Hess Oil Virgin Islands Corporation v. Fluor Daniel, Individually and as successor-in-interest to Fluor Engineers and Constructors, Inc.

• Court: Superior Court of The Virgin Islands
• Decided: April 8, 2020
• Docket: SX-05-CV-165
• Status: Published

Opinion

FOR OFFICIAL PUBLICATION

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

HESS OIL VIRGIN ISLANDS CORPORATION ) CASE NO SX 05 CV 165 ) Plaintiff ) COMPLEX LITIGATION DIVISION ) V ) ) FLUOR DANIEL, individually and as successor in ) interest to FLUOR ENGINEERS AND CONSTRUCTORS ) INC FLUOR ENGINEERS AND CONSTRUCTORS INC ) FLOUR CORPORATION TUTHILL CORPORATION ) individually and as successor in interest to COPPUS ) MURRAY GROUP and/or COPPUS TURBINES ) ALLTITE GASKET COMPANY JOHN CRANE f/k/a ) CRANE PACKING COMPANY RUBBER AND GASKET ) COMPANY OF P R AUSTIN INDUSTRIAL INC f/k/a ) TECHNICAL MAINTENANCE INC AUSTIN TM] INC ) and/or AUSTIN INDUSTRIES KELLOGG BROWN & ) ROOT, a Halliburton Company, individually and as ) successor in interest to BROWN & ROOT OVERSEAS ) INC CB] SERVICES INC INSTRUMENTATION & ) ELECTRICAL SYSTEMS SERVICES BORN INC f/k/a ) BORN ENGINEERING COMPANY SAINT GOBAIN ) ADVANCED CERAMICS, as successor in interest to ) CARBORUNDUM CORPORATION CONTROL ) ASSOCIATES THE DARCOID COMPANY INC a/k/a ) DARCOID RUBBER COMPANY GERARD PACKING 8: ) BELTING CORPORATION INSULATION ) DISTRIBUTORS CORPORATION ISLAND SUPPLY ) COMPANY RESAL INCORPORATED PARSONS ) INFRASTRUCTURE 8: TECHNOLOGY GROUP as ) successor in interest to THE RALPH M PARSONS ) COMPANY STERLING PACKING & GASKET DIVISION ) STANDCO INDUSTRIES INC STRAHMAN VALVES ) INC CON RAD a division of U S INDUSTRIES P H ) SALES INCORPORATED a/k/a P H SALES COMPANY ) JOHN ZINK COMPANY a/k/a lOI-IN ZINK COMPANY ) LLC ZINCLAHOMA INC 3M a/k/a MINNESOTA ) MINING 8:. MANUFACTURING COMPANY 3M PUERTO ) RICO INC VIACOM INC f/k/a WESTINGHOUSE ) ELECTRIC CORPORATION UNIVERSAL OIL ) PRODUCTS a/k/a UOP CDI CORPORATION as ) successor in interest to CDI ENGINEERING ) SOLUTIONS CDI ENGINEERING GROUP CDI ) Hess 011 VI Corp v Fluor Dame] at a] 2020 VI Super 50 Case No SX 05 CV 165 Memorandum Opinion Page 2 of 42

ENGINEERING INC CDI STUBBS OVERBECK ) STUBBS OVERBECK 8: ASSOCIATES INC CDI ) ENGINEERING SOLUTIONS as successor in interest ) to CDI ENGINEERING GROUP CDI ENGINEERING ) INC CDI STUBBS OVERBECK STUBBS OVERBECK & ) ASSOCIATES INC CDI ENGINEERING GROUP as ) successor in interest to CDI ENGINEERING INC CDI ) STUBBS OVERBECK STUBBS OVERBECK & ] ASSOCIATES INC BROWN FINTUBE COMPANY ) KOCH ENGINEERING C0 , as successor in interest to ) BROWN FINTUBE COMPANY OHMSTEDE MACHINE ) WORKS a/k/a OHMSTEDE INC BROS ) INCORPORATED a division of AMERICAN HOIST ) AND DERRICK CERTAINTEED PRODUCTS ) CORPORATION ELLIOTT COMPANY a division of ) CARRIER FOSTER WHEELER CORPORATION ) individually and as successor in interest to FORTY ) EIGHT INSULATIONS INC GARLOCK INC ) LOCKHEED MARTIN CORPORATION individually ) and as successor in interest to MARTIN MARIETTA ) CORPORATION MARTIN MARIETTA ALUMINUM ) INC and MARTIN MARIETTA ALUMINUM ) PROPERTIES INC MARTIN MARIETTA ) CORPORATION, individually and as successor in ) interest to MARTIN MARIETTA ALUMINUM INC and ) MARTIN MARIETTA ALUMINUM PROPERTIES INC ) MARTIN MARIETTA MATERIALS INC individually ) and as successor in interest to MARTIN MARIETTA ) CORPORATION MARTIN MARIETTA ALUMINUM ) INC and MARTIN MARIETTA ALUMINUM ) PROPERTIES INC PACIFIC VALVES RARITAN ) SUPPLY COMPANY, individually and as successor in ) interest to BRIDGE SUPPLY COMPANY UNION PUMP ) COMPANY ST CROIX COMPRESSION AND ) ROTATING EQUIPMENT SERVICES IOHN DOES/JANE ) DOES ET ALS and/or IOHN DOE INC ET ALS ) I Defendants ) I Hess 01] VI Corp v FluorDamel et a! 2020 VI Super 50 Case No 8X 05 CV 16S Memorandum Opinion Page 3 of42

Cite as 2020 VI Super 50

Appearances

CARL A BECKSTEDT III ESQ Beckstedt 8: Associates Christiansted VI 00820 For Hess Oil Virgin Islands Corporation

JOHN H BENHAM ESQ Law Office of John H Benham, P C St Thomas VI 00801 For FIuor Daniel Fluor Engineers & Constructors, Fluor Corporation, Gerard Packing & Belting Corporation Amdura Corporation, and Standco Industries, Inc

W MARK WILCZYNSKI ESQ Law Office of W Mark Wilczynski, P C St Thomas VI 00804 Forjohn Cranef/k/a Crane Packing Company

IAMES L HYMES I}! ESQ Law Office ofIames L Hymes P C St Thomas VI 00802 For Saint Gobam Advanced Ceramlcs, Viacom Inc f/k/a Westinghouse Electric Corporation, and Foster Wheeler Corporation

MICHAEL] SANFORD ESQ RYAN C STUTZMAN ESQ Sanford, Amerling 8: Associates Christiansted V! 00820 For Virgin Islands Industrial Maintenance Corporation Riggers & Erectors International, Inc, Union Pump Inc Resal, Inc, Garlock, Inc,Austm Industrial Inc f/k/a TechmcalMamtenance Inc Austin TM] Inc and/orAustm Industries and PH Sales Inc

MARK D HODGE ESQ Hodge & Hodge St Thomas VI 00802 For CBI Serwces Inc and Parsons Infrastructure & Technology Group, Inc

BERNARD C PATTIE ESQ Law Offices of Bernard C Pattie, P C Christiansted V1 00820 For CD1 Corporation CD1 Engineering Group, CD1 Engineering, Inc, CDI Stubbs Overbeck Stubbs Overbeck & Assocmtes Inc CD1 Engineering Solutions Stubbs Overbeck & Assocmtes Inc Hess Oil VI Corp v Fluor Daniel er a] 2020 VI Super 50 Case No 8X 05 CV 165 Memorandum Opinion Page 4 of42

RICHARD H HUNTER ESQ Hunter & Cole Christiansted V100820 For Raritan Supply Company Tuthill Corporation Born Inc, Universal Oil Products, Elliott Company Strahman Valves Inc and Certain Teed Products Corporation

SIMONE RD FRANCIS ESQ SOFIA L MITCHELL ESQ Ogletree, Deakins Nash, Smoak & Stewart, LLC St Thomas V100802 For Lockheed Martin Corporation Martin Marietta Corporation, 3M, and 3M Puerto Rico Inc

EUGENIO W A GEIGEL SIMOUNET ESQ GS Law Offices P C Gallows Bay VI 00824 For Rubber & Gasket Co ofPuerto Rico Inc

DOUGLAS L CAPDEVILLE ESQ ALISHA UDHWANI ESQ Law Offices of Douglas Capdeville P C Christiansted V100822 For Alltite Gasket Company

ANDREW C SIMPSON ESQ Law Offices of Andrew C Simpson, P C Christiansted V100822 Forjohn Zink Company Zinclahoma, Inc, Brown Fintube Company, and Koch Engineering Company

MEMORANDuM QEMION MOLLOY judge 111 BEFORE THE COURT are several motions to dismiss for failure to state a claim for relief, for lack of subject matter jurisdiction, and for summary judgment Plaintiff Hess Oil Virgin Islands Corporation [ HOVIC ] commenced this action for contribution indemnification, and breach of contract to recoup monies paid to settle asbestos related claims asserted by 149 individuals in the District Court ofthe Virgin islands ( District Court ) between 1997 and 2001 HOViC attached a list of the District Court Plaintiffs and their respective case numbers to its complaint The ludicial Panel on Multidistrict Litigation ( [PML ) eventually transferred the District Court cases to the United States District Court for the Eastern District of Pennsylvania { Eastern District ) for coordination under In re Asbestos Products Liability Litigation {No VI), MDL No 875 One defendant moved to Hess 01/ V] Corp v FIuor Daniel (at al 2020 VI Super 50 Case No 8X 05 CV 165 Memorandum Opinion Page 5 of 42

dismiss for lack of subject matter jurisdiction claiming the Superior Court lacks jurisdiction over contribution and indemnification claims arising out of the District Court cases Other Defendants moved to dismiss because HOVlC was not named as a defendant in the District Court cases HOVlC cannot seek indemnification or contribution, they assert because HOVIC was never sued by the District Court Plaintiffs Any monies paid out were gratuitous HOVIC counters that its parent company Amerada Hess Corporation [ Hess ) who was sued in the District Court cases is the real party in interest in this case, and assigned its rights to HOVlC to seek contribution and indemnification and to sue for breach of contract HOVIC s complaint does not make that allegation however And HOVlC also contradicts itself claiming that it too is a real party in interest here Lastly HOVlC asserts six claims in its complaint contribution contractual and common law indemnification and breach of contract But each count concerns the claims asserted by the 149 District Court Plaintiffs So HOVIC actually asserts 149 claims for contribution, 149 claims for common law indemnification and 149 claims for contractual indemnification in addition to its breach of contract claims Since every defendant is named on each claim the actual number of claims HOVIC must prove against every Defendant total over 60 000 TR For the reasons stated below this Court holds that joining multiple claims within the same count in a complaint is improper and constitutes misjoinder Accord V I R Civ P 8(a](2] (requiring separate designation of counts and defenses for each claim identified in the pleading ] Therefore, the Court must sever HOVIC 3 claims The claims asserted in this case will be limited to Oliver Abraham, the first named plaintiff on the list HOViC attached to its complaint One hundred and forty eight severed complaints must be refiled one for each of the remaining District Court Plaintiffs Notwithstanding the misjoinder, the Court will deny all motions insofar as they concern Hess assignment of rights to HOVlC, grant the motions to dismiss the failure to obtain insurance claim based on the statute of limitations but stay the dismissal pending certification of a question of law to the Supreme Court of the Virgin islands, strike an untimely motion for summary judgment and grant a motion to dismiss contribution and indemnification claims All other motions will be denied without prejudice, with leave to refile once the severed complaints have been filed 1 BACKGROUND A Federal Asbestos Tort Claims Andrew, et a! v Amerada Hess Corp , et a! Hess 011 VI Corp v Fluor Dame] et a] 2020 Vi Super 50 Case No SX 05 CV 16S Memorandum Opinion Page 6 of 42

JJ3 Between 1997 and 2001, sixteen lawsuits were filed in District Court by individuals seeking damages for exposure to asbestos The first two lawsuits were filed on July 1 1997 1 Two more were filed on October 22 1997 2 The fifth lawsuit was filed on February 2 1998 3 Another two cases were filed in March 1998 4 two more in April 1998 5 three in May 1998 6 one in August 1998 7 and one in

