IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX



CLAUDETTE K. KING, guardian for ) CASE NO. SX-09-CV-467

ARIANNA I. MODESTE, a minor, )

) ACTION FOR PERSONAL INJURY AND

Plaintiffs, ) DAMAGES

)

v. )

)

KMART CORPORATION, )

)

Defendant. )

)

MEMORANDUM



BEFORE THE COURT is a Joint Motion for Authority to Compromise Litigated

Controversy, to Pay Legal Cost, and for the Appointment of a Special Guardian ad Litem. For

the reasons stated below, the Court must deny the motion for the moment.



I. BACKGROUND



Plaintiff Claudette E. King commenced this action individually and as legal guardian

for Plaintiff Arianna I. Modeste, her eight-year old granddaughter, for personal injuries

Modeste sustained in April 2009 while visiting Defendant Kmart Corporation’s department

store in Frederiksted, St. Croix, U.S. Virgin Islands. (Compl. § 3, 6, filed Sept. 29, 2009. See

also id. at Ex. 1 (“Order, entered Aug. 14, 2009, In re Guardianship of Modeste, SX-09-GU-

038 (V.L Super. Ct.)).) While in the store, ‘a metal clothing-rack collapsed upon . . . Modeste,

and knocked her to the floor.” /d 4 7. Plaintiffs alleged that “the clothing-rack was over-

loaded with merchandise and, as such, created a dangerous condition for its customers and

invitees ....” Jd. § 9. Modeste suffered “severe contusions and abrasions on or about the left

side of her body from the waist down to her leg, causing bodily impairment, physical pain and

mental anguish ....” /d. § 13. On Modeste’s behalf, King sought damages for the minor’s

injuries. /d. | 16. Individually, King sought to recover the costs of medical expenses and the

time and care needed to care for Modeste and damages for loss of consortium and

companionship. /d. 4 15, 17-18.



Defendant appeared and filed its Answer. (Answer, filed Oct. 27, 2009.) The parties



then began discovery. Approximately a year later, Plaintiffs, through counsel, served

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Defendant with a settlement demand, asking for $30,000.00, $2,500.00 for each of the twelve

months Modeste suffered. (See Jt. Mot., Ex. 2 at 1 (settkement demand (July 8, 2010)), filed

Aug. 13, 2010.) Defendant countered for $20,000.00. (See Def. Resp. to Pl. Pet. to Approve

Settlement 1, filed Sept. 7, 2010.) Plaintiffs moved for court approval to settle Modeste’s

claims against Defendant at that amount. (Jt. Mot. 1.) Plaintiffs also move for appointment of

a special guardian ad litem to invest and manage the proceeds of Modeste’s settlement until she

reaches the age of majority.



II. SETTLEMENT OF MINOR’S CLAIMS



Minors lack capacity to sue or be sued and therefore must be represented in litigation by

“a legally authorized person, either a parent, guardian, ‘next friend,’ or guardian ad litem.” 42

Am. Jur. 2d Infants § 148 (2010). Such persons may participate in settlement negotiations. Id.

§ 175 (“While a next friend, guardian ad litem, or other duly appointed person acting for an

infant in a litigation may negotiate for a compromise or settlement of the litigation, a natural

guardian, without a court appointment, cannot enter into a binding settlement of an infant's

claim absent court approval.”). But “parties may not compromise (settle) claims involving

minors . .. without court approval.” 53 Am. Jur. Trials 1, § 311 (1995).



When considering settlements involving minors, the court “must independently

investigate and evaluate any compromise or settlement of a minor's claims to assure itself that

the minor's interests are protected, even if the settlement has been recommended or negotiated

by the minor's parent or guardian ad litem.” Rojas v. Two/Morrow Ideas Enters., Inc., 53 V1.

684, 694 (2010) (internal quotation and citations omitted). In reviewing the materials

submitted in support of settling a minor’s claim, courts must consider: (1) the minor’s injuries;

(2) the tortfeasor’s funds; and (3) where multiple claimants are involved, the fairness of the

minor’s portion. /d. at 694-95 (quoting 53 Am. Jur. Trials 1, § 313 (1995)). Each will be

examined and discussed below.



a. The Minor’s Injuries

First, the Court must consider the minor’s injuries, as shown by supporting



documentation.’ Courts “look closely at the offer of settlement to determine if the amount is



’ A petition for compromise of a minor's claim should show, inter alia, the following:



. Age and sex of the minor

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justified ....” /d at 695 (quoting 53 Am. Jur. Trials 1, § 313 (1995)). “Settlement should be

proportional to injuries sustained by the minor.” /d. (quoting 53 Am. Jur. Trials 1, § 313

(1995)). Here, the Court does not have any objective documentation regarding the extent of

Modeste’s injuries. No medical reports or medical bills were provided. No affidavit was

submitted. The only source of information before the Court detailing Modeste’s injuries is a

settlement demand letter Plaintiffs’ counsel sent to Defendant’s counsel, which was attached as

an exhibit to the Joint Motion. (See Jt. Mot., Ex. 2.) According to that document, Modeste

