David Joseph and Debbiely Joseph v. Amorite Connor and Elena Herbert

• Court: Superior Court of The Virgin Islands
• Decided: February 18, 2021
• Docket: SX-19-CV-525
• Status: Published

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST CROIX

DAVID JOSEPH AND DEBBIELY JOSEPH

PLAINTIFFS, Civil No SX 19 CV 525

V ACTION FOR DAMAGES

HERBERT DEFENDANTS CITE AS 2021 VI SUPER 18F

Appearances Patricia Quinland, Esq Kye Walker, Esq The Walker Legal Group Christiansted U S Virgin Islands For Plamnfi‘s Dawd Joseph and Debbie!) Joseph

Ronald E Russell, Esq The Russell Law Firm LLP Kingshili U S Virgin Islands For Defendant Antonie C01mm

MEMORANDUM OPINION

WILLOCKS Presiding Judge

‘1[ 1 THIS MATTER came before the Court on Defendant Amorite Connor 3 (hereinafter

Connor ) motion to dismiss for failure to state a claim upon which relief can be granted filed on

December 12 2019 On January 27 2020 Plaintiffs David Joseph and Debbier Joseph

(collectively Plaintiffs ) filed an opposition Defendant Connor did not file a reply thereto

BACKGROUND

(ii 2 On September 30 2019 Plaintiffs filed a complaint against Defendant Connor and

Defendant Elena Herbert (hereinafter Herbert ) in connection with a motor vehicle incident that

occurred on or about J une 4 2018 The complaint alleged the following counts Count I Joseph er a] v Comm; er 01 8X 19 CV 525 Memorandum Opinion 2021 VI SUPER 181’ Page 2 of 14

Negligence (against Defendant Herbert) and Count II Defamation (against Defendant Connor)

More specifically, the compiaint alleged the following as to Defendant Connor

20 When Police Officer Javon Benjamin arrived at the incident scene to conduct his investigation Defendant Amorite Connor (Ms Connor) who alleged that she was a witness to the accident gave Officer Benjamin a false account of the accident 21 Specifically Ms Connor falsely reported that Mr Joseph sped through the intersection 22 The false witness statement given by Ms Connor formed a basis for Mr Joseph being wrongfully cited as the person at fault thereby causing the accident 23 Mr Joseph was issued citation n0 249754B for negligent driving by failing to control his vehicle thereby causing a collision and as a result incurred attorney fees and expenses to defend the wrongfully issued traffic citation 24 The traffic citation was ultimately dismissed 25 In addition and as a result of the false statements given by both Defendants the Plaintiffs were denied insurance coverage for the property and personal injury damages resulting from the accident

COUNT II DEFAMATION AMORITE CONNOR

33 Plaintiffs repeat and incorporate each and every allegation contained in paragraphs 1 through 31 above 34 Defendant Amorite Connor falsely reported that Mr Joseph sped through the intersection 35 Defendant Amorite Connor knew her statement was false 36 As a direct and proximate result of Defendant Amorite Connor 3 false statement the investigating traffic officer and the insurance companies who were otherwise obligated to process the Plaintiffs claims for property damage and personal injury refused to deal with Mr Joseph 37 As a direct and proximate resuit of the negligence of Defendant Amorite Connor Plaintiffs sustained property damage incurred attorney fees and costs associated with defending against the traffic citation and were denied insurance coverage for their claims

(Comp! ‘l[‘][ 20 25 33 37) Joseph er a! t Comm; er a! SX 19 CV 525 Memorandum Opinion 2021 VI SUPER 18P Page 3 of 14

Defendant Connor has been served in this mattet but it is unclear whether Defendant Herbert has

been served ' On December 12 2019 Defendant Connor contemporaneously filed this instant

motion to dismiss2 and his answer to Plaintiffs complaint A copy of the police report in

connection with the subject motor vehicle incident that occurred on or about June 4 2018

(hereinafter Police Report ) was attached to the answer as Exhibit 1

STANDARD OF REVIEW

(ll 3 The court shouid not grant a motion for judgment on the pleadings 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 Benjamin 56 V I at 566 (quoting Mele t Fed I Reserve

Bank of N Y 359 F 3d 251 253 (3d Cir 2004) (quoting Leamer t Fumer 288 F 3d 532 535 (3d

Cir 2002») see alto Umted Corp v Hamed 64 VI 297 305 (2016)( fa] motion for judgment

on the pleadings should not be granted unless the moving party has established that there is no

