IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
GUARDIAN INSURANCE COMPANY
CIVIL CASE NO 8X 19 CV 110
Plaintiff,
v ACTION FOR DECLRATORY JUDGMENT
RAMZY ABDALLAH
Cite as 2021 VI Super 20
Defendant
Mark D Hodge, Esq
HODGE & HODGE
St Thomas U S VI
Attorneyfir Plating}r
Yohana M Manning,Esq
MANNING LEGAL SERVICES P C
St Croix, U S V I
Attorneyfor Defendant
BRADY, Douglas A , Judge
MEMORANDUM OPINION and ORDER
1! 1 Before the Court is Plaintiff/Counter Defendant Guardian Insurance Company’s Motion
for Partial Reconsideration of the Court’s December 18, 2020 Order Denymg in Part Plaintiff‘s
Motion to Dismiss Defendant’s Counterclaims Defendant Ramzy AbdalIah has filed no response
By its December I8, 2020 Order the Court found that five of the six claims of Abdallah’
s
Countcrclaim sufficiently set forth short and plain statements of those claims, adequate to put
Guardian on notice ofclaims brought against it, denying Guardian’s Moti0n to Dismiss as to those
claims By its present Motion for Reconsideratlon, Guardian asserts that it is entitled to reliefunder
V I R Civ P 6 4(b) (3) and (4) to correct a clear error of law, and because the Conn
failed to
address issues specifically raised in Guardian’s Motion to Dismiss For the reasons set forth
herein,
the Court w111 grant Guaxdian’s Motion and dismiss Defendant/Counter Plaintiff
Abdallah’s
Counterclaim in its entirety
1! 2 Further, it appears that there are no genuine issues of material fact in dispute with regard
to Guardian’s Complaint seeking declaratory judgment and specific performance by Abdallah
of
Guardian Insurance Company v RamzyAbdaIIah SX 19 CV 110
Memorandum Opinion and Order Granting Plaintiff’s Motion for Partial Reconsideration
Page 2 of 7
2021 VI Super 20
Personal Auto Policy No PAP327333 (Policy) between the parties This matter will therefore
come on for a speedy heating, pursuant to V I R Civ P 57
LEGAL STANDARD
1] 3 Guardian filed its present Motion for Reconsideration, asserting that the Court erred in
denying its Motion to Dismiss in that Abdallah’s contractual connterclaims are invalid based on
the terms ofthe Policy, and that Abdallah’s defamation counterclaim must fail as it does not allege
facts showing publication of the alleged defamatory statements, an element required to show that
he is entitled to relief for defamation
1i 4 A party moving for reconsideration must demonstrate (1) an intervening change in
controlling law, (2) the availability of new evidence, or (3) the need to correct clear error of law
or prevent manifest injustice ” Beachside Assocs LLC v Fishman, 53 V I 700, 715 (V I 2010),
see alsoVI R Civ P 6-4(b)
115 When ruling on Guardian’s Rule 12(b)(6) Motion to Dismiss, the Court was free to
consider the allegations of Abdailah’s Counterclaim, exhibits attached and matters of
public
record See Penman Benefit Gum Corp v White Como! Indus , 998 F 2d 1192, 1196 (3d
Cir
1993) The Court could also have considered “documents whose contents are alleged
in the
complaint and whose authenticity no party questions, but which are not physically attached to the
pleading ’ See Pryor v NCAA 288 F 3d 548 560 (3d Cir 2002) (internal citations omitted)
The
reasoning underlying this approach is particularly sound where the exhibit being considered is the
very document forming the basis of a claimant’s pleading Thus, “when ruling on
a motion to
dismiss, courts may consider undisputed documents relied upon by the claimant ” Groflv Cane
Bay Partners VI LLLP 2017 WL 2709832 at *1 (V I Super 2017)
1| 6 Here, Guardian included a copy ofthe Policy as an exhibit to its Complaint, and Abdallah
specificalIy referenced the terms of the Policy in his Counterclaim Because the contents of
the
Policy are alleged in the Counterclaim and Guardian confirms the authenticity of the
Policy, its
terms could have been considered in the Court’s ruling on Guardian’s original Motion to
Dismiss
without converting it to a Rule 56 monon for summary judgment See V I R Civ R 12(d)
The
Court now considers the Policy terms in evaluating Guardian’s present Motion challengi
ng the
sufficiency of Abdallah’s Counterciaim
Guardian Insurance Companyv Ramzy Abdallah SX l9£V 110
Memorandum Opinion and Order Granting Plaintiff’s Motion for Partial Reconsideration
Page 3 of 7
2021 VI Super 20
17 V I R Civ P 12(b)(6) permits a plaintiff to respond to a counterclaim by motion rather
than through a responsive pleading if the basis for the motion is the counterclaimant’s “failure
to
state a claim upon which relief can be granted ” The Virgin Islands “is a notice
pleading
