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IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX: CHRISTIANSTED JURISDICTION FRITZ TUTEIN, ) Plaintiff, ) CIVIL NO. 674/1982 vs. ) ACTION FOR DAMAGES ) YVONNE HYLAND ) and ) JURY TRIAL DEMANDED GOVERNMENT OF THE VIRGIN ) ISLANDS, ) ) Defendants. ) ) G. LUZ A. JAMES, ESQUIRE P.O. Box 3279 Christiansted, St. Croix U.S. Virgin Islands 00820 (809) 773-0801 (Attorney for Plaintiff) WILLIAM C. MURRAY, JR., ESQUIRE Law Offices of R. Eric Moore P.O. Box 3086 Christiansted, St. Croix U.S. Virgin Islands 00820 (809) 773-4150 (Attorney for Defendants) PETERSEN, Judge MEMORANDUM OPINION September Wed , 1982 This is an action for damages wherein the Plaintiff, Fritz Tutein alleges that the Defendants, Yvonne Hyland and ' the Government of the Virgin Islands were negligent in their medical treatment of the Plaintiff. Defendant Hyland has moved to dismiss the complaint pursuant to Rule 12(b), Federal ; Rules of Civil Procedure, claiming that this Court lacks subject matter jurisdiction and that the Plaintiff has therefore failed to state a claim upon which relief can be granted on the ground that the Plaintiff has not complied with 27 V.I.C. Section 166i(b). The Government has also moved to dismiss the complaint, claiming that Plaintiff has failed to comply with the procedural requirements of the Virgin Islands Tort Claims Act, 33 V.I.C. Section 3408-3415 (1981 Supp.) TUTEIN vs. HYLAND & GOVERNMENT OF THE V.1I. CIVIL NO. 674/1982 ACTION FOR DAMAGES The issues presented can be stated thusly: (1) whether the Plaintiff has met the procedural requirements of the Tort Claims Act; (2) whether the Plaintiff has satisfied those requirements of the Tort Claims Act which permit the filing of a late claim; and (3) whether the Plaintiff has complied with Title 27 V.I.C. Section 166i(b). For the following reasons, both defendants’ motions will be granted, and the Plaintiff's action will be dismissed. FACTS The Plaintiff alleges that Defendant Hyland, while employed as a registered nurse by the Defendant Government on February 7, 1980, was negligent in her treatment of the Plaintiff while he was a patient in the Charles Harwood Memorial Hospital. The complaint alleges that Hyland withdrew an intravenous needle and reinserted it in an attempt to rectify a situation which was causing Plaintiff's arm to swell and was allowing blood to enter the intravenous tube. Plaintiff claims that Hyland's negligence in reinserting the needle caused injury to a nerve and paralysis of the 4th and 5th fingers of his right hand. Plaintiff filed notice of intention to file a claim with the Governor on September 22, 1981, and filed a complaint with this Court on July 23, 1982. On August 2, 1982, Plaintiff moved to supplement the notice of intention to file a claim, which motion was accompanied by an affidavit, in an attempt to comply with the various procedural provisions of the Tort Claims Act. The Government opposed this motion, and then filed the Motion to Dismiss on August 26, 1982. Defendant Hyland's Motion to Dismiss was filed on September 7, 1982. ae nee eta ame ee TUTEIN vs. HYLAND & GOVERNMENT OF THE V.I. CIVIL NO. 674/1982 ACTION FOR DAMAGES DISCUSSION Prior to the enactment of the Tort Claims Act, 33 V.I.C. Sections 3408-3415, the Virgin Islands Government was immune from tort liability. By way of the Tort Claims Act, the Government waived its immunity from liability in tort actions up to a maximum of Twenty Five Thousand ($25,000.00) Dollars per claim. However, this waiver was conditioned on strict compliance with the procedures enumerated in the Act. As stated in 33 V.1I.C. Section 3408, immunity from tort liability is waived, "Provided, that the claimant complies with the provisions of this chapter." Recently, Judge Hodge analyzed in detail the provisions of the Tort Claims Act, intending his analysis to effect consistent compliance with the Act. A preliminary statement in Judge Hodge's analysis states: "33 V.I.C. Section 3408 compels strict compliance with the procedural provisions of the Act to effectuate a valid waiver, and 33 V.I.C. Section 3409 mandates that no judgment can be granted in favor of any claimant unless the provisions of the Act, whether mandatory or discretionary, are met." Joycelyn Mercer v. Government of the Virgin Islands, Civil No. 523/1980, in the Territorial Court of the Virgin Islands, Division of St. Thomas and St. John (decided May 12, 1982), at 4. See alSo Quailey v. Government, 12 V.I. 463, 465-66 (D.C.V.1.1975), and Virgin Islands Telephone Corporation v. Government, 13 V.I. 405, 406 (Terr. Ct., St. T. & St. J., 1977). Thus, strict adherence to the procedural provisions BE the Tort Claims Act is necessary, and "noncompliance can effectively nullify the government's waiver and consent, and thus deprive the Court of subject matter jurisdiction." Mercer v. Government, supra, at 6. One of the procedural requirements reads, in pertinent part, as follows: %, er eS: ae eT = a TUTEIN vs. HYLAND & GOVERNMENT OF THE V.1I. CIVIL NO. 674/1982 ACTION FOR DAMAGES (c) a claim to recover damages for injuries to property or for 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 ninety days after the accrual of such claim unless the claimant shall within such time file 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. 