to address jurisdiction answer sixteen thirteen i'm happy to respond to any questions with respect to that our viewpoint is pretty simple that this is a final decision that has been rendered by the the first provision is the one that i believe is most applicable and i'm just turning to it in my brief in which it's a decision that first of all it will not be subject to review at a leader date and the scenarios that we play out are that the the case the appellee suggests that if the case goes back to the trial court it's as if the trial judge had denied summary judgment and we could bring that appeal at a later date but that's not the case don't see how that's raced you well what the supreme court has made the decision has entered the decision that employers are not protected under the workers compensation immunity if it goes back to the trial level and we have a trial and let's assume for the record that mr philip loses the case and there is an appeal of the verdict we would be appealing to the supreme court that their decision that they already entered finding that there is no immunity offered to an employer we would be appealing that decision so if they would i believe judicata or issue preclusion would prevent us from bringing that issue back up they would say we decided that issue in the appeal of the trial court's original grounds of summary judgment so therefore this decision has been settled our only recourse at this point in time is to petition this court to  revisit or to review that decision of the default court we can't come back to that court the highest the the the supreme court and ask them to revisit that decision so it's final in that sense if on the other hand mr philip wins a trial now there is the issue is moot if there's an appeal i suppose there could be a potential cross appeal but again you'd be back to square one with the decision being revisited by the supreme court but if he wins at trial and there's no appeal then the defoe court's decision the supreme court's decision to follow stands as the law of the land in the virgin islands and again no chance for an appeal so we believe the residue the  lies in the supreme court of the virgin islands saying we decided that issue fully when it was brief the first time on appeal of the lower court's decision that's different than if the lower court had denied the summary judgment motion in which case the case would continue to trial and then at the appeal stage we would be able to appeal that the nihil of the summary judgment motion by the lower court and presumably it would invoke the fact that trial counsel would have to bring a r fifty motion as well as after the verdict centered would have to preserve that objection to the denial of the summary judgment with a motion post verdict of a post trial motion also get under the fourth perhaps exception that applies only if the failure to grant review might seriously erode federal policy i think that that may be a stretch your honor but if it erodes federal policy in the sense that yes congress has mandated that this court for the fifteen year period or shorter period of congress decides or a longer period but for a period of time congress has mandated that the decisions of the supreme court of the virgin islands be subject to review by this court and therefore if this court does not engage in its mentoring process and it's it responsibility that congress has set to work with the supreme court of the virgin islands to establish the institutional traditions then that would be a violation that's different from any other cases that have thus far come on is whether or not the supreme court has the ability to overturn established precedent that's directly on point that the that has been previously issued by the third circuit of but but i would like to focus on what i read the issue to be and that seems to me to be whether or not it is simply our pretty two thousand seven cases which to bear is is there really implicated here because has an armed group clearly say that at least from two thousand two thousand and seven forward the virgin islands supreme court is least at a minimum there in and i and i look to the local rule of this court one twelve point one where it suggests that great consideration is going to be given to whether the supreme court of the virgin islands answers an opinion that conflicts with the applicable decisions of this court well there's no question that there is a conflict here but isn't the real test of whether or not the virgin islands decision is inescapable wrong i of the supreme court's decision but the effect of precedent that if you had said that these requests decision west and extensively wrong you would have asked for certain on that issue but that's not if you got served on well my i know the appellate will argue that that's not the issue that we got served on but that was intertwined in the issue and i believe it is the issue in part that we got cert in the reply brief we brought up and we tried to emphasize the fact that the absurd consequences of the supreme court's decision basically opening liability to all cohen ploys whether they're doing a  to the contrary went up to the circuit in the third circuit if it said aha that that district judge very brilliantly so points that you didn't see an earlier decision we will go in back and we will reconsider our earlier decision now if the same thing happens with the virgin islands and virgin islands supreme court after careful and intelligent consideration of the issues  going back and the third circuit as a cordon back to reconsider earlier decision now with a decision by the version on supreme court how can you take it in back to have direct conflict and in this petition we argued number one that the third