IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS



DIVISION OF ST. THOMAS AND ST. JOHN



ROYAL CARIBBEAN CRUISES, Plaintiff



LTD. CASE NO. ST-15-CV-0000119



ACTION FOR: CONTRIBUTION

INDEMNIFICATION



VS



BONIFACE C. ABBA,M.D.

ROY LESTER SCHNEIDER

HOSPITAL



ee? Nee! See? See” eee? See “eee See



Defendant



NOTICE OF ENTRY OF

MEMORANDUM OPINION &

(2) ORDERS



TO: JULIE GERMAN EVERT, ESQ.

JENNIFER MILLER, ESQ. (305) 379-3690

JOHANNA HARRINGTON, ESQ., AAG.

JUDES, MAGISTRATES, LAW CLERKS, IT

ESTRELLA H. GEORGE, ACTING CLERK OF THE

COURT



Please take notice that on December 21, 2016 a(n) MEMORANDUM

OPINION & (2) ORDERS dated December 16, 2016 was entered by the Clerk in

the above-entitled matter.



Dated: December 21, 2016 Estrella H. George

Acti the Court



CAMEIL A. CLARKE

COURT CLERK il

SUPERIOR COURT OF THE VIRGIN ISLANDS



DIVISION OF ST. THOMAS AND ST. JOHN



)



ROYAL CARIBBEAN CRUISES, LTD., )

)



Plaintiff, )



VS. } CASE NO. ST-15-CV-119



)



BONIFACE ABBA, M.D. and ROY LESTER )

SCHNEIDER HOSPITAL, )

)



Defendant. )



)



MEMORANDUM OPINION



Pending before the Court is Defendants Boniface Abba, M.D. and Roy Lester Schneider

Hospital’s August 16, 2016, Motion for Judgment on the Pleadings. Since Defendants have not

shown that there are no material facts to resolve with respect to Counts I and II of the Complaint,

Defendants’ motion will only be granted in part.



RELEVANT FACTS AND PROCEDURAL HISTORY

This matter arises out of a Complaint filed on March 18, 2015,' by Plaintiff Royal



Caribbean Cruises, LTD (“Royal Caribbean”) against Defendants Boniface Abba, M.D. and Roy

Lester Schneider Hospital (“RLSH”). According to the Complaint, on March 8, 2008, Royal

Caribbean retained Abba to provide medical treatment to its employee, Notaish Seunarine, a Jones

Act seaman aboard one of Royal Caribbean’s cruise ships, in accordance with Seunarine and Royal

Caribbean’s employment relationship.” Specifically, Royal Caribbean alleges it “retained Abba to



provide Seuarine with medical care to treat his perirectal bilateral abscesses and fistulas[,]”? but,



' Due to a procedural deficiency cured by Plaintiff, the Complaint was not docketed until March 19, 2015.

* Compl. Jf 8-10.

3 Compl. 7 10.

Royal Caribbean Cruises, LTD vy. Boniface C. Abba, M.D., et al.

Case No. ST-15-CV-119



Memorandum Opinion, December 16, 2016



Page 2 of 18



in so doing, “Abba performed an unnecessary and aggressive destructive surgery which resulted

in excessive anal sphincter damage and directly caused Seunarine to become incontinent of

stool[,]” while also erroneously documenting Seunarine’s condition and the surgery.’ As a result,

it was necessary for Seunarine to receive medical treatment with a variety of physicians and

undergo numerous corrective surgeries, the third of which was performed on May 25, 2010.° Royal

Caribbean submits that it paid for all of this medical treatment, as well as the “per diem living

allowances to cover the cost of food and lodging” in accordance with the maintenance and cure

benefits owed to Seunarine under the Jones Act.®



On January 28, 2011, Seunarine filed a Complaint against Royal Caribbean in a Florida

state court, seeking, as a Jones Act seaman, “to hold [Royal Caribbean] vicariously liable for the

actions of Abba and RLSH” and to recover from Royal Caribbean, inter alia, “the damages

sustained [by Seunarine] as a result of the surgical procedure performed by Abba.” The state court

action was removed to federal court, which “[o]n May 4, 2011, ... entered an Order compelling

the parties to resolved their disputes in arbitration” in accordance with the employment contract

and collective bargaining agreement governing Seunarine’s employment with Royal Caribbean.®

“After arbitration was compelled, [Royal Caribbean] placed Abba on notice of Seunarine’s

allegations” and demanded on multiple occasions that “Abba assume full responsibility for the

claims asserted against [Royal Caribbean], investigate Seunarine’s claims, [and] agree to



indemnify [Royal Caribbean] and hold [Royal Caribbean] harmless from Seunarine’s claims[,]”



4 Compl. 4] 11-19.

> Compl. ff] 20-33.

© Compl. 4 24 & n. 1.

™ Compl. ff 34, 65.

8 Compl. 34-37.

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Case No. ST-15-CV-119



Memorandum Opinion, December 16, 2016



Page 3 of 18



the last demand having been made on March 1, 2013.” Prior to arbitration, Seunarine and Royal

Caribbean “reached a settlement agreement and filed a Stipulation of Dismissal with Prejudice”

on May 21, 2013.'° The federal action was dismissed on May 23, 2013.!!



