IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN *xxxxxw*xxwkk BLUEWATER CONSTRUCTION INC ) ) CASE NO ST 2020 CV 00212 Plaintiff ) ) ACTION FOR FORECLOSURE vs ) 01' CONSTRUCTION I IEN ) GARY HILL and WANDA HILL ) ) Defendants ) GARY HILL and WANDA HILL ) ACTION TOR BREACH Ol- ) CONIRALT BREACH OF IMPLIED Counterclaim Plaintiffs ) WARRANTY OF GOOD WORKMAN ) SHIP NEGLIGFNCF CONVERSION \s ) CIVIL CONSPIRACY RESTITUTION ) AND DECLARATORY JUDGMENT BLUEWATER CONSTRUCTION INC TONY) COFFELT and SPRINGBOARD LLC ) JURY TRIAL DEMANDED ) Counterclaim Defendants ) Cite as 2022 VI Super 13 MEMORANDUM OPINION & ORDER 111 THIS MATTER is before the Court on 1 Counterclaim Defendants BlueWater Construction Inc And Tony Coffelt 5 Reply 10 Hill 5 First Amended Complaint ( Motion To Dismiss ) filed May 10 2021 and 2 Counterclaim Plaintiffs Responie In Opposition 10 Plaintiff BlueWatel Construction Inc 5 Motion [0 Dismiss First Amended Counterclaim ( Opposition ) filed June 8 2021 $12 Countcrclaim Detendants Bluewater Construction Inc ( Bluewaler ) and Tony Coffelt ( Coffelt ) move to dismiss Counterclaim Plaintifis Gary Hill and Wanda Hill (the Hills ) First Amended Counterclaim pursuant to Virgin Islands Rules at Civil Procedure 12(b)(6) and 12(b)(7) 113 The Court will not dismiss the Hills counterclaims at this stage of the proceeding under Rule 12(b)(6) as they contain sufficient factual allegations which taken in a light most favorable to the n0nmoving party and accepted as true put Bluewater and Coffelt on notice of the claims against them The Court will not dismiss the Hills counterclaims under Rule 12(b)(7) as there is BIuewnIer Cnnslruclmn Inc v Gary Hill um! Wanda Hill 2022 VI Super 13 Case No ST 2020 CV 00212 Memurandum Opinion and Order Page 2 of 20 no argument or other indication that the Hills have failed to join a party Additionally the Court adopts the Implied Warranty ofGood Workmanship as a part 0fthe common law ofthe U S Virgin Islands I INTRODUCTION 1T4 The Hills’ counterclaims eoncem windows that BlueWater installed in their home and scaffolding the Hills purchased for construction of their home which BlueWater purportedly utilized at other sites The Hills Counterclaim contains eight (8) counts seven (7) 0f which they allege against the movants in this case (1) Breach of Contract against Bluewater ' (2) Breach of Implied Warranty 01 Good Workmanship against BlueWater 2 (3) Negligence against Bluewater 3 (4) Conversion against BlueWater and Coffelt 4 (5) Civil Conspiracy against BlueWatcr and Coffclt (6) Restitution against Bluewatcr and Coftelt “ and (7) Declaratory Judgment against BlueWater 7 1E Blucwater and Coffelt argue that there is no agreement between Blucwater and the Hills only an agreement between Bluewater and Springboard LLC ( Springboard ) and thus the Breach of Contract elaim should be dismissed R Bluewater and Coffelt state that the Hills fail to give ‘specifle and articulable facts as to how the instailation [ofwindows] was not Workmanlike no: what the existing standards of consttuction actually are so the Breach of Implied Warrant) ofGood Workmanship claim should be dismissed 9 Bluewater and Coffelt also argue that the Hills assertion that Blucwater failed to use sound materials is contradittory to their assettion that Bluewater failed to supply sound materials in their Breach of Implied Warranty oi Good Workmanship claim 10 BlueWater and Loffelt assert that the Hills fail to provide specific facts as to how Bluewater owed a legal duty to the Hills how Bluewater bteached that duty and how BlueWater proximately caused damage to the Hills windows and thus the Negligence claim should be dismissed '1 1T6 Additionally Bluewater and Coffelt assert that because Coiielt tented and leased scaffolding to BlueWater for use elsewhere BIuewater believed it was properly renting the Hills scaffolding so it had no intent to intertere with the Hills property and therefore the Conversion claim should be dismissed ‘2 BlueWater and Coffelt argue that there cannot be a Lonspiracy to commit a tort when Bluewater believed its purchase and rental ofthe staffolding was proper and that the Hills do not provide specific facts as to how the conspiracy transpired thus the Civil 'Countercl Pls FirstAm Countercl 6 7 7Counterc] Pls FirstAm Counters] 8 ‘Countercl Pls FirstAm Lountercl 8 9 aCountercl PIS First Am Countercl ll [2 )Countercl P15 FirstAm Countercl ll [3 f’Countercl Pls FirstAm Counters] [3 7Countercl Pls FirstAm Countercl l4 3 Countercl Defs Mot [a Dismiss 3 4 ° Countercl Defs Mot lo Dismiss 4 S ”’Cnuntercl Defs Mot To Dismiss4 5 ” Countercl Defs Mot To Dismiss 5 6 l7Cuunterc| Defs Mo! Tu Dismiss 6 7 BIuewnIer Callxtrul‘lmn, Inc v Gary Hill and Wanda Hill 2022 VI Super IS Case No ST 2020 CV 00212 Memorandum Opinion and Order Page 3 nf 10 Conspiracy claim should be dismissed ‘3 Bluewater and Coffelt claim that the Hills do not provide specific facts as to how the Hills conferred a benefit to BlueWater with their scaffolding consequently the Restitution clam should be dismissed ” Lastly Bluewater and Cottelt contend that the Hills Declaratory Judgment claim does not seek to have any legal relation or status between parties determined rather it just seeks to have BIuewater 5 cause of action be declared improper and invalid and therefore there is no relief available to them under the Declaratory Judgment Act so their Declaratory Judgment claim should be dismissed ‘5 1T7 The Hills reply in their Opposition that Bluewater and Coffelt rely on the wrong pleading standard Bluewater and Cotfclt allege the Hills must satisfy the plausibility standard declared by Iqbal/Twombly when the Court has actually adopted a notice pleading standard under Virgin Islands Rule of (,ivil Procedure 8(a) "’ The Hills argue that their contention that they ate third party beneficiaries of the subcontract between Springboard and BlueWatcr for window installation on their house adequately alleges facts that puts BlueWater on notice of the Breach 01 Contract claim against it ‘7 The Hills assert that Bluewater and Loffclt inappropriately use the Iqbal/Twomhly plausibility standard when arguing that their Breach of the Implied Warranty of Good Workmanship claim should be dismissed and because their claim gives Bluewater notice of the legal theory behind their claim as well as the basic facts that claim should not be dismissed either '3 118 The Hills also point out there is no contradiction in alleging BlueWatel failed to me sound materials while also alleging BlueWatcr failed tofurmsh materials for its work and in fact those allegations are wholly consistent with the argument that Bluewater should have both furnished and used appropriate waterproofing materials as requested by the Hills 19 The Hills further argue that even if there is inconsistency or contradictory statements in their pleadings Virgin Islands Rule of Civil Procedure 8(d)(2)70 explicitly allows tor alternative pleadings so dismissal 0t their Implied Warranty 01 Good Workmanship claim would be inappiopriate on those grounds as well 2' 19 Next the Hills argue that as for Coffelt and BlueWater s motion to dismiss their Negligence claim Bluewater and Coffeit again fundamentally misunderstandflwhat is necessary to state a cause of action under Rule 8 5 notice pleading standard 22 '1 he Hills state that their First Amended Lountcrclaim alleges that BlueWater ‘ had a duty to install the windows in a protessional manner, that BlueWater failed to follow the Hills installation requests and guidance during the initial installation 0fthe windows that BlueWater also failed to correct their installation work and that " Countercl Defs Mot To Dismiss 7 8 H Countercl Defs Mot To Dismiss 9 " Countercl Defs Mat T0 Dismiss 10 1] ”‘ Countercl P15 Opp n 2 3 '7 Countercl P15 Opp n 3 4 ” Countercl P15 Opp n 4 5 "’ Countercl Pls Opp n S " V I R CW P 8(d)(2)( Alternative Statements Ufa Claim 0r DefensL A party may set out two OI more statements at a claim or dchnse alternatively 0r hypothetically in separate counts or defenses If a party makes alternative statements the pleading i: sufficient ifany one of them is sufficient ) 7' Countercl PIS Opp n S 6 7 Countercl PIS Opp n6 Bluewarer CollYIIuCIiflll Inc v Gar} III]! and Wanda HI” 2022 VI Super 13 Case No ST 2020 CV 00212 Memorandum Opinion and Order Page 4 of 20 the Hills suffeied damages from the leaky windows and costs to repair the work 23 The Hills state this is sufficient to put Bluewater on notice Ufa Negligence Llaim 1110 The Hills argue that Coffelt and Bluewater s contention that it could not convert the Hills scaffolding because it believed it was properly renting the scaffolding is a factual