' Defendant Connor was served on or about October 18 2019 The Court is cutrently waiting tor Plaintitt to tile proof 01 service as to Dctendant Herbert per the Court 5 order ’ While Defendant Connor indicated in her motion to dismiss tor failure. to state a claim upon which reliet can be granted that she filed it pursuant to Rule 12(b)(6) 01 the VirOin Islands Rules of Civil Procedure (heleinatter Rule 12(b)(6) ) Defendant Connor did not file her motion to dismiss before her answu as required under Rule |2(b)(6) to wit Defendant Connor contemporaneously filed her motion to dismiss and her answer on the same day V I R ClV P 12(b)( A motion asserting any 01 these defenses [under V1 R CIV P 12(b)] except laLk 01 subject matter jurisdiction and as provided in subparts (g) and (h) of this rule must be made before pleading it a responsiwe pleading is allowed ) (emphasis added) If a party flies a motion to dismiss pursuant Rule |2(b)(6) after tiling its answer then the motion should be treated as a motion for judgment on the pleadings pursuant to Ruie 12(c) oi the Virgin Islands Rules of Civil Procedure See Benjamm t A10 Ins Co ofP R 56 V I 558 565 (2012)( 5550 filed its motion [to dismiss tor taiiure to state a claim upon which reliet can be granted] after filing its answer Thus the motion should have been treated as a motion for judgment on the pleadings ) see also VI R Cw P 12(h)(2) ( Failure to state a claim upon which relief can be granted to join a person required by Rule 19(b) or to state a legal detense to a claim may be raised (B) by a motion under Rule 12(c) ) The Court notes that in Benjamm the Virgin Islands Supreme Court discussed Rule 12th) and (L) ofthe Federai Rules 01 Civii Procedure instead of the Virgin Islands Rules 01 Civit Procedure which did not go into effect until March 31 2017 Neurthetess given that Rule |2(b) and (c) oi the Virgin Islands Rules 01 C1V11 Procedure largely mirrors its tederai counterpart under Federal Rules of Civil Procedure the Court finds the Virgin Islands Supreme Court 5 guidance applicable in this instance As such the Court will treat Detendant Connor 5 motion as a motion for judgment on the pleadings for failure to state a claim upon which relief can be granted pursuant to Rule 12(0) of the Virgin Islands Rules of Civil Procedure Joseph 6! a1 1 Connor er a1 SX 19 CV S25 Memorandum Opinion 2021 VI SUPER 18? Page 4 0f 14

material issue of fact to resolve and that it is entitled to judgment in its favor as a matter of law )

8’68 also Reynolds 1 Rohn 70 V I 887 896 (2019) (quoting United 64 V I at 305) As with a

Rule 12(b)(6) motion this Court view[s] the facts alleged in the pleadings and the inferences to

be drawn from those facts in the light most favorable to the plaintiff Benjamm 56 VI at

566 (quoting Male 359 F 3d at 253 (quoting Leamer 288 F 3d at 535)) see also United Corp

64 V I at 305 (noting that the 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 ) see also Reynolds 70 V I

at 896 The court is foreclosed from considering evidence from any source outside of the

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

a motion forjudgment on the pleadings Benjamin 56 V I at 566 see aim Untied Corp 64 V I

at 305 (noting that the court may not consider[ } evidence from any source outside of the pleadings

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

for judgment on the pleadings ) see (1190 Reynolds 7OVI at 896

DISCUSSION

‘1] 4 In her motion Defendant Connor argued that the complaint must be dismissed against her

because it fail[ed] to establish the elements of a defamation claim (Motion p 7) Defendant

Conn01 made the following assertions in support of her argument (i) Her statement to a law

enforcement officer the only etatement alleged in the complaint is absolutely privileged 1 (Id

at pp 3 4) (ii) If her statement to a law enforcement officer is not absolutely privileged then the

statement made is conditionally privileged as opinion based on Defendant s ocular perception

‘ Defendant Connor referenced Restatement (Seeond) 0t Torts § 587 cmt B ( 1977) ( a proper officer preliminary In a proposed criminal prosecution the statement inVokes the absolute privilege that protects it from Llaims 0t defamation WhiLh in turn requires dismissal of all 0t [Plaintifts claim] for defamation ) Sptame t CB! A(‘(IlllsiflOIIS LLC 2010 WL 3461108 at *1! 12(DVI Sept 2 2010) Joseph era] 1 Comm) er a] 9X 19 CV 525 Memorandum Opinion 2021 VI SUPER 18P Page 5 0f 14

and therefore her statement is hel subjective viewpoint based on her observation which cannot

be proved as false and therefore [is] not actionable 4 (Id at p 4) (iii) Defendant Connor 5

statement cannot be proved false because the statement reflects Defendant [Comm] 5 honest

subjective recollection of how she perceived the accident and {5]uch statements are [deemed]

opinions representing subjective viewpoints that cannot be proved as false ‘ (Id at p 5) (iv)

