Battiste v. Virgin Islands Telephone Corp.

48 V.I. 3, 2006 V.I. LEXIS 18
CourtSuperior Court of The Virgin Islands
DecidedAugust 3, 2006
DocketCivil No. 285/2000
StatusPublished

This text of 48 V.I. 3 (Battiste v. Virgin Islands Telephone Corp.) is published on Counsel Stack Legal Research, covering Superior Court of The Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Battiste v. Virgin Islands Telephone Corp., 48 V.I. 3, 2006 V.I. LEXIS 18 (visuper 2006).

Opinion

KENDALL, Judge

MEMORANDUM OPINION

(August 3, 2006)

THIS MATTER is before the Court on “Plaintiff Alvin Battiste’s Motion for the Sanction of Default Judgment.” In support of the Motion, Plaintiff alleges willful and gross discovery abuses by Defendant, including withholding and concealing documents as well as the commission of fraud upon the Court. A hearing was held on the Motion, at the conclusion of which, after considering the testimony of the witnesses, the exhibits, and the record, the Court, based upon the reasons set forth below, granted Plaintiffs Motion and entered judgment by default against Defendant on the issue of liability.

I. FACTUAL AND PROCEDURAL BACKGROUND

On or about September 27, 1998, Plaintiff, an employee of the Virgin Islands Water and Power Authority (WAPA), suffered electrical burn injuries while replacing a de-energized wire on a broken utility pole which was shared by WAPA and Defendant, Virgin Islands Telephone Corporation (VITELCO), pursuant to a Joint Use Agreement. Plaintiff brought this personal injury action in May 2000 against VITELCO which he alleged owned the broken pole. Plaintiff alleged that VITELCO was negligent in maintaining the broken pole and breached its duty of care by placing exceedingly heavy cables thereon which contributed to the break. Plaintiff alleged that the pole broke and fell to the ground during Hurricane Georges which hit the Territory in September 1998.

In his deposition, Mr. Vincent Maynard, WAPA’s Line Superintendent, testified that the broken pole was owned by VITELCO and because of VITELCO’s delay in replacing it after the Hurricane, WAPA replaced the pole in order to provide electricity to the Federal Emergency Management Agency (FEMA). Plaintiff was assigned by WAPA to assist in removing a de-energized wire from the broken pole and placing it on the replaced pole. After picking up the de-energized wire, it came in [5]*5contact with an energized wire on another pole a short distance away and Plaintiff received an electrical shock which resulted in injuries to his body.

In his report dated September 26, 2002, Plaintiffs expert witness, Mr. Roger Bybee, P.E., Consulting Electrical Engineer, stated:

7. On September 27, 1998 Dennis Conner (WAPA Lineman) and Alvin Battiste, Jr. (WAPA Lineman Apprentice) were directed to transfer the Deenergized 7,620/13,200 volt electrical lines from the ground unto the new 050 pole. Mr. Conner was in the bucket of a line truck and Mr. Battiste was on the ground handing one of the conductors to Mr. Conner. During the transfer process between Mr. Battiste and Mr. Conner, Pole No. 37-0071-049 along with the crossarm on the pole shifted causing the conductor being handled to contact one of the dock power conductors at the Dax Pole 2 Spans to the North of pole 050. Mr. Battiste received a severe 7,620 volt electrical shock, burns and injuries, whereas Mr. Conner, in the insulated bucket, was not injured.

8. As noted in paragraph 5.A above, if VITELCO had supplied the correct length of pole as required by the 1959 Joint Use Agreement or the 1998 Interim Agreement, Mr. Battiste would not have been injured on September 27,1998.

In its Answer, Defendant denied, inter alia, that it owned the broken pole and generally denied that it was liable for Plaintiffs injuries.

A. Discovery Background Leading to the Hearing

On or about July 17,2001, Plaintiff served VITELCO with “Plaintiffs Request for Production of Documents to Virgin Islands Telephone Corporation.” Several of the requests pertained to documents relative to ownership of the poles in the location where Plaintiff sustained his injuries. Specifically, Request No. 4 sought the following:

All documents between WAPA and Vitelco and or including any other party relating to ownership, leasing or use of poles carrying power or telephone or cable lines in the vicinity of Feeder 5 between the WAPA Krum Bay plant, oil dock and FEMA Building on St. Thomas.

[6]*6On September 4, 2001, Defendant served on Plaintiff its “Response to •Plaintiffs Request for Production of Documents,” and in response to Request No. 4 stated that “[t]his will be supplemented.”

On April 18, 2002, pursuant to Rule 30(b)(6) of the FED. R. CIV. P., Plaintiff deposed Mr. Dennis Chance, Defendant’s Network Planning Manager.-(ice Dep. Dennis Chance at 4:9-10, Apr. 18, 2002.) A critical issue during the deposition was the ownership of the poles in the location where- Plaintiff sustained his injuries. VITELCO had produced some maps which identified the owners of some of the poles. However, when asked to produce any and all other documents detailing pole ownership, Mr. Chance responded that no other records existed.1

, Discovery was ordered closed on July 8, 2005.2 On Friday, June 23, 2006, three (3) days before trial and almost a year after discovery was ordered closed, Defendant served Plaintiff by mail a “Supplemental Notice of Filing of Exhibits” in which was included a document entitled “VITELCO Pole Inventory Sheet.” Counsel for Defendant stated that he only received the document from his client on June 19, 2006 and expeditiously mailed it to the Plaintiff on June 21, 2006. The document, which Defendant intended to introduce at trial, purported to identify the owner of the utility poles in the location where Plaintiff was injured.

The “VITELCO Pole Inventory Sheet” was jointly prepared on March 18, 1999, by Ms. Lisa Harris, Engineer Technician employed by WAPA, and Mr. Glen Samuel, an engineer employed by VITELCO. On Row Eleven (11) of the sheet, the owner of pole # 37/071/050 or Pole 050 is listed as WAPA. On Row Twelve (12) of the sheet, the owner of another key pole in this action, pole # 37/071/049 or Pole 049 is also listed as WAPA. VITELCO represented to the Court that Mr: Dennis Chance would testify that Poles 049 and 050 were not owned by VITELCO, but by WAPA.3

[7]*7Upon receiving this document and after contacting Ms. Harris to verify its existence, Plaintiff learned that the document did not accurately reflect ownership of the poles as there was a revised document reflecting that the 35 foot, class 4 poles, including Pole 049, were owned by VITELCO. (See Harris Aff., June 25,2006, ¶ 9.)4

Plaintiff then filed the instant “Motion for Sanction of Default Judgment” on June 26, 2006, the day of Trial. The undersigned received the Motion in Chambers while meeting with Counsel before Jury Selection. The Court, though reluctant to entertain such late filings, briefly heard argument from the parties. Subsequently, the Court further reviewed the Motion and sua sponte held an evidentiary hearing following jury selection to determine whether Defendant’s discovery abuses, if any, warranted the sanction of default judgment on the issue of liability.

B. The Evidentiary Hearing

The Court heard testimony from Ms. Lisa Harris and Mr. Glen Samuel, the authors of the “VITELCO Pole Inventory Sheet” which was admitted into evidence as Plaintiffs Exhibit No. 4.

Ms. Harris testified that “VITELCO’s Pole Inventory Sheet,” could not be relied upon as being accurate because it was not the final version of the Inventory. She testified that Pole 049 was listed as owned by WAPA because when she and Mr.

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Bluebook (online)
48 V.I. 3, 2006 V.I. LEXIS 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/battiste-v-virgin-islands-telephone-corp-visuper-2006.