vs )

) CIGNA HEALTH AND LIFE INSURANCE )

COMPANY AXA ASSISTANCE USA INC )AXA GROUP LLC and BEVERLY

A JOSEPH )

GILBERT COMMISSIONG LORI ANDERSON )CLEMMIE MOSSES ST JOHN LORRAINE )

MORTON ANDRE DORSEY DR KISHA )

CHRISTIAN DEBBIE CHRISTOPHER AND )JOHN ABRAMSON J R COLLECTIVELY in )their Official Capacities as Members of the )Government Employees Service Commission )

Health Insurance Board, )

)

Defendants )

RYAN MEADE ESQUIRE (Ryan Meade Chartered Attorney LLC) St Thomas USVI For the

Plamtsz.

SHEENA CONWAY ASSISTANT ATTORNEY GENERAL (V I Department of Justice) St Thomas

USVI, For Defendants Government Employees Service Commission, Lori Anderson, Andre

Dorsey, Beverly Joseph, and Lorraine MortonERICA HILLER ESQUIRE (Kennedys CMK LLP) Miami Florida For Defendant AXA

Assistance USA, Inc

MARIA

T HODGE Esquire (Hodge

& Hodge), St Thomas USVI, For Defendant Cigna Health

and Life Insurance Company

Cite as 2024 VI Super 14U

MEMORANDUM OPINION AND ORDER

1] I This matter is before the Court on
Motion To Dismiss (‘ Response ’), filed January 31, 2024; and

3 Defendants’ [Government Employees Service Commission] Reply To Plaintiff’s

Response To Motion To Dismiss filed February 16, 2024

{[2 The Court will grant Defendants Motion and dismiss the Government Employees Service

Commission Health Insurance Board (‘ GESC”) Board Members from the case with prejudice as

the Court lacks subject matter jurisdiction over them

I INTRODUCTION

113 On August

8 2023 Plaintiff AAC Air Ambulance Caribbean Inc d/b’a AeroMD

(“AeroMD”) filed

a Complaint against Cigna Health and Life Insurance Company (“Cigna"),

AXA Assistance USA Inc ( AXA”), AXA Group LLC (“AXA Group ’), as well as members of

the GESC Board collectively in their official capacities as members of GESC Beverley

A Joseph,

Gilbert Commissiong, Lori Anderson, Clemmie Mosses St John, Lorraine Morton, Andre Dorsey,

Dr Kisha Christian, Debbie Christopher, and John Abramson Jr (collectively, “Board Members ’),

asserting thirteen (13) causes of action Count I Breach of Express Contract, asserted against all

Defendants, Count II Breach of Implied In Fact Contract, asserted against all Defendants, Count

Ill Quantum Memit/Unjust Enrichment, asserted against all Defendants, Count IV Breach of

Contract asserted by AeroMD as Third Party Beneficiary of the Cigna Plans, asserted against all

Defendants, Count

V Breach of Fiduciary Duty Cigna Non ERISA Plans, asserted against

Cigna and AXA, Count V1 Breach of Fiduciary Duty VI Government Plan, asserted against all

Defendants, Count VII Tortious Interference with Prospective Business Relations, asserted

against Cigna and AXA; Count VIII Tortious Interference with Existing Contracts ContractBetween AeroMD and Cigna/GESC, asserted against AXA; Count IX Tortious Interference withExisting Contracts AeroMD Membership Program Contracts Between AeroMD and CertainCigna Plan Enrollees, asserted against Cigna and AXA; Count

X Violation of the Virgin Islands

Prompt Pay Statute, 22

V I C

§ 1725, asserted against all Defendants, Count XI Prima Facie

Tort, asserted against all Defendants; Count XII Gross Negligence, asserted against Cigna andAXA; and Count XIII Declaratory Judgment Unfair Practices and Frauds Act, asserted against

all Defendants 2

{[4 AeroMD seeks damages for unpaid benefits; injunctive and declaratory relief to prevent

Defendants from engaging in actions prohibited by the Cigna plans and law, an order directing

Defendants to pay benefits in accordance with the Cigna plan, an award of lost profits, contractual