33 V.I.C. Section 3409(c) (1981 Supp.) As stated by Judge Hodge in Mercer v. Government, supra, at 6, this first paragraph of subsection (c) can be broken down into ‘ three parts: | "(a) The claim should be filed within ninety days after the date of its accrual. (b) The claimant may file a written Notice of Intention to file a claim within the same ninety-day period. (c) If the Notice of Intention to file a claim is timely filed, the claim may then be filed within two years after the date of its accrual." Subsection (c) of Section 3409 provides further that: A claimant who fails to file a claim or notice of intention, as provided in the foregoing subsections, within the time limited therein for filing the notice of intention, may, nevertheless, in the discretion of the court, be permitted to file such claim at any time within two years after the accrual thereof, or in the case of a claim for wrongful death within two years after the decedent's death. The application for such permission shall be made upon motion based upon affidavits showing a reasonable excuse for the failure to file the notice of intention and that the Virgin Islands or its appropriate department or agency had, prior to the expiration of the time limited for the filing of the notice of intention, actual knowledge of the facts constituting the claim. The claim pro- posed to be filed, containing all of the information set forth in section 3410 of this title, shall accompany such applica- tion. No such application shall be granted if the court shall find that the TUTEIN vs. HYLAND & GOVERNMENT OF THE V.I. CIVIL NO. 674/1982 ACTION FOR DAMAGES Government of the Virgin Islands has been substantially prejudiced by the failure of the claimant to file such notice of intention within the time limited therefor. But if the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed. A further procedural requirement states: The claim or notice of intention shall be filed in the Office of the Governor and a copy shall be served upon the Attorney General and a written receipt therefor shall be issued with the date of filing indicated thereon. The claim shall state the time when and the place where such claim arose, the nature of same, and items of damage or injuries claimed to have been sustained and the total sum claimed. The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated. The claim and notice of intention to file a claim shall be verified. 33 V.I.C. Section 3410 (1981 Supp.) Plaintiff's first action in this case was to file with the Governor a notice of intention to file a claim. This notice does not satisfy the requirement of 33 V.I.C. Section 3410 in that it fails to state the time when or the place where the claim arose, and it does not state the nature of the claim. In an apparent attempt to cure this defect, the Plaintiff filed a "Motion For Leave of Court to Supplement Notice of Intention to File Claim." In the accompanying affidavit, Plaintiff included the information required by Section 3410, and stated that such information "was inadvertently omitted from Plaintiff's Notice of Intention, which was otherwise timely served...." The Government opposes this motion, arguing that it is filed too late to be permitted in the discretionary two-year period for filing late claims. Although this Court agrees that Plaintiff's motion is filed too late to be permitted, there are additional reasons for a denial of Plaintiff's motion. The notice of intention to file a claim was filed with the Governor more than one year and pi NS we TUTEIN vs. HYLAND & GOVERNHENT OF THE V.I. CIVIL NO. 674/1982 ACTION FOR DAMAGES seven months after the accrual of the claim. The ninety (90) day period for filing such a notice was not met. The two (2) year discretionary period for filing late claims has no application to a notice of intention. Even if the Plaintiff | were to be allowed to supplement this notice of intention by belatedly including that information required under