[N THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
****
EZEKIEL DANIEL ) CASE NO ST 2019 CV 00157
)
Plaintiff )
vs ) ACTION FOR DAMAGES
)
SHAMAR PEMBERTON and CARTY ) JURY TRIAL DEMANDED
ENTERPRISES )
)
Defendants )
Cite as 2020 VI Super 103U
MEMORANDUM OPINION
I Introduction
1]] THIS MATTER is before the Court on Defendants Motion To Enforce Settlement
Agreement And For Reimbursement Of Associated Legal Fees ( Motion ), filed on September
15, 2020 Defendants request that this Court enforce the settlement agreed upon by Plaintiff by
entry of an Order (a) dismissing the above captioned action with prejudice; (b) directing
Defendants to pay the agreed settlement amount to Plaintiff and Plaintiff‘s counsel within forty
four days thereafter less Defendants legal fees and costs incurred pursing the instant motion; and
(c) in the event an appeal is filed staying the running of the deadline for payment pending a final
ruling on such an appeal to include deducting the reimbursement of those additional appellate legal
fees and costs from the settlement amount ' Defendants’ Motion is unopposed by Plaintiff As
explained below, the Motion will be granted in part and denied in part
{[2 On May 23, 2018, Defendant Shamar Pemberton, an agent of Carty Enterprises
(collectively, ‘ Defendants ’), negligently operated his vehicle causing it to strike Plaintiff Ezekiel
Daniel ( Plaintiff ) On March 22 2019, Plaintiff filed a civil action for damages alleging the
accident caused Plaintiff serious injuries, loss of income, loss of capacity to earn income, mental
anguish, pain and suffering and loss ofenjoyment of life Defendants responded on April 22 2019
denying the allegations and asserting affirmative defenses; this Court issued a Scheduling Order
on October 20 2019
113 In the interim period between entry of the Scheduling Order and the instant Motion,
Plaintiff and Defendants engaged in settlement negotiations On December [0, 2019, Plaintiff‘s
counsel sent Defendants counsel a settlement demand letter, authorizing settlement for the policy
limit of $10,000 This letter did not have a deadline for acceptance This letter also explicitly
indicated Plaintiff‘s medical expenses of $9,393 21 On June 25, 2020, Defendants and Plaintiff
were contacted by the American Mediation Institute, who indicated that Plaintiffwished to conduct
'Mot l
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mediation Counsel for Defendants insurer had attempted to negotiate directly with Plaintiff’s
counsel, which was ultimately unsuccessful
{[4 In a phone call on July 6, 2020, Plaintiff’s counsel indicated that negotiations with the
insurer’s counsel were fruitless and reiterated his client’s $10,000 00 demand and request for
mediation Defendants’ counsel obtained authorization for the $l0,000 00 amount and notified
Plaintiff’s counsel on July 7 2020 that the settlement demand had been agreed to, and followed
up the following day with an email containing a stipulation of dismissal, an unsigned general
release, and a Medicare/Medicaid reporting form On July 9, 2020 Defendants counsel also
notified the American Mediation Institute that a settlement had been achieved; Plaintiff‘s counsel
was also copied on this email The representative for the American Mediation Institute indicated
the following day that she would then close the case because it had been settled
15 On July 14, 2020, Plaintiff‘s counsel indicated that when he had Plaintiff come in to sign
the release form, Plaintiff also then demanded an additional $9,393 21 to pay for his medical
expenses, and refused to settle for the $10,000 00 and Plaintiff‘s counsel again requested further
mediation That same day, Defendants’ counsel responded that the case was settled Plaintiff had
made a written demand authorizing settlement up to the policy limit of $ 10,000 00 and Defendants
had accepted it Further, Defendants counsel stated that Plaintiff had a duty to mitigate damages
and intentionally avoiding using Medicare coverage to create an inflated medical bill was failure
to mitigate
116 Plaintiff’s counsel responded on August 3, 2020, that there was no meeting of the minds
because Plaintiff had rejected the agreement by not signing the release and that there were essential
terms, the outstanding medical costs that materially had changed the agreement Further,
Plaintiff’s counsel asserted that the execution of a release is not a mere formality, but essential to
formation of the contract Plaintiff's counsel notified the American Mediation Institute on August
18, 2020 that the matter was not settled and attempted to schedule mediation via teleconference
for the dates of August 31 September 2, 4, or 1 l, 2020 Defendants then filed the instant motion
seeking enforcement of the settlement and reimbursement of associated legal fees for seeking to
enforce
[1 Legal Standard
21 Enforcement of the settlement agreement
117 Trial courts have inherent power to supervise and enforce settlement agreements entered
into by parties to an action pending before the court 2 Further, there is a strong public policy in
favor of settlement agreements 3 ‘ [S]ettlement agreements are contracts and, therefore, basic
’ Boynes v Tramp Servs ofS! John, 60 VI 453 459 (V I 2014) (quoting Dankese v Defense LOgISIlCS Agency,
693 F 2d 13 l6(lstCir 1982))
3 D R by M R v East Brunswick Bd ofEduc 109 F 3d 896 901 (3d 1997) ( Settlement agreements are encouraged
as a matter of public policy because they promote the amicable resolution of disputes and lighten the increasing load
of litigation faced by courts )
Dame! v Pemberton e! a!