determination that cannot be made at the motion to dismiss stage 24 Additionally the Hills contend that their claim that Coffelt leased the scaffolding to Bluewater says nothing about what Bluewater knew (or subsequently came to know) about the scaffolding 2’ I astly the Hills argue that the case cited by BlueWater is irrelevant as all it states is that at the motion to dismiss stage a plaintiff cannot be bound by admissions in a superseded pleading 2“ Thus the Hills argue that their Conversion claim should not be dismissed 27 fill As tor the dismissal of their Civil Conspiracy claim the Hills again state that Bluewater and Coffelt make the same error as to the pleading standard and that their contention that there cannot be a conspiracy to commit a tort when one party pmpcrly believed it had purchased the scaffolding might work as a defense to Conversion but it does not alter that the Hills have made a sufficient pleading of Civil Conspiracy 23 The Hills state that they pied that BlueWater and Cofielt acted in eoncert pursuant to a common design to lease the Hills new scaffolding without the authorization or the permission of the Hills Cotfelt then began working for Bluewater and Bluewdter and Coffelt never remitted any of the rental payments tor the Hills scaffolding 29 The Hills argue this is enough to put Bluewater and Coffelt on notice oftheir claim and thus the claim should not be dismissed 3“ 1112 The Hills then point out that while Bluewater and Coffelt argue the Hills cannot seek Restitutiun because of an adequate remedy at law their Breath of Contract claim the Restitution claim is directed at Blucwater and Coffelt s unauthorized use at the scaffolding which was not governed b} the contract 3' [he Hills also argue that Bluewater and Coffelt s argument that the Hills fail to specify how they conferred a benefit on BlueWater by giving them scattolding is patently frivolous 32 The Hills state that their allegation that Bluewater used the uncompensated scaffolding 0n otherjobsites is sufficient to show a material benefit to Bluewater and thus their Restitution claim should not be dismissed 33 fi|13 Lastly the Hills explain that BlueWater and Coftelt cite to extra territorial federal Cases for their proposition that declaratory judgment is not available and instead argue that the Virgin l Countercl P15 Opp n 6 ‘ Countercl P15 Opp n 7 Countercl P15 Opp n 7 " Countercl P15 Opp n 7 8 7 Countercl P15 Opp n 7 8 W Countercl P15 Opp n 8 ” Countercl P15 Opp n 8 9 W Countercl PIS Opp n 9 1‘ Countercl P15 Opp n 9 ‘ Countercl PIS Opp n 10 ll Countercl P15 Opp n 10 Bluewaler Camlmcrmn, Inc v Gary H1]! 11ml Wanda Hill 2022 v1 Super 13 Case No ST 2020 CV 00212 Memorandum Opininn and Order Page 5 of 20 islands Declaratory Act is more robust 34 The Hills cite to ( almac Inc 1 Balthazar Mgmt Virgm Islands LLC” for the proposition that the Act vests the Superior Court with the discretionary power to declare the rights status and other legal relations whether or not lumber relief is or could be claimed’ and “the declaration may be either affirmative or negative in form and effect’[ ] ’36 1114 The Hills state that Bluewater alleges a contract existed tor the Hills to sell them scaffolding at a reduced priLe and the Hills deny that there was a contract and that in response to their demand for compensation for the scaffolding BlueWater threatened the Hills with criminal prosecution 37 Thus they argue they have plead facts sufficient to enjoin Bluewater and Cotfelt from further retaliatory behavior13 Additionally Bluewatcr also alleges that Springboard was authori2ed to bind the Hills with respect to Bluewater 5 work and the Hills deny Bluewater ever furnished or delivered materials to pe1form work thus the Hills are entitled to a court detennination of whether the work performed by Blucwater supports Bluewate1 s lien on the Hills property Theretore the Hills argue their Declaratory Judgment Llaim should not be dismissed [1 LEGAL STANDARD A Motion To Dismiss {[15 Virgin Islands Rule ofCivil Procedure 12(b)(6) allows a party to challenge a pleading lor failure to state a claim upon which reliefcan be granted W To survive a 12(b)(6) motion the plaintiff must provide a short and plain statement ofthe claim showing that the pleader is entitled to relief 4“ and [tjhe facts alleged in the pleadings and any inferences drawn therefrom must be viewed in the light most favorable to the plaintiff ‘1 All material allegations in the complaint are taken as true and the Court must construe all facts in a light most tavorable to the non moving 42 party $116 Even ii a complaint is vague inanfully drafted a bare bones outline or not a model of specificity the complaint may still be adequate so long as it can reasonably be read as suppurting a claim for relielT 1 43 Further the purpose ofthe notice pleading standard is to avoid dismissals ofcases based on failure to allege specific facts which it established plausibly entitle *cUumercl Fl: Opp n 10 Na ST 2017 CV 00035 2017 VI LEXIS I78 31*6 7(v1 Super Cl June29 2017) 6 Cunntercl PI: Opp n 11 7Cu1mtercl P15 Opp n 11 memtercl P15 Oppn 10 ’V [ R CIV P 12(b)(6) 40 V I R CW 1’ 8(a)(2) “ Adam: v Norm Wm Comm"; (Infernal/zmnl) [11c 63 v1 427 458 (Suer a 20|S)(ci1ing Benjamin v AK; In: (.0 ofPueHa R1“) 56 V1 558 566 (V l 2012)] 1 L Hem Inc l Vulcan Malena]? (a Civ No 206 170 2010 WL 924259 at *1 (DVI Mar 11 2010) (citing Lhmmper v Hwbury 536 U S 403 406 (2002)) * Bum Verve Inc v Gav tofV1rgm Islands 2019 V12] 1112 (citing Lasaday v Allilule [m (.0 232 1’ 3d 1075 1080 (Utah App 2010)) BIuewuter CDHSIIMLIIIIH, Inc v Gary HI” and Wanda HI” 2022 V1 Super 13 Case No ST 2020 CV 00212 Memorandum Opinion and Order Page 6 0121] the pleader t0 relief 44 Virgin Islands Rule of Civil Procedure 8(a) states that a claim for reliet must contain a short statement of the grounds for the Court 5 jurisdiction a short and plain statement of the claim showing that the pleader is entitled to relief because this is a notice pleadinf,y jurisdiction and a demand for the relief sought whieh may include relief in the alternative or different types at reliet ‘3 13 Breach of Contract, Third Party Beneficiaries $117 The basic elements of a breach ofeontract claim are (1) an agreement (2) a duty created by that agreement (3) a bleach 0fthat duty' and (4) damages “'6 While breach ofeontract claims are usually brought by parties to the contract a third party that was an intended beneficiary of the promise may also bring an action to enforce a promise in the contract even though they did not sign the wnttact 47 C Breach oflmplied Warranty ofGtmd Workmanship Banks analysis 1118 The implied warranty of good workmanship is also sometimes referred to as the implied warranty of workmanlike construction or the implied warranty of workmanlike performance as well as other similar formulations 4“ For Lonsistency and so the claim is readily decipherable to the general public the Court will refer to this claim simply as the implied warranty 0t good workmanship 1119 Prior to the Virgin Islands Supreme Court detision in Bankt t [m 1 Rental & Lcaiing Corp ,‘9 this Court recognized the implied warranty of good workmanship citing to the common law of otlterjutisdictiuns 5” However the Supreme Court at the Virgin Islands explained in Banks that Virgin Islands courts Should not mechanically follow the Restatements 01' the American Law Institute or the common law of otherjurisdictions and courts should instead apply a three preng “ Basic Sew: [m 1110 (citing V1 R CIV P 8 Repnner 5 Note and Mills William: L Mapp 67 V1 574 585 (V1 2017)) ”VI R CIV P 8(a) ‘6 Ban: S'en s [m 1119 (quoting Phillip v Marsh Mwmumu 66 V1 612 621 (V1 2017)) "l‘ermsv Qlleznchurlnlle HuIeICarp 56 V I 548 55) [VI 2012) (citing RESTATFMI‘NI (SLLDND)OF CONTRACTS §304) ‘3 8‘51. cg Alaska Put. AAAW‘UVILL (.0 v (.0/11m 794 P221 936 9.39 (Alaska 1990) ( The case against Collins p|OCLEdEd on three theories (1 ) that Collins had breached the implied warranty of wotkmanlike Lunstruction ) Cam; v Yum"! 