USVI Public Records

Document text

, ) o IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX AT IONGSHlLL WILSON LETT, Plaintiff, NORBERT ROSADO, PAUL WIGHTMAN, HESS OIL VIRGIN ISLANDS CORP., ~ . ,,-." Lee J. Robo, Esq. Pamela Lynn Colon, Esq. Law Offices orLee 1. Rohn 1101 King Street, Suile 2 ChriSlillll5led, St. CTQbt, 00820-493) {Attorneys for Plaintiffl Britain H. Bryant, Esq. Bryant, Bames & Moss, LLP 1 \34 King 5t., Second flOTT P.O. Box 4589 Chrisriansled, 51. Croix 00822 (Attorney for Defendant HOVIC) CABRET, P.J. Defendants. ) CIVIL NO. 7321)!l95 ) ) ) ) ACTION FOR DAMAGES ) ) ) ) ) NOT FOR PUBLICATION ) THIS MATTER is before the Court on the plaintiff's Motion to Lift a Stay in this action, as to Defendant Hess Oil Virgin Islands Corp.. The defendant opposes the motion. For the following reasons, the Court will grant the plaintiff's motion. Statemept afF.cts and Procedural History Plaintiff alleges he was injured in an acddent, after being struck by a vehicle driven by Norberto Rosado ("Rosado''). Plaintiff filed this action in negligence agail\Sl against Rosado, • ) o ) LETT Y. ROSADO, H. al . CW. NO. 73111995 ORDtR- MOTION TO UFT STAY Paul Wightman (",Wightman'') and Hess Oil Virgin Islands Corp. ("HOVle''). In his second amended complaint, plaintiff alleges that Rosado was acting during the scope of employment with HOvie at the time of the ac<:ident and thai HOVle was utilizing a vehicle owned by Wightman during the course of its business. Plaintiff also alleges negligent entru.stment of the vehicle by both Wightman and HOVIe. Wightman tiled for banknJptcy after this action was filed, and this action was initially stayed under 11 U.S.C. 362. However, the bankruptcy coun subsequently lifted that stay order and allowed the plaintilTlo proceed against the co-defendants and against Wightman, only 10 the extent plaintiff only sought recovery of any available insunnce proceeds and not against Wightman's Jjei-sonal IlSSCts. Subsequently, this coun entered an order vacating the stay of this maner. The p!ainliffJater stipulated to. dismissal arthis action as to Wightman. Thus, only Rosado and HOVIe remained as defendants. On September 3, 1997, this Court (on petition from the lieutenant governor's office) entered an Droer of Rehabilitation with regard to the insuran<:e company under which Rosado is covered - Island National ln5urance Co. That order stayed this action with regard to Rosado, as lUI ill$ured of said insurance company. Rosado filed a Notic.c of Stay with the Court. HOVIC objected to the action beina stayed only with regard to Rosado and moved to stay the entire action. Plaintiff did not object and, on October 21, 1997, this Court stayed all prcx:ealings in this clSe. DiscussloD Plaintiff now movcs to lilt the stay with regard to HOVIC, citing the Jack of action on the rehabilitation of Island Nalional lnsurance, the likelihood that the insllflllCe maner will not be resolved anytime soon, and the prqudic.c to the plaintiff resulting from inaction in this case. HOVIC objects to lilting the stay on several JfOUJids: 1) Plaintiff should have sought timely relief through I Motion for Reconsideration of the stay order; 2) lifting the stay as to Rosado would amount 10 I dismissal against that defendant, whom the defendant believcs· is an Mindispensable party" and; 3) the stay, enlemi by the Honorable Edgar D. Ross, has no time limitations and eannot be lilted until fwtherorder of me coun. • ) u LETT Y. ROSADO, d. aL elY. NO. 73111995 ORD£R-MOTtON TO LIfT STAY HOVle argues that lifting the stay would be tantamount to a dismissal of this action against Rosado, which it contends is an indispensable party.1 Defendant further asserts mat, be<:ause the allegations against HOYle lie in vicarious liability, those claims are dependent on Rosado's liability and cannot be pursued without Rosado as a pany. Plaintiff counters that Rosado, though a "desirable" party. is 1101 an indispensable one. Plaintifffunher asserts that, this being a scope of employment case, the plaintiff may proceed only against HOVle and need not secure a penonal judgment against Rosado.! The central issue, then. is whether Rosado is an indispensable party to an action against his employer for harm done during the scope of his employment, requiring a continued stay of the entire action unlil Rosado's presence is