Personal opinion and beliefs based on a person s subjective perception are not actionable 6 (Id )

(v) In the Virgin Is1ands one of the elements for a defamation claim requires an unprivileged

publication to a third party 7 and Plaintiff cannot establish this element because not only were

her statements to the law enforcement authorities a true reflection of her observations but that her

statement to such authorities were absolutely privilege and subjects the c1aim against her to

dismissal as a matter of law (Id at pp 5 6) (Vi) In the Virgin Islands one of the elements for a

defamation claim requires a false and defamatory statement concerning another 8 and Plaintiff

cannot establish this element because [i]n this case the Plaintiffs allegations as to the falsity of

the Defendant Connor s statement is nothing more than naked factual assertions devoid of further

factual enhancement and Plaintiffs cannot prove that Defendant 5 description of her perceptions

is false 9 since Plaintiffs cannot prove the Defendants statement as to her perceptions as to what

4 Defendant Connor referenced Sunpson 1 Andrew L Capdeulle PC 64 VI 477 485 (2016) (hoiding that hyperbole and expressions 01 opinion are typically not prmable as false )(quoting Kendall 1 Dad) News Pub! 3 Co 55 V1781 788 (201 1)) ‘ Defendant Comm referenced Simpson 64 V I at 488 6 Defendant Connor retereneed Id at 489 7 Defendant Connor reterenced Espersen 1 Sugar Bax Club & Resort Corp 2018 WL 6177341 *4 (2018) (Liting Kendall 55 V I at 781 (quoting and adopting Restatement (Second) 01 Torts § 558) see also Joseph 1 Dallt News Pub g Co Inc 57 V I 566 585 86 (2012) ( This Court has adopted the basic elements for a claim of defamation set 10th in the Second Restatement of Torts ) " Detendant Connor reterenced Id 9 Defendant Connor retereneed szpmn 64 V I at 485 (subjective viewpoints opinions and beliefs cannot be pro» ed as talse) Joseph 9! al I Connor eta] 3X 19 CV 525 Memorandum Opinion 2021 VI SUPER 18F Page 6 0t 14

she observed is false ”(Id at pp 5 7 8)‘ and (Vii) [T]he allegations of the Complaint show that

the statement even if proved false is a privileged publication because it was a statement to a law

enforcement officer and Court of the Virgin Islands have held that In order to serve as the basis

for a defamation claim a statement must also constitute an unprivileged publication to a third

party In other words where the publisher is privileged to make the statement no cause of action

will lie The Virgin Islands recognizes an absolute privilege for statements made to law

enforcement personnel for the purpose of reporting a crime or initiating a criminal investigation ”

and Courts of the Virgin Islands have consistently and repeatedly held that A party cannot be

subjected to defamation liability for reporting to the police his belief that a crime has been

committed CVCII if this belief is unfounded or later turns out to be erroneous ’7 (Id at pp 8 9)

(II 5 In their opposition Plaintiffs argued that theit complaint should not be dismissed because

[u1nder Virgin Islands Civil Procedure Rule 8(a)(2) a complaint is sufficient so long as it

adequately alleges facts that put an accused party on notice of claims brought against it n and

[t]he language in Rule 8(a)(2) is calculated to apply [ I an approach that declines to enter

dismissals of cases based on failure to allege specific facts which if established plausibly entitle

the pleader to relief H (Opp , pp 3 4) (emphasis omitted) Plaintiffs made the following assertions

“’ Detendant Connor relereneed Id at 488 ( [1]! it is plain that the speaker is expressing a subjective View an interpretation a theory mujeeture or SUFmiSL rather than claiming to be in possession of objectiuly verifiable facts the statement is not verifiable ) ” Detendant Connor retereneed Sprame 20m WL 3463308 at "l I ' Defendant Connor referenced Illala a 1 HOVENSA LIC 73 F Supp 3d 588 603 04 (DVI 2014) (citing Sprame 2010 WL 3463303 at “I 1) (which held that Virgin Islands law supports apphtation ot the absolute privilege to dismiss the plaintiffs defamation claims against HOVENSA s [or statements to the police and prosecutor ) ” Plaintiffs referenced Jateph \ Bmecm ofCon 54 V I 644 650 (20] l) (explaining that since the adoption of Rule 8 of the Virgin Islands Rules 0t Civil Procedure supersedes our prior precedents which impose the Tvsomblt plausibility standard by virtue of the now amended Superior Court Rule 7 and restotes the notice pleadino recime that had previously been in effect) '4 Plaintith referenced Id (quotingVI R Ci» P 8Reporter sNote) Brarlmattet HD VI Holding Co 2017 WL 2295123 at *2 (Super Ct May 24 2017)(ackn0wledging that Virgin Islands Civil Procedure Rule 8( l )(2) eliminates Joseph eta] t Commr eta! SX 19 CV 525 Memorandum Opinion 2021 VI SUPER 18F Page 7 0t l4