562 S W2d 619 620 (Ark 1978) ( Appellant s argument is essentially to the etfect that the evidence to establish a breach of the implied warranty of proper construction and sound workmanship is not sttpponLd by the evidence ) “55V1967(v12011) 5“ Set. Rainier v 9mm 14 VI 568 579 (V 1 Super Ct 1978) (citing Lewis v Anchorage Asphalt Paving Co 535 P 2d 1188 1 196(Alaska 1975))( It is well settled that in building 01 construction contracts whenever someone holds himself out to be specially qualified to do a particular type ofwork there is an implied Warranty that the Work will be done in a wotkmanlike manner and that the resulting building product etc will be reasonably fit for its intended use Thus there was also an implied Warranty to perform the Contract in a wotkmanlike manner which was virtually coextensive with the express Warranty Lited above ) see who Hewmv Marian No 771/1992 1999 V [ LEXIS 50 at*16(VI Super Ct Apr 14 1999)(quuting Rmme; |4V1 31579) BIuequer Cnnstruclmn Int v Gary HI” and Wanda Hill 2022 VI Super 13 Case Nu ST 2020 CV 00212 Memorandum Opinion and Order Page 7 of 20 analysis to determine what common law rule should apply in the Virgin Islands 5' The first step in the analysis is whether any Virgin Islands courts have previously adopted a particular rule the second step is “determining the position taken by a majority of courts from otherjurisdictions”, and the third step is identifying the best rule for the Virgin Islands ’2 1120 Currently neither the Virgin Islands Supreme Court nor the Superior Court has recognized this cause of action post Barth Following the guidance of the Virgin Islands Supreme Court on October 4 2021 the Coun ordered the parties to brief the issue and supply the Court with the parties analyses by October 29 2021 ‘3 Bluewater and Coffelt in their briet tiled on October 29 2021 argue that the Court should adopt the implied warranty of good workmanship as a part of the common law of the Virgin Islands that the implied warranty should arise as an operation of law that whether something was constructed in a workmanlike manner should depend on the nature and purpose of the project; and that the standard can be superseded but not obviated by an express provision in a contract ‘4 The Hills did not provide a brief on the issue Additionally the Court conducts its own Bankv analysis below 1 Other Virgin Islands Courts 1121 As cited above ” this Court twice reeogni/ed the implied warranty ofgood workmanship in Ruimer 1 Stout and Hem” v Murray], both premised on the Alaskan case of lewis \ Anchorage A 01710111 Paving Co Additionally the Dietrict Court ofthe Virgin islands has recognized numerous implied warranties including the implied warranty cf good workmanship based on the tomtulation in the Restatement Virgin Islands law recognizes multiple implied warranties that arise by operation of law ’6 The District Court in szmgvton quoted Judge Curtis GomeL from Vunderwall V Mari int! Ownersth Resort: (8‘! Thnma 1) ‘7 whose formulation of the warranty Was also based on the Restatement Implied warranties which arise under Virgin Island: law include the implied warranty offitness for a particular purpose V 1 Code Ann tit 11a § 2 315 the implied warranty of merchantability V 1 Code Ann tit 11a § 2 314 the implied warranty of good workmanship Restatement (Second) of Property §§ 12 2 19 l Restatement (Third) ofProperty (Servitudes) § 6 20 and the implied warranty 01 habitability Restatement (Second) ufProperty §§ 5 l 5 6 17 6 5' Id at 980( [W]e conclude that l V l C § 4 does not incorpolate all of the Restatement provisions as if they welt. actual statutory text n01 does it delegate to the American Law Institute the authority to enact changes in the law of the Virgin Islands in all ufthe areas covered by the Restatements ) Gov 1 u] the l I v Comm: 60 V1 597 60) (V l 2014) (citing first Bank: 55 VI at 98] then Smart v 70th 59Vl 611 623 25 (V l 2014) then Mallheu v Herman 56V 1 674 68; 84 (V1 2012) and last Kristen D Adams The Fall; of Um/armlgflLemme Flam Me Reatalé’mem Mammal! 33 Hulslk/t L REV 423 424 (2004)) 5‘ Mull!» v Raye; 61 V l 163 [76 (V I 2014) ( Herc the Superior Court erred in failing to give the parties an Opportunity to briefthe iasue ofabandonment of an easement under the Bank; framewurk and further erred by failing to conduct a Bank: analysis at all ) “Countercl Defs Br 5 6 55 m: rupra n 50 5“ LIVmgmm v Berger 1 19 cv 00012 2020 U S Dist LEXIS 252720 at *7 (D V 1 Mar 23 2020) ”Na 20|2 84 201) US Dist LEXIS ll7764(DVI Aug 20 2013) Bluawaler Callxlructwn, [M v Gary H!!! and Wanda HI” 2022 VI Super 13 Case No ST 2020 CV 002l2 Memorandum Opinion and Order Page 8 of 20 The implied warranties of merchantability and fitness are specific to transactions involving the sale of goods See V1 Code arm tit Ila §§ 2 314 2 315 The implied warranty of good workmanship is applied in cases involving construction or repair See Restatement (Second) 01 Property §§ 12 2 19 1 Restatement (Third) of Property (Servitudes) § 6 20 The implied warranty of habitability applies to leased real propeny See Restatement (Second) of Property §§ 5 1 5 6176 3 9122 Thus prior practice in Virgin Islands courts provides some weight for the adoptiun ofthc implied warranty of good workmanship 2 Majority Position of Other Jurisdictions 1123 A vast majority of courts outside the Virgin lslands have recognized the implied warranty of good workmanship ’9 The rule usually arises in the context of a builder seller construeting a ’1 It\U’IgXIOII 2020 U S Dist LEXIS 252720 at *8 (quoting lamicmali 2015 U S Dist LEXIS | 17764 at “‘13) "’ Lewis 555 P 2d at l 196 (holding tlnt in Alaska it is Well setllLd that in huilding or construction contracts whenever someone holds himselfout to be specially qualified to do a particular type of work there is an implied warranty that the work will be done in a workmanlike manner and that the resulting building product etc will be reasonably fit for its intended use ) Reliable E194 Co v Clinton Lampbtll (unwary! 459 PM 98 [01 (Ariz Ct App 1969) (explaining that somcone who undertakes a service must perform the service in a good workmanlike manner and in a manner befitting a skilled contractor and finding a breach of the implied warranty of good workmanship in the design and installation Ufa kiln) Bullmgum v Pulangm 45 S W 3d 834 839 (Ark 200])( [W]e have made it clear that implied warranties ufhabitability sound workmanship and proper construction are given by operation aflaw and are intended to hold a builder vendor to a standard of fairness ) Pallardv Save & Yolk: Dev CU 525 F 2d 88 9] (Cal 1974) (adopting an impliedmrramy [hate completed structure wasdesigncd and constructed in a reasonably workmanlike manner ) VamuL/wn v Damhul 529 P2d 631 633 (Colo 1974) (holding for the first time in Colorado that a eontraLt to furnish services carries with it an implied warranty of workmanlike Conduct ) ferngm: v Pep Bu): 818 A 2d 903 904 (Conn Super Ct 2003)( It is an implied condition ofevery service contract that the service will be performed in 1 workmanlike manner ) Smith v Berwm Builders [m 287 A 2d 693 695(DL1 Super Ct 1972)( However the law in Delaware appears to recognize an implied buildei 5 warranty of good quality and workmanship ) Poole v Ter/mv Ca 0/ Mar}lal1d& Wmhmgmn [m 84 A 2d 699 702 (D C 1951) (heldng that a breach of the implied warranty to da insulatiun work in a Workmanlikc wa) was time barred by the statute 0t limitations) Rulandv Byrd 294 S E 2d 626 627 (Ga Ct App |982)( However there is in a well drilling contract an implied warranty on the part at the driller that the selviee shall be performed in a wnrkmanlike manner )' Hoffman v Simply! ‘1Halmn Inc 539 P 2d 584 588 (Idaho 1975) (opining that commas for personal servieLs contain an Implied warranty to be carried out in a workmanlike manner) Mayan v Wood: 371 N F 2d 150 170 (Ill App Ct 2007) ( A persun who contracts to perfoml construction work impliedly warrants to do the work in a reasonably workmanlike manner and the failure to du so results in a breach ofconttaLt ) WIIl/arm v Youngmcr 851 N E 2d 551 357 (Ind Ct App 2006) (finding that thc implied warranty of reasonable workmanship are collateral and independent rights not subject to merger in a deed) Luann WW Bank v Pm Budd Haldmga [m 856 N W 2d 892 902 (Iowa 2014) (declining to extend the protectiun of the implied warranty ufworkmanlike construction to banks and oter financial institutions) In re Talbot! v Emu 337 F 2d 986 989 (Kan 1959)( [1]t is generally recognized that when a patty binds himselt by conuact to perform a service there is an implied agreement or warranty Wilth the law annexes tn the contract that he will do a workmanlike Job and will use reasonable and appropriate care and skill ) Real [astute Mktg v Fran 885 S W 2d 921 926 (Ky 1994) (deLlinin to extend the protections of the implied warranty ofcunstructlon in a workmanlikc manner to a subsequent buyer ofa house not in privity with the builder) Wzllmms v AIerd 748 So 2d 42 (La Ct App 1999) (finding a breach of the implied warranty of gonad Bluewnler Camlruclmn Inc v Gary HI” and Want!!! Ill]! 