From the foregoing allegations, Royal Caribbean asserts the following six counts in its

Complaint: indemnification and contribution against Abba and RLSH for the “actual damages”

incurred by Royal Caribbean “from Abba’s and RLSH’s negligence through [Royal Caribbean’s]

payment of maintenance and cure and settlement of Seunarine’s claims” (Counts I and 11);!2

ordinary and gross negligence against Abba for his alleged improper “management, care, and

supervision of Seunarine” (Count III);'? the intentional tort of battery against Abba for

“intentionally perform[ing] an unnecessary and destructive surgery” that “exceeded the scope of

any consent to treatment granted by Seunarine” (Count IV);'4 negligent infliction of emotional

distress against Abba for performing the “invasive and unnecessary surgery” that resulted in pain

and suffering to Seunarine, as well as “mental anguish and a constant fear of developing further

medical problems” (Count V);'* negligence against RLSH under a theory of independent and

vicarious liability for being “negligent in its policies, procedures, assignment of work, supervision

of work, and recording keeping,” and “improperly training, hiring, and supervising its staff”



(Count VJ).'¢



> Compl. ¥f] 38-39.



© Compl. {ff 39-41.



'! Compl. 441.



"2 Compl. {142-70 (Count I, asserting a claim for indemnification), 70-90 (Count II, asserting a claim for contribution).

3 Compl. 4] 91-103.



'4 Compl. 4 104-112.



'5 Compl. ff 112-118.



'© Compl. ff] 118-129.

Royal Caribbean Cruises, LTD vy. Boniface C. Abba, M.D., et al.

Case No. ST-15-CV-119



Memorandum Opinion, December 16, 2016



Page 4 of 18



With its Complaint, Royal Caribbean attached ten exhibits, labeled Exhibits A — J, and

documents purportedly evincing Royal Caribbean’s compliance with the prerequisites for filing

suit under the Virgin Islands Medical Malpractice Act.'” Additionally, Royal Caribbean asserts in

the Complaint that the causes of action alleged in Counts III through VI “inure” to Royal Caribbean

“[b]y virtue of Seunarine’s duly executed assignment of rights”!® and that “[rJecords reflecting

payment of the confidential settlement amount and Seunarine’s duly executed Assignment of

Rights will be filed under seal, separately.”!? While the Court granted Plaintiff leave to file the

settlement agreement between Seunarine and Royal Caribbean under seal by Order entered on

September 21, 2016, the record does not reflect that the exhibit was actually filed.”°



Answers and Affirmative Defenses to Plaintiff's Verified Complaint were filed by Abba

and RLSH, on April 24, 2015, and May 22, 2015, respectively. On August 16, 2016, Defendants

filed this Motion for Judgment on the Pleadings, to which Plaintiff filed a timely Opposition on

September 14, 2016.7! Defendants timely replied on September 26, 2016.77



STANDARD



According to the Supreme Court of the Virgin Islands, when reviewing a motion for

judgment on the pleadings,



the [Superior] Court “‘views the facts alleged in the pleadings and the inferences to



be drawn from those facts in the light most favorable to the plaintiff,’ and



‘[a] motion for judgment on the pleadings should not be granted unless the moving



party has established that there is no material issue of fact to resolve, and that it is



entitled to judgment in its favor as a matter of law.’”” ... [T]he Superior Court ...

“may not ‘consider[ ] evidence from any source outside of the pleadings and the



7 See 27 V.LC. § 166(i).



18 Compl. f] 98 (Count III), 107 (Count IV), 118 (Count V), 129 (Count VI).



1° Compl., p. 7 n. 2.



20 See PI.’s September 14, 2016, Mot. for Leave to file Exhibit Under Seal; September 21, 2016, Order (granting Royal

Caribbean leave to file its settlement agreement with Seunarine under seal).



2! See August 23, 2016, Order (setting briefing deadlines).



22 Id,

Royal Caribbean Cruises, LTD v. Boniface C. Abba, M.D., et al.

Case No. ST-15-CV-119



Memorandum Opinion, December 16, 2016



Page 5 of 18



exhibits attached to the pleadings in determining whether it was proper to grant

a motion for judgment on the pleadings.’



Should the Court consider evidence constituting matters outside the pleadings, “the motion must

be treated as one for summary judgment” under Fed. R. Civ. P. 56, which in turn requires the

parties “be given a reasonable opportunity to present all the material that is pertinent to

the [summary judgment] motion.””4



When reviewing Defendants’ motion, the Court may consider the exhibits attached with

Royal Caribbean’s Complaint. The Complaint refers to Royal Caribbean’s settlement agreement

with Seunarine, and, though Royal Caribbean was granted leave to file the settlement agreement

under seal, the record does not reflect that it was filed. Therefore, the Court need not address

whether the settlement agreement constitutes a “matter outside the pleadings” so as to require

conversion of the motion into one for summary judgment since no outside matters have been

submitted in connection with Defendants’ Motion for Judgment on the Pleadings.



ANALYSIS

A. Prohibition against the assignment of medical malpractice claims.

Defendants argue that Royal Caribbean “‘cannot recover damages from Defendants based



on its employee ... assigning his claim for medical negligence to [Royal Caribbean]” because the



Virgin Islands Medical Malpractice Act “prohibits the assignment of a patient’s claim.”*> In



*3 United Corp. v. Hamed, 64 V.1. 297, 305 (V.L. 2016) (citing Benjamin v. AIG Ins. Co. of P.R., 56 V.1. 558, 566 (V.L.

2012) (internal citations omitted).



4 See FED. R. Civ. P. 12(d). The Supreme Court of the Virgin Islands has adopted the substance of FED. R. Civ. P.

12(d). See United Corp., 64 V.1. at 306-307 (“While the Superior Court does have the discretion to consider evidence

outside of the pleadings in ruling on a motion for judgment on the pleadings — and necessarily convert it to a motion

for summary judgment, ... — it committed error by doing so in this case without first notifying the parties and

providing United an opportunity to respond”) (citing United Corp. v. Tutu Park, Ltd., 55 V.1. 702, 711 (V.1. 2011))

(internal citation omitted).



