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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX HILBURN AUGUSTIN Plaintiff, Case No SK 2006 CV 00711 v ACTION FOR DAMAGES REEF BROADCASTING ROTATING EQUIPMENT CORP d/b/a THE PENTHOUSE ROOF TOP and HUGH JURY TRIAL QEMANDED PEMBERTON Defendants 2022 VI SUPER S4U MEMORANDUM OPINION and ORDER f 1 THIS MATTER comes before the Court on Defendant Rotating Equipment Corporation’s (“REC”) Motion for Summary Judgment, filed May 26, 2011 Plaintiff filed an Opposition to the Motion on June 20 2011 Plaintiff filed Notices of Supplemental Authority on July 1, 2011 and November 10, 2011 The arguments considered, and for the reasons explained below, the Motion for Summary Judgment will be granted LEGAL STANDARD 1] 2 Per Virgin Islands Rule ofCivil Procedure 56(a) “The court shall grant summaryjudgment 1f the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law ” The Virgin Islands summary judgment rule mirrors the “well known summary judgment provision applicable in most American jurisdictions ” Advisory Committee on Rules Comment to V I R Civ P 56 A movant is entitled to summary judgment if there is no triable issue of material fact ’ Baszc Servs Inc v Gov {ofthe VI , 71 V I 652, 658, 2019 v121 118 (V I 2019) (citing Rymer v Kmart Corp 68 v I 571 575 (v I 2018)) ‘ 3 ‘ Once the moving party has identified the portions of the record that demonstrate no issue of material fact ‘the burden shifts to the non moving party to present affirmative evidence from which a jury might reasonably return a verdict in his favor ’ Rymer, 68 VI at 576 (quoting Chapman v Cornwall, 58 V I 431, 436 (V I 2013)) “The non moving party ‘may not rest upon mere allegations, [but] must present actual evidence showing a genuine issue for trial ’” 1d at 575 (quoting Williams v United Corp 50 VI 191 194 (VI 2008)) (brackets in original) A court Augustin v ReefBroadcastmg et al Case No SX 2006 CV 00711 Memorandum Opinion and Order 2022 VI SUPER 54U considering a motion for summary judgment should view evidence in the light most favorable to the non moving party Baszc Servs Inc , 71 V I at 659 (citing Machado v Yacht Haven US V] LLC 61 V I 373 379 (V I 2014)) 11 4 The Virgin Islands Workers’ Compensation Act (“WCA”), 24 V I C § 250 et seq , was enacted to “afford expeditious compensation to employees and their dependents without regard to negligence of employer or employee ” 24 V I C § 250(a) The WCA obligates every employer subject to the WCA to be insured with the Government Insurance Fund 24 V I C § 272(a) An employer under the WCA enjoys the protection of an exclusivity provision, which provides that “the right herein established to obtain compensation shall be the only remedy [of an employee] against the employer ” 24 V I C § 284 However, if an employer is uninsured, [t]he injured employee of an uninsured employer, instead of receiving compensation under this chapter may elect, at any time prior to the rendering of a decision by the Administrator, to bring suit for damages against the employer, just as if this chapter were not applicable 24 V I C § 26l(b)(1) (emphasis added) 1| 5 The Court interprets the meaning of the statutory language by looking first to determine whether its words have a plain and unambiguous meaning, and the statutory scheme is coherent and consistent ‘ 11 6 An employee’s receipt of funds under the WCA resulting from a job related injury does not necessarily bar the employee’s ability to bring an action against his uninsured employer, in circumstances where payments were made before the injured employee, or his estate, had any “meaningful opportunity to elect to sue ” See Bertrand v Gardiner Enters Inc , 55 V I 267, 282 83 (VI Super 2011) 2 “The ‘decision’ referred to in Section 261(b)(1) apparently refers to the 3 “‘The first step when interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning 1f the statutory language is unambiguous and the statutory scheme is coherent and consistent, no further inquiry is needed In re L 0 F 62 V 1 655 661 (V 1 2015) (quoting Kelley v Gov I ofthe V I 59 V l 742 745 (V 1 2013)) (internal quotation marks omitted) In examining a statutory scheme we must look to the context surrounding each statute to determine the Legislature s intent, Otrley v Estate ofBell 61 V 1 480 493 (V I 2014), and must give effect to every provision making sure to avoid interpreting any provision in a manner that would render it—or another provision wholIy superfluous and without an independent meaning or function of its own ‘ L 0 F 62 V I at 661 (quoting Define v Phillip 56 V1 109 129 (V1 2012)) (internal quotation marks omitted) see also 1 V I C § 42 (‘Words and phrases shall be read with their context ’) ” Bertrand v Mystic Grantte & Marble Inc , 63 V 1 772, 784 (V1 2015) 2 Another Superior Court case has held that under the doctrine of election of remedies the injured employee of an uninsured employer can either elect to receive workers’ compensation benefits or sue his uninsured employer but Augustin v ReefBroadcastmg et a] Case No SX 2006 CV 00711 Memorandum Opinion and Order 2022 VI SUPER 54U decision by the administrator of the amount of compensation due to the employee that must be collected from the employer after hearing from both the employer and the employee,” as contemplated in 24 V I C § 261(a)(2) Id DISCUSSION ‘ 7 Both parties’ filings relevant to the Motion relied on the Federal Rules of Civil Procedure, applicable at the time ofthe filings through then Super Ct R 7 However, the Virgin Islands Rules of Civil Procedure now “govern proceedings in any action pending on the effective date of these rules or amendments, unless (A) the Supreme Court ofthe Virgin Islands specifies otherwise by order or (B) the Superior Court makes an express finding that applying them in a particular previous pending action would be infeasible or would work an injustice ” V I R Civ P l 1(c)(2) No such express finding is made here, and the Virgin Islands Rules govern the Court’s disposition of the Motion 1! 