2022 VI Super 13 Case No 9T 2020 CV 00212 Memorandum Opinion and Order Page 9 at 20 workmanship for defective masonry work) Wlmmer v Donn Em! Pmpellle: Inc 406 A 2d 88 93 (Me 1979)( The trial court did not err in awarding damages for repair ufthe leak around the chimney Such a detect is within the scope of the implied warranty of workmanship ) HerbertA Villllvzm [m v Ultra Mill Ins Co 788 N h2d 522 531 (Mass 2003)( When a party binds himself by contlact to do a work or to perform a service he agrees by implication to do a \mrkmanlike job and to use reasonable and appropriate care and skill in doing it (quoting Abl am: v Fauna M111 [lab 1m Co 10 N E 2d 82 83 (Mass 1937») Ingram v lnlerltale Mutor Freighl S‘p/em: J2l N W 2d 731 (Mich Ct App 1982) (finding no breach ofthe implied warranty ofworkmanlike service Where an injured employee was not perfomlingaselvice foracompany at tilt time omits injur)) Pnrkcrv Thornton 595 So 2d 854 857(Miss 1992) ( Thornton acknowledges that betweLn a builder Vendor of a new home and his vendec there is an implied warranty that thL home was built in a workmanlike manner and it is suitable for habitation ) Rihando v Sullivan 588 S W 2d 120 12: (Mo Ct App 1979)( This case is therefore controlled by the old well established doctrine of an implied warranty or condition ofgood workmanship which existed prior to Old Wurwrl and still exists independent 0fthe new doctrine ufimplied warranty ofhabitability ) Chandler v Madmen 642 F 2d 1028 1031 (Mont 1982) ( Thereforl. we hold that the builder vendor Ufa new home impliedly warrants that the residane is constructed in a workmanlike manner and is suitable for habitation ) Muglla v McNeil ( a 700 N W 2d 608 (Neb 2005) (extending the implied warranty of workmanlike performance tn subsequent home purchasers as against general contractors ) Dame] Marin Johman & Mzrldenhnll v Hilton H0120 Carp 642 P 2d 1086 1087 (Nev 1982) (holding that it is sufficient to instruct the jury that appellant had an implied duty to perfurm in a workmanlike manner ) Lempke v Dagemm 547 A 2a 290 291 (N H 1988)(holding that privity ofLUnrlact is not necessary forasllbsequent purchaser to sue a builder or contractor under an implied warranty theory for latent defects which manifest themselves within a reasonable time afier purchase and which cause economic harm ) Aromohn v Mandnru 484 A 2d 675 (N J 1984) (holding that the privity requirement should be abandoned in suits brought by a homeowner against a contractor for violation of an implied promise of good workmanship ) Mascarmm v larwmllo 806 P2d 59 61 (N M 1991) (recognizing an implied warranty to perfurln work in a skilled and wurkmalllike fashion) Rain} v Pal VIE” J92 P 3d 642 (N M Ct App 2017) (finding defendant breached the implied warranty that a well will be dug in a workmanlike manner) De ROME v Dame 75 A D 2d 384 386 (N Y App Div I980)( The cause of action based upon implied walranty of habitability and wurkmanlike Construction however should not have been dismissed ) Harm) v Hallow 209 S E 2d 776 783 (N C 1974)( [WJe hold that the vendor shall be held in impliedly warrant to lllE initial vendee that the dwelling together with all its fixture: is sufficiently free from majnr structural defccls and is constructed in a workmanlike manner so as to meet the :tandaid ofworkmanlike quality then prevailing at the time and place of c0nstruction[] )' Jams v (enlex Hume: 967 N E 2d 1199 1201 (Ohio 2012) ( We concluded that although the obligation to construct in a workmanlike manner may arise from a contract the cause ofactinn is not based on contract but on a duty imposed by law ) Elder: v Simmnm 631 F 2d 739 741 (Okla [981) (‘ [T]his (.oun in abandoning the ancient doctrine of caveat emptor held that the builder vendor ofa new home impliedly warrants that the new home is or will in Lolnpleted in a workmanlike manner and is or will be reasonably fit for octupancy as a place of abode and that such an implied warranty exists as a matter oflaw ) Cabal v Dunne”) 727 F 2d | | | I 13 (Or 1986)( When a andnr builds a new house for the purpose of sale to tilt. general public the sale afthe house carries with it an lmpllLd warranty that the house was Lunsmlcted in a reasonably workmanlike manner and is fit for habitation ) I‘ll; t Rena 476 A 211427 431 (Pa Super Lt)( Pennsylvania numbered among the firsljurisdictions acknowledging an implied warranty of habitability as well as an implied warranty or reasonable workmanship in contracts whereby builder vendors sold newly constructed houses ) Nichol; v R R Beaufort & Assam 727 A 211 174 (R I 1999) (abandoning the privity requirement for breach of the implied warranty of good workmanship causes ofaction) Kennedy t Lnlumbla Lumbel & Mfg Co 334 S F. 2d 730 736 (S C 1989)( As recognized by the Court of Appeals in Carulma mm a builder who Contracts to construct a dmlling impliedly warrants that the work undertaken will be perfonnLd in a Careful diligent workmanlike manner ) Waggarle; v Midwestern Dev [54 N W 2d 80; 809 (S D 1967) ( We conclude that where in the sale ot a new house the vendor is also a builder 01 houses for sale there 1: an implied warranty of reasonable workmanship and habitability surviving the delivery 01 deed ) Divan v Mountain (Hy (umir Co 632 S W211 538 (Tenn 1982) (adopting the implied warranty ()1 workmanlike construcliun) (yon ale: v Summit.“ ()IYI’IMH Found REan’ C0 LL( 400 S W 3d 52 (Tex 2013) (recognizing an implied warranty or good workmanship and an implied warranty nfgood and workmanlike repair) Davemaurl a! Pilgrim: Landing Hamevwrleu As: H v Duvencaurl a1 Pilgrims Landing [C 221 F 3d 234 (Utah 2009) (recognizing for tilt first time in Utah the implied wananty ofworkmanlilu. manner) [orig T7 m1 Hauu (0)1111) AH rt v Engelbert}? COWS” Inc 59 A 3d 752 (Vt 2012) (holding thatcomractual privity is still a requirement for an BIuewmer CmtxtruL‘lmn, [m u Gary HI” and Wanda HI” 2021 V1 Super 13 Case No ST 2020 CV 00212 Memorandum Opinion and Order Page 10 one home or other building to a first time purchaser “0 Some states have only extended the rule to protect home buyers and not banks or foreclosing lenders 6‘ However the rule has also been applied in some jurisdictions to other situations beyond the construction of a new home such as construction of a new roof over an indoor pool area;62 the installation of insulation;“ the installation of an in floor heating system ‘7‘ and the drilling of a well 5’ 1124 While the claim often appears along with the implied warrant of habitability courts have indicated the implied warranties are different 65 the implied warranty of habitability warrants that implied wananty ofgood workmanshipclaim) Bum!» May: HEfllIHg& Air Inc 66 Va Cir 425 (Va Cir Ct 1998) ( [U]nder Virginia law an implied warranty 0t good and wurkmanlike character dues accompany undertakings to repait ) (mmh/e v Mam 300 5 Bid [10 (W Va 198:) (adopting the implied warranty of proper workmanship) and Hank l Walton 343 P 3d .190 (Wyn 2015) (finding the evidence insufficient that a builder breached the implied wan anty of workmanship) 6“ Pollmd 525 F 2d at 91 (‘Thethure we conclude builders and sellers ofnew construction should be held to wltat is impliedly represented that the completed structure was designed and constructed in a reasonably workmanlike manner ) (ruwle) v Terhzme 437 S W 2d 74; 745 (Ky Ct App 1969)[ [W]e are disposed to adopt the minority view to the extent of holding that in the sale ofa new dwelling by the builder there is an implied warranty that in its major structural features the dwelling was constructed in a \workmanliki. manner and using suitable materials ) 81mm 1 Ellyn Chalk [m 358 So 2d 721 722 (Miss 1978)( The appellants are correct in their contention that as between the builder vendor Ufa new home and his vcndee there is an implied wananty that the home was built in a wotkmanlike mannet and that it is suitable for habitation However a party btinging suit based upon such an implied warranty must allege in his declaration inter alia that (l) the house is MW and (2) that the plaintiff was the first purchaser ) 6‘ luamlSm Bank 836 N W 2d at 902 ( Financial institutions like professional investors in real estate do not need the protection ofjudicially created implied warranties The bank simply is not the type of innocent consumer the implied warranty of wurkmanlike construction was judicially adopted 10 protect ) “ (Nahum Comtr (.0 v Earl 208 S Wad 106 111 [Ark 2005) ( Here Graham 5 express warranty that the [001' would not leak coupled with his implied warranty ufsottnd workmanship and proper construction under Bnllmglon iupru are consistent with one another and take precedence over Earl s implied warranty ofhis material plans and specifications ) " P0012 84 A 2d at 700 ( The alleged breach of implied warrant) lies in the unworkmanlike insulating activities of the defendant on April 15 1946 When holes wete drilled around the perimeter of the appellant s cellar ) i” Me}m 871 N E 2d at 17| ( Here the trialjudge made the determination afier hearing all the evidence that the work was not done by detendant in a reasonably ttorkmanlike manner The trial court nuted that defendant had installed in floor heating systems befort. and knew that antifreeze would be necessary in a system that was in an out building would not be occupied and was exposed to the cold nunhem Illinois winters ) 5’ Rube) 392 P ad at 651 ( The implied warranty in a contract for drilling a water well is that the work shall be done in a workmanlike mmner with the ordinary skill ofthose who undertake such work (quoting Davn v Merrick 345 1’ 2d 1042 1043 (N M 1959)» *5 Lanna! ofL/mt {)erL/A v Simpler 60J A 2a 792 795 (Del Super 1991) (suggesting warranties ofhabitability and workmanship ate separate and distinct) \chmeLk t Sea 0m; Londnmmmm AAA n [m 441 So 2d 1092 1097 (Fla Dist Ct App 1983) (developer may be liable for breach ofwanamy to construct in workmanlike manner or for failute to provide a habitable dwelling) George B (nlmwe Cu v Garret! 