25 Defs.’ Mot. for J. on the Pleadings, p. 2; See 27 V.LC. § 166c.

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Case No. ST-15-CV-119



Memorandum Opinion, December 16, 2016



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opposition, Royal Caribbean argues its claims for indemnification and contribution are not

“assigned claims,” but distinct causes of action that accrued in favor of Royal Caribbean when the

liability of Abba and RLSH was extinguished through Royal Caribbean’s settlement with

Seunarine.”* Notably, Royal Caribbean does not address Defendants’ argument regarding Counts

III — VI of the Complaint. Defendants argue that this automatically entitles them to a grant of

judgment on these claims, but this conclusion belies the clear policy of the Supreme Court of the

Virgin Islands against such rulings.’ As a result, the Court will address all of Royal Caribbean’s

claims when determining whether to grant or deny judgment on the pleadings.



Defendants are correct that 27 V.I.C. § 166c provides that “[a] patient’s claim for

compensation under this subchapter is not assignable.” Applying the rules of statutory

construction,”® the plain text of Section 166c clearly refers to “this subchapter[,]” which is

Subchapter IX of Chapter 1, Title 27 of the Virgin Islands Code, which, in turn, contains the



statutory provisions of the Virgin Islands Medical Malpractice Act (“‘Act”).2? “Patient” is defined



*6 Pl.’s Opp’n to Defs.’ Mot. for J. on the Pleadings, pp. 5-7.

=" See Vanterpool y. Gov't of the V.1., 63 V.I. 563, 583-584 (V.1. 2015) (“[T]he fact that a summary judgment motion

is deemed uncontested due to a procedural defect — such as not filing a timely opposition — is not grounds for

accepting the moving party’s undisputed facts as true”); See also People of the VI. v. Armstrong, 64 V.1. 528, 538

(V.I. 2016) (“This Court has consistently held that silence — without more — is not tantamount to consent or

agreement ... ‘[t]he failure to submit opposing papers is not tantamount to an affirmative concession that the facts

alleged by [the] defendant are true.””) (citing Najawicz v. People, 58 V.1. 315, 325 n.6 (V.I. 2013)) (internal and other

citations omitted).

* Statutory interpretation is governed by the “Rules of Construction.” 1 V.LC. §§ 41 — 52. The Supreme Court of the

Virgin Islands has described the standard for statutory interpretation, as follows:

“The first step when interpreting a statute is to determine whether the language at issue has a plain

and unambiguous meaning. If the statutory language is unambiguous and the statutory scheme is

coherent and consistent, no further inquiry is needed. In analyzing a statutory scheme, we must give

effect to every provision, making sure to avoid interpreting any provision in a manner that

would render it — or another provision — wholly superfluous and without an independent meaning

or function of its own. But even where a statutory scheme is plain and internally consistent, no

statute should be read literally if such a reading is contrary to its objective [and] this Court must

consider whether applying the statute’s literal language leads to ... absurd consequences or is

otherwise inconsistent with the Legislature’s intent.”

In re L.O.F., 62 V.1. 655, 661 (V.I. 2015) (internal and other citations omitted).

™ See 27 V.LC. §§ 166 — 1661.

Royal Caribbean Cruises, LTD v. Boniface C. Abba, M.D., et al.

Case No. ST-15-CV-119



Memorandum Opinion, December 16, 2016



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under Section 166(i) of the Act as “a natural person who receives or should have received health

care from a licensed health care provider, under a contract, express or implied.”°° The meaning of

the term “assignable” in Section 166c must be read in its context and “construed according to the

common and approved usage of the English language.”*' According to Black’s Law Dictionary,

“assignable” means “[a]ble to be assigned; transferable from one person to another, so that the

transferee has the same rights as the transferor had.”



The language “claim for compensation” under the Act in Section 166c is informed by

Section 166(f), which explicitly defines malpractice as “any tort or breach of contract based on

health care or professional services rendered, or which should have been rendered by a health care

provider, to a patient.”?? The United States Court of Appeals for the Third Circuit has construed

this provision as expressing legislative intent for the Act “to cover all actions relating to the

provision of medical care.’* This interpretation is consistent with Section 166d(a), which sets

forth the statute of limitations for claims arising under the Act, stating, in pertinent part “[nJo

claim, whether in contract or tort, may be brought against a health care provider based upon

professional services or health care rendered unless filed ....”°°



Considering the literal language of Section 166c, in the context of the statutory scheme as

a whole, the provision clearly and unambiguously denotes that the right to bring an action for “any



tort or breach of contract based on health care or professional services rendered, or which should



3°97 VLC. § 166(i).



” See Defoe v. Phillip, 56 V.1. 109, 121 (V.L 2012) (“{T]he Virgin Islands Legislature has instructed that ‘[w]ords

and phrases shall be read with their context and shall be construed according to the common and approved usage of

the English language,’ but that ‘[t]echnical words and phrases, and such others as may have acquired a peculiar and

appropriate meaning in the law, shall be construed and understood according to their peculiar and appropriate

meaning””) (citing 1 V.I.C. § 42),



32 BLACK'S LAW DICTIONARY 135 (9th ed. 2009).



33 27 V.L.C. § 166(f) (emphasis added).



¥ Abdallah v, Callender, | F.3d 141, 145 (3d Cir. V.1. 1993).