“suffered an injury to the left side, waist down and leg... .” Jd. at Ex. 2. p. 1. Immediately

afterward, Modeste sought treatment at the Juan F. Luis Hospital on St. Croix. Jd. A physician

diagnosed Modeste “as having a contusion of the left leg.” Jd. “Because of persistent pains to

the left leg and hip,” Modeste required additional medical care. /d At least three different

doctors treated Modeste’s injuries through 2009 and early 2010. Jd. at Ex. 2, p. 1-2. She

walked with crutches for approximately six weeks after the incident. /d. at Ex. 2, p. 1. She did

not fully recover until “the Spring of 2010... .” Jd at Ex. 2, p. 2. The incident occurred on

April 2, 2009. (Compl. { 6.) Modeste “experienced pain, discomfort, and lost [sic] of

enjoyment of life for a minimum of 12 consecutive months... .” /d. at Ex. 2, p. 2.



Considering Modeste’s injuries, the length of her treatment, her age at the time of the

incident, and her subsequent improvement, a $20,000.00 settlement amount appears justified

and proportional to her injuries. But without medical reports or bills, the Court has no



independent basis to arrive at that conclusion. A settlement demand letter. by design, cannot



* Nature and extent of the injury giving rise to the claim, with sufficient particularity

to inform the court whether the injury is permanent or temporary



. Facts or events and circumstances out of which the claim or injury arose . . .

° Accident report, if applicable



: Medical reports showing diagnosis, treatment, and prognosis



. Medical bills evidencing cost of treatment



. Amount and terms of the settlement



. Amount of litigation costs and expenses



. Amount of attorney fees requested



° Amount and nature of other payments requested by petitioner to be ordered by the

court from settlement proceeds (e.g., medical bills or liens, repayment of parent's

expenses, etc.)



. Proposed disbursement amounts of the settlement, including attorney fees and costs,

other expenses, and net proceeds to the minor



° Proposed disposition of funds to the minor... .



53 Am. Jur. Trials 1, § 319 (Apr. 2011).

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support an independent assessment. In addition, Plaintiffs have not explained whether

Modeste’s injuries were temporary or permanent. Plaintiffs did indicate that Modeste

recovered by Spring 2010. In their Complaint, however, Plaintiffs alleged that “bodily

impairment, physical pain and mental anguish . . . will, in reasonable probability, continue . . .

in the future by reason of the nature and severity of the impact and [Modeste’s] injuries.”

(Compl. § 13.) Therefore, additional documentation showing the nature and extent of the

minor’s injuries is required for the Court to reach a final determination.

b. The Tortfeasor’s Funds



Next, the Court must consider the tortfeasor’s funds. “Where defendant tortfeasor is

adequately insured to cover plaintiff's claims, defendant's assets do not generally concern the

court.” Rojas, 53 V.I. at 695 (quoting 53 Am. Jur. Trials 1, § 313 (1995)). “However, if, for

example, defendant in an automobile accident is insured for $15,000 and settlement is proposed

at policy limits, but the minor's claim could be reasonably valued at $50,000, counsel must

adequately explain to the court why the $15,000 settlement is appropriate.” /d. (quoting 53

Am. Jur. Trials 1, § 313 (1995)). “Reasonable explanations include (a) that defendant has few,

if any, reachable assets, (b) that the minor was contributorily negligent, or (c) that an early

settlement at $15,000 is in the best interests of the minor.” Jd (quoting 53 Am. Jur. Trials 1, §

313 (1995)).



Here, neither Plaintiffs nor Defendant have addressed Defendant’s funds vis-a-vis the

settlement offer. Defendant stated in its Rule 26(a) disclosures that “KMART does not

maintain primary insurance applicable to [Modeste’s] claim.” (Def. Init. Discl. 2, filed Feb. 1,

2010.) Thus, the proposed settlement here would not be at any policy limit. Additionally,

neither Plaintiffs nor Defendant have indicated whether settlement reflects an offset for any

contributory negligence. Defendant did raise that defense in its Answer. (Answer 3, filed Oct.

27, 2009.) The only information before the Court is King’s counsel’s statement that “[u]nder

the facts and circumstances of this case, [King] believes, and so alleges, that it is within the best

interest of the said minor that this personal injury matter be compromised and settled for the

sum of $20,000.00.” (Jt. Mot. 3.) King did not file an affidavit in support, however.



Therefore, additional documentation is necessary is necessary here.

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c. Fairness of the Minor’s Portion



Lastly, where other claimants are involved, the Court must consider the fairness of the

portion of the minor’s settlement. “In actions where there are multiple claimants, the court

must ensure that the proportion of settlement proceeds awarded the petitioning minor is fair and

representative.” Rojas, 53 V.I. at 695 (quoting $3 Am. Jur. Trials 1, § 313 (1995)). Here,

neither Plaintiffs nor Defendant have referenced King’s individual claims. King commended

this personal injury action on her own behalf and on behalf of Modeste. (Compl. § 3.) She

alleged loss of consortium. /d. § 18. She sought compensatory and special damages personally

and recovery of the costs she incurred for Modeste’s medical expenses. /d. §§f 15-18.

