In re Bus, Civil No. 83-8

• Decision Date: 23 August 1984
• Docket Number: Civil No. 83-93,Civil No. 83-8,Civil No. 83-99
• Citation: 21 V.I. 96
• Parties: IN RE CONSOLIDATED BUS CASES
• Court: U.S. District Court — Virgin Islands

21 V.I. 96

IN RE CONSOLIDATED BUS CASES

Civil No. 83-8

Civil No. 83-93

Civil No. 83-99

District Court of the Virgin Islands Div. of St. Thomas and St. John

August 23, 1984

Motion to dismiss by defendant Government and motion to reconsider Court's order granting minor plaintiffs' motion to file a belated tort claim, in consolidated cases brought under the Virgin Islands Tort Claims Act. The District Court, Christian, Chief Judge, held that since it was mandatory that a person seeking to file a belated tort claim under the Act demonstrate a "reasonable excuse" for not having timely filed, complaints of two plaintiffs would be dismissed without prejudice, since those under a legal disability were excused from the requirement of filing a claim or notice of intention to file a claim within ninety days, motion to reconsider court's order as tominor plaintiffs was denied, and since Government did not meet its burden of proving that an administrative claim was not filed by plaintiffs, motion to dismiss was denied as to those plaintiffs.

ALEXANDER A. FARRELLY, ESQ. (BIRCH, DEJONGH & FARRELLY), St. Thomas, V.I., for plaintiffs Austin Parris and Wayne ParrisLEONARD B. FRANCIS, ESQ., St. Thomas, V.I., for plaintiff Lois Fleming

WILLIAM HELLER, ESQ., St. Thomas, V.I., for plaintiffs Dale Herbert and Ruthine Stapleton

LINDA RICHARDSON, ESQ., Assistant Attorney General (Department of Law), St. Thomas, V.I., for defendant Government of the Virgin Islands

ALBERT SHEEN, ESQ., Christiansted, St. Croix, V.I., for defendants Manassah Bus Lines and Ivan Richardson

CHRISTIAN, Chief Judge

MEMORANDUM AND ORDER

These consolidated cases are before the Court on motions of defendant Government of the Virgin Islands (Government) to dismiss the complaints in Nos. 83-93 and 83-99 and to reconsider this Court's order of June 30, 1983, in which we granted plaintiffs' motion to file a belated tort claim in No. 83-8. These motions present the questions of whether, under the Virgin Islands Tort Claims Act, 33 V.I.C. §§ 3401-3415 (the Tort Claims Act), a person must present a "reasonable excuse" in order to be granted leave to file a late claim, and whether a person under legal disability is excused from the requirement of the Tort Claims Act that a claim or notice of intention to file a claim be filed within ninety days after the accrual of the claim. Both questions require an interpretation of section 3409(c) of the Tort Claims Act, which states:

(c) a claim to recover damages for injuries to property or for personal injury caused by the tort of an officer or employee of the Government of the Virgin Islands while acting as such officer or employee, shall be filed within ninety days after the accrual of such claim unless the claimant shall within such time file a written notice of intention to file a claim therefor, in which event the claim shall be filed within two years after the accrual of such claim.

A claimant who fails to file a claim or notice of intention, as provided in the foregoing subsections, within the time limited therein for filing the notice of intention, may, nevertheless, in the discretion of the court, be permitted to file such claim at any time within two years after the accrual thereof, or in the case of a claim for wrongful death within two years after the decedent'sdeath. The application for such permission shall be made upon motion based upon affidavits showing a reasonable excuse for the failure to file the notice of intention and that the Virgin Islands or its appropriate department or agency had, prior to the expiration of the time limited for the filing of the notice of intention, actual knowledge of the facts constituting the claim. The claim proposed to be filed, containing all of the information set forth in section 3410 of this title, shall accompany such application. No such application shall be granted if the court shall find that the Government of the Virgin Islands has been substantially prejudiced by the failure of the claimant to file such notice of intention within the time limited therefor. But if the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed.

None of the plaintiffs in the cases presently under consideration have filed a claim or notice of intention to file a claim within the 90-day period required by the act, nor have they offered any "reasonable excuse" for their failure to so file. Plaintiffs in Nos. 83-8 and 83-93 argue that the Virgin Islands patterned its Tort Claims Act after the New York Court of Claims Act, that New York case law construing the New York act is binding on the courts of the Virgin Islands, and that the courts of New York, in construing that act, do not require a showing of excusable delay in granting leave to file a claim out of time. Those plaintiffs also argue that the minor plaintiffs, because they are under a legal disability, are completely excused from the ninety-day limitations period and that they need only file their claims within two years after the removal of their disability. The defendant Government, of course, disagrees with plaintiffs' interpretations of the Tort Claims Act.