582 So 2d 387 :91 (Miss I991) (concluding that buildet owes duties ()1 workmanlikz. performance and habitability to homeowner) Chandler v Mather: 642 P 2d 1028 1031 (Mum 1982) (builder/vendur of residence impliedly warrants both its habitability and its workmanlike manner of Lunstruetinn) Alamahn 484 A 2d 675 at 681 (distinguishing between the implied warrant of habitability and the implied warrant of good workmanship) Bednurskl v mama Hume; & Realty [m 711 F Supp 823 827 (M D Pa 1989) (rejecting defendant 5 mution to dismiss com comments that Pennsylvania courts recognize implied warranties of habitahility and workmanlikt. construction for residential dwellings) Kennedy v ( 011mb“: Lumber & Mfg Co 384 S E 2d 730 736 (S C 1989) (holding implied warranty of workmanlike service is distinct from the warranty of habitability) Evan; v Slzles 639 S W 2d 39‘) (Tu 198)) ( [Tlhis Conn plainly stated that the Bluewaler Construction, lm. v Gar) HI” and Wanda Hill 2022 V! Super 13 Case No ST 2020 CV 00212 Memorandum Opinion and Order Page 11 one a house is fit for dwelling While the implied warranty of good workmanship warrants that services are provided with the quality of work that would be done by a worker of average skill and experience in their field the implied warranty of good workmanship does not requite that work be completed pcrtectly but rather the work is judged on the basis of whether it was reasonably done given the circumstances {’7 In essence, the structure may still be livable but some portion of it is defective Some defects which courts have found to breach the warranty include when cracks have been found in concrete deLking,6s electrical problems with a kiln,“9 the faulty installation of plumbing WhiLh then flooded a house,70 failure to conned a washing machine drain 7' and defective installation ofa linoleum floor 72 3 Soundest Rule For The Virgin Islands $25 The last step of the Bartlet analysis requires the Court to cnnsidet what the soundest rule for the Virgin islands might be considering the many unique aspects ofthe territory In light ofthe previous practice of courts in this jurisdiction, the overwhelming trend of a majority of the jurisdictions as well as that the Court believes it is in accord with local public policy the Court will adopt the implied warranty of good workmanship as a unique cause of action, separate from the implied warranty of habitability as a part of the Common law of U S Virgin Islands 73 The elements a plaintiff must prove ate (1) the existence of the implied warranty (determined by showing the detendant sold repair or construction services to the plaintiff or for the benefit of the plaintiff) (2) breach of the implied warranty (shown by the services were not carried out in a bullder/vendor warrants both workmanship and habitability If we had intended that the warranty extend only to habitability We would not have used the word and ) Mmdmtbruok Condnmmmm AU n v South Burlington Real!) Corp 565 A 2d 238 240 4| (Vt I989) (claim alleging breach ofwart’anty ofworkmanship may eKlst notwithstanding tact defects fail to tender dwelling uninhabitabh.) “7 See eg SD Ed flfRLgEH/S v Glabal Stnlhznct Eml/ LLC 2701 Supp 3d 1088 1106 (S D D C 20|7)( The builder is not tequired to Construct a pthLCt [structure] and in determining whether a [structurL] is defective the test is reasonableness and not perfection (quoting Waggnmr v Midwestern Du 154 N W 2d 30: 809 (S D I967» 5“ Aqua ['00] Renamzmm [m v PuradIseMunm (m/y Club Inc 880 Sn 2d 875 883 (La Ct App 2004) 5? Reliable £16: (.0 v ( 1mm" Campbell (mmmm; 459 F 2d 98 100 (Ariz Ct App W69) (due to an electrical malfunction the dome on its brick kiln was spontaneously hoisted or raised beyond the normal limits thereby shearing the lifting cables and thus allowing the dome ofthe kiln to crash down substantially demolishing the dome and the remainder ufthe kiln) 7" In re Lsrate nfTalho/I 337 P 2d 986 (Kan 1959) (plumbing wotk was performed in a substandard fashion when the plumbing fixtures broke and the hOHSL was flnuded) 7' Melod) flame Mumz/aL/mmg (.0 v 8mm; 74l SW2d 349 355 (Tex 1987) ( 'lhe jumrs had sufficient knowledge to find that the tailure to connect a washing machine drain would not be considcrtd good and workmanltkt. by those capable nfjudging repair work ) 7 baron“ ( UIO/ TIA Dmirlbmmg L0 408 P 2d 145 148 (N M |965)( [Tlhere was substantial evtdence that the defendant which held itselfout as an prert was negligent in proceeding with the installation of the linoleum after approving the use of nails which were mu short for the intended purpose ) 7 thmtr 406 A 2d at 93( Their argument confuses the implied wan anty 0t habitability bleach 0! which requires that the defect be nfsut'ficient magnitude to render the dwelling unsuitable for habitation and the implied warranty of workmanlike performance Which requires only that a house he cnnstructed in a reasonably skillful and workmanlikt. manner ) Rtbnndn 588 S W 2d at 123 ( This case is therefore controlled by the old well established doctrme ofan implied warranty 0! condition ofgood workmanship which existed prior to Old Warm” and still exists independent ofthe new dun: the of implied warranty of habitability ) Moglm 700 N w 2d 608 (recognizing the implied duty to perform in workmanlike manner but not the implied warranty ofltabitability) Bluewuter Camlmctmn, Inc v Gary Hill amt Wanda Hill 2022 VI Super 13 Case Nu ST 2010 CV 00212 Memorandum Opinion and Order Page 12 01‘ 20 manner reasonable given the eircumstantes of the project and consistent With a workman of average skill and experienee in their field) and (3) damages to the plaintiff 7‘ However as detailed in the plethora of cases cited above 7’ this cause ofaction has been limited and extended in a variety ofways throughout the United States so further iniquity into its extents and confines is necessaiy 1126 While somejurisdictions offer the implied warranty only to first time home buyers buying from a builder Vendor others extend it to those not in privity with the builder or contractor Given the limited geographical size ofthe islands the unique building conditions specific to each island 7" a housing market predominated by the sale of vacant tor sale homes 77 and a relative dearth of construction of single family homes versus the construction of timeshares, condominiums, and "Oellmgerv Hmtl No A I2 468 2013Neb App IEXIS 77 at‘12(Neb Ct App 2013)( The Henggeleropimon demonstrates that there are Ihree elements required to prove breach 01 an implied warranty of workmanlike perfomtancc a party must prove that an implied warranty existed breach 01 that warranty and damage caused by the breach ) see aim NHIIUIIUIVI.) Co 1 A Belem RDU/iflg LLC LP 13 CV 320 PRM 2019U S Dist LEXIS 57372 at 1‘ 15 (W D Tex 2019)( The following are the elements Ufa cause ofaction for breath 0fthe Implied wananty of good and workmanlike performance of services 1 The defendant sold services to the plaintiff 2 The services consisted Ufthe repair or modification of the plaintiffs existing tangible goods or property 3 The defendant did not perftmn the services in a good and workmanlike manner 4 The plaintift suffered injury ) 7’ See Supra n 59 7‘ All islands in the United States Virgin Islands necessarily tequire the importation of Some building materiaIs Additionally St John is largely (roughly 60%) a nationally protected park St Thomas is very mountainuus and covered in dense Vegetation in some parts and rugged hill: in others and St Croix is flatter with more farmland All these facts”: affect the price of building a new home in