carrion Plaintiffs whose case was never
transferred, all District Court Plaintiffs claims were dismissed by the Eastern District for failure to
prosecute either on August 25 2009 or October 22 2009
B Territorlal Asbestos Indemnity Claims Hess Oil VI Corp v Fluor Dame], et a!
118 Two years after the District Court settlement, HOVIC filed a complaint in the Superior Court
of the Virgin Islands on March 29, 2005, to recover only those settlement monies paid to [the
District Court Plaintiffs] Id II 5 HOVlC represented that it had been named as a defendant by
the District Court Plaintiffs and attached to its complaint [a] list of all Claimants and Civil Case
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Numbers [which HOVIC] fully incorporated by reference Id 11 3 HOVIC asserted claims
of contribution (Count I), common law and contractual indemnification (Counts II and Ill), breach
of contract for failure to obtain insurance (Count W), and breach of contract for failure to name
HOVIC as an additional insured (Count V) against most Defendants but not LMC and the Martin
Marietta entities (collectively Martin Marietta Defendants ) Against the Martin Marietta
Defendants HOVIC asserted a second contribution claim (Count VI) based on a premises liability
theory HOVIC alleged that the District Court Plaintiffs had been employed on premises owned,
operated and controlled by [the Martin Marietta Defendants] Id at 18 Because the Martin
Marietta Defendants failed to exercise reasonable care to provide a reasonably safe place to
work, Id, the Martin Marietta Defendants were partly to blame for the District Court Plaintiffs
injuries
1i9 Because the global mediation in Miami included asbestos claimants from both the Territorial
Court and the District Court HOVIC certified in its complaint that the In re Kerm Manbodh Asbestos
Litigation Series, Master Case No 1997/324, was related and that those cases should be
consolidated HOVIC filed a motion to that effect in Manbodh on june 6, 2005, ‘notwithstanding that
the Court (Cabret Pj) had ruled from the bench during a May 4, 2005 status conference that
parties wishing to recover settlement monies should follow the same procedures that were followed
in the previous asbestos cases In re Kelvm Manbodh Asbestos Litig Series 69 V l 394, 414 (Super
Ct 2018) (quoting In re Kerm Manbodh Asbestos Litig Series Master Case No 324/1997 2005 Vl
LEXIS 40 *4n 1 (VI Super Ct Oct 21 2005))
1110 Although HOVIC only filed its motion to consolidate in Manbodh john Zink filed a joint
opposition/motion in this case on june 16, 2005, opposing consolidation and moving to dismiss for
lack of subject matter jurisdiction John Zink argued that HOVIC should have filed a separate civil
complaint in the case of each of the underlying federal court plaintiffs to avoid the complexity
and confusion which will certainly result from these 149 separate claims for relief being presented
under a single caption (Def john Zink LLC s Opp n to Consolidation / Mot to Dismiss 4 filed
jun 16, 2005 ) john Zink next argued that HOVIC should have filed in the District Court because the
District Court Plaintiffs cases were still pending Finally john Zink argued that the complaint should
be dismissed because HOVIC was not a defendant in the District Court cases In support john Zink
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attached copies of the captions from Andrew, Cnchlow Abraham, Morgan, and Carrion, copies of
orders imposing a stay in WllfIGmS and injacob pending transfer to the MDL and a copy ofCTO No
118 CBI Services, Parsons Infrastructure and Technology Group Inc ( PlTGl J, Resal Austin
Industrial R&G, Amdura Standco Gerald Packing & Belting Corporation, CertainTeed John Crane,
Tuthill, Elliott Born Inc, UOP, and Raritan joined in John links motion HOVIC opposed several
Defendants joinder but did not file a response in opposition to John Zink
‘3 11 Next Elliott moved on July 13 2005 for partial summary judgment for all claims related to
the District Court Plaintiffs who filed suit in 1997 1998 and 1999 Elliott too noted that HOVIC was
not a party to the District Court cases but also argued that HOVlC did not have any potential liability
in 2003 when it settled with the District Court Plaintiffs, because the statute of limitations had run
for everyone except the Carrion Plaintiffs and the Morgan Plaintiffs in support Elliott attached the
docket for all the District Court cases (as of June 22, 2005) and copies of the complaints from
Abraham and Carrion CBI Services PITGl John Crane, Alltite Tuthill Born Inc UOP, and Raritan
joined Elliott s motion HOVIC opposed in part because it had been assigned the right ofAmerada
Hess Corporation to recover for monies paid on its behalf in settlement of the District Court
lawsuits (Pl 5 Mam in Opp n to Mot for Partial Summ J 12 filed July 13 2005) HOVIC conceded
however that it was not a formally named defendant in the District Court lawsuits 1d
1J12 Then PlTGI and CB] Services on August 5, 2005 each filed a motion to dismiss for failure to
state a claim CB! Services and PlTGl argued that HOVIC 5 contribution and common law
indemnification claims fail because the complaint did not allege that HOVIC extinguished their
potential liability to the District Court Plaintiffs The Settlement Agreement which they attached to
their motions, Show that all parties including the District Court Plaintiffs, retained the right to
pursue claims against anyone not a party to the agreement CBI Services and PITGl also moved to
dismiss the contractual indemnification claim because they could not have breached any duty to
defend HOVIC HOVIC was not named as a defendant in the District Court cases Lastly, PITGl and
CBI Services challenged the sufficiency of the remaining contract claims insofar as both claims are
premised on language in purchase orders issued over several decades PlTGl and CBI Services assert
that the purchase orders did not rise to the level of formal contracts and, further that the statute of
limitations had run Tuthill, Born Inc , UOP Raritan and Elliott joined both motions HOVIC opposed
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1113 BM followed moving on August 22, 2005, to dismiss the breach of contract claims 3M was
not named as a defendant on the contribution and indemnification claims But as to the failure to
insure claim, 3M asserted that it was time barred HOVIC s complaint alleged that the duty to obtain
insurance was based on purchase orders issued from 1965 to 1982 and from 1984 to 1998 But the
statute of limitations on contract claims is six years in the Virgin Islands So 3M asserted that its
alleged failure to obtain insurance and to furnish certificates of insurance arose, if at all at the time
that the relevant shipments or transfers of materials were made (Def 3M 5 Mem of Law in Supp
ofMot to Dismiss Pl 3 Compl 4 filed Aug 22, 2005 [hereinafter “3M Mot ') )Thus according to 3M,
the complaint fails on its face to state a claim for relief and Count [V should be dismissed Tuthill
Born lnc UOP, Elliott, and Raritan joined in 3M 5 motion HOVIC opposed
1114 R&G, on September 16, 2005 also moved to dismiss but on grounds different than the other
Defendants R&G asserted that HOVIC lacked standing to file suit because it was not a party to the
District Court cases R&G noted that HOVlC fails to mention in its Complaint that it actually was not
a party to any of the cases which were incorporated into the Andrews Asbestos Litigation Series
(Def Rubber & Gasket Co of P R s Mot to Dismiss 3 filed Sept 16 2005 ) This R&G contended
brings the question ofwhat it is that Hovic seeks to be indemnified for ' Id The fact that Hovic was
not a party to the Andrews Asbestos Litigation leaves nothing but doubt, R&G argued as to why
Hovic may have had to vigorously litigate Id at 4 Thus the uncontroverted issue that Hovic
was not a party to the Andrews Asbestos Litigation is sufficient in and of itself for this Court to
dismiss the present matter fora lack of standing Id at 5 Tuthill Born lnc UOP Elliott, and Raritan
joined HOVIC opposed
1115 Thereafter, several Defendants including john link, PlTlG, and C81 Services among others,
moved to stay discovery until the dispositive motions had been ruled on CB] Services and PITGl for
example, argued that further discovery would be inappropriate until certain threshold issues were
resolved including a directive the Court (Cabret P I) had issued from the bench when it denied
HOVIC s motion to consolidate this action with Manbodh (Def CBl Servs , Inc 5 Mem of Law
in Supp of Mot for Stay of Disc 6 filed Nov 4 2005] Specifically CBI Services (and PlTGl as each
made the same arguments) cited to a October 21 2005 Order issued in Manbodh directing that
HOVlC s complaint would only be accepted in the name of the first party listed In re Kelvm
Hess Oil VJ Corp v Fluor Daniel et a!
2020 VI Super 50
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Manbodh Asbestos thlg Series 2005 Vi LEXIS 40 at *4 n2 HOVIC initially opposed staying
discovery but later relented agreeing that a stay of discovery in this matter is warranted pending
the Courts decision on the dispositive motions before it ' (Pl 5 It Limited joinder in Defs‘
Motions to Stay All Further Proceedings 4, filed Nov 23 2005) Although the motions to stay were
never ruled on, discovery was under a defacto stay by agreement of the parties
11 16 HOVlC and CertainTeed later stipulated to dismiss Counts l and ii with prejudice, which the
Court (Cabret j ) approved on November 27, 2006, entered November 30, 2006 Similar stipulations
were filed by and between HOVIC and Elliott and HOVIC and Raritan, each agreeing to dismiss
Counts I and ll with prejudice Then on January 11, 2012, Strahman Valves filed a motion for
summary judgment Like the other Defendants, Strahman Valves asserted that HOVIC failed to
extinguish Strahman Valves potential liability to the District Court Plaintiffs and that HOVIC was
not sued by the District Court Plaintiffs because that court would have lacked subject matter
jurisdiction since HOVIC is a Virgin Islands corporation and the Asbestos Claimants[, ie, the
District Court Plaintiffs] are Virgin islands domiciliaries [Def Strahman Valves, inc 5 Motion for
Summ ] 3 filed Ian 11 2012) And like Elliott Strahman Valves asserted that HOVIC did not have
any liability to any District Court Plaintiff except for those who had brought their lawsuits after
March 26 2011 Id Citingjoseph v Hess 01! Virgin Islands Corporation
867 F 2d 179 (3d Cir 1989]
in which HOVIC successfully argued that the statute of limitations for an asbestos related injury
should be two years from the date the plaintiff knew or should have known, Strahman Valves
argued that everyone except the Carrion Plaintiffs and the Morgan Plaintiffs knew or should have
known by March 26 2001 that they could bring a claim against HOVIC for asbestos related injuries
As before HOVIC conceded that it was not named as a defendant by the District Court Plaintiffs But
HOVIC countered that there were allegations of negligence for premises liability and of products
liability asserted (Pl 5 Mem in Opp n to Mot for Partial Summ ] 2, filed jan 31 2012] Despite
not being a direct party HOVIC also settled with the asbestos claimants in the Andrews Asbestos
Litigation as the real party in interest on the underlying plaintiffs' claims Id
“17 Several years later HOVIC filed a joint motion on October 19, 2018, with the Fluor
Defendants the Martin Marietta Defendants UOP and Saint Cobain Advance Ceramics ( Saint
Cobain ) to dismiss its claims (as well as any counterclaims and crossclaims) with prejudice Three
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months later, on January 10, 2019 the Presiding Judge of the Superior Court designated this case as
complex, transferred it to the Complex Litigation Division, and reassigned it to the undersigned
judicial officer CertainTeed filed a notice of bankruptcy on January 31, 2020
1J18 On February 5 2020 as amended February 6 2020 this Court granted the October 19 2018
joint motion, dismissing UOP the Fluor Defendants, the Martin Marietta Defendants, and Saint
Cobain from this case The Court also resolved several ancillary motions and scheduled this case for
a hearing and oral argument The Court alerted the parties that intervening changes in the law and
several stipulated dismissals may have changed the posture of this case including what motions
were pending The Court also noted that certain Defendants had joined other Defendants pre
answer after they had answered HOVle complaint other Defendants were served but never
appeared or appeared late and joined dispositive motions without moving to excuse their delay The
Court also acknowledged the May 4 2005 Order issued in Monbodh noting concern with how HOVlC
joined its claims in lieu ofordering HOVlC to Show cause why its claims should not be severed the
Court directed the parties to come prepared to address it at oral argument Following the March 19
2020 hearing held telephonically due to the COVlD 19 measure implemented by the Judicial
Branch, the Court took the motions and arguments under advisement
II DISCUSSION
1J19 Ordinarily, courts address motions separately because movants generally have the burden
of proof or persuasion on their own motions Victorv Hess 011 VI Corp, 69 V I 484 494 (Super Ct
2018) But cf. 99 KehrPackagesv Fidelcor Inc 926 F 2d 1406 1409 (3d Cir 1991) ( When subject
matter jurisdiction is challenged under Rule 12[b)(1) the plaintiff must bear the burden of
persuasion ) And arguments or issues not raised by the movant or inadequately briefed are
generally deemed waived But in complex cases courts often must take a different approach to
resolving complicated issues Cf.Vl R Civ P 16(c)(2)(L) [letting courts’adopt[] special procedures
for managing potentially difficult or protracted actions that may involve complex issues, multiple
parties difficult legal questions or unusual proof problems[] ) accord JPML R 6 1[c) (construing
no response to a motion as consent and prohibiting raising additional issues by joinder) ( Any other
party may file a response within 21 days after filing of a motion Failure to respond to a motion shall
be treated as that party 3 acquiescence to it A joinder in a motion shall not add any action to that
Hess 011w Corp v Fluor Daniel et al
2020 VI Super 50
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motion ) See also generally e g In re japanese Elec Prods Antitrust Ling,
631 F 2d 1069 [3d Cir
1980) [recognizing that some cases may be too complex for jury trials and balancing the right to
due process against the right to trial by jury) ‘Since traditional methods of handling the caseload
are breaking down, it is the obligation of the courts to adopt more novel approaches judges and
courthouses cannot be multiplied indefinitely innovative approaches to processing complex
litigation are the order of the day United States v Reeves
636 F Supp 1575 1579 80 (E D Ky
1986)
1120 In this case, five motions to dismiss, two challenging jurisdiction, and two motions for
summary judgment are pending And three of the dismissal motions arguably must be converted to
motions for summary judgment since they present matters outside the pleadings See Vl R Civ P
12(d) [ If on a motion under Rule 12 (b)(6) or 12 (c), matters outside the pleadings are presented
to and not excluded by the court the motion must be treated as one for summary judgment under
Rule 56 ) But cfi Hinton v Corr Corp ofAm
624 F Supp 2d 45 46 (D D C 2009) [ Matters that are
not 'outside’ the pleadings a court may consider on a motion to dismiss include the facts alleged in
the complaint, documents attached as exhibits or incorporated by reference in the complaint or
documents upon which the plaintiffs complaint necessarily relies even if the document is
produced not by the plaintiffin the complaint but by the defendant in a motion to dismiss (citations
omitted)) accord Soderlund v Zzbolskl 874 N W 2d 561 570 71 (Wis Ct App 2015) ( The
incorporation by reference doctrine prevents a plaintiff from evading dismissal simply by failing
to attach to his complaint a document that proves his claim has no merit [brackets and ellipsis
omitted) (quoting Brownmark Films LLCv Comedy Partners 682 F 3d 687 690 [7th Cir 2012)) But
rather than take the traditional motion by motion approach, the Court will instead take an issue
by issue approach Given the age of this case the quantity of motions pending, and the changes in
the substantive and procedural law since the motions were filed the Court finds that the best
approach here is not to address each motion individually but instead to address collectively the
different issues raised
A Subject Matter jurisdlctron / Standing / Real Party m Interest
1j21 john Zink and R&G argue that the Superior Court lacks jurisdiction because HOVIC lacked
standing to commence this action (See Def john Zink, LLC‘s Opp n / Mot 8 [ HOVlC has no standing
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to file this action because it was not a party defendant, subject to a potential judgment in favor of
the Plaintiff in any particular case, it has no standing to file the subject action ], see Def Rubber &
Gasket Co of P R s Mot to Dismiss 5 ( In fact, the uncontroverted issue that Hovic was not a party
to the Andrews Asbestos Litigation is sufficient in and of itself for this Court to dismiss the present
matter for a lack of standing ) ) At the time when these motions were filed standing in the Virgin
islands "‘represent[ed] a jurisdictional requirement which remain[ed] open to review at all stages
of the litigation Arlington Funding Servs Inc v Geigel, 51 Vi 118, 125 n 4 (2009) [per curiam]
(brackets and citation omitted] overruled by Benjamin v A10 Ins Co ofP R 56 Vi 558 564 [2012)
Accord VI Gov t Hosps & Health Faculties Corp v Gov tofthe VI 47 V I 430 436 (Super Ct 2006)
( This Court also lacks subject matter jurisdiction over a dispute if a party lacks standing, as
standing is a component of subject matter jurisdiction ] Standing Comm on Conservation, Rec, &
CulturalAfiairsv VI Port/lath 21 Vi 584 591 [Terr Ct 1985)( Since the Plaintiff lacks standing
and the capacity to sue this Court cannot exercise subject matter jurisdiction )
1j22 But since then, the Supreme Court of the Virgin islands has clarified that standing like
mootness, functions in the courts of the Virgin islands as a claims processing rule that is subject to
waiver should the party asserting the issue fail to raise it in a timely manner Benjamin, 56 Vi at
564 65 The Virgin islands Supreme Court had acknowledged that the Supreme ’Court and the
Superior Court are not Article Iii courts but concluded nonetheless, that ’ Article iii 5 requirement
that a litigant have standing to invoke a court 3 authority ha[d] been incorporated into Virgin islands
jurisprudence Geigel 51 Vi at 124 But the Court subsequently overruled its prior position see
Benjamin 56 V l at 564, holding instead that standing must be asserted at the earliest opportunity
See 1d at 564 65 see also United Corp v Hamed 64 Vi 297 304 [2016) ( We therefore take this
opportunity to reaffirm that ‘standing’ as that concept is understood in federal constitutional
law does not exist in any form in Virgin islands courts ) in this instance john Zink and R&G raised
standing at the earliest opportunity Neither john Zink nor R&G answered HOViC s complaint yet
But they raised standing as if it were jurisdictional and it is not The concern now is over the
standard of review
'[j 23 The Virgin islands Supreme Court acknowledge that whether the party bringing suit ha[s]
a right to the relief it [Us seeking goes to the merits of the cause of action not the Superior
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Court 5 authority to hear the case in the first place United Corp, 64 V I at 303 Thus standing in
the Virgin Islands challenges whether a plaintiff has stated a claim for relief Since standing, like
mootness and other federal constitutional doctrines are claims processing rules in the Virgin
islands, the rule that governs a motion to dismiss for lack of standing is not Rule 12(b)(1) lack of
subject matter jurisdiction but rather Rule 12(b](6), failure to state a claim for relief, Rule 12(c),
judgment on the pleadings, or Rule 56, summary judgment‘ Stanley v V] Bureau of Corr, 2020 VI
Super 47,1j 11 (concluding same as to mootness] The problem is that, while R&G did not submit
materials outside the pleadings john Zink did But R&G, like john Zink nonetheless based its entire
motion on extra pleading materials And R&G also joined john Zink s motion
1124 At the time the motions were filed referring to matters submitted outside the pleadings
would not have been a concern See Id at 11 13 ( The majority of the Courts of Appeals that have
considered this issue conclude that district courts may consider material outside the pleadings in
ruling on 12(b)(2) motions to dismiss ) accord Vl R Civ P 12(dj ( If, on a motion under Rule
12(b)(6} or 12(c), matters outside the pleadings are presented to and not excluded by the court the
