Opinion
C.A. No. 01C-02-026.
Submitted: March 28, 2003.
Decided: May 2, 2003.
Upon Defendants' Motion for Summary Judgment. GRANTED.
Roger A. Akin, Esquire, Attorney for Plaintiffs
Colin M. Shalk, Esquire and Thomas P. Leff, Esquire, Attorneys for Defendant, Harleysville
Nicholas E. Skiles, Esquire, Attorney for Defendant EMT
ORDER
This 2nd day of May, 2003, upon consideration of the submissions of the parties, it appears to this Court that:
1. Defendant Harleysville Mutual Insurance Company ("Harleysville"), together with its insured, defendant EMT Construction Corporation ("EMT") (which joined in Harleysville's motion), moves this Court to enter an order for summary judgment in defendants' collective favor. Harleysville so moves based on its contentions that: 1) it had no duty to defend or indemnify plaintiff Delaware Electric Cooperative, Inc. ("DEC") for a judgment rendered against it by a jury in a previously-litigated Kent County wrongful death action (such judgment having been satisfied in its entirety by DEC's insurer, plaintiff Federated Rural Electric Insurance Corporation ("Federated")); and 2) DEC is now estopped from litigating EMT's fault in relation to that wrongful death, given the prosecution to completion of the plaintiffs' case in that action. In this case, DEC has sought to determine Harleysville's contractual indemnification duty to it as an "additional insured" of Harleysville under a contract between between EMT and DEC. The parties agree that there are no material facts in dispute for purposes of the present motion. The Court concludes that because DEC could have contractually obtained indemnity from EMT despite the applicable workers' compensation statute limiting an employer's liability for the injury or death of an employee, DEC should have originally brought EMT and its insurer, defendant Harleysville, before the Court as part of the underlying Kent County wrongful death suit, and DEC will not now be allowed to litigate such duty, as such a litigation would necessarily involve the re-litigation of a previously adjudicated claim and the likely disturbing of percentages of fault which have already been determined by a jury. Accordingly, defendants' Motion for Summary Judgment is GRANTED on the estoppel ground that they advance, thereby negating any necessity for the Court to determine Harleysville's contention that it had no duty to defend or indemnify plaintiff DEC because of DEC's "additional insured" status under the DEC-EMT contract.
Wells v. Delaware Electric Cooperative, Inc., C.A. No. 96C-05-020 WLW (Del.Super.Ct.). The jury verdict in plaintiffs' favor was affirmed on appeal, Delaware Electric Cooperative, Inc. v. Wells, No. 304, 2000, 2001 WL 898591 (Del.Supr. Aug. 3, 2001).
Known as the workers' compensation "bar," title 19, section 2304 of the Delaware Code provides that "compensation for personal injury or death by accident arising out of and in the course of employment [shall be such injured or deceased employee's exclusive remedy], regardless of the question of negligence and to the exclusion of all other rights and remedies."
2. A review of the facts of the underlying wrongful death litigation is necessary to disposition of the current motion. Accordingly, the Court culls the relevant facts from the papers submitted in connection with the motion currently under consideration, from relevant submissions from the earlier lawsuit (including a letter opinion relating to a motion in limine plaintiffs had filed therein), and from the Delaware Supreme Court's order on appeal.
In the underlying action, Christina Wells sued DEC for her husband's wrongful death; Ms. Wells did so in an individual capacity, as personal representative for her husband's estate, and as next friend for her and for her husband's son. At the time of his death, Mr. Wells was working as an employee of EMT, which in turn was working under contract with DEC to perform certain electrical pole relocations. Mr. Wells was electrocuted and died while performing duties pursuant to the DEC-EMT contract.
Included within the contract between DEC and EMT was a provision whereby EMT promised to indemnify DEC "from and against any and all liability, loss, claims, damages, demands, and expenses of whatsoever nature. . . ." The DEC-EMT contract further provided that EMT would not be required to indemnify DEC "when a loss [wa]s caused by the sole negligence of DEC[,]" but rather "[i]n cases of joint or concurrent negligence, each party [would] be responsible to the extent of its respective negligence." Finally, the contract provided that EMT would "submit [to DEC] a fully executed Certificate of Insurance[,]" such certificate naming DEC "in each applicable insurance policy as an additional insured party."
Ex. "C" to Def. Harleysville's Mot. at 3.
Id. at 4.
Id. at 7.