jurisdiction,” and counterclaims must meet the nettee pleading standard of V I R Civ
P 8(a)(2)
to overcome a 12(b)(6) motion See Mills Wzllzams v Mapp 67 VI 574 585 86
(VI 2017)
(citations omitted) Under the notice pleading regime, counterclaims must present “a short and
plain statement of the claim showing that the pleader is entitled to relief ” V I R Civ P 8(a)(2)
DISCUSSION
Defendant/Counter Plaintiff’s Counterclaim
fl8 Abdallah’s Counterctaim rests on the assertion that the insurance contract is a “stated value
insurance policy, declaring that the value ofthe vehicle is $36,000 ”' However, Guardian’s
Motion
for Reconsideration recites the actual language ofthe insurance agreement, presented in its
Motion
to Dismiss, which ctearly establishes that the Policy is not a “stated value” policy
but rather an
“actual cash value” policy, subject to both depreciation and deductible 2
You have purchased an insurance policy that insures your vehicle for its Actual
Cash Value (defined as Replacement Cost less Depreciation) This means that at
the time of loss your claimed loss will be evaluated on the basis of the cost of new
parts, less reasonable depreciation, and less deductible
As our insured, you have the option to purchase 3 Replacement Cost Policy
(cost
new) at an additional cost Please consult your agent about your options
‘7 9 Because the Policy is an actual cash value policy agreement, by its terms to which
Abdallah agreed Abdallah is only entitled to the replacement cost of his vehicle at the time of
loss less depreciation and less deductible This is stipulated in the Personal Auto
Policy
Declarations page that reflects a premium paid for coverage for damage to your
Auto” as “Actual
Cash Value minus Deductible ”
1: 10 By Part D of the Policy, “Coverage for Damage to Your Auto,” Guardian
agreed in the
“Insuring Agreement” 1A “We will pay for direct and accidental loss ‘to
your covered auto’
minus any applicable deductible shown in the Declarations ”
' Counterclaim fl 4
2 Guardian’s Mot Dismiss, at I l
Guardtan Insurance Companyv Ramzy AbdaIIah SX l9-CV llO
Memorandum Opinion and Order Granting Plaintiff’s Motion for Partial Reconsideration
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2021 VI Super 20
1] 11 The limits of Guardian’s payment for loss under Part D is set out in the section entitled
“Limit of Liabiiity,” as follows
A Our limit of liability for loss will be the lesser of the
1 Actual cash value of the stolen or damaged property, or
2 Amount necessary to repair or replace the property
B An adjustment for depreciation and physical condition will be made in
determining actual cash value at the time of loss 3
fl 12 Policy based claims, Abdallah presents five separate claims within his Counterclaim 4 His
claim for alleged violation of the VI Civil Rights Act (10 V I C §64) has been
previously
dismissed His claim for defamation is addressed below Each of Abdallah’s other three claims
(for breach of contract, breach of the implied covenant of good faith and fair dealing,
and for
deceptive trade practices) is premised on the erroneous assertion that the Policy is a ‘ stated value’
agreement requin'ng that Guardian is bound by the Policy to reimburse him for his loss in the
amount of $36,000, the “stated value” of the vehicle
1| 13 The breach of contract claim is based on Guardian’s “failure to pay the stated value ”5
On
account of Guardian’s insistence on paying Abdallah’s claim based upon the
Policy terms, he
asserts that ‘Guardian has failed to perform the contract in good faith and has breached the implied
covenant of good faith and fair dealing ’6 Further Abdallah asserts that Guardia
n “engaged in a
deceptive trade practice by inter alia creating a stated value policy and refusing
to pay the stated
value in case of a total and complete loss as occurred here 7
1i 14 By each of these legal theories Abdallah claims that he is entitled to relief because
Guardian violated its obligation under the Policy by offering him $19,000 payment
for his stolen
auto, based upon its actual cash value rather than the $36,000 “stated value” to which he
claims
the Policy entitled him The plain terms of the parties insurance agreement
make clear that
Guardian’s limit of liability on Abdallah’s loss is the actual cash value of the
vehicle at the time
3 Id Exhibit A
‘ The Counterelaim fails to conform to the requirements of V I R Civ P 8(2)
in that it simply presents
difi’erent claims in consecutively numbered paragraphs without “separate designati
on of counts for each
claim identified in the pleading ”
