In Re: Hurricane Maria Insurance Cases

• Court: Superior Court of The Virgin Islands
• Decided: February 6, 2026
• Docket: SX-2019-MC-00069
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX

Master Case No. SX-2019-MC-069 IN RE: Hurricane Maria Insurance (Complex Litigation Division) Cases. Re: SX-19-CV-063, 219, 222, 239, 258, 307, 354, 433, 442, 486

Appearances:

Lee Rohn, Esq. Lee J. Rohn and Associates, LLC 56 King Street, Third Floor Christiansted, V.I. 00820 For Plaintiffs

Matthew L. Litsky, Esq. Phelps Dunbar, LLP 100 South Ashley Dr., Suite 2000 Tampa, Fl 33602-5311 For Defendants Certain Underwriters at Lloyd’s, London Subscribing to Policy No. HOCJC1423, Defendants Marshall and Sterling, Inc., and Marshall and Sterling St. Croix

Eric A. Hiller, Esq. Clyde & Co. U.S. LLP 1221 Brickell Avenue, Suite 1600 Miami, Fl 33131 For Defendant Certain Interested Underwriters at Lloyd’s of London

Justin King, Esq. Clyde & Co. U.S. LLP 1221 Brickell Avenue, Suite 1600 Miami, Fl 33131 For Defendant Certain Interested Underwriters at Lloyd’s of London

Sharmane Davis-Brathwaite, Esq. Brathwaite Law LLC In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 2

4001 Raphune Hill, Suite 109 St. Thomas, VI 00802 For Defendant Certain Underwriters at Lloyd’s of London Subscribing to Policy No. B0621PFANE000217

Rafael F. Muilenburg, Esq. Morrisette & Muilenburg, LLP P.O. Box 1239 St. John, V.I. 00831 For Defendant Executive Insurance Services, Inc.

Douglas J. Kress, Esq. Schwed, Kahle & Kress, P.A. 11410 N. Jog Road, Suite 100 Palm Beach Gardens, F.L. 33418 For Defendant Executive Insurance Services, Inc.

Douglas L. Capdeville, Esq. Law Offices of Douglas L. Capdeville, P.C. 2107 Company Street, Lot 4 Christiansted, V.I. 00822 For Defendant Executive Insurance Services, Inc.

Robert J. Kuczynski, Esq. Beckstedt & Associates 2162 Church Street Christiansted, V.I. 00820 For Defendants Marshall & Sterling St. Croix, Inc., Marshall and Sterling St. Thomas and Theodore Tunick & Co.

Carl A. Beckstedt, III, Esq. Beckstedt & Associates 2162 Church Street Christiansted, V.I. 00820 For Defendant Marshall & Sterling St. Croix, Inc. In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 3

Rachel E. Hudgins, Esq. Fields Howell LLP 1180 W Peachtree Street, Suite 1600 Atlanta, G.A. 30309 For Defendant Cornerstone Services, Inc. In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 4

MEMORANDUM OPINION (Filed February 6, 2026)

Andrews, Jr., Judge

INTRODUCTION

¶1 Plaintiffs, Virgin Islands property owners, bring this action against

defendant insurance companies and their agents for damage to their properties

caused by Hurricane Maria which struck the territory on September 19, 2017.

They claim the defendants breached their insurance contracts by, among other

things, improperly underwriting their policies, underestimating their property

losses, and making false representations regarding their policies. Defendant,

Certain Interested Underwriters at Lloyd’s of London (Lloyd’s) moves this Court to

compel Plaintiffs to submit to an appraisal procedure as provided in their insurance

policies. 1 Plaintiffs contend that Lloyd’s has waived its right to appraisal by

waiting too long to invoke it. For the reasons mentioned below, this Court

1 Approximately ninety-seven (97) similar cases are grouped under the above-captioned master case. Lloyd’s was named as a defendant in forty-seven (47) cases and filed motions to compel appraisal in twenty-five (25) of them (the Court notes that two cases were removed to the District Court of the Virgin Islands (19-465 – removed on 06/20/25 and 19-500 – removed on 06/11/25)). Further, the plaintiffs dismissed Lloyd’s as a defendant in 19-475, and 19-481. This opinion addresses the motions filed in ten (10) cases (referenced above) selected by the Court from the twenty-five (25) cases. In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 5

concludes Lloyd’s timely invoked the appraisal procedure and will hence grant its

motions to compel.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶2 On September 19, 2017, Category 5 Hurricane Maria struck the Virgin

Islands territory and caused island wide devastation on St. Croix. Plaintiffs

suffered damages to their homes as a result of the storm. They had insured their

properties with defendant Lloyd’s, an insurance underwriter, through its agents

defendants Marshall and Sterling, Inc., Marshall and Sterling St. Croix, Executive

Ins. Svcs., Inc., Cornerstone Svcs., Inc. or Theodore Tunick and Co. Each policy

contained the following appraisal clause:

If you and we fail to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will choose a competent and impartial appraiser within 20 days after receiving a written request from the other. The two appraisers will choose an umpire. If they cannot agree upon an umpire within 15 days, you or we may request that the choice be made by a judge of a court of record in the state where the “residence premises” is located. The appraisers will separately set the amount of loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of the loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of loss.

Mots. to Compel: Conditions Ex. A § I (19-063, 19-219, 19-222, 19-19-239, 19-

258, 19-307, 19-354, 19-433, 19-442, 19-486). In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 6

¶3 Subsequent to the storm, Plaintiffs filed insurance claims with Lloyd’s

through their agents. The parties calculated differing amounts regarding

Plaintiffs’ dwelling losses as follows:

LOSS CALCULATION Case No. By Plaintiffs By Lloyd’s

19-063 (Gibson) $257,000 2 $110,6173

19-219 (Odom) $378,5004 $245,8015

19-222 (Fanelli) $386,6196 $101,3897

19-239 (Johannes) $122,273 8 $64,7169

19-258 (Prescott) $39,02010 $30,85811

2 Pl.’s Suppl. Br. Re Waiver 2; Gibson Affirmation Ex. A, at 2; Proof of Loss Ex. 2, 04/27/18 (19-063). 3 Mot. to Compel 3 (Background). 4 Pl.’s Suppl. Br. Re. Waiver 5 ($378,000); Odom Affirmation Ex. A, at 2 ($378,500); Proof of Loss Ex. 2, 04/25/18; Scarlett Affirmation Ex. B, at 1 ($378,500) (19-219). 5 Lloyd’s Resp. to Ct.’s Order 4; Copies of two (2) Checks Ex. N (SX-2019-MC- 069). 6 Pl.’s Suppl. Br. Re Waiver 5; Fanelli Affirmation Ex. A, at 2; Scarlett Affirmation Ex. B, at 2 (19-222). The Court notes that Plaintiff had submitted an earlier loss estimate of $159,160. See also Fanelli Affirmation 2. 7 Mot. to Compel 2 (19-222). 8 Pl.’s Suppl. Br. Re Waiver 4; Johannes Affirmation Ex. A, at 2 (19-239); 9 Mot. to Compel 2 (Background) (19-239). The Court notes that Plaintiff alleges Lloyd’s loss estimate was $43,577. See Pl.’s Suppl. Br. Re Waiver 4 (19-239). See also Johannes Affirmation Ex. A, at 2. The difference is immaterial to the Court’s analysis as the parties clearly had differing loss calculations. 10 Lloyd’s Resp. to Ct.’s Order 2 (SX-2019-MC-069). 11 Id. In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 7