EMT was not named as a defendant by the wrongful-death plaintiffs (presumably because of the workers' compensation exclusivity "bar"), but DEC did not formally seek to bring EMT into the wrongful death action. DEC apparently made demand upon EMT that either it or its insurer, Harleysville, enter an appearance in the wrongful death litigation, but neither EMT nor Harleysville ever did.
Def. Harleysville's Mot. ¶ 7.
During the wrongful death litigation, and after an initial dispute concerning DEC's status under Harleysville's policy with EMT, Harleysville "reformed" EMT's policy to reflect that DEC was an "additional insured" thereunder. Harleysville contended in that litigation that DEC's insurance policy with Federated and DEC's insurance policy with Harleysville "were concurrent and primary [coverages] on the date of [Mr. Wells's death,]" and that so-called "other insurance" clauses contained in both policies "provide[d] for the pro rata sharing of indemnification and defense costs . . . and the liability limits for both Federated and Harleysville's policies were the same[.]" Harleysville therefore apparently maintained throughout the wrongful death litigation that, at maximum, its financial responsibility to DEC would be 50% of any jury verdict or settlement amount.
Id. ¶ 9.
Id. ¶ 3.
Despite DEC's decision not to formally bring EMT or Harleysville into the wrongful death litigation, some pretrial strategizing occurred, as evidenced by a letter opinion issued in that action deciding a motion in limine that had been brought by Ms. Wells. In the letter opinion, this Court, relying on the language from Duphily v. Delaware Electric Cooperative, Inc. that "[w]hen a party's negligence is relevant to the injury-producing event but [is] not actionable, a defendant may nonetheless introduce evidence to establish that the negligence of the immune party was the supervening cause of the plaintiff's injury[,]" determined that DEC would be precluded from introducing evidence that EMT (the decedent's employer) was contributorily negligent by virtue of title 19, section 2304 of the Delaware Code. Rather, this Court held that DEC was limited to arguing "that the employer [EMT] was a superseding cause to . . . [Mr. Wells's] injuries."
662 A.2d 821 (Del. 1995) (en banc) (holding that the alleged negligence of a plaintiff's employer was admissible as evidence of the superseding cause of his injuries even though the employer was otherwise immune from suit under the workers' compensation statute).
Duphily, 662 A.2d at 828.
Wells v. Delaware Elec. Coop., Inc., Del. Super., C.A. No. 96C-05-020, Witham, J. (Apr. 27, 2000), Letter Op. at 1 (Ex. "1" to Pl.'s Resp.).
The wrongful death action proceeded to trial on the theory, from DEC's perspective, that EMT's fault, if any, could not be assessed as a percentage, but only in terms of whether or not that fault rose to the level of "superseding" cause of Mr. Wells's death. The "special verdict form" submitted to the jury reflected as much, as it contained the following questions, to which the jury could answer either "yes" or "no": 1) "Was DEC negligent?"; 2) "Was EMT negligent?"; and 3) "Was EMT's negligence a superseding cause of Mr. Wells's death?". In addition to requiring the jury to determine the total amount of damages, the form also asked the jury to determine whether Mr. Wells himself was negligent, and, if so, the amount of his negligence.
See "Special Verdict Form," Wells v. Delaware Electric Cooperative, Inc., C.A. No. 96C-05-020 WLW (Ex. "3" to Pl.'s Resp.).
The jury thereafter determined that both DEC and EMT were negligent (but that EMT's negligence was not a superseding cause of Mr. Wells's death), that DEC proximately caused Mr. Wells's death, and that Mr. Wells himself was 25% contributorily negligent. The jury awarded the wrongful-death plaintiffs a combined $481,000 before the 25% reduction. That verdict was thereafter affirmed on appeal.
Wells, 2001 WL 898591, at *2.
As DEC's insurer throughout that litigation, Federated absorbed the costs of the defense, and also satisfied the judgment against DEC following the Supreme Court's affirmance of the jury's verdict in this Court.
3. Almost nine months after the jury rendered its verdict in the Wells wrongful death suit (and while that verdict was being appealed to the Delaware Supreme Court), DEC filed a complaint in New Castle County Superior Court seeking a declaratory judgment and alleging breach of contract and bad faith against EMT and Harleysville. The complaint was subsequently amended to add Federated as a plaintiff.
Although the present lawsuit stems directly from the Kent County wrongful death litigation, no statute or rule prohibits a second, related lawsuit from being filed in another county.