in support of their argument (i) [T]hey have stated a claim f01 defamation and that there are

sufficient allegations to have the case proceed to discovery (Id at p 4) (ii) Notwithstanding

the fact that Defendant Connor is arguing privilege as a defense to Plaintiffs defamation Claim

Plaintiffs contend that there are enough non conclusory facts alleged to survive a motion to dismiss

and allow the case to move forward with discovery (Id ) (iii) The Court should not dismiss the

complaint unless it appears beyond doubt that the plaintiff can prove no set of facts that would

entitle him or bet to relief under the governing substantive law ” (Id ) (iv) The issue in a Rule

12(b)(6) motion is not whether the plaintiff will ultimately prevail but whether the plaintiff is

entitled to offer evidence in support of the claims ‘6 (Id ) (v) [The Court should allow this case

to move forward with discovery based on the following First there were three eyewitnesses

including Plaintiff David Joseph who have a completely different version of what happened Two

of the witnesses who observed the accident clearly saw Defendant Herbert go through the

intersection and did not stop Second there are photographs of David Joseph 3 vehicle which

would demonstrate that Defendant Elena Herbert was indeed the person at fault Third the traffic

violation was dismissed against David Joseph However another officer who is an accident

reconstructionist was prepared to testify at traffic court and would testify now that the accident

as described by Ms Connor could not have happened the way Ms Connor stated Fourth it is

believed that Ms Connor had some type of friendship with Ms Herbert and was completely biased

the plausibility standard and instead will permit a complaint so long as it adequalte alleges facts that put an accused party on notice of claims brought against it ) Dal ies 1 Certain Undemnters at Lloyd: ofLondon 2017 WL 3759810 *9(Super Ct Nov 8 2017) Rmmcmdt Aswfa 20W WL 5301467 *2(Super Ct Nov 8 2017) “ Plaintitts referenced Pedro t RangerAmeucan offhe VI Inc 70Vl 251 261(Super Ct March 22 2019) '6 Plaintiffs reterenced Id at 26-1 Joseph era! 1' Comm) eta] SX 19 CV 525 Memorandum Opinion 2021 VI SUPER 18P Page 8 0t 14

towards her (Id at p 6) and (vi) Defendant is not entitled to a defense of conditional privilege

if she knows the matter to be false ‘7 (Id )

1 Defamation Claim

fl6 To succeed on a defamation claim under Virgin Islands law a party must show a false

and defamatory statement concerning another an unprivileged publication to a third party

fault amounting at least to negligence on the part of the publisher and either actionability 0f

the statement irrespective of special harm or the existence of special harm caused by the

publication Simpson 64 VI at 485 (citing Joseph 57 VI at 585 87 (citations and internal

quotation marks omitted) we Joseph 57 V I at 585 n 10 (explaining that these basic elements of

defamation were adopted aftet examining the factors first outlined in Banks v Int] Rental &

Leasmg Corp 55 V I 967 (V I 2011)) In Joseph the Virgin Islands Supreme Court explained

The first element is a false and defamatory statement concerning another RESTATEMENT(SECO1\D)OF Toms § 558(a) The truth or falsity of a statement is generally a question of fact for the jury and statement or communication is only defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to detet third persons from associating or dealing with him RESTATEMENT (SECOND) 0F Toms § 559