19-307 (Donaie) $230,00012 $189,10013

19-354 (Nicholas) $23,82014 $17,44315

19-433 (Martin) $166,31516 $85,00017

19-442 (Jacobs) $45,93718 $30,99819

19-486 (Rodgers) $166,10020 $75,09121

On the dates indicated on the chart below: the parties exchanged communications

regarding the disputed claims; Lloyd’s made payment consistent with its loss

calculations; Plaintiffs served complaints on Defendants; Lloyd’s demanded

appraisals; and Lloyd’s subsequently filed the instant Motions to Compel

Appraisal.22

Filing and

12 Pl.’s Suppl. Br. Re Waiver 4; Donaie Affirmation Ex. A, at 2 (19-307). 13 Pl.’s Suppl. Br. Re Waiver 4; Donaie Affirmation Ex. A, at 3 (Lloyd’s calculation was $170,00) (19-307); Mot. to Compel 2 (CLA adjusted Plaintiff’s Dwelling loss was calculated at $189,100). 14 Pl.’s Suppl. Br. Re Waiver 4; Nicholas Affirmation Ex. A, at 2 (19-354). 15 Lloyd’s Resp. to Ct.’s Order 3 – 4 (SX-2019-MC-069). 16 Pl.’s Suppl. Br. Re Waiver 4; Martin Affirmation Ex. A, at 2 (19-433). 17 Mot. to Compel 3; See also Pl.’s Suppl. Br. Re Waiver: Martin Affirmation Ex. A, at 2. (19-433). Note: The $85,000 includes a $15,000 deductible. 18 Pl.’s Suppl. Br. Re Waiver 4; Jacobs’ Affirmation Ex. A, at 2; Mot. to Compel Appraisal 2 (19-442) (alleging Plaintiff claimed $45,406). 19 Mot. to Compel Appraisal 3 (19-442). 20 Pl.’s Suppl. Br. Re Waiver 4 (19-486); Rodgers Affirmation Ex. A, at 1. 21 Lloyd’s Resp. to Ct.’s Order 3; Check Payment Description Ex. G, 04/19/22 (SX-2019-MC-069). 22 Lloyd’s also sought to stay the litigation pending the appraisal process if granted. In light of the Court’s decision to order appraisal it will issue an order staying litigation pending the appraisal process. In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 8

Parties’ Last Pre-suit Insurance Service of Appraisal MTC Case No. Communication Payment Complaint Demand Filed 19-063 01/21/19*23 05/08/1924 02/21/1925 04/30/1926 05/06/1927 (Gibson) 02/27/19** 28 04/01/1929

*Plaintiff’s adjuster advised he was waiting to review a couple matters with the plaintiff. **Lloyd’s adjuster inquired from Plaintiff’s adjuster whether they were in a position to submit a revised claim.

19-219 10/31/18*30 12/04/1831 05/14/1932 07/12/1933 07/12/1934 (Odom) After 10/31/18**35 06/03/1936

*Plaintiffs issued a Proof of Loss to Lloyd’s dated 10/31/18. **On or about 12/04/18 Plaintiffs accepted payment (two checks dated 10/26/18) consistent with the amount claimed in their 10/31/18 Proof of Loss.

23 Reply in Supp. of Mot. to Compel: E-mails Ex. C, at 1 – 2; Lloyd’s Notice of Compliance with Ct.’s Order 1 (19-063). 24 Lloyd’s Notice of Compliance with Ct.’s Order 1 (SX-2019-MC-069); Pl.’s Suppl. Br. Re Waiver: Gibson Affirmation Ex. A, at 2 (19-063). 25 Compl., CMS 4; Lloyd’s Notice of Compliance with Ct.’s Order 1 (19-063). 26 Mot. to Compel 4; See also Pl.’s Suppl. Br. Re Waiver: Gibson Affirmation Ex. A, at 2 (19-063). 27 Mot. to Compel, CMS 27 (19-063). 28 Reply in Supp. of Mot. to Compel: E-mails Ex. C, at 1 (19-063). 29 Notice of Proof of Svc., CMS 16 (19-063). 30 Lloyd’s Resp. to Ct.’s Order 4; Proof of Loss Ex. M (SX-2019-MC-069). 31 Lloyd’s Resp. to Ct.’s Order 4; Checks Ex. N (SX-2019-MC-069); See also Pl.’s Supp. Br. Re Waiver: Odom Affirmation Ex. A, at 2 (19-219). 32 Compl., CMS 4; Lloyd’s Notice of Compliance with Ct.’s Order 2 (19-219). 33 Mot. to Compel 3; Pl.’s Suppl. Br. Re Waiver: Odom Affirmation Ex. A, at 2 (19-219). 34 Mot. to Compel, CMS 16, 07/12/19 (19-219). 35 Pl.’s Suppl. Br. Re Waiver: Odom Affirmation Ex. A, at 2 (19-219); Lloyd’s Resp. to Ct.’s Order 4; Checks Ex. N (19-219). 36 Notice of Proof of Svc., CMS 12, 06/21/19 (19-219). In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 9

19-222 06-25-18 to 08/13/1837 05/14/1938 07/05/1939 07/09/1940 (Fanelli) 10-27-18*41 06/03/1942

*Numerous discussions regarding the amount of loss occurred.

19-239 01/19/18* 01/19/1843 05/30/1944 11/19/1945 11/21/1946 (Johannes) 06/28/1947 *Plaintiff accepted a check for insurance payment.

19-258 11/04/17*48 01/19/1849 06/12/1950 07/22/1951 07/22/1952 (Prescott) 01/19/18**53 07/01/1954 *Plaintiff executed an acceptance form indicating a loss amount of $25,108. **Plaintiff accepted a check from Defendants in the amount of $25,108.

37 Lloyd’s Notice of Compliance with Ct.’s Order 2 (SX-2019-MC-069); Pl.’s Suppl. Br. Re Waiver: Fanelli Affirmation Ex. A, at 2 (19-222). 38 Compl., CMS 3, 05/14/19 (SX-19-CV-222). 39 Mot. to Compel: Letter to Pl.’s Counsel Ex. B; Pl.’s Suppl. Br. Re Waiver: Fanelli Affirmation Ex. A, at 2. 40 Mot. to Compel, CMS 16, 07/09/19 (19-222). 41 Pl.’s Suppl. Br. Re Waiver: Scarlett Affirmation Ex. B, at 2 (19-222). 42 Notice of Proof of Svc., CMS 9, 06/21/19 (19-222). 43 Mot. to Compel 3 (19-239). 44 Compl., CMS 5 (19-239). 45 Pl.’s Suppl. Br. Re Waiver: Johannes Affirmation Ex. A, at 3 (19-239). 46 Mot. to Compel, CMS 35, 11/21/19 (19-239). 47 Notice of Proof of Svc., CMS 15, 07/11/19 (19-239). 48 Lloyd’s Resp. to Ct.’s Order: Form of Acceptance Ex. C (SX-2019-MC-069). 49 Lloyd’s Resp. to Ct.’s Order: Settlement Calculations Ex. B (SX-2019-MC-069); Pl.’s Suppl. Br. Re Waiver: Prescott Affirmation Ex. A, at 2. 50 Compl., CMS 4 (19-258). 51 Pl.’s Suppl. Br. Re Waiver: Prescott Affirmation Ex. A, at 1 (19-258). 52 Mot. to Compel, CMS 12 (19-258). 53 Pl.’s Suppl. Br. Re Waiver 4; Lloyd’s Resp. to Ct.’s ’s Order: Ex. D (19-258). 54 Lloyd’s Resp. to Ct.’s Order: Notice of Proof of Svc. Ex. E (SX-2019- MC-069; See also Notice of Proof of Svc., CMS 10, 07/11/19 (19-258). In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 10

19-307 08/03/18*55 05/01/1856 07/16/1957 11/20/1958 11/27/1959 (Donaie) 07/29/1960 *Plaintiff’s agent emailed Lloyd’s adjuster about setting up an appointment and bringing the claim to a resolution.

19-354 01/10/18*61 01/18/18**62 07/25/1963 11/12/1964 11/13/1965 (Nicholas) 09/10/1966 *Plaintiff executed an acceptance form reflecting a personal property loss of $6,976 in full discharge of his property damage claim. **This payment was only for personal property loss as the deductible amount, according to Lloyd’s, exceeded Lloyd’s dwelling loss calculation.

19-433 March - June 2019*67 07/17/1968 09/06/1969 02/05/2070 08/03/2071 (Martin) 12/11/1972 *Plaintiff accepted Lloyd’s payment of $70,000 under protest.