1 The first lawsuit civil no 1997/081 was filed by Samuel Andrew Tite Baptiste James & Albina Charlemagne Kaleb 8: Teresa Edwards Carlos 8: Maria Encarnacion Miguel A and Lydia Encarnacion Nelson M Estephane, JeanBaptiste 8: Petronilla Francois Peter Frank Claredon & Pearline Gilbert Winston Gilbert, Mario 8: Faith Harrigan, lshmale Henry, John 8; Elma Hunt William C & Carmen Hernandez Cliff & Martha Marshall Frederick & Aloma Peters Joseph 8: Alejandrina Prosper Ramnarine 8: Laura Rambhajan and Alfred & Eglantine Romney The second lawsuit, civil no 1997/082, was filed by Winston & Gwendolyn Crichlow, Miguel & Iris Perez Harold & Bernice Gonzales Francis & Christiana Guide Joseph & Cheryl Ann Narinesingh Matthew 8!. Lenore Raveneau, Miguel 8: Myrna Lopez, Mathias & Eleanor M Roseline, Saulo 8: Juanita Saldana, and Cressy 8; Margaret St Valle 2 The third lawsuit civil no 1997/ 152, was filed by Oliver & Alexandrine Abraham Hector Delacruz Francis 8: Fediana Edward Harris & Agnes Edwardson Victor 8: Gilberta Emanuel Ignatius Gerson, Julitan & Veronica Inglis, Simon & Ivy Montoute Nelson F & Bernadine Figueroa, Alphonse Theophilus, Lewis & Bernadin Royer Clenthworth 8: Heslyn Reynolds Carmello Parilla 8; Luz Celnia Christian, Melvin & Iris Caesar Samuel & Agnes Carr Frank Cadogan George & Linda Decaille Joseph 8: Lucy Doctrine, Edgar 8; Ann Drew, Jerome & Cassandra Gill John 8!. Elma Hunt Gregoire 8: Martina Jnofinn Gregory Joseph, Peter 8: Ronise Leriche Rupert 8!. Mariza Marcelle Hamilton Roberts Rupert Roberts, Garnett T 8: Juana Ryan Anthony Samuel, Joseph & Susan Smith Matthew Vernege, Jules 8: Magdalene Victor Simon Taylor Welton & Lucille Nicholas, Randolph Parker, Henreker 8L Millicent Liburd Elfred & Paula Josephat, and Stephen Royer The fourth lawsuit, civil no 1997/153 was filed by Thomas 8: Maria Altagracia Johnhope Alphonse 8c Robina Baptiste Ryan 8: Enid Alleyne, George 8: Marie Annette Auguste Earnest A & Cynthia Zachariah Baptist, Paul 84 Theresa Bell Pashoon & Rosalind Boodoosingh Roy Challenger, Kenneth 8: Claudia Creese, Pierre Cuffy Willy 8L Cathrine Decembre Benedict & Angela Eustash Rupert & Enez Francis, Charles Granger, Raphael Harrigan Paul Harris, George 8; Angela Henry, Kenrick & Margie James, Flavius 8: Rachel Joseph Adolphus & Henrietta Nelson Peter & Helena Paul Joseph Plante Hubert 8c Anastasia Polo Roosevelt President Joseph 8: Evarista Samson, Joseph & Helena Simmonds Marcel 8: Melsades Scotland Marcel 8: Roslyn Smith, and Olson 8: Rachael Wallace 3 The fifth lawsuit civil no 1998/010 was filed by Victor & Gilberta Emanual Dionisio Ortiz 8: Mercedes Rodriguez Diaz Thomas 8: Martha Raphael Phillip 8: Martha Daniel, Noel & Gloria Buzebe, Peter Alexander, Henry 8: Agatha George, Jonathon & Edna Winston Simon Taylor, Otto & Tulip Jean, Lennox Cato Joseph & Millicent Pemberton, Ivan Campo Eustace 8: Simmia Eugene, Reynaldo & Maria Gautier, Adrien Henry Juan 1 & Nellie Munoz Sanford 8: Rosa Xavier 4 The sixth lawsuit civil no 1998/085, was filed by Alardo Baptista & Cexjesima Moreta on March 1 1, 1998 The seventh lawsuit, civil no 1998/088, was filed on March 17 1998 by St George Felix John Durity, Aldwyn 8: Barbara Dick, Rafael 8: Angela Saez Joseph & Isabella Serieux, Wilfred Williams Jr Oswaldo Villafane, Vaughn 8: Idona Thomas, Joseph Felix and Matthew 8: Jennifer Joseph 5 The seventh, civil no 1998/099 and eighth lawsuits, civil no 1998/100, were filed on April 8, 1998 by Pascal Frederick Rafeal &Angela Saez, and Wilfred Williams Jr and by David & Leonora Smith and Gorcum Trim respectively 5 The ninth lawsuit civil no 1998/118, and tenth lawsuit, civil no 1998/119 were filed on May 6, 1998 by Charles 8; Teresa Jacob, and by Sharon Moore respectively The eleventh lawsuit civil no 1998/131 was filed on May 22 1998 by Conrad 8L Melba Williams 7 The twelfth lawsuit civil no 1998/ 189, was filed on August 25, 1998 by Fabio Caminero & Denia Altagracia Hess 011 VI Corp v FIuorDam‘eI at al 2020 VI Super 50 Case No 5X 05 CV 165 Memorandum Opinion Page 7 of42

September 1998 3 Only one case was filed in 1999, on May 27th 9 None were filed in 2000 And the last two cases were filed on July 26, 2001 10 All sixteen lawsuits were filed by a total of 152 men who had worked at the oil refinery owned and operated on St Croix by HOVIC at that time Many of the workers were joined by their spouses who sued for loss of their husbands consortium While all District Court plaintiffs asserted the same claims, they did not sue the same companies 114 For example the plaintiffs who joined Samuel Andrew in filing the first lawsuit {hereinafter the Andrew Plaintiffs J sued Hess, Borinquen Insulation Company Inc ( Borinquen J, Raytheon Engineers 8: Constructors inc individually and as successor to Litwin Corporation ("Litwin') and Litwin Pan American Corporation [ Litwin Pan Am J, Owens Corning Fiberglass Corporation Raritan Supply Company [ Raritan ), individually and as successor to Bridge Supply Company, Madsen & Howell, Inc [ M&H ), Union Pump Company ( Union Pump ), Pittsburgh Corning Corporation (’ Pittsburgh Corning ) individually and as successor to Unarco Industries Garlock Inc (‘Garlock J GAP Corporation [ GAP ), individually and as successor to Ruberoid Flexitallic Gasket Company Armstrong World Industries CertainTeed Products Corporation ( CertainTeed J, Foster Wheeler Corporation [’Foster Wheeler'] individually and as successor to Forty Eight Insulations Inc, 3M, Westinghouse Electric Corporation ( Westinghouse ), lngersoll Rand Corporation ( ingersoll Rand ) Elliot Company ( Elliot), Riggers 8: Erectors International Inc ( Riggers ), Dresser Industries inc ( Dresser J, individually and as successor to Pacific Pumps, Inc, and Shell Oil Company [ Shell ) The persons who joined Winston and Gwendolyn Crichlow [ the Crichlow Plaintiffs ] in filing the second lawsuit as well as those who Joined Oliver and Alexandrine Abraham ( the Abraham Plaintiffs J in filing the third lawsuit all sued the same businesses and companies as the Andrew Plaintiffs But those persons who joined Luis and Antonia Carrion in filing the fifteenth lawsuit [ the Carrion Plaintiffs ] sued Hess Litwin directly (not through Raytheon purportedly as Litwin s successor) Raritan M&H Union Pump Garlock, CertainTeed

8 The thirteenth lawsuit, civil no 1998/194, was filed on September 2 1998 by Isidro 8c Patria Cruz Cabreja 9 The fourteenth lawsuit civil no 1999/ 100, was filed by Cesar 8: Carmen Iris Caraballo 10 The fifteenth lawsuit, civil no 2001 / 126, was filed by Luis & Antonia Carrion, Thomas 8: Francilla Cenac, Joseph 8: Jessica Didier, Rawlins Doodhai, Timothy 8; Marie Ganderson Edmilford Green lvaughn 8: Jone Hurtault Bertie 8: Ingrid Isaac Dominique 8: Pauline James Paul & Mary Leo Lionel Mondiser Charles 8: Oraine Roper Angel Santos Keiran 8?. Anne Marie St Ange Hudson Valmont, and Isiah 8: Nina Williams The sixteenth and final, lawsuit, civil no 2001 / 127, was filed by Hugh & Linda Morgan Hess 011 VI Corp v Fluor Daniel at a] 2020 VI Super 50 Case No SX 05 CV 165 Memorandum Opinion Page 8 of 42

Westinghouse lngersoll Rand, Elliott, Riggers, Dresser, and Shell But the Carrion Plaintiffs also sued Harbison Walker Refractories, Fluor Daniel individually and as successor to Fluor Engineers & Constructors, lnc , Fluor Corporation A P Green Industries, lnc, individually and as successor to A P Green Refractories Company Tuthill Corporation ( Tuthill ) individually and as successor to Coppus Murray Group or Coppus Turbines, Universal Oil Products Company ( UOP ), Alltite Gasket Company ( Alltite ), Mobil Oil Company John Crane Packing Company ( John Crane ') and Rubber & Gasket Company of Puerto Rico ( R&G ) They also sued Gasket Holdings lnc as successor to Flexitallic By contrast, Hugh and Linda Morgan, who filed the last lawsuit sued the same businesses and companies as the Carrion Plaintiffs But they also sued Lockheed Martin Corporation ( LMC J individually and as successor to Martin Marietta Corporation, Martin Marietta Aluminum lnc, and Martin Marietta Aluminum Properties, lnc and sued Martin Marietta Corporation directly in its individual and successor capacity and Martin Marietta Materials Inc, in its individual and successor capacities 115 Although the JPML eventually transferred all the District Court cases to the Eastern District they were not transferred at the same time For example the JPML issued Conditional Transfer Order ( CTO ) No 118 on November 26, 1997, to transfer the first two cases Andrew and Crichlow to the Eastern District on November 28 2001 by CTO No 208 Yet the JPML did not transfer the eleventh case, Williams until July 21 2003 by CTO No 226 And the Eastern District did not initiate

formal transfer proceedings for almost every case until May 25 2007 when Transfer Order No 35 directed the Clerk of the Eastern District to initiate proceedings to transfer Andrew, Crichlow

Abraham johnhope, Emanual, Moreta Felix Frederick Smith lamb, Moore Williams Caminero Cabreia, and Morgan Caraballo was not transferred until April 1 2011 when Transfer Order No 961 was issued And it does not appear that Carrion was transferred 1J6 Years before the District Court cases were transferred conditionally or otherwise, all but two cases were stayed by magistrate judge order pending transfer Notwithstanding the stay and in some instances notwithstanding the transfer proceedings still occurred in the District Court cases It is outside the scope of this Opinion to restate the procedural history of the District Court cases or summarize the effect of MDL transfer orders But a few examples suffice to make the point Even though Andrew, for example, had been stayed by the District Court on October 23, 1997, and Hess 0:] V1 Corp v Fluor Daniel et a1 2020 V! Super 50 Case No SX 05 CV 16S Memorandum Opinion Page 9 of 42

conditionally transferred by the [PML on November 26 1997 the District Court not the Eastern District approved, on May 21, 2003, a stipulation the Andrew Plaintiffs had filed to dismiss their claims against Westinghouse with prejudice Similarly, even though Caraballo was closed by the Clerk of the District Court on April 10 2000, purportedly because it had been transferred to the MDL the District Court still dismissed the Caraballos' claims with prejudice against Westinghouse, R&G and Fluor Danie] before transfer and against Mobil Oil Company after transfer 117 While proceedings were underway in federal court, Hess Litwin Litwin Pan Am, Riggers and Borinquen along with nonparties HOVIC, Fisher Hess Construction Company HOVENSA LLC and St Croix Petrochemical Corporation, agreed to settle with the District Court Plaintiffs following a global mediation held in Miami Florida between October let and 23rd, 2002 (collectively referred to as Settling Defendants in the agreement and hereinafter in this Opinion) The parties signed a formal agreement on January 16, 2003 Pursuant to the settlement agreement the Settling Defendants released any and all claims against each other and denied liability to the District Court Plaintiffs generally but retained the right to pursue other claims including contribution and indemnification against anyone who was not a party to the agreement However the agreement also provided that settlement would not be construed to release any party other than those named and the Parties reserve their rights to pursue claims against other parties who are not signatories to this Agreement (Def Strahman Valves Inc 5 Mot for Summ I Ex 4) Settlement monies were paid by HOVlC to the District Court Plaintiffs on or about March 26, 2003 (Comp! 1M) However the dockets for the District Court cases do not Show that any stipulated dismissal by and between the Settling Defendants and the District Court Plaintiffs were filed or approved by either the District Court or the Eastern District instead, except for the Carrion Plaintiffs whose case was never

transferred, all District Court Plaintiffs claims were dismissed by the Eastern District for failure to prosecute either on August 25 2009 or October 22 2009 B Territorlal Asbestos Indemnity Claims Hess Oil VI Corp v Fluor Dame], et a! 118 Two years after the District Court settlement, HOVIC filed a complaint in the Superior Court of the Virgin Islands on March 29, 2005, to recover only those settlement monies paid to [the District Court Plaintiffs] Id II 5 HOVlC represented that it had been named as a defendant by the District Court Plaintiffs and attached to its complaint [a] list of all Claimants and Civil Case Hess Oil VI Corp v Fluor Daniel et a] 2020 VI Super 50 Case No SX 05 CV 165 Memorandum Opinion Page 10 of42

Numbers [which HOVIC] fully incorporated by reference Id 11 3 HOVIC asserted claims of contribution (Count I), common law and contractual indemnification (Counts II and Ill), breach of contract for failure to obtain insurance (Count W), and breach of contract for failure to name HOVIC as an additional insured (Count V) against most Defendants but not LMC and the Martin Marietta entities (collectively Martin Marietta Defendants ) Against the Martin Marietta Defendants HOVIC asserted a second contribution claim (Count VI) based on a premises liability theory HOVIC alleged that the District Court Plaintiffs had been employed on premises owned, operated and controlled by [the Martin Marietta Defendants] Id at 18 Because the Martin Marietta Defendants failed to exercise reasonable care to provide a reasonably safe place to work, Id, the Martin Marietta Defendants were partly to blame for the District Court Plaintiffs

injuries 1i9 Because the global mediation in Miami included asbestos claimants from both the Territorial Court and the District Court HOVIC certified in its complaint that the In re Kerm Manbodh Asbestos Litigation Series, Master Case No 1997/324, was related and that those cases should be consolidated HOVIC filed a motion to that effect in Manbodh on june 6, 2005, ‘notwithstanding that

the Court (Cabret Pj) had ruled from the bench during a May 4, 2005 status conference that parties wishing to recover settlement monies should follow the same procedures that were followed in the previous asbestos cases In re Kelvm Manbodh Asbestos Litig Series 69 V l 394, 414 (Super Ct 2018) (quoting In re Kerm Manbodh Asbestos Litig Series Master Case No 324/1997 2005 Vl LEXIS 40 *4n 1 (VI Super Ct Oct 21 2005)) 1110 Although HOVIC only filed its motion to consolidate in Manbodh john Zink filed a joint opposition/motion in this case on june 16, 2005, opposing consolidation and moving to dismiss for lack of subject matter jurisdiction John Zink argued that HOVIC should have filed a separate civil complaint in the case of each of the underlying federal court plaintiffs to avoid the complexity and confusion which will certainly result from these 149 separate claims for relief being presented under a single caption (Def john Zink LLC s Opp n to Consolidation / Mot to Dismiss 4 filed jun 16, 2005 ) john Zink next argued that HOVIC should have filed in the District Court because the

