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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN SHIRLEY PACQUETTE Plaintiff CASE NO. ST-08-CV-0000538 ACTION FOR: DAMAGES - CIVIL Vs EUSTACE GRANT,JR. , ET AL., ee ee ee eee ee Defendant NOTICE OF ENTRY OF MEMORANDUM OPINION AND ORDER TO: DESMOND L. MAYNARD, ESQUIRE FRANCIS E. JACKSON, JR., ESQUIRE SCOT F. MCCHAIN, ESQUIRE ARTURO WATLINGTON, JR., ESQUIRE JUDGES & MAGISTRATES, SUPERIOR COURT LIBRARIAN DIVISION ORDER BOOK Please take notice that on December 10, 2010 a(n) MEMORANDUM OPINION AND ORDER dated December 03, 2010 was entered by the Clerk in the above-entitled matter. Dated: December 10, 2010 Venetia H. Velazquez, Esq. me Clerk of the Court 7. Mii ~ fora) —s DIANE MATTHEW-TURNBULL COURT CLERK II SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN SHIRLEY PACQUETTE, Plaintiff, vs. EUSTACE GRANT, JR., and VIRGIN ISLANDS CARNIVAL COMMITTEE, Defendants. CASE NO. ST-08-CV-538 EUSTACE GRANT, JR., vs. JOANNE DICKENSON, VIRGIN ISLANDS CARNIVAL COMMITTEE and INTERNATIONAL RENTAL and LEASING CORPORATION, d/b/a BUDGET RENT A CAR, ) ) ) ) ) ) ) ) ) ) ) Third Party Plaintiff, ) ) ) ) ) ) ) Third Party Defendants. ) _) MEMORANDUM OPINION Pending before the Court is the Virgin Islands Carnival Committee’s (“VICC”) motion to dismiss Counts J and II of Eustace Grant, Jr.’s Third Party Complaint.' For the following reasons, VICC’s motion will be granted in part and denied in part. FACTUAL AND PROCEDURAL HISTORY On April 26, 2008, at approximately 8:30 p.m., Plaintiff Shirley Pacquette was walking on a public roadway near Lionel Roberts Stadium in order to participate in the St. Thomas Carnival festivities. At that moment, Grant drove down the roadway and his ! VICC filed its motion on August 13, 2010, and Grant filed an opposition on September 9, 2010. Pacquette v. Grant, ST-08-CV-538 Memorandum Opinion, December 3, 2010 vehicle and/or its attached trolley ran over Pacquette’s foot, causing injury. On November 6, 2008, Pacquette filed a Complaint against Grant. Grant filed a Third Party Complaint against Joanne Dickenson, VICC, and Budget Rent-A-Car on January 16, 2009. Pacquette then filed an Amended Complaint on September 9, 2010, to add VICC as an © additional defendant, which this Court granted on September 16, 2010. , ANALYSIS Fed. R. Civ. P. 12(b)(6), made applicable to the Superior Court through SUPERIOR CT. R. 7, provides that upon a motion by the pleader, a claim, counterclaim, cross-claim, or third party claim shall be dismissed when there is a “failure to state a claim upon which relief can be granted” to the claimant. A motion to dismiss a portion of the pleadings should be denied if the factual allegations are “enough to raise a right of relief above the speculative level.” Phillips v. County of Allegheny, 2008 WL 305025, at *6 (3d Cir. 2008); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In Counts I and II, Grant alleges that VICC is obligated to indemnify Grant for any damages that Pacquette may be awarded against Grant. “In the Third Circuit, a right of indemnity must be based on an express contract or some special legal relation between parties, or must be implied in law.” Wilkins v. Caribbean Cooling Co., Inc., 1991 WL 734426, at *1 (D.V.I. 1991). Indemnity is “implied in law” in order to achieve an equitable result in the instance where an innocent party is held vicariously liable for the actions of the true tortfeasor. See David's Bridal, Inc. v. The House of Brides, Inc., 2010 WL 715437, at *9 (D.N.J. 2010). See also Restatement, Restitution, § 96 (1937) (“a person who, without personal fault, has become subject to tort liability for the unauthorized and wrongful conduct of another, is entitled Pacquette v. Grant, ST-08-CV-538 Memorandum Opinion, December 3, 2010 to indemnity from the other for expenditures properly made in the discharge of such liability”). In Count I, Grant alleges that VICC and/or Joanne Dickenson was his principal and that VICC is liable in this case under the theory of respondeat superior. Elsewhere in the Third Party Complaint, Grant alleges that he was operating the vehicle at the time of the incident with Dickenson’s permission. Moreover, Grant alleges that VICC was the principal of Dickenson and/or Grant. While Grant’s use of the phrase “and/or” is not a particularly artful way of describing with clarity the relationships of the parties, when the Third Party Complaint is construed in a manner that gives effect to the substance