55 Pl.’s Suppl. Br. Re Waiver: Donaie Affirmation Ex. A; E-mail Chain Ex. 2 (19- 307). 56 Pl.’s Suppl. Br. Re Waiver: Donaie Affirmation Ex. A, at 3 (19-307. 57 Compl., CMS 1 (SX-19-CV-307). 58 Pl.’s Suppl. Br. Re Waiver: Donaie Affirmation Ex. A, at 3 (19-307). 59 Mot. to Compel, CMS 27 (19-307). 60 Notice of Proof of Svc., CMS 13, 08/13/19 (19-307). 61 Lloyd’s Resp. to Ct.’s Order 4; Acceptance Form Ex. J (SX-2019-MC-069); Opp. to Mot. to Compel: Nicholas Affirmation Ex. A, at 2 (19-354). 62 Lloyd’s Resp. to Ct.’s Order 3 – 4 (SX-2019-MC-069). 63 Compl., CMS 1 (19-354). 64 Pl.’s Suppl. Br. Re Waiver: Nicholas Affirmation Ex. A, at 3 (19-354). 65 Mot. to Compel, CMS 16 (19-354). 66 Notice of Proof of Svc., CMS 13, 09/25/19 (19-354). 67 Mot. to Compel 3 (19-433); Pl.’s Br. Re Waiver: Martin Affirmation Ex. A, at 2(19-433). 68 Lloyd’s Notice of Compliance with Ct.’s Order 3 (SX-2019-MC-069). 69 Compl., CMS 2 (19-433). 70 Mot. to Compel: Appraisal Demand Letter Ex. B (19-433); Pl.’s Br. Re Waiver: Martin Affirmation Ex. A, at 3 (19-433). 71 Mot. to Compel, CMS 27, 08/03/20 (19-433). 72 Notice of Proof of Svc., CMS 23, 02/25/20 (19-433). In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 11

19-442 Feb. 2018*73 11/17/1774 09/10/1975 11/01/1976 11/06/1977 (Jacobs) 03/15/1878 09/27/1979 *Plaintiff submitted an estimate to Lloyd’s.

19-486 Late 2017*80 Early 201881 09/19/1982 02/04/2083 02-05-2084 (Rodgers) 12/23/1985 *Plaintiffs executed an Acceptance Form re payment.

Subsequent to the receipt of payment, Plaintiffs filed suit in 2019 against defendant

insurance companies and their agents as follows:

Case No. Plaintiff (s) Defendants

19-063 Hope Gibson Lloyd’s Marshal and Sterling, Inc. Marshal and Sterling St. Croix

19-219 Noyl and Kelly Odom Lloyd’s Executive Insurance Svcs., Inc.

19-222 Daniel & Beatrix Fanelli Lloyd’s Cornerstone Services, Inc.

73 Pl.’s Suppl. Br. Re Waiver: Jacobs Affirmation Ex. A, at 2 (19-442). 74 Lloyd’s Notice of Compliance with Ct.’s Order 3 (SX-2019-MC-069). 75 Compl., CMS 2 (19-442). 76 Mot. to Compel 4 Ex. B (Letter to L. Rohn); Pl.’s Suppl. Br. Re Waiver: Jacobs Affirmation Ex. A, at 3 (19-442). 77 Mot. to Compel, CMS 23, 11/06/19 (19-442). 78 Lloyd’s Notice of Compliance with Ct.’s Order 3 (SX-2019-MC-069). 79 Notice of Proof of Svc., CMS 11, 10/10/19 (19-442). 80 Lloyd’s Resp. to Ct.’s Order 3; Ex. G (Check); Ex. F (Acceptance Form) (SX- 2019-MC-069). 81 Pl.’s Suppl. Br. Re Waiver: Rodgers Affirmation Ex. A, at 2 (19-486). 82 Compl., CMS 2 (19-486). 83 Pl.’s Suppl. Br. Re Waiver: Rodgers Affirmation Ex. A, at 2 (19-486). 84 Mot. to Compel, CMS 19, 02/05/20 (19-486). 85 Notice of Proof of Svc., CMS 15, 01/14/20 (19-486). In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 12

19-239 Renita Johannes Lloyd’s Marshal and Sterling, Inc. Marshall and Sterling St. Croix

19-258 Traney Prescott Lloyd’s Executive Insurance Services

19-307 Benedicta E. Donaie Lloyd’s Marshall and Sterling, Inc. Marshall and Sterling St. Croix

19-354 Charlesworth Nicholas Lloyd’s Executive Insurance Services, Inc.

19-433 Alvin A. Martin Lloyd’s Theodore Tunick & Company

19-442 Monica Y. Jacobs Lloyd’s Marshall and Sterling, Inc. Marshall and Sterling St. Croix

19-486 Roy A. and Deborah Lloyd’s J. Rogers Executive Insurance Services

See Complaints 19-063, 219, 222, 239, 258, 307, 354, 433, 442, 486. They allege

numerous causes of action against Defendants including: misrepresentation;

breach of contract; violation of 5 V.I.C. § 228(a); breach of duty of good faith; and

violation of 5 V.I.C. § 310.

As indicated above, Lloyd’s filed motions to compel in these matters in 2019 In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 13

and February 2020. On February 16, 2022, March 13, 2020 and March 27, 2020,

defendant Executive Insurance Services, Inc. joined Lloyd’s Motion to Compel in

three cases. Notice of Joinder, SX-2019-CV-219, 354, 486. None of the other

defendants has joined Lloyd’s motion to compel. Plaintiffs filed oppositions to

Lloyd’s motions to compel and Lloyd’s filed replies in all but two cases (i.e., 19-219

and 19-486). This Court held a hearing on the motions to compel on April 1, 2022,

required further submissions by the parties, and took the matter under advisement.

On or about April 19, 2022, the parties filed supplemental briefs.

LEGAL STANDARD

Lloyd’s seek to compel Plaintiffs’ compliance with an appraisal clause in their

insurance contracts. Plaintiffs contend Lloyd’s waived its right to demand

appraisal. The party claiming waiver bears the burden to establish it. Cf. Whyte

v. Bockino, 69 V.I. 749, 766 (V.I. 2018) (stating that in regards to an arbitration

waiver, “the burden to show a party waived its right to arbitration is on the party

claiming waiver.”); See also Gray v. Contributionship, 784 F.Supp.3d 367, 374 (D.

Md. Sep. 12, 2024) (stating that “the party resisting appraisal ‘bears the heavy

burden of proving waiver’”) (citing MicroStrategy, Inc. v. Lauricia, 268 F.3d 244,

249 (4th Cir. 2001)); 611 Carpenter LLC v. Atl. Casualty Ins. Co., No. 1:23-CV- In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 14

00823-DII, 2024 U.S. Dist. LEXIS 89900, at *5 (W.D. Tex. May 20, 2024) (stating

that the party claiming waiver has the burden to show waiver and prejudice.)

It is axiomatic that a waiver is an intentional relinquishment of a known right

or privilege. Morgan v. Sundance, Inc., 596 U.S. 411, 417 (2022); Ubiles v. People

of the Virgin Islands, 66 V.I. 572, 586 (V.I. 2017) (stating that “[a] waiver is

ordinarily an intentional relinquishment or abandonment of a known right or

privilege.” (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938))); Abramsen v.

Vince Bedminster, 45 V.I. 3, 9 (V.I. Terr. Ct. 2002) (stating that “according to Virgin

Islands law, a waiver is “an intentional relinquishment of a known right or privilege.”

(citing Marcelly v. Mohan, 16 V.I. 575, 580 (V.I. Super. Ct. 1979))). The

touchstone factor in determining whether a waiver is prejudice as waivers are not

lightly inferred. Whyte, 69 V.I. at 766. (stating in the arbitration context that “[w]e

cannot lightly infer waiver” . . . ‘prejudice is the touchtone for determining whether

the right to arbitrate has been waived’ through litigation conduct’.”). In

determining waivers, the Court should consider the timeliness of the motion to

compel and “the extent to which the compelling party engaged in litigation.” Id. at

766 – 67. The Virgin Islands Supreme Court has emphasized that a party waives

the right to compel “arbitration,” for instance, “when it delays invoking the right and

prejudice results from the delay.” Id. Hence, a party claiming waiver must show: In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 15

1) there was an unreasonable delay in invoking appraisal; and 2) prejudice resulted

from the delay.