assured, in order to~enSute··a fair disposition orthis case. The Federal Rules require thai parties bejoined in a single action if: (I) in lIle person's absence complete relief cannot be accorded among those already parties. or (2) lIle person claims an interest relating 10 the subject of the action and is so situated that the disposition of the action in the person's absence may 0) as a practical matter impair or impede lIle person's ability to protect lIlat interest or (ii) leave any of lIle persons already parties subject to a substantial risk of incuning double, multiple. or otherwise inconsi$lent obligations by reason of the claimed interest. FED. R. CIV. P. 19 (a). In other cases, where !he concerns noted in Rule 19 are not present, a litigant seeking a right to relief 'jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences" may, but is not required to,join parties in one action. FED. R. CIV. P. 20 (a) ("Pennissive Joinder"). The policies underlying lIle compulsory joinder rule are to prevent actions from proceeding against parties which would resull in "partial or hollow ralller lIlan complete relief to the parties before the court" or which would result in repeated lawsuits on the same subject matter. See FED. R. Clv. P. 19, advisory committee notes to 1966 amendment (internal quotation marks omitted). DeC.lllUm·. CKhot arguments have no meri~ becall5e the plaintiff is no4 seeking rttOnsidmUoII, bUI ",!ber se.ks la lilt tho stay. , Tbo [)errndam dl.s 10 no IU1hori1y far the propoJitian lllal the~ an be noacUoD apinJl 1M QlI$I ... , in lb. oboe"". af!he servaot, ror 1wm resultina from the servam's canduct duriJlg the srope afhis employmeal or resultia& from. !he ma..<ter's nc&ligenlenlrUSttnenl. ) () ) LETT Y, ROSADO, lit. al. crv. NO.1J1Il995 ORDER- MonON TO UfT STAY The Restatement of Torts reflects the pennissive joinder requirements for actions involving tortfeasors subject 10 joint and several liability. Where more than one lortfeasor contributes 10 another's hann in a single event, the Restatement penni!s an injured perwn to seek recovery, in a single action, from one or more of those tortfeasors. See REsTATEMENT (SECOND) OF TORTS § 882, at 328 (1979). The comment to the Restatement notes: The rule stated in this Section permits joining in one action any number of lonfeasors, each of whom is resoonsjble for the entire amount of damages for which the action is brought. II applies when master and servant or principal and agent are both subject to liability for the tort orthe $efVanl or agent .... REsTATEMENT § 882, comment b (emphasis added). The illustrations to Section 882 further -.,,-," support the oennissive. rather than mandatory, joinder of a master and servant, and refute the defendant's argument that Rosado is an indispensable party subject to compulsory joinder. As the Restatement illustrates: "A employs S, a servant, who negligently nulS over C. C is entitled to maintain an action against A Of B or against either of them." !d. at iIlus. 1; see also, 7 CHARlES WRIGHT AND ALLAN MILLER, FEDERAL PRACTtCE AND PROCEDURE § 1623 (2001); see also FED. R. Ctv. P. 19, advisory committee notes to 1966 amendment (acknowledging the "well-settled authorities holding that a tortfeasor with the usual joint and several liability is merely a permissive party to an action against another with like liability" and that joinder of such tortfeasors is regulated by Rule 20) (citations and internal quotation marks omitted). The case law also supports this result in actions involving a principal/master and an agent/servant. In Hall v. NUI/ollal Service Il/dlU/ries, Iflc., 172 F.R.D. 157, 159-60 (E.D.Pa. 1997), on facts strikingly similar to those oow before this court, the court had occasion to decide whether an employee must be joined in an action against an employer based on vicarious liability principles. That Court held that the employee need 001 be joined in such a case, consistent with authorities which hold that joinder is not required of a principal and agent.ld. (citations omitted). There, the court allowed the plaintiff to proceed in the negligence action only against the principal/employer, holding that the employee was not an indispensable party within the meaning of Rule 19 (a). [d. (action fOf respondeat superior and negligent entrustment ofvehicle 10 servant). Similarly, in Murphy v. Newport Waterfront Landing, Inc., 806 F.Supp. 322, 325 (D.R.T.1992), the Court permitted a negligence and vicarious liability claim to proceed against • ) o Lr.tT Y. ROSADO, ........ ClV. NO. 13l1ltfS ORDER-MOTJONTO UfTSTAY PACE 5 the employer, despite the fact that the claim agairut its doorman was dismissed for lack of jurisdiction, holding that the doonnan was not an indispensable party. In so holding, the Court noted that an "employee is not a necessary party to a suit against his employer under !'e$pOTldcat superior", in line with "the well established principle that a person has a joint action 19ainst the masleT and his servant for the injuries resulling from !he negligence or wrongful act of the servant under the doctrine of respondeat sLiperior, or he may bring his suit against either the servant or the masler." Id. (citations omined; internal quotation marlts omitted). The court noted thai the plaintiff could have brought suit solely against the employer from the outset. fd. A similar result was reached in Toogood~. Owen J. Rogal, D.D.S., P.e., 764 A.2d 552, SSg (pa.Supa:·2000), where the court pcnnined a vicarious liability negligence claim to proceed against the principal doctor (employer), despite his employee doctor's death. Jd. at 559 (holding that "[w]hen olle defelldant's tort liability is vicariously based 011 respondeal superior, the other parties life not initially required to pursue their rights of recovery, contribution or indemnification from the urvant wh05e operative negligence led to the plainrifi's injury by joining that servant.") (quoring Rivera v. Philadelphia Theological Seminary of SI. Charles Borromea, Inc., S07 A.2d I, 11-12 (1986); distinguishing Mamalis v. Alias Van Lines, Inc., 522 Pl. 214, 560 A.2d 1380 (1989), in which plaintiff was barred from asserting claim against principal, after full satisfaction of claim by agent for the harm, which extinguished the entire claim). Here, as the Restatement and the other authorities noted above illustrate, Plaintiff may proceed against the employer 12!: the employee, either of which may be held liable for the entire hann. The concerns noted in Federal Rule of Civil Procedure 19 (a) are not present, because there is no risk of double recovery, ina)flsistent results or multiplicity of lawsuits on the same subject matter. Thil is because the plaintiff can enjoy only one satisfaction, from either party, for the hann .Ileged and would be barred &om later bringing a separate action against the other party 10 recoyer for the $MIle harm. See, e.,. REsTATEMENT § 885. MouoYer, if the employer i$ found liable (or. judgment based on its employee's conduct, it may then sceIc contribution or indemnity from the employee (or any amounts paid on such judgment. See REsTATEMENT §§ 886A(I), 8868 (2Xa). Finally, HOVIC - not Rosado - may be held directly liable (oc negligent CIlttustmcnl of the yehicle to Rosado. Thus, because complete relief is available • ) .' LETT Y, ROSADO, tt. ... crv. NO. 732/1995 ORDER - MonON TO LIFT STAY PAGE Ii regardless of whether either or both master and servant are parties 10 this litigation, and where HOVIe is not subject 10 double liability, this case does not implicate the concerns of Federal Rule of Civil Procedure 19 which would compel a finding that Rosado is indispensable 10 this action. Given the foregoing, and in the absence ofauthonty from the defendant to the contrary, the Court concludes thai the plaintiff CQuld properly proceed against HOVle, despite the continued Slay as 10 Rosado. CODdusioD An action against an employer for the conduct of an employee during the scope of employrfteni/irilder respondeat superior principles, may be brought solely against the employer and need nOI include the employee. Indeed, an employer may be held solely liable for the entire hann caused by its employee under such circumstances. Additionally,joint and several liability principles pennit only one satisfaction for a single harm and, therefore, pose no risk of duplicitous litigation or multiple and inconsistent obligations. Moreover, an action for negligent entrustment is one against the employer, based on its conduct. For the foregoing reasons, the employee, Norbeno Rosado, cannot be said to be an indispensable party. Accordingly, this action may proceed against HOVIe. An appropriate order follows. ATTEST: