Rutha M. Brown and Frank Brown Jr. v. Certain Underwriters at Lloyd's of London Subscribing to Policy No. HOCAT1730XC, Certain Underwriters at Lloyd's of London Subscribing to Policy No. HOCGX1156XC, and Marshall & Sterling St. Croix, Inc.

• Court: Superior Court of The Virgin Islands
• Decided: June 7, 2021
• Docket: SX-20-CV-771
• Status: Published

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX RUTHA M BROWN AND FRANK BROWN JR Civil No SK 2020 CV 77] PLA'NT'FFS ACTION FOR DAMAGES v.

JURY TRIAL DEMANDED CERTAIN UNDERWRITERS AT LLOYD’S OF LONDON SUBSCRIBING TO POLICY N0 HOCAT1730XC CERTAIN UNDERWRITERS AT LLOYD’S 0F CITE AS 2021 V1 SUPER 12L LONDON SUBSCRIBING 1‘0 POLICY N0 HOCGX1165XC AND MARSHALL & STERLING ST CROIX INC DEFENDANTS

Appearances Lee J Rohn, Esq Lee J Rohn and Associates, LLC Christiansted, U S Virgin Islands For Plamtyfs

Robert J Kuczynski, Esq Beckstedt & Kuczynski LLP Christianstea, U S Virgin Islands For Defendant Marshall & Sterlmg St Cr01x Inc

Sharmane Davis Brathwaite, Esq Brathwaite Law LLC St Thomas, U S Virgin Islands For Defendant Certam Underwrzters at Lloyd .9 ofLondon subscribing to policy n0 HOCA T1 730XC

Greg L Mast, Esq John P Golden, Esq Fields Howell LLP Atlanta GA For Defendant Certain Underwrzters at Lloyd s ofLondon subscribing to policy no HOCGX] I65XC Brown, et a! v Certain Underwriters at Lloyd's of London subscribing to policy no HOCA T1 730XC e! a] SX 2020 CV 77] Memorandum Opinion 2021 V1 SUPER 6 S Page 2 of 9

MEMORANDUM OPINION

WILLOCKS Presiding Judge

THIS MATTER is before the Court sua sponte

BACKGROUND

1| 1 On November 5, 2020, Plaintiff Rutha M Brown and Plaintiff Frank Brown, Jr

(collectively, hereinafter “Plaintiffs”) filed a complaint against Defendant Certain Underwriters at

Lloyd 3 of London subscribing to policy no HOCAT1730XC (hereinafter Lloyds 173 OXC ) and

Defendant Marshal & Sterling St Croix, Inc (hereinafter “M&S”) in connection with two

insurance claims to wit, an insurance claim filed for burglary of Plaintiffs’ residence (2015)

(hereinafter “2015 Burglary Insurance Claim”) and an insurance claim filed for water damage to

Plaintiffs’ residence (2019) (hereinafter “2019 Water Damage Insurance Claim”) Subsequently,

both Defendant Lloyds 1730XC and Defendant M&S entered their respective appearances in this

matter

1] 2 On January 20 2021 Defendant Lloyds 1730XC filed its disclosure statement pursuant to

Rule 7 l of the Virgin Islands Rules of Civil Procedure (hereinafier “Rule 7 1”) '

' Rule 7 1 provides Rule 7 I Disclosure Statement (a) Who Must File; Contents A nongovernmental corporate party must file two copies of a disclosure statement that (1) identifies any parent corporation and any publicly held corporation owning l0°/o or more of its stock; or (2) states that there is no such corporation (b) Time to File Supplemental Filing A party must (1) file the disclosure statement with its first appearance, pleading, petition, motion, response or other request addressed to the court and (2) promptly file a supplemental statemen if any required infomation changes VI R CIV P 7 l Brown et a] v Certain Undenvmers at L10)d s of égiggggfgcgiging (0 palm} no HOCATI730XC e! a! Memorandum Opinion 2021 V1 SUPER A Page 3 of9

‘l[ 3 On February 2 2021 Plaintiffs filed a motion to amend complaint to add Certain

Underwriters at Lloyd 3 of London subscribing to policy no HOCGl 165XC (hereinafter Lloyds

l 165XC and together with Defendant Lloyds 1730XC and Defendant M&S Defendants ) as a

defendant in this matter On February 16, 2021 the Court entered an order granting Plaintiffs’

motion to amend and deemed Plaintiffs first amended complaint filed as of the date of the order