LEGAL ANALYSIS

Lloyd’s seeks an order compelling Plaintiffs to submit to the appraisal

procedure provided in their insurance policies. It claims appraisal is appropriate

since the primary dispute concerns the amount of loss. See, e.g., Mot. to Compel

3 (19-219).86 Except for Johannes and Donaie, Plaintiffs do not contest the validity

of the appraisal provision in their contracts. Instead, they oppose its application

on various waiver grounds:87

1) the appraisal request is untimely, and hence waived, since it was not made within 30 days of Plaintiffs’ submission of a proof of claim, pursuant to 22 V.I.C. § 228(a);88

2) the filing of Plaintiffs’ suit forecloses Lloyd’s ability to request an appraisal after the fact;89 and

3) Lloyd’s waived its right to demand appraisal by waiting too long to

86 Lloyd’s make substantially the same legal argument in support of its motion to compel in each of the ten cases addressed in this opinion. The Court’s analyses and conclusions thus apply equally to all motions to compel in these ten cases. 87 Although each Plaintiff has separate factual circumstances regarding their property loss, they set forth the same legal basis in opposition to Lloyd’s motion to compel appraisal. As such, the Court’s analyses and conclusions apply equally to all Plaintiffs. Further, Plaintiffs set forth other grounds in support to their waiver argument which this Court finds without merit and does not address. 88 See, e.g., Opp. to Mot. to Compel 7 – 9; Pl.’s Suppl. Br. Re Waiver 16 (19-219). 89 See, e.g., Opp. to Mot. to Compel 6 (19-219). In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 16

seek it.90

Lloyd’s counter that, in four cases (i.e., 2019-219, 258, 354, and 486), Plaintiffs

executed Forms of Acceptance indicating the amount was in full discharge of their

claim and were paid. Hence, the argument continues, there was no impasse or

need to seek appraisal until Plaintiffs filed suit. See Lloyd’s Resp. to Ct.’s Order 5

– 8 (SX-19-MC-069). Lloyd’s further argue that Plaintiffs cannot show prejudice

resulting from its demand for appraisal. Id. at 10 – 11. This Court must thus

decide whether Lloyd’s unreasonably delayed invoking appraisal and, if so,

whether such delay resulted in prejudice to Plaintiffs.

At the outset, the Court notes that appraisal clauses are generally preferred

as they provide a means for prompt resolution of claims without resorting to the

courts. See First Protective Ins. Co. v. Hess, 81 So. 3d 482, 485 (Fla. 1st DCA

2011). Here, an appraisal, if authorized, would afford the parties an efficient

objective mechanism to determine the value of Plaintiffs’ losses. It would also

spare all parties the burden, time, and expense of litigating the amount of loss. In

this light, the Court proceeds to analyze the issues presented.

1) Section 228(a) Does Not Preclude Lloyd’s Demand For Appraisal.

90 See, e.g., Pl.’s Suppl. Br. Re Waiver 15, 17 – 18 (19-219). In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 17

Plaintiffs rely on 22 V.I.C. § 228(a) to support their position that Lloyd’s

appraisal demand is untimely. In pertinent part, the statute provides:

Effective 90 days after February 24, 1984, insurance companies doing business in the Virgin Islands shall have thirty (30) calendar days from the date on which an agreement to settle is signed or a proof of claim has been filed, whichever comes last, to make payment of all sums due under an insurance policy.

22 V.I.C. § 228(a). Plaintiffs contend “any request for an appraisal, was required

to be made prior to the expiration of the 30 days, to effectuate the payment

deadline requirements of the statute.” Opp. to Mot. Compel 9 (19-219). Lloyd’s

counter that Section 228(a) does not address appraisal and there was no

agreement to settle. See, e.g., Reply in Supp. of Mot. to Compel 2 (19-222). As

explained below, Plaintiffs’ reliance on Section 228 is misplaced.

The Legislature added Section 228 to the Virgin Island Code in 1984, and it

appears no Virgin Islands court has addressed Subsection 228(a). Plaintiffs’

contention thus presents a novel issue. In construing Section 228(a), this Court

commences “with the plain and ordinary meaning of the statutory language.”

Wilkinson v. People of the Virgin Islands, 2025 V.I. 4, 8 (V.I. 2025). The Court

finds the statute unambiguous. The plain reading reveals it requires insurance

companies to pay all sums due under an insurance policy by the later of: 1) 30 In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 18

days after an agreement to settle is signed; or 2) 30 days after a proof of claim is

filed. The statute can only reasonably be interpreted to require payment once

there is agreement as to all sums due (i.e., where there is an undisputed proof of

claim). Hence, if an insurance company does not dispute the loss figure

submitted in the insured’s proof of claim, payment is due within 30 days of filing

the claim. If the insurance company disputes the insured’s loss claim and the

parties subsequently arrive at an agreement to settle, payment is due within 30

days of such agreement. Therefore, absent an uncontested proof of claim or an

agreement to settle, there is no determination of “all sums due” and Section 228(a)

payment deadline is not triggered.

Plaintiffs’ interpretation would require an insurer to make payment of a claim,

or demand appraisal, within 30 days of filing the insured’s claim even if the parties

are in negotiations. The Court finds such an interpretation unreasonable as it

would severely hamper settlement negotiations. Further, the statute is silent as

to the impact of an insurance company’s failure to pay within the 30 days and says

nothing about appraisal. The parties’ policy, however, does provide for appraisal

and imposes no deadline for demanding it. The policy simply provides that any

party may demand appraisal if they (insurer and insured) fail to agree on the

amount of loss. See, e.g., Mot. to Compel 3 (19-219). As to payment, the policy In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 19

provides that “Loss will be payable 60 days after we receive your proof of loss and:

1) reach an agreement with you; 2) there is an entry of a final judgment; or 3) there

is a filing of an appraisal award with us.” Id. Therefore, Plaintiffs contracted to

receive payment upon fulfillment of one of the above conditions, none of which

occurred in any of their cases within 30 days of filing proof of claim. Their

contractual payment provision supersedes Section 228(a), even if it was

applicable.

The Court’s conclusion is supported by Virgin Islands law which bars the

use of an insurer’s receipt of proof of loss or claim forms as a waiver of any policy

provision or defense of the insurer thereunder. See 22 V.I.C. § 843(2) (stating

“None of the following acts by or on behalf of an insurer shall be deemed to

constitute a waiver of any provision of a policy or any defense of the insurer

thereunder: . . . (2) furnishing forms for reporting a loss or claim, for giving

information relative thereto, or for making proof of loss, or receiving or

acknowledging receipt of any such forms or proofs completed or uncompleted . .

.”). For these reasons, Plaintiffs’ reliance on Section 228(a) to support their

contention that payment was due within 30 days of submission of their proof of

claim is misplaced. In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 20

2) The Filing of Plaintiffs’ Suits Does Not Foreclose Lloyd’s Ability to Demand Appraisal.

Plaintiffs claim they filed suit after negotiations had reached an impasse and

such suit forecloses Lloyd’s ability to request an appraisal after the fact. Opp. to

Mot. to Compel 5 – 6 (19-219). They submit no authority for their position and this

Court is aware of none. To the contrary, the parties’ policy states, “If you and we

fail to agree on the amount of loss, either may demand an appraisal of the loss.”

See, e.g., Mot. to Compel 2 (19-219). It imposes no deadline to request an

appraisal. As such, it permits an appraisal demand before or after litigation has

commenced. Further, as a general rule, an appraisal may be demanded for the

first time after commencement of litigation. Castle Key Ins. Co. v. Wooden Family

Trust, 321 So. 3d 346, 349 (Fla.1st DCA 2021). The mere filing of a lawsuit does

not ipso facto preclude an appraisal demand. Absent a waiver, courts routinely

permit invocation of appraisal after a suit is filed. 611 Carpenter LLC, No. 1:23-CV-

00823, 2024 U.S. Dist. LEXIS 89900, at *5. Accordingly, the mere filing of

Plaintiffs’ lawsuit does not preclude Lloyd’s appraisal demand.

3) Lloyd’s Did Not Waive Its Right to Demand Appraisal.

Plaintiffs Johannes and Donaie claim the appraisal clause in the parties’ In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 21

contract is invalid. The Court finds their contention meritless. 91 All Plaintiffs

argue Lloyd’s waived its right to appraisal by waiting too long to demand it. As

Plaintiffs are the parties claiming waiver, they carry the burden to establish it.

Whyte, 69 V.I. at 766. They must show Lloyd’s intentionally relinquished or

abandoned their right to demand appraisal. Ubiles, 66 V.I. 572 at 586 (citing

Johnson v. Zerbst, 304 U .S. 458, 464 (1938)). Such an intent may exist where

there is an unreasonable delay in demanding appraisal. If waiver is established,

Plaintiffs must further show they suffered prejudice by Lloyd’s untimely demand for

appraisal. See Whyte, 69 V.I. at 766. Plaintiffs argue that whether the right to

appraisal has been waived is a question of fact. Pl.’s Suppl. Br. Re Waiver 8 (19-

219 – Odom). Here, however, the pertinent facts are undisputed, and this Court

may proceed to determine waiver as a matter of law. See In re SureChoice

Underwriters Reciprocal Exchange, 702 S.W.3d 876, 882 (Tex. Ct. App. 2024)

(stating that “[o]rdinarily, waiver is a question of fact, but when the facts are

91 Johannes claims the appraisal clause in the parties’ insurance contract is not valid for want of approval by the Commissioner of Insurance as required by 22 V.I.C. § 810. Opp. to Mot. to Compel 6. Section 810 speaks to the form of a contract and not to clauses or the other provisions therein. Further, Johannes’ complaint is premised on an insurance contract. See Compl. at 4 (“Defendant Lloyd’s insured Plaintiff against windstorm damages.”); Id. at 15 (“At all times relevant, Defendant were bound by a written insurance contract with Plaintiff.”). The Court presumes Johannes’ complaint is premised on a valid contract and finds her argument without merit. If not, there is no basis for her breach of contract claims. Plaintiff Donaie makes the same claim which is likewise meritless. See Opp. to Mot. to Compel 6 (19-307). In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 22

admitted or clearly established waiver is a question of law.”); Koehl v. RLI Ins. Co.,

367 So.3d 122, 129 (La. 5th Ct. App. 2023) (stating “When the facts are

undisputed, however, waiver is a question of law.” (citing Highlands Ins. Co. v.