motion must be treated as one for summary judgment (emphasis added)] But since john Zink s
motion must now be governed by Rule 12(b) (6), submitting copies of several documents from the
District Court cases was, technically, submitting documents outside the pleadings The documents
john Zink submitted were not attached to HOVlC s complaint But converting a pre answer motion
to a motion for summary judgment is not necessary since HOVIC incorporated the documents john
Zink submitted by referencing them in its complaint
Under the doctrine of incorporation by reference a document attached to a motion
[to dismiss or] for judgment on the pleadings may be considered by the court without
converting the motion into one for summary judgment only if the attached document
is (1) central to the plaintiff‘s claim and (2) undisputed
Ackah v Hershey Foods Corp 236 F Supp 2d 440 443 (M D Pa 2002) (quoting Horsleyv Feldt
304
F3d 1125 1134 (11th Cir 2002]) accord Burton v First Bank ofPR
49 VI 16 20 21 (Super Ct
2007 [‘ Although the Court relies upon documents such as the Plaintiffs billing statements, the
complaint referred to these indisputably authentic documents thus making them an operative
component of Plaintiffs allegations (citing Penszon Benefit Guaranty Corp v White Consol Indus
Inc
998 F 2d 1192 1196 (3d Cir 1993]) Undisputed in this context means that the authenticity
of the document is not challenged Horsley 304 F 3d at 1134 [citing Beddall v State St Bank & Trust
Hess 011V! Corp v Fluor Daniel et a]
2020 VI Super 50
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Co 137 F 3d 12 16 17 [lst Cir 1998) GFFCorp v Assocmted Wholesale Grocers Inc 130 F 3d 1381
1384 (10th Cir 1997] Branch v Tunnel] 14 F 3d 449 454 (9th Cir 1994)) This Court agrees with
and adopts the incorporation by reference doctrine
1I25 "Ordinarily when ruling on a pre answer motion to dismiss, the Court must accept the
plaintiff’s allegations as true 'and draw all fair inferences from such allegations Stanley,
2020
VI Super 47 at 1i 12 (citation omitted)) But the incorporation by reference doctrine permits a court
to review the actual document referenced in the complaint to ensure that the plaintiff has not
misrepresented its contents and that any inference the plaintiff seeks to have drawn is a reasonable
one Amalgamated Bank v YahooI Inc 132 A 3d 752 797 (Del Ch 2016] overruled m part on other
grounds by Tiger v Boast Apparel Inc 214 A 3d 933 939 [Del 2019) The doctrine further limits
the ability of the plaintiff to take language out of context because the defendants can point the court
to the entire document [and] enables courts to dispose of meritless complaints at the pleading
stage Id Without the ability to consider the document at issue in its entirety, complaints that
quoted only selected and misleading portions of such documents could not be dismissed under Rule
12(b](6] even though they would be doomed to failure Id (quoting In re Gen Motors (Hughes)
5 holder [.1179 897 A 2d 162 169 [Del 2006])
With the incorporation by reference doctrine, a complaint may, despite allegations
to the contrary, be dismissed where the unambiguous language of documents upon
which the claims are based contradict the complaint 5 allegations Likewise, a claim
may be dismissed if allegations in the complaint or in the exhibits incorporated into
the complaint effectively negate the claim as a matter of law
Id (quotation marks and citations omitted] This case presents a perfect example of the need for the
incorporation by reference doctrine
1126 HOVIC attached to its complaint a list of the District Court plaintiff workers and provided
each Plaintiff’s respective case number HOVIC then incorporated those cases into its complaint
[See Compl if 3 [‘ A list of all Claimants and Civil Case Numbers are attached hereto as Exhibit ‘A”
and all Claimants thereon are fully incorporated herein by reference ] ) But HOVIC also alleged
that the Claimants meaning the District Court Plaintiffs, had instituted lawsuits claiming
compensatory and punitive damages against Plaintiff HESS OIL VIRGIN ISLANDS CORP as well as
other entities, in the District Court of the U S Virgin Islands Id Yet John Zink showed by
attaching copies of the captions of the Andrew and Crichlow complaints for example that HOVIC
Hess Oil VI Corp v FIuor Dame] at a] 2020 VI Super 50
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Page 19 of42
was not sued in the District Court The documents John Zink submitted are undisputed And they
are central to HOVIC s complaint If the District Court cases had not been filed HOVIC would not
have filed this case
1127 HOVIC does not dispute that the documents it incorporated into its complaint contradict the
allegations in its complaint In fact, HOVIC acknowledges that it was not a formally named
defendant in the District Court lawsuits [Pl ’3 Mot 8: Mem ofLaw in Opp n to Rubber & Gasket Co
of? R, Inc 3 Mot to Dismiss 9 filed Sept 23 2005 {hereinafter R&G Opp n ) )And HOVIC concedes
that actions must be prosecuted in the name of the real party in interest " Id at 8 (quoting Fed
R Civ P 17(a]) HOVIC counters, on the one hand, that it has standing because Hess has the right
to assign to HOVIC its rights of contribution and indemnification relating to the District Court
actions [d Yet HOVIC does not represent at least not in opposition to R&G that Hess actually
assigned its rights to HOVIC In opposition to C81 Services and PITIG HOVIC represented that Hess
has asszgned to HOVIC its rights of contribution and indemnification relating to the District Court
actions (Pl ’3 Mot & Mem of Law in Opp n to CB] Servs Inc & PITGI s Mots to Dismiss 4, filed Aug
16 2005 (hereinafter PITIG/CBI Opp n )) During the March 19 2020 oral argument HOVIC
reiterated that Hess had assigned its rights to HOVIC Yet. on the other hand HOVIC also asserts in
opposition to R&G that HOVIC is the real party in interest with a personal stake in the outcome of
this controversy (R&G Opp’n 10)
1f28 Unfortunately the Court cannot discern at this stage whether HOVIC has standing The Court
must take as true HOVIC s allegations that its purchase orders submitted to John Zink and R&G,
among others, included a requirement that they obtain insurance and name HOVIC as an additional
insured If the Defendants did not obtain insurance that could constitute a breach Whether HOVIC
could prove damages (since it was not sued by the District Court Plaintiffs) is a different matter But
the Court cannot find at this juncture that HOVIC lacks standing to sue for breach of contract
1129 But more importantly what John Zink and R&G are really getting at is that HOVIC is not the
real party in interest here Now and at the time when HOVIC filed its complaint an action had to be
prosecuted in the name of the real party in interest V I R Civ P 17(a)(1), accord Fed R Civ P
17(a] (2005 ed ) [ Every action shall be prosecuted in the name of the real party in interest } See
also Brooks v Gov tofthe VI 58 VI 417 427 n 11 [2013) [T]he main thrust of Rule 17 is to allow
Hess Oil VI Corp v Fluor Daniel et a]
2020 VI Super 50
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Memorandum Opinion
Page 20 of 42
a correction in parties after the statute of limitations has run, despite the valid objection that the
original action was not brought by the real party in interest[]’ Brooks
58 VI at 428 [quotation
marks and citations omitted)] Federal courts have held that Rule 17 requires the defendant to
object in time to allow the opportunity for joinder of the ostensible real party in interest and the
defense may be waived if the defendant does not timely object In re Signal Int] LLC 579 F 3d 478,
487 88 (5th Cir 2009) accord Hefleyv jones
687 F 2d 1383 1388 [10th Cir 1982) ( The real party
in interest defense is 'for the benefit of a defendant should be raised in timely fashion or it may be
deemed waived " (quoting Audio Visual Marketing Corp v 0mm Corp ,
545 F 2d 715 719 (10th Cir
197 6]] Since Rule 17(a) of the Virgin islands Rules of Civil Procedure is patterned after Rule 17(a)
of the Federal Rules of Civil Procedure the Court looks to federal precedent for guidance See Slack
v Slack, 69 Vi 567 573 (2018) (recognizing that the body of case law construing the federal rule
may be consulted when construing the Virgin islands rule) And since federal courts refer to the real
party in interest as a defense, like any other defense it must be raised at the earliest opportunity
See Coastal Air Transp v Royer, 64 Vi 645 658 [2016) ( [A]ffirmative defenses are waived if not
raised at the first opportunity in the Superior Court[] [citation omitted))
1130 Again HOVlC may lack standing and thus, may have failed to state one or more claims
but the concerns that john link and R&G raised about standing really go to whether HOVIC is the
real party in interest in this case The law is clear however that
[njo action shall be dismissed on the ground that it is not prosecuted in the name of
the real party in interest until a reasonable time has been allowed after objection for
ratification of commencement of the action by or joinder or substitution of, the real
party in interest, and such ratification, joinder or substitution shall have the same
effect as if the action had been commenced in the name of the real party in interest
Fed R Civ P 17(a) (2005 ed) accordVl R Civ P 17(a)(2) [ The court may not dismiss an action
for failure to prosecute in the name of the real party in interest until after an objection a reasonable
time has been allowed for the real party in interest to ratify join or be substituted into the action
After ratification joinder or substitution the action proceeds as if it had been originally commenced
by the real party in interest ) The Federal Rules do not set out a specific procedure for raising a
Rule 17(a] objection but courts have noted that it should be made in a timely manner such as in an
answer or responsive pleading Forza Techs, LLC v Premier Research Labs LP No 12 CV 7905,
2013 U S Dist LEXIS 171753 *5 (N D ill Dec 5 2013} {citing In re Signal Int] LLC 579 F3d at
Hess 011 VI Corp v FIuor Dame] et al 2020 Vi Super 50
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487)) Thus, the Court has nothing to look to for guidance However, since the real party in interest
is a defense that must be raised at the earliest opportunity, the Court finds that John Zink and R&G
timely raised it here by moving to dismiss for failure to state a claim But a real party in interest
can substitute even after the statute of limitations has run as long as the matter was originally
initiated during the limitations period Brooks, 58 VI at 428 [citation omitted] Thus, the Court
must allow Hess "a reasonable time to ratify, join, or be substituted into the action V i R Civ P
17(a)(2) For this reason, the motions, challenging HOVlC's standing or that HOVIC is not the real
party in interest, must be denied
B Contribution / Indemnification as to Some District Court Cases
1131 Similar reasons compel the Court to deny the summary Judgment motions filed by Elliott as
joined by CB! Services PlTGl, John Crane Alltite Tuthill Born inc and Raritan 11 Elliott argues that
HOVIC 5 contribution (Count 1) and common law indemnification (Count ll] claims fail as a matter
of law because "any potential claims against HOVIC by the 1997 1999 asbestos claimants were
barred by the two year statute of limitations at the time of HOVIC s alleged March 2003 settlements
[Def Elliott Co 5 Mot for Summ J & for Sanctions 14 filed July 27 2005 J
1132 HOVIC opposes Elliott s motion asserting that HOVIC was the real party in interest [in the
District Court cases} (Pl s Mem in Opp n to Mot for Partial SummJ 5 filed July 13 2005) HOVlC
further asserts that as the real party in interest [it] was required to expend great sums of money
in defending and settling the[ District Court] actions Id at 7 Yet HOVIC also asserts that HOVIC
was assigned the right of Amerada Hess Corporation to recover for monies paid on its behalf in
settlement of the District Court lawsuits Id at 12 HOVIC then argues that [t]he fact that HOVIC
was not a named defendant in the District Court actions cannot and should not preclude HOVIC from