8 Defendant REC argues that it is entitled to summary judgment as Plaintiff’s suit is barred under the Workers’ Compensation program Motion at 1 2 REC acknowledges that it was uninsured on March 14, 2006, the date of the underlying incident, but argues that under 24 V I C § 261(b)(1), an injured employee of an uninsured employer may elect to either sue the employer directly or, in the alternative, to receive workers’ compensation benefits See 1d at 1 As Plaintiff received workers’ compensation benefits, REC argues that it is protected from suit and that summaty judgment should enter in its favor Id at 2 1|9 Plaintiff opposes summary judgment, arguing that his suit against REC is not barred Plaintiffacknowledges that he did receive workers’ compensation benefits Yet, he argues that his suit against REC as uninsured employer is not barred unless two things have occurred both that not both See Estate ofModesle v C&C Conslr & Mam! Inc 72 V l 38 48' 2019 VI SUPER 123 111] 21 22 (V I Super 2019) The holdings of Modeste and Bertrand are distinguishable In Bertrand, the Administrator made the decision to begin paying benefits on the day of the ultimately fatal incident while the employee’s beneficiaries sought emergency medical care without knowing that the employer was uninsured and not having “had any meaningful opponunity to elect to sue 55 V I at 283 The injured employee in Modeste was “cognizant of his legal rights ’ and submitted an affidavit acknowledging that understanding when he initiated his claim for benefits, electing not to sue his uninsured employer 72 V l at 48 While not relevant to the issues herein, in both Bertrand and Modeste the Superior Court noted concem to prevent the potential double recovery of an injured employee, receiving benefits under the WCA and in litigation against the uninsured employer These concerns should be allayed by 24 V I C §§ 261(a)(2) and 263, and by 5 V I C § 427 (providing for reimbursement to the Uninsured Employer Cases Fund for payments made, by uninsured employers, or by liable third parties, or by reduction at trial of the award due the plaintiff) See Bertrandv Mystic Granite & Marble Inc 63 V l at 787 Augustin v ReefBroadcastmg er a! Case No SX 2006 CV 00711 Memorandum Opinion and Order 2022 VI SUPER 54U Plaintiff elected to receive workers’ compensation benefits, and that the uninsured employer has reimbursed the Government Insurance Fund for the benefits paid Opposition at 10 Plaintiffargues that since Defendant REC has not repaid the workers’ compensation benefits paid out, despite being ordered multiple times to do so, his suit is not barred and that to find otherwise “would foster employers’ failure to obtain workers’ compensation insurance as they would obtain a bar from suit without making payments ” Id Additionally, Plaintiff argues that RBC’s motion for summary judgment is defective as it failed to include a statement of maten'al facts Id at 7 8 (citing Local Rules of Civil Procedure 56 1(a)) 1[ 10 Plaintiff’s argument that the Motion is fatally flawed for failing to include an undisputed statement of facts is without merit While V I R Civ P 56(c)(1), akin the Local Rules of Civil Procedure 56 1(a) cited in the Opposition, directs parties seeking to summaryjudgment to “include a statement of undisputed facts in a separate section within the motion,” V I R Civ P 56(c)(l), “failure to include a statement of undisputed facts does not automatically render [a] motion fatally deficient Davis v Mlllzgan 2020 VI SUPER 99U 1| 6 (V I Super Dec 4 2020) (citing Hendricks v Pinnacle Servs LLC 72 V I 630 635 (V I Super 2020)) The trial court should consider the merits of a motion for summary judgment, granting it only if the “the evidence in the summaryjudgment record supports this relief ” 1d (internal citation and quotation marks omitted) The Court concurs and will consider the Motion on its merits 1| 11 It undisputed that Defendant REC was uninsured under the WCA at the time of Plaintiff’s job related injury The issue to be determined is whether, despite REC’s uninsured status, Plaintiff’s claim is barred under the relevant provision of the statute which reads [t]he injured employee of an uninsured employer, instead of receiving compensation under this chapter may elect, at any time prior to the rendering of a decision by the Administrator, to bring suit for damages against the employer, just as if this chapter were not applicable 24 V I C § 261(b)(]) (emphasis added) 11 12 By the plain language ofthe statute, “a decision by the Administrator” terminates an injured employee’s opportunity to elect to sue his uninsured employer This particular subsection does not make clear what “decision” is referenced, but 24 V I C § 261(a)(2) and (a)(3) identify “the decision by the administrator of the amount of compensation due to the employee that must be collected from the employer after hearing from both the employer and the employee ” Bertrand v Cordzner Enters Inc , 55 V I at 282 83 5/24/2022