Allstate Ins. Co., 688 F.3d 398, 404 (5th Cir. 1982))); Koors v. Steffen, 916 N.E.

2d 212, 217 (Ind. Ct. App. 2009) (stating “[w]aiver is generally a question of fact;

however, the trial court may, as a matter of law, make a determination regarding

waiver where there are no undisputed facts and the undisputed facts establish that

a party is entitled to judgment.”); Old Republic Ins. Co. v. Fsr Brokerage, 80 Cal.

App. 4th 666, 679 (Cal. App. 2d 2000). (stating that “the trial court may properly

resolve an issue of waiver as a question of law when the underlying facts are

undisputed.”).

The parties’ insurance policy sets no deadline to demand appraisal. It

simply states, “if you and we fail to agree on the amount of the loss, either may

demand an appraisal of the loss.” See Mot. to Compel 4 (19-219). Under these

circumstances, simple logic dictates the demand (pursuant to the policy) must be

made within a reasonable time from the date of an impasse. Terra Indus., Inc. v.

Commonwealth Ins. Co. of Am., 981 F. Supp. 581, 597 (N.D. I.A. 1997) (stating

that “decisions of various courts interpret an ‘appraisal’ clause lacking a specific

time for demand to be made to require that the demand be made within a In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 23

‘reasonable” time.”); Castanon v. Safeco Ins. Co. of Ind., No. 5:21-CV-00851-XR,

2022 U.S. District LEXIS 121483, at *4 (W.D. Tex. Jul. 8, 2022) (stating that

“[w]hen an insurance policy is silent regarding the deadline to invoke an appraisal

clause, the demand for an appraisal must be made within a reasonable time.”).

The reasonableness of an appraisal delay is measured from the point of impasse.

See In re Universal Underwriters of Tex. Ins. Co., 345 S.W.3d 404, 408 (Tex.

2011). In some circumstances such impasse may not happen until a complaint is

filed. Terra Indus., 981 F. Supp. at 598 (stating that “[t]hus, the policy contemplates

a demand for appraisal at any time after an impasse has been reached. Such a

condition may not occur until suit is filed . . . when appraisal is not demanded until

after suit is filed, the question is whether the demand for appraisal was waived or

instead was made within a reasonable time after impasse was reached.”).

The Court’s analysis thus commences with a determination of when the

parties reached an impasse and whether Lloyd’s demanded an appraisal within a

reasonable time thereafter. An impasse is defined as “a point in negotiations in

which agreement cannot be reached.” Impasse, Black’s Law Dictionary (10th ed.

2014). It is “that point at which the parties have exhausted the prospects of

concluding an agreement and further discussions would be fruitless.” In other

words, “an impasse is a state of facts in which the parties, despite the best of faith, In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 24

are simply deadlocked.” Laborers Health & Welfare Trust Fund v. Advanced

Lightweight Concrete Co., 484 U.S. 539, 543, n 5 (1988). Mere disagreement or

dispute as to the amount of loss does not equate to an impasse. This is

particularly so where negotiations are ongoing. See In re Universal Underwriters

of Tex. Ins. Co., 345 S.W. at 408 (stating that “[a]n impasse is not the same as a

disagreement about the amount of loss. Ongoing negotiations, even when the

parties disagree, do not trigger a party's obligation to demand appraisal.").

Further, it would be unfair to charge a party with delay in demanding appraisal

where they are unaware that the other party no longer wishes to negotiate or where

one party reasonably believes a settlement has been reached. As such, an

impasse occurs only when there is a mutual understanding that one or both parties

are no longer willing to pursue settlement. Here, the parties differ as to when, as

a matter of law, an impasse occurred. Based on the pertinent undisputed facts,

the Court will determine the point of impasse as to each plaintiff.

A) GIBSON (SX-2019-CV-063)

Plaintiff Hope Gibson submitted her proof of loss to Lloyd’s on April 27, 2018

in the amount of $257,000. Lloyd’s Notice of Compliance with Ct’s Order 1; Pl.’s

Suppl. Br. Re Waiver: Gibson Affirmation Ex. A; Proof of Loss Ex. 2. Lloyd’s

estimated her loss at $110,617. Mot. to Compel 3. Gibson now claims the parties In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 25

reached “an impasse on June 11, 2018 given the discrepancy in the claims.” Pl.’s

Suppl. Br. Re Waiver 16 (19-063). As stated above, however, a mere discrepancy

in claims, as a matter of law, does not equate to an impasse. In fact, Plaintiff

concedes the parties communicated numerous times between June 11, 2018 and

March 18, 2019 but Defendant never demanded an appraisal. Id. By this

concession, Plaintiff demonstrates there was no impasse until at least March 18,

2019. This is consistent with the position taken in her initial opposition to Lloyd’s

motion. Plaintiff there asserted she “filed the instant suit once it was clear that

negotiations between Plaintiff and Defendants had reached an impasse.” Opp. to

Mot. to Compel 5 (19-063). By this assertion, Gibson conceded an impasse

occurred around February 21, 2019, the date she filed her complaint. See Compl.

(19-063). Consistent with this concession, Lloyd’s submitted evidence of

electronic mail communications, between Gibson’s agent and Lloyd’s, from 2018

through February 27, 2019, regarding her loss claim. Reply in Supp. of Mot. to

Compel: E-mails Ex. C, at 1 – 5 (19-063). On January 21 2019, Gibson’s adjuster

advised Lloyd’s he was waiting to review a couple of matters. Id. at 1 – 2. On

February 27, 2019, Lloyd’s adjuster inquired from Gibson’s adjuster whether they

were in a position to submit a revised claim. Id. at 1. Gibson’s adjuster also

affirmed that “[b]etween June 11, 2018 and March 18, 2019 I communicated In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 26

numerous times directly with Thomas Innocenti to adjust the loss . . .” Pl.’s Br. Re

Waiver: Scarlett Affirmation Ex. B, at 2 (19-063). Under these circumstances, it

is evident the parties were engaged in negotiations from at least April 27, 2018

(when proof of loss was submitted) until around March 2019. Their mere

disagreement or dispute as to the amount of loss did not constitute an impasse.

In light of these uncontested facts regarding the parties’ ongoing

negotiations, this Court concludes that no impasse occurred until Gibson served

notice of her complaint upon Lloyd’s on April 1, 2019. Such service constituted

the first clear signal that Gibson was no longer willing to negotiate, and an

agreement could not be reached. Lloyd’s filed its appraisal demand 29 days later

on April 30, 2019. The timing of such demand is not unreasonable. Under the

circumstances Lloyd’s did not intentionally relinquish its right to demand appraisal.

B) ODOM (SX-2019-CV-219)

Plaintiffs Noyl and Kelly Odom submitted their proof of loss to Lloyd’s on

April 25, 2018 in the amount of $378,500. Pl.’s Suppl. Br. Re. Waiver: Odom

Affirmation Ex. A; Proof of Loss Ex. 2 (19-219). Six months later, on October 31,

2018, they submitted a revised proof of loss in the amount of $245,801 (including

$10,000 for personal property loss). Lloyd’s Resp. to Ct.’s Order: Proof of Loss Ex.