lhe U S Virgin islands in addition to where and how it might be dune mt NAIIUNAL PARK SFRVILL 5/ John 1 I Virgin Numb Naltumzl Park http: //www ups gov/articles/virgimslands htm (last visited Oct IS 2021) ( Virgin islands National Park covers roughly 60% of St John Island in the United States Virgin Islands ) The Editors 01 Encyclopedia Britannica ‘1'! Thmnm ENLV(LUPLDM BRITANNK‘A (Feb 13 2018) hnps //www britannica cnm/place/Saint Thomas island United States Virgin Islands (last visited Oct 15 2021) ( The island is volcanic rising to a maximum elevation of I 550 feet (474 metres) at Lhain ofrugged hills with little vegetation runs Laal west J The Editors of Encyclopedia Brilannicz 8‘! Cram ENCYCLOPEDIA BRITANNICA (Feb 15 2018) http: //www britannica com/place/Saint Croix(1astvisited Oct 15 2021) ( Saint CroiX largest island ofthe U 5 Virgin islands is (ht. only island ofthe group “1111 an extensive plain most at which is cultivated A meagre growth ofsecondary scrub has replaced former seasonal forests Which were sacrificed for sugarcane plantations ) nee alto Office of Policy Development and Research Canzprehemtve Homing Market Analyst: Umud Vim“ VHng Islamic U S DLPARTMENT OF HOUSINtJ AND URBAN Dl-VLLOPMENT 8 (Aug I 2017) https /’www lutduser gov/ponal /pub|ications/pdf/USVI Comp pdf (last accessed Oct 15 2021)( lhe sales market on the island of St John account: only for about 10 percent Mall home sales in the territory The Vilgin Islands National Paik covers approximately 60 percent of the island making develnpable land scarce bul ver desirable and homes prices are notably higher than on the islands ofSt Thomas and St Croix ') 77 Office anolicy Development and Research ( umprthemwt Housing MarkeIAnalym Untied 8mm Virgin Island.) U S DFPARIMLNI Ul- HOUSING AND URBAN DEVELOPMFNT 1 (Aug 1 20l7) https //www huduser gov/portal /publications/pdt/USVI comp pdf (last accessed Oct 15 202])( The sales housing market tn the USVl i< currently Sufiwith population outflow: mused by weak economit. conditions leading to increased number: of vacant for sale homes ) BIuew/Iter Curlxtnumm, Inc v Gary Hill 11ml Wanda Hill 2022 V1 Super 13 Case No ST 2020 CV 00212 Memorandum Opinion and Order Page 13 um) resort style units 7" a rule protecting only the first home buyer of a newly constructed home would be at limited value in protecting Virgin Islanders and other consumers in the territory 7" 1127 Furthermore, the reasons courts have moved away from the privity requirement are exceedingly persuasive as matters aflaw and public policy including “defects in a house will not manifest themselves for a censiderable period oftime 3" [W]e are an increasing1y mobile people a builder vendor should know that a house he builds might be resold within a relatively short period 01 time “1 [ijnterposing a first purchaset as a bar to recovery might encourage sham first sales to insulate builders from liability '32 there is no reason why the original 0mm should have the benefits (if an implied warranty [tor] recovery and the next owner should not simply because there has been d. transfer",Pu ‘ [Hike an initial buyer, the subsequent purchaser has little opportunity to inspect and little experience and knowledge about construction",R4 ‘ as a society, we have evolved from an era when caveat emptor niled the legal world to one where, at least in consumer transactions, caveat venditor is the heir apparent to this erewn”,XS and others 35 Moreover, existing homes often may require medifications homeowners frequently add additions and many structures in addition to homes are necessary to maintain a vibrant eeonomy The Court therefore extends the protection 0fthe implied warranty of good workmanship to buyers not in pIivity with the contractor or workman and the Court extends the warranty to both the construction of homes as well as other structures not intended for use ptimarily as a dwelling K7 1128 Additionally for the reasons stated above as well as the particular climatic problems faced by Virgin Islanders 3“ the Court ho1ds that the implied warranty should notjust be extended to new 7“ It! at 9( During this period the composition nfthe units permitted shifted toward condominiums timeshares and resort type unils Single family home construction as measured by the number ofhumes permitted has been relatively low in the USVl since the economic downturn in the late 2000: ) 7° AI umahn 484 A 2d at 680( To require privity between Ihe contiactor and the homeowner in such a situation Would defeat Ihe purpose of the implied warranty of good workmanship and could leave innocent homeowners without a remedy tor negligently built structures in their home th contractor should not be relieved of liability tor unworkmanlike cunstluetion simply because of the fortuity that the property on which he did thi. construction has changed hands Nor should an innonent bu)er 01 property be deprived of recourse against a Contractor who made improvements on the property if the bu)er suffers financial loss as a result 01 the contractor s negligent workmanship ) 5" Lempke v Dagena/s $47 A 211 290 295 (N H 1988) (quoting Terlmde v Neely 271 S E 211 768 769 (S C 1980)) ‘” Id (quoting thalamc v Ohltmdorf 441 N F 2d 324 JJD (Ill 1982)) “ Id (citing RlChde v Punererafz Hamn [m 678 F 2d 427 430 (Ariz 1984)) 3 Id (quoting A/lfl\leV v Laramie Bzulden Inc 600 F 2d 733 736 (Wyo 1979)) 3’ Id ”Ntchalr v R R Beuzgfarld’t Anon 727 A 2d 174 131(R1 1988) 3“ Id (listing e1even(11)reasuns why the Rhode Island Supreme Court is abandoning the privity requirement) 3 Smith v BIEEA/flOVL 661 S E2d 67 7| (SC 2008) ( A builder who c0ntraet< to construct a dwelling impliedly Warrants that the work undertaken will be performed in a caretul diligent wutkmanlike manna This is distinct from an implied warranty of habitability which arises solely out 01 the sale of the home Allhough the warranty of workmanlike service arises out of the construction contract to which the builder is a party a subsequent purchaser may sue a professional builder 0n the implied Warranty ofworkmanlike service despite the laLk ufeontractual piivity (citing Kennzdy 384 S E 2d at 736(I989>)) m The Virgin Islands are subject to earthquakes tsunami: hurricanes Wildfiies drought rivcrine flooding coastal flooding Coastal erosinn landslides damaging winds and thunderstorms U S VIRGIN ISLANDS OFF1(FOI DISASTER RLLoveRY 2019 Tm no; la] Hazmd Mmgamm Plan Rummy” 73 (June 12 2020) https //www usviodr eom/wp Bluewaler Cnnstrucllon Inc v Gary HI” and Wanda H11! 2022 V1 Super 13 Case No ST 2020 CV 00212 Memorandum Opinion and Order Page 14 01'20 constructions and additions but to repairs of existing structures as well Generally the damages for breach ofthe implied warranty ofgood workmanship should be the cost ofrepairing the defects or replacement when repair is not possible 39 In some situations, damages may be whichever is lower the cost of repair or the diminution of value (as in the difference between the value of the structure had it been constructed properly compared to the actual value) 9” However, the Court reserves the power to assess other damages in unusual circumstances °' As with other courts the test to be applied is one of reasonableness considering the circumstances not perfection and with regard to what a workman of average skill and experiente would prnduce 92 1129 Further given the broad range at potential defects and cases a single timeframe in which to bring the action would not be in the interest ofjustice or public policy Thus the Court holds that the implied warranty exists tor a reasonable time 93 taking into consideratian the type at defect when the work was completed whether there was a reasonably prudent inspection and when it would be reasonable to discover the defect 9" The statute of limitations on bringing a Lause of action premised on the breach of the implied warranty begins running upon the discovery 01' the defect as long as it was discovered within this reasonable timeframe Lastly in keeping in line with the trend in the law to protect Lonsumers ignorant of the increasingly complex produets and services that are netessary in modern society the implied wananty of good workmanship is not waivable or subject to disclaimer 9‘ The implied warranty of good workmanship arises as an operation of law and while parties ate free to expressly adopt a higher standard they may not contract tor a lower standard content/uploads/ZO19/09/2019 Territorial Hazard Mitigation Plan Revisions 29Mny2020 6 12 20 pdf(last accessed Oct 15 2021) 39 Yet L g WIH/[UVIA 748 So 2d at 49 ( Damages for the breach of an implied warranty of good wolkmanship are generally the cost ofrepairing (lit. defects