circuit or the supreme court of the virgin islands has acknowledged that the third circuit is the highest  least this interim period until they're released from the overplay the what purposes were you wouldn't maintain would you that if this were a decision based upon the common law of the virgin islands decision of the supreme court or verging on if the supreme if the decision of the supreme court of the virgin islands was in this capably wrong or clearly erroneous then i believe that the third circuit would have an obligation in its duty of overseeing the supreme court during this period of time to take that case on cert and to examine the case as part of its perhaps mentoring process or process of of allowing the supreme court  to work to succeed at creating traditional i don't mean in any way to to nit pick here but but you on several occasions invoke the term mentoring process and that's that's not a term that as far as i know appears anywhere in the description of the relationship between our two course neither statutorily going anywhere else  aware of i mean we we have had a wolf under federal statute reviewing the performance but i don't know that we're in a position of teaching when measuring or certainly that congress is actually given a step or and might have i missed something you know perhaps my choice of words is incorrect but obviously the court is responsible for making sure that there are sufficient traditions that are are implemented and i think in doing that and also especially with consideration to examining closely opinions of the supreme court that divergent conflict with the third circuit is probably an indication or a good morning for the record my name is joe holds and i represent the apple a mr defoe i'd like to note at the outset that when i began this case i certainly didn't intend to end up here arguing that to various be overturned i thought the facts and the case below would turn on simpler issues such as driving a vehicle and involved in a non supervisory supervisory co didn't address to sixty three because the appellant there or his lawyer didn't raise it and one ninety to one and three on those pages you also pointed out that this is applied to supervisor employees who are implementing this the safe workplace employer and you al the appeal was improvidently granted or do you want us to rule the that the virgin islands supreme court has the power to charted so course even if inconsistent with the prior  recommendations of the supreme court i mean of the third circuit too but but it's a jurisdiction be gone in the senate will probably adopt as a betting man i might say out tech my chances on that but the truth matters i like to end this issue so i don't trial gotten a judgment on it this for in court the supreme court had it from summary judgment on this issue but had sent it back for reasons unrelated to this because they then asked for cert or would he have to go back and start the case over the fact that it got to the supreme court does that give us some special recognition that we don't have to go back to the superior court so i can argue that there's that there's no jurisdiction but this go past that and get to the merits of the argument can the virgin islands supreme court in a well reason opinion do what it did in this case by overtly saying that it was reversing to their which i don't think it needed to do i think it could have merged into sixty three it could it on the non supervisory person it could have done the automobile but it didn't and i thought was speculation at the the other ways because there's different statutory language in those jurisdictions that that in the state and the jurisdictions which have language like ours are very well reasoned opinion saying that the term employer means exactly that and you can say you know that they don't don't have the immunity so i think the supreme court addressed that issue in its opinion by going through all of this cases and analyzing those cases and of course which are doing this again as judge ross said you're going to get into the merits of the argument which really what search was granted o to raise another point and that was in the third circuit you go you have an odd mock hearing when you want to reverse a park down the supreme court done really have that option but i look at the analogy a little bit differently and that is the  any state supreme court of the u s supreme court if there is a power opinion which they think this is no longer the reason to move law then they can reverse it of course the well known as plessy versus ferguson this doesn't rise to that level as far as the importance of the social issue becoming back to that i just think that's how supreme courts work and in this particular case the only catch on that is the fact that this this court had has fifteen years or whatever it will be jurisdiction to hear appeals and i would respect affect this case was pending so long in the supreme court i was going to wonder if they were going to rule on it and actually they came out with a very well reason incision in december which dealt with a case that you referred to them for opinion on on state law and hindsight i think they were holding this opinion just to bring them all and to try to establish what their authority is and what they could do and i think that's probably why they went further than i think they really needed to do to get to the result they did because i think they could have just said to various distinguishable for all the reasons that are going on and instead i think they wanted to confront the issue to see what their authority was and i think they made my job harder by doing that but i'm not going to turn around and say that's not what they did i'd like to argue that's not