of the pleadings, the Court finds that Grant has adequately alleged an agency relationship between himself and VICC. See Proper v. Crawford County Correctional Facility, 2010 WL 3829640, at *2 (W.D. Pa. 2010) (Fed. R. Civ. P. 8(e) directs courts to construe pleadings “so as to do justice”). See also Restatement (Second) of Agency § 219(1) (1957). As aresult, VICC’s motion to dismiss Count I will be denied. In Count II, Grant alleges, essentially, that VICC caused Grant’s vehicle to strike Pacquette because VICC failed to adequately control the Carnival crowd. Grant’s claim for indemnity is therefore based on an implication of law, where it would be inequitable for Grant to be held vicariously liable for the negligent acts of another. Indemnity implied in law, however, requires Grant to demonstrate that he was not personally at fault. While it is a question for the fact finder to determine whether Grant was personally at fault, Grant has failed to allege in his Third Party Complaint that he could be held vicariously liable for the negligent acts of VICC through no fault of his own. Pacquette v. Grant, ST-08-CV-538 Memorandum Opinion, December 3, 2010 Moreover, the Amended Complaint reveals that Grant’s alleged negligent conduct includes: (a) “failing to drive his vehicle in a safe and prudent manner under the conditions then and there existing,” (b) “failing to make timely or any application of his brakes,” (c) “failing to keep his vehicle under proper control,” (d) “failing to keep a proper lookout for Plaintiff,” (e) “failing to obey the rules of the road,” (f) “failing to keep his vehicle on the roadway,” and (g) “failing to have adequate assistance in operating his vehicle.” (Amended Complaint, at pages 3 and 4). Pacquette alleges negligent conduct of Grant that is independent of any purported negligence of VICC. If Grant is found liable, his liability could result from his own negligence and not by reason of any negligence committed by VICC. See Crouch v. Tourtelot, 350 S.W.2d 799, 805 (Mo. 1961) (third party defendant’s liability “must arise solely from its constructive negligence in failing to remedy or prevent the consequences of the primary negligence of the [third party plaintiff]”). As a result, Grant has not stated a claim upon relief can be granted and Count II will be dismissed. An Order consistent with this Opinion shall follow. Dated: December.4 , 2010 = Cc _>—. HON, MICHAEL C. DUNSTON ATTEST: Venetia H. Velazquez, Esq. JUDGE OF THE SUPERIOR COURT Clerk of Court // OF THE VIRGIN ISLANDS ———. =" CERYIFIED A TRUE COPY RoSalie Griffith pate: —fo-/ LOA“ 0 Court Clerk Supervisor (Z1 is / Va Venefa re vdazquez, Esq. Clerk of the Court . 1 . cae os oe tes te uh A . . a t i oars . ‘ on ait r ne te , ee i ‘e . . ~- -- ele he 5 1 we . 87 3 fae rer os a ay ‘ oa i vey on if ve ee os (i 5 ule re ut an ; -. 4 - i é or on re i + as “4 te -ae ot th Le ae rs ae ot 7 .. oa . .- te tot Tee, . Pa ant » fy ay ms t ory yy, 7 we oa fen aesrereee, > a Se “ve oo “ oan re _< wv ‘o n* -. PO ad woes <_< os >». 2 ed ones wet ras) nr od wes vw 4~ ey -:? TS, So et Ns oUt oe ' ee XN ey iv hang ce e Ta rh, wm, s aw as ones vs a ran 2 w SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN SHIRLEY PACQUETTE, Plaintiff, vs. EUSTACE GRANT, JR., and VIRGIN ISLANDS CARNIVAL COMMITTEE, Defendants. CASE NO. ST-08-CV-538 EUSTACE GRANT, JR., vs. JOANNE DICKENSON, VIRGIN ISLANDS CARNIVAL COMMITTEE and INTERNATIONAL RENTAL and LEASING CORPORATION, d/b/a BUDGET RENT A CAR, ) ) ) ) ) ) ) ) ) ) ) Third Party Plaintiff, ) ) ) ) ) ) ) Third Party Defendants. ) _) ORDER UPON CONSIDERATION of the premises, it is hereby ORDERED that Virgin Islands Carnival Committee’s motion to dismiss Grant’s Third Party Complaint is DENIED with respect to Count I and GRANTED with respect to Count II; and it is Pacquette v. Grant, ST-08-CV-538 Order, December 3, 2010 el of record. ORDERED that a copy of this Order shall be directed to co Dated: December , 2010 _—— HON. MICHAEL C. DUNSTON ATTEST: Venetia H. Velazquez, Esq. JUDGE OF THE SUPERIOR COURT Clerk of Court / / OF THE VIRGIN ISLANDS ~ b Reéalie Griffith (Z16 1/0 Court Clerk Supervisor CERTIFIED A TRUE COPY Dates _ AB ZD 7 () Vengtia H-Yetazquez, Esq. Clerkef the Court By: 20 Court Clerk £ adit - a os 4 on Ls - ” - ne 2. te a “ tm> 4% * . peste heey fy oy os ~S vs oe Ne o 12 = a ws v . a. oo 4 my 2 ane <o™ G .e ro Ts ens ay =. : oe > ~~ Noe 16 4h ay ~~ aS ho we fa oD - ae aga: fe t wood ny Coa - lan To rt; ay wil —_— w aN eam ws