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IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS ‘DIVISION OF ST. CROIX BRENDA PHILLIPS, a minor by ROBERT PHILLIPS, next friend, CIVIL NO. 617/1983 Plaintiff, Ve ACTION FOR DAMAGES GOVERNMENT OF THE VIRGIN ISLANDS and JAMES ALEXIS, ‘Defendants. Nee eel? Set etl Set See Sot? Seep Some? Yet “etl yeh LARY RATLIFF, ESQUIRE . #5 King Street . Christiansted, St. Croix U.S. Virgin Islands 00820 (809) 773-0899 ~ (Attorney for Plaintiff) ae oa MICHAEL STEWART McLAURIN, ESQUIRE Assistant Attorney General ‘Office of the Attorney General Toro Building _ Christiansted, St. Croix ‘U.S. Virgin Islands 00820 (809) 773-0295 (Attorney for Defendant-—Government) PETERSEN, Judge MEMORANDUM OPINION August /F, 1984 This matter is before the Court on defendant-Government's FED. R. CIV. P. 12(c) motion -the: for judgment on the. pleadings on the grounds of lack of subject matter jurisdiction and failure to state a claim upon which relief. can be granted. In the alternative, the Government moves for summary judgment, pursuant to FED. R. CIV. P. 56. PHILLIPS v. GOVERNMENT OF THE VIRGIN ISLANDS CIVIL NO. 617/83 ACTION FOR DAMAGES ‘| FED R. CIV. P. 12(c) and 56 are made applicable to this Court Sonera ean by 5 V.1I.C. App. Iv R. 7 (1982). For the reasons set forth © below, the Government's motion must be denied. On or about May .19, 1983, the plaintiff, Brenda Phillips, was allegedly injured in an altercation with another individual at the Woodson Jr. High School bus shanty. The plaintiff filed a complaint with this Court on June 19, 1983, in which she alleges that her , injuries were sustained as a result of the negligent supervision of her schoolteacher. A summons and a copy of the complaint were served on the Office of the Governor and on the office of the Attorney General on July 20, 1983. The Government contends that the complaint must be dismissed for the failure of the plaintiff to serve a notice of intention to file a claim on the Office of the Governor within ninety days of the accrual of her claim, as required by the Virgin Islands Tort Claims Act (hereinafter referred to as "The Tort Claims Act"), 33 V.I.C. Section 3409(c) (1983 Supp.). The plaintiff argues that the service of the complaint on the Governor and on the Office of the Attorney General within ninety days of the accrual of the claim satisfied the notice requirement of 33 V.I.C. Section 3409 (c). PHILLIPS v. GOVERNMENT OF THE VIRGIN ISLANDS CIVIL NO. 617/83 ~ ACTION FOR DAMAGES ISSUE The issue before the Court is whether the service of a summons and a_ court complaint containing» the factual information required by 33 V.I.C. Section 3410 (1983--Supp.), on the Office of the Governor and on the Office of the Attorney General within ninety days of the accrual of the claim satisfies the notice requirement of 33 V.I.Cc. Section 3409 (c). | DISCUSSION 33 V.I.C. Section 3409(c) provides that in order to obtain a judgment against the Government a claim to recover damages for injuries to property or personal injury caused by the tort of an officer or employee of the Government of the Virgin Islands while acting as such officer or employee, shall be filed within 90 days after the accrual of such claim unless the claimant shall file within such time a written notice of intention to file a claim therefor, in which event the claim shall be filed within two years after the accrual of such claim. The claim or notice of intention to file a claim must be filed in the Office of the Governor with a copy served upon the Attorney General. -33 V.I.C. Section 3410. The claim must state the time when and. the place where such claim arose, the nature of the claim, and the items of damage or .injuries sustained and the total sum claimed. Id. The purpose behind the ninety-day notice provision eer tee ave a settlement while PHILLIPS v. GOVERNMENT OF THE VIRGIN ISLANDS CIVIL NO. 617/83 ACTION FOR DAMAGES of the Tort Claims Act is to prevent the presentation of stale claims so that the Government has an adequate opportunity to investigate and to explore the merits of a claim and to pursue the evidence remains fresh in the memory of witnesses. See Dublin v. Virgin Islands Telephone Corp. 15 V.I. 214, 232 (Terr. Ct. St. T. and J. 1978). See also Hopkins v. E. Syracuse Fire Department District, 49 Misc. 2d, 197, 267 N.Y¥.S.2d 61, 66 (City Ct. Syracuse 1966). In the case at bar, the plaintiff served the summons and a copy of the complaint on the Office of the Governor and on the Office of the Attorney General on June 20, 1983, approximately thirty-two days after the accrual of her claim. The complaint contains all of the factual information concerning the claim required by 33 V.I.C. Section 3410. Thus, the Government received an adequate opportunity to investigate the claim, explore its merits and pursue a settlement well within the ninety-day time limit of 33 V.I.c. Section 3409{(c). Moreover, it has been held elsewhere that a summons and a complaint may be treated as a valid notice of claim where, as here, it sets forth facts which must be included in a notice of claim. See Moskol v. Sood, 404 F.Supp. 916, 919 (W.D.N.¥. 1975) (applying New York law); Davidson v. Bronx Municipal Hospital, 99 A.D.2d 730, 472 N.¥.S.2d 355, 356-57 (N.Y. App. Div. 1984); Quintero v. Long i PHILLIPS v. GOVERNMENT OF THE VIRGIN ISLANDS CIVIL NO. 617/83 ACTION FOR DAMAGES Island Railroad, 31 A.D.2d 844, 298 N.¥.S.2d 109, 110 (N.Y. App. Div. 1969); Oliner v. Lenox Hill Hospital, 106 Misc.2d 107, 431 N.Y¥.S.2d 269, 270-71 (N.Y. Sup. Ct., Special Term ~~ 1980) . ‘To prevail on a FED. R. CIV. P. 12(c) motion for judgment on the pleadings or on a FED. R. CIV. P. 56 motion for summary judgment, the movant must show that no issue of material fact remains to be resolved and that he is entitled to judgment as a matter of law. Greenberg v. General Millis Fun Group, Inc., 478 F.2d 254, 256 (5th Cir. 1973) (per curiam); Lambert v. Inryco Inc., 569 F.Supp. 908, 912 (W.D. Ok1l. 1982); Alken v. Lerner, 485 F.Supp. 871, 873 (D.N.d. 1980). See, generally, Cardio-Medical Associates, Ltd. v. Crozer-Chester Medical Center, 536 F.Supp. 1065, 1070 (E.D.Pa. 1982). Considering the evidence in the light most favorable to the non-moving party, Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982); Lerner, supra; 5 WRIGHT AND MILLER, FEDERAL PRACTICE AND PROCEDURE, CIVIL: Section 1368 at 690 (1969), this Court finds that the service of the summons and a copy of the complaint on. the Office of the Governor and on the Office of the Attorney General within ninety-days of the accrual of the claim satisfies the claim or notice of claim filing requirement of 33 V.I.C. Sections 3409(c) and 3410 under the facts of this case. Accordingly, PHILLIPS v. GOVERNMENT OF THE VIRGIN ISL CIVIL NO. 617/83 ANDS ACTION FOR DAMAGES the Government's motion must be denied. As the Court finds that the plaintiff filed her claim with the Government within the required ninety-day period, the Court need not address the Government's argument that the plaintiff has failed to file a motion for permission to file a late claim. E-P2 C EILEEN R. PETERSEN Judge -