District Court Plaintiffs cases were still pending Finally john Zink argued that the complaint should be dismissed because HOVIC was not a defendant in the District Court cases In support john Zink Hess 011 VI Corp v Fluor Daniel at a] 2020 VI Super 50 Case No 8X 05 CV 16S Memorandum Opinion Page 11 of42

attached copies of the captions from Andrew, Cnchlow Abraham, Morgan, and Carrion, copies of orders imposing a stay in WllfIGmS and injacob pending transfer to the MDL and a copy ofCTO No 118 CBI Services, Parsons Infrastructure and Technology Group Inc ( PlTGl J, Resal Austin Industrial R&G, Amdura Standco Gerald Packing & Belting Corporation, CertainTeed John Crane, Tuthill, Elliott Born Inc, UOP, and Raritan joined in John links motion HOVIC opposed several Defendants joinder but did not file a response in opposition to John Zink ‘3 11 Next Elliott moved on July 13 2005 for partial summary judgment for all claims related to the District Court Plaintiffs who filed suit in 1997 1998 and 1999 Elliott too noted that HOVIC was not a party to the District Court cases but also argued that HOVlC did not have any potential liability in 2003 when it settled with the District Court Plaintiffs, because the statute of limitations had run for everyone except the Carrion Plaintiffs and the Morgan Plaintiffs in support Elliott attached the docket for all the District Court cases (as of June 22, 2005) and copies of the complaints from Abraham and Carrion CBI Services PITGl John Crane, Alltite Tuthill Born Inc UOP, and Raritan

joined Elliott s motion HOVIC opposed in part because it had been assigned the right ofAmerada Hess Corporation to recover for monies paid on its behalf in settlement of the District Court lawsuits (Pl 5 Mam in Opp n to Mot for Partial Summ J 12 filed July 13 2005) HOVIC conceded however that it was not a formally named defendant in the District Court lawsuits 1d 1J12 Then PlTGI and CB] Services on August 5, 2005 each filed a motion to dismiss for failure to state a claim CB! Services and PlTGl argued that HOVIC 5 contribution and common law indemnification claims fail because the complaint did not allege that HOVIC extinguished their potential liability to the District Court Plaintiffs The Settlement Agreement which they attached to their motions, Show that all parties including the District Court Plaintiffs, retained the right to pursue claims against anyone not a party to the agreement CBI Services and PITGl also moved to dismiss the contractual indemnification claim because they could not have breached any duty to defend HOVIC HOVIC was not named as a defendant in the District Court cases Lastly, PITGl and CBI Services challenged the sufficiency of the remaining contract claims insofar as both claims are premised on language in purchase orders issued over several decades PlTGl and CBI Services assert that the purchase orders did not rise to the level of formal contracts and, further that the statute of limitations had run Tuthill, Born Inc , UOP Raritan and Elliott joined both motions HOVIC opposed Hess Oil VI Corp v FIuor Dame] at a] 2020 Vi Super 50 Case No SX 05 CV 16S Memorandum Opinion Page 12 of42

1113 BM followed moving on August 22, 2005, to dismiss the breach of contract claims 3M was not named as a defendant on the contribution and indemnification claims But as to the failure to insure claim, 3M asserted that it was time barred HOVIC s complaint alleged that the duty to obtain insurance was based on purchase orders issued from 1965 to 1982 and from 1984 to 1998 But the statute of limitations on contract claims is six years in the Virgin Islands So 3M asserted that its alleged failure to obtain insurance and to furnish certificates of insurance arose, if at all at the time that the relevant shipments or transfers of materials were made (Def 3M 5 Mem of Law in Supp ofMot to Dismiss Pl 3 Compl 4 filed Aug 22, 2005 [hereinafter “3M Mot ') )Thus according to 3M, the complaint fails on its face to state a claim for relief and Count [V should be dismissed Tuthill Born lnc UOP, Elliott, and Raritan joined in 3M 5 motion HOVIC opposed 1114 R&G, on September 16, 2005 also moved to dismiss but on grounds different than the other Defendants R&G asserted that HOVIC lacked standing to file suit because it was not a party to the District Court cases R&G noted that HOVlC fails to mention in its Complaint that it actually was not a party to any of the cases which were incorporated into the Andrews Asbestos Litigation Series (Def Rubber & Gasket Co of P R s Mot to Dismiss 3 filed Sept 16 2005 ) This R&G contended brings the question ofwhat it is that Hovic seeks to be indemnified for ' Id The fact that Hovic was not a party to the Andrews Asbestos Litigation leaves nothing but doubt, R&G argued as to why Hovic may have had to vigorously litigate Id at 4 Thus the uncontroverted issue that Hovic was not a party to the Andrews Asbestos Litigation is sufficient in and of itself for this Court to dismiss the present matter fora lack of standing Id at 5 Tuthill Born lnc UOP Elliott, and Raritan joined HOVIC opposed 1115 Thereafter, several Defendants including john link, PlTlG, and C81 Services among others, moved to stay discovery until the dispositive motions had been ruled on CB] Services and PITGl for example, argued that further discovery would be inappropriate until certain threshold issues were resolved including a directive the Court (Cabret P I) had issued from the bench when it denied HOVIC s motion to consolidate this action with Manbodh (Def CBl Servs , Inc 5 Mem of Law in Supp of Mot for Stay of Disc 6 filed Nov 4 2005] Specifically CBI Services (and PlTGl as each made the same arguments) cited to a October 21 2005 Order issued in Manbodh directing that HOVlC s complaint would only be accepted in the name of the first party listed In re Kelvm Hess Oil VJ Corp v Fluor Daniel et a! 2020 VI Super 50 Case No sx 05 CV 1653 Memorandum Opinion Page 13 of42

Manbodh Asbestos thlg Series 2005 Vi LEXIS 40 at *4 n2 HOVIC initially opposed staying discovery but later relented agreeing that a stay of discovery in this matter is warranted pending the Courts decision on the dispositive motions before it ' (Pl 5 It Limited joinder in Defs‘ Motions to Stay All Further Proceedings 4, filed Nov 23 2005) Although the motions to stay were never ruled on, discovery was under a defacto stay by agreement of the parties 11 16 HOVlC and CertainTeed later stipulated to dismiss Counts l and ii with prejudice, which the Court (Cabret j ) approved on November 27, 2006, entered November 30, 2006 Similar stipulations were filed by and between HOVIC and Elliott and HOVIC and Raritan, each agreeing to dismiss Counts I and ll with prejudice Then on January 11, 2012, Strahman Valves filed a motion for summary judgment Like the other Defendants, Strahman Valves asserted that HOVIC failed to extinguish Strahman Valves potential liability to the District Court Plaintiffs and that HOVIC was not sued by the District Court Plaintiffs because that court would have lacked subject matter jurisdiction since HOVIC is a Virgin Islands corporation and the Asbestos Claimants[, ie, the District Court Plaintiffs] are Virgin islands domiciliaries [Def Strahman Valves, inc 5 Motion for Summ ] 3 filed Ian 11 2012) And like Elliott Strahman Valves asserted that HOVIC did not have

any liability to any District Court Plaintiff except for those who had brought their lawsuits after March 26 2011 Id Citingjoseph v Hess 01! Virgin Islands Corporation 867 F 2d 179 (3d Cir 1989] in which HOVIC successfully argued that the statute of limitations for an asbestos related injury should be two years from the date the plaintiff knew or should have known, Strahman Valves

argued that everyone except the Carrion Plaintiffs and the Morgan Plaintiffs knew or should have known by March 26 2001 that they could bring a claim against HOVIC for asbestos related injuries As before HOVIC conceded that it was not named as a defendant by the District Court Plaintiffs But HOVIC countered that there were allegations of negligence for premises liability and of products liability asserted (Pl 5 Mem in Opp n to Mot for Partial Summ ] 2, filed jan 31 2012] Despite not being a direct party HOVIC also settled with the asbestos claimants in the Andrews Asbestos Litigation as the real party in interest on the underlying plaintiffs' claims Id “17 Several years later HOVIC filed a joint motion on October 19, 2018, with the Fluor Defendants the Martin Marietta Defendants UOP and Saint Cobain Advance Ceramics ( Saint Cobain ) to dismiss its claims (as well as any counterclaims and crossclaims) with prejudice Three Hess 011 VI Corp v Fluor Dame] et a! 2020 v1 Super 50 Case No SX 05 CV 16S Memorandum Opinion Page 14 of42

months later, on January 10, 2019 the Presiding Judge of the Superior Court designated this case as complex, transferred it to the Complex Litigation Division, and reassigned it to the undersigned judicial officer CertainTeed filed a notice of bankruptcy on January 31, 2020 1J18 On February 5 2020 as amended February 6 2020 this Court granted the October 19 2018 joint motion, dismissing UOP the Fluor Defendants, the Martin Marietta Defendants, and Saint

Cobain from this case The Court also resolved several ancillary motions and scheduled this case for a hearing and oral argument The Court alerted the parties that intervening changes in the law and several stipulated dismissals may have changed the posture of this case including what motions were pending The Court also noted that certain Defendants had joined other Defendants pre answer after they had answered HOVle complaint other Defendants were served but never appeared or appeared late and joined dispositive motions without moving to excuse their delay The Court also acknowledged the May 4 2005 Order issued in Monbodh noting concern with how HOVlC joined its claims in lieu ofordering HOVlC to Show cause why its claims should not be severed the Court directed the parties to come prepared to address it at oral argument Following the March 19 2020 hearing held telephonically due to the COVlD 19 measure implemented by the Judicial Branch, the Court took the motions and arguments under advisement II DISCUSSION 1J19 Ordinarily, courts address motions separately because movants generally have the burden of proof or persuasion on their own motions Victorv Hess 011 VI Corp, 69 V I 484 494 (Super Ct 2018) But cf. 99 KehrPackagesv Fidelcor Inc 926 F 2d 1406 1409 (3d Cir 1991) ( When subject matter jurisdiction is challenged under Rule 12[b)(1) the plaintiff must bear the burden of persuasion ) And arguments or issues not raised by the movant or inadequately briefed are generally deemed waived But in complex cases courts often must take a different approach to resolving complicated issues Cf.Vl R Civ P 16(c)(2)(L) [letting courts’adopt[] special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties difficult legal questions or unusual proof problems[] ) accord JPML R 6 1[c) (construing no response to a motion as consent and prohibiting raising additional issues by joinder) ( Any other party may file a response within 21 days after filing of a motion Failure to respond to a motion shall be treated as that party 3 acquiescence to it A joinder in a motion shall not add any action to that Hess 011w Corp v Fluor Daniel et al 2020 VI Super 50 Case No 8X 05 CV 165 Memorandum Opinion Page 15 of42

motion ) See also generally e g In re japanese Elec Prods Antitrust Ling, 631 F 2d 1069 [3d Cir 1980) [recognizing that some cases may be too complex for jury trials and balancing the right to due process against the right to trial by jury) ‘Since traditional methods of handling the caseload are breaking down, it is the obligation of the courts to adopt more novel approaches judges and courthouses cannot be multiplied indefinitely innovative approaches to processing complex litigation are the order of the day United States v Reeves 636 F Supp 1575 1579 80 (E D Ky 1986) 1120 In this case, five motions to dismiss, two challenging jurisdiction, and two motions for summary judgment are pending And three of the dismissal motions arguably must be converted to motions for summary judgment since they present matters outside the pleadings See Vl R Civ P 12(d) [ If on a motion under Rule 12 (b)(6) or 12 (c), matters outside the pleadings are presented to and not excluded by the court the motion must be treated as one for summary judgment under Rule 56 ) But cfi Hinton v Corr Corp ofAm 624 F Supp 2d 45 46 (D D C 2009) [ Matters that are not 'outside’ the pleadings a court may consider on a motion to dismiss include the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint or documents upon which the plaintiffs complaint necessarily relies even if the document is produced not by the plaintiffin the complaint but by the defendant in a motion to dismiss (citations omitted)) accord Soderlund v Zzbolskl 874 N W 2d 561 570 71 (Wis Ct App 2015) ( The incorporation by reference doctrine prevents a plaintiff from evading dismissal simply by failing to attach to his complaint a document that proves his claim has no merit [brackets and ellipsis omitted) (quoting Brownmark Films LLCv Comedy Partners 682 F 3d 687 690 [7th Cir 2012)) But rather than take the traditional motion by motion approach, the Court will instead take an issue by issue approach Given the age of this case the quantity of motions pending, and the changes in the substantive and procedural law since the motions were filed the Court finds that the best approach here is not to address each motion individually but instead to address collectively the different issues raised A Subject Matter jurisdlctron / Standing / Real Party m Interest 1j21 john Zink and R&G argue that the Superior Court lacks jurisdiction because HOVIC lacked standing to commence this action (See Def john Zink, LLC‘s Opp n / Mot 8 [ HOVlC has no standing Hess 011 VI Corp v FIuorDameI at a] 2020 Vi Super 50 Case No 5X 05 CV 165 Memorandum Opinion Page 16 of42