On February 17 2021 the Court entered an order whereby the Court ordered the parties to within

thirty days from the date of entry of the order meet and confer and report to the Court pursuant to

Rule 26(f) 0f the Virgin Islands Rules of Civil Procedure and submit a stipulatedjoint discovery

and scheduling plan

‘][4 Subsequently Defendant Lloyds ll65XC entered its appearance On March 11 2021

Defendant Lloyds I 165XC filed a motion to compel appraisal and to stay the action and a motion

to dismiss or in the alternative motion for a more definite statement

‘|[ 5 On March 22 2021, the parties filed a joint submission of proposed discovery and

scheduling plan (hereinafter Joint Submission ) In their Joint Submission the parties stated that

“Plaintiffs First Amended Complaint revolves around two (2) separate and distinct claims against

two (2) separate and distinct sets of insurers to wit Plaintiffs claim against [Defendant Lloyds

1730XC] arises from a 2019 water damage claim and ‘Plaintiffs’ claim against [Defendant

Lloyds l 165XC] arises from a 2015 burglary claim and thereby submitted two separate

discovery and scheduling plan for the Court’s consideration (Joint Submission p l ) Brown er al t Certain Underwmers at Lloyd 5 of London subscribmg to policy no HOCATI730XC e! a! 8X 2020 CV 771 Memorandum Opinion 2021 VI SUPER A Page 4 of 9

‘|[ 6 On April 13 2021 Defendant Lloyds ll65XC filed its disclosure statement pursuant to

Rule 7 l ’

‘I[ 7 On April 28 202! Plaintiffs filed an opposition to Defendant Lloyds l [65XC s motion to

compel appraisal and to stay the action an opposition to Defendant Lloyds ll65XC s motion to

dismiss or in the alternative, motion for a more definite statement and a motion to exceed page

limit as to its latter opposition Thereafter Defendants Lloyds I 165XC filed its replies to Plaintiffs

two oppositions

DISCUSSION

1 Misjoinder

‘11 8 Upon review of the file it has come to the Court 3 attention that the joinder of the three

Defendants may be improper here Rule 20 of the Virgin Islands Rules of Civil Procedure

(hereinafter Rule 20 ) governs permissive joinder of parties Under Rule 20 [p]ersons as

well as a vessel cargo or other property subject to admiralty process in rem may be joined in

one action as defendants if (A) any right to relief is asserted against them jointly severally or in

the alternative with respect to or arising out of the same transaction occurrence, or series of

transactions or occurrences, and (B) any question of law or fact common to all defendants will

arise in the action V I R Civ P 20(a)(2) The reporter 5 notes to Rule 20 state that multiple

defendants may be joined if any right to relief is asserted against them jointly severally, or in the

alternative with respect to or arising out of the same transaction and at least one question of law

or fact common to all defendants will arise in the action V I R Civ P 20 (rptr’s note)

’ The disclosure statements filed by Defendant Lloyds I73OXC and Defendant Lloyds 1165XC identified different parent Lorpmalionb) and publicly held wrporalmnts) ownino 10’: or more 01 its stock Brown et al v Certain Undemrtters at Lloyd 5 of London subscribing to poltm no HOCA Tl 730XC e! a! SX 2020 CV 771 Memorandum Opinion 2021 VI SUPER E\ Page 5 019

‘][ 9 Here, the Court finds that neither requirements under Rule 20 have been satisfied First,

Plaintiffs did not assert any right to relief against all three Defendants jointly, severally, 0r arises

from the same transaction occurrence or series of transactions or occurrences In fact the parties

made it very clear in their Joint Submission that Plaintiffs’ claims resolve around two (2) separate

and distinct claims against two (2) separate and distinct sets of insurers to wit, “Plaintiffs’ claim

against [Defendant Lloyds 1730XC] arises from a 2019 water damage claim” and Plaintiffs

claim against [Defendant Lloyds ll65XC] arises from a 2015 burglary claim (Joint Submission

p l ) Second, no question of law or fact common to all three Defendants will arise in the action

While it may appear at first glance that there is at least one legal question common to all three

Defendants here to wit, whether Defendants’ conducts were in violation of Title 22 V I C §

1204‘ (Count VI) whether Defendants’ conducts were in violation of Title 22 V I C § 228(a)4

(Count VII) whether Defendants engaged in deceptive trade practices the analysis will be based

on different set of facts for each defendant As such the Court finds joinder improper here and will

sever Plaintiffs‘ claims under Rule 215 0f the Virgin Islands Rules of Civil Procedure (hereinafter