However when repel! is impossible the proper remedy is replacement (citations omitted» 9“ RIbam/n 588 S W 2d at 124( The ban: rule cfdamages in this situation is that plaintitts are entitled to whichever 1S Iowet as between the cost 01' rcpaii and the diminution of value (diminution meaning the differcnee in value of the hD||§e if it had been constructed properly compared with its actual value as cunctructed) ) 9' see Mela!) Hume Mfg L0 741 s w 2d 349 (affirming a jury : award ufdiscretionary damages when a breach of the implied warranty ofworkmanlike service was knowing) Del Lackmmten & S‘tuurlmdge R R ( a v Slur Trak Inc NO 3 13 CV 0480 2018 U S Dist [ EXIS 1830.75 (Mid D Pa 2018) (allowing a claim fol breach of implied warrant) of good workmanship to go forward for restoration and repaii expenses as well as lost income and other damages) ’ Dmenwurt at Pilgrim: Landing Hameounert AAA n 221 P M at 252 (citing Albreth v Clifford 767 N E 2d 42 45 n 7 (Mass 2002)) (quotatiuns omitted)( Some courts definL the implied warranty ofworkmanlike manner as the quality of work that would be done by a worker of average skill and intelligence ) Hammond Lumbu Co v Trmk NO CV 14 155 2016 Me Super [EXIS 194 at *7 (Me Supei Ct 2016) (citing Wmmter 406 A 2d 88)( The test 15 one of reasonableness not perfection the standard being ordinarily the quality ofwork thal wnuld be done by a worker 01 average skill and intelligence ) 9' £14m 631 F 2d al 741 ( In so ruling we held that such an implied warranty exists for a teasomble time ) 9‘ Mayra 700 N W 2d at 616[ Our extension of liability is thus limited to latent defect: which manifest themselves atter the subsequent purchase and are not discoverable by the subsequent purchaser s reamnably prudent inspection at the time ofthe subsequent purchase ) 9‘ 95L Melody Hume Mfg ( a 741 S W 2d at 355( Consistent wilh the trend in recent consumer protection legislation 1nd sound public policy we furthei hold that the implied Warranty that repair or modification services of existing tangible goods or property will be performed in a good and workmanlike manner may not be waived or disclaimed ) Bluewnler Callslrut‘liall, Inc v Gar} HI” and Wanda Hill 2022 VI Super 13 Case No ST 2020 CV 00212 Memurandum Opinion and Order Page 15 0f 20 D Negligence $130 As the Virgin Islands Supreme Court stated in Aubam v K112i foods nflhe VI 1m 96 [t]he foundational elements ofa negligence cause of action are (1) a legal duty of care to the plaintiff (2) defendant 5 breach of that duty of care (3) [actual and legal causation and (4) damages (’7 E Conversion 1131 The Virgin Islands Supreme Court has declared that‘ [c]onversion is an intentional exercise 01 dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the tull value ofthe chattel 9); The Plaintiff must show (I) a property interest in the goods [and] (2) the right to their possession at the time of the alleged conversion 9° F Civil Conspiracy 1132 In [tam » Crlchlaw 10" this Court conducted 3 Banks analysis to determine the applicable Livil conspiracy rule for the Virgin Islands ‘0' The Court concluded that the Restatement (Second) ct Torts § 876(a) best reflected the common law ofthisjurisdiction “’2 Section 876(a) states For harm resulting to a third person fmm the tonious conduct of another one is subject to liability it he does a tortious act in concert With the other or pursuant to a common design with him ”103 G Restitution and Unjust Enrichment/Quantum Meruit {[33 While the Hills make a claim of restitution in their First Amended Counterclaim '04 restitution is more aptly classified as a remedy not a cause of anion ‘05 The Hills claim is better defined as a claim of unjust enrichment "’6 therefore the Couxt will outline the elements of unjust enrichment below 9' 2019 V I l 1 ”ml [Citing LuuAMI/tlr [ramp \ R0)er 64 v1 545 65] (VI 2015)) ”‘ Ross v Hodge 58 V1 292 308 (VI 201;) (quoting RESTATFMFNT(SFCUND) 0| Tums § 222ml) (1965)) ” [11 at 309 (quoting Bradfordv DI/Immd 675 A 2d 957 962 (Me I996» ”U 53 v1 33 (v1 Super u mm) "” Id at 64 65 ( 1 he Virgin Islands Supreme Court has nol explicitly conducted a Bank: analyL0p6 0f declaratory judgments in the Virgin Islands and states Courts of record within their respective jurisdictions shall have power to declare rights status and other legal relations whether or not further relief is or could be claimed No action or proceeding shall be open to objection 0n the ground that a declaratory judgment or decree is prayed for The declaration may be either affirmative or negative in foml and eftect, and such declarations shall have the force and ettect 01 a finaljudgment or decree '” $136 Section 1262 grants the Court the power to construe a valiety of documents a: well as a peIson s ‘ rights status 01 other legal relations ””1 III ANALYSIS $137 The Hills have suffiniently plead their causes of action against Bluewatcr and Coffelt under the applicable standard of Virgin Islands Rule OfLiVil Procedure 12(b)(6) '07 60 V I 768 (V l 2014) '0‘ [d al 776 ( A cause of action for quantum meruit also known a: unjust enrichment will ordinarily In. in a case where the defendant |ecLivL[s] something of value to Which he is not entitled and which he should restore to the plaintiff ) '0” [d at 779 ”a [d at 779 80 ”‘SVIC §1261 ”7 5 V I C § 1262( Any persnn interested under adeed will written contract Dr other writings constituting a contract or whose rights status or 0mm legal relations are attected by a statute municipal ordinance contract or franehise may have determined any qucsuon ofeonstruction or validity arising under the instrument statute ordinance contract or franchise and obtain a declaration of rights status or other legal relations thereunder ) Blllzwater Comtnurmn, [m v Gary ”1” (mt! Wanda HI” 2022 VI Super [3 Case No ST 2020 CV 00212 Memorandum Opinion and Order Page 17 am] A Breach of Contract against Bluewater 1B8 Bluewater argues that the Hills cannot claim there was a breach of a contract because there is no agreement between Bluewater and the Hills However the Hills are arguing that they are the intended third party beneficiaries Ora contract not that they had an agreement with BlueWater The Hills allege that Biuewater had an agreement with Springboard to install windows for the Hills home Plainly the comma between Bluewater and Springboard benefits the Hills The Hills allege the windows were not installed properly which caused them to leak in violation of Bluewater s contractual duty to install them in a professional and workmanlike manner and in accordance with accepted trade practice ”3 The Hills have plead sufficient factual allegations which taken as true are enough to infer that Biuewatcr has breached a contract intended to benefit the Hills Accordingly this claim will not be dismissed B Breach of the Implied Warranty of Good Workmanship against Bluewater 1139 Bluewater and Coffelt argue that the Hills fail to state what the existing standards of nonstruction are or how the installation of windows was unworkmanlike l” BlueWater and Coffelt also argue that because the Hills allege that Bluewater tailed to use sound materials they cannot also argue that Bluewdter did not furnish any materials ”5 The Hills have alleged that BlueWater was subcontracted to perlorm work for their benefit that Bluewater failed to use the proper materials 01 to apply them properly in the installation of their windows and that Bluewatcr 5 failure to ccnstruct the windows in a good and workmanlike fashion resulted in them leaking It is not contradictory to state that in addition to Bluewater not using sound materials Biuewatet did not supply sound materials one cannot use what enc does not have Because the Hills have alleged facts which show the existence 0fthe implied warrant} at good workmanship a breach of that warranty and resulting damages the Hills have satisfactorily plead their Llaim of Breach ot the Implied Warranty offload Workmanship and this claim will not be dismissed at this stage C Negligence against BlueWater 1140 Bltlewater contends that the Hills have not shown how BlueWater owed the Hills a legal duty or how it breached a duty to the Hills However the Hills have alleged that Bluewater owed them a duty to install the windows in a protessional manner that the Hills gave specific guidance and requests as to their installation Bluewater tailed to follow this guidance or correct defects in its work and that as a result the Hills were damaged from water leaks and the cost 0t repairing the work At this stage ofthe pioeeedings the Hills have satisfactorily plead factual allegations to put Biuewater on notice ofa Negligence Llaim Thus this claim will not be dismissed ”‘Countcrcl