Horwitz & Company, Inc. and A St. Thomas, U.S. Virgin Islands Corporation, and Jeffrey Major v. Cowpet Bay West condominium Association, Inc., a St. Thomas U.S. Virgin Islands Condominium Association, and Fusco Group Partners, Inc. d/b/a WorldClaim Global Claims Management, a New York Limited Liability Corporation

• Court: Superior Court of The Virgin Islands
• Decided: January 25, 2024
• Docket: ST-2018-CV-612
• Status: Unpublished

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN

HORWITZ & COMPANY [NC a St Thomas ) U S Virgin Islands Corporation and JEFFREY ) MAJOR ) ) Plaintiffs ) CASE NO ST 18 CV 612 v ) ) COWPET BAY WEST CONDOMINIUM ) ACTION FOR BREACH OF ASSOCIATION [NC a St Thomas U S Virgin ) BREACH OF CONTRACT & Islands Condominium Association and ) INTENTIONAL INTERFERENCE FUSCO GROUP PARTNERS INC d/b/a ) WITH EXISTING CONTRACTUAL WORLDDCLAIM GLOBAL CLAIMS ) RELATIONS MANAGEMENT a New York Limited Liability ) Corporation, ) Cite as 2024 V l Sager 6U Defendants ) 1

MEMORANDUM OPINION AND ORDER

1|1 THIS MATTER is before the Court on Plaintiff Horwitz & Company, Inc ’3 ( Horwitz )

Motion to Amend the Complaint filed on February 25, 2019 Fusoo Group Partners, Inc d/b/a

WorldClaim Global Claims Management (“WorldClaim”) filed an opposition on March 28, 2019

Plaintiff's reply was filed on April 10, 2019 For the reasons stated herein, the Court will grant

Plaintiff‘s Motion to Amend the Complaint

1 FACTUAL BACKGROUND

12 This matter pertains to an agreement entered into between Cowpet Bay West Condominium

Association, Inc (‘Cowpet”) and Horwitz & Company, Inc (“Horwitz ) to provide insurance claim

adjustment services in the aftermath of Hurricanes Irma and Maria in September 2017 In the

agreement, Cowpet retained Horwitz to advise and assist in preparing and adjusting the insurance

claim arising from loss covered by perils associated with hurricane damage As compensation, the

agreement firmer provides for payment to Horwitz of ten percent (10° 0) of the amount paid or

agreed to be paid by insurance companies Horwitz claims that pursuant to its agreement with Horwuz & Company Inc v CoupetBay West Condominium Assocumon Inc et a! CM! No ST 2018 CV 00612 Memorandum Opinion & Order Page 2 of 9

Cowpet, it performed the services outlined in the contract, and through its efforts, the insurance

carrier agreed to issue to Cowpet an initial advance ofThree Hundred Thousand ($300,000 00) and

a second advance in the amount of One Million Two Hundred Thousand Dollars ($1,200,00 00)

However, Cowpet failed to pay for the services rendered ‘

'13 On January 20, 2018, Cowpet informed Horwitz that it had decided to tenninate any written

or verbal agreements with Horwitz effective January It'l, 2018, and retained WorldClaim to advise

and assist in insurance adjustment services On September 2i, 2018, Horwitz filed a complaint in

this Court alleging breach of contract against Cowpelt and intentional interference with existing

contractual relations against WorldClaim On February 25, 2019, Horwitz filed its motion to amend

the c0mpiaint to add Jeffery Major as Plaintiff and a third count to the complaint for unjust

enrichment/quantum Memit

ll LEGAL ANALYSIS 8; DISCUSSION

1|4 The procedural rule that governs the ability of a plaintiff to amend a complaint is V I R

Civ P 15 Rule 15(a)(l) provides that “[a] party may amend its pleading once as a matter of

course within (A) 21 days after serving it, or (B) if the pleading is one to which a responsive

pleading is required, 21 days after service of a responsive pleading or 2] days after service of a

motion under Rule 12(b) (e) or (f) whichever is earlier V I R CIV P l5(a)(l) Once the 2|

day period has expired, a party’s complaint may only be amended with the opposing party's written

consent or with permission from the court VI R CIV P 15(a)(2) It is well established that a

“court should freely give leave to amend a complaint when justice so requires ‘ VI R Civ P

15(a)(2) Bane Serwces Inc v Government of the Vtrgm Islands 7| VI 652, 666 (VI 2019)