35.27 V.LC. § 166d(a).

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Case No. ST-15-CV-119



Memorandum Opinion, December 16, 2016



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have been rendered by a health care provider, to a patient’* vests only with the patient, who may

not transfer his or her right to other person or entity.*’ This interpretation is consistent with the

statutory scheme of the Act as a whole, as well as the historical purpose of the Act “to provide

continuing medical care in the face of rising malpractice insurance costs and the unavailability of

professional liability insurance resulting in the limitation and fear of cessation of medical practice

in the islands.” This construction of Section 166c is not contrary to legislative intent, nor does it

does lead to absurd consequences. As a result, further inquiry is not necessary and the Court will

apply the aforementioned literal interpretation of Section 166c.



In Counts III — V, Royal Caribbean asserts claims against Abba for ordinary and gross

negligence, battery, and negligent infliction of emotional distress, while in Count VI, Royal

Caribbean asserts a claim ordinary negligence against RLSH. All of these claims sound in tort and

arise from the health care or professional services rendered, or which should have been rendered,

by Abba and RLSH to Seunarine. Thus, Counts III — VI constitute unassignable medical

malpractice claims, which may be brought only by the patient, Seunarine, who is not a party to

this action.*? As a result, even when construing the factual allegations of the Complaint in a light

most favorable to Royal Caribbean, Defendants have demonstrated that there is no material issue

of fact to resolve with respect to this issue. Consequently, a grant of judgment on Counts III — VI



of the Complaint is warranted.



© 27 V.LC. § 166(f) (emphasis added).



* This narrow interpretation should not be construed to encompass claims asserted by a patient’s beneficiaries after

his or her death through a wrongful deal or survivor action. See 5 V.IC. §§ 76, 77; See also 27 V.L.C. § 166b(f) (“The

recovery in an action for wrongful death of a patient shall be as provided in Title 5, section 76, Virgin Islands Code,

and shall be subject to the same limitations on recovery as are provided for in this section”).



38 Brady v. Cintron, 55 V.I. 802, 816 (V.I. 2011) (citing Davis v. Omitowoju, 883 F.2d 1155, 1159 n.5 (3d Cir. 1989)).

® Cf Abdallah, \ F.3d at 145 n.7 (“[A]n action for battery is based in tort. Therefore, because Count II is based in

tort and is related to health care services rendered, the statute required its submission to the Review Committee prior

to the initiation of suit”).

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Case No. ST-15-CV-119



Memorandum Opinion, December 16, 2016



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The prohibition against the assignment of medical malpractice claims does not apply to

Counts | and II of the Complaint because the right of action on claims of implied indemnification

and contribution inures to the indemnitee, not the patient.*? In considering claims for

indemnification and contribution, this Court has adopted the Restatement (Third) of Torts-

Apportionment of Liability §§ 22 and 23.*' A claim of indemnity is defined, in pertinent part, as

follows:



(a) When two or more persons are or may be liable for the same harm and one of



them discharges the liability of another in whole or in part by settlement or



discharge of judgment, the person discharging the liability is entitled to recover



indemnity in the amount paid to the plaintiff, plus reasonable legal expenses, if:

(1) the indemnitor has agreed by contract to indemnify the indemnitee, or



(2) the indemnitee

(i) was not liable except vicariously for the tort of the indemnitor, or



(b) A person who is otherwise entitled to recover indemnity pursuant to contract

may do so even if the party against whom indemnity is sought would not be liable

to the plaintiff.*

Vicarious liability, such as that described in Section 22(a)(1)(2)(i), “is a method of extending



tort liability beyond those directly and immediately negligent.’?



40 See Maurice T. Brunner, Annotation, When Statute of Limitations Commences to Run Against Claim for

Contribution or Indemnity Based on Tort, 57 A.L.R.3D 867, *2 (2016) (The rule generally recognized in most

jurisdictions is that the cause of action for contribution or indemnity based upon tort is distinct from the cause of action

for the underlying tort”); 41 AM. JUR. 2d Indemnity § 20, at 407 (2015) (“Implied indemnity claims are distinct,

separate causes of action from any underlying contractual relationship between the parties”) (footnotes omitted); See

also Dublin v. VI. Tel. Corp,, 1978 V.1. LEXIS 17, *25 (V.I. Terr. Ct. 1978) (“The court agrees with the majority

view that actions for indemnity and contribution are distinct from the underlying causes of actions on which they are

based”); but see Robbins v. Port of Sale, Inc., 62 V.1. 151, 158-159 (Super. Ct. 2015 March 6, 2015) (rejecting the

Territorial Court’s conclusion in Dublin, 1978 V.I. LEXIS 17, that the statute of limitations for indemnity and

contribution claims begins to run at the same time as the statute of limitations on the underlying tort or contract claim).

| Jacobs v. Roberts, 2015 V.1. LEXIS 58, *8 (V.I. Super. Ct. May 21, 2015) (conducting an analysis mandated under

Banks v, Int'l Rental & Leasing Corp., 55 V.1. 967 (V.I. 2011) with respect to claims of indemnification and

contribution and adopting the RESTATEMENT (THIRD) OF TORTS- APPORTIONMENT OF LIABILITY §§ 22 and 23 (3rd

2000) as the soundest rule for the Virgin Islands).



® Id. at *5, 8 (citing RESTATEMENT (THIRD) OF TORTS- APPORTIONMENT OF LIABILITY § 22).



3 Paul vy. Abramson Enters., Inc., 64 V.I. 269, 275-76 (Super. Ct. June 1, 2016) (citations omitted).

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Case No. ST-15-CV-119



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On the other hand, a claim of contribution differs from a claim for indemnity and is defined



as follows:



(a) When two or more persons are or may be liable for the same harm and one of them



discharges the liability of another by settlement or discharge of judgment, the person



discharging the liability is entitled to recover contribution from the other, unless the



other previously had a valid settlement and release from the plaintiff.