Rule 21’ ) to wit Plaintiffs claims against Defendant Lloyds 1 165XC will be severed from this

3Title 22 V 1 C § 1204 pr0VitIu that |n]t) person xhall knuwmgly malt», publish ordiSsuninate any 141st (IL eptne or misleading representation or advurlising in the mndutt 01 the business 0! insurance or relative to any person ungagtd therein Title 22 V [C § 1204 ‘ Title 22 V l C § 228(4) provides that [Ll‘lLLth 91) days alter FthUilly 24 [984 insumnee companies donut: business in the Virgin 151 mas shall ham. [hilly (30) LdlLlldal‘ days 1mm the t1 rte on which an agreement to sum is \igned on a prom 01 (Jami has been filed whiehu Ll‘ comes last to tnalu. payment 01 all sums due under an insurance policy Title 22 V l C § 228(4) 5 Rule 21 provides Rule 21 Misjoinder and Nonjoinder of Parties Misjoinder of parties is not a ground tor dismissing an action On motion or on its own the court may at any time on just terms add or drop a party The court may also sever any claim against a party VI R Civ P 21 Brown et a! v Certain Underwriters at Lloyd s of London subscribing to policy no HOCA Tl 730XC et a1

giggighi‘litzgpinion 202] VI SUPER A Page 6 of9 matter Even if joinder was proper here, the Court nevertheless has the discretion to sever

Plaintifis’ claims under Rule 21 See V I R Civ P 21 (rptr’s note) (“Rule 21 makes it clear that

“misjoinder” and “nonjoinder” of parties is not jurisdictional such a defect will not cause the

action to be dismissed The Rule confirms the discretion of the court to rule, at any time, adding

or dropping a party on such terms as are just in the circumstances Severance of claims involving

one or more parties is also authorized ”), see also, Alleyne v Dzageo USVI Inc , 69 V I 307, 337

(V I Super Ct Sept 10, 2018) (“And even if joinder was proper here initially, the Court

nonetheless will exercise its discretion and sever the Plaintiffs’ claims because the determination

of damages will have to be on a case by case basis ”), see also Abednego v St Crow Alumina

LLC, 63 VI 153, 193 (V I Super Ct Aug 10 2015)( the Court will instead exercise its ‘broad

discretion’ and sever the plaintiffs' claims ”)

1|10 “Once severed, the claims proceed separately as ‘independent actions with separate

judgments entered in each ’” Grant v Hovensa LLC, 70 V I 639, 648 (V I Super May 20, 2019)

(quoting Abednego 63 VI at 183 (quoting DzrecTV Inc v Leta 467 F 3d 842 845 (3d Cir

2006))) Thus, the Court will order Plaintiffs to refile their claims against Defendant Lloyds

ll65XC in connection with the 2015 Burglary Insurance Claim in a separate lawsuit and pay the

accompanied filing fees unless they are permitted to proceed mforma pauperzs See Alleyne 69 at

325 36 (“Courts in the Virgin Islands have repeatedly held that payment of the filing fee is

mandatory and cannot be excused unless a patty is allowed to proceed m forma pauperts See 4

V I C § 513 The reason why is because “a party's failure to pay a filing fee required by law

implicates interests beyond those of the parties ” Mustafa v Camacho, 59 V I 566, 571 n 2 (V I

2013) (per curtam), see also, In re Red Dust Claims, 69 VI 147, 151 (V I Super Ct July 7, Brown et al v Certam Underwmers at Lloyd 3 of London subscribing to [701“) no HOCATI730XC era] SX 2020 CV 77] Memorandum Opinion 2021 VI SUPER £2! Page 7 of 9

2017) (explaining that the filing fee cannot be waived (as it is required by statute and would have

been assessed had each Plaintiff filed individually)’) (citation omitted) Additionally in light of

Plaintiffs allegations in their first amended complaint 6 Defendant M&S will also be named as a

defendant in the new complaint Plaintiffs will refile in connection with the 2015 Burglary

Insurance Claim

2 Disclosure Statement

‘ll 11 As noted above Rule 7 1 requires every “nongovernmental corporate party” to file two

copies of a disclosure statement that identifies any parent corporation and any publicly held

corporation owning 10% or more of its stock, or states that there is no such corporation ’7 V I

R Clv P 7 l(a)( l) (2) Disclosures statements must accompany the party 5 first appearance,

pleading petition motion, response or other request addressed to the court and must also be

supplement[ed] if any required information changes VI R CIv P 7 l(b)(l) (2) This is a

new rule and its aim is to avoid conflicts of interest and to make ownership of parties or affiliates

clear V I R Ctv P 7 l (rptrs note) Upon review of the file it has come to the Court 5 attention

