S. Ct. Civ. No. 2010-0053

Orders of the Superior Court which stayed a negligence personal injury suit by a worker against a refinery, compelled arbitration of the claim pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. §1 et. seq., and then later confirmed the arbitral decision denying recovery, are affirmed. Whether or not the three month period specified in 9 U.S.C. § 12 applies to proceedings in the Superior Court, that provision does not establish a jurisdictional requirement, but operates as a statute of limitations that may be waived by a party's failure to timely assert it, and here the refinery has waived protections of that section by waiting until appellate oral argument to assert it. While the refinery delayed approximately two years before filing its motion to compel arbitration, delay alone does not constitute sufficient prejudice to support waiver of an arbitration right. The party opposing arbitration has the burden to show how the delay resulted in prejudice and here the refinery did not participate in the Superior Court matter to such an extent as to have required plaintiff to spend substantial amounts of time, effort, and money litigating the matter in that forum before filing its motion to compel arbitration. Plaintiff has failed to show prejudice from the delay. Virtually identical dispute resolution contract terms identifying this refinery as a third-party beneficiary have been found to cover tort disputes in this context, and the mere fact that a contract is adhesive does not-without more-render it unconscionable. In this case unconscionable expense to plaintiff was not shown, nor was the application of a six month limitations period for bringing such claims unreasonable. The agreement in this case is not inconsistent with the Virgin Islands Workers' Compensation Act and it does not confer upon the refinery any greater rights than those available to the plaintiff's direct employer. Thus no basis is found to disturb the Superior Court's July 30, 2007 and July 20, 2010 Orders, which are affirmed.