(b) A person entitled to recover contribution may recover no more than the amount paid



to the plaintiff in excess of the person’s comparative share of responsibility.



(c) A person who has a right of indemnity against another person under § 22 does not



have a right of contribution against that person and is not subject to liability for



contribution to that person.**



In determining whether a claim is for indemnity or contribution in circumstances where a

person is vicariously liable, the Restatement notes that “[e]xcept for contractual indemnity, a

vicariously liable person can obtain indemnity from the person whose negligence was imputed

only if the vicariously liable person is not independently liable[,]” while a person who is liable

both vicariously and independently “may be entitled to contribution.’”*°



Here, Royal Caribbean asserts that Seunarine, a seaman subject to federal admiralty law,

developed “injuries and illnesses” during his service on Royal Caribbean’s vessel, and therefore

was entitled to “maintenance and cure” under the general maritime law of the United States,**

which obligated Royal Caribbean to provide Seunarine with medical care. Royal Caribbean alleges

that, in so doing, it retained Abba and RLSH to provide medical treatment to Seunarine. The factual

allegations further evince that, by performing “an unnecessary and aggressive destructive surgery”



on Seunarine, Abba and RLSH were negligent. According to the Complaint, Royal Caribbean’s



employment relationship with Seunarine rendered it vicariously liable for the tortious acts and



“4 Jacobs, 2015 V.I. LEXIS 58, at *6, 8 (citing RESTATEMENT (THIRD) OF TORTS- APPORTIONMENT OF LIABILITY §

23).



45 RESTATEMENT (THIRD) OF TORTS- APPORTIONMENT OF LIABILITY § 23, cmt. e.



46 infra n. 58 - 61.

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omissions of Abba and RLSH, and that, based “solely” on its vicarious liability, Royal Caribbean

entered into a settlement agreement with Seunarine, which in turn discharged the primary liability

of Abba and RLSH. These factual allegations, when viewed in a light most favorable to Royal

Caribbean, satisfy the essential elements of claims for indemnity and contribution against

Defendants.



The claim for contribution is, of course, alternative to a claim for indemnity. While the

Court is satisfied that factual allegations contained in the Complaint are sufficient to plausibly

suggest Royal Caribbean was only vicariously liable for the acts and omissions of Defendants so

as to state a claim for indemnity, the factual allegations evincing that Seunarine’s medical care

with Defendants was arranged by Royal Caribbean also plausibly suggest the potential for a

finding that Royal Caribbean is, to some extent, independently liable. As a purported indemnitee,

Royal Caribbean has the right to bring an independent action for indemnity against Defendants,

the purported indemnitors. Likewise, Royal Caribbean also has the nght to bring an independent

action for contribution against Defendants as joint-tortfeasors.



Defendants contend that Royal Caribbean should have made its claims for indemnity and

contribution by filing a third-party complaint against Defendants in Seunarine’s action against

Royal Caribbean. However, third-party practice in the Virgin Islands, which is guided by Fed. R.



Civ. P. 14,4” is not mandatory and “a party may refrain from impleading a third-party defendant in



*'“Rule 14 governs the procedures and requirements of third-party practice. Rule 14 serves as a procedural mechanism

for judicial efficiency by allowing parties to combine the third-party lawsuit with the first-party lawsuit. There are

currently no applicable Virgin Islands statutes, Superior Court rules, or Virgin Islands Supreme Court ... that are

directly on point regarding third-party practice. Courts and practitioners in this jurisdiction have long recognized the

practice of impleading third-party defendants pursuant to Rule 14. [Further, i]t appears that, at this time, the Supreme

Court continues to recognize third-party practice under Rule 14 in this jurisdiction. Thus, applying Rule 14 here is not

a ‘mechanistic and uncritical reliance’ of the Federal Rules of Civil Procedure.” Jn re Refinery Dust Claims, 2016 V.L.

LEXIS 48, *7-11 (V.I. Super. Ct. May 3, 2016) (intemal and other citations omitted).

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favor of asserting a claim in an independent action. “8 Since Royal Caribbean may assert the claims

for indemnity and contribution against Defendants in an independent action in its own right,

Defendants’ arguments that there are no material issues of fact to resolve because the Virgin

Islands Medical Malpractice Act prohibits the assignment of patient rights and that Royal

Caribbean was required to implead Defendants in Seunarine’s lawsuit lack merit as to the

indemnity and contribution claims.



B. Statute of limitations.



Defendants also argue that all of the causes of action asserted in the Complaint are barred



by the statute of limitations.*? “



[I]t is well established that the statute of limitations is an affirmative

defense that must be specifically pleaded at the first opportunity or else is waived.”>° Here, each

Defendant’s Answer and Affirmative Defenses asserted a statute of limitations defense as to the

Complaint as a whole.*! By affirmatively raising a statute of limitations defense in their first

responsive pleadings, Defendants have not waived the defense as to any of Royal Caribbean’s

causes of action, and the Court may consider that defense when determining Defendants’ Motion

for Judgment on the Pleadings.» In opposing Defendants argument that its claims are time-barred,



Royal Caribbean only addresses its claims for indemnity and contribution, as set forth in Counts I



and IIT of the Complaint.



* 6 CHARLES ALAN WRIGHT, ARTHUR MILLER & MARY KAY KANE, FEDERAL PRACTICE & PROCEDURE — CIVIL §

1442, 344 (3d ed. 2010) (footnotes omitted); See Fernandez v. Corporacion Insular De Seguros, 79 F.3d 207, 210

(Ist Cir. 1996) (“FED. R. Civ. P. 14(a) permits defendants to implead a joint tortfeasor, ... Rule 14 is not mandatory”)

(internal citations omitted).