pursuing its right to contribution and indemnity' Id at 13 But HOVIC failed to cite any authority in
support Other than the same list of District Court Plaintiffs and their case numbers which HOVIC
attached to its complaint HOVIC failed to submit any materials in opposition
1‘ Elliott s motion was rendered moot as to itself and UOP who joined when the Court approved the stipulations between
HOVIC and Raritan and HOVIC and Elliott to dismiss Counts I and ii Elliott s motion remains pending and is not moot
as to those Defendants who joined and have not been dismissed See Der Wear v Hess Oil VI Corp 60 V1 91, 98 100
(Super Ct. 2014)
Hess Oil VI Corp v FluorDamel et a] 2020 VI Super 50
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TI33 Summary judgment is a drastic remedy and should be granted only when the pleadings
the discovery and disclosure materials on file, and any affidavits Show that there is no genuine issue
as to any material fact Alexander v Alexander, 65 V I 372 378 (2016) (brackets and citation
omitted) As the movant, Elliott bears the initial burden of showing that there is no genuine issue
of material fact Anderson v Am Fed'n of Teachers
67 VI 777, 788 (2017) Courts “must View the
inferences to be drawn from the underlying facts in the light most favorable to the nonmoving party,
and take the non moving party 3 conflicting allegations as true if supported by proper proofs
Palzsoc v Pablete, 60 V I 607, 613 (2014) (citation omitted) But the nonmoving party may not rest
on its allegations alone Anderson 67 V I at 789 (citation omitted) Instead, the non moving
party must present actual evidence, amounting to more than a scintilla ' in support of its position
Id (citation omitted) And even though entering judgment summarily is a drastic remedy, summary
judgment may be entered against a party who fails to sufficiently Show the existence of an element
essential to that party's case on which that party will bear the burden of proof at trial[} Palisoc 60
V l at 613 (citing Sealey Christian v Sunny Isle Shopping Ctr Inc 52 V I 410 419 (2009)) The
reason why One of the principle purposes of the summary judgment rule is to isolate and dispose
of factually unsupported claims or defenses Sealey Christian 52 V! at 421 (brackets omitted)
(quoting Celotex Corp v Catrett 477 U S 317 323 24 (1986))
1134 In support of its motion, Elliott submitted the dockets of all the District Court cases as well
as the Andrew complaint and the Carrion complaint These documents Show and HOVIC does not
dispute that HOVIC was not named as a defendant in the District Court cases Hess was And to the
extent that HOVIC has represented that Hess assigned its rights to HOVIC to seek contribution and
indemnification, then Elliott s motion must be denied to allow Hess a reasonable time to ratify,
join or be substituted into the action V I R Civ P 17(a)(2) Although HOVIC failed to submit any
proof to support its assertion that Hess assigned its rights to HOVIC, HOVIC does make the assertion
and reiterated it during the March 19, 2020 argument The Court may not dismiss an action for
failure to prosecute in the name of the real party in interest Id Thus Hess must have a chance
first to ratify, join, or substitute
1135 But Elliott in reply correctly points out that HOVIC failed to show how HOVIC could
possibly be the real party in interest in lawsuits filed in the District Court of the Virgin Islands by
Hess on v1 Corp v Fluor Daniel er a] 2020 v1 Super so
Case No SX 05 CV 16S
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individuals who were residents and domiciliaries of the U S Virgin islands (Def Elliott Co 3
Reply to Opp n for Mot for Partial Summ I 7 filed July 27 2005) As Elliott explains the United
States Court of Appeals for the Third Circuit had held that under Virgin Islands law a two year
statute of limitations applies with respect to asbestos claims running from when a plaintiff knew or
had reason to know of an asbestos related illness Id at 10 (discussing joseph) At the time when
HOVlC settled with the District Court Plaintiffs, and when it filed this case that precedent was
settled law it remains settled law insofar as joseph applied the discovery rule to asbestos claims
Seejoseph,
867 F 2d at 182 n 8 ( '[n the asbestos litigation context, the discovery rule would suspend
the statutory period until the plaintiff knows or reasonably should know (1) that he or she has
been injured and (2) that the injury has been caused by another partys conduct [citation
omitted]) The discovery rule continues to apply in the Virgin islands See Pichiern v Crowley 59
Vi 973 978 [2013} [citing/oseph
867 F 2d at 182) see also United Corp 64 Vi at 305 06 As the
party opposing summary judgment, HOVlC had the burden to support its claims with more than its
own ipse leIt it was a real party in interest because it was a real party in interest That is not
enough HOViC did not submit an affidavit for example attesting that the District Court Plaintiffs
were planning to file suit against HOVlC in the Territorial Court and to preclude that from
happening HOVIC settled with them even though HOVIC was not named as a defendant HOVlC
likewise did not submit an affidavit from the any of the defendants in the District Court cases
[including its parent company) representing that it or they intended to file a complaint for
contribution or indemnification against HOVIC in the Territorial Court or in another federal district
court Lastly HOVlC did not request leave to conduct discovery in response to Elliott s motion Cf.
Fed R Civ P 56(f) see Rivera Mercado v Gen Motors Corp
51 VI 307 311 (2009) (noting that a
trial court typically grants a Rule 56“) continuance as a matter of course {citation omitted)) in
short, HOVIC failed to carry its burden of proof Accordingly, the Court must grant summary
judgment to C81 Services, PITGI john Crane, Alltite, Tuthill, and Born inc insofar as HOVlC and
not HOVlC on behalf of Hess asserted its own claims for contribution and common law
indemnification HOVIC had no potential exposure by 2003 when it settled with everyone except
the Carrion and the Morgan Plaintiffs Otherwise Elliott s motion for partial summary judgment on
Counts l and il as to Hess must be denied
Hess 01] VI Corp v FIuor Dame] at al 2020 VI Super 50
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C Untimely Filed Matron
1136 Strahman Valves also moves for summary judgment and asserts the same arguments as
Elliott namely that HOVIC was not named as a defendant in the District Court cases and, therefore
settlement with everyone but the Carmen and Morgan Plaintiffs was, essentially, gratuitous because
HOVIC could not have been sued by anyone who filed suit in 1997 1998 or 1999 Therefore, the
Court should grant summary judgment on Counts I and II contribution and common law
indemnification But Strahman Valves argues further that the Court should also grant summary
judgment on the same counts but as to the Carmen and Morgan Plaintiffs as well Strahman Valves
asserts that the Settlement Agreement and the release the District Court Plaintiffs signed, which
were produced in discovery in the Manbodh litigation show that HOVIC failed to extinguish anyone
else 5 potential liability In support Strahman Valves attached a copy of the Settlement Agreement
and the release signed by Mr and Mrs Abraham However Strahman Valves motion cannot be
considered and must be stricken
1137 Strahman Valves filed its motion on January 11 2012 almost seven years after HOVIC
commenced this action HOVIC filed proof of service on August 22 2005 showing that Strahman
Valves was served on June 13 2005 through Richard Strahman at 3 Vreeland Road, Florham Park
New Jersey by certified mail, return receipt requested Strahman Valves did not appear or answer
HOVIC s complaint HOVIC did not move for entry of Strahman Valves default But then on January
11 2012, Strahman Valves filed the instant motion without explaining or moving to excuse the
delay
1J38 In Martinez v Columbian Emeralds Inc 51 Vi 174 191 (2009) the Supreme Court of the
Virgin Islands reversed a Superior Court decision granting a defendant s untimely motion to dismiss
for failure to state a claim for relief The defendant had stipulated with the plaintiff for an extension
of time to plead See 1d at 189 90 After the agreed extension passed, the defendant filed a motion
for additional time which the trial court denied because the defendant failed to show excusable
neglect See id at 190 As the Virgin Islands Supreme Court explained [a]t that posture of the case
absent the granting of a proper motion by [the defendant] to plead out of time filed with the
requisite showing of excusable neglect no further pleading was permitted and consequently,
the filing of a pre answer motion to dismiss under Federal Rule of Civil Procedure 12(b](6) was not
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permitted Id The Court reiterated that [t]he motion to dismiss was not properly before the
trial court and should not have been considered The trial court should have considered [the
plaintiff’s] motion to strike the motion to dismiss and its motion for entry of default before
considering [the defendant 5] Rule 12(b) motion 1d at 191
1139 The Virgin islands Supreme Court reaffirmed Martinez ten years later in Montgomery v
Virgin Grand Villas St john Owners Assocmtion, 2019 Vi 27 in that case the defendant, Virgin Grand,
had filed a motion for summary judgment approximately a year after the motion deadline had
passed see id at 11 21 without requesting leave to file the motion out of time or otherwise
attempting to establish good cause or excusable neglect for the iate filing Id ( Thus rather than
consider the motion on the merits the Superior Court should have denied the motion as untimely )
The Supreme Court vacated the Superior Court 5 decision on the untimely motion and remanded
for the court to proceed to trial Id
1140 Binding precedent is clear Strahman Valves motion is not properly before the Court and
cannot be considered Strahman Valves did not explain the seven year delay between service of
process and the filing of its summary judgment motion Although no scheduling order is in place as
yet, Superior Court Rule 32(a) which was in effect at the time, provided that "[t]he defendant may
defend by entering his appearance before the clerk or by filing an answer with the clerk within 20
days after service of the summons and complaint That deadline may have stretched to 30 days
since Strahman Valves was served outside the Territory See 5 V i C § 112(d) see also Edwards v
Hess Oil VI Corp 69V] 136 141 42 [Super Ct 2017) (quoting Superior Court standard summons)
But it cannot stretch to seven years Strahman Valves had to file a motion and show good cause to
excuse that delay It did not Therefore its summary judgment motion is untimely and must be
stricken
D Failure to Obtain Insurance
1141 PITGI CBI Services and 3M move to dismiss Count lV breach of contract for failure to obtain
insurance They claim the statute of limitations has run They note that even though HOVIC did not
allege a specific date within Count IV HOVIC incorporated its allegations from Counts I through 111
into Count IV And Count ill alleged that [flrom 1965 through June 10 1982 and from November
29 1984 to October 30 1998 HOVIC purchase orders contained indemnification language[]
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(Compl 12 Ti 5) CBl Services and PlTGl note that HOVIC s allegations arise out of "innumerable
alleged contracts purportedly evidenced by unspecified purchase orders (Def Pl'l‘Gl s Stmt of
Undisputed Facts & Mem of Law in Supp of Mot to Dismiss 16, filed Aug 31 2005 (hereinafter
'PlTGl/CBi Mot 12)) Thus, logic dictates, they argue ’that any insurance would have to be
procured, or a rider naming HOVIC as an additional insured obtained, prior to or at the time of the
particular shipment in question " Id [T]he last possible date for breach of contract was October 30,
1998 Clearly the statute of limitations for HOVIC to bring any claims under Count Four expired
before HOVIC filed its Complaint Id at 17 And CB1 Services and PlTGl contend that a breach