' These were the only Defendants served with process as of December 22 2023

PI sCompl 18 35
interest; and all other relief to which AeroMD is entitled 3 AeroMD demands

a jury trial 4

15 GESC moves to dismiss AeroMD claims pursuant to Virgin Islands Rule of Civil

Procedure 12(b)(l) asserting lack of subject matter jurisdiction 5 GESC argues that AeroMD hasalleged eight (8) claims against GESC that sound in contracts, but neither GESC nor its board

members are patties to any contracts with AeroMD nor do they have the capacity to contract ‘

GESC asserts that to carry out its duties as the Health Insurance Board of Trustees, it makes anannual recommendation to the Govemor of the Virgin Islands about which health insurance plan

the Government of the Virgin Islands (‘ GVI”) should adopt 7 GESC manages the procurement

process to vet the prospective vendors for the Plan” as well as approves the vendor and the

proposed contract before recommending it to the Governor and submitting it to the Legislature ofthe Virgin Islands 8 GESC points out that Cigna is the current vendor and may sub contract to

fulfill its services obligation and neither GESC or GVI are parties to those contracts nor do they

vet them 9 GESC avers that the rates in those sub contracts are proprietary in formation and GESCand the Board Members have no knowledge of those rates '0

116 GESC argues that the enabling statute does not give GESC the right to sue or be sued in its

own name, and GESC is thus not

a proper party to this action

" GESC argues that it does not have

the authority to contract and once the insurance plan is executed it is administered by the Division

of Personnel not GESC '2 GESC states that since it is not

a party to any contract with AeroMD

and Cigna or AXA/AXA Group, Counts I [V VI, X, XI and XIII are frivolous claims against itand must be dismissed '3

1f

7 AeroMD counters that GESC is not

a named party to the suit, but rather the individual

Board Members are and “each is sulsyurls in that capacity ”’4 AeroMD cites to

V I CODE ANN

tit 3 § 63 1(a) which vests the responsibility for the proper operation of the health insurance plan

with the GESC Board Members '5 AeroMD cites then to § 633(a) which authorizes the GESC3 Pl 5 Comp! 36 37

4 Pl sCompl 36

5 Defs ’ Mot l

6Defs Mot 2

7 Defs Mot 28 Defs Mot 2

° Defs ’ Mot 2

'0 Defs Mot 3" Defs ’ Mot 5P Defs ’ Mot 5'3 Defs ’ Mot

6

'4 P] ’s Resp

2

' Pl sResp 3
statutory administration obligations to co defendant CIGNA ”'7

{I8 AeroMD asserts that

a cursory reading of the detailed [C]omplaint shows that I) there

were no ‘in network contract [sic] between AeroMD and co defendant CIGNA which wouldcover the ‘rates for the products and/or services” as well as that “AeroMD was contracted toperform lifesaving medivac flight, by Defendants either as principals or agents of each other, on

behalf ofplan enrollees, under the plan which is operated by the GESC Board Members and which

the GESC Board is statutorily authorized to do "8 Lastly, AeroMD cites to

§ 637 to argue that the

‘ Legislature of the Virgin Islands further saw fit to empower the GESC Board Members with theauthority and responsibility for paying vendors under the plan directly "9 AeroMD avers that‘ PlaintiffAeroMD has presented valid bills to the GESC Board Members and diligently sought to

collect these overdue amounts from Defendants to no avail ”20

119 GESC replies that AeroMD misstates the law and facts as ‘ Board Members in their official

capacity have no legal administrative duties or responsibilities under the plans ’ and “BoardMembers in their official capacity do not and cannot process claims or pay invoices ”7‘ GESCargues that despite AeroMD’s insistence, GESC and the Board Members are both parties to this

suit ’2 GESC reiterates it was established to advise and recommend to the Governor of the Virgin

Islands which vendors he should select for GVI 3 health insurance plan ’3 GESC states that both

plans it has recommended, the Cigna Plan (for employees and retirees under 65) and its United

Healthcare Plan (for retirees over 65) are fully insured health plans where the insurer assumes the

risk of paying the medical claims and the GVl/Division of Personnel are responsible for

administering the plans 24

110 GESC states that it is

a party to the case as ‘ [Board] Members of GESC in their official

capacity are acting as the GESC, and as such,

a suit against the Members of GESC in their official

capacity is an action against the GESC

” citing to United State Supreme Court case Kentucky

v

Graham ’5 GESC points out that paragraphs 26, 27, and 32 plainly claim the Court has jurisdiction

over GESC, the agency 2" GESC further notes that AeroMD sent summons to the Government