* Defs.’ Mot. for J. on the Pleadings, pp. 4-6.



°° Rennie v. Hess Oil VI. Corp., 62 V.1. 529, 536 (V.I. 2015) (citing SUPER. CT. R. 32(b)) (other citations omitted).



5! Def. Abba’s Affirmative Defenses, { 7 (asserting that “[P]laintiff is barred from recovery herein due to the expiration

of the applicable Statute of Limitations”); Def. RLSH’s Affirmative Defenses, 7 (asserting that “[P]laintiff is barred

from recovery herein due to the expiration of the applicable Statute of Limitations”).



** Rennie, 62 at 536-537.

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Case No. ST-15-CV-119



Memorandum Opinion, December 16, 2016



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a. Counts I and II.



With respect to Counts I and II of the Complaint, this Court has held that “the statute of

limitations for contribution and indemnity in the Virgin Islands is not coterminous with the statute

of limitations for the predicate tort; the causes of action for contribution and indemnity do not

accrue at the time of the tort, but only when liability is discharged.”*? The parties agree as to the

applicability of this holding and submit arguments in terms of the two year statute of limitations

period applicable to medical malpractice actions under 27 V.I.C. § 166d.%4



The dispute lies in when this two year statute of limitations on Royal Caribbean’s claims

for indemnity and contribution commenced. Defendants contend that the statute of limitations for

Royal Caribbean’s claims for indemnity and contribution commenced “when payment was made”

to Seunarine by Royal Caribbean. Since the last payment by Royal Caribbean was made on

January 25, 2013, Defendants contend the statute of limitations expired on January 25, 2015, and

that this action is time-barred because the Complaint was filed on March 18, 2015.°° In contrast,

Royal Caribbean argues the Complaint is timely because the statute of limitations for its claims

for indemnity and contribution commenced on April 17, 2013, the date Royal Caribbean settled

Seunarine’s lawsuit and discharged Royal Caribbean and Defendants’ liability.>’



The Court agrees with Royal Caribbean. As discussed, Royal Caribbean concedes that it



was obligated to pay Seunarine maintenance and cure because Seunarine was a seaman whose



3} Robbins, 62 V.I. at 158-159 (conducting an analysis mandated under Banks, 55 V.I. 967, with respect to the statute

of limitations for claims of indemnification and contribution).



* Defs.’ Mot. for J. on the Pleadings, pp. 4-5; PI.’s Opp'n to Defs.’ Mot. for J. on the Pleadings, pp. 7-9.



°° Defs.’ Mot. for J. on the Pleadings, p. 4.



% Defs.’ Mot. for J. on the Pleadings, p. 5.



57 Pl.’s Opp’n to Defs.’ Mot. for J. on the Pleadings, p. 8.

Royal Caribbean Cruises, LTD v, Boniface C. Abba, M.D., et al.

Case No. ST-15-CV-119



Memorandum Opinion, December 16, 2016



Page 14 of 18



“injuries and illnesses” arose during his service on Royal Caribbean’s vessel.** As a result, “[t]he

general maritime law of the United States” conferred on Seunarine the right to maintenance and

cure, a “no-fault” remedy that is “neither subject to comparative or contributory negligence nor

dependent upon the shipowner’s negligence[,]” that obligates the shipowner to provide:

“Maintenance[, which] has ... been described as the equivalent to food and lodging

which a seaman is entitled to be paid while at sea[, and cJure[, which] refers to a

shipowner’s obligation to provide such medical care to such seamen during the

period of recovery or rehabilitation from the illness or injury to the point of

maximum recovery.”*?

Importantly, “a seaman’s right to receive, and the shipowner’s duty to pay, maintenance and cure



69 Therefore, the payment of maintenance and



is independent of any other source of recovery[.]

cure by Royal Caribbean would not absolve Royal Caribbean of its potential vicarious liability for

Defendants’ alleged medical malpractice, for which Seunarine was seeking damages in his lawsuit

against Royal Caribbean.®!



The statute of limitations for claims of indemnity and contribution begins to run “when the

underlying claim, a judgment thereon, or a settlement thereof is paid or discharged.”®? The factual



allegations in the Complaint suggest Royal Caribbean’s liability was not discharged until it settled



with Seunarine. Royal Caribbean contends in its Opposition that the settlement agreement between



°8 “The general maritime law of the United States provides seamen who have become ill or injured while in a ship's

service with the right to maintenance and cure.” 70 AM. JUR. 2d Shipping § 305, at 587 (2005) (footnotes omitted).

% Id. at § 305, at 587, § 308, at 590-591 (footnotes omitted).



$9 JJ, at § 308, at 591 (footnotes omitted).



*! Because “[t]he duty to provide a seaman with maintenance and cure includes the obligation to take all reasonable

steps to ensure that the seaman, when he or she is injured or becomes ill, receives proper care and treatment|,]” courts

have held shipowners vicariously liable for medical malpractice “by a private physician selected by the shipowner’s

master or agent[.]” /d. at § 309, at 591-592, §334, at 614 (footnotes omitted). See Compl., Ex. H, “Seunarine

Complaint.”



® See Robbins, 62 V.1. at 156, 158 (adopting “the same rule as the majority of jurisdictions” in the United States,

which is “that the cause of action for contribution or indemnity based upon tort is distinct from the cause of action for

the underlying tort, and the time when the statute of limitations starts to run upon such cause of action is not when the

tort is committed, but when the underlying claim, a judgment thereon, or a settlement thereof is paid or discharged”)

(citing Brunner, supra n. 40,*2).

Royal Caribbean Cruises, LTD v. Boniface C. Abba, M.D., et al.