6 In their complaint Plaintilfs alleged

6 Plaintifls went to Defendant, Marshall & Sterling St Croix, Inc (M&S) to obtain insurance coverage on their home at #198 Mary s Fancy St Croix U S Virgin Islands 7 They chose Marshall & Sterling St Croix Inc as it advertises it is the insurance expert and can be relied on to properly determine the amount and types of insurance Plaintiffs required 8 Plaintiffs reasonably relied on the advice of Defendant Marshall & Sterling St Croix Inc 9 At all times while providing such insurance advise Marshall & Sterling St Croix Inc acted on its own and as agent tor Defendant Certain Underwriters at Lloyds of London

Thus Defendant M&S is implicated in both Plaintiffs claims against Dclcndunt Lloyds I730XC in LOHIILLIion with tht 2015 Burglary Insurance Claim and Plaintifts claims against DLanddnl Lloyds I [65XC 1n u)nnLLIiun with [ht 2015 Burglary Insurance Claim See supra footnote I Brown et a! v Certain Underwriters at Lloyd s of London subscribing to policy no HOCA Tl730XC e! a! giggighizizgpinion 202] VI SUPER A Page 8 of 9

that Defendant M&S has not filed a disclosure statement in compliance with Rule 7 1 As such

the Court will order Defendant M&S to file such a disclosure statement See In re Complex thlg

Cases Pending m the Superior Court offhe VI 2019 V I LEXIS 28 at *ll 13 (V I Super Ct

Mar 5 2019)

3 Outstanding Motions

1] 12 Based on the foregoing, Defendant Lloyds 1165XC’s motion to compel appraisal and to

stay the action, filed on March 11, 2021 , and motion to dismiss 01', in the alternative, motion for a

more definite statement, filed on March 11, 2021 , will be denied without prejudice The Court will

order that all arguments previously raised in these aforementioned motions preserved and

Defendant Lloyds 1165XC may refile these motions in the proper lawsuit if it wishes to do so

Moreover, the parties’ Joint Submission and Plaintiffs’ motion to exceed page limit, filed on April

28, 2021, will also be denied as moot

CONCLUSION

1[ 13 For the reasons stated above, the Court will sever Plaintiffs’ claims against Defendant

Lloyds 1165XC from this matter and grant Plaintiffs leave to file a second amended complaint in

this matter that removes Defendant Lloyds 1165XC and Plaintiffs’ claims against Defendant

Lloyds 1165XC and refile a new complaint against Defendant Lloyds 1165XC and Defendant

M&S in connection with the 2015 Burglary Insurance Claim in a separate lawsuit Additionally,

the Court will order Defendant M&S to file a disclosure statement in compliance with Rule 7 I in

this matter and deny the outstanding motions An order consistent with this Memorandum Opinion

will be entered contemporaneously herewith Brown at a! v Certain Undenvriters ar led s of London subscnbmg (a polam no HOCATI 730XC at a! SX 2020 CV 77] c) Memorandum Opinion 2021 VI SUPER ‘ Page 9 of 9

DONE this a clay of30.15.2021

ATTEST 1/4] %. M Tamara Charles HAROLD W L WILLOCKS Clerk 9f the Coum Presiding Judge of the Superior Court

By W ourt Clerk SupemeoJ

Dated Q)! ELL“ 9- SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX RUTHA M BROWN AND FRANK BROWN JR ’ Civil No SK 2020 CV 771 PLA'NT'FFS’ ACTION FOR DAMAGES v.

JURY TRIAL DEMANDED CERTAIN UNDERWRITERS AT LLOYD’S OF LONDON SUBSCRIBING T0 POLICY N0 HOCAT1730XC CERTAIN UNDERWRITERS AT LLOYD SOF CITE AS 2021 V1 SUPERM— LONDON SUBSCRlBlNG T0 POLICY N0 HOCGX1165XC AND MARSHALL & STERLING ST CROIX INC DEFENDANTS

Appearances Lee J Rohn, Esq Lee J Rohn and Associates, LLC Christiansted, U S Virgin Islands For Plamnfifs

Robert J Kuczynski, Esq Beckstedt & Kuczynski LLP Christiansted, U S Virgin Islands For Defendant Marshall & Sterlmg St Crozx Inc

Sharmane Davis Brathwaite, Esq Brathwaite Law LLC St Thomas, U S Virgin Islands For Defendant Certain Underwrzters at Lloyd s ofLondon subscrtbmg to pollcy no HOCA T1 730XC

Greg L Mast, Esq John P Golden, Esq Fields Howell LLP Atlanta GA For Defendant Certam Underwriters at Lloyd s ofLondon subscrzbmg to policy no HOCGXI I65XC Brown, et at v Certain Underwriters at Lloyd's of London subscribing to policy no HOCA Tl 730XC e! a!