1 In December 202i Horwitz, Jeffrey Major and Cowpet resolved their dispute and executed a stipulation of dismissal Upon receiving the stipulation of dismissal, the Court on December IS, 202 l, dismissed Homitz and the prospective plaintiff Jeffrey Major 5 claim against Cowpet with prejudice Horwuz & Company [m v Cowpet Bay West Condominium Association, Inc et a! CMINo ST 2018 CV 00612 Memorandum Opinion & Order Page 3 of 9

Dams v UHF Proyects Inc 74 V I 525 536 537 (V I 2021) Under Rule 15 a court may permit

a party to amend its pleading at any time, even after the close of discovery or during trial Daws, 74

VI at 538 However, granting or denying a motion to amend a complaint is “vested in the

discretion of the Superior Court ’ Anthony t lndep Ins Advtsors Inc , 56 VI 516, 534 (VI

2012)

15 A court may justifiably deny a party’s motion to amend a pleading and depart from the

settled paradigm that leave to amend should be freely given due to ‘ undue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party by virtue of allowance of the

amendment, and futility of the amendment ’ Baszc Serveces, ‘74 V l at 536 However, “prejudice to

the opposing party or the trial court is the most important factor in determining whether leave to

amend should be freely given " Dams, 74 V l at 537

16 Here, Horwitz seeks to amend its complaint to add Jeffrey Major as a plaintiff as he

“performed the work on the property, and according to Horwitz, Defendants are ‘ well aware of

Jeffrey Major 3 involvement in the project ” Homit/ claims they are entitled to recover either under

contract pn'nciples or the equitable doctrine of unjust enrichment/quantum memit Regarding the

unjust enrichment quantum memit claims, Horwitz claims that the Defendants have been enriched

by failing to pay the monies owed to Homitz and Major Horwitz argues that there is either a valid

written agreement or a verbal agreement and more significantly, they Horwitz and Majors

provided services to Cowpet ’

£7 WorldClaim’s primary argument in opposition to the amendment is futility WorldClaim

argues that the proposed amended complaint fails as there is no privity between Major and Cowpet,

I See Homitz's Motion to Amend filed on February 26 2019 and Reply filed on April 10 2019 HarwiIz & Company, Inc , v Cowper Bay Wes! Condominium, Association Inc et a! CM] No ST 2018 CV 00612 Memorandum Opinion &. Order Page 4 of 9

and the proposed complaint does not allege that Major was a party to the alleged contract or an

intended beneficiary WorldClaim further claims that the contract, attached as Exhibit A to the

Complaint, does not mention Major and the amendment contradicts the contract WorldClaim next

argues that the unjust enrichment quantum meruit claim must fail as Horwitz and Major are barred

from seeking equitable relief under the unclean hands doctrine in support of its contention that

Horwitz and Major have unclean hands, WorldClaim alleges that at the time Horwitz entered into

the contract with Cowpet, it was not licensed to provide public adjuster services in the Virgin

Islands, and therefore the contract is a nullity and Majors conduct runs afoul of the unclean hands

doctrine as he was acting as an agent for an unlicensed public adjuster in the Virgin Islands 3

18 An amendment is futile if it would not survive a motion to dismiss under Rule 12(b)(6) of

the Virgin Islands Rules of Civil Procedure Carson v Walker, 2019 V l LEXIS 152, *3, 2019 VI

SUPER 74U 2019 WL 8883542 at *2 3 (V I Super Ct May 21 2019) Because this is a notice

pleading jurisdiction, a plaintiff need only provide ‘a short and plain statement of the claim

showing that the pleader is entitled to relief" in order to survive a 12(b)(6) motion to dismiss

V I R Civ P 8(a)(2) Mills Williams v Mapp 67V] 574 585 (VI 2017)

119 Under the notice pleading standard in the Virgin Islands, Plaintiff's claim is not futile A

party is entitled to recovery under the equitable of principle quantum meruit or unjust enrichment

where “fairness dictates that the plaintiff receive compensation for services provided ” Vanterpool

1 Gov? ofthe Vlrgln Islands, 63 VI 563 592 (V1 2015) To assert a claim for unjust enrichment

or quantum meruit the plaintiff is required to plead “(1) that the defendant was ennched, (2) that

such enrichment was at the plaintiff‘s expense (3) that the defendant had appreciation or knowledge

’ Cowpet filed an opposition to Horwitz's motion to amend the complaint on March 21,2019, and on March 3, 2028, WorldClaim joined in Cowpet s opposition and also filed an opposition to the motion to amend Hamil: & Company, Inc v CowpelBay West Condominium Assocmuon Inc e! a! Cm] No ST 2018 CV 00612 Memorandum Opinion & Order Page 5 of 9

of the benefit, and (4) that the circumstances were such that in equity or good conscience the

defendant should return the money or property to the plaintiff” Walters v Walters, 60 VI 768,