Section 3410, the Ninety (90) day period for filing a notice of intention still will not have been met. As stated by Judge | Young in In Re Steele, 9 V.I. 332, 335 (D.C.V.I. 1973): “According to 33 V.I.C. 3409, claimants must file their claims or written notices of intention to file claims within 90 days after accrual of the claims. There is no tolling of that period by reason of any ‘legal disability.' " (emphasis added). Thus, the failure of the Plaintiff to include the ' Section 3410 information in his notice of intention to file a claim was irrelevant as the 90-day period had passed. Contrary to Plaintiff's statement in the affidavit accompanying the motion, the notice of intention was not “otherwise timely served." Since the Plaintiff did not timely file a motion of intention to file a claim, he cannot take advantage of the first paragraph of 33 V.I.C. Section 3409(c), which would allow the Plaintiff to make a claim within two years of the accrual of the action as of right. Plaintiff must look to the second paragraph of 33 V.I.C. Section 3409(c), which puts the Plaintiff's ability to file his claim within two years of the incident at the discretion of the |, Court. Again referring to Judge Hodge's detailed analysis of the procedural requirements of the Tort Claims Act in Mercer , Vv. Government, supra, the second paragraph of Section 3409(c) involves the following: "The Court's discretionary power to permit the filing of a late claim within two years after the accrual thereof..., after proper and timely application is made and after the TUTEIN vs. HYLAND & GOVERNMENT OF THE V.I. CIVIL NO. 674/1982 ACTION FOR DAMAGES following conditions are met: (a) A Motion for Permission to file a late claim must be filed by the late claimant. (b) Affidavit(s): (1) Must accompany motion. (2) Must state reasonable excuse. (3) Must show Government had timely and actual knowledge of the incident. (c) The Proposed Claim: (1) Must accompany motion. (2) Must contain all Section 3410 information. (a) Prejudice to Government: (1) If substantial, Motion must be denied. (2) If not substantial, Motion may be granted. . (e) Legal Disability of Claimant: (1) If so, claim may be presented two years after disability removed. (2) If not, Motion may be granted." Plaintiff has failed to meet these requirements in a number of instances. Initially, no "Motion for Permission to file a late claim" was ever filed. Plaintiff's motion, dated August 2, 1982, is entitled "Motion for Leave of Court to Supplement Notice of Intention to File Claim." As_ stated previously, even if this motion were to be granted, it would be irrelevant as the time for notice of intention to file a claim has long passed. Even though this Court, on Defendants’ Motion to Dismiss, will look upon Plaintiff's Motion in a light most favorable to the Plaintiff and construe it as a Motion for Permission to file a late claim, such motion still cannot be granted. Plaintiff has failed to file his claim within two years after it has accrued. As stated in the complaint, the action arose on February 7, 1980. The complaint was filed July 23, 1982. Thus, more than two years and five months TUTEIN vs. HYLAND & GOVERNMENT OF THE Vv... CIVIL NO. 674/1982 ACTION FOR DAMAGES elapsed before the complaint was filed. In addition, there are three criteria necessary for a late claim to be allowed: reasonable excuse for failure to file sooner; actual knowledge of the facts, by the Government, within Ninety (90) days of the accrual of the claim; and lack of substantial prejudice to the Government. This Court is not at all convinced that these criteria have been met. More specifically, except for a bald statement in the affidavit accompanying Plaintiff's motion,it has not been shown that the Government had notice, nor that the Government would not be substantially prejudiced by having to defend a claim that is almost two and one-half years old. Even if these three criteria had been met, the Court's discretion is limited by the statute. The Court has the discretionary power to permit the filing of late claims within two years after the claim has accrued. As stated, this late claim is filed well after this two-year period, Plaintiff claims that he suffered a legal disability which rendered him unable to "file the required notice of intention and/or claim within the ninety (90) day period after accural [sic]." The last sentence of 33 V.I.C. Section 3409(c) allows the presentation of a claim within two years after a legal disability is removed. Plaintiff's alleged disability is that he required medical assistance off-island and subsequent corrective surgery. Again, however, Plaintiff's