M (19-219). Lloyd’s issued payment of $245,801 on or about December 4, 2018. In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 27

Id. Ex. N (checks); Pl.’s Suppl. Br. Re Waiver: Odom Affirmation Ex. A, at 2 (19-

219). The Odoms now claim the parties “reached an impasse when Plaintiff

rejected Defendant’s estimate of loss/settlement offer” presumably after Lloyd’s

submitted their settlement offer on October 17, 2018. Pl.’s Suppl. Br. Re Waiver

17 (19-219). They further contend their revised proof of loss represented a partial

payment. Id. The Proof of Loss they executed however, states that the $245,801

figure represents “the Whole Loss and Damage.” See Lloyd’s Resp. to Ct.’s Order

Ex. M. Further, in their initial opposition to Lloyd’s motion, the Odoms asserted

they “filed the instant suit once it was clear that negotiations between Plaintiff and

Defendants had reached an impasse.” Opp. to Mot. to Compel 5 (19-219). By this

assertion they conceded an impasse occurred around May 14, 2019, the date they

filed their complaint. See Compl. (19-219).

Lloyd’s asserts there was no communication nor dispute between the parties

after payment was tendered in December 2018. Lloyd’s Resp. to Ct.’s Order 4 – 5

(SX-2019-MC-069). It is noteworthy that the Odoms admit “[o]n or about

December 4, 2018, Plaintiffs and Defendants reached an initial settlement of

$217,376.12 . . . but Plaintiffs were always clear that this amount was unacceptable

and that Plaintiff’s losses far exceeded Defendant’s settlement offer.” Pl.’s Suppl.

Br. Re Waiver 4 (19-219). This assertion is inconsistent with their revised proof In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 28

of loss which indicates “The Whole Loss and Damage was . . . $245,801.” Lloyd’s

Resp. to Ct.’s Order: Proof of Loss Ex. M (19-219). The Odoms also rely on a

statement by Lloyd’s adjuster that they should file suit to reach a resolution given

the clear dispute. Id. at 5. Such statement, the Court concludes, does not

establish an impasse particularly since the Odoms subsequently accepted Lloyd’s

settlement amount.

In light of these facts the Court concludes that no impasse was evident until

the Odoms served their complaint upon Lloyd’s on June 3, 2019. Such service

constituted the first clear signal that an irreconcilable dispute existed between the

parties. Lloyd’s filed its appraisal demand 39 days later on July 12, 2019. The

timing of such demand is not unreasonable. Under the circumstances Lloyd’s did

not intentionally relinquish its right to demand appraisal.

C) FANELLI (SX-2019-CV-222)

Plaintiffs Daniel and Beatrix Fanelli submitted an initial proof of loss to

Lloyd’s on November 24, 2017, in the amount of $159,160. Pl.’s Suppl. Br. Re

Waiver: Fanelli Affirmation 2 (19-222). On July 5, 2018, they submitted a revised

proof of loss in the amount of $386,619. Id.; Scarlett Affirmation Ex. B, at 2. On

August ,13, 2018, the Fanellis accepted a partial payment of $99,251. Lloyd’s

Notice of Compliance with Ct.’s Order 2 (SX-2019-MC-069); Pl.’s Supp. Br. Re In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 29

Waiver: Fanelli Affirmation Ex. A, at 2.

The Fanellis now claim “Defendants clearly reached an impasse when

Plaintiffs rejected Defendants’ estimate of loss/settlement offer and Defendants

agreed to release the undisputed settlement funds . . . There was an obvious and

certain dispute on June 25, 2018, as to the coverage position and amount of loss

given that PCC and Defendants agreed that the undisputed amount should be

released.” Pl.’s Suppl. Br. Re Waiver 16 (19-222). Their mere disagreement does

not constitute an impasse. Further, in their initial opposition to Lloyd’s motion to

compel appraisal, the Fanellis asserted they “filed the instant suit once it was clear

that negotiations between Plaintiff and Defendants had reached an impasse.” Opp.

to Mot. to Compel 5 (19-222). By this assertion, the Fanellis conceded an

impasse occurred around May 14, 2019, the date they filed their complaint. See

Compl. (19-222). In fact, the parties were in discussions even after the Fanellis

acceptance of partial payment on August 13, 2018. Their adjuster affirmed that

between June 15, 2018 and October 27, 2018, he communicated numerous times

with Lloyd’s agents regarding Fanellis’ loss claim. Pl.’s Suppl. Br. Re Waiver:

Scarlett Affirmation Ex. B, at 2 (19-222). Under these circumstances, nothing

presented establishes that further negotiations would have be futile such that an

impasse had been reached. In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 30

In light of these uncontested facts, this Court concludes that no impasse

occurred until the Fanellis served notice of their complaint upon Lloyd’s on July 5,

2019. Such service constituted the first clear signal that they were no longer

willing to negotiate, and an agreement could not be reached. Lloyd’s filed its

appraisal demand 4 days later on July 9, 2019. The timing of such demand is not

unreasonable. Under the circumstances Lloyd’s did not intentionally relinquish its

right to demand appraisal.

D) JOHANNES (SX-2019-CV-239)

Plaintiff Rita N. Johannes submitted her loss estimate of $122,273 to Lloyd’s

in January 2018. Pl.’s Suppl. Br. Re Waiver: Johannes Affirmation Ex A, at 2 (19-

239),. She alleges Lloyd’s paid her $43,577 for her loss on January 9, 2018. 92 Id.

at 2. Johannes now claims the parties “reached an impasse when Defendants

rejected Plaintiff’s estimate after inspecting her property and failed to demand an

appraisal . . . Plaintiff provided her estimate to Defendants and, in or around

January 2018, Defendants sent Plaintiff their estimate/counter-offer for $43,577.07

– nearly a third of Plaintiff’s estimate-and told her she was not entitled to anything

more. The impasse was apparent because Defendants rejected Plaintiff’s

92 Lloyd’s alleges they paid Johannes $60,156. However, the difference is immaterial for purposes of the instant motion. In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 31

estimate and countered for only one-third of the estimate provided.” Pl.’s Suppl.

Br. Re Waiver 15 (19-239). However, in her initial opposition to Lloyd’s motion to

compel, Johannes stated she “filed the instant suit once it was clear that Lloyds

never intended to live up to its obligations . . . Defendant rejected these documents

submitted by Plaintiff. As such, negotiations had clearly reached an impasse, and

Plaintiff had no choice but to file suit.” Opp. to Mot. to Compel 6 – 7 (19-239). By

this assertion Johannes conceded an impasse occurred around May 30, 2019, the

date she filed her complaint. See Compl. (19-239). Lloyd’s claim Johannes

concluded her claim adjustment upon signing a proof of loss and accepting

payment on January 19, 2018. Under these circumstances, it is evident the

parties were engaged in negotiations up until payment on January 19, 2018.

Lloyd’s mere rejection of Johannes’ loss estimate did not constitute an impasse.

In light of these uncontested facts, this Court concludes that no impasse

occurred until Johannes served notice of her complaint upon Lloyd’s on June 28,

2019. Such service constituted the first clear signal that Johannes was no longer

willing to negotiate, and an agreement could not be reached. Lloyd’s filed its

appraisal demand approximately 5 months later on November 19, 2019. The

timing of such demand is not unreasonable. Under the circumstances Lloyd’s did

not intentionally relinquish its right to demand appraisal. In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 32

E) PRESCOTT (SX-2019-CV-258)

Plaintiff Traney Prescott submitted her proof of loss estimate, dated

November 4, 2017, to Lloyd’s in the amount of $39,020. Lloyd’s Resp. to Ct.’s

Order Ex. A (Estimate) (SX-2019-MC-069). Lloyd’s estimated her loss at $30,858

(less a $5,750 deductible) Id. at 2 Ex. B (Settlement Calculations). Prescott

executed a Form of Acceptance on November 18, 2017 agreeing that the amount

of her loss was $25,108 (30,858 – 5,750) in full and final discharge of her claim.

Lloyd’s Resp. to Ct.’s Order: Settlement Calculations Ex. B; Form of Acceptance

Ex. C (SX-2019-MC-069). She accepted payment in the amount of the $25,108

on January 19, 2018. Pl.’s Suppl. Br. Re Waiver: Prescott Affirmation Ex. A, at 2.

Prescott claims there was a clear impasse on January 19, 2018, when Lloyd’s

adjuster told her to take their offer ($25,108) or she would get nothing. Pl.’s Suppl.

Br. Re Waiver 14 (19-258). She contends Lloyd’s knew she demanded more than

they offered as she had told them their amount was insufficient. Lloyd’s assert

that no communication occurred between the parties from the time of payment to

the date Prescott served her lawsuit on Lloyd’s (i.e., on July 1, 2019); and that the

parties had reached an agreement. Lloyd’s Resp. to Ct.’s Order 2, 5 (SX-2019-

MC-069). This Court finds that Prescott’s execution of the Form of Acceptance

undermines her claim the parties reached an impasse as it is indicative of an intent In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 33

not to further negotiate nor contest Lloyd’s offer.

