Richardson v. Knud Hansen Memorial Hosp.

• Decision Date: 28 September 1984
• Docket Number: No. 83-3489,83-3489
• Citation: 744 F.2d 1007
• Parties: Alice C. RICHARDSON, as Representative of Almando Felix, a Deceased Minor, and his heirs, Appellee, v. KNUD HANSEN MEMORIAL HOSPITAL, Government of the Virgin Islands, and Jill Kooiker, R.N.A., Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 1007

744 F.2d 1007

Alice C. RICHARDSON, as Representative of Almando Felix, a Deceased Minor, and his heirs, Appellee, v. KNUD HANSEN MEMORIAL HOSPITAL, Government of the Virgin Islands, and Jill Kooiker, R.N.A., Appellants.

No. 83-3489.

United States Court of Appeals Third Circuit.

Argued April 26, 1984.

Decided Sept. 28, 1984.

Richard H. Hunter (argued), Isherwood, Hunter & Colianni, Christiansted, St. Croix, for appellants.

Ronald T. Mitchell (argued), Benjamin A. Currence, Pallme & Mitchell, Charlotte Amalie, St. Thomas, V.I., for appellee.

Before SEITZ, GARTH and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

SEITZ, Circuit Judge.

The Government of the Virgin Islands, the Knud Hansen Memorial Hospital, ¹ and Jill Kooiker, a registered nurse, all defendants in this wrongful death action, appeal the order of the district court granting judgment for the plaintiff, Alice C. Richardson, and awarding damages in the amount of $225,000. We have jurisdiction under 28 U.S.C. Sec. 1291.

I.

Almando Felix, a two-year old boy, checked into the Knud Hansen Memorial Hospital for minor elective surgery on his neck. Knud Hansen is one of two hospitals owned and operated by the Government of the Virgin Islands. Almando was not expected to stay more than one day. The surgery was performed on October 17, 1978. As a result of Nurse Kooiker's negligence, Almando lapsed into a coma and died on October 26, 1978.

Alice C. Richardson, Almando's representative, filed this wrongful death action on October 20, 1980. The court found the defendants jointly and severally liable and awarded damages of $225,000 to Richardson for the mental pain and suffering of Sonia Forbes, Almando's mother.

II.

We first consider the Government's argument that plaintiff has failed to comply with various requirements of the Virgin Islands Tort Claims Act, 33 V.I.C. Sec. 3401 et seq. (Equity 1967 & Supp.1983). That Act states that the Government of the Virgin Islands waives its immunity from tort liability and "consents to have its liability determined in accordance with the same rules of law as applied to actions in the courts of the Virgin Islands against individuals and corporations: Provided, That the claimant complies with the provisions of this chapter." 33 V.I.C. Sec. 3408 (emphasis added).

Sections 3409 and 3410 of the Act set forth the claim filing requirements that a plaintiff in a wrongful death action must satisfy as preconditions to recovery against the Government. The decedent's executor or administrator must file either a "claim" or "notice of intention to file a claim" within ninety days of the executor's appointment. If the executor files a notice of intention, he has two years from the date of the decedent's death to file the claim. In no event, however, shall the claim be filed more than two years after the date of death. Id. Sec. 3409(b).

An executor who fails to file either a claim or notice of intention within ninety days of his appointment may file a motion with the court no more than two years after the decedent's death seeking permission to file a late claim. An affidavit and copy of the proposed claim must accompany the motion. The affidavit must establish that the claimant had a "reasonable excuse" for failing to comply, and that the Government had actual knowledge of the underlying facts of the claim within the original ninety day time period. Id. Sec. 3409. The court may, in its discretion, grant the motion unless it finds that the Government has been "substantially prejudiced" by the untimely filing. Id.

Section 3410 states that the claim or notice of intention must be filed with the Office of the Governor, and a copy served upon the Attorney General. A notice of intention must state the time and place of the alleged tort and the nature of the claim to be asserted. A claim must set forth the same information as the notice, plus "items of damage or injuries claimed to have been sustained and the total sum claimed." Both the notice and the claim must be verified. Id. Sec. 3410.

The Government in this case argues that plaintiff failed to comply with the requirements of the Tort Claims Act in four respects: (1) plaintiff failed to file a claim or notice of intention in a timely fashion: (2) plaintiff failed to file a claim or notice of intention with the Office of the Governor, and failed to serve a copy on the Attorney General; (3) plaintiff failed to provide the Government with the information required by 33 V.I.C. Sec. 3410; and (4) plaintiff failed to verify her documents.