The bad faith claim was later withdrawn.
The factual averments from the Amended Complaint relevant to the motion currently under consideration are as follows:
23. Contrary to its contractual obligation to do so, EMT has not assumed the entire defense of the underlying litigation prior to nor subsequent to trial. Nor has EMT paid such judgment in its entirety as it is obligated to do. Nor has EMT attempted to negotiate a settlement of plaintiffs' claims in the underlying tort litigation either before, during or after trial. Nor has EMT assumed all of the defense costs of [DEC] before, during and after trial as it is obligated to do. The judgment of the Superior Court in the underlying tort action has now been paid in full by plaintiffs [DEC] and/or Federated. . . .
Am. Compl. ¶ 23.
24. Contrary to its contractual obligation to do so on behalf of EMT and on behalf of [DEC] as third[-]party beneficiary, and contrary to the acknowledgment of its contractual obligations . . . [following "reformation" of its policy with EMT to include DEC as an "additional insured"], Harleysville has not assumed the entire defense of the underlying litigation prior to nor subsequent to trial. Nor has Harleysville paid such judgment in its entirety as it is obligated to do. Nor has Harleysville attempted to negotiate a settlement of plaintiffs' claims in the underlying tort litigation either before, during or after trial. Nor has Harleysville assumed all of the defense costs of [DEC] before, during and after trial as it is obligated to do. Plaintiffs therefore petitioned for a declaratory judgment that EMT and Harleysville were required to completely indemnify DEC and Federated. Plaintiffs also sought, under a breach of contract theory, a judgment in their favor and against EMT in the full amount of the verdict in the wrongful death suit, plus interest, costs, and fees. Finally, Plaintiffs sought, under a breach of contract theory, a judgment in their favor and against Harleysville in the correspondingly same amount.
Id. ¶ 24.
4. In its Motion for Summary Judgment, Harleysville originally sought a declaration that, rather than being liable for the full amount of the Wells judgment, "the extent of Harleysville's liability to DEC is no more than [50%] of the judgment paid and the defense costs incurred"; Harleysville contended as such "[b]ecause the `other insurance' clauses in both [the Federated-DEC and Harleysville-DEC] policies provide[d] for the pro rata sharing of indemnification and defense costs and because the liability limits for both . . . were the same. . . ." Subsequent to the filing of the motion, however, EMT, DEC, and Harleysville entered into a stipulation effectively resolving that part of the case.
Def. Harleysville's Mot. ¶ 3.
The stipulation provided, in pertinent part, "Federated . . . and . . . Harleysville . . . agree that each is obligated to [DEC] for [1/2] of the indemnity and costs associated with the defense and payment of the judgments in the matter of Wells v. Delaware Electric Cooperative . . ." (¶ 1) and that "This stipulation . . . shall not [a]ffect any claims that DEC or Federated may have against EMT pursuant to the terms of the contract or agreement between DEC and EMT for the work resulting in the death of Tony Wells." (¶ 6) (Dkt. #47).
With regard to any remaining claims against it based upon the DEC-EMT contract, Harleysville argues that, by virtue of the fact that it was not a party to that contract, it does not owe DEC any contractual indemnification duty. Harleysville argues that even if it were found to have such a duty, it could not be responsible for all of DEC's entire defense and indemnification, as such a finding would be contrary to Delaware public policy as expressed in title 6, section 2704(a) of the Delaware Code. Finally, Harleysville, relying on Chrysler Corporation v. Merrell Garaguso, Inc., contends that "[a]lthough DEC may have a claim for indemnification and a defense as an additional insured under the Harleysville policy, DEC does not have such a claim pursuant to the terms of the DEC-EMT contract."
Title 6, section 2704(a) of the Delaware Code provides that "a contract or agreement . . . purporting to indemnify or hold harmless the promisee or indemnitee or others . . . for damages . . . caused partially or solely by, or resulting partially or solely from, or arising partially or solely out of the negligence of such promisee or indemnitee or others than the promisor or indemnitor . . . is against public policy and is void and unenforceable . . ."; see also J.S. Alberici Constr. Co. v. Mid-West Conveyor Co., Inc., 750 A.2d 518 (Del. 2000) (holding that to the extent Kansas law permitted contractual indemnification for a party's own negligence, such law was repugnant to Delaware's legislatively-defined public policy, and was therefore unenforceable when contained in subcontractor agreement performed in Delaware).