to file this action because it was not a party defendant, subject to a potential judgment in favor of the Plaintiff in any particular case, it has no standing to file the subject action ], see Def Rubber & Gasket Co of P R s Mot to Dismiss 5 ( In fact, the uncontroverted issue that Hovic was not a party to the Andrews Asbestos Litigation is sufficient in and of itself for this Court to dismiss the present matter for a lack of standing ) ) At the time when these motions were filed standing in the Virgin islands "‘represent[ed] a jurisdictional requirement which remain[ed] open to review at all stages of the litigation Arlington Funding Servs Inc v Geigel, 51 Vi 118, 125 n 4 (2009) [per curiam] (brackets and citation omitted] overruled by Benjamin v A10 Ins Co ofP R 56 Vi 558 564 [2012) Accord VI Gov t Hosps & Health Faculties Corp v Gov tofthe VI 47 V I 430 436 (Super Ct 2006) ( This Court also lacks subject matter jurisdiction over a dispute if a party lacks standing, as standing is a component of subject matter jurisdiction ] Standing Comm on Conservation, Rec, & CulturalAfiairsv VI Port/lath 21 Vi 584 591 [Terr Ct 1985)( Since the Plaintiff lacks standing and the capacity to sue this Court cannot exercise subject matter jurisdiction ) 1j22 But since then, the Supreme Court of the Virgin islands has clarified that standing like mootness, functions in the courts of the Virgin islands as a claims processing rule that is subject to waiver should the party asserting the issue fail to raise it in a timely manner Benjamin, 56 Vi at 564 65 The Virgin islands Supreme Court had acknowledged that the Supreme ’Court and the Superior Court are not Article Iii courts but concluded nonetheless, that ’ Article iii 5 requirement that a litigant have standing to invoke a court 3 authority ha[d] been incorporated into Virgin islands jurisprudence Geigel 51 Vi at 124 But the Court subsequently overruled its prior position see Benjamin 56 V l at 564, holding instead that standing must be asserted at the earliest opportunity See 1d at 564 65 see also United Corp v Hamed 64 Vi 297 304 [2016) ( We therefore take this opportunity to reaffirm that ‘standing’ as that concept is understood in federal constitutional law does not exist in any form in Virgin islands courts ) in this instance john Zink and R&G raised standing at the earliest opportunity Neither john Zink nor R&G answered HOViC s complaint yet But they raised standing as if it were jurisdictional and it is not The concern now is over the standard of review '[j 23 The Virgin islands Supreme Court acknowledge that whether the party bringing suit ha[s] a right to the relief it [Us seeking goes to the merits of the cause of action not the Superior Hess 0111/1 Corp v Fluor Dame! et a! 2020 Vi Super so Case No 8X 05 CV 165 Memorandum Opinion Page 17 of42

Court 5 authority to hear the case in the first place United Corp, 64 V I at 303 Thus standing in the Virgin Islands challenges whether a plaintiff has stated a claim for relief Since standing, like mootness and other federal constitutional doctrines are claims processing rules in the Virgin islands, the rule that governs a motion to dismiss for lack of standing is not Rule 12(b)(1) lack of subject matter jurisdiction but rather Rule 12(b](6), failure to state a claim for relief, Rule 12(c), judgment on the pleadings, or Rule 56, summary judgment‘ Stanley v V] Bureau of Corr, 2020 VI Super 47,1j 11 (concluding same as to mootness] The problem is that, while R&G did not submit materials outside the pleadings john Zink did But R&G, like john Zink nonetheless based its entire motion on extra pleading materials And R&G also joined john Zink s motion 1124 At the time the motions were filed referring to matters submitted outside the pleadings would not have been a concern See Id at 11 13 ( The majority of the Courts of Appeals that have considered this issue conclude that district courts may consider material outside the pleadings in ruling on 12(b)(2) motions to dismiss ) accord Vl R Civ P 12(dj ( If, on a motion under Rule 12(b)(6} or 12(c), matters outside the pleadings are presented to and not excluded by the court the motion must be treated as one for summary judgment (emphasis added)] But since john Zink s motion must now be governed by Rule 12(b) (6), submitting copies of several documents from the District Court cases was, technically, submitting documents outside the pleadings The documents john Zink submitted were not attached to HOVlC s complaint But converting a pre answer motion to a motion for summary judgment is not necessary since HOVIC incorporated the documents john Zink submitted by referencing them in its complaint Under the doctrine of incorporation by reference a document attached to a motion [to dismiss or] for judgment on the pleadings may be considered by the court without converting the motion into one for summary judgment only if the attached document is (1) central to the plaintiff‘s claim and (2) undisputed Ackah v Hershey Foods Corp 236 F Supp 2d 440 443 (M D Pa 2002) (quoting Horsleyv Feldt 304 F3d 1125 1134 (11th Cir 2002]) accord Burton v First Bank ofPR 49 VI 16 20 21 (Super Ct 2007 [‘ Although the Court relies upon documents such as the Plaintiffs billing statements, the complaint referred to these indisputably authentic documents thus making them an operative component of Plaintiffs allegations (citing Penszon Benefit Guaranty Corp v White Consol Indus Inc 998 F 2d 1192 1196 (3d Cir 1993]) Undisputed in this context means that the authenticity of the document is not challenged Horsley 304 F 3d at 1134 [citing Beddall v State St Bank & Trust Hess 011V! Corp v Fluor Daniel et a] 2020 VI Super 50 Case No SX 05 CV 165 Memorandum Opinion Page 18 of42

Co 137 F 3d 12 16 17 [lst Cir 1998) GFFCorp v Assocmted Wholesale Grocers Inc 130 F 3d 1381 1384 (10th Cir 1997] Branch v Tunnel] 14 F 3d 449 454 (9th Cir 1994)) This Court agrees with and adopts the incorporation by reference doctrine 1I25 "Ordinarily when ruling on a pre answer motion to dismiss, the Court must accept the plaintiff’s allegations as true 'and draw all fair inferences from such allegations Stanley, 2020 VI Super 47 at 1i 12 (citation omitted)) But the incorporation by reference doctrine permits a court to review the actual document referenced in the complaint to ensure that the plaintiff has not misrepresented its contents and that any inference the plaintiff seeks to have drawn is a reasonable one Amalgamated Bank v YahooI Inc 132 A 3d 752 797 (Del Ch 2016] overruled m part on other grounds by Tiger v Boast Apparel Inc 214 A 3d 933 939 [Del 2019) The doctrine further limits the ability of the plaintiff to take language out of context because the defendants can point the court to the entire document [and] enables courts to dispose of meritless complaints at the pleading stage Id Without the ability to consider the document at issue in its entirety, complaints that quoted only selected and misleading portions of such documents could not be dismissed under Rule 12(b](6] even though they would be doomed to failure Id (quoting In re Gen Motors (Hughes) 5 holder [.1179 897 A 2d 162 169 [Del 2006]) With the incorporation by reference doctrine, a complaint may, despite allegations to the contrary, be dismissed where the unambiguous language of documents upon which the claims are based contradict the complaint 5 allegations Likewise, a claim may be dismissed if allegations in the complaint or in the exhibits incorporated into the complaint effectively negate the claim as a matter of law Id (quotation marks and citations omitted] This case presents a perfect example of the need for the incorporation by reference doctrine 1126 HOVIC attached to its complaint a list of the District Court plaintiff workers and provided each Plaintiff’s respective case number HOVIC then incorporated those cases into its complaint [See Compl if 3 [‘ A list of all Claimants and Civil Case Numbers are attached hereto as Exhibit ‘A” and all Claimants thereon are fully incorporated herein by reference ] ) But HOVIC also alleged that the Claimants meaning the District Court Plaintiffs, had instituted lawsuits claiming compensatory and punitive damages against Plaintiff HESS OIL VIRGIN ISLANDS CORP as well as other entities, in the District Court of the U S Virgin Islands Id Yet John Zink showed by attaching copies of the captions of the Andrew and Crichlow complaints for example that HOVIC Hess Oil VI Corp v FIuor Dame] at a] 2020 VI Super 50 Case No SX 05 CV 16S Memorandum Opinion Page 19 of42

was not sued in the District Court The documents John Zink submitted are undisputed And they are central to HOVIC s complaint If the District Court cases had not been filed HOVIC would not have filed this case 1127 HOVIC does not dispute that the documents it incorporated into its complaint contradict the allegations in its complaint In fact, HOVIC acknowledges that it was not a formally named defendant in the District Court lawsuits [Pl ’3 Mot 8: Mem ofLaw in Opp n to Rubber & Gasket Co of? R, Inc 3 Mot to Dismiss 9 filed Sept 23 2005 {hereinafter R&G Opp n ) )And HOVIC concedes that actions must be prosecuted in the name of the real party in interest " Id at 8 (quoting Fed R Civ P 17(a]) HOVIC counters, on the one hand, that it has standing because Hess has the right to assign to HOVIC its rights of contribution and indemnification relating to the District Court actions [d Yet HOVIC does not represent at least not in opposition to R&G that Hess actually assigned its rights to HOVIC In opposition to C81 Services and PITIG HOVIC represented that Hess has asszgned to HOVIC its rights of contribution and indemnification relating to the District Court actions (Pl ’3 Mot & Mem of Law in Opp n to CB] Servs Inc & PITGI s Mots to Dismiss 4, filed Aug 16 2005 (hereinafter PITIG/CBI Opp n )) During the March 19 2020 oral argument HOVIC reiterated that Hess had assigned its rights to HOVIC Yet. on the other hand HOVIC also asserts in opposition to R&G that HOVIC is the real party in interest with a personal stake in the outcome of this controversy (R&G Opp’n 10) 1f28 Unfortunately the Court cannot discern at this stage whether HOVIC has standing The Court must take as true HOVIC s allegations that its purchase orders submitted to John Zink and R&G,

among others, included a requirement that they obtain insurance and name HOVIC as an additional insured If the Defendants did not obtain insurance that could constitute a breach Whether HOVIC could prove damages (since it was not sued by the District Court Plaintiffs) is a different matter But the Court cannot find at this juncture that HOVIC lacks standing to sue for breach of contract 1129 But more importantly what John Zink and R&G are really getting at is that HOVIC is not the real party in interest here Now and at the time when HOVIC filed its complaint an action had to be prosecuted in the name of the real party in interest V I R Civ P 17(a)(1), accord Fed R Civ P 17(a] (2005 ed ) [ Every action shall be prosecuted in the name of the real party in interest } See also Brooks v Gov tofthe VI 58 VI 417 427 n 11 [2013) [T]he main thrust of Rule 17 is to allow Hess Oil VI Corp v Fluor Daniel et a] 2020 VI Super 50 Case No 5X 05 CV 16S Memorandum Opinion Page 20 of 42

a correction in parties after the statute of limitations has run, despite the valid objection that the

original action was not brought by the real party in interest[]’ Brooks 58 VI at 428 [quotation marks and citations omitted)] Federal courts have held that Rule 17 requires the defendant to object in time to allow the opportunity for joinder of the ostensible real party in interest and the defense may be waived if the defendant does not timely object In re Signal Int] LLC 579 F 3d 478, 487 88 (5th Cir 2009) accord Hefleyv jones 687 F 2d 1383 1388 [10th Cir 1982) ( The real party in interest defense is 'for the benefit of a defendant should be raised in timely fashion or it may be deemed waived " (quoting Audio Visual Marketing Corp v 0mm Corp , 545 F 2d 715 719 (10th Cir 197 6]] Since Rule 17(a) of the Virgin islands Rules of Civil Procedure is patterned after Rule 17(a) of the Federal Rules of Civil Procedure the Court looks to federal precedent for guidance See Slack v Slack, 69 Vi 567 573 (2018) (recognizing that the body of case law construing the federal rule may be consulted when construing the Virgin islands rule) And since federal courts refer to the real party in interest as a defense, like any other defense it must be raised at the earliest opportunity See Coastal Air Transp v Royer, 64 Vi 645 658 [2016) ( [A]ffirmative defenses are waived if not raised at the first opportunity in the Superior Court[] [citation omitted)) 1130 Again HOVlC may lack standing and thus, may have failed to state one or more claims but the concerns that john link and R&G raised about standing really go to whether HOVIC is the real party in interest in this case The law is clear however that [njo action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by or joinder or substitution of, the real party in interest, and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest Fed R Civ P 17(a) (2005 ed) accordVl R Civ P 17(a)(2) [ The court may not dismiss an action for failure to prosecute in the name of the real party in interest until after an objection a reasonable time has been allowed for the real party in interest to ratify join or be substituted into the action After ratification joinder or substitution the action proceeds as if it had been originally commenced by the real party in interest ) The Federal Rules do not set out a specific procedure for raising a Rule 17(a] objection but courts have noted that it should be made in a timely manner such as in an answer or responsive pleading Forza Techs, LLC v Premier Research Labs LP No 12 CV 7905, 2013 U S Dist LEXIS 171753 *5 (N D ill Dec 5 2013} {citing In re Signal Int] LLC 579 F3d at Hess 011 VI Corp v FIuor Dame] et al 2020 Vi Super 50 Case No 5X 05 CV 165 Memorandum Opinion Page 21 of 42