of the duty to insure occurs at the time the responsible party fails to obtain said insurance
(PITGl/CBi Mot 16 17 (citing Premium Cigars Int! Ltd v Farmer Butler Leavztt Ins Agency
96 P 3d
555 S69 70 (Ariz Ct App 2004) Slonigerv Niagara Mohawk Power Corp 761 N YS 2d 757 758
(App Div 2003))) 3M agrees "a cause of action based on breach of an agreement to procure
insurance coverage accrues at the time that the contracting party failed to procure insurance (3M
Mot S (brackets and ellipsis omitted] (quoting PoIat v Fifty CPW Tenants Corp 672 N Y 8 2d 56 57
58 (App Div 1998))
1i42 HOVIC counters that [c]ourts in other jurisdictions have recognized the unfairness of
mechanically applying a[n] accrual at breach rule and have instead applied a[n] accrual at
discovery of breach rule to determine the accrual date for breach of contracts to procure insurance
claims‘ [P] s Opp n to 3M 8 Mot to Dismiss Pl 5 Compl 4 filed Sept 2 2005 (citing TIG Ins Co v
Via Net 178 SW 3d (Tex Ct App 2005) Gudenau & Co Inc v Sweeney Ins Inc
736 P 2d 763
(Alaska 1987)) (hereinafter 3M Opp n ) ) HOVIC also counters that its complaint was timely filed
because [t]he duty to defend is not triggered when parties enter a purchase order agreement
Rather the duty to defend arises when a party is made aware of its contractual obligation based
upon the date when a claim was made (PlTGl/CBi Opp n 16 (citing Tyson v Litwm Panamerican
Corp 22V] 168 (DVI 1986)]
1M3 In general, breach of contract claims are subject to a six year limitation period See 5 V l C §
31(3)(A] ( An action upon a contract or liability, express or implied ) But during the March 19
12 The motions filed by CB] Services and PlTGl are in large part identical with the same exhibits, and were filed by the
same attorney on the same day Citations to one motion are interchangeable with and applicable to the other
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2020 hearing CB] Services and PITGI argued that the four year limitation period in the Virgin
Islands Uniform Commercial Code ( VIUCC’) applies since the agreement to obtain insurance was
contained within purchase orders for the sale of goods See 11A VIC § 2 725(1) ( An action for
breach of any contract for sale must be commenced within four years after the cause of action has
accrued ) So, the question is which limitation period applies But regardless of whether the four
year statute of limitations applies because the agreement to obtain insurance is contained within
a purchase order for the sale of goods or the six year statute of limitation applies because the
agreement is separate from the goods purchased both limitation periods have passed long before
2005 when HOVIC filed this case, unless the claim does not accrue until the failure to obtain
insurance is discovered The Defendants may be correct [T]he last possible date for breach of
contract was October 30 1998 (Pl'I‘GI/CBI Mot 17 ) And that date would be earlier ifthe four year
statute of limitation under the VIUCC applies HOVIC counters that the discovery rule should apply
(See 3M Opp n 4 ( Here HOVIC did not discover 3M 3 breach until it made its claim ))
1(44 The Supreme Court of the Virgin Islands has not addressed whether the discovery rule
applies to contract claims And when the Virgin Islands Supreme Court has not spoken, courts
must employ[] a Banks analysis to determine Virgin Islands common law Alleyne v Diageo
USVI Inc
63 VI 384 405 n 6 (Super Ct 2015) (citing Banks 1/ InthentaI & Leasmg Corp
55 VI
967 (2011)) A Banks analysis requires consider(ing] three non dispositive factors to determine
Virgin Islands common law (1) whether any Virgin Islands courts have previously adopted a
particular rule, (2) the position taken by a majority of courts from other jurisdictions, and (3) most
importantly, which approach represents the soundest rule for the Virgin Islands Id (quoting Gov t
ofthe V] v Connor
60 VI 597 600 (2014) (per curiam))
1145 Regarding the first factor the majority of Virgin Islands courts have rejected applying the
discovery rule to contract claims First, if the VIUCC applies the Court may be prohibited from
applying the discovery rule because the VIUCC provides that (a) cause of action accrues when the
breach occurs, regardless of the aggrieved party 3 lack of knowledge of the breach " 11A V I C § 2
725(2) Based on this language, Virgin Islands courts have concluded that the discovery rule does
not apply to breach of contract claims arising out of the sale of goods See Gerald v RI Reynolds
Tobacco Co
67 VI 441, 462 (Super Ct 2017) ("[T]he discovery rule cannot be used to toll the four
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year statute of limitations under 11A V I C § 2 725(4) D Fombrun v Controlled Concrete Prods,
21
VI 578 582 83 (Terr Ct 1985) (same) see also MRL Development] LLC v Whitecap Investment
Corp
64 VI 724 738 (3d Cir 2016) ( [W]e find that the discovery rule does not apply to contract
claims covered by the Virgin Islands U C C ) One Superior Court judge assumed, without deciding,
that the discovery rule could apply to contract claims See United Corp v Hamed Case No ST 13 CV
101 2014 VI LEXIS 132 *8 9 (VI Super Ct Sept 2 2014) revdon othergrounds and remanded
64 VI 297 And another Superior Court judge concluded based on the reversal in Horned, that the
discovery rule does apply to contract claims because contract claims were at issue in Homed See
Tutu Park Ltd v Harthman Leasmgl LLLP Case No ST 14 CV 456 2016 VI LEXIS 159 *23 (VI
Super Ct Sept 27 2016) [discussing Hamed and noting that the Supreme Court had observed that
whether the discovery rule tolled the statute of limitations on the plaintiff{]s claims (which
included a breach of contract claim) depended heavily on factual development of the record and
necessarily was not fit for disposition on the pleadings ] See also cg Charleswell v Chase
Manhattan Bank NA Civil No 01 119 2009 U S Dist LEXIS 54519 *34 37 (DVI June 22 2009]
(applying discovery rule to breach of insurance contract] The Virgin Islands Supreme Court has
noted that the discovery rule could apply to contract claims Anthony v FirstBank VI 58 VI 224,
230 n 8 (2013] But the question was not addressed because the issue was waived See id
1146 Regarding the second factor, jurisdictions are divided on extending the discovery rule to
contract claims Many retain the general rule that the statute of limitations starts to run at the time
of the breach, and that the plaintiff‘s ignorance as to the existence of a cause of action is irrelevant
Bauman v Day
892 P 2d 817 827 (Alaska 1995] (collecting cases] accord Peck v Donovan, 565 F
App x 66 70 (3d Cir 2012) (applying New Jersey law) see also Penn v lstS Ins Servs Inc 324 F
Supp 3d 703 709 (E D Va 2018) (applying Virginia law) ( [N]umerous courts have taken the View
that an action for failure to procure insurance accrues when a breach of the duty to procure
insurance occurs, such as when a defective policy is placed, not when a payout under the intended
policy would have vested ) In fact one case HOVIC relied on T[G Insurance Company, was reversed
on this very point of law See TIC Ins Co 178 SW3d at 17 (assuming without deciding that
discovery rule applies to contact claims) reversed by Wu Net v TIC Ins Co , 211 S W 3d 310, 315
(Tex 2006) (per curiam) ('Some contract breaches may be inherently undiscoverable and
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objectively verifiable But those cases should be rare as diligent contracting parties should
generally discover any breach during the relatively long four year limitations period provided for
such claims ) Via Net involved a claim for breach of contract for failure to name as an additional
insured "in June 1997 a Via Net employee named Guy Wright was injured when Safety Lights
employees allegedly dropped a 3000 pound steel plate on his hand He sued three weeks later
Via Net 211 S W 3d at 312 Via Net was a vendor of Safety Lights See id Safety Lights had taken the
position the year before that that it would no longer buy from [its vendors] unless it was added
as an additional insured under their commercial general liability policies Id Via Net agreed and
Safety Lights received a certificate of insurance in February 1997 listing Safety Lights as 'holder
and stating that holder is added as additional insured re General Liability' Id But the certificate
included a disclaimer that no rights were conferred by it and in fact Via Net 5 policy with
Lumbermens Mutual Casualty Company did not provide for additional insured coverage and no
endorsement adding [Safety Lights] as an additional insured was ever issued' Id When Safety
Lights tendered the defense ofthe Wright lawsuit to Via Net. the insurance company, Lumbermens,
denied the request Safety Lights settled with Wright and then sued in federal court for breach of
contract and misrepresentation, which was dismissed because the insurance policy did not provide
for additional coverage See 1d at 312 [citing TIC Ins Co v Sedngckjames of Washington,
184 F
Supp 2d 591 598 604 (S D Tex 2001]) Safety Lights then sued Via Net and Lumbermens in state
court for breach of contract for failure to name it as an additional insured The trial court granted
summary judgment on statute of limitations grounds The court of appeals reversed finding the
discovery rule could defer accrual until Safety Lights received Lumbermens' denial Id
1147 On appeal the Supreme Court of Texas reversed the Court of Appeals for the First District of
Texas The Texas Supreme Court acknowledged that the accrual of some causes of action may be
deferred if the nature of the injury incurred is inherently undiscoverable and the evidence of injury
is objectively verifiable Id at 313 (citation omitted] But the court also acknowledged that [i]t is
well settled law that a breach of contract claim accrues when the contract is breached Id at 314
(citation omitted] And [c]ontracting parties are generally not fiduciaries Thus, due diligence
requires that each protect its own interests Id (citation omitted) in that context, [d]ue diligence
may include asking a contract partner for information needed to verify contractual performance
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the court reasoned and [i]f a contracting party responds to such a request with false information,
accrual may be delayed for fraudulent concealment Id [citations omitted] But failing to even ask
for such information is not due diligence Id
1148 Other courts generally agree Illinois, for example, treats negligent failure to procure
insurance as a tort arising out of a contract, [thus ] 'the cause of action ordinarily accrues at the time
of the breach of contract, not when a party sustains damages Am Fam Mut Ins Co v Krop, 120
N E 3d 982, 991 (Ill 2018) Another case HOVlC relies on,]] Gumberg Companyv jams Servzces Inc,
847 So 2d 1048 (Fla Ct App 2003) [per curlam) actually rejects applying the discovery rule In that
case the Court of Appeal of Florida explained that a breach of contract claim requires (1) a valid
contract, (2) a material breach and (3) damages Id at 1049 {citation omitted) Gumberg had
entered into a contract with janis to remodel a food court at a mall See 1d An employee ofjanis was
injured and sued Gumberg in 1994, Gumberg filed a third party complaint against janis for
contribution, contractual and common law indemnification The contribution and common law
indemnification claims were dismissed leaving only the contractual indemnification claim
Gumberg settled with the employee in 2001, and moved to amend its third party complaint to add,
Inter aha a claim against Janis for breach ofcontract for failure to obtain insurance See Id The trial
court denied the motion to amend Gumberg then filed a new case against Janis and Janis insurance
company Seven years had passed since the employee was injured in 1994 The trial court dismissed
the new complaint finding that the statute of limitations had run The appellate court affirmed in
part, agreeing that even if Janis breached the contract by failing to obtain liability insurance at
the time Green was injured in june of 1994 all the elements for a cause of action for breach of
contract existed ' Id at 1050