what they did but when you read their opinion take a person if you if you said they can hear in the next weeks the senate rules and and yours it goes up then this will be the only case where that doesn't happen and of course as i started this whole argument i guess i never thought they were representing mr thought it would get me here removed as well so basically those are my arguments and let's you have other questions i don't really have anything else and to i think thank you very much  i do think that the issue of whether or not this disk this decision is inescapably wrong was brought forth in the petition and there was definitely a lot of effort put into show how the cert consequences that we see as a result of this very broad finding of making all coal employees regardless of what duty that they're carrying out immune or to know want or have immunity under the workers comp is going to have a devastating effect in the virgin your view though it is this isn't unprecedented and something all of the other states that are in the minority inescapably wrong well the concern that we have with the decision for example when the supreme court of the virgin islands reaches its decision it starts out its whole premise on the fact that there are no definitions of employer employee in the worker's comp code and it cites to the third circuit's decision a few months before the tab or as a decision in any decision where and it missed i think it cites to that decision to say there are no definitions whereas what the third circuit said is there was session law by the virgin islands government that added additional definitions but then later in the session law it talked about adding some a couple of clauses to the definition section and i guess the editors of butterworth removed the definitions and in place and in place put in these couple of clauses about administrative data into the worker's comp code so that whole analysis that was done in that by the id court wasn't done by the supreme court and they jump to the conclusion that there are no definitions of employer employee likewise when they talk in their decision about how  employer employee i do i put and well they cite to it in the decision that the original worker's comp code had a definition of employer and employee in section i believe it's to fifty one or to sixty one and then in one thousand nine hundred four the legislature passed the session walk which added some new definitions to create an administrator and this is discussed in any case and the and then because of an apparent another version of that same section later in the session walk which i believe was intended to add some additional sentences to the definitions statute that the way it's worded the editor replace the definitions so within the same session one you have new definitions being added and then the editor just wiping all those out along with the old definitions and putting in these two sentences as the new section two sixty one it was an those sessions but my point is more importantly the virgin islands supreme court didn't even address that issue in determining that there are no definitions also in the decision again getting into the whole issue about the absurd consequences of this finding which is at the heart of both tab or as in this decision the subversion island supreme court relied on a whole list of cases for the argument that an agent is not relieved from liability even when intrusted with a non delegate will duty but if you read through each of those cases they're all involving independent contractors a bank that hired somebody to keep ice off the sidewalk a company that hired some of the salvage of vessel not one of them is involving an employee doing the employee's duty so this whole issue which was brought up at in the petition for cert about the consequences of finding that an perhaps with all due respect because i agree they are doing a very it's it's a it's a great wonderful time to be a virgin islands bar member and to see our supreme court doing what it's doing and it in a way it pains me but it still i think a problem in this decision where they leave current to the wrong conclusion based upon the way they've gone about looking at these cases as well as the definitions in the in the statute and whether or not they're there or not there and that analysis remains to be seen what it would be if they decided that no the legislature didn't intend and it's not clear that the legislature intended to remove the different analysis i don't know but i think that if this court looks at the analysis and looks at what they're doing it will find that the way they're basically applying statutory construction is in a way  that should not be done that results in a clearly erroneous and result and that's one other thing i want to point out to is the legislature never in the decades and severus came out really considered and the fact that in the twenty two jurisdictions of the twenty six i think jurisdictions that had this issue with what's a third party and doesn't support the supreme court did not in their opinion  ess the in action shall we call it on the part of the beholder legislature today they can not it's my recollection and what we find from reading what they did address is that twenty two other jurisdictions jumped when they found out that the employees were going to be considered third parties they jump to change so if anything the overall legislative intent throughout the country is to well have employees be immune and so in conclusion i do believe that the issue of whether or not it's the citizen is and scape in this capably wrong is embodied in the petition for certain it's coming up through the issue of whether or not they're required to follow the third circuit at