'6 Pl 8 Resp 4'7 Pl 3 Resp 4'3 Pl 5 Resp 4

'9 Pl 3 Resp 4

"0 Pl 5 Resp 52' Defs Reply 2

Defs Reply2

3 Defs Reply 2

‘ Defs Reply 2 3

5 473

U

S 159 [66 (1985) (citing Brandon v H01! 469

U

S 464 471 72 (1985)) Dets Reply 3

° Defs Reply 3 4
no capacity, duty, or authority to pay AeroMD for any outstanding invoices generated by thoseenrollees it alleges are due to it ”29

{[11 GESC states that additionally, all the tort claims against it, Counts VI and X1, must fail, as

Board Members are GVI employees and AeroMD has not complied with the Virgin Islands TortClaims Act (“VITCA”) the pre filing requirements of which are jurisdictional 3° GESC maintainsthat AeroMD has not complied with 33

V I C § 3410 which requires filing with the Governor and

the Attorney General

a notice of intent 3' GESC avers that “[a]fier

a diligent search there is no

evidence that

a notice of intent has been served on the Office of the Governor or the Attorney

General ofthe

U

S Virgin Islands ”32 Citing to Virgin Islands caselaw, GESC argues that AeroMD

has not met its burden of showing it complied with this jurisdictional requirement and thus the tort claims should be dismissed 33

1[12 GESC then argues that Counts related to the Prompt Pay by Insuier statute (22

V I C §

1725) and the Unfair Practices and Fraud Act (22

V I C § 1201) Counts

X and XIII respectively

must be dismissed as GESC and its Board Members are not insurers or in the business ofinsurance,so the statutes are inapplicable to them 34 Lastly, GESC again argues all the Counts related to

contracts (1 IV) are frivolous since GESC enabling statute does not allow them to be sued or to sue 3‘

II LEGAL STANDARD

A Motion To Dismiss 12(b)(1)

1113 As this Court recently outlined in United Resources Ltd

v Virgin Islands Waste

Management Authority‘6

7 Defs Reply

4

3 Defs Reply

4

2" Defs Reply

4

3° Defs Reply

4 5

3' Defs Reply 5

3 Defs Reply 5

3’ Defs Reply 5 (citing first Lems v V! Gm tI-losp

& Health FaCllltleS Corp 76

V I 145 155 (V 1 Super Ct

2022) then citing Yuxmng Pengv Williams 67 VI 482 484 (VI Super Ct 2017))

“ Defs Reply 5 6

‘5 Defs Reply

6

’6 2024

Vl Super 9U
facial or factual The difference, as explained by the Virgin Islands District

Court, is that ‘[o]n

a facial attack,

a court must accept the allegations in the

complaint as true” whereas with

a factual challenge “the plaintiff‘s allegations

are not presumed to be true

” With

a facial attack, the Court only looks to the

complaint and any documents referenced in or attached to the complaint in

a

light most favorable to the plaintiff However, when the challenge is factual, the

Court must evaluate the merits of the jurisdictional claim based on the evidenceoffered by either party and the plaintiff is not afforded

a presumption of

truthfulness 37

B Virgin Islands Tort Claims Act Filing Requirement

1114 Title 33

V I C § 3410 states

The claim or notice of intention shall be filed in the Office of the Governor anda copy shall be served upon the Attorney General and

a written receipt therefor

shall be issued with the date of filing indicated thereon The claim shall state thetime when and the place where such claim arose, the nature of same, and itemsof damage or injuries claimed to have been sustained and the total sum claimed

The notice of intention to file

a claim shall set forth the same matters except that

the items of damage or injuries and the sum claimed need not be stated The

claim and notice of intention to file

a claim shall be verified

1115 In Richardson

v Knud Hansen Memorzal Hospztal,” the Third Circuit held that the Virgin

Islands has sovereign immunity from tort claims and that the Government of the Virgin Islands

may not be sued without its consent” and that ‘ the terms of this consent are jurisdictional, just as

they are under the Federal Tort Claims Act ”39 In Lewzs

v Virgin Islands Government Hospztal

&

Health Faczltttes Corp ,4” this Court held that “a single conclusory allegation that Plaintiff has

complied with all the pre filing jurisdictional requirements of the VITCA will not suffice 4‘ In

Ywaang Peng

v thlzams,42 this Court stated that ‘ [i]t is the plaintiff‘s burden to convince the

court that the court has jurisdiction Plaintiff simply asserted

a single conclusory allegation in

3 [d at 1] 8 (internal citations omitted) ‘8 744

F 2d 1007 (3d Cir 1984)

3" Id at 1010

‘0 2022 VI Super 33 4' 1d at1 11" 67VI 482 (VI Super Ct 2017)
116 The statutes g0» eming GESC and its Board Members are found in

3

V I C §§ 631 640a

Relevant portions are highlighted below Section 631 establishes the Board and provides in part

(a) The responsibility for the proper operation of the Government health

insurance plan, which plan shall for purposes of this subchapter also include and

authorize

a life insurance plan, and for making effective the provisions of this

subchapter is hereby vested in

a board of trustees The members of the

Government Employees Service Commission shall serve ex officio as theHealth Insurance Board of Trustees (hereinafter in this subchapter referred to as

the Board ’)

(b) The Board, subject to the provisions of this subchapter, is hereby empowered

to adopt rules and regulations relating to(1) the eligibility of (a) active and (b) retired employees of the Govemment ofthe United States Virgin Islands to participate in the health insurance planauthorized by this subchapter(2) the terms and conditions of the insurance contract or contracts, as applied to(a) active employees and (b) retired employees(3) the purchase of such insurance contract or contracts and the administration

of the health insurance plan and

(4) contracting with

a third party administrator to administer

a self funded health

insurance plan

(c) The Board shall create an advisory committee of seven (7) members, which

shall meet at least twice each year to advise and assist the Board in carrying outits functions and responsibilities under this subchapter and to review from time

to time the health insurance plan 44

117 Section 637 which deals with payment of benefits states in full

'3 1d at 484 (citing Tyson v Samuel Case No SX 2014 CV 00105 2017

V I LEXIS 79 at *3 (Super Ct May 24

2017))

4‘ 3 V I C 9‘ 63]
1118 Section 638 which deals with contributions states in part

(c) Notwithstanding any other law to the contrary, the Division of Personnel may

make straight payments of the Health Insurance premiums under subsection (a)

to the Government of the Virgin Islands Health Insurance provider 46

1119 Lastly, § 640a, which governs

a “Health Insurance Special Projects Fund,” states in part

(a) Notwithstanding any other law, the Board may establish and maintain

a

separate operating bank account to be known as the “Health Insurance SpecialProjects Fund ’ (“the

Fund ) The Board shall provide for the administration of

the Fund and shall promulgate rules and regulations governing expenditures

from the Fund, consistent with the provisions of this section

(e) The Chairperson of the Board, or his designee or designees shall beempowered to expend money from the Fund(f) Monies in the fund shall be expended for expenses, including operating costs

and expenses of the Board not otherwise provided for by the operating budget

of the Division of Personnel, or other costs and expenses associated with the

administration of the group insurance program as may be considered necessary

and as duly authorized by the Board 47

D Contract

1120 The Virgin Islands Supreme Court in Phillip

v Marsh Monsanto43 adopted the following

elements for breach of contract claims “(1) an agreement; (2)

a duty created by that agreement,

(3)

a breach of that duty; and (4) damages ‘9

E Insurer Prompt Pay Statute

1[21 The Prompt Pay Statute ’ for insurers is located in 22

V l C § 1725 and states in fiJll

”'5 3 V I C § 63746 3 V I C §638(c)

4 3VlC §640a(a) 3VIC §640a(e) 3 VIC §640a(f)

‘8 66

V I 612 (V I 2017)

“Id at 621 (citing BIOllll/aldl DUMOIIg Capital Inc 63 VI 788 798 (VI 2015))
calendar period notify the health care provider of its decision not to reimburse

that amount, which notice shall provide

a clear and concise statement to the

health care provider of all the reasons for the insurer’s decision

(c) Any insurance payment which is not made within the thirty day period shall

accrue interest at the rate of 10% or the prevailing prime rate applicable on the

date of payment, pursuant to Title 1 1, section 951 of this Code, or whichever isgreater, from the date the services were provided to the date of payment