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contract principles are applied to them ”4 The formation of a contract requires “a bargain in which
there is a manifestation of mutual assent to the exchange and a consideration” and consideration
requires “requires a performance or a return promise that has been bargained for ”5 For an attorney
to bind his client to a contract or settlement agreement, the attorney must have actual or apparent
authority 6 Authority is ‘ created by written or spoken words or other conduct of the principal
which, reasonably interpreted, causes the agent to believe that the principal desires him to so act
on the principal’s account 7
118 In Williams v Powell,8 the Court denied enforcement of a settlement agreement arising
from a car crash because ‘ the record lacks evidence showing the Williams’ attorney had authority
to enter into a settlement agreement on her behalf 9 In that case, the client of the attorney
expressed misgivings about the settlement amount and, when defendants attempted to enforce the
settlement agreement, the client then filed an opposition indicating they had not granted authority
to settle '0 In Boynes v Transportauon Servzces of S! John, the Virgin Islands Supreme Court
noted that the enforceable settlement agreement, which had been reached through mediation, had
been reduced to writing and “signed by both parties and their attorneys ’” The Virgin Islands Rule
of Civil Procedure 90(h)(2) requires that an agreement reached through mediation shall be
reduced to writing and signed by the parties and their counsel ”' ’
1|9 In Castolema v Crafa,’3 this Court noted that “[i]n the Virgin Islands, counsel may enter
into a settlement agreement on his client 3 behalf when he has actual or apparent authority to do
so ”'4 In Castolema, the defendants in that case responded to the demand letter with a check and a
release form, but the plaintiffs did not sign the release because it included new language regarding
medical liens and instead retumed the check '5 The plaintiff in that case retumed the check because
her injuries were in excess of the policy limit, although this information was known by both sides
at the start of negotiations '6 However, this Court still enforced the settlement agreement, finding
the new language not material and that a contract had been formed '7 Finally, both this Court and
the Third Circuit have noted that the tender of a release does not reopen settlement negotiations,
“Gowav Bumett
45 VI 235 241(VI Super Cl May5 2003)
5 Univ ofthe V] v Petersen Springer
232 F Supp 2d 462 469 (DVI App Div 2002) Restatement (Second) of
Contracts §§ 17 71 (1981)
6 Williams v Powell Case No ST 17 CV
314 VI 2018 VI LEXIS 105 at *5 9 (VI Super Ct Sept 26
2018
7 Edvzards v Born Inc 22 V I 426 428 29 (D V1 1986) (citing RESTATEMENT(SECOND)OF AGENCY §26 (1958))
22:86 No ST17 CV 314 V1 2018 VI LEXIS 105 (V1 Super Ct Sept 26 2018)
'0 Id at *4
"Boynes v Tramp Servs of St John
60 VI 453 460 (V1 2014) (citing Super Ct R 40(f‘)(2)) The Rule cited in
this case has since been repealed and replaced by Virgin Islands Rule of Civil Procedure 90(h)(2)
' V! R Cw P 90(h)(2)
'3 Civil No ST 13 CV 243 V1 2014 VI LEXIS 1 (V1 Super Ct Jan 15 2014)
"1d at *15
'5 Id at *3 4 10
‘6 Id at ‘12 13 ( ‘11 is evident that Castolenia was aware of the majority of the medical expenses at the time of the
demand letter yet still chose to demand the policy limits as the settlement sum )
' Id at ‘23
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nor is its execution necessary to the formation of a settlement contract '8
b Reimbursement of associated legal fees
1110 The Virgin Island Code provides that costs “may be allowed in a civil action, ’ and that
these costs may include “attorney 5 fees,” as provided for by the agreement of the parties or as
awarded by the Court in its discretion, except that the the award of attomey’s fees in personal
injury cases is prohibited unless the court finds that the complaint filed or the defense is
frivolous '9 An action is frivolous if it is 1) without legal or factual merit; 2) for the purpose of
causing undue delay, or 3) for the purpose of harassing an opposing party 20 This is a discretionary
standard
111 Analysis
a There was a valid settlement that may be enforced
1111 In the instant case, Plaintiff sent through counsel a demand letter which explicitly
authorized settlement for the policy limit of $10,000 At that time, Plaintiff was aware of his
aggregate medical expenses, $9,393 21, and still authorized settlement for $10,000 This offer did
not have a deadline and was accepted by Defendants who promised in return to pay this amount
Therefore, a valid contract was formed Indeed, Plaintiff‘s counsel did not attempt to reject this
settlement until Plaintiff, when presented with the release, demanded more money The existence
of the medical expenses was known by both sides, as it was included in the demand letter, and
cannot be considered, as Plaintiff’s counsel asserts, to be a new material fact that fimdamentally
changes the offer
1112 Nor does there appear here a lack of authority Plaintiff‘s counsel indicated he was
expressly authorized by Plaintiff in his demand letter Plaintiff's actions in coming in to sign the
