World Fresh Markets, LLC v. Palermo

2021 VI 1

WORLD FRESH MARKETS, LLC d/b/a PUEBLO SUPERMARKET, Appellant/Defendant, v. LENOR MERCEDES PALERMO, Appellee/Plaintiff.

S. Ct. Civ. No. 2020-0012

SUPREME COURT OF THE VIRGIN ISLANDS

Argued: November 17, 2020

February 4, 2021

For Publication

Re: Super. Ct. Civ. No. 599/2008 (STX)

On Appeal from the Superior Court of the Virgin Islands Division of St. Croix

Superior Court Judge: Hon. Robert A. Molloy

BEFORE: RHYS S. HODGE, Chief Justice; MARIA M. CABRET, Associate Justice; and IVE ARLINGTON SWAN, Associate Justice.

APPEARANCES:

Dwyer Arce, Esq. (argued)

Mattea Fosbender, Esq.

Kutak Rock LLP

Omaha, NE

Michael L. Sheesley, Esq.

Michael L. Sheesley, P.C.

St. Thomas, U.S.V.I.

Attorneys for Appellant,

Lee J. Rohn, Esq.

Rhea R. Lawrence, Esq. (argued)

Law Offices of Lee J. Rohn and Associates, LLC

St. Croix, U.S.V.I.

Attorneys for Appellee,

Carl A. Beckstedt III, Esq.

Beckstedt & Kuczynski LLP

St. Croix, U.S.V.I.

Attorney for Amicus Curiae Virgin Islands Insurance Association.

OPINION OF THE COURT

HODGE, Chief Justice.

¶ 1 Appellant World Fresh Market appeals from the January 28, 2020 amended judgment of the Superior Court, which memorialized a jury verdict against it and in favor of Lenor Mercedes Palermo in the amount of $600,000. For the reasons that follow, we affirm.

I. BACKGROUND

¶ 2 On December 8, 2008, Palermo filed suit against World Fresh Market for negligence stemming from an incident that occurred at a supermarket operated by World Fresh Market on property it leased from PDCM Associates, S.E. Several years after filing suit, Palermo amended her complaint to name PDCM as a co-defendant. The amended complaint alleged that World Fresh Market and PDCM were both aware that the roof of the building had been leaking for an extended period of time, that World Fresh Market had placed a cooler under the leak to collect the leaking water, and that Palermo slipped and fell when the cooler overflowed and water spilled onto and covered the floor. After more than a decade of proceedings not relevant to this appeal, Palermo entered into a settlement agreement with PDCM, with Palermo and PDCM filing a joint stipulation of dismissal with prejudice on February 21, 2018. In a February 27, 2018 order, the Superior Court dismissed the complaint against PDCM with prejudice in accordance with the stipulation.

¶ 3 Over the course of the next eighteen months, Palermo and World Fresh Market engaged in extensive motion practice with respect to the admissibility of evidence at trial, including a motion by Palermo to preclude World Fresh Market from offering evidence of the settlement agreement between Palermo and PDCM or introducing evidence of PDCM's negligence, and motions byWorld Fresh Market to exclude the testimony of two of Palermo's expert witnesses. Ultimately, the Superior Court granted Palermo's motion to exclude the settlement agreement and any references to PDCM's negligence and, after holding a hearing, denied World Fresh Market's motion to exclude the expert testimony.

¶ 4 The matter proceeded to a jury trial, which occurred from November 4, 2019, through November 9, 2019. At trial, the Superior Court strictly enforced its earlier evidentiary rulings, and rejected World Fresh Market's requests to instruct the jury to apportion liability between it and PDCM, and to instruct the jury on assumption of the risk and collateral sources of compensation. Ultimately, the jury found World Fresh Market liable and awarded Palermo $600,000 in compensatory damages, of which $200,000 represented lost future earning capacity. On January 28, 2020, the Superior Court denied World Fresh Market's post-judgment motions and entered an amended judgment memorializing the jury verdict. World Fresh Market timely filed its notice of appeal with this Court on February 14, 2020. See V.I. R. APP. P. 5(a)(1).

II. DISCUSSION

A. Jurisdiction and Standard of Review

¶ 5 Pursuant to the Revised Organic Act of 1954, this Court has appellate jurisdiction over "all appeals from the decisions of the courts of the Virgin Islands established by local law[.]" 48 U.S.C. § 1613a(d). Title 4, section 32(a) of the Virgin Islands Code vests this Court with jurisdiction over "all appeals arising from final judgments, final decrees, [and] final orders of the Superior Court." Because the Superior Court's January 28, 2020 amended judgment resolved all of the claims between the parties, it is a final judgment within the meaning of section 32(a), thereby conferring jurisdiction on this Court. Joseph v. Daily News Publishing Co., Inc., 57 V.I. 566, 578 (V.I. 2012).

