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C - IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX: KINGSHILL CHARLES HAYNES, Plaintiff, Ve NEREIDA GARCIA, Defendant & Third Party Plaintiff, Ve GOVERNMENT OF THE VIRGIN ISLANDS, and TOMAS F. CARRILLO, Third Party Defendants. eee eet Nome? Sea ee et ee Smet See eee? ee See See Sue See eet See See G. LUZ A. JAMES, ESQUIRE P.O. Box 3279 Christiansted, St. Croix U.S. Virgin Isiands (809) 778-8802 (Attorney for Plaintiff) ESZART A. WYNTER, ESQUIRE 1 Strand Street Frederiksted, St. Croix U.S. Virgin Islands 00840 (809) 772-1900 (Attorney for Defendant & Third Party Plaintiff) JOYCE GLASON O'REILLY, ESQUIRE Assistant Attorney General Office of the Attorney General Christiansted, St. Croix U.S. Virgin Islands 00820 (809) 773-0295 (Attorney for the Government & Tomas F. Carrillo) PETERSEN, Judge MEMORANDUM OPINION August OS 1985 CIVIL NO. 4/1984 ACTION FOR DAMAGES C C HAYNES v. GARCIA v. GOVERNMENT & CARRILLO CIVIL NO. 4/1984 ACTION FOR DAMAGES This Motion for Summary Judgment presents the following questions: Whether a criminal conviction for negligent driving estops a party from relitigating the issue of negligence in a subsequent civil action arising from the same accident as the earlier criminal action? Whether §28 of the Restatement, (Second) of Judgments warrants an exception to the established rule of issue preclusion in this particular case? Whether as a result of the preclusion of the issue of negligence, the doctrine of collateral estoppel also forecloses the issue of contributory negligence? FACTS On November 11, 1983, a vehicle driven by Third Party Plaintiff, Nereida Garcia, collided with a government owned vehicle driven by Thomas Carrillo. Ms. Garcia was ticketed and convicted of negligent driving at trial before Judge Pinch on December 15, 1983, and fined $40.00. On January 4, 1985, Charles Haynes, a passenger in the vehicle driven by Tomas Carrillo, brought a _ personal injury action against Ms. Garcia. On March 14, 1985, Ms. Garcia filed a Third Party Complaint against the Government of the Virgin Islands and Tomas Carrillo, Third Party Defendant. G C HAYNES v. GARCIA v. GOVERNMENT & CARRILLO CIVIL NO. 4/1984 ACTION FOR DAMAGES Third Party Defendant filed the present motion for summary judgment contending that the negligence of Third Party Plaintiff was the question at issue in the prior litigation and it having been determined by a guilty verdict against the Third Party Plaintiff, she is precluded from relitigating the issue of negligence. Third Party Plaintiff resists the motion for summary judgment on the grounds that she was not advised of her right to appeal, that a difference exists in the quality and extensiveness of the negligent driving trial and the present action, and further that no incentive existed at the time of trial to defend herself fully. To support these arguments, Third Party Plaintiff relies primarily upon the Restatement (Second) of Judgments (hereinafter, Restatement). In addition, Third Party Plaintiff argues that the issue of contributory negligence sought to be determined in the present case was not adjudicated in the criminal case. DISCUSSION I. Summary Judgment may be granted if the affidavits, pleadings, depositions, and other discovery documents’ show that there is no genuine issue as to any material fact and that the moving party is entitled to such judgment as a matter € G HAYNES v. GARCIA v. GOVERNMENT & CARRILLO CIVIL NO. 4/1984 ACTION FOR DAMAGES of law. Fed. R. Civ. P. 56(c); 5 V.I.C. App. I.R. 56 (c); Macedon v. Macedon, 19 V.I. 434 (Terr. Ct. St. C. 1983). When considering a motion for summary judgment, the Court must resolve any doubts as to the existence of disputed issues of material fact against the movants. However, summary judgment can be granted on the basis of collateral estoppel. Scooper Dooper, Inc. v. Draftco Corp., 494 F.2d 840 (3rd Cir. 1974); Robert Bower v. Terrence O'Hara, Doris Sparks and Sparks Caribbean Investment, Inc. Nos. 84-3400 and 84-3402, (3d Cir. April 17, 1985). Section 27 of the Restatement (Second) of Torts provides: "When an issue of fact of law is actually litigated and determined by a valid and final judgment, and the judgment is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." In order to invoke collateral estoppel successfully under Virgin Islands law, four requirements must be met: (1) The issue sought to be precluded must be the same as that involved in the prior action; (2) That issue must have been actually litigated; (3) It must have been determined by a valid and final judgment; and (4) The determination must have been essential to C C HAYNES v. GARCIA v. GOVERNMENT & CARRILLO CIVIL NO. 4/1984 ACTION FOR DAMAGES the prior judgment. Beloit Power Systems, Inc. v. Hess Oil Virgin Islands Corp. 19 V.I. 519 (D.C.V.1I.1983). The requirements for the application of collateral estoppel are met in this case: the present issue of Ms. Garcia's negligence is the same issue raised in the December 5, 1983 trial; the issue of her negligence was actually litigated; a final judgment was rendered; and the determination of her negligence was essential to the judgment. Therefore, Third Party Plaintiff Ms. Garcia is estopped from denying that she drove in a negligent manner. Ii. Third Party Plaintiff contends that due to several exceptions of §28 of the Restatement, the negligent driving judgment should not be given collateral estoppel effect. She relies on the following subsections to support her argument: (1) The party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action; or (2) A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts or by factors relating to the allocation of jurisdiction between them; or (3) There is a clear and convincing need for a new determination of the issue (a) Because of the potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the initial action; C € HAYNES v. GARCIA v. GOVERNMENT & CARRILLO CIVIL NO. 4/1984 ACTION FOR DAMAGES b) Because it was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action, or (c) Because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action... Restatement (Second) of Judgments, §28 (1980). Third Party Plaintiff first contends that she could not have obtained review of the judgment because she was not advised of her right to appeal as required by Rule 32 (a) (2) F.R. Crim. P. See 5 V.I.C. App. II R32(a) (2). Indeed, comment a of §28 explains that "[t]he exception in §(1) applies only when review is precluded as a matter of law. It does not apply in cases where review is available but is not sought." The sentencing judge's alleged failure to advise Third Party Plaintiff of her right to appeal is not a denial of the right of review as a matter of law. If the Third Party Plaintiff had sought review it would have been available. As a result, the exception provided under §28 cannot foreclose the operation of collateral estoppel. As to the failure of the sentencing judge to advise a criminal defendant of the right to appeal under Rule 32(a) (2), F.R. Crim. P. most courts have determined the proper C C HAYNES v. GARCIA v. GOVERNMENT & CARRILLO CIVIL NO. 4/1984 ACTION FOR DAMAGES remedy to be the reopening of the appeal, generally accomplished through remanding the matter to the trial court for resentencing. Hoskins v. United States, 462 F.2d 271 (3d Cir. 1972). Third Party Plaintiff also contends that a new determination of the issue is warranted because of the differences in the quality or extensiveness of the procedures followed in the two courts. The traffic case was before the Territorial Court. The civil case is before the Territorial Court. Therefore, where as here, the same issue arises in the the same court where the issue was first decided, the case for the application of this exception has no merit. Finally, Third Party Plaintiff argues that there is a clear and convincing need for a new determination of the issue because it was unforeseeable that the issue would arise in the context of the subsequent action and there was a lack of fair opportunity to litigate in the initial action. Third Party Plaintiff likewise contends that no incentive existed to hire an attorney and litigate the traffic ticket fully because the penalty was relatively insignificant. A distinction must be made between a case where a defendant has not been represented by counsel occasioned by legitimate financial considerations and a case in which a defendant otherwise prefers to act as his own attorney. The doctrine of C C HAYNES v. GARCIA v. GOVERNMENT & CARRILLO CIVIL NO. 4/1984 ACTION FOR DAMAGES collateral estoppel cannot be governed by the failure of the trial strategy of the defendant. The concept of collateral estoppel or issue preclusion encompasses two competing concerns: That the litigation of legal issues should be brought to an end, and that a party should have the right to appeal at least once in order that he may assert his legal rights and have his day in court. Clarenbach v. Consolidated Parts, Ine. 17 V.1I.123 (Terr. Ct. St.T and St.J 1980). Furthermore, a party who has had one fair and full opportunity to prove a claim and has failed in that effort, should not be permitted to go to trial on the merits of that claim a second time unless’ some overriding consideration of fairness to litigant dictates a different result in the circumstances of a particular case. In light of the compulsory automobile insurance in the Virgin Islands, as well as the forseeability of subsequent private suits that typically follow vehicular accidents, the Third Party Plaintiff had every incentive to litigate the criminal action fully and vigorously. At the December 5, 1983 trial, Third Party Plaintiff was afforded a full opportunity to litigate the issue of negligence with all the safeguards afforded the criminal defendant including the requirement of proof beyond a reasonable doubt - a more stringent standard than in the subsequent civil action. G C HAYNES v. GARCIA v. GOVERNMENT & CARRILLO CIVIL NO. 4/1984 ACTION FOR DAMAGES Collateral estoppel can apply when the issue to be relitigated was necessarily determined during a criminal trial in the government's favor. Martin v. Frett, 18 V.I. 32 (D.Ct.V.I. 1980). In Martin, the District Court held that since the issue of the driver's intoxication at the time of the accident had been fully litigated and decided during a criminal trial at which he was convicted of driving while intoxicated, partial summary judgment on that issue would be granted in a subsequent civil suit arising from the same accident.. In the instant case, Third Party Plaintiff received a full and fair opportunity to litigate the issue of her guilt in the criminal action and is estopped from relitigating the issue of negligence. III. Third Party defendant contends that Third-Party Plaintiff is estopped to assert that any actions other than her own negligence caused the November 11, 1983 accident. In the criminal action, contributory negligence and other affirmative defenses were not available. Although the defendant might nevertheless be guilty of negligent driving at the time of the accident, in a civil action there are possible defenses against liability such as the plaintiff's contributory negligence so that the defendant's wrongful act C C HAYNES v. GARCIA v. GOVERNMENT & CARRILLO CIVIL NO. 4/1984 ACTION FOR DAMAGES was not the sole and proximate cause of the injury. A criminal conviction for negligent driving does not foreclose the jury's ultimate determination of civil liability. The jury acting under proper instructions of comparative negligence adopted for use in the Virgin Islands, would be able to apportion the negligence between the parties, 5 V.1.C. §1451. Furthermore, the issue whether Third Party Plaintiff was negligent, is not identical to the issue of whether Third Party Defendant is free from contributory negligence. The issue of contributory negligence was not litigated. Consequently, material factual issues are yet to be resolved with respect to contributory negligence. While the parties to the civil action are barred from relitigating those issues actually determined in the prior criminal prosecution, they are free to raise any issues that were not previously decided. Kauffman v. Moss, 420 F.2d 1270, 1274 (3d Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L. Ed.2d 84 (1970). Therefore, the negligent driving judgment cannot estop Third Party Plaintiff from litigating the issue of whether Third Party Defendant was contributorily negligent. Accordingly, partial summary judgment is granted as to the issue of negligence and shall be denied as to the issue iene Ng ttt gern EILEEN R. P ( Judge of contributory negligence.