(d) The health care provider shall be entitled to receive payment from the patient for

any services rendered which are not reimbursable by the insurer within sixty

days after service is rendered

(e) The Commissioner of Insurance may review any contested claim to determine

whether (I) the services are covered under

a health insurance plan, (2) the fees

are reasonable for the services, and any other matter necessary to determine howthe claim should be handled ‘0

F Unfair Practices and Frauds Act

1122 The Unfair Practices and Frauds Act is contained in 22

V I C

§ 1201 which states in full

(a) No person engaged in the business of insurance shall engage in unfair methods

of competition or in unfair or deceptive acts or practices in the conduct of such

business as such methods acts or practices are defined pursuant to subsection

(b) of this section

(b) In addition to such unfair methods and unfair or deceptive acts or practices as

are expressly defined and prohibited by this title, the Commissioner may fromtime to time by regulations promulgated only after

a hearing thereon, define

other methods of competition and other acts and practices in the conduct of such

business reasonably found by him to be unfair or deceptive

(c) No such regulation shall be made effective prior to the expiration of 30 days

afier the date of the order on hearing by which it is promulgated

5022 VIC § 1725
has been received by him, he shall forfeit to the people of this territory

a sum

not to exceed $250 for each violation committed thereafter, such penalty to be

recovered by an action prosecuted by the Commissioner

111 LEGAL ANALYSIS

A GESC is not

a proper party to this suit

{[23 Taking the allegations in the Complaint as true and in

a light most favorable to Plaintiff,

AeroMD cannot maintain an action against GESC Although AeroMD contends it is suing the

Board Members and not GESC, it is well settled that suing government officials in their officialcapacity is not

a suit against the individual, but the entity they represent As the United States

Supreme Court put it “As long as the government entity receives notice and an opportunity to

respond, an official capacity suit is, in all respects other than name, to be treated as

a suit against

the entity [t is not

a suit against the official personally, for the real party in interest is the

entity ”5‘

1i24 Sovereign immunity is “[a] govemment’s immunity from being sued in its own courts

without its consent ”5’ “The Revised Organic Act grants sovereign immunity to the Government

of the Virgin Islands for tort claims ”53 When establishing an instrumentality, entity, semiautonomous corporation, or other division of the CV], the Virgin Islands Legislature outlines in

the enabling statutes the rights and powers of said division For example, the Virgin Islands WasteManagement Authority 3 (‘ VIWMA”) enabling statute 29

V I C

§ 496, states that among other

rights and powers it shall have the right to sue and be sued in its corporate name ’54 As this Courtstated in United States Virgm Islands Economic Development Authorzty

v h(ypohte,55 “Courts in

the Virgin Islands have found the power to sue and be sued’ instructive, regarding the waiver of

sovereign immunity for government entities ”56

$25 In Hypolzte, this Count found that the Economic Development Authority could be sued as,

like with VIWMA, the enabling statute gave the agency the power to sue or be sued 57 Similarly,

5' Kentucky 1 Graham 473

U

S 159 166 (1985)

5’Soi erelgn Immunity BLACK 5 LAW DICTIONARY (1 1th ed 2019)5’ Yuttang Peng 1 Williams 67

V 1 482 485

n 2 (VI Super (.t 2017)

5‘ 29

V I C § 496(d)

55 Case No ST 2016 CV 00268 2019 V1 LEXIS 10 (V1 Super Ct Jan 28 2019) (unpublished)5" Id at 1! 757 Id at1l

9
the case because the Virgin Islands Legislature had not granted it the authority to sue or be sued 6'

1126 In the present case, nowhere in GESC s enabling statute, or elsewhere in the subchapter, is

there

a right for GESC to sue or be sued Nor is there any sort of indication that the Legislature

intended GESC to have this authority Additionally, there is no indication, either in the enablingstatute or elsewhere, that GESC has any sort of autonomous legal existence or is anyway separatefrom GVl Given that it is well established that suing government agents in their official capacity

constitutes

a suit against the respective government division those agents represent, and that GESC

has no identity separate from the government or the capability to sue or be sued, then the Court

has no subject matter jurisdiction over GESC and its respective Board Members Therefore, theindividual Board Members must be dismissed fi'om the case