release, only to then demand that his counsel seek more money, further indicate that Plaintiff had
granted his counsel authority to act on his behalf in settlement negotiations Nor has an opposition
to the instant Motion been filed, and no evidence exists that Plaintiff’s counsel did not have
authority
1H3 Instead, Plaintiff’s counsel asserts in an email to Defendants counsel, without citing to
legal authority, that the execution of a Release is not a formality, it is essential to the formation
of the contract itself 2‘ The only authority he cites to in the whole paragraph for the proposition
that the “execution of a Release is a material condition to a Contractual agreement” is Nicholas v
Wyndham International Inc ,” which actually indicates the opposite 23 Indeed, as stated above the
'3 Id at *11 12 see also, Good v Pennsylvania R ( a 384 F 2d 989 990 (3d Cir 1967) ( The tender of a release
did not reopen the agreement or make its execution a condition to the settlement itself ‘)
I"VI CODE ANN tit 5 §54l(a) (b)
V] CODE ANN tit 5 §541(c)
‘ August 3 2020 Letter page 2
2007 WL 4811566 (D V I 2007)
3’ Id at *2 (citing Green v John H LeWIs & Co
436 F 2d 389 390 (3d Cir 1970)) ( In the Third Circuit [a]n
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tender of the release is not a counter offer, nor is its execution necessary
{[14 While a settlement agreement that is a result ofmediation needs to be signed by both parties
and counsel, this agreement did not arise through mediation In fact, mediation does not appear to
have been scheduled, as settlement was reached the same day that the request to mediate was made,
and Plaintiff's later attempts to schedule mediation occurred after the settlement had been made
As there was an offer, acceptance, consideration, and authority by the agent to bind the principal
and this settlement was reached outside ofmediation, a valid and enforceable settlement agreement
has been formed
b Defendants’ entitlement to legal fees
1115 In their Motion, state that ‘the legal fees and costs incurred pursuing the instant motion
(and any appeal arising therefrom) must be deducted from Plaintiff’s settlement under 5 V I C §
541 ”24 The only case law cited by Defendants is John v Maldonado,25 which involved a land
dispute Defendants cite this case for its stated proposition that the purpose behind 5 V I C § 541
is that “a party should not leave to bear the legal expenses of demonstrating either that it is not at
fault or that it is the victim of another 5 fault 26
1H6 Defendants incorrectly make what is discretionary, required Courts are not required to
award legal fees In this jurisdiction, Courts are in fact prohibited from awarding attomey’s fees
in personal injury cases unless a complaint or defense is frivolous Plaintiff has not proffered to
the Court any complaint or defense beyond his initial Complaint, let alone a frivolous one Nor
was it necessary for Defendants here to demonstrate that they were not at fault or are the victims
of another 5 fault The instant motion requests that the Court order Defendants to pay Plaintiff
Plaintiff has filed no action with the Court to enforce settlement, mediation, or any other request
the instant Motion comes before the Court on Defendants’ counsel’s volition, no one else 8
Therefore, attorney’s fees and costs incurred in filing the instant action will not be awarded to
Defendants
[V Conclusion
{[17 Defendants have filed a motion to enforce a $10 000 00 settlement of a negligent driving
case and they request reimbursement of attorney 5 fees for filing the instant motion Defendants
have adequately shown a valid offer, acceptance, and consideration of the agreement and the record
and evidence is clear that Plaintiff‘s counsel of record was acting within his scope of authority
The settlement agreement was not reached through mediation, so a signing by each party was not
required Plaintiff has not filed an opposition to Defendants’ Motion, although a letter contained
within the Motion 5 exhibits suggests that Plaintiff asserts the settlement is not valid because the
release was not executed This is not the standard as to whether a settlement agreement has been
agreement to settle a law suit, voluntarily entered into, is binding upon the parties, whether or not made in the
presence of the court, and even in the absence of a writing )
‘ Mot 10
526 VI 129(Super Ct June H 1991)
6 Id at 142 43 (quoting Bedford v Pueblo Supermarkets 0/5! Thomas Inc
18 VI 275 278 (D V I 1981))
Dame! v Pemberton e! a]
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reached
1118 Defendants further assert that they should be reimbursed for costs in filing this Motion
Defendants filed the instant Motion on their own accord, not in response to any frivolous complaint
or defense by Plaintiff Further, the granting of attorney 3 fees is discretionary by the Court and
does not appear warranted in the instant case An order consistent with this Memorandum Opinion
shall follow
DATED December 5? 2020 MW ;2 2% &
DENISE M FRA COIS
Judge of the Superior CouIt of the Virgin Islands
ATTEST
TAMARA CHARLES
Clerk of the Court
BYpr- M
LORI BOYNES
M
Chief Deputy Clerk [2, i / 2.0.10