I

[1, 2] It is true that the Tort Claims Act is modeled in part from the New York Court of Claims Act, 29A Pt. 2 McKinney's Laws §§ 8-12. Dublin v. Virgin Islands Telephone Corp., 15 V.I. 214, 221 (Terr. Ct. 1978). Section 3409 of the Tort Claims Act in particular was patterned after § 10(1), (2), (3) and (5) of the New York Act. Id. at 222. It is also well settled in the Virgin Islands that

the language of the Virgin Islands statute which has been taken from the statutes of another jurisdiction is to be construed to mean what the highest court of the jurisdiction from which it was taken had, prior to its enactment in the Virgin Islands, construed it to mean.

Berkeley v. West Indies Enterprises, Inc., 10 V.I. 619, 625, 480 F.2d 1088, 1092 (3d Cir. 1973); see also Paiewonsky v. Paiewonsky, 8 V.I. 421, 446 F.2d 178 (3d Cir. 1971); Williams v. Downing, 4 V.I. 465, 318 F.2d 642 (3d Cir. 1963). However, decisions from such other jurisdiction made subsequently to the enactment of such a statute in the Virgin Islands are not controlling, but persuasive only. Cirino v. Hess Oil Virgin Islands Corp., 9 V.I. 518, 384 F.Supp. 621 (D.V.I. 1973).

The present Virgin Islands Tort Claims Act was adopted in 1971. Act No. 3128, 1971 Sess. Laws 366. As the New York Court of Claims Act existed at that time, demonstration of a "reasonable excuse" for late filing was mandatory. Turner v. State, 40 A.D.2d 923, 338 N.Y.S.2d 329 (N.Y. App. Div. 1972); Bommarito v. State, 35 A.D.2d 458, 317 N.Y.S.2d 581 (N.Y. App. Div. 1971); Crane v. State, 29 A.D.2d 1001, 289 N.Y.S.2d 521 (N.Y. App. Div. 1968).¹ As was stated in Bommarito, 317 N.Y.S.2d at 583:

These requirements [for late filing] are set out in conjunctive form, and, therefore, a failure to satisfy any of these requirements is fatal . . . [u]nless the claimant is able to establish a reasonable excuse, a motion for permission to file a late claim should be denied.

Virgin Islands courts considering the question have come to the same conclusion. See, e.g., Mercer v. Government, 18 V.I. 171 (Terr. Ct. 1982) (Hodge, P.J.); Harley v. Government of the Virgin Islands, 18 V.I. 228 (Terr. Ct. 1982); V.I. Telephone Co. v. Government, 13 V.I. 405 (Terr. Ct. 1977).

Every New York case cited by the plaintiffs for the proposition that a "reasonable excuse" for filing a belated tort claim is not a mandatory requirement is a decision rendered after 1976. In 1976, the New York Court of Claims Act was amended and liberalized, so that, under the amended act, demonstration of "reasonable excuse" for late filing of a tort claim was not an absolute requirement, but only one of several factors to be taken into account by a court considering whether to grant leave to file a late claim. Kelly v. State, 57 A.D.2d 320, 395 N.Y.S.2d 311 (N.Y. App. Div. 1977). The cases cited by plaintiffs are, therefore, inapposite.

[3] From the foregoing, we conclude that the Virgin Islands Tort Claims Act, like the New York Court of Claims Act as it existed at the time the Virgin Islands act was adopted, makes it mandatory that a person seeking to file a belated tort claim demonstrate a "reasonable excuse" for not having timely filed.

II

The minor plaintiffs argue that they are under a legal disability as defined in 5 V.I.C. § 36(a)(1). That section, they urge, in combination with the last sentence of section 3409(c) of the Tort Claims Act, excuses them from the requirement of filing a claim or notice of intention to file a claim within ninety days. The Government argues that the case of In Re Steele, 9 V.I. 332 (D.V.I. 1973) is controlling in this situation.

[4] In Steele, the Court held that the last sentence of section 3409(c) tolls only the two-year period for filing by leave of court and that it in no way relieves a claimant under legal disability from the requirement of filing a claim or notice of intention within ninety days. We find In Re Steele to be unpersuasive and decline to follow its lead. Moreover, we find that decision in direct conflict with cases which are binding upon this Court under the rule announced in Berkeley, supra, 10 V.I. 619, 480 F.2d 1088, and Paiewonsky, supra, 8 V.I. 421, 446 F.2d 178. The final sentence of section 3409(c) relating to disability is identical to the disability provision in the New York Court of Claims Act. The New York courts have consistently interpreted this provision to relieve a claimant under legal disability of the requirement of filing a claim or notice of intention within ninety days, Boland v. State, 30 N.Y.2d 377, 333 N.Y.S.2d 410 (N.Y. 1972)...