796 A.2d 648 (Del. 2002) (holding that although a contractual provision requiring a contractor/subcontractor to purchase insurance naming an owner as an insured may "under certain circumstances" be unenforceable, a corresponding inference does not necessarily follow that, once secured, such insurance is also automatically unenforceable).
Def. Harleysville's Mot. ¶ 13.
Alternatively, Harleysville contends that DEC "is now barred from pursuing . . . a claim [of contractual indemnification from EMT]" because such claim was "subsumed in the underlying case and [Wells wrongful death] trial[.]" Harleysville contends that there are many Delaware cases "holding that a defendant may file a third[-]party claim against an employer otherwise protected by the Workers' Compensation Act upon the theory that the employer has an expressed or implied duty to indemnify the defendant[,]" and that "[t]o the extent that DEC claims it did not have th[at] right . . . [during the Wells litigation], this is clearly wrong." Harleysville further maintains that "[b]y litigating the claim that EMT's employee [Mr. Wells] was at fault, DEC actually obtained a reduction in the amount that it had to pay[,]" and that "DEC then further litigated the matter of EMT's fault by claiming its superseding negligence." Lastly, Harleysville argues that DEC "has already had a full and fair opportunity to litigate EMT's fault," and that DEC is therefore precluded from prosecuting its Amended Complaint by the doctrine of "collateral estoppel."
Def. Harleysville's Reply ¶ 6.
Id. ¶ 14.
Id. ¶ 15.
Def. Harleysville's Reply ¶ 12.
Id. ¶ 16.
Collateral estoppel is defined as "[a]n affirmative defense barring a party from relitigating an issue determined against that party in an earlier action, even if the second action differs significantly from the first one." BLACK'S LAW DICTIONARY 256 (7th ed. 1999) See also Chrysler Corp. v. New Castle County, 464 A.2d 75, 80 (Del. 1983) (stating that "when an issue of fact which was necessary to the outcome of a valid prior judgment has been fully litigated, it may not be reargued by a party to that prior proceeding").
In response, DEC primarily contends that Harleysville's Motion for Summary Judgment must be denied in favor of "further proceedings" to determine EMT's "causative negligence" in relation to Mr. Wells's wrongful death. "In other words," DEC argues, "if it is determined . . . that EMT . . . proximately caused . . . [a certain percentage] of the injuries and damages in the underlying tort litigation, then EMT (and its insurer Harleysville) are liable to pay . . . [that percentage amount] of the costs incurred in defense and indemnification of the tort case which are not otherwise covered by . . . [the stipulation entered into by the parties]." DEC contends that by virtue of the "bar" of title 19, section 2304 of the Delaware Code, it "has never been afforded the contractual right to establish the nature and extent of the causative negligence of EMT and its employees." DEC does however state that "[d]uring the litigation and at trial [of Mr. Wells's wrongful death], DEC vigorously argued that the accident was wholly or partially caused by the negligence of EMT. . . ."
Pls.' Resp. ¶ 9.
Id. ¶ 6.
Id. ¶ 9.
Id. ¶ 8.
Id. ¶ 3.
With regard to Harleysville's argument that the relief DEC is now seeking is contrary to Delaware public policy as expressed in title 6, section 2704(a) of the Delaware Code, DEC responds that that statute is not implicated here because "no duty of indemnification arises [on EMT and Harleysville's behalf] if a harm or loss [wa]s solely the result of the negligence of DEC." DEC maintains that its contract with EMT was drafted in such a manner as to provide for a determination "of the pro rata share of the negligence of [any] co-negligent party, and for the indemnification of DEC only for that portion of causative negligence not attributed to DEC." Therefore, DEC argues, "DEC should have its day in court so that this pro rata determination can be made."
Pls.' Supplemental Br. at 2.
Id. at 7.
Id.
In response to Harleysville's "collateral estoppel" argument, DEC contends that the Delaware Supreme Court "has implicitly sanctioned the manner in which [it] has chosen to assert its contractual rights. . . ." In support of this contention, DEC points to the Supreme Court's language in Merrell Garaguso, Inc. that "the question of insurance coverage is best resolved in [a] direct action [between the landowner and the third-party insurer] . . . initiated . . . in the Superior Court." DEC further argues that it is unaware of any authority "which would require as a matter of law that the claims at bar be litigated during and as a part of underlying personal injury litigation." Lastly, DEC contends that it should not be bound by the judgment in the Wells litigation because "EMT's pro rata causative negligence . . . was not at issue and was not litigated" given this Court's ruling "that EMT's contributing negligence could not be argued to the jury."
Id. at 8.
Merrell Garaguso, Inc., 796 A.2d at 651.
Pls.' Supplemental Br. at 8-9.
Id. at 8.
5. Summary judgment is granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The court must view the facts in a light most favorable to the non-moving party.
Super.Ct.Civ.R. 56(c); Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
Merrill v. Crothall-American, Inc., 606 A.2d 96, 99-100 (Del. 1992).
6. Neither DEC nor Harleysville contend that there are material facts in dispute other than EMT's potential "causative negligence" relative to Mr. Wells's death, which is not at issue for purposes of disposing of the present motion. The Court must, however, determine whether, as a matter of law, DEC can proceed to determine such negligence in the manner in which it now seeks to do so, i.e., through some form of "further proceedings."
Pls.' Resp. ¶ 9.
Depite DEC's apparent argument to the contrary, Delaware's workers' compensation law, and in particular the "bar" of title 19, section 2304 of the Delaware Code, does not prevent a third-party tortfeasor "against whom recovery [i]s sought by or on behalf of an injured or killed employee from obtaining indemnity against the employer under an [express or] implied obligation to indemnify arising out of a contact. . . ." In other words, "a third-party tortfeasor may assert a claim for indemnification against [an] injured party's employer . . .," as such an assertion "represents an exception to the exclusivity principle of [Delaware's] work[ers'] compensation law. . . ." In fact, there are many Delaware cases in which actions by third-party tortfeasors were maintained when said tortfeasors were being sued by injured parties who were themselves employees of the party sued by the third-party tortfeasors. Thus DEC could have brought in EMT as a third-party defendant in the Wells wrongful death litigation, and would not have been prevented from doing so by section 2304.
Joel E. Smith, Annotation, Modern Status of Effect of State Workmen's Compensation Act on Right of Third-Person Tortfeasor to Contribution or Indemnity from Employer of Injured or Killed Workman, 100 A.L.R.3d 350, 375 (1980) (describing Delaware as a jurisdiction where such actions are allowed).
SW (Delaware), Inc. v. American Consumers Indus., Inc., 450 A.2d 887, 888 (Del. 1982) (manufacturer of ice-cubing machine that was sued by injured employee of machine's purchaser sought indemnification from said purchaser).
See, e.g., Diamond State Tel. Co. v. Univ. of Del., 269 A.2d 52 (Del. 1970) (university that was sued by estate of deceased employee of telephone company sought indemnification from said telephone company); Powell v. Interstate Vendaway, Inc., 300 A.2d 241 (Del. 1972) (contractor that was sued by injured employee of land owner sought indemnification from said land owner); Howard, Needles, Tammen Bergendoff v. Steers, Perini Pomeroy, 312 A.2d 621 (Del. 1973) (engineering firm that was sued by injured or deceased employees of contractor sought indemnification from said contractor); American Consumers Indus., Inc., supra; Precision Air, Inc. v. Standard Chlorine of Del., Inc., 654 A.2d 403 (Del. 1995) (land owner sued by injured employee of contractor sought indemnification from said contractor).
With regard to DEC's argument that it should now "have its day in court" and that it was not required "as a matter of law" to litigate its contractual indemnification claim as part of the Wells matter, this Court cannot envision a proceeding in DEC's current suit that would not lead to the almost certain disturbing of the Well's jury's findings of fault with respect to DEC and the negligence (albeit in the context of superseding/non-superseding) of EMT. Yet that is what would result, this Court believes, if DEC were permitted to now proceed on its declaratory judgment/breach of contract claim.
Pls.' Supplemental Br. at 2.
Id. at 8.
Indeed, DEC's counsel in effect conceded at oral argument that another "trial" (complete with jury, as requested by DEC) involving much of the same evidence adduced in the Wells litigation would be required in this case in order to properly adjudicate its declaratory judgment/breach of contract claims. See Oral Arg. Tr. of 1/29/03 at 24-25.