In light of these uncontested facts, this Court concludes that no impasse

occurred until Prescott served notice of her complaint upon Lloyd’s on July 1,

2019. Such service constituted the first clear signal that Prescott was no longer

willing to negotiate, and an agreement had not been reached. Lloyd’s filed its

appraisal demand 21 days later on July 22, 2019. The timing of such demand is

not unreasonable. Under the circumstances Lloyd’s did not intentionally

relinquish its right to demand appraisal.

F) DONAIE (SX-2019-CV-307)

Plaintiff Benedicta Donaie submitted her loss estimate of $230,000 to

Lloyd’s at some point in 2018. Pl.’s Suppl. Br. Re Waiver: Donaie Affirmation Ex.

A, at 2 (19-307); Mot. to Compel 2 (19-307). Lloyd’s determined her loss to be

$189,100. Id. On May 1, 2018, Lloyd’s paid Donaie the amount it determined her

loss to be. Id. at 3. Donaie, in her opposition, claimed “Plaintiff filed the instant

suit once it was clear that Lloyd’s never intended to live up to its obligations.” Opp.

to Mot. to Compel 7 (19-307). This assertion implies any impasse occurred

around July 16, 2019, when she filed her lawsuit. However, Donaie now claims

“[d]efendants clearly reached an impasse when Defendants rejected Plaintiff’s

estimate after inspecting her property and failed to demand an appraisal.” Pl.’s In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 34

Suppl. Br. Re Waiver 16. The inspection, she contends occurred in November

2018. She continues that “the impasse was apparent from the fact that

Defendant’s own agent told Plaintiff hat her estimate was too high.” Id. Here, the

parties clearly continued to communicate through at least November 2018 after

Plaintiff received partial payment. Lloyd’s claim the first notice they had that

Plaintiff was unhappy with the negotiations was when they were served with the

lawsuit. Reply in Supp. of Mot. to Compel 10 (19-307).

In light of these uncontested facts, this Court concludes that no impasse

occurred until Donaie served notice of her complaint upon Lloyd’s on July 29,

2019. Such service constituted the first clear signal that she was no longer willing

to negotiate, and an agreement had not been reached. Lloyd’s filed its appraisal

demand about 4 months later on November 20, 2019. The timing of such demand

is not unreasonable. Under the circumstances, Lloyd’s did not intentionally

G) NICHOLAS (SX-2019-CV-354)

Plaintiff Charlesworth H. Nicholas submitted his proof of loss estimate, dated

November 3, 2017, to Lloyd’s in the amount of $23,820. Pl.’s Suppl. Br. Re Waiver:

Nicholas Affirmation Ex. A, at 2; Lloyd’s Resp. to Ct.’s Order: Estimate Ex. I (SX-

2019-MC-069). Lloyd’s estimated his loss at $17,443 (which exceeded the In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 35

$19,500 deductible). Lloyd’s Resp. to Ct.’s Order 3 (SX-2019-MC-069). Nicholas

executed a Form of Acceptance on November 1, 2018 agreeing that the amount

of his loss was $6,976 in full and final discharge of his claim. Lloyd’s Resp. to Ct.’s

Order: Form of Acceptance Ex. J (SX-2019-MC-069). As Lloyd’s determined that

Nicholas’ deductible exceeded its calculated property loss, they made no payment

for his property (dwelling) loss. Hence the $6,976 payment represented personal

property loss only. Nicholas collected that payment made by check dated

January 18, 2018. Pl.’s. Suppl. Br. Re Waiver: Nicholas Affirmation Ex. A, at 2;

Lloyd’s Resp. to Court Order: Ex. J (Check).

Despite the Court’s order requiring submissions regarding the parties

contention as to when an impasse occurred, Nicholas did not specify such a date.

He simply claims Lloyd’s waived its right to demand appraisal when it denied his

claim without demanding appraisal. Pl.’s. Suppl. Br. Re Waiver 14. Presumably,

this denial occurred in early 2018. Mere denial of the amount of an insured’s loss

claim, however, does not equate to an impasse.

Lloyd’s assert no communication occurred between the parties from the time

of payment to when Nicholas served his complaint on Lloyd’s (i.e., on September

10, 2019); and that the parties had reached an agreement. Lloyd’s Resp. to Ct.’s

Order 4 (SX-2019-MC-069). This Court finds that Nicholas’ execution of the Form In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 36

of Acceptance undermines his claim that the parties reached an impasse as it is

indicative of an intent not to further negotiate nor contest Lloyd’s offer.

In light of these uncontested facts, this Court concludes that no impasse

occurred until Nicholas served notice of her complaint upon Lloyd’s on September

10, 2019. Such service constituted the first clear signal that Nicholas was no

longer willing to negotiate, and an agreement had not been reached. Lloyd’s filed

its appraisal demand 47 days later on November 10, 2019. The timing of such

demand is not unreasonable. Under the circumstances Lloyd’s did not

intentionally relinquish its right to demand appraisal.

H) MARTIN (SX-2019-CV-433)

Plaintiff Avin A. Martin submitted his proof of loss estimate on July 27, 2018

to Lloyd’s in the amount of $166,315. Pl.’s Suppl. Br. Re Waiver 4; Martin

Affirmation Ex. A, at 2; Mot. to Compel 2. On or about January 24, 2019, Lloyd’s

offered Martin $11,250 to settle his claim. Mot. to Compel 3; Pl.’s Suppl. Br. Re

Waiver: Martin Affirmation Ex. A, at 2. After further discussions, Lloyd’s revised

its offer to $70,000. Mot. to Compel 3; Pl.’s Suppl. Br. Re Waiver: Martin Affirmation

Ex. A, at 2. Martin signed a release on June 17, 2019 and received payment in

the amount of $70,000 on July 17, 2019. Reply in Supp. of Mot. to Compel 4; Pl.’s

Suppl. Br. Re Waiver: Martin Affirmation Ex. A, at 2. In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 37

Despite the Court’s order requiring submissions regarding the date the

parties contend an impasse occurred, Martin did not specify such a date.

However, in his initial opposition to the motion to compel, he asserted that he “filed

the instant suit once it was clear that Lloyd’s never intended to live up to its

obligations.” Opp. to Mot. to Compel 5. His complaint was filed on September 6,

2019. Consistent with this assertion, Lloyd’s contends the first notice it received

regarding Martin’s unhappiness with the negotiations was when it was served with

the instant lawsuit. Reply in Supp. of Mot. to Compel 10.

In light of these uncontested facts, this Court concludes that no impasse

occurred until Martin served notice of his complaint upon Lloyd’s on December 11,

2019. Such service constituted the first clear signal that an agreement had not

been reached. Lloyd’s filed its appraisal demand 56 days later on February 5,

2020. The timing of such demand is not unreasonable. Under the

circumstances Lloyd’s did not intentionally relinquish its right to demand appraisal.

I) JACOBS (SX-2019-CV-442)

Plaintiff Monica Y. Jacobs submitted her proof of loss estimate in February

2018 to Lloyd’s in the amount of $45,937. Pl.’s Suppl. Br. Re Waiver 4; Jacobs

Affirmation Ex. A, at 2; Mot. to Compel 2. Lloyd’s calculated her dwelling loss at

$30,998 and paid her $24,698 (after the deductible). Mot. to Compel 3; Pl.’s Suppl. In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 38

Br. Re Waiver 4; Jacobs Affirmation Ex. A, at 2.

Despite the Court’s order requiring submissions regarding the date the

parties contend an impasse occurred, Jacobs did not specify such a date.

Instead, she simply states “Defendants clearly reached an impasse when

Defendants rejected Plaintiff’s estimate after inspecting her property and failed to

demand an appraisal.” Pl.’s Suppl. Br. Re Waiver 15. Mere rejection of an offer,

however, does not equate to an impasse. Plaintiff further contends that “the

impasse was apparent from the fact that Defendants’ estimate was half of Plaintiff’s

estimate and did not include any structural damage.” Id. No rule of law supports

the contention that a large disparity in estimates, without more, constitutes an

impasse.