Fls FirstAm Countercl 6 “‘ Countcrel Fls FirstAm Countercl 4 “‘Countcrcl Fls FirstAm Countercl 4 5 Bluewuler Cmnlmclmn, Inc v Gary Hill 41ml Wanda Hill 2022 VI Super 13 Case No ST 2020 CV 00212 Memorandum Opinion and Order Page 18 one D Conversion against BlueWater and Cfoelt 1141 BlueWater and toffelt insist that the Conversion count should be dismissed since Blucwater had no intent to interfere with Ilill s property sinee Bluewater believed it had a proper agreement to lease the scaffolding because BlueWater believed that it was properly renting the scaffolding based on the word of Coffelt H" The Hills counter that is a tactual determination that cannot be made at this stage of the proceeding The Hills have alleged a property interest in the staffolding and that BlueWater interfered with their use ofit by using it at otherjob sites I coking at these allegations in the light most favorable to the Hills the Court cannot take as gianted Bluewater s assertion as to its own state of mind Therefore at this stage dismissal of the Conversion claim would be improper E Civil Conspiracy against Bluewatcr and Coffelt {[42 Bluewatet and Coffelt proffer that [t]here cannot be a conspiracy to commit a tort when one party believes that it agreed to purchase/rent the seatfolding and that the Hills (in not provide speeifit facts as to how the civil conspiracy transpired ”7 However the Hills have alleged that BlueWater and Colfelt acted in concert to lease the Hills scaffolding without their permission that Coffelt subsequently leit his former employer and began working for BlueWater and that Bluewater recognized it had rented the scaffolding from Ceffelt while never having actually paid Loffelt or the Hills tor use 0fthe scaffolding Under the notice pleading requirements 0fthe Virgin Islands the Hills have sutfieiently alleged enough facts which taken as true put Bluevtater and Cottelt on notite of a Civil Conspiracy claim against them At this stage in the proceeding dismissal ofthis count Would be premature F Unjust Enrichment against Bluewaler and Coffelt 1143 While the Hills have made a claim for restitution in their Fitst Amended Complaint as stated above this claim is more aptly classified as one for Unjust Enrichment While BlueWater 4nd Coffelt argue that restitution is not available when an adequate remedy at law is available “3 the Thiid Circuit case cited by Bluewater and Cuffelt makes clear that the plaintiff in that case could not prevail on their Llaim for a restitution reward because it had prevailed on its breach of contract claim ”9 Here the Hills have not yet prevailed on any claim but are only in the pleading stage Further not only do the Hills deny there was the existence at a umtract to use the scaffolding making a claim for breach of contract unavailable to them, even if that were not the case the Hills are also permitted to plead in the alternative as well as pursue different even "“ Countercl Bets Mo! Tu Dismiss 6 7 ”7 Countercl Defs M01 T0 Dismiss 8 ”K Countercl Defs Mot T0 Dismiss‘) ”Warm sun Inc v OMESale: LLL No 2012 93 2016US Dist LLXIS3l375 at*1213(DV1 Mar 11 2016) ( Here Native Son has an adequate runedy at law Indeed Native Sun has prevailed on its breach ufmntract claim A: such a claim of restitution is unavailable to Native Son ) Bluewaler Cmtstmctmn, [m V Gary HI]! and Wanda HI” 2022 VI Super [3 Case No ST 2020 CV 00212 Memorandum Opinion and Order Page 19 of 20 inconsistent alternate relief '2” Lastly the use of the scaftolding was manifestly beneficial to Bluewater and Coffelt Dismissal of this claim is not appropriate at the pleading stage of this case G Declaratory Judgment against Blnewater 1H4 Bluewater and Coffelt citing to the Eleventh Circuit argue that equitable relief is only available in the absence of an adequate remedy at law and that the Hills do not seek to have any legal relation or status determined so their Declaratory Judgment Llaim should be dismissed 121 However 5 V I C § 126] allows a Declaratory Judgment claim to be made whether or not other reliefis sought $145 Further the Hills do seek a determination as to their legal relationships and rights Blucwater and Cottelt allege the existence of an agreement to use scaffolding and the Hills deny the existence of this contract the Hills allege that Bluewater threatened them with criminal prosecution for the unlicensed leasing of scaffolding when they demanded compensation and the Hills seek to enjoin Bluewater and Coffelt from issuing threats or engaging in further retaliation against them and lastly the Hills seek a determination as to whether their contractual relationship with Splingbottrd legallyjustifies a lien on their property in favor of Bluewater The Hills have plead facts which taken as true would plausibly give rise to an entitlement of relief Thus the Declaratory Judgment Claim will not be dismissed H The Court will not dismiss the First Amended Counterclaim on account of V I R Civ P 12(b)(7) {[46 BlueWater and Coftelt in their Motion lo Dismiss state that they mme to dismiss the Hills First Amended Counterclaim pursuant to both Virgin Islands Rule 01 Civil Piocedure 12(b)(6) as well as Rule l2(b)(7) '22 However BlueWatcr and Coffelt proffer no argumentation as to how the Hills First Amended Counterclaim violates Rule 12(b)(7) 123 The Court notes that an August 28 2020 Bluewater moved to dismiss the Hills original Counterclaim for Inter aha a violation of Rule 12(b)(7) tailure to join a party under Rule l9 that the Hills subsequently amended their Countercldim on September 17 2020 and on September 22 202l the Court granted the Hills leave to amend their Counterclaim and denied Bluewater s first motion to dismiss as moot Since Bluewater and Coffclt proffer n0 reasoning as to why the Hills First Amended Counterclaim should be dismissed under Rule 12(b)(7) and the inclusion ofRule l2(b)(7) in the instant Motion to Dismiss appears to be a suivener 5 error, the Court will deny BlueWater and Coffelt’s Rule 12(b)(7) Motion To Dismiss ‘° Ste cg Augmlm t Hm; 01/ hrgm Islands Carp 67 VI 488 521 (VI Supei Ct 20|7)( [A] plaintiff may plead different even inconsistent claims in the alternative and also pursue alternate theories 0t relief (quoting Mitchel” General Engineering Corporalmn 67 V[ 271 285 n 7(VI Super m 2017)) ‘7‘ Countercl Defs Mot To Dismiss 10 ll ” Cmmtercl Defs Mot To Dismiss] “ V l R CIV P 12(b)(7) states Every defenst m a claim for reliefin any pleading must be asserted in the responstve pleading if one is required But a party may assm the following defenses by motion tailure to join a party under RulL 19 Bluewaler Construttnm, ll“. v Gary ”I” am! Wunda Hill 2022 VI Super [3 Case No ST 2020 CV 00212 Memorandum Opinion and Order Page 2|) of 20 IV CONCLUSION 1H7 Plaintiffs the Hills have filed counterclaims against defendants Bluewater and Coffclt Lonneming allegedly leaky windows installed by defendants as well as scaffolding purchased by the Hills but utilized by Bluewater and Coffelt on other construction sites lhese counterclaims are (1) Breach of Contract against Bluewater (2) Breach of Implied Warranty of Good Workmanship against Bluewater (3) Negligence against Bluewater (4) Conversion against Bluewater and Coffelt; (5) Civil Conspiracy against Bluewater and Cotieit (6) Restitution against Bluewater and Coffelt and (7) Declaratory Judgment against Bluewater $148 Bltlewater and Coffelt move to dismiss arguing that under the Iqbal/Twombly standard the Hills have not met their pleading burden However as the Virgin Islands Supreme Court has made clean the U S Virgin Islands remains a notice pleading jurisdiction pursuant to Virgin Islands Rule of Civil Procedure 8(a) lhe Hills have made a sufficient showing of factual allegations which taken as true and in a light most favoxable to them the nonmoving party adequately put Bluewater and Coffelt on notice of the claims agaimt them Additionally as neither the Virgin Islands Supreme Court or the Virgin Islands Superior Court has recognized the Implied Wdrtemty of (mod Workmanship the Court has conducted a Bank: analysis and has adopted it as a part at the Virgin Islands common law consistent with the elements and parameters contained herein 1149 Accordingly it is hereby ORDERED that Counterclaim Defendants Bluewater Construction Inc And [any Coffelt 3 Reply 10 Hill 5 First Amended Complaint filed May 10 2021 is DENIED and it is further ORDERED that a copy of this Memorandum Opinion and Order shall be directed to counsel of record DATED February 1' I 2022 WW 2:Wm DENISE M NCOIS Yudge 0fthe Superior Court of the Virgin Islands ATTEST TAMARA CHARLES Clerk of the Court BY mbM It 9 E {r LATO AMACHO Court Clerk Supervisor / /