487)) Thus, the Court has nothing to look to for guidance However, since the real party in interest is a defense that must be raised at the earliest opportunity, the Court finds that John Zink and R&G timely raised it here by moving to dismiss for failure to state a claim But a real party in interest can substitute even after the statute of limitations has run as long as the matter was originally initiated during the limitations period Brooks, 58 VI at 428 [citation omitted] Thus, the Court must allow Hess "a reasonable time to ratify, join, or be substituted into the action V i R Civ P 17(a)(2) For this reason, the motions, challenging HOVlC's standing or that HOVIC is not the real party in interest, must be denied B Contribution / Indemnification as to Some District Court Cases 1131 Similar reasons compel the Court to deny the summary Judgment motions filed by Elliott as joined by CB! Services PlTGl, John Crane Alltite Tuthill Born inc and Raritan 11 Elliott argues that HOVIC 5 contribution (Count 1) and common law indemnification (Count ll] claims fail as a matter of law because "any potential claims against HOVIC by the 1997 1999 asbestos claimants were barred by the two year statute of limitations at the time of HOVIC s alleged March 2003 settlements [Def Elliott Co 5 Mot for Summ J & for Sanctions 14 filed July 27 2005 J 1132 HOVIC opposes Elliott s motion asserting that HOVIC was the real party in interest [in the District Court cases} (Pl s Mem in Opp n to Mot for Partial SummJ 5 filed July 13 2005) HOVlC further asserts that as the real party in interest [it] was required to expend great sums of money in defending and settling the[ District Court] actions Id at 7 Yet HOVIC also asserts that HOVIC was assigned the right of Amerada Hess Corporation to recover for monies paid on its behalf in settlement of the District Court lawsuits Id at 12 HOVIC then argues that [t]he fact that HOVIC was not a named defendant in the District Court actions cannot and should not preclude HOVIC from pursuing its right to contribution and indemnity' Id at 13 But HOVIC failed to cite any authority in support Other than the same list of District Court Plaintiffs and their case numbers which HOVIC attached to its complaint HOVIC failed to submit any materials in opposition

1‘ Elliott s motion was rendered moot as to itself and UOP who joined when the Court approved the stipulations between HOVIC and Raritan and HOVIC and Elliott to dismiss Counts I and ii Elliott s motion remains pending and is not moot as to those Defendants who joined and have not been dismissed See Der Wear v Hess Oil VI Corp 60 V1 91, 98 100 (Super Ct. 2014) Hess Oil VI Corp v FluorDamel et a] 2020 VI Super 50 Case No SX 05 CV 165 Memorandum Opinion Page 22 of42

TI33 Summary judgment is a drastic remedy and should be granted only when the pleadings the discovery and disclosure materials on file, and any affidavits Show that there is no genuine issue as to any material fact Alexander v Alexander, 65 V I 372 378 (2016) (brackets and citation omitted) As the movant, Elliott bears the initial burden of showing that there is no genuine issue of material fact Anderson v Am Fed'n of Teachers 67 VI 777, 788 (2017) Courts “must View the inferences to be drawn from the underlying facts in the light most favorable to the nonmoving party, and take the non moving party 3 conflicting allegations as true if supported by proper proofs Palzsoc v Pablete, 60 V I 607, 613 (2014) (citation omitted) But the nonmoving party may not rest on its allegations alone Anderson 67 V I at 789 (citation omitted) Instead, the non moving party must present actual evidence, amounting to more than a scintilla ' in support of its position Id (citation omitted) And even though entering judgment summarily is a drastic remedy, summary judgment may be entered against a party who fails to sufficiently Show the existence of an element essential to that party's case on which that party will bear the burden of proof at trial[} Palisoc 60 V l at 613 (citing Sealey Christian v Sunny Isle Shopping Ctr Inc 52 V I 410 419 (2009)) The reason why One of the principle purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses Sealey Christian 52 V! at 421 (brackets omitted) (quoting Celotex Corp v Catrett 477 U S 317 323 24 (1986)) 1134 In support of its motion, Elliott submitted the dockets of all the District Court cases as well as the Andrew complaint and the Carrion complaint These documents Show and HOVIC does not dispute that HOVIC was not named as a defendant in the District Court cases Hess was And to the extent that HOVIC has represented that Hess assigned its rights to HOVIC to seek contribution and indemnification, then Elliott s motion must be denied to allow Hess a reasonable time to ratify,

join or be substituted into the action V I R Civ P 17(a)(2) Although HOVIC failed to submit any proof to support its assertion that Hess assigned its rights to HOVIC, HOVIC does make the assertion and reiterated it during the March 19, 2020 argument The Court may not dismiss an action for failure to prosecute in the name of the real party in interest Id Thus Hess must have a chance first to ratify, join, or substitute

1135 But Elliott in reply correctly points out that HOVIC failed to show how HOVIC could possibly be the real party in interest in lawsuits filed in the District Court of the Virgin Islands by Hess on v1 Corp v Fluor Daniel er a] 2020 v1 Super so Case No SX 05 CV 16S Memorandum Opinion Page 23 of42

individuals who were residents and domiciliaries of the U S Virgin islands (Def Elliott Co 3 Reply to Opp n for Mot for Partial Summ I 7 filed July 27 2005) As Elliott explains the United States Court of Appeals for the Third Circuit had held that under Virgin Islands law a two year statute of limitations applies with respect to asbestos claims running from when a plaintiff knew or had reason to know of an asbestos related illness Id at 10 (discussing joseph) At the time when HOVlC settled with the District Court Plaintiffs, and when it filed this case that precedent was settled law it remains settled law insofar as joseph applied the discovery rule to asbestos claims Seejoseph, 867 F 2d at 182 n 8 ( '[n the asbestos litigation context, the discovery rule would suspend the statutory period until the plaintiff knows or reasonably should know (1) that he or she has been injured and (2) that the injury has been caused by another partys conduct [citation omitted]) The discovery rule continues to apply in the Virgin islands See Pichiern v Crowley 59 Vi 973 978 [2013} [citing/oseph 867 F 2d at 182) see also United Corp 64 Vi at 305 06 As the party opposing summary judgment, HOVlC had the burden to support its claims with more than its own ipse leIt it was a real party in interest because it was a real party in interest That is not enough HOViC did not submit an affidavit for example attesting that the District Court Plaintiffs were planning to file suit against HOVlC in the Territorial Court and to preclude that from happening HOVIC settled with them even though HOVIC was not named as a defendant HOVlC likewise did not submit an affidavit from the any of the defendants in the District Court cases [including its parent company) representing that it or they intended to file a complaint for contribution or indemnification against HOVIC in the Territorial Court or in another federal district court Lastly HOVlC did not request leave to conduct discovery in response to Elliott s motion Cf. Fed R Civ P 56(f) see Rivera Mercado v Gen Motors Corp 51 VI 307 311 (2009) (noting that a trial court typically grants a Rule 56“) continuance as a matter of course {citation omitted)) in short, HOVIC failed to carry its burden of proof Accordingly, the Court must grant summary judgment to C81 Services, PITGI john Crane, Alltite, Tuthill, and Born inc insofar as HOVlC and not HOVlC on behalf of Hess asserted its own claims for contribution and common law indemnification HOVIC had no potential exposure by 2003 when it settled with everyone except the Carrion and the Morgan Plaintiffs Otherwise Elliott s motion for partial summary judgment on Counts l and il as to Hess must be denied Hess 01] VI Corp v FIuor Dame] at al 2020 VI Super 50 Case No SX 05 CV 165 Memorandum Opinion Page 24 of42

C Untimely Filed Matron 1136 Strahman Valves also moves for summary judgment and asserts the same arguments as Elliott namely that HOVIC was not named as a defendant in the District Court cases and, therefore settlement with everyone but the Carmen and Morgan Plaintiffs was, essentially, gratuitous because HOVIC could not have been sued by anyone who filed suit in 1997 1998 or 1999 Therefore, the Court should grant summary judgment on Counts I and II contribution and common law indemnification But Strahman Valves argues further that the Court should also grant summary judgment on the same counts but as to the Carmen and Morgan Plaintiffs as well Strahman Valves asserts that the Settlement Agreement and the release the District Court Plaintiffs signed, which were produced in discovery in the Manbodh litigation show that HOVIC failed to extinguish anyone else 5 potential liability In support Strahman Valves attached a copy of the Settlement Agreement and the release signed by Mr and Mrs Abraham However Strahman Valves motion cannot be considered and must be stricken 1137 Strahman Valves filed its motion on January 11 2012 almost seven years after HOVIC commenced this action HOVIC filed proof of service on August 22 2005 showing that Strahman Valves was served on June 13 2005 through Richard Strahman at 3 Vreeland Road, Florham Park New Jersey by certified mail, return receipt requested Strahman Valves did not appear or answer HOVIC s complaint HOVIC did not move for entry of Strahman Valves default But then on January 11 2012, Strahman Valves filed the instant motion without explaining or moving to excuse the delay 1J38 In Martinez v Columbian Emeralds Inc 51 Vi 174 191 (2009) the Supreme Court of the Virgin Islands reversed a Superior Court decision granting a defendant s untimely motion to dismiss for failure to state a claim for relief The defendant had stipulated with the plaintiff for an extension of time to plead See 1d at 189 90 After the agreed extension passed, the defendant filed a motion for additional time which the trial court denied because the defendant failed to show excusable neglect See id at 190 As the Virgin Islands Supreme Court explained [a]t that posture of the case absent the granting of a proper motion by [the defendant] to plead out of time filed with the requisite showing of excusable neglect no further pleading was permitted and consequently, the filing of a pre answer motion to dismiss under Federal Rule of Civil Procedure 12(b](6) was not Hess 01'] VI Corp v FIuor Daniel et a! 2020 VI Super 50 Case No SX 05 CV 165 Memorandum Opinion Page 25 of42

permitted Id The Court reiterated that [t]he motion to dismiss was not properly before the trial court and should not have been considered The trial court should have considered [the plaintiff’s] motion to strike the motion to dismiss and its motion for entry of default before considering [the defendant 5] Rule 12(b) motion 1d at 191 1139 The Virgin islands Supreme Court reaffirmed Martinez ten years later in Montgomery v Virgin Grand Villas St john Owners Assocmtion, 2019 Vi 27 in that case the defendant, Virgin Grand, had filed a motion for summary judgment approximately a year after the motion deadline had passed see id at 11 21 without requesting leave to file the motion out of time or otherwise attempting to establish good cause or excusable neglect for the iate filing Id ( Thus rather than consider the motion on the merits the Superior Court should have denied the motion as untimely ) The Supreme Court vacated the Superior Court 5 decision on the untimely motion and remanded for the court to proceed to trial Id 1140 Binding precedent is clear Strahman Valves motion is not properly before the Court and cannot be considered Strahman Valves did not explain the seven year delay between service of process and the filing of its summary judgment motion Although no scheduling order is in place as yet, Superior Court Rule 32(a) which was in effect at the time, provided that "[t]he defendant may defend by entering his appearance before the clerk or by filing an answer with the clerk within 20 days after service of the summons and complaint That deadline may have stretched to 30 days since Strahman Valves was served outside the Territory See 5 V i C § 112(d) see also Edwards v Hess Oil VI Corp 69V] 136 141 42 [Super Ct 2017) (quoting Superior Court standard summons) But it cannot stretch to seven years Strahman Valves had to file a motion and show good cause to excuse that delay It did not Therefore its summary judgment motion is untimely and must be stricken D Failure to Obtain Insurance 1141 PITGI CBI Services and 3M move to dismiss Count lV breach of contract for failure to obtain insurance They claim the statute of limitations has run They note that even though HOVIC did not allege a specific date within Count IV HOVIC incorporated its allegations from Counts I through 111 into Count IV And Count ill alleged that [flrom 1965 through June 10 1982 and from November 29 1984 to October 30 1998 HOVIC purchase orders contained indemnification language[] Hess 01] VI Corp v Fluor Dame] et a1 2020 VI Super 50 Case No SX 05 CV 165 Memorandum Opinion Page 26 of42

(Compl 12 Ti 5) CBl Services and PlTGl note that HOVIC s allegations arise out of "innumerable alleged contracts purportedly evidenced by unspecified purchase orders (Def Pl'l‘Gl s Stmt of Undisputed Facts & Mem of Law in Supp of Mot to Dismiss 16, filed Aug 31 2005 (hereinafter 'PlTGl/CBi Mot 12)) Thus, logic dictates, they argue ’that any insurance would have to be procured, or a rider naming HOVIC as an additional insured obtained, prior to or at the time of the particular shipment in question " Id [T]he last possible date for breach of contract was October 30, 1998 Clearly the statute of limitations for HOVIC to bring any claims under Count Four expired before HOVIC filed its Complaint Id at 17 And CB1 Services and PlTGl contend that a breach of the duty to insure occurs at the time the responsible party fails to obtain said insurance (PITGl/CBi Mot 16 17 (citing Premium Cigars Int! Ltd v Farmer Butler Leavztt Ins Agency 96 P 3d 555 S69 70 (Ariz Ct App 2004) Slonigerv Niagara Mohawk Power Corp 761 N YS 2d 757 758 (App Div 2003))) 3M agrees "a cause of action based on breach of an agreement to procure insurance coverage accrues at the time that the contracting party failed to procure insurance (3M Mot S (brackets and ellipsis omitted] (quoting PoIat v Fifty CPW Tenants Corp 672 N Y 8 2d 56 57 58 (App Div 1998)) 1i42 HOVIC counters that [c]ourts in other jurisdictions have recognized the unfairness of mechanically applying a[n] accrual at breach rule and have instead applied a[n] accrual at discovery of breach rule to determine the accrual date for breach of contracts to procure insurance claims‘ [P] s Opp n to 3M 8 Mot to Dismiss Pl 5 Compl 4 filed Sept 2 2005 (citing TIG Ins Co v Via Net 178 SW 3d (Tex Ct App 2005) Gudenau & Co Inc v Sweeney Ins Inc 736 P 2d 763 (Alaska 1987)) (hereinafter 3M Opp n ) ) HOVIC also counters that its complaint was timely filed because [t]he duty to defend is not triggered when parties enter a purchase order agreement Rather the duty to defend arises when a party is made aware of its contractual obligation based upon the date when a claim was made (PlTGl/CBi Opp n 16 (citing Tyson v Litwm Panamerican Corp 22V] 168 (DVI 1986)] 1M3 In general, breach of contract claims are subject to a six year limitation period See 5 V l C § 31(3)(A] ( An action upon a contract or liability, express or implied ) But during the March 19

