Opinion
C.A. No. 07C-04-020 (JTV).
Submitted: August 17, 2007.
Decided: November 29, 2007.
Upon Consideration of Defendant's Motion To Dismiss.
DENIED.
Jeffrey J. Clark, Esq., Schmittinger Rodriguez, Dover, Delaware. Attorney for Plaintiff.
K. William Scott, Esq., Scott and Shuman, West Fenwick, Delaware. Attorney for Defendant.
ORDER
Upon consideration of the Motion to Dismiss the Complaint filed by the defendant, the plaintiff's opposition, and the record of the case, it appears:
1. Defendant Carl Freeman Communities, LLC, (?Freeman") has moved to dismiss the complaint pursuant to Superior Court Civil Rules 12(b)(3) (improper venue) and 12(b)(6) (failure to state a claim upon which relief can be granted).
2. The plaintiff, David Huffman, is an employee of Engle Heating Cooling, Inc. (?Engle"). Freeman is the owner, developer, and general contractor of a construction project known as Americana Bayside. Engle was a subcontractor engaged in HVAC work for the project. The plaintiff was injured while working at the Bayside site.
3. The plaintiff filed this suit against Freeman, alleging that it was negligent in a variety of ways. Huffman did not name Engle as a party to this action, of course, as the workers' compensation law bars him from filing suit against his employer.
4. Freeman's primary contention is that the written agreement between it and Engle, under which Engle was hired as a subcontractor, contains an indemnity clause requiring Engle to indemnify Freeman against any damages "arising out of or resulting from the performance of Subcontractor's work under this Subcontract Agreement, but only to the extent the condition(s) upon which the . . . damages . . . are based, shall have been caused in whole or in material part by the negligent acts or omissions of Subcontractor . . . or of the agents and employees of Subcontractor." Under this clause, Freeman contends, Engle is liable to indemnify it for the plaintiff's claim. This, Freeman contends, would violate 19 Del C. § 2304, the workers' compensation law's exclusivity provision, and § 2371, which provides that the employer is liable only to the extent and in the manner specified in that law.
5. The contract between Freeman and Engle is beyond the pleadings. Since matters outside the pleadings are being considered, the motion will be deemed a motion for summary judgment under Superior Court Civil Rule 56.
Mell v. New Castle County, 835 A.2d 141 (Del.Super. 2003).
6. Summary judgment should be rendered if the record shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The facts must be viewed in the light most favorable to the non-moving party. Summary judgment may not be granted if the record indicates that a material fact is in dispute, or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law to the circumstances. However, when the facts permit a reasonable person to draw but one inference, the question becomes one for decision as a matter of law.
Superior Court Civil Rule 56(c).
Guy v. Judicial Nominating Comm'n, 659 A.2d 777, 780 (Del.Super. 1995) Figgs v. Bellevue Holding Co., 652 A.2d 1084, 1087 (Del.Super. 1994).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
Wooten v. Kiger, 226 A.2d 238 (Del. 1967).
7. It is well established that Freeman, since it is not the plaintiff's employer, is not immune from suit.
Dickinson v. Eastern R.R. Builders, Inc., 403 A.2d 717 (Del. 1979).
8. The motion appears to ask the Court to make factual assumptions which the Court is in no position to do. For example, the indemnity clause, as quoted in the motion, appears to be one in which Engle agrees to indemnify Freeman for negligent acts or omissions of Engle or its agents or employees. However, whether Engle committed negligent acts or omissions is unknown and unknowable on the current record.
9. The indemnity clause relied upon by Freeman is not properly before the Court unless and until Freeman impleads Engle.
Precision Air, Inc. v. Standard Chlorine of Delaware, Inc., 654 A.2d 403 (Del. 1995).
10. The defendant's venue argument has no merit. Venue is statewide.
11. Therefore, the defendant's motion is denied .
IT IS SO ORDERED.