$320 CV 771 2021 v1 SUPER _lq_\_ Page 2 of4 ORDER

In accordance with the Memorandum Opinion entered contemporaneously herewith, it is

hereby

ORDERED that, pursuant to Rule 21 of the Virgin Islands Rules of Civil Procedure,

Plaintiffs’ claims against Defendant Lloyds 1165XC are SEVERED from this matter It is further

ORDERED that Defendant Lloyds 1165XC is DROPPED from this matter and shall be

REMOVED FROM THE CAPTION of this matter going forward It is further

ORDERED that within thirty (30) days from the date of entry of this Order Plaintiffs

shall file a second amended complaint in this matter that REMOVES Defendant Lloyds 1165XC

and their claims against Defendant Lloyds 1165XC It is further

ORDERED that, within forty five (45) days from the date of entry of this Order,

Plaintiffs shall REFILE a new complaint against Defendant Lloyds l l6SXC and Defendant M&S

in connection with the 2015 Burglary Insurance Claim in a separate lawsuit, and PAY the

accompanied filing fees unless they are permitted to proceed 1n forma pauperzs Failure to refile

as ordered herein shall result in the automatic DISMISSAL WITHOUT PREJUDICE of

Plaintiffs’ claims against Defendant Lloyds 1165XC and Defendant M&S in connection with the

2015 Burglary Insurance Claim, without further action from the Court, and in which event,

Plaintiff will need to initiate a new lawsuit, rather than simply refile, if Plaintiffs wish to pursue

their claims against Defendant Lloyds 1165XC and Defendant M&S in connection with the 2015

Burglary Insurance Claim, and all the procedures for initiating a new lawsuit shall be followed It

is further Brown et a! v Certain Underwruers a! Lloyd 5 of London subscribing to policy no HOCA Tl 730XC e! a!

:fdzegzo CV 771 2021 VI SUPER A Page 3 of4

ORDERED that all forthcoming complaints, whether amended or new, shall be drafted in

compliance with the Virgin Islands Rules of Civil Procedure including, but not limited to, setting

forth counts in separate numbered paragraphs with separate designation of the specific names of

each count in the pleadings as required under Rule 8 ofthe Virgin Islands Rules of Civil Procedure,

and name the defendant or defendants for each count clearly It is further

ORDERED that summons shall not issue for the refiling of the new complaint However,

Plaintiffs shall (i) serve a copy ofthe new complaint on Defendant Lloyds 1 165XC, and Defendant

M&S if appropriate, within fifteen (15) days after the new complaint is filed with the Clerk’s

Office, and (ii) file a notice of service, within seven (7) days after service A copy of this order

shall be attached to the new complaint It is further

ORDERED that within fifteen (15) days from the entry of this Order Defendant M&S

shall file a disclosure statement in compliance with Rule 7 1 in this matter It is further

ORDERED that Defendant Lloyds 1165XC s motion to compel appraisal and to stay the

action, filed on March 11, 2021, and motion to dismiss or, m the alternative, motion for a more

definite statement filed on March 11 2021 is DENIED WITHOUT PREJUDICE It is further

ORDERED that all argtunents previously raised in Defendant Lloyds 1165XC’s motion

to compel appraisal and to stay the action, filed on March 11, 2021, and motion to dismiss or, in

the alternative, motion for a more definite statement, filed on March 11, 2021, are preserved It is

further

ORDERED that the parties Joint Submission filed on March 22 2021, is DENIED AS

MOOT And it is further Brown e! a! v Certain Underwmers at L(md s of London subscnbmg to poltm no HOCATI 730XC er al SX 2020 CV 771 \ Order 2021 V1 SUPER £2 Page 4 of 4

ORDERED that Plaintiffs motion to exceed page limit filed on April 28 2021 is

DENIED AS MOOT

DONE and so ORDERED this '_i day of M 2021

ATTEST fl fl % 4M Tamara Charles HAROLD W L WILLOCKS Clerk of the Court Presiding Judge of the Superior Court

By W (H

Court Clerk W Dated 41 if) 2 2511