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Kock v. Government of Virgin Islands

filed: February 6, 1987.

MARIO KOCK, ADMINISTRATOR OF THE ESTATE OF MERCEDES MARIA FIGAROA TROMP, DECEASED, APPELLANT-CROSS-APPELLEE
v.
GOVERNMENT OF THE VIRGIN ISLANDS, APPELLEE-CROSS-APPELLANT



Appeal from the District Court of the Virgin Islands (St. Croix) D.C. Civil No. 79-0138

Author: Rosenn

Before SLOVITER, STAPLETON, and ROSENN, Circuit Judges

ROSENN, Circuit Judge.

The primary question raised on this appeal is whether a judgment for damages rendered by the District Court of the Virgin Islands and affirmed by this court on appeal, may be subsequently reduced by the trial court because the defendant's insurance carrier went into liquidation.

Mercedes Tromp, a resident of Antigua, was admitted as a patient to the Charles Harwood Memorial Hospital, a facility owned and operated by the Government of the Virgin Islands. After an examination by a government-employed doctor, who prescribed some medication, she was promptly discharged only to die several hours later of a cerebral hemorrhage. Mario Kock, administrator of her estate, and Rudy Perotte, guardian ad litem of her minor of her minor daughter, Jessica Tromp, sued the Government of the Virgin Islands in the District Court for the Virgin Islands on June 25, 1979, to recover damages for the malpractice alleged to have caused her death. After a bench trial, the district court held the Government to be liable up to the limits of its $100,000 insurance policy purchased pursuant to the Health Care Provider Malpractice Act, 27 V.I.C. §§ 166 et seq. (Equity Supp. 1983) (the Malpractice Act), and the Tort Claims Act, 33 V.I.C. §§ 3401 et seq. (Equity Supp. 1983). The court awarded $65,000 to the Minor to be held by the court until a guardian could be appointed, and $35,000 to the Administrator of the Estate.*fn1 Both sides appealed from the judgment of the district court and we affirmed. Kock v. Government of the Virgin Islands, 744 F.2d 997 (3d Cir. 1984) [Kock I].

Prior to payment of the judgment, the Government's insurance carrier went into liquidation. The Government thereupon requested relief in the district court from the $100,000 award pursuant to Fed. R. Civ. P. 60(b)(5) and 60(b)(6). The plaintiff, on the other hand, filed a "complaint in the nature of mandamus" seeking an order from the district court directing the appropriate government officials to pay the $100,000 judgment. The district court dismissed the complaint in the nature of mandamus and granted the Government's motion for relief by reducing the judgment against the Government to $25,000 each for the Estate and for the minor daughter, an aggregate of $50,000. Again, both sides appealed to this court. We affirm the district court's order denying mandamus but vacate the order of the district court reducing the original judgment.

I.

A threshold issue raised in the Government's cross-appeal is whether the district court erred in granting judgment against the defendant because the plaintiff failed to comply with the prelitigation notice provisions found in the Tort Claims Act, 33 V.I.C. §§ 3409, 3410.*fn2 Under the Tort Claims Act, the representative of the decedent's estate must file either a claim or a notice of intention to file a claim within ninety days of appointment. If no notice or claim is filed within ninety days, the estate may move for an extension of time. Both claim and notice must be transmitted to the Government with a copy to the Attorney General. Both documents must specify the time and place of the alleged tort and the nature thereof. Both documents are required to be verified and the claim must indicate the items of injury and the total sum claimed. Richardson v. Knud Hansen Memorial Hospital, 744 F.2d 1007, 1009 (3d Cir. 1984); 33 V.I.C. §§ 3409, 3410.

The notice issue was raised in the Government's answer in Kock I, but has not been raised in the six years since then. Because compliance with the statutory provisions pertaining to notice is jurisdictional, the Government argues that such compliance cannot be waived, see Richardson, 744 F.2d at 1010, and that the question of compliance is still viable on this appeal. The plaintiff, on the other hand, asserts that the Government is precluded from raising the notice issue in the proceeding and, in any event, that the Government received adequate notice. The parties apparently proceeded to trial and to the first appeal on the assumption that the plaintiff gave timely and adequate notice.

The district court in this proceeding [ Kock II ] understandably did not address the question of whether the Government had received timely and adequate notice from the plaintiff as required by statute and made no express findings of fact in the matter, because the defendant never raised the issue in the district court.*fn3 We perceive no need to remand to the district court for factual findings on the question because we believe that the Government is precluded as a matter of law from raising the notice issue in this proceeding. Despite the Government's reliance on Richardson for the proposition that the notice provisions of the Tort Claims Act are jurisdictional and cannot be waived, the Government's failure in Richardson to raise the jurisdictional issue until its reply brief on appeal nonetheless involved a raising of the issue during the life of the case. The appellate court still had the appeal before it. By contrast, in this matter, the case was tried by the district court, affirmed by the court of appeals, and the appellate proceedings had been fully completed.

In this collateral proceeding, the Government presents an issue initially raised in its original answer and attempts to breathe life into a case that has been tried, appealed, and fully interred. All that remains is the payment of the judgment. Regardless of the jurisdictional nature of the Government's defense, our affirmance of the district court's judgment in that proceeding "must be deemed to have adjudicated the court's subject matter jurisdiction since the time for direct appeal from that judgment has already run." Philadelphia Welfare Rights Organization v. Shapp, 602 F.2d 1114, 1119 n.2 (3d Cir. 1979). See Lambert v. Conrad, 536 F.2d 1183, 1185 (7th Cir. 1976) ("a prior decision remains a bar to a future action even though it now appears that the court had no jurisdiction in the prior action.") (citing Des Moines Navigation and R.R. Co. v. Iowa Homestead Co., 123 U.S. 552, 31 L. Ed. 202, 8 S. Ct. 217 (1887)). We see no reason in this case, several years after the expiration of the ordinary fourteen day period in which to petition for rehearing to now examine a factual issue as to whether the court to which the parties submitted their original claim had subject matter jurisdiction. See Lambert, 536 F.2d at 1185; McClelland v. Robinson, 94 Misc. 2d 312, 405 N.Y.S.2d 165, 167 (N.Y. Civ. Ct. 1978); Restatement (Second) of Judgments § 12 comment d (1982). "It is just as important that there should be a place to end as that there should be a place to begin litigation." Durfee v. Duke, 375 U.S. 106, 113-114, 11 L. Ed. 2d 186, 84 S. Ct. 242 (1963), (quoting Stoll v. Gottlieb, 305 U.S. 165, 172, 83 L. Ed. 104, 59 S. Ct. 134 (1938)). Accordingly, we refuse to consider the Government's claim that the district court lacked jurisdiction to enter judgment against the Government of the Virgin Islands in Kock I.

II.

A.

We now turn to the principal issue raised by the plaintiff in this appeal, which is whether the district court erred in reducing the original judgment it entered against the Government. Prior to the institution of plaintiff's suit against the defendant in 1979, the Government of the Virgin Islands enacted the Health Care Provider Malpractice Act, 27 V.I.C. §§ 166 et seq. (Equity Supp. 1983), which supplements the Tort Claim Act's waiver of immunity and increases the Government's liability to $250,000 plus certain expenses and lost earnings. 27 V.I.C. § 166b. Plaintiff brought this suit on the theory that the Charles Harwood Memorial Hospital, acting as a Virgin Islands governmental institution, breached its duty to provide minimally acceptable medical ...


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