779 780, (V I 2014) WorldClaim argues that the contract made no mention of Jeffrey Major, and

there is no privity of contract between Major and Cowpet Those contentions cannot defeat a

motion to amend a complaint to assert quantum meruit or unjust enrichment as it is precisely in

those instances where the existence of a written contract is disputed, but services have been

provided, or there is a quasi contract that a claim based on quantum meruit or unjust enrichment is

appropriate

110 The absence of Jeffrey Major’s name in the contract does not in and of itself make the

amendment futile Major claims that he signed the Retainer Agreement with Cowpet and entered an

agreement with Herbert Horwitz where they agreed that Horwitz would provide consulting services

and he (Major ) would provide public adjustment services to Cowpet ‘ Significantly, Major also

claims that he provided public adjustment services to Cowpet from September 25, 20l7, to January

20, 2018, and has set forth in detail the adjustment services he provided to Cowpet 5 Whether the

doctrine of unclean hands bars Horwitz and Majors’ claims against WorldClaim is a factual inquiry

that would be improper for the Court to determine on a motion to amend Since Major and Horwitz

performed adjuster services for Cowpet, the amendment to add a claim for quantum memit or

unj ust enrichment is not filtile

‘11 Similarly, permitting Major to join the suit as an additional plaintiff and allowing hurt to

assert a claim against WorldClaim for intentional interference with contractual relations against

WorldClaim is not futile To successfully plead such a claim, a plaintiff must assert l) the

‘ See Decldgti—oh of Jeffrey Major In Support of Plaintiff's Opposmon to Defendant 5 Motion for Summary Judgment on Plaintiff's Claims at 1‘ 5 6 ‘Id at(1| Harm! & Company Inc v Cowpe! Bay West Condominium Assocmuon Inc e! a] Cm! No ST 2018 CV 00612 Memorandum Opinion & Order Page 6 of 9

existence of a contract between the plaintiff and a third party, 2) that the defendant knew of that

contract; 3) that the defendant interfered with the contract using improper means or with an

improper motive; and 4) that Plaintiff was damaged as a result Gerard v Dempsey, 2016 V1

LEXIS 115, *19 (V I Super Ct 2016), Rondon v Caribbean Leasmg & ECO Transportanon Inc ,

74 V I 397 417 (V 1 Super Ct July 8 2021) The Court finds that for purposes of satisfying the

notice pleading requirement under Virgin Islands Rules, Major has sufficiently alleged a claim for

intentional interference with contractual relations against WorldClaim in the First Amended

Complaint and has placed WorldClaim on notice of claims brought against it See First Amended

Complaint1|1l46 50

112 In deciding whether to grant or deny a motion to amend a complaint, the Court must

determine whether the nonmoving party would be prejudiced by allowing the complaint to be

amended ‘ Prejudice to the non moving party is the touchstone for denying a motion to amend a

pleading Gommet Gallery Crown Bay Inc v Crown Bay Marina L P 2017 LEXIS 73, *3 (V1

Super Ct May 19, 2017)(citations and internal quotations omitted) In determining whether an

amendment would be prejudicial, the court considers whether it would place an unfair burden on

the opposing party or imperil the non moving party's opportunity to present witnesses and other

evidence at trial, which it would have presented had the amendments been timely Dams, 74 V l

525 at 537 ( to constitute prejudice, the amendment must compromise the defendant’s ability to

present its case ’); Bermudez v Virgin Islands Port Authority, 76 V I 1010, 110 (V l Super Ct

March 15, 2022) Whether the amendment will require the non moving party to expend significant

additional resources to conduct discovery and prepare for trial or significantly delay the resolution

of the dispute are also factors courts consider in deciding whether the non moving party will be

prejudiced Long v Wilson 393 F 3d 390 400 (3d Cir 2004) Horwuz & Company Inc v Cowper Bay West Condomimum Assoaanon. Inc et a! CM] No ST 2018 CV 00612 Memorandum Opinion & Order Page 7 of 9

1H3 It has been nearly five years since Horwitz filed its motion to amend the complaint Since

then, one defendant Cowpet has settled with Major and Homitz, and WorldClaim has filed a

motion for summary judgment It would be inequitable for this Court to deny Horwitz’s motion to

amend merely on the basis that too much time has passed, particularly since WorldClaim is still a

defendant and the amendments have not been mooted as to WorldClaim Moreover, the delay in

resolving the motion to amend cannot be attributed to Horwitz or Major 6 The motion to amend was

filed before WorldClaim filed its motion for summary judgment 7 Even if Horwitz’s motion to

amend had been filed after WorldClaim’s motion for summary judgment, this Court retains the

discretion to permit an amendment to the complaint afier the filing of a motion for summary

judgment Pedm 1 Range; Am of the Vu gm Islands Inc 63 V I 511, 514 (2015)(the Superior