1149 But not all courts reject the discovery rule for contract claims As the Supreme Court of
Tennessee explained
Courts in other jurisdictions are split on whether the discovery rule can apply in
breach of contract actions Some decline to apply the discovery rule to breach of
contract actions under any circumstances Others take the opposite approach,
applying the general discovery rule in breach of contract cases in the same way it is
applied in torts and other types of actions Still other courts take a third path, they
apply the discovery rule in breach of contract cases only in situations where the
breach is inherently undiscoverable, 'inherently unknowable or difficult to
detect Even in those cases, there is no uniform description of the terms
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Indzvzdual Healthcare Speczahsts, Inc v BlueCross BlueShield of Tenn Inc, 566 S W 3d 671, 711 12
[Tenn 2019) [footnotes omitted) Although the Tennessee Supreme Court noted that it had not
weighed in on the question see 1d at 711 the court nonetheless declined to apply the discovery rule
on the facts presented The breach at issue arises from a commercial contract between two
sophisticated business entities, each expected to use due diligence to protect its own interests ‘Due
diligence may include asking a contract partner for information needed to verify contractual
performance Id at 714 [quoting Via Net 211 S W 3d at 314))
150 Alaska applies the discovery rule to contract claims See Gudenau & Co Inc,
736 P 2d at 766
68 So does South Carolina see Maher v Tiete Corp
500 SE 2d 204 207 (SC Ct App 1998)
( Pursuant to the discovery rule a breach of contract action accrues not on the date of the breach,
but rather on the date the aggrieved party either discovered the breach or could or should have
discovered the breach through the exercise of reasonable diligence ), and Arizona See Gust
Rosenfeld & Henderson v Prudential Ins Co ofAm
898 P 2d 964, 968 (Ariz 1995) (’ In any event
we believe that Division Two properly applied the discovery rule to the breach of contract claims in
Matuszk and HSL Linda Gardens, and to the extent that Gem! Lawter suggests that the discovery rule
cannot apply in breach of contract actions we disapprove it ) As the Supreme Court of Arizona
explained, the important inquiry in applying the discovery rule is whether the plaintiff's injury or
the conduct causing the injury is difficult for plaintiff to detect not whether the action sounds in
contract or in tort Id
1i51 Clearly, jurisdictions are divided Having considered the different approaches, this Court
holds that the discovery rule applies to contract claims The Virgin Islands Supreme Court has
acknowledged that the statute of limitations on a cause of action begins to run from the date the
cause of action accrued which ordinarily is the date upon occurrence of the essential facts that give
rise to that cause of action Vanterpool v Gov t of the VI
63 VI 563 594 n 19 (2015) (quoting
Anthony v FirstBank VI
58 VI 224 230 (2013)) And the Court cited persuasive precedent from
other jurisdictions recognizing that contract claims do not accrue until there is a refusal to pay See
Id (collecting cases) This Court believes that the Supreme Court would follow Arizona and
recognize that the inquiry is not whether the action sounds in tort of contract
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1!52 That said, [c]ontracting parties are generally not fiduciaries [and] due diligence requires
that each protect its own interests ' V10 Net, 178 S W3d at 314 (citations omitted) And once
customers have the opportunity to read their insurance policy and can reasonably be expected to
understand its terms the cause of action for negligent failure to procure insurance accrues as soon
as the customers receive the policy Krop 120 N E 3d at 984 Here, HOVIC (or Hess if Hess is the real
party in interest) was the insured ’Under the discovery rule. the focus is not on the plaintiff‘s actual
knowledge, but rather whether the knowledge was known or through the exercise of diligence
knowable to the plaintiff United Corp ,
64 VI at 305 (citation omitted) Even when the discovery
rule is applied, HOVIC (or Hess) could have determined at some point [firom 1965 through June
10 1982 and from November 29 1984 to October 30 1998 [Comp] 12 1] 5) that CB1 Services
PlTGl, 3M Tuthill Born Inc, Elliott, and Raritan did not provide the certificates of insurance they
purportedly agreed to by accepting HOVlC 3 purchase order
1153 An agreement to procure insurance is a contract See Goodyear Tire & Rubber Co v j M Tu]!
Metals Co, 629 So 2d 633 639 [Ala 1993) ( A contractual obligation to indemnify is distinct from
a contractual obligation to procure insurance ) Kinney v G W Llsk Co , 556 N E 2d 1090 1092 (N Y
1990) ( An agreement to procure insurance is not an agreement to indemnify or hold harmless and
the distinction between the two is well recognized ), 30186 Cascade Corp v Mam Erbauer, Inc, 620
A 2d 280, 281 82 (Me 1993) ( An agreement to obtain insurance is not an agreement ofinsurance
a person promising to obtain insurance does not by that promise become an insurer although he
may assume the liabilities of one if he breaches the agreement (quoting Zettel v Paschen
Contractors Inc 427 N E 2d 189 191 (ill App Ct 1981)) see also Audubon Indem Co v Custom Site
Prep Inc 358 S W 3d 309 321 (Tex App 2011) (reversing summary judgment on breach of
contract claim for failure to obtain insurance) 'A failure by the promisor to procure insurance for
the benefit of the promisee, pursuant to an insurance procurement provision, constitutes a breach
ofcontract by the promisor Roffi v Metro North CommuterR R 98 Civ 8713 (THK) 2001 U S Dist
LEXIS 20265 *24 (S D N Y Dec 5 2001) Thus the Court finds that the six year statute of limitations
applies here 13
13 The question which statute of limitations applies is generally a question oflaw Cf Steadfast Ins Co v Greenwrch Ins
Co 922 N W 2d 71, 77 (Wis 2019] ( Determining which statute of limitations applies to contract issues involves a
question of law ) accord Smith v State
282 P 3d 300. 303 (Alaska 2012) ( ‘A trial court's determination about
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1154 Assuming the truth of HOVIC s allegations as the Court must on a motion to dismiss CB]
Services, PITGI, and 3M (as well as Tuthill Born Inc Elliott, and Raritan who joined the motions)
agreed to furnish Certificates of Insurance [flrom 1965 through June 10, 1982, and from
November 29 1984 to October 30 1998 (Compl p 12 13 1] 5 see id at 15 1] 1 ) Taking HOVIC s
allegations as true CBl Services, PITGI 3M Tuthill, Born Inc, Elliott, and Raritan all breached their
agreement to obtain insurance But even when applying the discovery rule and even when viewing
the facts in the light most favorable to the plaintiffs, the Court must also find that HOVIC (or Hess)
knew or should have known within six years after July 1, 1997, when the first District Court lawsuit,
Andrew et a! v Amerada Hess Corporation et a! was filed or by luly 1 2003 that 3M, PITGI, and
CBI Services had failed to procure insurance The Court cannot agree with HOVIC that the accrual
date on a claim for breach of an agreement to obtain insurance begins when the underlying claims
are settled That conclusion would obliterate the statute of limitations In fact a strong argument
could be made that HOVIC knew or should have known within six years after each purchase order
which statute of limitations applies is a question of law (citation omitted)) But cf. Syed v Hercules Inc 214 F 3d 155
159 n 2 (3d Cir 2000) ( We exercise plenary review over the District Court's choice of the applicable statute of
limitations ) But failure to raise the statute of limitations, which is an affirmative defense, at the earliest opportunity
results in waiver Rennie v Hess 01] VI Corp
62 VI 529 S36 (2015) ( [l]t is well established that the statute of
limitations is an affirmative defense that must be specifically pleaded at the first opportunity or else is waived
(collecting authorities) The Defendants did not raise the VlUCC four year statute oflimltations until the March 19 2020
hearing (See PITCH/CB} Mot 7 (citing S V I C § 31(3)(A)) see 3M Mot 3 (same) ) This constitutes wavier Moreover
whether an indemnification clause within a purchase order for goods should be considered separate from or
incorporated into a sales contract is unanswered in the case law Cf. Titameum Metals Corp v Elkem Mgmt
87 F Supp
2d 429 431 (W D Pa 1998) ( The question then is whether the tender of delivery rule applicable generally in UCC
actions applies to this claim for indemnity There is a split of authority on this issue (footnote omitted)) Some
courts note that indemnification is separate from the goods sold See id at 431 32, see also Travelers Indem Co v
Dammann & Co
592 F Supp 2d 752 767 (D N l 2008) Others assumed without deciding that the UCC four year statute
oflimitations applies Cf Mullznax v Bepex Corp Nos 89 2029 89 2158 1990 U 5 App LEXIS *1 n 1 (4th Cir Nov 9
1990) (per curiam) ( We assume without deciding, that the contract should be deemed to include the indemnification
clause Stouffer argues that under UCC 2 207 the indemnification clause was never part of the sales contract Given our
disposition of the case, we find it unnecessary to decide this question ") Resolving the question whether the four year
UCC statute of limitations would apply or the general six year statute of limitations is further complicated here because
HOVIC is not only suing for contractual indemnification but also for breach of the agreement to obtain insurance to
cover the potential need for indemnification Although the Defendants timely raised the statute of limitations, they
asserted that the six year statute of limitations governed Waiting approximately fifteen years to raise the four year
VlUCC statute of limitations constitutes waiver Moreover HOVIC in its complaint, alleges (without specification,
however} that the Defendants sold marketed, distributed, installed, serviced and/or maintained asbestos containing
products at the HOVIC refinery on St Croix (Compl p 12 112w) ) Sales contracts would be covered by the VlUCC but
services contracts might not Cf. Gulash v Sty/larama Inc 364 A 2d 1221 1223 (Conn Super Ct 1975) ( It is clear that
where the contract is basically one for the rendition of services, and the materials are only incidental to the main
purpose of the agreement, the contract is not one for the sale of goods under the UCC ) Again which statute of
limitations applies and why was for the Defendants to argue
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was issued and accepted that it never received the certificates of insurance that its suppliers had
agreed to provide Accord Penn, 324 F Supp 3d at 711 (“[A] claim accrues in the failure to procure
insurance setting when a fixed violation of the duty to obtain insurance occurs, such as when a
deficient insurance policy is issued That is because only a slight injury as a result of the breach is
necessary to trigger accrual )
1155 Again taking HOVIC s allegations as true the purchase orders between CBI Services PiTGI
3M, Tuthill, Born Inc, Elliott and Raritan and HOVIC (or Hess) were contracts CB] Services PITGI,
3M Tuthill Born Inc Elliott, and Raritan expressly agreed to obtain insurance in support of their
agreement to indemnify, hold harmless and defend HOVIC ” [Comp] [3 16, 1} 2) CBl Services
PITGI, 3M, Tuthill, Born Inc, Elliott and Raritan breached this agreements But the statute of
limitations has run on claims for failure to obtain insurance arising out of the Andrew, Crichlow,
Abraham johnhope, Moreta Felix, Frederick, Smith jacob Moore Williams Caminero, and Cabreja
lawsuits Assuming HOVIC 5 claim arose on the date each lawsuit was filed, then HOVIC should have
known within six years thereafter that CB1 Services, PITGI 3M, Tuthill, Born Inc Elliott and Raritan
had failed to obtain insurance Raritan and 3M were Hess co defendants in every District Court
case This is an instance where the complaint (and the documents incorporated by reference) '50
clearly reveals the existence of a defense that judgment on the pleadings is possible[] United Corp,