5 Counterciaim 1}]?
a 1d 718
7 Id m9
Guardmn Insurance ( ompany v Ramzy AbdaIIah 8X 19 CV 110
Memorandum Opinion and Order Granting Plaintiff’s Motion for Partial Reconsideration
Page 5 of 7
202R VI Super 20
of its loss Accordingly, all of Abdallah’s contractual claims based upon an erroneous assertion of
the Policy tenns cannot survive Guardian’s Mouon for Reconsideration will be granted as to these
counts, each of which will be dismissed with prejudice a
{I 15 Defamation Abdallah timber alleges that Guardian falsely stated that Abdallah
orchestrated the theft of his own vehicle and engaged in insurance fraud, commuting defamation
and defamation per sag However, these communicanons are only alleged to have occurred
between the parties—«Guardian through its agent, adjuster or attorney and Abdallah One of the
necessary elements ofdefamation is ‘an unprivileged publication to a third party ” Joseph v Datly
News Pub] g Co Inc , 57 VI 566 586 (V I 2012) (citing RESTATEMENT (SECOND) OF Toms
§558(b)) Publication means the “communication intentionally or by negligent act to one other
than the person defamed’ Id (citing RESTATBMENT (SECOND) 01-" Tons § 577)
7} l6 Abdallah does not allege publication of the purported defamatory statements to anyone
other than to Abdallah himself '0 Although Abdallah s pleading alleges no publication of the
alleged defamatory statements to anyone other than Abdallah himself, a claim is made that
Abdallah’s attorney warned Guardian’s attorney concerning defamation “Guardian Insurance
through Mr Foumier then began to accuse Mr Abdullah of theft and Insurance fraud with
absolutely no proofwhatsoever Guardian’s counsel thereafter engaged in the conduct and quickly
refrained after counsel reminded her that she was engaging in defamation per se ””
11 17 Even if a claim were presented that Guardian’s representatives made defamatory
statements concerning Abdallah to Abdallah’s counsel, those communications must be seen to be
conditiOnally privileged “An occasion makes a publication conditionally privileged if the
circmnstances induce a correct or reasonable belief that (a) there is information that affects
a
' In its “Wherefore” clause, the Counterclaim also seeks damages for the tort of “insurance bad faith,”
not
elsewhere mentioned in the Counterclaim Because Abdallah’s pleading does not set out “a
short and plain
statement of the claim showing that the pleader is entitled to relief" with reference to such a
claim, to the
extent that such a claim is alleged, it also subject to dismissal See V l R Civ P 8(a)(2)
9 Counterclaim ‘11 ll, 20
'° “Guardian thereafter began to accuse Abdullah of orchestrating the thefi of his vehicle;
“Abdullah
further claims that Guardian has defamed him and engaged in defamation per se by suggesting
that he
orchestrated the theft of his vehicle and engaged in insurance fraud ” Counterelaim 1|? l l;
20
” Answer to Complaint and Counterclaim, introduction, at l
Guardtm Insurance Company v Ramzy AbdaIIah SX 19 CV 110
Memorandum Opinion and Order Granting Plaintifi’s Motion for Partial Reconsideration
Page 6 of '7
202! VI Super 20
sufficiently important interest ofthe publisher, and (b) the recipient’s knowledge
ofthe defamatory
matter will be of service in the lawful protection of the interest ”'2
1] 18 Communications between Guardlan’s representatives and Abdallah and his attorney
in the
context of seeking a resolution of Abdallah’s insurance claim concerning the vehicle
he reported
stolen clearly affect an important interest of Guardian, the alleged publisher of the
offendmg
defamatory statements (and also affect an important interest of Ahdallah)