12 The motions filed by CB] Services and PlTGl are in large part identical with the same exhibits, and were filed by the same attorney on the same day Citations to one motion are interchangeable with and applicable to the other Hess 011 VI Corp v Fluor Daniel et a] 2020 VI Super 50 Case No 3X 05 CV 165 Memorandum Opinion Page 27 of42

2020 hearing CB] Services and PITGI argued that the four year limitation period in the Virgin Islands Uniform Commercial Code ( VIUCC’) applies since the agreement to obtain insurance was contained within purchase orders for the sale of goods See 11A VIC § 2 725(1) ( An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued ) So, the question is which limitation period applies But regardless of whether the four year statute of limitations applies because the agreement to obtain insurance is contained within a purchase order for the sale of goods or the six year statute of limitation applies because the agreement is separate from the goods purchased both limitation periods have passed long before 2005 when HOVIC filed this case, unless the claim does not accrue until the failure to obtain insurance is discovered The Defendants may be correct [T]he last possible date for breach of contract was October 30 1998 (Pl'I‘GI/CBI Mot 17 ) And that date would be earlier ifthe four year statute of limitation under the VIUCC applies HOVIC counters that the discovery rule should apply (See 3M Opp n 4 ( Here HOVIC did not discover 3M 3 breach until it made its claim )) 1(44 The Supreme Court of the Virgin Islands has not addressed whether the discovery rule applies to contract claims And when the Virgin Islands Supreme Court has not spoken, courts must employ[] a Banks analysis to determine Virgin Islands common law Alleyne v Diageo USVI Inc 63 VI 384 405 n 6 (Super Ct 2015) (citing Banks 1/ InthentaI & Leasmg Corp 55 VI 967 (2011)) A Banks analysis requires consider(ing] three non dispositive factors to determine Virgin Islands common law (1) whether any Virgin Islands courts have previously adopted a particular rule, (2) the position taken by a majority of courts from other jurisdictions, and (3) most importantly, which approach represents the soundest rule for the Virgin Islands Id (quoting Gov t ofthe V] v Connor 60 VI 597 600 (2014) (per curiam)) 1145 Regarding the first factor the majority of Virgin Islands courts have rejected applying the discovery rule to contract claims First, if the VIUCC applies the Court may be prohibited from applying the discovery rule because the VIUCC provides that (a) cause of action accrues when the breach occurs, regardless of the aggrieved party 3 lack of knowledge of the breach " 11A V I C § 2 725(2) Based on this language, Virgin Islands courts have concluded that the discovery rule does not apply to breach of contract claims arising out of the sale of goods See Gerald v RI Reynolds Tobacco Co 67 VI 441, 462 (Super Ct 2017) ("[T]he discovery rule cannot be used to toll the four Hess Oil VI Corp v FluorDamel et a] 2020 VI Super 50 Case No 5X 05 CV 165 Memorandum Opinion Page 28 of42

year statute of limitations under 11A V I C § 2 725(4) D Fombrun v Controlled Concrete Prods, 21 VI 578 582 83 (Terr Ct 1985) (same) see also MRL Development] LLC v Whitecap Investment Corp 64 VI 724 738 (3d Cir 2016) ( [W]e find that the discovery rule does not apply to contract claims covered by the Virgin Islands U C C ) One Superior Court judge assumed, without deciding, that the discovery rule could apply to contract claims See United Corp v Hamed Case No ST 13 CV 101 2014 VI LEXIS 132 *8 9 (VI Super Ct Sept 2 2014) revdon othergrounds and remanded 64 VI 297 And another Superior Court judge concluded based on the reversal in Horned, that the discovery rule does apply to contract claims because contract claims were at issue in Homed See Tutu Park Ltd v Harthman Leasmgl LLLP Case No ST 14 CV 456 2016 VI LEXIS 159 *23 (VI Super Ct Sept 27 2016) [discussing Hamed and noting that the Supreme Court had observed that whether the discovery rule tolled the statute of limitations on the plaintiff{]s claims (which included a breach of contract claim) depended heavily on factual development of the record and necessarily was not fit for disposition on the pleadings ] See also cg Charleswell v Chase Manhattan Bank NA Civil No 01 119 2009 U S Dist LEXIS 54519 *34 37 (DVI June 22 2009] (applying discovery rule to breach of insurance contract] The Virgin Islands Supreme Court has noted that the discovery rule could apply to contract claims Anthony v FirstBank VI 58 VI 224, 230 n 8 (2013] But the question was not addressed because the issue was waived See id 1146 Regarding the second factor, jurisdictions are divided on extending the discovery rule to contract claims Many retain the general rule that the statute of limitations starts to run at the time of the breach, and that the plaintiff‘s ignorance as to the existence of a cause of action is irrelevant Bauman v Day 892 P 2d 817 827 (Alaska 1995] (collecting cases] accord Peck v Donovan, 565 F App x 66 70 (3d Cir 2012) (applying New Jersey law) see also Penn v lstS Ins Servs Inc 324 F Supp 3d 703 709 (E D Va 2018) (applying Virginia law) ( [N]umerous courts have taken the View that an action for failure to procure insurance accrues when a breach of the duty to procure insurance occurs, such as when a defective policy is placed, not when a payout under the intended policy would have vested ) In fact one case HOVIC relied on T[G Insurance Company, was reversed on this very point of law See TIC Ins Co 178 SW3d at 17 (assuming without deciding that discovery rule applies to contact claims) reversed by Wu Net v TIC Ins Co , 211 S W 3d 310, 315 (Tex 2006) (per curiam) ('Some contract breaches may be inherently undiscoverable and Hess 01'] VI Corp v FIuor Dame! et a! 2020 VI Super 50 Case No 5X 05 CV 165 Memorandum Opinion Page 29 of42

objectively verifiable But those cases should be rare as diligent contracting parties should generally discover any breach during the relatively long four year limitations period provided for such claims ) Via Net involved a claim for breach of contract for failure to name as an additional insured "in June 1997 a Via Net employee named Guy Wright was injured when Safety Lights employees allegedly dropped a 3000 pound steel plate on his hand He sued three weeks later Via Net 211 S W 3d at 312 Via Net was a vendor of Safety Lights See id Safety Lights had taken the position the year before that that it would no longer buy from [its vendors] unless it was added as an additional insured under their commercial general liability policies Id Via Net agreed and Safety Lights received a certificate of insurance in February 1997 listing Safety Lights as 'holder and stating that holder is added as additional insured re General Liability' Id But the certificate included a disclaimer that no rights were conferred by it and in fact Via Net 5 policy with Lumbermens Mutual Casualty Company did not provide for additional insured coverage and no endorsement adding [Safety Lights] as an additional insured was ever issued' Id When Safety Lights tendered the defense ofthe Wright lawsuit to Via Net. the insurance company, Lumbermens, denied the request Safety Lights settled with Wright and then sued in federal court for breach of contract and misrepresentation, which was dismissed because the insurance policy did not provide for additional coverage See 1d at 312 [citing TIC Ins Co v Sedngckjames of Washington, 184 F Supp 2d 591 598 604 (S D Tex 2001]) Safety Lights then sued Via Net and Lumbermens in state court for breach of contract for failure to name it as an additional insured The trial court granted summary judgment on statute of limitations grounds The court of appeals reversed finding the discovery rule could defer accrual until Safety Lights received Lumbermens' denial Id 1147 On appeal the Supreme Court of Texas reversed the Court of Appeals for the First District of Texas The Texas Supreme Court acknowledged that the accrual of some causes of action may be deferred if the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable Id at 313 (citation omitted] But the court also acknowledged that [i]t is well settled law that a breach of contract claim accrues when the contract is breached Id at 314 (citation omitted] And [c]ontracting parties are generally not fiduciaries Thus, due diligence requires that each protect its own interests Id (citation omitted) in that context, [d]ue diligence may include asking a contract partner for information needed to verify contractual performance Hess 011 VI Corp v FIuor DanieI et a] 2020 VI Super 50 Case No SX 05 CV 165 Memorandum Opinion Page 30 of42

the court reasoned and [i]f a contracting party responds to such a request with false information, accrual may be delayed for fraudulent concealment Id [citations omitted] But failing to even ask for such information is not due diligence Id 1148 Other courts generally agree Illinois, for example, treats negligent failure to procure insurance as a tort arising out of a contract, [thus ] 'the cause of action ordinarily accrues at the time of the breach of contract, not when a party sustains damages Am Fam Mut Ins Co v Krop, 120 N E 3d 982, 991 (Ill 2018) Another case HOVlC relies on,]] Gumberg Companyv jams Servzces Inc, 847 So 2d 1048 (Fla Ct App 2003) [per curlam) actually rejects applying the discovery rule In that case the Court of Appeal of Florida explained that a breach of contract claim requires (1) a valid contract, (2) a material breach and (3) damages Id at 1049 {citation omitted) Gumberg had entered into a contract with janis to remodel a food court at a mall See 1d An employee ofjanis was injured and sued Gumberg in 1994, Gumberg filed a third party complaint against janis for contribution, contractual and common law indemnification The contribution and common law indemnification claims were dismissed leaving only the contractual indemnification claim Gumberg settled with the employee in 2001, and moved to amend its third party complaint to add, Inter aha a claim against Janis for breach ofcontract for failure to obtain insurance See Id The trial court denied the motion to amend Gumberg then filed a new case against Janis and Janis insurance company Seven years had passed since the employee was injured in 1994 The trial court dismissed the new complaint finding that the statute of limitations had run The appellate court affirmed in part, agreeing that even if Janis breached the contract by failing to obtain liability insurance at the time Green was injured in june of 1994 all the elements for a cause of action for breach of contract existed ' Id at 1050 1149 But not all courts reject the discovery rule for contract claims As the Supreme Court of Tennessee explained Courts in other jurisdictions are split on whether the discovery rule can apply in breach of contract actions Some decline to apply the discovery rule to breach of contract actions under any circumstances Others take the opposite approach, applying the general discovery rule in breach of contract cases in the same way it is applied in torts and other types of actions Still other courts take a third path, they apply the discovery rule in breach of contract cases only in situations where the breach is inherently undiscoverable, 'inherently unknowable or difficult to detect Even in those cases, there is no uniform description of the terms Hess 011V] Corp v Fluor Daniel er a] 2020 VI Super 50 Case No SX 05 CV 165 Memorandum Opinion Page 31 of42

Indzvzdual Healthcare Speczahsts, Inc v BlueCross BlueShield of Tenn Inc, 566 S W 3d 671, 711 12 [Tenn 2019) [footnotes omitted) Although the Tennessee Supreme Court noted that it had not weighed in on the question see 1d at 711 the court nonetheless declined to apply the discovery rule on the facts presented The breach at issue arises from a commercial contract between two sophisticated business entities, each expected to use due diligence to protect its own interests ‘Due diligence may include asking a contract partner for information needed to verify contractual performance Id at 714 [quoting Via Net 211 S W 3d at 314)) 150 Alaska applies the discovery rule to contract claims See Gudenau & Co Inc, 736 P 2d at 766 68 So does South Carolina see Maher v Tiete Corp 500 SE 2d 204 207 (SC Ct App 1998) ( Pursuant to the discovery rule a breach of contract action accrues not on the date of the breach, but rather on the date the aggrieved party either discovered the breach or could or should have discovered the breach through the exercise of reasonable diligence ), and Arizona See Gust

Rosenfeld & Henderson v Prudential Ins Co ofAm 898 P 2d 964, 968 (Ariz 1995) (’ In any event we believe that Division Two properly applied the discovery rule to the breach of contract claims in Matuszk and HSL Linda Gardens, and to the extent that Gem! Lawter suggests that the discovery rule cannot apply in breach of contract actions we disapprove it ) As the Supreme Court of Arizona explained, the important inquiry in applying the discovery rule is whether the plaintiff's injury or the conduct causing the injury is difficult for plaintiff to detect not whether the action sounds in contract or in tort Id 1i51 Clearly, jurisdictions are divided Having considered the different approaches, this Court holds that the discovery rule applies to contract claims The Virgin Islands Supreme Court has acknowledged that the statute of limitations on a cause of action begins to run from the date the cause of action accrued which ordinarily is the date upon occurrence of the essential facts that give rise to that cause of action Vanterpool v Gov t of the VI 63 VI 563 594 n 19 (2015) (quoting Anthony v FirstBank VI 58 VI 224 230 (2013)) And the Court cited persuasive precedent from other jurisdictions recognizing that contract claims do not accrue until there is a refusal to pay See Id (collecting cases) This Court believes that the Supreme Court would follow Arizona and recognize that the inquiry is not whether the action sounds in tort of contract Hess Oil V1 Corp v Fluor Daniel et a] 2020 VI Super 50 Case No 8X 05 CV 165 Memorandum Opinion Page 32 of42