Count erred in holding that amendment was futile where motion to amend was filed after defendant

filed motion for summary judgment and proposed amended complaint stated cause of action),

Dal is 74 V l at 538 (reversed Superior Coun s denial of motion to amend complaint where motion

to amend was filed after the defendant filed its motion for summary judgment and amended

complaint asserted a viable claim)

(14 In this instance, it is prudent for the Court to rule on the motion to amend the complaint

before ruling on the motion for summary judgment This avoids the situation where the Court rules

on the motion for summary judgment predicated on a complaint that has been superseded by a new

‘ Horwitz filed three requests for ruling on the motion to amend the complaint Horwitz 8 initial Request for Ruling was filed on December 7, 2021 Second Request for Ruling was filed on November ll 2022 and Third Request for Ruling was filed on September I9 2023 7 Defendant Cowpet s Motion for Summary Judgment was filed on June 26. 2020 Plaintiff Horwitz in its opposition to Defendant Cowpet’s motion for summary judgment states that on July 22, 2020, WorldClaim filed a binder of Defendant s Cowpet Motion for Summary Judgment The Court has searched the electronic and paper file but has not found a jomdcr by WorldClaim On November 27, 2023 WorldClalm filed a Renewed Motion for Summary Judgment and Brief In Support Horthz & Company Inc v ComperBay WestCondomlnIum Assocaatton Inc et a] CM! No ST 2018 CV 00612 Memorandum Opinion 8:. Order Page 8 of9

operative complaint with a new party and a new claim By the Court addressing the motion to

amend first, it ensures that the parties are fully aware of the operative complaint, streamlines the

issues, avoids confusion and further delay prevents unnecessary duplication of arguments and

briefings, and ensures finality of litigation

1115 Adding Major as a party and adding a count for unjust enrichment/quantum meruit at this

time will not unduly prejudice WorldClaim it is evident from a review of the file that Major has

been actively engaged in the litigation of this matter He executed a declaration in support of

Horwitz’s opposition to Cowpet’s motion for summary judgment The Stipulation of Dismissal of

the claims against Cowpet included the dismissal of “prOSpective Plaintiff Jeffrey Major” claims

Since 2019 WorldClaim has been on notice that Major could be added as a Plaintiff There is no

evidence that permitting the amendment now would place an unfair burden on WorldClaim or

jeopardize its ability to present witnesses or other evidence at trial, which it would have presented

had the amendments been decided earlier

1H6 The amendment should not require WorldClaim, Horwitz, or Major to expend substantial

additional resources to conduct discovery, prepare for trial, or significantly delay the resolution of

the dispute, as Major has participated in this litigation over the years Permitting Major to join the

lawsuit should cause little delay as both Major and Horwitz are represented by the same counsel,

avoiding a situation where new counsel has to get up to speed with the lawsuit On the other hand,

denying the motion to amend merely due to the passage of time would be prejudicial to Horwitz

and Major Hamil: & Company Inc v Cowper Bay West Condommmm Assocmnon, Inc et a! Cm! No ST2018 CV 00612 Memorandum Opinion 8: Order Page 9 of 9

[11 CONCLUSION

117 The Court finds that allowing the addition of Major as a plaintiff and permitting Plaintiffs to

assert a count for unjust enrichment quantum meruit would not be fiatile or prejudicial to

WorldClaim, therefore, the Court will grant Plaintiff’s Motion to Amend the Complaint

Accordingly it is hereby

ORDERED that Plaintiff’s Motion to Amend Complaint is hereby GRANTED, and it is

further

ORDERED that the First Amended Complaint filed on February 25 2019 shall serve as the

operating complaint in this matter and supersedes the Complaint filed on September 21, 2018; it is

ORDERED that, on or before February 15, 2024, Plaintiffs shall serve the First Amended

Complaint upon Defendant Fusco Group Partners, Inc d/b/a WorldClaim Global Claims

Management, it is fithher

ORDERED that a copy of this Memorandum Opinion and Order shall be directed to counsel of

record

Date Januag 25, 2024 ;/ [gag Jflnu , a. i CAROL THOMAS COBS ATTEST Judge of the Supe r Court Tamara Charles of the Virgin Islands Clerk of the C urt

By WW ”/ Lat a Camac 7 Court Clerk pervisor / /