Case No. ST-15-CV-119



Memorandum Opinion, December 16, 2016



Page 15 of 18



Royal Caribbean and Seunarine occurred on April 17, 2013. While this date is not specifically

stated in the factual allegations of the Complaint,” the Notice of Intention to File Claim, attached

to the Complaint as Exhibit “A,” states that “Seunarine executed a release and Assignment in

exchange for money damages” on April 17, 2013. The Court finds this is sufficient to plausibly

suggest that the statute of limitations on Royal Caribbean’s claims for indemnity and contribution

did not commence until April 17, 2013. Consequently, Defendants have failed to establish there is

no material issue of fact that Royal Caribbean’s claims for indemnity and contribution are time-

barred.



Accordingly, the Court will deny Defendants’ Motion for Judgment on the Pleadings as to

Counts I and II of the Complaint.



b. Counts III — VI.



As discussed, Royal Caribbean does not have the right to assert the medical malpractice

claims, set forth in Counts III — VI of the Complaint, against Defendants. However, even assuming,

arguendo, Royal Caribbean had a right of action, these claims are time-barred under the statute of

limitations applicable to medical malpractice claims. 27 V.I.C. § 166d(a) provides, in pertinent

part, that



No claim, whether in contract or tort, may be brought against a health care provider



based upon professional services or health care rendered or which should have been



rendered unless filed within two (2) years from the date of the alleged act, omission



or neglect ... Provided, That any malpractice claim brought under this subchapter



may be filed within two years of the last treatment where there is continuous



treatment for the same illness, injury or condition which gave rise to the alleged act,



omission or neglect; Provided further, That [sic] a toll of the statute of limitations



shall operate for any period during which the health care provider had actual

knowledge of any act, omission or neglect or knowledge of facts which would



® PI.’s Opp’n to Defs.’ Mot. for J. on the Pleadings, p. 8.



* Royal Caribbean alleges in the Complaint that “[o]n or about May 21, 2013, [Royal Caribbean] and Seunarine

reached a settlement agreement and filed a Stipulation of Dismissal with Prejudice.” Compl. 4 41.



65 See Compl., Ex. A, “Notice of Intention to File Claim.”

Royal Caribbean Cruises, LTD y. Boniface C. Abba, M.D., et al.

Case No. ST-15-CV-119



Memorandum Opinion, December 16, 2016



Page 16 of 18



reasonably indicate such act, omission or neglect which is the basis for

a malpractice claim and failed to disclose such fact to the patient.



According to the Complaint, Royal Caribbean’s medical malpractice claims stem from the

surgery performed by Abba at RLSH on March 10, 2008. It is alleged that Seunarine received

treatment from another physician, Dr. Sheik Amir, on April 30, 2008, and “‘[o]n October 8, 2008,

Dr. Manuel Viamonte, a board certified colorectal surgeon in Miami, Florida, performed a

sphincterolplasty to correct the damage to the anal sphincter caused by the surgery performed by

Abba.’””*’ These factual allegations suggest that “the date of the alleged act, omission or neglect”

by Abba and RLSH was March 10, 2008, and that Seunarine knew of this purported malpractice

when he received corrective surgery on October 8, 2008.



The factual allegations do not suggest, nor does Royal Caribbean argue, that the statute of

limitations on Seunarine’s medical malpractice claim was tolled under an exception to the statute

of limitations under Section 166d(a) or an equitable tolling doctrine.** Moreover, the factual

allegations clearly demonstrate that Seunarine possessed the critical facts regarding his medicnl

malpractice claims in 2008, and, therefore, the statute of limitations on Seunarine’s medical

malpractice claims expired in 2010. As a result, Defendants have satisfied their burden of showing

there is no material issue of fact that Seunarine’s medical malpractice claims, as alleged in Counts

III] — VI of the Complaint, are time-barred. For this reason, a grant of judgment on Counts III — VI



of the Complaint is also warranted on statute of limitations grounds.



% See Compl. ff] 10-19.



Compl. 4f 20, 25.



6° See United Corp., 64 V.1. at 305-306 (“The discovery rule tolls the statute of limitations when, despite the exercise

of due diligence, the injury or its cause is not immediately evident to the victim”) (citing Santiago v. V.I. Hous. Auth.,

57 VI. 256, 273 (V.I. 2012)); See, e.g. Payne v. Government of the Virgin Islands, 2002 V.I. LEXIS 18 (V.I. Terr. Ct.

2002); Frederick v. Ellet, 2014 V.I. LEXIS 5 (V.L Super. Ct. 2014). See also Warner v. Ross, 164 F.App’x 218 (3d

Cir. V.I. 2006); Samuel v. Virgin Islands, 2006 U.S. Dist. LEXIS 89744 (D.V.I. App. Div. 2006) (all applying the

equitable toiling doctrine known as “the discovery rule” to medical malpractice actions).

Royal Caribbean Cruises, LTD v. Boniface C. Abba, M.D., et al.

Case No. ST-15-CV-119



Memorandum Opinion, December 16, 2016



Page 17 of 18



The Court recognizes that the Supreme Court of the Virgin Islands has noted that “plaintiffs

need not anticipate the statute of limitations or other affirmative defenses when they draft their

complaints,” therefore the Court should, “at a minimum,” provide plaintiffs with an opportunity

to amend the complaint before dismissing any claims as time-barred. However, Royal Caribbean

also does not have a right to assert Seunarine’s medical malpractice claims. Further, Royal

Caribbean submitted no argument whatsoever in defense of Counts III — VI of the Complaint.