The second element is an unpriviieged publication to a third party RESTATE’vtEVT (SEC()ND)0FTORTS § 558(b) Publication means the communication intentionally or by negligent act to one other than the person defamed RESTATEMEIVT (SECOND) 0F TORTS § 557 There are two methods of publication libel and slander Libel is the the publication of defamatory matter by written or printed words RESTATEMENT (SECOND) 0F TORTs § 568(1) Slander is the publication of defamatory matter by spoken words RESTATEMEIxT (SECOND) 0F TORTS§ 568(2) The term unprivileged refers to the alleged defamers inability to demonstrate that he was in some way ‘ privileged to make the defamatory communication The types of privilege defenses available fall into two categories absolute privileges see RESTATEMENT (SECOND) 0F Toms §§ 583 592A and conditional privileges see RESTATEMENT (SECOND) 0F TORTS §§ 593 598 Privilege however can be abused in such a way as to subject to privileged defamer to liability despite his privilege RESTATE‘VIEXVT (SECOND) OF Toms §§ 599 605A

‘7 Plaintitte referenced Restatement 2d Torts § 600(a) Joseph era] l Cannot e! a] 9x 19 CV 525 Memorandum Opinion 2021 VI SUPER 1813 Page 9 0f 14

The third element can generally be described as fault The level of fault varies with the parties to the defamation action but the Restatement employs the minimum standard in its general definition of defamation That minimum standard is fault amounting to at least negligence on the part of the publisher RESTATEMENT (SECOND) 0F TORTS § 558(c) It is the elementof fault that is given a higher threshold when the defendant in a defamation action is a public official or public figure and the defamatory statements reference matters of public concern See Section IV B mfm In the case of a defendant who is not a public figure or official the minimum standard applies and the defendant need prove only that the publisher acted at leastnegligently in failing to ascertain whether the statements concerning the defendant were true or false

The fourth element is either the actionabiiity of the statement irrespective of special harm or the existence of special harm caused by the publication RESTATEMENT (SECOND) OF TORT? § 558(d) The Restatement defines special harm as the loss of something having economic or pecuniary value [which] must result from the conduct of a person other than the defamer or the one defamed and must be legally caused by the defamation RESTATFMENT (SECOND) 0F Toms § 575 cmt b In essence this element refers to two general categories of liability producing statements First there ate those that the Plaintiff is able to demonstrate caused him special harm Second there are those for which Plaintiff need not prove the existence of special harm because they are actionable on their face This second category clearly begs the question what makes a defamatory statement actionable on its face or actionable per se ? The answer to this question depends in part on whether the statement is either a libel or a slander Specifically [o]ral defamation [i e slander} is tortious if the words spoken fall within a limited class of cases in which the words are actionable per se or if they cause special damages Written defamation [i e libel] i9 actionable per se RESTATEMENF (SECOND) 0F Toms § 568 emt b Thus special damages need only be proven when the statement is slanderous and it does not fall into one of the limited classes of speech which is actionable per se The classes of speech that are actionable per se are outlined in RESTATEMENT (SECOND) 0F Toms §§ 570 574

Joseph 57 VI at 585 88 (2012)

Moreover only statements that are provable as false are actionable under both the First

Amendment and Virgin Islands law Simpson 64 VI at 487 (Citing Kendall 55 VI at 788

(citation and internal quotation marks omitted) [ijperbole and expressions of opinion not

provable as false fail to meet this actionability element of a defamation claim and are also

constitutionally protected Id (citing Kendall 55 V I at 788) Joseph er al t Comm; er a! 9X 19 CV 525 Memorandum Opinion 2021 VI SUPER 181’ Page 10 0t 14

(ll 7 1n hm motion Defendant Connor essentially algued that PI tintitts Lann0t estainin alt the

elements of a damnation claim because hot statement to the law Lnt01tum nt ()ftieu is an opinion

and/or either absolutely prixileged 01 conditionally, ptixileged

A Whether Defendant Connor’s Statement was a Constitutionally Protected Opinion

‘I[ 8 Here Defendant Connor argued that Plaintiffs cannot establish the element of a defamation

claim that requires Plaintiffs to show a false and defamatory statement concerning another

because her statement reflects Defendant [Connor] 3 honest subjective recollection of how she

perceived the accident and [s]uch statements are [deemed] opinions representing subjective

viewpoints that cannot be proved as false [and] are not actionable (Motion p 5) Plaintiffs on

the other hand essentially argued that Defendant Connor 5 statement is factual in nature and can

be proven as false by available eyewitnesses and evidence (Opp p 6) The question of [w]hether

an allegedly defamatory statement is one of opinion or fact is [ 1 a question of law Simpson

