IN THE SUPREME COURT OF THE VIRGIN ISLANDS OPINION OF ...

Jensen v. WAPAS. Ct. Civ. No. 2008-027Opinion of the CourtPage 6 of 9(S.D. 2008) (emphasis added). Moreover, the gravamen of Jensen’s complaint rests not withWAPA’s alleged failure to comply with a specific contractual obligation, but with its purportedviolation of the workers’ compensation statutes’ re-hiring provisions. 2Accordingly, this Courtadopts the reasoning adopted by a majority of jurisdictions and holds that the Superior Court didnot err 3 in applying the two-year statute of limitations for tort actions to Jensen’s retaliatorydischarge claim. 4C. Tolling of the Statute of LimitationsIn both its July 22, 2005 opinion and March 17, 2008 order, the Superior Court, relyingon Brennan v. Kulick, 407 F.3d 603, 606-07 (3d Cir. 2005), held that none of Jensen’s causes ofactions were tolled during the pendency of the District Court action because “[t]he filing of acomplaint subsequently dismissed does not toll the statute of limitations.” Jensen, however,contends that dismissal on such a basis was improper because the Superior Court did not applythe correct test to determine whether tolling is appropriate. We agree.Since Jensen first asserted his territorial law claims in his District Court complaint, and2 Because neither party has raised these issues on appeal, it is neither necessary nor proper for this Court to reviewthe correctness of the Superior Court’s decision to re-characterize Count II of Jensen’s complaint as a cause ofaction for retaliatory discharge, see Restatement (Second) of Torts § 874A (authorizing courts to allow litigants,under certain circumstances, to pursue tort actions for violations of statutory provisions), or to determine whether alitigant must pursue the administrative remedies provided in section 285 of title 14 prior to filing suit for retaliatorydischarge. See St. Thomas-St. John Bd. of Elections v. Daniel, 49 V.I. 322, 328 n. 8 (V.I. 2007).3 Although Jensen contends that the law of the case doctrine precluded the Superior Court from purportedlycontradicting its July 22, 2005 opinion in its March 17, 2008 order—which had been issued by a different trialjudge—this Court declines to reverse the Superior Court on such a basis because the nature of a retaliatory dischargeclaim is a pure question of law that is subject to de novo review by this Court. See Hodge v. McGowan, S.Ct. Civ,No. 2007-057, 2008 WL 4924628, at *8 (V.I. 2008) (declining to reverse grant of partial summary judgment byjudge who should have recused himself because de novo review of summary judgment order on appeal cured anyerror by granting plaintiff “the same consideration she would receive if [the] order was vacated and remanded for anew trial on the motion for partial summary judgment.”).4 Because Jensen is precluded from pursuing his retaliatory discharge cause of action under a contract theory, andWAPA has not argued that the LMRA preempts Jensen’s tort claim, it is not necessary for this Court to considerWAPA’s argument that Jensen’s action cannot proceed without running afoul of the LMRA’s preemptionprovisions.