argument is misplaced. Plaintiff claims that his disability prevented him from meeting the 90-day requirement for filing his claim or his notice of intention to file a claim. As has been mentioned, the disability provision in Section 3409{(c) is not applicable to this 90-day period. As Judge Young stated, "the Court has the discretionary power to permit the late filing of claims within two (2) years after accrual of the TUTEIN vs. HYLAND & GOVERNMENT OF THE V.I. CIVIL NO. 674/1982 ACTION FOR DAMAGES claims. Is is only with respect to this two-year period for "filing by leave of court' that the issue of legal disability is involved." In Re Steele, supra, at 336. Thus Plaintiff's argument that, due to his legal disability, he was unable to meet the 90-day period, is irrelevant. Once again looking at matters in a light most favorable to plaintiff, this Court must determine whether this claim of disability, as applied to the two-year discretionary period, is sufficient to allow Plaintiff to file his claim date. This Court concludes that it is not sufficient, and the Plaintiff will not be allowed to file his claim at such a late date. In discussing this legal disability provision of Section 3409(c), Judge Young noted: "It states: 'But if the Claimant shall be under a legal disability, the claim may be presented within two years after such disability is removed.’ (Italics for emphasis). It does not state that the claim may be filed." In Re Steele, supra, at 336 (emphasis added). The present claim was filed more than two (2) years and five (5) months after its accrual. Moreover, in Quailey v. Government, Supra, at 467, Judge Young stated: "I have no difficulty in fashioning an hypothetical situation in which a single woman is returned semi-conscious and under constant medical supervision to her telephone-less home, takes a serious turn for the worse, is rushed to a specialized hospital on the mainland, remains in a quasi-comatose state for several months and finally, after miraculous surgical procedures errectuate a breakthrough, is allowed to return home albeit confined to a wheelchair. Under such a set of facts, I would have no difficulty in holding that the statutory period did not start to run until several months after her return. The difficulty, however, is that these are not the circumstances here." As a result, Judge Young denied the .Plaintiff's motion to file a late claim reasoning further that there was no showing that ‘ TUTEIN vs. HYLAND & GOVERNMENT OF THE V.I1. CIVIL NO. 674/1982 ACTION FOR DAMAGES the Plaintiff had no phone, nor that the Plaintiff was unable to communicate with anyone because of her injuries. For similar reasons, the present Plaintiff's motion, construed as a Motion for Permission to file a late claim, must be denied. Although "legal disability" sufficient to prevent = an individual from bringing a claim is a matter of degree, the Plaintiff in this case does not come close to Judge Young's hypothetical Plaintiff. The present Plaintiff's alleged disability is paralysis of two fingers of his right hand. Taking into consideration the allegation that the Plaintiff was off-island for corrective surgery, this Court is not convinced that the Plaintiff was unable to communicate with his attorney in any manner for such a long period of time. Defendant Hyland has also moved to Dismiss Plaintiff's claim, arguing that Plaintiff has not complied with 27 V.I.C. Section 166i(b), which provides that: No action against a health care provider may be commenced in court before the claimant's proposed complaint has been filed with the Committee and the Committee has received the expert opinion as required by this section, provided, that if said opinion is not received by the Committee within ninety days from the date the complaint was filed with the Committee, the claimant may commence his action against the health care provider in court; Provided further, That the commencement of the court action shall not prevent the Committee from obtaining the expert opinion. Since there has been no showing by Plaintiff to refute this Defendant's motion or to indicate that such a complaint has been filed with the Medical Malpractice Action Review Committee, Defendant Hyland's motion will be granted. at i TUTEIN vs. HYLAND & GOVERNMENT OF THE V.I. CIVIL NO, 674/1982 ACTION FOR DAMAGES Page ll CONCLUSION For the foregoing reasons, Plaintiff's Motion for Leave of Court to Supplement Notice of Intention to File Claim will be DENIED, Defendant Government's Motion to Dismiss will be GRANTED, and Defendant Hyland's Motion to Dismiss will also be GRANTED. OLED. (S17 “a co4 EILEEN R./ PETERSEN Judge