However, King and Kmart have not voluntarily discontinued King’s individual claims. King’s

medical expenses and costs incurred as legal guardian may not be recovered from Modeste’s

settlement. In their settlement demand letter, however, Plaintiffs’ initial demand did cite

King’s out-of-pocket expenses. Thus, without knowing the status of King’s individual claims,

the Court is unable compare and evaluate the fairness to Modeste.



d. Conclusion



Having reviewed the pleadings and papers filed to date here, the Court finds it is unable

at this time to approve the proposed settlement. Kmart’s proposed settlement amount appears

fair and reasonable to Modeste and proportionate to her injuries. But without supporting

medical documentation and without knowing the status of King’s individual claims, the Court

cannot reach that final determination yet. Plaintiffs will be granted leave to file additional

materials in support of their Motion.

Ill, APPOINTMENT OF GUARDIAN



Plaintiffs also move for appointment of “a Special Guardian to manage and protect the

net proceeds .. . and preserve the same on behalf of [Modeste] until she attains the age of

majority.” (Jot. Mot. 3 (emphasis in original).) As King is “legally responsible for the support

of the minor,” she is ineligible to administer the proceeds of any settlement Modeste might



receive. V.J. Code Ann. tit. 15, § 823 (1996). Accordingly, a guardian is required.



* The Court notes that Plaintiffs’ moved for appointment of a guardian in 2009. Subsequently, however, the law

governing guardianships has changed. In 2009, the Legislature of the Virgin Islands repealed Chapter 51

“Guardians and Wards” of Title 15 in its entirety. Act No. 7150, 2009 V.I. Sess. L. p. 420, 421 (“Title 15 Virgin

Islands Code chapters | through 51; and chapter and 63 [sic] are repealed . . . .”). In its place, the Legislature

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While this Court has the authority to appoint a guardian here, the type of guardian

Plaintiffs seek is not a guardian to defend the minors interests in this litigation, but rather a

guardian who would invest, safeguard, and administer the monies received by the minor

through settlement. That guardian would have responsibility over the funds until Modeste

reached the age of majority. Such guardians are best appointed by the Family Division of the

Superior Court, particularly as that Division retains jurisdiction over the guardianship

proceeding to monitor the guardian’s accounting until Modeste reaches adulthood,

Accordingly, Plaintiffs should initiate the proceeding for appointment of guardian with the

Family Division so that a guardian may be appointed to administer the proceeds of Modeste’s

settlement once this Court approves it.



IV. LEGAL FEES



Plaintiffs also move for approval of their attorney’s legal fees, to be paid out of

Modeste’s proposed settlement amount. “[W]hen a litigant requests that a court approve or

manage a settlement, the court's jurisdiction encompasses the entire settlement... .” Rojas, 53

V.I. at 693. The “reasonableness of [a] contingency fee is properly before trial court when

plaintiff requests approval of minor's settlement agreement ....” /d. (quoting parenthetically

Hoffert v. General Motors Corp., 656 F.2d 161, 165 (Sth Cir. 1981)). Approval of Plaintiffs’

counsel's attorney’s fees is contingent upon approval of the settlement. Therefore, the Court

cannot grant the motion for approval of attorney’s fees at this time.



V. CONCLUSION

For the reasons stated above, the Court is unable to grant Plaintiffs’ motion at this time.



Additional documentation is required before the Court can independently evaluate Modeste’s



enacted the “Virgin Islands Uniform Guardianship and Protective Proceedings Act” (“UGA”). V.1. Code Ann. tit.

15, § 5-101 (Supp. 2011). The UGA was slated to take effect on May 1, 2010. 2009 V.I. Sess. L. at 724. In May

2010, the Legislature stayed implementation until January 1, 2011. Act No. 7174 (approved May 17, 2010),

available at http://www.governordejongh.com/news/legislation/signed/Act-7174. pdf (last visited July 14, 2011).

In November 2010, the Legislature further stayed implementation until July t, 2011. Act No. 7241, § 6(b)

(approved Nov, 24, 2010), available at http://www. legvi.org/vilegsearch/ShowPDF.aspx?num=724 1 &type=Act)

(last visited July 14, 2011). In April 2011, the Legislature “re-enact[ed] title 15 Virgin Islands Code, Part |

Decedents Estates, chapters 1-5, and Part I! Administration of Estates, chapters 11-29 as they existed prior to

December 21, 2009.” See Act. No. 7254 (approved Apr. 9, 2011), available at

http://www. legvi.org/vilegsearch/ShowPDF.aspx?num=7254&type=Act (last visited July 14, 2011). The

Legislature did not re-enact Part III Fiduciary Relations, however, which included Chapter 51 governing guardians

and wards. Accordingly, the UGA has taken effect. Whether it must governs Plaintiffs’ motion, filed before

enactment, is a question this Court need not determine.

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injuries and determine whether Kmart’s proposed settlement amount is fair. An appropriate



Order follows.



woe



nee



ET SS



DAR DB



“DEAN DONOHUE, SR.



Presiding Judge of the Superior Court



ATTEST:



VENETIA H. VELAZQUEZ, Esq.



aly



Clerk of the Court



ourt Cjerk Superv;



Dated:



ie



2H4/l/