"Offensive" collateral estoppel "occurs when [a] plaintiff seeks to foreclose [a] defendant from litigating an issue th[at] defendant has previously litigated unsuccessfully in an action with another party" and "defensive" collateral estoppel "occurs when a defendant seeks to prevent a plaintiff from asserting a claim [a] plaintiff has previously litigated and lost against another defendant." Here, Harleysville is attempting to use the judgment involving DEC and EMT that was previously entered in the Wells wrongful death litigation (and which was arguably "lost" by DEC in that EMT was found not to be liable to the plaintiffs therein) in order to preclude DEC's current action; thus, Harleysville now seeks to use the prior Wells judgment defensively against DEC, and so the doctrine of "defensive collateral estoppel" would presumably apply. The fact that EMT's interest in the Wells judgment is now being represented by its insurer, Harleysville, is of no moment, particularly given that it was Harleysville who had an interest in the Wells litigation all along — the true "issue" litigated in the Wells case is the same issue here, namely DEC's monetary liability for the death of Mr. Wells. Thus DEC's asserted cause of action in this case appears on its face to be barred by the fact of the prior prosecution to completion of Mr. Wells's wrongful death.
Benjamin F. Shaw Co. v. Short, 1989 WL 89521, at *3 (Del.Super. June 28, 1989).
It is unclear why DEC did not formally seek to bring EMT/Harleysville into the Wells litigation, particularly given the above-cited Delaware authority that would have permitted such action. As one treatise notes, "if [a] defendant has a claim against [an] absentee for indemnity . . . for all or part of [the] plaintiff's claim in [a] pending case, it can implead the absentee." In fact, the Superior Court Civil Rules provide for such a procedure: "At any time after commencement of [an] action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff."
4 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 19.05[2][c], at 19-92 (3d ed. 2003).
SUPER CT. CIVIL R. 14(a).
As this Court has previously stated, "defensive collateral estoppel gives a plaintiff a strong incentive to join all potential defendants in the first action. . . ." This fact becomes important when considering DEC's assertion (which this Court finds unpersuasive) that the Delaware Supreme Court "has implicitly sanctioned the manner in which [it] has chosen to assert its contractual rights. . . ." The Merrell Garaguso, Inc. case relied upon for that proposition does not warrant such a conclusion, as the statement therein that "the question of insurance coverage is best resolved in [a] direct action . . . initiated . . . in the Superior Court" refers only to the fact that at the time of that decision, the contractor-employer's insurer "ha[d] refused to acknowledge [the owner being sued by the contractor's employee] as an [additional] insured. . . ."
Short, 1989 WL 89521, at *3.
Pls.' Supplemental Br. at 8.
Merrell Garaguso, Inc., 796 A.2d at 651.
Id. at 649. The fact that the Superior Court action referenced in the Merrel Garaguso, Inc. case was so limited is confirmed by this Court's recent decision recognizing that Delaware law permits a cause of action for breach of contractual obligation to add a party to an insurance policy as an "additional insured." See DaimlerChrysler Corp. v. Pennsylvania Nat. Mut. Cas. Ins. Co., Del. Super., C.A. No. 01C-04-036, Herlihy, J. (Mar. 17, 2003) (Mem. Op.).
Because DEC cannot now maintain a separate suit to enforce its contractual indemnification right in order to recoup some of its judgment expenses from the Wells litigation, and because DEC fully had the opportunity to bring a third-party action against EMT and Harleysville in that litigation but did not do so, DEC will not now be permitted to relitigate that which has (or could have) been decided by a jury. As this Court stated almost 70 years ago, the roots of collateral estoppel "lie in the principle that public policy and welfare require a definite end to litigation when each of the parties has [had] a full, free and untrammeled opportunity of presenting all of the facts pertinent to the controversy."
Coca-Cola Co. v. Pepsi-Cola Co., 172 A. 260, 262 (Del.Super.Ct. 1934) (emphasis added). The Coca-Cola opinion incorrectly referred to the doctrine of "collateral estoppel" as the doctrine of res judicata, but the Supreme Court has recognized that the quoted language in fact refers to the former, and not necessarily the latter. See Chrsyler Corp. v. New Castle County, 464 A.2d at 80 n. 5.
Because DEC is barred, as a matter of law, from prosecuting the current suit, it is bound by the judgment rendered by the jury in the Wells litigation. Accordingly, the Court need not consider Harleysville's argument that it had no duty to defend or indemnify plaintiff DEC because of DEC's "additional insured" status under the DEC-EMT contract.
7. For all of the above reasons, defendant Harleysville's Motion for Summary Judgment (in which defendant EMT joins) is GRANTED.
IT IS SO ORDERED.