64 V I at 486 (citations omitted) As such the Court must determine whether Defendant Connor 5

allegedly defamatory ctatement is a statement of opinion or fact

‘11 9 In Kendall the Virgin Islands Supreme Conn identified the standard for determining

whether a statement is a constitutionally protected opinion ‘8

'3 In Kendall tor the standard to determine whether a statement is a constitutionally protuted opinion the Virgin Islands §upreme Court relied on Redm Corp 1 CBS Inc 758 F 2d 970 972 (1d Cir 1985) a Third Circuit case whele the Third Circuit was not exercising its power as the “MI arbiter of Virgin Islands local law The Court notes that Kendall predates Banks and the Virgin Islands Supreme Court has adopted the practice 0! not blindly following its pre Banks decisions which were predieated solely on I V I C § 4 but instead determining whether the three Banks factors justify continued reliance on the Restatement Gm t of the V] 1 Connor 60 V I 597 605 n I (2014) However with that said the standard adopted in Kendall was not based on the Restatements and Connor 5 footnote allows for reliance on pre Banks Virgin Islands Supreme Court cases See Connor 60 V I at 605 n I ( Given that this Court has elected not to perpetuate its own prior erroneous reliance on I V I C § 4 we LonLIude that the Superior Court too should not be foreclosed trom departing from those holdings in an appropriate case provided that it thoroughiy explains the reasoning for its decision See eg People 1 Velasque Super Ct Crim No 63/2012 (STX) 2014VI LEXI§ 2 at *IS 17 (VI Super Ct Jan [6 20]4)(notino that consideration of Banks factors may warrant partial reconsideration of a pm, Banks Supreme Court decision) Aecordingly we take this opportunity to Joseph er a! 1 Cannot e! ((1 sx [9 CV 525 Memorandum Opinion 2021 VI SUPER 18? Page 11 0t 14

Under the First Amendment there is no such thing as a false idea Gert? v Robert Welch Inc 418 U S 323 339 94 S Ct 2997 41 L Ed 2d 789 (1974) Thus only statements that are provable as false are actionable and expressions of opinion or hyperbole not provable as false are constitutionally protected See lekovzch 497 U S at 19 20 In Redco Corp v CBS Inc 758 F 2d 970 972 (3d Cir 1985) the Third Circuit stated

Although there may be no such thing as a false opinion an opinion which is unfounded reveals its lack of merit when the opinion holder discloses the factual basis for the idea If the disclosed facts are true and the opinion is defamatory a listener may choose to accept or reject it on the basis of an independent evaluation of the facts However if an opinion is stated in a manner that implies that it draws upon unstated facts for its basis the listener is unable to make an evaluation of the soundness of the opinion In such circumstances if the underlying facts are false the Constitution does not protect the opinion

Kendall 55 V I at 796 97

(H 10 According to the Police Report ‘9 the following is an account of the statements Defendant

Connor made to the law enforcement officer

Ms Amorite Connor was a witness to this collision and gave the following statement Ms Connor stated that she was traveling north on Mon Bijou Road and came to a stop when she arrived at the intersection of Midland Road Ms Connor stated that she was going to make a left turn on to Midland Road (heading west) but she always stops at this intersection and carefully scans the intersection because of all the accidents that have occurred at this intersection Ms Connor further stated that she looked left and right and didn t see anything then she looked ahead and saw V] at a stop Ms Connor stated that she waited for V1 to proceed through the intersection before she made a left turn when suddenly she saw V2 come flying out of nowhere and collide with V1 Ms Connor stated that after both vehicles collided V2 rolled over 3 times 2°

(Defendant Connor 5 Answer Exhibit 1)

(Jam) that while all decisions of this Court the Third Circuit and the Appellate Division should be considered with respect to the first Banks factor the Superior Court need not consider itself loreelosed from adopting a different wmmon law rule if those deLisions were wholly based on a beliel that application of the Restatements or the majority rule was mandatory pursuant to l V I C § 4 as in effect prior to this Courts ruling in Banks ) As such by adopting the standard set forth in Kendall the Court is not blindly lollowing the Virgin Islands Supreme Court 5 pre Banks decisions that were predicated solely 0n 1 V I C § 4 '9 The Court is not loretlosed lrom considering the Police Report since a top) 01 the Police Report was attached as Exhibit 1 to Defendant Connor 5 answer See Benjamin 56 V I at 566 (The court is foreclosed lrom considering etidence trom any source outside 01 the pleadings and the exhibits attached to the pleadings in determining whether it was proper to grant a motion for judgment on the pleadings ) ’0 Awarding t0 the Police Report VI was defined as the vehicle Defendant Elena was operating and V2 was defined as the vehicle Defendant Daxid Joseph was operating Joseph er a! t Comm! etal SX 19 CV 525 Memorandum Opinion 2021 VI SUPER 18F Page 12 0f 14