¶ 6 This Court exercises plenary review of the Superior Court's application of law. Allen v.HOVENSA, L.L.C., 59 V.I. 430, 436 (V.I. 2013) (citing St. Thomas-St. John Bd. of Elections v. Daniel, 49 V.I. 322, 329 (V.I. 2007)).

B. Apportionment of Liability

¶ 7 In its appellate brief, World Fresh Market asserts that the Superior Court erred when it prevented it from introducing evidence of PDCM's negligence and declined to instruct the jury to apportion liability between it and PDCM. World Fresh Market acknowledges that title 5, section 1451(d) of the Virgin Islands Code provides, in pertinent part that

[w]here recovery is allowed against more than one defendant, the trier of fact shall apportion, in dollars and cents, the amount awarded against each defendant. Liability of defendants to plaintiff shall be joint and several but, for contribution between defendants, each defendant shall be liable for that proportion of the verdict as the trier of fact has apportioned against such defendant . . . .

(Emphasis added). World Fresh Market concedes that this statute is not applicable because PDCM was not a defendant at the time of trial. Nevertheless, World Fresh Market maintains that even though the plain text of section 1451(d) only provides for apportionment by the trier of fact of recoveries against defendants, this Court may adopt a common law rule providing for apportionment among non-parties that may have contributed to a plaintiff's injury. Palermo, however, maintains that this Court cannot adopt the rule proposed by World Fresh Market because to do so would effectively rewrite section 1451(d) and usurp the authority of the Legislature. Therefore, we must first determine whether this Court possesses the authority to adopt such a rule and—if it does—determine whether exercising that authority is warranted.

¶ 8 This Court has been established as the highest court of the Virgin Islands and the supreme judicial power of the territory has been reposed within it. 48 U.S.C. § 1613a(d); 4 V.I.C. § 21. The supreme judicial power of the territory includes the authority to create both procedural and substantive law under certain circumstances. "A procedural rule regulates the judicial process forenforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them." Gov't of the V.I. v. Durant, 49 V.I. 366, 373 (V.I. 2008) (quoting Hanna v. Plumer, 380 U.S. 460, 464 (1965)). "A substantive rule of law, on the other hand, creates and defines the rights, duties, and obligations that are subsequently administered by procedural rules of law." Durant, 49 V.I. at 373 (quoting In re Richards, 52 F.Supp.2d 522, 528 (D.V.I. App. Div. 1999)).

¶ 9 The authority of this Court to create procedural rules and substantive law is concurrent with the Legislature. See 48 U.S.C. § 1611(c); Banks v. Int'l Rental & Leasing Corp., 55 V.I. 967, 976 (V.I. 2011). However, the allocation of authority between this Court and the Legislature differs depending on whether the law enacted is procedural or substantive. If this Court and the Legislature enact inconsistent or conflicting procedural laws, the procedural rule adopted by this Court will always prevail over a procedural statute enacted by the Legislature. Gerace v. Bentley, 65 V.I. 289, 303 (V.I. 2016). But if this Court were to establish substantive law— such as through exercising its inherent authority to create common law—a doctrine of law created by this Court must ultimately yield to the substantive statutes adopted by the Legislature. In re L.O.F., 62 V.I. 655, 661 n.6 (V.I. 2015). Consequently, to determine whether this Court has the authority to adopt a rule providing for apportionment of liability among non-parties, notwithstanding that section 1451(d) only requires the trier of fact to apportion damages among named defendants, it is necessary to determine whether rules on how damages are apportioned are procedural or substantive.

¶ 10 Every court to consider the question has determined that laws providing for apportionment of fault are substantive, not procedural, for such laws define the rights, duties, and obligations between those to whom they apply. See, e.g., Matter of Oil Spill by Amoco Cadiz Off Coast ofFrance on March 16, 1978, 954 F.2d 1279, 1315 (7th Cir.1992) (holding that question of whether defendant tortfeasors were entitled to reduction in plaintiffs' claims by amount of alleged nonparty tortfeasor's responsibility "was one of substantive law"); Dale v. ALA Acquisitions I, Inc., 434 F.Supp.2d 423, 430 (S.D. Miss. 2006) ("[C]ourts from other states consistently hold that laws on apportionment of fault are substantive, not merely procedural.") (collecting cases); Lostritto v. Community Action Agency of New Haven, Inc., 848 A.2d 418, 428 (Conn. 2004) (holding that apportionment statute, while "contain[ing] some procedural elements," was nevertheless substantive); Forsythe v. Valley Consol. Indus., 361 N.W.2d 768, 771 (Mich. Ct. App. 1984) (rejecting argument that apportionment statute was procedural rather than substantive); see also In re Kelvin Manbodh Asbestos Litigation Series, 47 V.I. 375, 395 (V.I. Super. Ct. 2006) (characterizing apportionment of liability as "substantive law"). Significantly, section 1451(d) does not merely advert to apportionment or simply acknowledge its existence, but expressly mandates joint and several...