Considering this, the Court finds granting Royal Caribbean an opportunity to amend Counts III —

VI of the Complaint would be futile.” As a result, the Court will grant Defendants’ Motion for



Judgment on the Pleadings as to Counts III — VI of the Complaint.”!



6 Rennie, 62 V.I. at 538 n. 5 (citing Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980))

(other citations omitted).



” When dismissing claims for failure to state a claim upon which relief can be granted, an opportunity to amend the

complaint to cure any deficiencies is not warranted when amendment would be futile. See James-St. Jules v.

Thompson, 2015 V.1. LEXIS 74, *12-13 (V.I. Super. Ct. June 25, 2015) (“[D]espite these deficiencies in the complaint,

the Court must grant [plaintiff] an opportunity to amend her complaint unless amendment would be futile”)

(citing Alston y. Parker, 363 F.3d 229, 235 (3d Cir. 2004)).



7| Since “[a] grant of a motion ... for judgment on the pleadings constitutes a final judgment on the merits of the

controversy” and curative amendment would be futile, it is appropriate to dismiss Counts III — VI with prejudice. See

SC CHARLES ALAN WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE & PROCEDURE — CIVIL § 1372, 276-277 (3d ed.

2004) (discussing motions for judgment on the pleadings under Fed. R. Civ. P. 12(c)); Benjamin, 56 V.I. at 562-563

(“The dismissal of a complaint for failure to state a claim is a final order’) (citing Martinez v. Colombian Emeralds,

Inc., 51 V.1. 174, 187 (V.E. 2009)).

Royal Caribbean Cruises, LTD v. Boniface C. Abba, M.D., et al.



Case No. ST-15-CV-119



Memorandum Opinion, December 16, 2016



Page 18 of 18



CONCLUSION



For the aforementioned reasons, Defendants’ Motion for Judgment on the Pleadings will



be granted in part as to Counts III — VI, but denied as to Counts I and II because Defendants have



failed to show that there are no material issues of fact to resolve with respect to Royal Caribbean’s



claims for indemnity and contribution.



An Order consistent with this Memorandum Opinion shall follow.



<< —=ee SS



Dated: December “Z , 2016



HON. MICHAEL C. DUNSTON



ANTE



: Estrella George



JUDGE OF THE SUPERIOR COURT



Act



Clerk of Co



OF THE VIRGIN ISLANDS



by: 4



for



Lori oynes-Tyson



Court Clerk Supervisor 7



AG



CERTIFIED A TRUE COPY



DATE:



21,20



ESTRELLA H. GEORGE



Acting Clerk of the Court



By



Came



larke



Count Clerk Il

SUPERIOR COURT OF THE VIRGIN ISLANDS



DIVISION OF ST. THOMAS AND ST. JOHN



ROYAL CARIBBEAN CRUISES, LTD.,



Plaintiff,



vs. CASE NO. ST-15-CV-119



BONIFACE ABBA, M.D. and ROY LESTER

SCHNEIDER HOSPITAL,



Defendant.



Neume” ‘emme” “emme’ “emo” “umm” “ome” “ome” “eee “Nee “ogee Nee



ORDER



The Court having issued a Memorandum Opinion on this date, it is



ORDERED that Defendants’ Motion for Judgment on the Pleadings is GRANTED IN

PART as to Counts III — VI of the Complaint; and it is



ORDERED that Defendants’ Motion for Judgment on the Pleadings is DENIED as to

Counts I — II] of the Complaint; and it is



ORDERED that Counts III — VI of the Complaint shall be DISMISSED WITH

PREJUDICE; and it is



ORDERED that copies of this Order and accompanying Memorandum Opinion shall be



directed to all counsel of record and the IT Division of the Superior Court of the Virgin Islands.



Dated: December “6 , 2016 = ——————

HON. MIC Le STON

ATTEST: Estrella aad JUDGE OF THE SUPERIOR COURT



Acting OF THE VIRGIN ISLANDS



lerk of Court

bys ea Fa Pdtv CERTIFIED A TRUE COPY



for Lori Bpynes-Tyson 2, ry 0

i LH) DATE: (ACC:



Court Clerks Supervisor =a ! I ESTRELLA H. GEORGE



Acting Clerk of the Court



\

Cameil A, Clarke

Court Clerk Il



By:

ports



SUPERIOR COURT OF THE VIRGIN ISLANDS



DIVISION OF ST. THOMAS AND ST. JOHN



)



ROYAL CARIBBEAN CRUISES, LTD., )

)



Plaintiff, )



VS. ) CASE NO. ST-15-CV-119



)



BONIFACE ABBA, M.D. and ROY LESTER )

SCHNEIDER HOSPITAL, )

)



Defendant. )



)



ORDER



In the Scheduling Order entered on March 8, 2016, the Court directed the parties to

complete mediation by October 28, 2016, and file a mediation report by October 31, 2016, but a

review of the record indicates that the parties have failed to do so. Having resolved Defendants’

Motion for Judgment on the Pleadings in a Memorandum Opinion issued on today’s date, it is



ORDERED that the mediation deadline is extended and that the parties shall engage in

mediation and submit a mediation report by February 15, 2017; and it is



ORDERED that copies of this Order shall be directed to all counsel of record and the IT



Division of the Superior Court of the Virgin Islands.



Dated: December 4. , 2016 a ee



HON. MICHAEL C. DUNSTON

ATTEST: Estrella George JUDGE OF THE SUPERIOR COURT



rk of a; Dine OF THE VIRGIN ISLANDS

— CERTIFIED A TRUE COPY



tori adypes Tycn 1D. rl) BIC DATE: Dec. 2); 20Ke



ESTRELLA H. GEORGE

Acting Clerk of the Court



By:



Court Clerk lt