64 V l at 306 (citation omitted) As for the other District Court cases, the Court cannot conclude that
the statute of limitations has run because those cases, Caraballo, and Carrion and Morgan, were filed
in 1999 and 2001, respectively, and six years had not passed by March 29, 2005, the date when
HOVIC filed its complaint
1156 However since discovery has been stayed, and since HOVIC’s claims must be severed as
explained below the Court finds that the most just, speedy, and inexpensive way to proceed at this
point is grant the motions in part but stay the dismissal of Count IV and certify by separate order
the following questions of law to the Supreme Court of the Virgin Islands (1) does the discovery
rule apply to contract claims, and (2) when does a breach of contract claim for failure to obtain
insurance accrue? As the case law demonstrates, there are reasonable grounds for a difference of
opinion on these questions And the questions are controlling If the Supreme Court concludes
generally that contract claims are not subject to the discovery rule or that a claim for breach of an
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agreement to obtain insurance in particular accrues within the statute of limitations, then Count [V
may have to be dismissed outright for all District Court cases and not just in part Moreover,
resolution of these questions may materially advance the ultimate termination of this litigation as
well as other litigation Cf Klinghofl‘erv S N C Achille Laura Ed Altn Gestione Motonave Achille Laura
In Ammmistrazzone Straora'mana
921 F 2d 21 24 (2d Cir 1990) ( [[]n exercising our discretion
under the statute we may properly consider the system wide costs and benefits of allowing the
appeal in other words the impact that an appeal will have on other cases is a factor that we may
take into account in deciding whether to accept an appeal that has been properly certified by the
district court )
E Contribution / Indemnification as to all District Court Cases
157 CB! Services and PlTGl also move to dismiss HOVICs claims for contribution [Count 1)
common law indemnification (Count ll) and contractual indemnification (Count ill) in support,
they attached copies of the Settlement Agreement and Mr and Mrs Abraham 5 release They argue
that HOVIC failed to discharge their potential liability and therefore the right to seek contribution
or indemnification does not exist (See PITGl/CBI Mot 5 ( The right of contribution exists only in
favor of a tortfeasor who has discharged the entire claim for the harm by paying more than his
equitable share of the common liability (ellipsis omitted) (quoting Restatement (Second) of Torts
§886A(2) (1979)) see id at 6 ( The same equitable principle applies to HOVIC 5 claims for common
law indemnification ) john Crane, Tuthill Alltite and Born lnc joined the motions filed by CB!
Services and PITGI
1158 To the extent the motions relate to HOVIC 5 claims rather than Hess claims, the Courts
discussion above concerning Elliott s motion resolves CBI Services and PlTiG s motions except for
the Carrion and Morgan Plaintiffs Regarding contribution and common law indemnification as to
the Carrion and Morgan Plaintiffs, to determine whether HOVlC (or Hess) did or did not extinguish
anyone 5 liability, the Court would have to look outside the pleadings to make that determination
Based on the documents CBl Services and PlTGI attached, the Court would also have to convert their
motions to motions for summary judgment See V l R Civ P 12(d) CBI Services and PlTGl disagree
(Cf. PlTGI/CBI Mot 8 ( This Court may rely upon the settlement agreement and release attached
hereto to determine the instant motion without converting [it] to a motion for summary judgment
Hess 011V] Corp v Fluor Daniel et a] 2020 VI Super 50
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Memorandum Opinion
Page 36 of42
[bold font omitted)) ) Although the Court concluded above that HOVIC had incorporated the District
Court cases into its complaint by reference, and therefore the Defendants could refer the Court to
the complaints the District Court Plaintiffs filed to Show that HOVIC was not named and even
though HOVIC did reference the Settlement Agreement and the releases with the District Court
Plaintiffs in its complaint the Court cannot find here that HOVIC further incorporated the terms of
approximately 150 different releases executed by the District Court Plaintiffs into its complaint The
incorporation by reference doctrine does not extend that far Moreover CBI Services and PlTGl
only attached the release signed by Oliver and Alexandrine Abraham The Court cannot assume that
the release all other District Court Plaintiffs signed was identical Thus, the Court finds that it would
have to convert the motion to one for summary judgment And, in this instance the Court cannot
find that HOVIC (or Hess) had notice Cf. Stanley 2020 Vi Super 47 at 1W 15 16 Therefore the
motions must be denied as to Counts l and II as to the Carrion and Morgan Plaintiffs as to HOVIC
And the motion must be denied without prejudice as to Hess See V] R Civ P 17(a)[2)
1159 Regarding contractual indemnification, CBI Services and PlTGl argue that the Court should
also dismiss Count Ill because HOVIC failed to plead all the essential elements of a breach of contract
claim (See PlTGl/CBI Mot 12 ( First HOVIC does not allege the existence ofany particular contract
Rather HOVIC contends that over a period of 33 years, it and PlTGI among the other numerous
named defendants must have entered into innumerable and undefined shipping/ transfer
agreements based on HOVIC s usual business practices )) Further, since HOVIC was not named as
a defendant in the District Court cases CBI Services and PlTGl contend that HOVIC fails to state a
claim for breach of the duty to defend But rather than argue that HOVIC did not have to defend the
District Court cases because it was not named as a defendant PITGI and CB] Services instead argue
that the statute of limitations has run They contrast language HOVIC included in its complaint from
its standard purchase orders namely the language in effect from 1965 through june 10 1982 and
November 29 1984 through October 30, 1998, from language in effect between june 10 1982 and
November 29, 1984, and assert that the duty to defend, if any 'could only have existed from june
10, 1982 until November 29, 1984 Id at 14 CBI Services and PITGI s arguments are rejected
1160 In ruling on a motion to dismiss for failure to state a claim for relief, courts ’assume all
reasonable factual allegations in the complaint as true and draw all fair inferences from such
Hess 011 VI Corp v Fluor Daniel at a] 2020 VI Super 50
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Page 37 of42
allegations Arno v Hess Corp , 2019 Vi Super 140 1i 37 (quoting In re Kelvm Manbodh Asbestos
Ling Series, 47 V l 375 380 (Super Ct 2006)) The basic purpose of a motion to dismiss is to test
the legal sufficiency of the complaint to state an actionable claim not to test the truth of the facts
alleged in the complaint Id (ellipsis and citation omitted) HOVIC clearly stated a breach of contract
claim in its complaint, HOVIC alleges that its purchase orders were valid and binding contract to
which the defendants were parties (Compl p 12, 1i 4) HOVIC further alleges that its purchase
orders contained indemnification language(] Id 1] 5 Although CB] Services and PlTlG are
correct, the word defend only appears in the language HOVIC claims was in effect from 1982 to
1984, the Court cannot resolve this dispute on a pre answer motion to dismiss The language in
effect during all other times relevant here included a duty to indemnify Some courts have observed
that the duty to indemnify implies a duty to defend Cf Hennessy v Robinson,
985 F Supp 283, 287
(N D N Y 1997) ( [TJhis Resolution provides for indemnification which, of course includes the duty
to defend because duty to indemnify includes the duty to defend as well ) Other courts have held
that the duty to defend is broader than the duty to indemnify Hecla Mining Co v N H Ins Co
811 P 2d 1083 1089 (Colo 1991) [f the language of the contract is ambiguous determining the
meaning of the contract becomes a question of fact See Phillip v Marsh Monsanto
66 VI 612 624
(2017) Factual disputes cannot be decided on a pre answer motion to dismiss for failure to state a
claim for relief CBI Services and PlTGl s motions, as joined by others must be denied
F MlSjOinder
1J61 Lastly John Zink moves to dismiss HOVIC s complaint because HOVlC should have filed a
separate civil complaint in the case of each of the underlying federal court plaintiffs in which HOVIC
believes that it is entitled to relief (John Zink Mot 4) John Zink cites to the directive of the
Court (Cabret, P J ) at a status conference held on May 4 2005 in Manbodh in which [t]he Court had
ruled from the bench that parties wishing to recover the settlement monies should follow the same
procedures that were followed in the previous asbestos cases In re Kelvm Manbodh Asbestos Ling
Series 69 V l at 431 (brackets and citation omitted) However as the Court (Willocks J) noted in
Manbodh, referring to this case
the May 4, 2005 hearing was held in Manbodh not in Fluor The clerk did not call
the Fluor case Counsel for Fluor did not appear Hence the ruling from the bench may
Hess 011V! Corp v Fluor Daniel et a] 2020 VI Super 50
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Page 38 of42
not have been an order strictly speaking, as to FIuor [A]nd most importantly, Fluor
had already been filed more than a month before the May 4, 2005 hearing occurred
Id at 431 32 (footnotes omitted) Although oral orders are enforceable pending reduction to
writing Id at 432 no order issued in Fluor to that effect [And] more importantly, objections had
been raised during the May 4, 2005 hearing against having HOVIC file individual complaints Id
1f62 While john Zink and other Defendants argued that the May 4 2005 bench ruling is
controlling this Courtis not convinced Butcfi id at 432 n 20 Evenifitwere controlling the rul[ing]
that parties wishing to recover the settlement monies should follow the same procedures that were
followed in the previous asbestos cases, In re Kelvm Manbodh Asbestos Lit Series, 2005 V l LEXIS
40 at *4 n 1, was an interlocutory order Once this case was reassigned to the undersigned judicial
officer by the Presiding judge, the reassignment brings with it the discretion to revise any
interlocutory order at any time prior to entry of a final judgment Island Tile & Marble LLC v
Bertrand 57V[ 596 609 (2012) [citation omitted) See also In re Estate ofGeorge 59Vl 913 920
21 (2013) (one judge replaces another when cases are reassigned and may reexamine prior
interlocutory orders) Since this Court can reexamine the prior judge s interlocutory orders, Estate
ofGeorge 59 Vi at 920, the Court will modify the May 4 2005 bench ruling, even if it could be
considered a decision rendered in this case
1163 There is no question here that lohn Zink is correct complexity and confusion will
certainly result from the[] 149 separate claims for relief being presented under a single caption
which purports to address the allegations and underlying facts and circumstances in every one of
the 149 federal court settlements (John Zink Mot 4) But dismissal of claims or parties has
never been sanctioned in the Virgin islands for misjoinder See Grant v HOVENSA LLC 70 VI 639,
648 (Super Ct 2019) ( The remedy for misjoinder is not dismissal but severance (citation
omitted)) Abednego v St Cram Alumina LLC
63 VI 153 193 (Super Ct 2015) ( Misjoinder is
simply not grounds for dismissal ) Homer v Lorzllard 6 V I 558, 575 (Mun Ct 1967) (“Misjoinder
of parties is not ground for dismissal of an action (citation omitted)) Instead the Court must sever
the claims to be refiled individually The District Court Plaintiffs did not sue the same companies
The Andrew Plaintiffs and the Carrion Plaintiffs both sued Dresser for example which HOVlC did
not name in this action By contrast, the Andrew Plaintiffs sued Owens Corning Fiberglass
Corporation, but the Carrion Plaintiffs did not And the Carrion Plaintiffs sued Mobil Oil Company
Hess 011 VI Corp v Fluor Dame! et a!
