APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS D.C. Civil No. 74-244.
Adams, Rosenn and Hunter, Circuit Judges.
This appeal arises from a claim against the Government of the Virgin Islands and individual defendants for the death of Kent Richards.*fn1 The Government challenges the award of costs and counsel fees in addition to the maximum amount of $25,000 damages permitted by the statutory waiver of sovereign immunity for tort claims. Appellant also argues that the district court erred in refusing to deduct from the judgment the amount of payments received by plaintiff from the Criminal Victims' Compensation Commission.
Richards and a friend were walking beside a road near the police station in Charlotte Amalie, St. Thomas, and were passed by Leon Lenhardt, a police officer of the Virgin Islands Department of Public Safety. Lenhardt was off duty and driving his private car. The pedestrians and Lenhardt exchanged some words, causing Richards to run up to Lenhardt's car. The evidence was in conflict over whether Richards merely spoke to Lenhardt or whether he threatened the policeman with his fists. During the altercation Lenhardt, still in his car, drew his police revolver and shot Richards in the head. Richards died from the wound. The court found that there was no justification for Lenhardt's use of deadly force.
Dorothy Richards, wife of the decedent, brought suit against the Government, alleging that it had negligently entrusted Lenhardt with a firearm when it knew that he had a propensity for abusing his authority. Plaintiff produced evidence of several incidents in which Lenhardt allegedly had abused his official position, demonstrated poor judgment, and misused his revolver. One of the incidents involved a charge filed by the policeman's wife that he had pointed his loaded revolver at her and threatened to kill her. A police department administrative investigation found the charge to be well-founded, but the matter was dropped when the complaint was withdrawn. A second incident occurred when Lenhardt allegedly drew his weapon while off duty, pointed it at a superior officer who was on duty, and threatened to take the superior's life. Lenhardt was exonerated as to the more serious charge of threatening the officer's life, but was found guilty of conduct unbecoming an officer. The district court concluded that this "alleged instance of misconduct, taken together with other untoward exhibitions by the officer, was certainly enough to have put the government on notice that there they were dealing with a man whose fitness for the job of a police officer required to be constantly armed had been called into question."
The court found the government liable to plaintiff for negligently entrusting a deadly weapon to Lenhardt. It found support for this theory of liability in the Restatement (Second) of Agency § 219(2)(b) (1958).*fn2 The court assessed damages at $25,000, the maximum recovery permitted against the Government of the Virgin Islands by the statutory waiver of sovereign immunity for tort actions. 33 V.I.C. § 3411(c). In addition, the court taxed costs against the government in the amount of $37 and awarded plaintiff an attorney's fee of $3,000, see 5 V.I.C. § 541. The court also granted plaintiff's motion to award the judgment as a sum certain, not subject to setoffs or deductions on account of a payment of $10,000 made to plaintiff under the Virgin Islands Criminal Victims Compensation Act, 34 V.I.C. §§ 151-177.
The Government of the Virgin Islands does not appeal the finding of liability, but challenges two aspects of the damage award. First, the government objects to the award of costs and attorney's fees in addition to a damage award of $25,000. In a case brought under the general territorial jurisdiction of the District Court of the Virgin Islands,*fn3 costs and counsel fees may not be charged against the government without an express waiver of sovereign immunity. Cf. Fairmont Creamery Co. v. Minnesota, 275 U.S. 70, 73-74, 72 L. Ed. 168, 48 S. Ct. 97 (1927) (absent waiver, sovereign immunity bars award of costs against state in state court action); Skehan v. Board of Trustees, 538 F.2d 53, 58 (3d Cir.) (en banc), cert. denied, 429 U.S. 979, 50 L. Ed. 2d 588, 97 S. Ct. 490 (1976). The legislature has provided a general waiver of immunity covering cases such as plaintiff's in the 1971 Virgin Islands Tort Claims Act, 33 V.I.C. § 3408.*fn4 We have held that this statute also waives immunity from an award of costs and attorney's fees. Baptiste v. Government of the Virgin Islands, 529 F.2d 100 (3d Cir. 1976). See also Collins v. Government of the Virgin Islands, 366 F.2d 279, 286 (3d Cir. 1966) (under waiver of immunity by passage of special act), cert. denied, 386 U.S. 958, 18 L. Ed. 2d 105, 87 S. Ct. 1026 (1967).
The legislature, however, has placed a monetary limitation on its waiver of immunity. Section 3411(c) of title 33 provides:
No judgment shall be awarded against the Government of the Virgin Islands in excess of $25,000.
We have previously addressed the question of whether the total award of damages, costs, and counsel fees may exceed this statutory limit. See Baptiste v. Government of the Virgin Islands, supra, 529 F.2d at 102-03:
The only limitation upon the amount of a judgment which can be awarded appears in 33 V.I.C. § 3411(c). . . . That provision argues in favor of the allowance of attorneys' fees because 5 V.I.C. § 543(a), which was in effect for years before enactment of the Tort Claims Act, provides that: "A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree." Thus, reading the statutory provisions together: attorneys' fees are costs; costs are included in the judgment; but the total judgment cannot exceed $25,000.00.
Although this observation was dicta in Baptiste, we believe that it correctly states the reasoning to be applied to this case.*fn5 We therefore hold that the district court erred in awarding damages, costs and attorney's fees in excess of $25,000. Such an award exceeds the government's waiver of immunity.
Plaintiff has argued that the analysis in Baptiste is erroneous in light of F.R. Civ. P. 58, which provides in part that the "entry of the judgment shall not be delayed for the taxing of costs." Plaintiff reasons that the word "judgment" in the Tort Claims Act cannot include costs, including attorney's fees. While Rule 58 states the appropriate procedure for the entry of judgment and the taxing of costs in the Virgin Islands, see, Danzig v. Virgin Isle Hotel, Inc., 278 F.2d 580 (3d Cir. 1960), we do not believe that the Rule affects this court's analysis of the legislature's intent in passing the limited waiver of immunity. Baptiste interpreted the meaning of the word "judgment" as used in the Virgin Islands Code. This interpretation is compatible with the operation of Rule 58. If the damage award against the government is $25,000, the court may not award plaintiff ...