Plaintiffs alleged in their complaint that Defendant Connor falsely reported that Mr Joseph sped

through the intersection (Compl ‘1! 35) Thus based on the complaint the Court deduced that the

statement she saw V2 come flying out of nowhere is the only statement that Plaintiffs alleged as

defamatory

t][ ll The Court finds Defendant Connor 3 statement that she saw V2 come flying out of

nowhere was based on disclosed factual basis to wit Defendant Connor told the law

enforcement officer that she was tiaveling north on Mon Bijou Road and came to a stop when

she arrived at the intersection of Midland Road she was going to make a left turn on to Midland

Road (heading west) but she always stops at this intersection and carefully scans the intersection

because of all the accidents that have occurred at this intersection she looked left and right and

didn t see anything then she looked ahead and saw V1 at a stop and she waited for V1 to proceed

through the intersection before she made a left tum (Police Report) As noted in Kendall {i]f

the disclosed facts are true and the opinion is defamatory a listener may choose to accept or reject

it on the basis of an independent evaluation of the facts Kendall 55 VI at 797 Here the

listener the law enforcement officer had the choice to accept or reject Defendant Connor 5

statement that she saw V2 come flying out of nowhere on the basis of an independent evaluation

of the disclosed facts Thus the Court concludes that Defendant Connor 3 statement that she saw

V2 come flying out of nowhere is a constitutionally protected opinion based on disclosed factual

assertions and is therefore not actionable See Smtpson 64 V I at 487 (citing Kendall 55 V I at

788) ( [H]yperbole and expressions of opinion not provable as false fail to meet this actionability

element of a defamation claim and are also constitutionally protected ) As such the facts alleged

in Plaintiffs complaint do not support a claim for defamation against Defendant Connor and

Defendant Connor is entitled to judgment in her favor as a matter of law Joseph 3! a] t Comm: er a! SX 19 CV 525 Memorandum Opinion 2021 VI SUPER 18P Page 1% of 14

‘11 12 Based on the Court s finding the Court need not address Defendant Connor s arguments

regarding pr1v1leges 71

" Nevertheless the Court will point out the tollowing regarding Delendant Connor 5 arguments as to absolute privilege and conditional privilege Absolute Privilege Here Defendant Connor argued that Plaintiffs cannot establish the element 01 a defamation claim that requires Plaintitfs to show an unprivileged publication to a third party because Defendant Connor 5 statement to a law enlorcement officer is ahsoluteiy pritileged It is true that if Defendant Connor 5 statement to the law enforcement ofiieer is deemed absolutely privileged then the statement is immune from suit for detamation because the Virgin Islands Supreme Court has adopted absolute privilege as an affirmative demise to defamation Espersen 1 Sugal Bat Club & Remit Corp 2018 V1 LEXIS 1'11 at 11 n 35 (Super Ct Nov 21 2018) see Mills Willzanist Mapp 67 V 1 574 at n 1 1 (2017) (adopting the affirmative defense ()1 absolute privilege as the best rule tor the Virgin Islands and concluding that the Governor of the Virgin Islands is entitled to absolute immunity from defamation for statements made in conjunction with his or her official duties) However currently there are 110 Virgin Islands law or rules and no prior precedent from the Virgin Islands Supreme Court addressing the issue of whether statements made to the law enloreement officers during an ongoing imestigation is absolutely privileged When presented with a question coneeming what law applies and the law is not settied by binding precedent or statute courts applying Virgin Islands law must consider and weigh three factors what approach Virgin Islands courts have taken in the past what approach Loans in other jurisdictions take and lastly what approach represents the soundest rule for the Virgin Islands Jones 68 VI at 190 (Liting Gm I nfthe VI 1 Connor 60 VI 597 603 (2014)(per curtain) ( [Tlhe 8uperior Court when considering a question not foreclosed by prior prudent from this Court must pertorm a three part analysis as set forth in Banks [1 Intemalzanal Rental and Leasing Cmporanon 55 V I 967 (201 1)] )) Delendant Connor s motion was devoid 0121 Banks analysis on this issue Instead Delendant Connor cited extensively to Splat“ e a Virain Islands District Court case in support of her argument and Splaut e is only persuasive authority See Baumann t Pub Emps Relations Bd 68 V1 304 124 n 4 (Super Ct 2018) (noting that Sprame is only persuasive authority) Nevertheless du; t0 the Court s findinéy this issue need not be resolved at this time Conditional Pm inge Here Detendant Connor also argued that Plaintifts cannot establish the element of a delamation claim that requires Plaintiffs to show an unprivileged publication to a third party because Detendant Connor 5 statement to a law enforcement otticer it it is not absolutely privileged then it is conditionally priViIeUed as opinion based on Defendant s ocular perception and therefore her statement is her subjeetiwe Viewpoint based on her observation which cannot be proved as false and therefore {is} not actionable (Motion p 4) While Defendant Connor s argument seems to imply that statements deemed as opinion are one and the same as Londitional pm inge the Court must point out that statements deemed conditional pritileged and statements deemed as opinions are not one and the same On one hand opinions are not actionable regardless of whether Londitional privilege applies See Simpson 64 V I at 487 (citing Kendall 55 VI at 788) ( [H]yperbole and expressions of opinion not provable as lalse tail to meet this aetionabiiity element 01 a defamation claim and are also constitutionally protected ) On the other hand a conditional privilege exists it the circumstances induce a correct or reasonable belief that (a) then. is information that atleLts a sufficiently important interest 01 the publisher and (b) the recipients knowledge 01 the defamatory matter will be of senice in thelawtul protection of the interest FlanderSt Shell Seekers 19V] 6? 69 70 (Terr Ct Aug 11 1998) (quotino RESTATEMENT (SECOND) OF TORTS § 594 (1977)) However the Virgin Islands Supreme Court has not yet adopted conditional pritilege and the loss of the pritilege through abuse as the common law of the Virgin Islands and there are currently no Virgin Islands law or rules addressing this issue See Espeisen 1 Sugar Bat Club & Resort Corp 2018 V I LEXIS 131 at ”‘11 (Super Ct Nov 21 2018) (noting that there is no binding precedent from the Virgin Islands Supreme Court and that the Superior Court has not conducted a Banks analysis on the topic 01 conditional priviiege) Again Defendant Connor 5 motion is devoid of 3 Banks anaiysis on this issue and aside trom arguing that her statement to the law enforcement officer is conditionally privileged because it is her opinion, the motion is also detoid 01 any arguments of how conditional priVilege is applicable in this instance See e g Espersen 2018 V1 LEXIS 1‘11 at *1] (noting aconditional privilege with respect to the employer employee relationship Joseph er a] \ Comm) at a! 9X 19 CV 525 Memorandum Opinion 2021 VI SUPER 18F Page 14 0t 14