2020 VI Super 50
Case No 8X 05 CV 165
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Page 39 of42
but the Andrew Plaintiffs did not Both sued 3M, Raritan, and Elliott among others, who were Hess
co defendants in the District Court cases Thus the defenses the Defendants could raise here may
differ depending on the underlying case But because Hess must be given a chance to ratify, join,
or be substituted into the action ' V l R Civ P 17(a)(2], the complaint does not give the Defendants
sufficient notice of what defenses they may have as to Hess For example, 3M and Raritan may assert
that Hess should have crossclaimed against them in the District Court cases That defense would not
be available against HOVIC
1} 64 Moreover the challenges the Defendants may assert may change if Hess substitutes into
this action in place of HOVIC, all the arguments the Defendants raised regarding HOVIC s nonparty
status in the District Court cases may be rendered moot By contrast, if Hess joins HOVIC then the
Defendants may be able to renew their challenges to the viability of HOVIC 3 claims But none of
these issues can be resolved nor can these cases proceed to trial with approximately 60 000
claims (double if there really are two plaintiffs here) asserted within a single complaint HOVIC,
either individually, or individually and on behalf of Hess, asserted six claims for relief against
approximately forty four defendants, sixty eight when their successor capacities are included
Although LMC and the Martin Marietta Defendants were dismissed, which resolved Count Vi that
still leaves five counts against more than thirty different companies Considering that claims of
contribution and indemnification concern the underlying cases they arose out of it just is not
possible to proceed with essentially 149 contribution claims and 149 indemnification claims against
roughly 35 defendants in the same case Who was named as a defendant in each District Court case,
whether that defendant crossclaimed against any other defendant, and how those claims were
resolved are all germane to this case going forward
1165 HOVIC claims that it commenced this action to recover only those settlement monies paid
to Asbestos Claimants from defendants collectively’ (Compl TIS) But it is not that
straightforward 14 HOVIC (or Hess, or HOVIC and Hess) cannot recover the full amount that they
paid to Mr and Mrs Abraham from each and every Defendant instead, contribution requires proof
of each Defendant’s possible or potential liability to the injured party Each Defendant can only be
14 For example whether HOVlC's complaint also sought to recover monies paid to the wives of the District Court
Plaintiff Workers is unclear The list of District Court Plaintiffs HOVIC attached to its complaint names only the men
Hess on v1 Corp v FIuor Daniel et a1
2020 VI Super 50
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Memorandum Opinion
Page 40 of42
found liable to that extent and no further Cf Games v Brodhurst
394 F 2d 465 468 (3d Cir 1967)
( a system which taxes non settling tort feasors to the extent of their negligence, and no further is
the more equitable ), see also 1d at 469 70 (noting that the rule in the Virgin Islands "impos[es]
liability upon joint tort feasors in proportion to their comparative negligence ') Said another
way contribution requires apportioning each Defendant’s potential or possible liability to the
District Court Plaintiffs Accord 5 V l C § 1451(d) ("Where recovery is allowed against more than
one defendant, the trier of fact shall apportion, in dollars and cents, the amount awarded against
each defendant Liability of defendants to plaintiff shall be joint and several but, for contribution
between defendants, each defendant shall be liable for that proportion of the verdict as the trier of
fact has apportioned against such defendant ) By contrast, indemnification transfers all of
HOVIC s (or Hess or HOVIC s and Hess) liability Cf EEOCv M G 01] Co 274 F Supp 3d 927 931
(D S D 2017) ( {Cjontribution transfers partial liability while indemnification transfer total
liability ) accord Henthorne v Legacy Healthcare 764 N E 2d 751 756 [Ind Ct App 2002)
[ Indemnity requires full reimbursement and transfers liability from one who has been compelled
to pay damages to another who should bear the entire loss[} ' (quoting 41 Am Iur 2d Indemnity§
1 at 348 [1995 ed )) But neither HOVIC nor Hess can transfer their entire liability to each and every
Defendant if they carry their burdens of proof they may be made whole But HOVIC and Hess
cannot make a profit on backs of the District Court Plaintiffs Whats more the ‘remedies of
contribution and indemnity are mutually exclusive, with contribution prohibited where a party has
a right to indemnity and vice versa Levy v HLI Operating Co 924 A 2d 210 221 (Del Ch 2007)
(citation omitted) State Farm Fire & Gas Co v Bush Hog LLC 219 P 3d 1249 1252 (Mont 2009)
( Contribution and indemnity differ from each other in that contribution distributes loss among
joint tortfeasors by requiring each to pay his or her proportionate share of the negligence that
caused the plaintiff‘s injuries, whereas indemnity shifts the entire loss from the one who has been
required to pay it to the one who should bear the loss ) And HOVIC and Hess cannot recover under
both common law indemnification and contractual indemnification from the same Defendant (If
Holtv Walsh Grp 316 F Supp 3d 274 281 82 {D D C 2018) ( [M]any states have held that where
an express written indemnification provision exists, the agreed upon terms of that provision and
not principles of implied or equitable indemnification control the duties and respective liability of
Hess Oil VI Corp v Fluor Daniel er a! 2020 VI Super 50
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Memorandum Opinion
Page 41 0f4-2
the contracting parties (collecting cases)), accord In re Kelvm Manbodh Asbestos Litig Series,
47
VI 267, 289 (Super Ct 2005) ( A cause of action for contractual indemnification is similar to its
common law incarnation except the former is limited to staying within the realm of rights
predefined by a contract ) While HOVIC (and Hess) can plead contribution common law
indemnification, and contractual indemnification in the alternative they cannot recover on all three
claims from each Defendant
if 66 Under these circumstances, the simplest solution is to sever the claims and order HOVIC to
refile individually and pay the accompanying filing fee for each forthcoming complaint The
operative complaint would have to be amended since HOVIC must allege that it is proceeding on
behalf of Hess unless Hess elects to substitute in place of HOVIC If Hess elects to substitute then
the complaint certainly must be amended And if Hess and HOVIC are asserting claims here, then
that too requires an amendment ' Even in a notice pleading jurisdiction, a complaint must include
a short and plain statement showing that each plaintiff is entitled to the relief demanded Arno
2019 V1 Super 140 at 11 48 (citation omitted) Additionally several Defendants have filed for
bankruptcy in the fifteen years since this case was filed and may have to be dropped To streamline
this case and avoid further delay, the Court will direct that each forthcoming complaint be limited
to claims arising out of or relating to one District Court Plaintiff, name only those companies as
defendants whom HOVIC (or Hess) contends would have been liable for that Plaintiffs and include
as an attachment to its complaints, a copy of the complaint filed by that Plaintiff, as amended if
relevant HOVIC {and Hess) may also reassert Count IV, notwithstanding the determination above
that it must be dismissed but only insofar as a petition for permission to appeal is filed with the
Supreme Court of the Virgin islands The Defendants may attach copies of other pleadings, ie,
crossclaims counterclaims, etc, to their answers to the forthcoming complaints if such pleadings
filed in the District Courts cases would be germane to their defense The Court will direct the Clerk 5
Office to open a master case to coordinate the forthcoming cases under the caption In re Oliver
Abraham Federal Asbestos Litigation Series
ll] CONCLUSION
1167 For the reasons stated above, the motions filed by John Zink and R&G to dismiss based on
HOVIC s standing and the Superior Court’s subject matter jurisdiction will be denied HOVIC asserts
Hess 0!] VI Corp v Fluor Daniel et a] 2020 Vi Super 50
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Page 4-2 of42
that Hess assigned its rights to HOVIC Hess must be given an opportunity to join ratify or substitute
into this action before the complaint can be dismissed Therefore, all dispositive motions will be
denied without prejudice as to Hess The Court will, however grant Elliott s motion for summary
judgment as to HOVIC because HOVIC failed to carry its burden to Show that material facts still
remain in dispute regarding HOVIC 5 claims for contribution and indemnification arising out of the
District Court Plaintiffs who filed cases between 1997 and 1999 HOViC did not have any potential
liability in 2003 because the statute of limitations had run by then The Court will also grant the
motion filed by 3M, CBI Services and PITGI to dismiss HOVIC 5 claim for failure to obtain insurance
claim but will stay the dismissal for ten days to allow for the filing of a petition for permission to
appeal certified questions of law to the Supreme Court of the Virgin Islands All other motions will
be denied without prejudice, except that Strahman Valves motion for summary judgment must be
stricken as not being properly before the Court Lastly, the Court will sever all claims and order
HOVIC (individually, on behalf of Hess, or individually and on behalf of Hess) to refile one complaint
per District Court Plaintiff joining claims for contribution and indemnification, and related
contractual claims, arising from a settlement with 149 asbestos plaintiffs in sixteen different
lawsuits was improper Appropriate orders follow ’1 9 ’/
Date April 8 2020 z I
I i LE, U I OY
ATTEST judge of the Superior Court
TAMARA CHARLES
Clerk of the Court
By 45—4
Court Cle
Dated 2‘ A? 3030