61 V.I. 87
Superior Court of The Virgin I...2014Background
- John Der Weer worked at the St. Croix refinery (1966–2002) and died of lung cancer (Sept. 12, 2003).
- Lenore Der Weer, as personal representative, sought wrongful death and survival remedies in 2005 against around thirty defendants, including Hess entities.
- Family Division appointed her as personal representative for wrongful death and for pursuing a survival action (Sept. 7, 2004).
- By Feb. 2014 several defendants settled; Hess moved to strike punitive damages; court held punitive damages not available in wrongful deaths where death occurred.
- In Apr. 2014 Der Weer sought to amend to add a survival action and damages for pain and suffering and punitive damages under 5 V.I.C. § 77.
- Court determines the complaint did not plead a survival claim and that even if she seeks leave to add one, statute of limitations barred it (survival claims abated before May 7, 2005).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the May 7, 2005 complaint adequately pleaded a survival claim | Der Weer argues Rule 8 permits correcting inadequacies to plead survival. | Hess contends no survival claim was pled and amendment would be futile. | Complaint did not plead a survival claim; amendment to add one would be futile due to time bar. |
| Whether the proposed amendment could relate back under Rule 15/Rule 8 | Der Weer argues analogies to Rule 15 allow relation back. | Hess argues relation back does not apply when survival claim not timely filed. | Relation back would not rescue an untimely survival claim; amendment denied. |
| Whether the survival claim is time-barred under 5 V.I.C. § 37(a) and § 31 | Survival claim could be timely if filed within one year of death; original filing within limits for wrongful death. | May 2005 complaint was filed after survival period; time had expired before filing. | Survival claim abated before May 7, 2005; statute of limitations expired; amendment futile. |
Key Cases Cited
- Mingolla v. Minnesota Mining & Manufacturing Co., 893 F. Supp. 499 (D.V.I. 1994) (reasons for reviving death-related torts under §76/§77 post-1974 amendments)
- Fleming ex rel. Fleming v. Whirlpool Corp., 301 F. Supp. 2d 411 (D.V.I. 2004) (held Mingolla alignment; cannot recover under both wrongful death and survival actions)
- Crawford v. Daly, 55 V.I. 66 (V.I. Super. Ct. 2010) (discusses Mingolla-Fleming approach; context for VI statutory interpretation)
- Martin v. United Security Services, Inc., 314 So. 2d 765 (Fla. 1975) (illustrates survivor vs. wrongful death distinction in borrowing states)