The Government raised the first of these alleged defects as an affirmative defense in its answer to plaintiff's complaint. At the close of plaintiff's case, the Government moved for an involuntary dismissal under Fed.R.Civ.P. 41(b) on the ground that plaintiff's notice of intention was untimely. The district court, citing to its recent holding in Saludes v. Ramos, Civ. No. 82-283 (D.V.I. April 23, 1983), denied the motion on the ground that a malpractice claimant need not comply with the requirements of the Tort Claims Act. For purposes of appeal the district court accepted a stipulation by the parties that the notice of intention was filed on October 17, 1980.

Plaintiff argues before this court that the district court's denial of the motion on the basis of the Saludes ruling was correct. This argument must fail. In a separate opinion issued today, we reverse the district court's order in Saludes and hold that a malpractice claimant against the Government must comply with the provisions of the Virgin Islands Tort Claims Act as well as the provisions of the Virgin Islands Health Care Provider Malpractice Act, 27 V.I.C. Sec. 166 et seq. (Equity Supp.1983). See Saludes v. Ramos, 744 F.2d 992 (3d Cir.1984).

Plaintiff also argues that the notice of intention was timely because it was filed within ninety days of her appointment as the decedent's representative and within two years of the decedent's death. In support of this assertion, plaintiff has included in her brief a copy of the Virgin Islands Territorial Court's appointment order, dated October 2, 1980. At oral argument the Government conceded the validity of this appointment order but argued that plaintiff should have offered the order as evidence in the district court. We will excuse plaintiff's failure to offer the order as evidence at the time of the Government's motion, because we presume she acted in reliance on the district court's ruling in Saludes that compliance with the Tort Claims Act was not required. We take judicial notice of the order and hold that plaintiff's notice of intention was filed within ninety days of her appointment and within two years of the decedent's death, and was therefore timely.

The Government did not raise the other three questions concerning compliance with the Tort Claims Act until it filed its Reply Brief in this appeal. Ordinarily we would not consider such untimely issues. The Government's challenges, however, are jurisdictional.

It is a general rule, frequently repeated, that the terms of a sovereign's waiver of immunity define a court's jurisdiction. See, e.g., Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981). This rule has been applied in actions brought against the federal government under the Federal Tort Claims Act, see, e.g., Bialowas v. United States, 443 F.2d 1047, 1048 (3d Cir.1971). One consequence of the rule is that compliance with the requirements for filing an action against the federal government may not be waived. Id. at 1049.

We believe that the rule in Bialowas also applies to actions against the Government of the Virgin Islands under the Virgin Islands Tort Claims Act. As this court has stated elsewhere, "[t]he Territory of the Virgin Islands is a body politic. While not sovereign, in the true sense of that term, the Revised Organic Act [48 U.S.C. Sec. 1541 et seq.] has conferred upon it attributes of autonomy similar to those of a sovereign government or state." In re Hooper's Estate, 359 F.2d 569, 578 (3d Cir.1966) (Maris, J.). One of these "attributes of autonomy" is immunity from tort liability, 48 U.S.C. Sec. 1541(b), so that the Government of the Virgin Islands may not be sued without its consent. We believe the terms of this consent are jurisdictional, just as they are under the Federal Tort Claims Act. Accord Muscat v. State, 103 Misc.2d 589, 426 N.Y.S.2d 711 (1980). It follows that the terms may not be waived. We therefore conclude that the Government is not precluded, even at this late date, from raising questions of compliance with the Virgin Islands Tort Claims Act.

Not having had the benefit of the district court's rulings on these issues, we will vacate the judgment against the Government and remand this action to the district court with instructions to determine whether plaintiff has complied with the requirements of sections 3409 and 3410 of the Tort Claims Act. We express no opinion on the question whether plaintiff has complied. Neither do we express an opinion about the exactitude with which plaintiff must comply.

III.

Our decision to vacate the district court's order as to the Government will not disturb the judgment against Nurse Kooiker. The district court found the defendants jointly and severally liable. We understand this to mean that the district court awarded recovery against Kooiker not only in her official capacity as an employee and agent of the Government, but also in her private capacity. See Davis v. Knud-Hansen Memorial Hospital, 635 F.2d 179 (3d Cir.1980). We must therefore consider Kooiker's challenges to the judgment against her in her private capacity.

Kooiker argues that the action against her was barred by the statute of limitations. The district court denied Kooiker's motion for an involuntary dismissal on this ground at the close of plaintiff's case. The court held that plaintiff's action was governed by the two-year limitations...