CONCLUSION

‘11 13 Based on the foregoing the Court will grant Defendant Connor 9 motion for judgment on

the pleadings for failure to state a claim upon which relief can be granted as to Count II against

Defendant Connor An Older and judgment consistent with this Memoxandum Opinion will be

entered contemporaneously herewith y“

DONE and so ORDERED this 13 day of February 2021

HAROLD W L WILLOCKS Presiding Judge 0f the Superior Court

provides immunity when the publisher and recipient each has an [sic] common interest in the subject matter ) see eg Schradel Cooke t Gm I of the VI 72 VI 218 24% (Super Ct Dec 6 2019) (noting that Section 598A provides conditional privileges tor inferior administrative officers of a state or any oi its subdivisions as follows An occasion makes a publication conditionally periICOLd it an inferior administrative oifiter of a state or any of its subdivisions who is not entitled to an absolute privilege makes a defamatory communication required or permitted in the performance 0! his official duties ) Nevertheless due to the Court 3 finding this issue need not be resolved at this time SUPERIOR COLRT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX DAVID JOSEPH AND DEBBIELY JOSEPH PLAIMIFFS, Civil No SX 19 CV 525

HERBERT DFFENDANTS CITE AS 2021 VI SUPER 18P

Appearances Patricia Quinland, Esq Kye Walker, Esq The Walker Legal Group Christiansted U S Virgin Islands For Plamttfls Dam Id Joseph and Debbie!» Joseph

Ronald E Russell, Esq The Russell Law Firm LLP Kingshill U S Virgin Islands For Defendant Amorlte Connor

ORDER AND JUDGMENT WILLOCKS Presiding Judge In accordance with the Memorandum Opinion entered contemporaneously herewith it is hereby ORDERED that Defendant Amorite Connor a motion for judgment on the pleadings for failure to state a claim upon which relief can be granted filed on December 12 2019 is GRANTED as to Count II against Defendant Amorite Connor And it is further ORDERED ADJUDGED AND DECREED that judgment in favor of Defendant Amorite Connor and against Plaintiffs David Joseph and Debbiely Joseph shall be entered as a matter of law AK DONE and so ORDERED this 8% day of February 2021

a i HAROL W L WILLOCKS Presiding Judge of the Superior Court