1!52 That said, [c]ontracting parties are generally not fiduciaries [and] due diligence requires that each protect its own interests ' V10 Net, 178 S W3d at 314 (citations omitted) And once customers have the opportunity to read their insurance policy and can reasonably be expected to understand its terms the cause of action for negligent failure to procure insurance accrues as soon as the customers receive the policy Krop 120 N E 3d at 984 Here, HOVIC (or Hess if Hess is the real party in interest) was the insured ’Under the discovery rule. the focus is not on the plaintiff‘s actual knowledge, but rather whether the knowledge was known or through the exercise of diligence knowable to the plaintiff United Corp , 64 VI at 305 (citation omitted) Even when the discovery rule is applied, HOVIC (or Hess) could have determined at some point [firom 1965 through June 10 1982 and from November 29 1984 to October 30 1998 [Comp] 12 1] 5) that CB1 Services PlTGl, 3M Tuthill Born Inc, Elliott, and Raritan did not provide the certificates of insurance they purportedly agreed to by accepting HOVlC 3 purchase order 1153 An agreement to procure insurance is a contract See Goodyear Tire & Rubber Co v j M Tu]! Metals Co, 629 So 2d 633 639 [Ala 1993) ( A contractual obligation to indemnify is distinct from a contractual obligation to procure insurance ) Kinney v G W Llsk Co , 556 N E 2d 1090 1092 (N Y 1990) ( An agreement to procure insurance is not an agreement to indemnify or hold harmless and the distinction between the two is well recognized ), 30186 Cascade Corp v Mam Erbauer, Inc, 620 A 2d 280, 281 82 (Me 1993) ( An agreement to obtain insurance is not an agreement ofinsurance a person promising to obtain insurance does not by that promise become an insurer although he may assume the liabilities of one if he breaches the agreement (quoting Zettel v Paschen Contractors Inc 427 N E 2d 189 191 (ill App Ct 1981)) see also Audubon Indem Co v Custom Site Prep Inc 358 S W 3d 309 321 (Tex App 2011) (reversing summary judgment on breach of contract claim for failure to obtain insurance) 'A failure by the promisor to procure insurance for the benefit of the promisee, pursuant to an insurance procurement provision, constitutes a breach ofcontract by the promisor Roffi v Metro North CommuterR R 98 Civ 8713 (THK) 2001 U S Dist LEXIS 20265 *24 (S D N Y Dec 5 2001) Thus the Court finds that the six year statute of limitations applies here 13

13 The question which statute of limitations applies is generally a question oflaw Cf Steadfast Ins Co v Greenwrch Ins Co 922 N W 2d 71, 77 (Wis 2019] ( Determining which statute of limitations applies to contract issues involves a question of law ) accord Smith v State 282 P 3d 300. 303 (Alaska 2012) ( ‘A trial court's determination about Hess 011 VI Corp v Fluor Daniel er a] 2020 VI Super 50 Case No 8X 05 CV 165 Memorandum Opinion Page 33 of 42

1154 Assuming the truth of HOVIC s allegations as the Court must on a motion to dismiss CB] Services, PITGI, and 3M (as well as Tuthill Born Inc Elliott, and Raritan who joined the motions) agreed to furnish Certificates of Insurance [flrom 1965 through June 10, 1982, and from November 29 1984 to October 30 1998 (Compl p 12 13 1] 5 see id at 15 1] 1 ) Taking HOVIC s allegations as true CBl Services, PITGI 3M Tuthill, Born Inc, Elliott, and Raritan all breached their

agreement to obtain insurance But even when applying the discovery rule and even when viewing the facts in the light most favorable to the plaintiffs, the Court must also find that HOVIC (or Hess) knew or should have known within six years after July 1, 1997, when the first District Court lawsuit, Andrew et a! v Amerada Hess Corporation et a! was filed or by luly 1 2003 that 3M, PITGI, and CBI Services had failed to procure insurance The Court cannot agree with HOVIC that the accrual date on a claim for breach of an agreement to obtain insurance begins when the underlying claims are settled That conclusion would obliterate the statute of limitations In fact a strong argument could be made that HOVIC knew or should have known within six years after each purchase order

which statute of limitations applies is a question of law (citation omitted)) But cf. Syed v Hercules Inc 214 F 3d 155 159 n 2 (3d Cir 2000) ( We exercise plenary review over the District Court's choice of the applicable statute of limitations ) But failure to raise the statute of limitations, which is an affirmative defense, at the earliest opportunity results in waiver Rennie v Hess 01] VI Corp 62 VI 529 S36 (2015) ( [l]t is well established that the statute of limitations is an affirmative defense that must be specifically pleaded at the first opportunity or else is waived (collecting authorities) The Defendants did not raise the VlUCC four year statute oflimltations until the March 19 2020 hearing (See PITCH/CB} Mot 7 (citing S V I C § 31(3)(A)) see 3M Mot 3 (same) ) This constitutes wavier Moreover whether an indemnification clause within a purchase order for goods should be considered separate from or incorporated into a sales contract is unanswered in the case law Cf. Titameum Metals Corp v Elkem Mgmt 87 F Supp 2d 429 431 (W D Pa 1998) ( The question then is whether the tender of delivery rule applicable generally in UCC actions applies to this claim for indemnity There is a split of authority on this issue (footnote omitted)) Some courts note that indemnification is separate from the goods sold See id at 431 32, see also Travelers Indem Co v Dammann & Co 592 F Supp 2d 752 767 (D N l 2008) Others assumed without deciding that the UCC four year statute oflimitations applies Cf Mullznax v Bepex Corp Nos 89 2029 89 2158 1990 U 5 App LEXIS *1 n 1 (4th Cir Nov 9 1990) (per curiam) ( We assume without deciding, that the contract should be deemed to include the indemnification clause Stouffer argues that under UCC 2 207 the indemnification clause was never part of the sales contract Given our disposition of the case, we find it unnecessary to decide this question ") Resolving the question whether the four year UCC statute of limitations would apply or the general six year statute of limitations is further complicated here because HOVIC is not only suing for contractual indemnification but also for breach of the agreement to obtain insurance to cover the potential need for indemnification Although the Defendants timely raised the statute of limitations, they asserted that the six year statute of limitations governed Waiting approximately fifteen years to raise the four year VlUCC statute of limitations constitutes waiver Moreover HOVIC in its complaint, alleges (without specification, however} that the Defendants sold marketed, distributed, installed, serviced and/or maintained asbestos containing products at the HOVIC refinery on St Croix (Compl p 12 112w) ) Sales contracts would be covered by the VlUCC but services contracts might not Cf. Gulash v Sty/larama Inc 364 A 2d 1221 1223 (Conn Super Ct 1975) ( It is clear that where the contract is basically one for the rendition of services, and the materials are only incidental to the main purpose of the agreement, the contract is not one for the sale of goods under the UCC ) Again which statute of limitations applies and why was for the Defendants to argue Hess 011V! Corp v Fluor Daniel et a] 2020 VI Super 50 Case No SX 05 CV 165 Memorandum Opinion Page 34 of42

was issued and accepted that it never received the certificates of insurance that its suppliers had agreed to provide Accord Penn, 324 F Supp 3d at 711 (“[A] claim accrues in the failure to procure insurance setting when a fixed violation of the duty to obtain insurance occurs, such as when a deficient insurance policy is issued That is because only a slight injury as a result of the breach is necessary to trigger accrual ) 1155 Again taking HOVIC s allegations as true the purchase orders between CBI Services PiTGI 3M, Tuthill, Born Inc, Elliott and Raritan and HOVIC (or Hess) were contracts CB] Services PITGI,

3M Tuthill Born Inc Elliott, and Raritan expressly agreed to obtain insurance in support of their agreement to indemnify, hold harmless and defend HOVIC ” [Comp] [3 16, 1} 2) CBl Services PITGI, 3M, Tuthill, Born Inc, Elliott and Raritan breached this agreements But the statute of

limitations has run on claims for failure to obtain insurance arising out of the Andrew, Crichlow, Abraham johnhope, Moreta Felix, Frederick, Smith jacob Moore Williams Caminero, and Cabreja lawsuits Assuming HOVIC 5 claim arose on the date each lawsuit was filed, then HOVIC should have known within six years thereafter that CB1 Services, PITGI 3M, Tuthill, Born Inc Elliott and Raritan

had failed to obtain insurance Raritan and 3M were Hess co defendants in every District Court case This is an instance where the complaint (and the documents incorporated by reference) '50 clearly reveals the existence of a defense that judgment on the pleadings is possible[] United Corp, 64 V l at 306 (citation omitted) As for the other District Court cases, the Court cannot conclude that the statute of limitations has run because those cases, Caraballo, and Carrion and Morgan, were filed

in 1999 and 2001, respectively, and six years had not passed by March 29, 2005, the date when HOVIC filed its complaint 1156 However since discovery has been stayed, and since HOVIC’s claims must be severed as explained below the Court finds that the most just, speedy, and inexpensive way to proceed at this point is grant the motions in part but stay the dismissal of Count IV and certify by separate order the following questions of law to the Supreme Court of the Virgin Islands (1) does the discovery rule apply to contract claims, and (2) when does a breach of contract claim for failure to obtain insurance accrue? As the case law demonstrates, there are reasonable grounds for a difference of opinion on these questions And the questions are controlling If the Supreme Court concludes generally that contract claims are not subject to the discovery rule or that a claim for breach of an Hess 011 VI Corp v Fluor Daniel et a] 2020 V1 Super 50 Case No 5X 05 CV 165 Memorandum Opinion Page 35 of42

agreement to obtain insurance in particular accrues within the statute of limitations, then Count [V

may have to be dismissed outright for all District Court cases and not just in part Moreover, resolution of these questions may materially advance the ultimate termination of this litigation as well as other litigation Cf Klinghofl‘erv S N C Achille Laura Ed Altn Gestione Motonave Achille Laura In Ammmistrazzone Straora'mana 921 F 2d 21 24 (2d Cir 1990) ( [[]n exercising our discretion under the statute we may properly consider the system wide costs and benefits of allowing the appeal in other words the impact that an appeal will have on other cases is a factor that we may take into account in deciding whether to accept an appeal that has been properly certified by the district court ) E Contribution / Indemnification as to all District Court Cases 157 CB! Services and PlTGl also move to dismiss HOVICs claims for contribution [Count 1) common law indemnification (Count ll) and contractual indemnification (Count ill) in support, they attached copies of the Settlement Agreement and Mr and Mrs Abraham 5 release They argue that HOVIC failed to discharge their potential liability and therefore the right to seek contribution or indemnification does not exist (See PITGl/CBI Mot 5 ( The right of contribution exists only in favor of a tortfeasor who has discharged the entire claim for the harm by paying more than his equitable share of the common liability (ellipsis omitted) (quoting Restatement (Second) of Torts §886A(2) (1979)) see id at 6 ( The same equitable principle applies to HOVIC 5 claims for common law indemnification ) john Crane, Tuthill Alltite and Born lnc joined the motions filed by CB! Services and PITGI 1158 To the extent the motions relate to HOVIC 5 claims rather than Hess claims, the Courts

discussion above concerning Elliott s motion resolves CBI Services and PlTiG s motions except for the Carrion and Morgan Plaintiffs Regarding contribution and common law indemnification as to the Carrion and Morgan Plaintiffs, to determine whether HOVlC (or Hess) did or did not extinguish anyone 5 liability, the Court would have to look outside the pleadings to make that determination Based on the documents CBl Services and PlTGI attached, the Court would also have to convert their motions to motions for summary judgment See V l R Civ P 12(d) CBI Services and PlTGl disagree (Cf. PlTGI/CBI Mot 8 ( This Court may rely upon the settlement agreement and release attached hereto to determine the instant motion without converting [it] to a motion for summary judgment Hess 011V] Corp v Fluor Daniel et a] 2020 VI Super 50 Case No SX 05 CV 165 Memorandum Opinion Page 36 of42

[bold font omitted)) ) Although the Court concluded above that HOVIC had incorporated the District Court cases into its complaint by reference, and therefore the Defendants could refer the Court to the complaints the District Court Plaintiffs filed to Show that HOVIC was not named and even though HOVIC did reference the Settlement Agreement and the releases with the District Court Plaintiffs in its complaint the Court cannot find here that HOVIC further incorporated the terms of approximately 150 different releases executed by the District Court Plaintiffs into its complaint The incorporation by reference doctrine does not extend that far Moreover CBI Services and PlTGl only attached the release signed by Oliver and Alexandrine Abraham The Court cannot assume that the release all other District Court Plaintiffs signed was identical Thus, the Court finds that it would have to convert the motion to one for summary judgment And, in this instance the Court cannot find that HOVIC (or Hess) had notice Cf. Stanley 2020 Vi Super 47 at 1W 15 16 Therefore the motions must be denied as to Counts l and II as to the Carrion and Morgan Plaintiffs as to HOVIC And the motion must be denied without prejudice as to Hess See V] R Civ P 17(a)[2) 1159 Regarding contractual indemnification, CBI Services and PlTGl argue that the Court should also dismiss Count Ill because HOVIC failed to plead all the essential elements of a breach of contract claim (See PlTGl/CBI Mot 12 ( First HOVIC does not allege the existence ofany particular contract Rather HOVIC contends that over a period of 33 years, it and PlTGI among the other numerous named defendants must have entered into innumerable and undefined shipping/ transfer agreements based on HOVIC s usual business practices )) Further, since HOVIC was not named as a defendant in the District Court cases CBI Services and PlTGl contend that HOVIC fails to state a claim for breach of the duty to defend But rather than argue that HOVIC did not have to defend the District Court cases because it was not named as a defendant PITGI and CB] Services instead argue that the statute of limitations has run They contrast language HOVIC included in its complaint from its standard purchase orders namely the language in effect from 1965 through june 10 1982 and November 29 1984 through October 30, 1998, from language in effect between june 10 1982 and