In Jacobs’ initial opposition to the motion to compel, she asserted that

“Defendant rejected these documents submitted by Plaintiff. As such,

negotiations had clearly reached an impasse, and Plaintiff had no choice but to file

suit-foreclosing Defendant’s ability to request an appraisal after the fact.” Opp. to

Mot. to Compel 7. Jacobs also asserted that “Plaintiff filed the instant suit once it

was clear that Lloyd’s never intended to live up to its obligations.” Her complaint

was filed on September 10, 2019. Consistent with this assertion, Lloyd’s

contends the first notice it received regarding Jacobs’ unhappiness with the In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 39

negotiations was when they were served with her lawsuit. Reply in Supp. of Mot.

to Compel 10. In light of these uncontested facts, this Court concludes that no

impasse occurred until Jacobs served notice of her complaint upon Lloyd’s on

September 27, 2019. Such service constituted the first clear signal that an

agreement had not been reached. Lloyd’s filed its appraisal demand 35 days later

on November 1, 2019,. The timing of such demand is not unreasonable. Under

the circumstances Lloyd’s did not intentionally relinquish its right to demand

appraisal.

J) RODGERS (SX-2019-CV-486)

Plaintiffs Roy A. and Deborah Rodgers submitted their loss estimate to

Lloyd’s on October 16, 2017 in the amount of $166,160. Pl.’s Suppl. Br. Re.

Waiver: Rodgers Affirmation Ex. A; Construction Cost Estimated Ex. 1 (dated

10/16/17) (19-486); Lloyd’s Resp. to Ct.’s Order 3. Lloyd’s calculated Plaintiffs’

loss at $75,091 and issued a check for $54,341 after the deductible. Pl.’s Suppl.

Br. Re. Waiver: Rodgers Affirmation Ex. A, at 1 (19-486); Lloyd’s Resp. to Ct.’s

Order: Check Payment Description Ex. G, 04/19/22 (SX-2019-MC-069). Plaintiffs

assert the check sat in Lloyd’s office for some time and they accepted it in early

2018 because they needed the funds to repair their home. Pl.’s Suppl. Br. Re.

Waiver: Rodgers Affirmation Ex. A, at 2 (19-486). In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 40

The Rodgers now claim the parties “reached an impasse when Plaintiff

rejected Defendant’s estimate of loss/settlement offer” in November 2017. Pl.’s

Suppl. Br. Re Waiver 15 (19-486) (emphasis supplied). They thus suggest an

impasse occurred a mere two months after the hurricane. Mere rejection of an

insured’s settlement offer, without more, does not constitute an impasse. Lloyd’s

assert the Rodgers accepted its offer after discussions and memorialized it in a

Form of Acceptance. Lloyd’s Resp. to Ct.’s Order 3. Their first notice of an

ongoing dispute was when the Rodgers served with their complaint on December

23, 2019. Id. Consistent with this contention, the Court notes that in their initial

opposition to Lloyd’s motion to compel, the Rodgers stated “after over two years

of delays, refusal to timely pay per the V.I. Insurance Code, 22 V.I.C. § 226, and

bad faith tender of a reduced amount of loss, Plaintiffs were forced to file a lawsuit

against the insures for damages.” Opp. to Mot. to Compel 3. This assertion

clearly demonstrates the parties were engaged in discussions for over two years

(way past the November 17, 2017 date contended by the Rodgers) after the

hurricane.

In light of these facts the Court concludes that no impasse was evident until

the Rodgers served their complaint upon Lloyd’s on December 23, 2019. Such

service constituted the first clear signal that an irreconcilable dispute existed In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 41

between the parties. Lloyd’s filed its appraisal demand 40 days later on February

4, 2020. The timing of such demand is not unreasonable. Under the

circumstances, Lloyd’s did not intentionally relinquish its right to demand appraisal.

4) No Prejudice Resulted From Any Delay In Invoking Appraisal.

Even if Lloyd’s had unreasonably delayed invocation of appraisal, this Court

cannot find a waiver of such right absent a showing that prejudice to Plaintiffs

resulted from the delay. See Allen v. Hovensa, LLC, 59 V.I. 430, 437 (V.I. 2013)

(stating in the arbitration context, “[a] party waives the right to compel arbitration

when it delays invoking the right and prejudice results from the delay.”) See also

In re Universal Underwriters of Tex. Ins. Co., 345 S.W.3d at 411 (stating, “[e]ven if

Universal had waited to request appraisal, mere delay is not enough to find

waiver; a party must show that it has been prejudiced. “ In determining prejudice,

this Court considers, among other factors, the timeliness of Lloyd’s motion and the

extent to which the parties have engaged in discovery and litigation. Id.

Plaintiffs contend that they are not required to show prejudice in order to

establish waiver. See, e.g., Pl.’s Suppl. Br. Re Waiver 3 (19-063). In support, they

cite the Virgin Islands Supreme Court’s opinion in Suid v. Law Office of Karin A.

Bentz, P.C., 75 V.I. 272 (V.I. 2021). Their reliance thereon is misplaced. There,

the Virgin Islands Supreme Court held that a mediation clause in an arbitration In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 42

agreement had been waived when the defendant took the inconsistent action of

moving to compel only arbitration. The parties’ arbitration agreement provided for

them to mediate any dispute before arbitration. The defendant, however, did not

seek to compel mediation. Instead, it sought to compel only arbitration. The

Supreme Court held the defendant “waived any protections afforded by the

mediation clause in the agreement by taking the inconsistent action of moving the

Superior Court to compel only arbitration.” Id. at 279. The instant facts are clearly

distinguishable. The only prerequisite here for seeking appraisal is a condition

that the parties cannot agree to the amount of loss. Lloyd’s, upon perceiving that

circumstance, moved to compel appraisal. It took no action inconsistent with

seeking an appraisal. Suid is thus inapposite to Plaintiffs’ case. It is not, as here,

a case involving the contention that a party delayed invoking the right to appraisal.

Whyte, 69 V.I. 766 (stating, “We have said ‘a party waives the right to compel

arbitration when it delays invoking the right and prejudice results from the delay’.”).

Lloyd’s did not, as in Suid, take any inconsistent action and hence, Suid is

inapposite. Further, nowhere in Suid does the Supreme Court even discuss the

issue of prejudice in regard to waiver. Plaintiff also cite other cases to support

their position which this Court finds irrelevant and thus will not address.

Despite arguing they need not prove prejudice, Plaintiffs nevertheless In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 43

contend the cost of appraisal will impose too onerous a burden upon them. See,

e.g., Opp. to Mot to Compel 5 (19-354). However, such cost was anticipated

when Plaintiffs executed their insurance contracts and is not cognizable prejudice

for purposes of the waiver analysis. Here, Lloyd’s demanded appraisal within two

to five months after service of Plaintiffs’ complaints. Except for Martin, Lloyd’s

filed its motion to compel within days of its demand. (Martin’s was filed six months

after). A review of the dockets reveals little if any discovery has been conducted

and no scheduling order has been issued. In sum, at the time Lloyd’s filed its

motions to compel, the litigation was in its infancy stage and hence Plaintiffs are

hard pressed to establish any prejudice resulting from the motions to compel. See

Whyte, 69 V.I. at 767 – 68 (where court found insufficient prejudice to establish

waiver where defendant filed a motion to compel 18 months after commencement

of lawsuit; did not respond to discovery requests; provide discovery; and

consented to scheduling order.); Allen, 58 V.I. at 437 (finding insufficient prejudice

where the defendant delayed filing its motion to compel for two years.).

Accordingly, this Court finds that Plaintiffs have failed to meet their burden to prove

they suffered any prejudice which resulted from any delay in Defendants invoking

appraisal. In Re: Hurricane Maria Insurance Cases SX-2019-MC-00069 2026 VI Super 4P Memorandum Opinion Page 44

CONCLUSION

For the reasons mentioned above, this Court concludes that: 1) Lloyd’s

properly invoked the parties’ appraisal provision within a reasonable time after it

became evident that the parties failed to agree on the amount of their hurricane-

related loss; and 2) no cognizable prejudice to Plaintiffs resulted from any delay in

Lloyd’s appraisal demand. As such, there was no waiver. Further, an appraisal

will help determine the merits and strength of other issues beyond the loss. For

example, if an appraisal estimate matches (or is less than) Lloyd’s calculated loss,

it will impact the merits of the plaintiff’s breach of contract and related claims and

may well facilitate resolution thereof. Accordingly, the Court will grant Lloyd’s

motions to compel appraisal. An order consistent herewith will follow.

DATE: February 6, 2026 ALPHONSO G. ANDREWS, JR. Superior Court Judge Attest: TAMARA CHARLES CLERK OF THE COURT ________________________ COURT CLERK III 02/06/2026 ___________________________ DATE