64 V.I. 107
Superior Court of The Virgin I...2016Background
- John Der Weer worked at HOVENSA/HOVIC and, in 1999, signed a broad release in exchange for a cash supplement; the release purported to release HOVENSA, its parents, subsidiaries and affiliates and bound heirs and successors.
- Der Weer died in 2003 of lung cancer allegedly caused by workplace asbestos exposure; his wife Lenore was appointed personal representative and filed this wrongful death suit in 2005 against multiple defendants, including HOVIC.
- HOVIC moved for summary judgment in 2013, asserting the 1999 release bars the wrongful death claim; Mrs. Der Weer opposed and argued the release does not apply to wrongful death, is ambiguous, and is unconscionable.
- UOP filed a late response joining plaintiff; HOVIC moved to strike UOP’s untimely filing and later sought to strike an argument in plaintiff’s supplemental brief after the supervisory Connor decision prompted supplemental briefing.
- The court heard oral argument, considered supplemental briefs (ordered in light of Connor), and denied HOVIC’s summary judgment motion and the related motions to strike and plaintiff’s motion for leave to file a surresponse.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a release signed by the decedent bars survivors’ wrongful death claim | Der Weer: release does not apply; wrongful death accrues at death and belongs to survivors, so decedent could not release it | HOVIC: release broadly waived all claims up to signing and affiliates can enforce it, so wrongful death barred | Held: Release by decedent does not bar survivors’ wrongful death claim; wrongful death accrues at death and belongs to survivors, so decedent could not release their claim |
| Whether court should consider extrinsic evidence to construe the release | Der Weer: release ambiguous; extrinsic evidence (letters) shows release limited to employment claims and vested claims only | HOVIC: release is clear and complete; parol evidence rule bars extrinsic evidence | Held: Court did not resolve ambiguity on parol rule because decedent’s release was irrelevant to wrongful death; extrinsic evidence unnecessary for disposition |
| Whether HOVIC timely raised the release defense and whether plaintiff may file a surresponse on statute-of-limitations theory | Der Weer: HOVIC delayed raising the release and plaintiff should be allowed to add argument that enforcement is time-barred | HOVIC: summary-judgment motion was timely; surresponses to add new arguments are disfavored and unnecessary | Held: Plaintiff’s requested surresponse denied as the statute‑of‑limitations argument was inapplicable and additional briefing would not aid resolution |
| Whether court should strike UOP’s untimely opposition and plaintiff’s supplemental argument | UOP/plaintiff: oppose striking; motions to strike drastic and unnecessary; supplemental briefing allowed post-Connor | HOVIC: strike UOP’s late filing; strike plaintiff’s supplemental argument as beyond scope | Held: Motions to strike denied; court exercised discretion to disregard UOP’s late arguments and found plaintiff’s supplemental points permitted by the Connor-directed briefing window |
Key Cases Cited
- Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967 (discusses methodology for determining Virgin Islands common law)
- Government of the Virgin Islands v. Connor, 60 V.I. 597 (V.I. 2014) (directs three-part analysis for adopting common law in absence of binding precedent)
- Thompson v. Wing, 70 Ohio St.3d 176 (Ohio 1994) (discusses majority/minority approaches whether decedent’s recovery/release bars subsequent wrongful death action)
- Purjet v. Hess Oil Virgin Islands Corp., 22 V.I. 147 (D.V.I. 1986) (addressed asbestos exposure and accrual of tort claims)