B The claims would fail nonetheless against GESC

1127 Assuming arguendo that GESC and its Board Members may be sued, the claims must still

be dismissed AeroMD has failed to comply with the jurisdictional pre filing requirements ofVITCA, and thus the Court lacks jurisdiction over the tort claims asserted against GESC ThePrompt Pay and Unfair Practices and Frauds statute based claims must fail as GESC is not aninsurer nor does it have the ability to pay under third party contracts The only basis for GESC to

presently be able to guide payments is in

3

V l C § 640a, which involves only the Chairman of

the Board or his designee and is in reference to

a Health Insurance Special PrOJects Fund, which

is not nor is it alleged to be, at issue in this case ‘2 Otherwise, the statutes governing GESC permitit to engage

a third party to handle health insurance payments and disbursements as well as

authorize the Division of Personnel not GESC, to handle payments 63 Finally, the contract claims

would fail as GESC is not party to any contract with AeroMD nor does it have any agreementswith AeroMD Therefore, even if the Court did have proper subject matter jurisdiction over GESC,

AeroMD 3 claims would still be dismissed as to GESC 3 Board Members

IV CONCLUSION

128 On August 8, 2023, AeroMD filed

a Complaint against, Intel aha, the nine (9) Board

Members that compromise GESC alleging thirteen ( I 3) Counts sounding in torts, contracts equity,

and statutory violations of the Prompt Pay and Unfair Practices and Frauds Acts GESC is

a

58 2024 VI Super 9U

5" See Id at 1H

4 22 (dismissing claims against GVI as VIWMA was the proper legal party to the contract)

6° Case No SK 2016 CV 00346 2016 VI LEXIS 128 (V I Super Ct Aug 29 2016) (unpublished)6|1d at *4 10

‘ 3 V I C §§ 640(3) 640(e}

°3 3 V I C §§ 631 637 638(c)
1129 While AeroMD claims it is suing the Board Members individually, it is well settled that

suing

a government agent in their official capacity is genuinely

a suit against the division or agency

they serve As the Legislature has not severed GESC from the GVI writ large, the Court lacks

subject mattet jurisdiction over it in particular Even if the Court were to have subject matter

jurisdiction, AeroMD’s claims against GESC would still fail as AeroMD has not complied with

the pre filing requirements of VITCA, AeroMD is not in privity of contract with GESC, GESC isnot an insurer, and GESC does not have the ability to pay under the third party contracts

Therefore, the nine (9) Board Members shall be dismissed from this case with prejudice

1130 Accordingly it is hereby

ORDERED that Beverley

A Joseph, Gilbert Commissiong, Lori Anderson, Clemmie

Mosses St John, Lorraine Morton, Andre Dorsey, Dr Kisha Christian, Debbie Christopher,and John Abramson Jr are hereby DISMISSED from the case WITH PREJUDICE and it isfurther

ORDERED that the Government Employees Service Commission Health Insurance

Board is hereby DISMISSED from the case WITH PREJUDICE and it is further

ORDERED that

a copy of this Memorandum Opinion and Order shall be directed to

counsel of recordDATED March

fl 2024

W7 i 3 27 61M LAO

DENISE

M RANCOlS

Judge of the Superior Court of the Virgin Islands

ATTESTTAMARA CHARLESClerk of the Court

LATOYA LAMACHO

W Court Clerk Supervisor :5 1 /

? [ZDZL/
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

District of St. Thomas/St. John

AAC-Air Ambulance Caribbean, Inc., d./b/a 

Aeromd,

 Plaintiff

v.

Cigna Health and Life Insurance Company et 

al,

 Defendant. 

Case Number: ST-2023-CV-00267

Action: Breach of Contract

NOTICE of ENTRY

of

Order

To: Ryan C. Meade, Esq. Sheena Conway, Esq.

Eric Andrew Hiller, Esq.

Maria T. Hodge, Esq.

Please take notice that on March 20, 2024

a(n) Memorandum Opinion and Order

dated March 19, 2024 was/were entered

by the Clerk in the above-titled matter.

Dated: March 20, 2024 Tamara Charles

Clerk of the Court

By:

Elizabeth A. David

Chief Deputy Clerk