November 29, 1984, and assert that the duty to defend, if any 'could only have existed from june 10, 1982 until November 29, 1984 Id at 14 CBI Services and PITGI s arguments are rejected 1160 In ruling on a motion to dismiss for failure to state a claim for relief, courts ’assume all reasonable factual allegations in the complaint as true and draw all fair inferences from such Hess 011 VI Corp v Fluor Daniel at a] 2020 VI Super 50 Case No SX 05 CV 165 Memorandum Opinion Page 37 of42

allegations Arno v Hess Corp , 2019 Vi Super 140 1i 37 (quoting In re Kelvm Manbodh Asbestos Ling Series, 47 V l 375 380 (Super Ct 2006)) The basic purpose of a motion to dismiss is to test the legal sufficiency of the complaint to state an actionable claim not to test the truth of the facts alleged in the complaint Id (ellipsis and citation omitted) HOVIC clearly stated a breach of contract claim in its complaint, HOVIC alleges that its purchase orders were valid and binding contract to which the defendants were parties (Compl p 12, 1i 4) HOVIC further alleges that its purchase orders contained indemnification language(] Id 1] 5 Although CB] Services and PlTlG are correct, the word defend only appears in the language HOVIC claims was in effect from 1982 to 1984, the Court cannot resolve this dispute on a pre answer motion to dismiss The language in effect during all other times relevant here included a duty to indemnify Some courts have observed that the duty to indemnify implies a duty to defend Cf Hennessy v Robinson, 985 F Supp 283, 287 (N D N Y 1997) ( [TJhis Resolution provides for indemnification which, of course includes the duty to defend because duty to indemnify includes the duty to defend as well ) Other courts have held that the duty to defend is broader than the duty to indemnify Hecla Mining Co v N H Ins Co 811 P 2d 1083 1089 (Colo 1991) [f the language of the contract is ambiguous determining the meaning of the contract becomes a question of fact See Phillip v Marsh Monsanto 66 VI 612 624 (2017) Factual disputes cannot be decided on a pre answer motion to dismiss for failure to state a claim for relief CBI Services and PlTGl s motions, as joined by others must be denied F MlSjOinder 1J61 Lastly John Zink moves to dismiss HOVIC s complaint because HOVlC should have filed a separate civil complaint in the case of each of the underlying federal court plaintiffs in which HOVIC believes that it is entitled to relief (John Zink Mot 4) John Zink cites to the directive of the Court (Cabret, P J ) at a status conference held on May 4 2005 in Manbodh in which [t]he Court had ruled from the bench that parties wishing to recover the settlement monies should follow the same procedures that were followed in the previous asbestos cases In re Kelvm Manbodh Asbestos Ling Series 69 V l at 431 (brackets and citation omitted) However as the Court (Willocks J) noted in Manbodh, referring to this case the May 4, 2005 hearing was held in Manbodh not in Fluor The clerk did not call the Fluor case Counsel for Fluor did not appear Hence the ruling from the bench may Hess 011V! Corp v Fluor Daniel et a] 2020 VI Super 50 Case No SX 05 CV 16S Memorandum Opinion Page 38 of42

not have been an order strictly speaking, as to FIuor [A]nd most importantly, Fluor had already been filed more than a month before the May 4, 2005 hearing occurred Id at 431 32 (footnotes omitted) Although oral orders are enforceable pending reduction to writing Id at 432 no order issued in Fluor to that effect [And] more importantly, objections had been raised during the May 4, 2005 hearing against having HOVIC file individual complaints Id 1f62 While john Zink and other Defendants argued that the May 4 2005 bench ruling is controlling this Courtis not convinced Butcfi id at 432 n 20 Evenifitwere controlling the rul[ing] that parties wishing to recover the settlement monies should follow the same procedures that were followed in the previous asbestos cases, In re Kelvm Manbodh Asbestos Lit Series, 2005 V l LEXIS 40 at *4 n 1, was an interlocutory order Once this case was reassigned to the undersigned judicial officer by the Presiding judge, the reassignment brings with it the discretion to revise any interlocutory order at any time prior to entry of a final judgment Island Tile & Marble LLC v Bertrand 57V[ 596 609 (2012) [citation omitted) See also In re Estate ofGeorge 59Vl 913 920 21 (2013) (one judge replaces another when cases are reassigned and may reexamine prior interlocutory orders) Since this Court can reexamine the prior judge s interlocutory orders, Estate ofGeorge 59 Vi at 920, the Court will modify the May 4 2005 bench ruling, even if it could be considered a decision rendered in this case 1163 There is no question here that lohn Zink is correct complexity and confusion will certainly result from the[] 149 separate claims for relief being presented under a single caption which purports to address the allegations and underlying facts and circumstances in every one of the 149 federal court settlements (John Zink Mot 4) But dismissal of claims or parties has never been sanctioned in the Virgin islands for misjoinder See Grant v HOVENSA LLC 70 VI 639, 648 (Super Ct 2019) ( The remedy for misjoinder is not dismissal but severance (citation omitted)) Abednego v St Cram Alumina LLC 63 VI 153 193 (Super Ct 2015) ( Misjoinder is simply not grounds for dismissal ) Homer v Lorzllard 6 V I 558, 575 (Mun Ct 1967) (“Misjoinder of parties is not ground for dismissal of an action (citation omitted)) Instead the Court must sever the claims to be refiled individually The District Court Plaintiffs did not sue the same companies The Andrew Plaintiffs and the Carrion Plaintiffs both sued Dresser for example which HOVlC did not name in this action By contrast, the Andrew Plaintiffs sued Owens Corning Fiberglass Corporation, but the Carrion Plaintiffs did not And the Carrion Plaintiffs sued Mobil Oil Company Hess 011 VI Corp v Fluor Dame! et a! 2020 VI Super 50 Case No 8X 05 CV 165 Memorandum Opinion Page 39 of42

but the Andrew Plaintiffs did not Both sued 3M, Raritan, and Elliott among others, who were Hess

co defendants in the District Court cases Thus the defenses the Defendants could raise here may differ depending on the underlying case But because Hess must be given a chance to ratify, join, or be substituted into the action ' V l R Civ P 17(a)(2], the complaint does not give the Defendants sufficient notice of what defenses they may have as to Hess For example, 3M and Raritan may assert that Hess should have crossclaimed against them in the District Court cases That defense would not be available against HOVIC 1} 64 Moreover the challenges the Defendants may assert may change if Hess substitutes into this action in place of HOVIC, all the arguments the Defendants raised regarding HOVIC s nonparty status in the District Court cases may be rendered moot By contrast, if Hess joins HOVIC then the Defendants may be able to renew their challenges to the viability of HOVIC 3 claims But none of these issues can be resolved nor can these cases proceed to trial with approximately 60 000 claims (double if there really are two plaintiffs here) asserted within a single complaint HOVIC, either individually, or individually and on behalf of Hess, asserted six claims for relief against approximately forty four defendants, sixty eight when their successor capacities are included Although LMC and the Martin Marietta Defendants were dismissed, which resolved Count Vi that still leaves five counts against more than thirty different companies Considering that claims of contribution and indemnification concern the underlying cases they arose out of it just is not possible to proceed with essentially 149 contribution claims and 149 indemnification claims against roughly 35 defendants in the same case Who was named as a defendant in each District Court case, whether that defendant crossclaimed against any other defendant, and how those claims were resolved are all germane to this case going forward 1165 HOVIC claims that it commenced this action to recover only those settlement monies paid to Asbestos Claimants from defendants collectively’ (Compl TIS) But it is not that straightforward 14 HOVIC (or Hess, or HOVIC and Hess) cannot recover the full amount that they paid to Mr and Mrs Abraham from each and every Defendant instead, contribution requires proof of each Defendant’s possible or potential liability to the injured party Each Defendant can only be

14 For example whether HOVlC's complaint also sought to recover monies paid to the wives of the District Court Plaintiff Workers is unclear The list of District Court Plaintiffs HOVIC attached to its complaint names only the men Hess on v1 Corp v FIuor Daniel et a1 2020 VI Super 50 Case No 5X 05 CV 16S Memorandum Opinion Page 40 of42

found liable to that extent and no further Cf Games v Brodhurst 394 F 2d 465 468 (3d Cir 1967) ( a system which taxes non settling tort feasors to the extent of their negligence, and no further is the more equitable ), see also 1d at 469 70 (noting that the rule in the Virgin Islands "impos[es] liability upon joint tort feasors in proportion to their comparative negligence ') Said another way contribution requires apportioning each Defendant’s potential or possible liability to the District Court Plaintiffs Accord 5 V l C § 1451(d) ("Where recovery is allowed against more than one defendant, the trier of fact shall apportion, in dollars and cents, the amount awarded against each defendant Liability of defendants to plaintiff shall be joint and several but, for contribution between defendants, each defendant shall be liable for that proportion of the verdict as the trier of fact has apportioned against such defendant ) By contrast, indemnification transfers all of HOVIC s (or Hess or HOVIC s and Hess) liability Cf EEOCv M G 01] Co 274 F Supp 3d 927 931 (D S D 2017) ( {Cjontribution transfers partial liability while indemnification transfer total liability ) accord Henthorne v Legacy Healthcare 764 N E 2d 751 756 [Ind Ct App 2002) [ Indemnity requires full reimbursement and transfers liability from one who has been compelled to pay damages to another who should bear the entire loss[} ' (quoting 41 Am Iur 2d Indemnity§ 1 at 348 [1995 ed )) But neither HOVIC nor Hess can transfer their entire liability to each and every Defendant if they carry their burdens of proof they may be made whole But HOVIC and Hess cannot make a profit on backs of the District Court Plaintiffs Whats more the ‘remedies of contribution and indemnity are mutually exclusive, with contribution prohibited where a party has a right to indemnity and vice versa Levy v HLI Operating Co 924 A 2d 210 221 (Del Ch 2007) (citation omitted) State Farm Fire & Gas Co v Bush Hog LLC 219 P 3d 1249 1252 (Mont 2009) ( Contribution and indemnity differ from each other in that contribution distributes loss among joint tortfeasors by requiring each to pay his or her proportionate share of the negligence that caused the plaintiff‘s injuries, whereas indemnity shifts the entire loss from the one who has been

required to pay it to the one who should bear the loss ) And HOVIC and Hess cannot recover under both common law indemnification and contractual indemnification from the same Defendant (If Holtv Walsh Grp 316 F Supp 3d 274 281 82 {D D C 2018) ( [M]any states have held that where an express written indemnification provision exists, the agreed upon terms of that provision and not principles of implied or equitable indemnification control the duties and respective liability of Hess Oil VI Corp v Fluor Daniel er a! 2020 VI Super 50 Case No SX 05 CV 165 Memorandum Opinion Page 41 0f4-2

the contracting parties (collecting cases)), accord In re Kelvm Manbodh Asbestos Litig Series, 47 VI 267, 289 (Super Ct 2005) ( A cause of action for contractual indemnification is similar to its common law incarnation except the former is limited to staying within the realm of rights predefined by a contract ) While HOVIC (and Hess) can plead contribution common law indemnification, and contractual indemnification in the alternative they cannot recover on all three claims from each Defendant if 66 Under these circumstances, the simplest solution is to sever the claims and order HOVIC to refile individually and pay the accompanying filing fee for each forthcoming complaint The operative complaint would have to be amended since HOVIC must allege that it is proceeding on behalf of Hess unless Hess elects to substitute in place of HOVIC If Hess elects to substitute then the complaint certainly must be amended And if Hess and HOVIC are asserting claims here, then that too requires an amendment ' Even in a notice pleading jurisdiction, a complaint must include a short and plain statement showing that each plaintiff is entitled to the relief demanded Arno 2019 V1 Super 140 at 11 48 (citation omitted) Additionally several Defendants have filed for bankruptcy in the fifteen years since this case was filed and may have to be dropped To streamline this case and avoid further delay, the Court will direct that each forthcoming complaint be limited to claims arising out of or relating to one District Court Plaintiff, name only those companies as defendants whom HOVIC (or Hess) contends would have been liable for that Plaintiffs and include as an attachment to its complaints, a copy of the complaint filed by that Plaintiff, as amended if relevant HOVIC {and Hess) may also reassert Count IV, notwithstanding the determination above that it must be dismissed but only insofar as a petition for permission to appeal is filed with the Supreme Court of the Virgin islands The Defendants may attach copies of other pleadings, ie, crossclaims counterclaims, etc, to their answers to the forthcoming complaints if such pleadings filed in the District Courts cases would be germane to their defense The Court will direct the Clerk 5 Office to open a master case to coordinate the forthcoming cases under the caption In re Oliver Abraham Federal Asbestos Litigation Series ll] CONCLUSION 1167 For the reasons stated above, the motions filed by John Zink and R&G to dismiss based on HOVIC s standing and the Superior Court’s subject matter jurisdiction will be denied HOVIC asserts Hess 0!] VI Corp v Fluor Daniel et a] 2020 Vi Super 50 Case No 8X 05 CV 165 Memorandum Opinion Page 4-2 of42

that Hess assigned its rights to HOVIC Hess must be given an opportunity to join ratify or substitute into this action before the complaint can be dismissed Therefore, all dispositive motions will be denied without prejudice as to Hess The Court will, however grant Elliott s motion for summary judgment as to HOVIC because HOVIC failed to carry its burden to Show that material facts still remain in dispute regarding HOVIC 5 claims for contribution and indemnification arising out of the District Court Plaintiffs who filed cases between 1997 and 1999 HOViC did not have any potential liability in 2003 because the statute of limitations had run by then The Court will also grant the motion filed by 3M, CBI Services and PITGI to dismiss HOVIC 5 claim for failure to obtain insurance

claim but will stay the dismissal for ten days to allow for the filing of a petition for permission to appeal certified questions of law to the Supreme Court of the Virgin Islands All other motions will be denied without prejudice, except that Strahman Valves motion for summary judgment must be stricken as not being properly before the Court Lastly, the Court will sever all claims and order HOVIC (individually, on behalf of Hess, or individually and on behalf of Hess) to refile one complaint per District Court Plaintiff joining claims for contribution and indemnification, and related contractual claims, arising from a settlement with 149 asbestos plaintiffs in sixteen different

lawsuits was improper Appropriate orders follow ’1 9 ’/

Date April 8 2020 z I I i LE, U I OY ATTEST judge of the Superior Court TAMARA CHARLES Clerk of the Court

By 45—4 Court Cle Dated 2‘ A? 3030