Pickering v. David

22 V.I. 105, 1986 V.I. LEXIS 13
CourtSupreme Court of The Virgin Islands
DecidedAugust 22, 1986
DocketCivil No. 469/1986
StatusPublished
Cited by6 cases

This text of 22 V.I. 105 (Pickering v. David) is published on Counsel Stack Legal Research, covering Supreme Court of The Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pickering v. David, 22 V.I. 105, 1986 V.I. LEXIS 13 (virginislands 1986).

Opinion

MEMORANDUM OPINION

The plaintiff, Rose Pickering, has moved, pursuant to 33 V.I.C. § 3409(c) (Supp. 1985), for permission to file a tort claim against the defendant Virgin Islands Government (Government) despite the passage of more than 90 days since the accrual of the claim. The Government opposes the motion, and asks that the complaint as to it be dismissed, contending that the plaintiff has failed to provide a reasonable excuse for her tardiness and because she has failed to demonstrate that the Government had timely and actual notice of the claim. The plaintiff’s motion will be denied and the complaint against the Government will be dismissed for lack of subject matter jurisdiction.

I

Plaintiff’s complaint and motion, filed on June 23, 1986, alleges that on October 18, 1985, she was forcibly evicted from a building by the defendant Rupert David, a police officer then employed by the Government and acting within the scope of his employment. The plaintiff further alleges that David used excessive force to effect the eviction and injured her. Plaintiff’s motion, apparently prepared without the benefit of counsel, urges the court to exercise the discretion granted by 33 V.I.C. § 3409(c) and allow the filing of her claim against the Government even though more than 90 days have passed since her claim accrued.1 The plaintiff requests the court’s indulgence because she was ignorant of the filing constraints imposed by section 3409 and because she assumed that she must wait until a related criminal charge against her was terminated.

[108]*108II

Section 3409 of the Virgin Islands Tort Claims Act (VITCA), 33 V.I.C. § 3408 et seq. (Supp. 1985), sets out the applicable filing requirements.2 Subsection (c) of section 3409 requires tort claims against the Government to be filed within 90 days after the accrual of the claim unless the claimant elects to file a notice of intention during that time.3 Subsection 3409(c) also grants the court discretion, within two years after the accrual of the claim, to allow a claimant who has failed to comply with the 90-day filing provision to file a claim. This discretion, however, may only be exercised when the claimant meets certain conditions. Initially, she must show a reasonable excuse for the delay and that the Government had timely and actual knowledge of the incident. The proposed claim must accompany the motion and must contain all the information required by 33 V.I.C. § 3410.4 Finally, the court [109]*109must find the absence of substantial prejudice to the Government.

The plaintiff proffers alternative excuses for her dilatoriness, none of which the court finds reasonable. First, Pickering claims that she mentioned her intention to sue the Government to the attorney she had retained to defend her against the criminal charges stemming from the same incident that is the basis of this action. Second, she claims that “she . . . believed that her attorney in the . . . criminal matter intended to represent her in [the] subsequent civil action, but the attorney did not so intend.” 5 It is unfortunate that the plaintiff was unable to effectively communicate with her retained counsel, but her failure to clearly communicate her wishes, under the circumstances here, can hardly be considered a reasonable excuse.

The primary thrust of plaintiff’s motion is that “she believed that the appropriate time to commence a civil action was after the termination of her criminal case” and that she “was at all relevant times ignorant of the 90-day notice-of-claim prerequisite.” The plaintiff’s claim of legal ignorance, however, is belied by her own artful preparation of the documents in this case. Although she appears pro se, the plaintiff is no stranger to court proceedings. The court’s records reveal that in the last several years alone she has been in no less than seven civil cases.6 More importantly, her claim of ignorance is rendered questionable by the fact that this is not the plaintiff’s first exposure to the filing requirements of subsection 3409(c). In fact, one of plaintiff’s efforts to utilize the VITCA had the precise effect of adding to the body of case law [110]*110interpreting its filing requirements. See Pickering v. Government, 19 V.I. 271 (D.V.I. 1982).

That case was dismissed by the District Court of the Virgin Islands because of Pickering’s failure to file a formal claim against the Government within two years after accrual of her claim. The court stated, however, that since the plaintiff had substantially complied with section 3409’s 90-day provision by filing a timely notice of intention she could, after dismissal, seek leave of court to have the filing of the lawsuit be deemed a claim nunc pro tunc. In view of the plaintiff’s previous exposure to and compliance with the 90-day provision of section 3409, albeit with the aid of counsel, her present claim of ignorance lacks merit. Moreover, “[sjince the Act has been in effect for approximately [15] years, neither its novelty nor its complexity can now be accepted as an excusable basis for noncompliance.” Mercer v. Government, 18 V.I. 171, 172 (Terr. Ct. 1982). In addition, the court finds Pickering’s claim of ignorance to be tantamount to the plaintiff’s claim of inadvertence in Harley v. Government, supra. It also is not dissimilar to the plaintiff’s action in St. Clair Prince v. Government, Civil No. 76/1974 (D.V.I. April 1976), in which Chief Judge Christian commented: “The bare allegation that one is ‘unaccustomed to the laws of the Virgin Islands’ is not in my opinion enough to constitute a reasonable cause.”

Although rigorous compliance with the procedural requirements of the VITCA initially was not demanded, with the passage of time strict adherence has become the rule. Compare Richards v. Government, 10 V.I. 6 (D.V.I. 1973), and Henry v. Government, 10 V.I. 227 (D.V.I. 1973), with Mercer v. Government, 18 V.I. 171 (Terr. Ct. 1982); Harley v. Government, 18 V.I. 228 (Terr. Ct. 1982), Dublin v. Virgin Islands Telephone Corp., 15 V.I. 214 (Terr. Ct. 1978), and V.I. Telephone Corp. v. Government, 13 V.I. 405 (Terr. Ct. 1977).

The waiver of immunity by the Virgin Islands as provided for by the VITCA is not absolute. Indeed, the same statute that waives the Government’s immunity from suit, 33 V.I.C. § 3408, is expressly conditioned upon a claimant’s compliance with the VITCA’s procedural requirements. “[Ojne desiring to proceed under the Act must strictly adhere to the procedural requirements of the statute before he or she may press a demand under the law.” Virgin Islands Telephone Corp. v. Government, 13 V.I. 405, 406 (Terr. Ct. 1977); Harley v. Government, 18 V.I. 228, 231 (Terr. Ct. [111]*1111982); see also Mercer v. Government, supra at 175. “Where a Tort Claims Act plaintiff has failed to timely comply with all of the administrative requirements set forth in the Act, the court is prevented from granting judgment in favor of the plaintiff and is therefore compelled to dismiss for lack of subject matter jurisdiction. George v. Boynes, 13 V.I. 582 (D.V.I. 1977); Quailey v. Government, 12 V.I. 463 (D.V.I. 1975); Mercer v. Government, supra.” Pickering v. Government, supra, 19 V.I. at 275.

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Bluebook (online)
22 V.I. 105, 1986 V.I. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pickering-v-david-virginislands-1986.