In that context,
knowledge of the information conveyed by Guardian’s lepresentatives to Abdalla
h’s attorney
would benefit the lawfiJl protection of Guardian’s interest in seeking to
resolve Abdallah’s
insurance claim Notwithstanding the foregoing, it is unnecessary to determine
whether Guardian’s
representatives’ statements were subject to privilege in the commumcations alleged,
as Abdallah’s
pleading does not claim that the alleged defamatory statements were ever
published to a third
party :3
1] l9 Defmnation and defamation per se are legal conclusions that, absent facts, are
not entitled
to the presumption of truth Abdallah’s Counterclaim fails to allege the necessa
ry element of
publication with regard to his defamation claims As such, Abdallah has failed
to set forth a short
and plain statement of the claims showing that he is entitled to relief required by V
I R Civ P
8(a)(2), and Guardian is entitled to the dismissal ofthat claim for Abdallah’s
failure to state a claim
upon which relief can be granted
1| 20 On the basis of the foregoing, all the claims set out in Abdallah’s Counterclaim
fail to state
a claim upon which relief can be granted, and are therefore insufficient to survive
Guardian’s
Motion to Dismiss Defendant’s Counterclaim pursuant to V1 R Civ
P 12(b)(6) The Court
reconsiders its December 18, 2020, Order, and Abdallah’s Counterclaim
will be dismissed in its
entirety
'1 RESTATEMENT (SECOND) OF Toms § 594
'3 Similarly, because the Counterclaim includes no allegations of publicati
on, other potential claims of
privilege relating to the attorney client relationship or to matters in litigation
, or threatened litigation, are
not addressed
Guardian Insurance Company v RamzyAbdaIIah 8X 19 CV ll0
Memorandum Opinion and Order Granting Plaintiff’s Motion for Partial Reconsideration
Page ‘7 of7
2021 VI Super 20
Accordingly, it is hereby
ORDERED that Guardian’s Motion for Partial Reconsideration of the Court’s Decembe
r
18, 2020 Order Denying in Part Plaintiff’s Motion to Dismiss Defendant’s Counterclaim
is
GRANTED It is further
ORDERED that Abdallah’s Counterclaim is DISMISSED with prejudice as to all claims
It is further
ORDERED that this matter will come on for hearing on Plaintiff’s Complaint seeking
Declaratory Judgment and Specific Performance, pursuant to V I R Civ P 57, via
Zoom, on
Monday, March 29, 2021 at 9 00 a m
The parties will strictly adhere to the following remote hearing protocols
0 Not less than 7 days prior to the hearing, each party shall file and serve upon the other
party its list of witnesses, and shall file and serve copies ofall exhibits to be introduce
d,
which shall be pre marked
0 All witnesses who will testify must appear on camera, and any other person in
the
room where the witness testifies shall also be visible on camera Witnesses who are not
on camera will not be permitted to testify
o All participants, including attorneys, panics, party representatives and witnesses
must
have use of a good wi f1 connection, with clear audio and video transmission
0 Witnesses will be called and will be permitted in the virtual courtroom only while
they
are testifying Witnesses shall not hold notes or have paperwork or any docmnentation
in front of them while testifying
0 Any party objecting to any witness or exhibit, or to any of these protocols may file
an
appropriate motion no later than March 25, 2021 It is further
ORDERED that a copy of this Order be served on the appropriate parties
DATED February/ Q 2021 X
DOUGLAS A BRADY J JDGE
ATTBST
TAMARA CHARLES
Clerk of the Co
By M
curt lerk Supervisor
2/1 9/202 1