Opinion
C.A. No. N11C-11-047 FSS
04-14-2015
RE: Montgomery, et al. v. William Moore Agency, et al.
Timothy E. Lengkeek, Esquire Young Conaway Stargatt & Taylor, LLP 1000 North King Street Wilmington, DE 19801 Thomas P. Leff, Esquire Casarino Christman Shalk Ransom & Doss, P.A. 405 North King Street, Suite 300 P.O. Box 1276 Wilmington, DE 19899-1276 Mark L. Reardon, Esquire Eckert Seamans Cherin & Mellott LLC 300 Delaware Asvenue, Suite 1210 Wilmington, DE 19801
FRED S. SILVERMAN JUDGE Timothy E. Lengkeek, Esquire
Young Conaway Stargatt & Taylor, LLP
1000 North King Street
Wilmington, DE 19801
Thomas P. Leff, Esquire
Casarino Christman Shalk Ransom & Doss, P.A.
405 North King Street, Suite 300
P.O. Box 1276
Wilmington, DE 19899-1276
Mark L. Reardon, Esquire
Eckert Seamans Cherin & Mellott LLC
300 Delaware Asvenue, Suite 1210
Wilmington, DE 19801
Dear Counsel:
After oral argument and supplemental briefing on Defendants' motions for summary judgment, the court issued its decision on February 27, 2015. Defendants filed a timely motion for reargument, alleging the court misapprehended facts. Plaintiffs responded March 11, 2015.
Super. Ct. Civ. R. 59(e).
A motion for reargument will be granted if the court has "overlooked a controlling precedent or legal principles, or misapprehended the law or facts such as would have changed the outcome of the underlying decision." Movants may neither present new arguments nor rehash those already presented.
Radius Services, LLC v. Jack Corrozi Const., Inc., C.A. No. 09L-02-046-JTV, 2010 WL 703051, at *1 (Del. Super. Feb. 26, 2010).
Reid v. Hindt, C.A. No. 01C-10-046 (JTV), 2008 WL 2943373, *1 (Del. Super. July 31, 2008).
Defendants argue the court misapprehended facts by not addressing two exclusions in the endorsement. Specifically, Defendants first argue the court "overlook[ed] the express exclusion cited by Defendants . . . [which] specifically provides that a member of an executive officer's household is not considered an insured under the endorsement." Second, Defendants argue the court "did not consider the exclusion that provides that an Owner of a 'non-owned auto' is not an insured either."
As to the first exclusion, Defendants rehash their argument that the provision excludes members of an executive officer's household. But, the court already rejected that. The court recognized that the Christmas Shop would have been the named insured under the endorsement. The court held: "If the jury finds he is an employee or agent, Achenbach would have been covered because none of the endorsement's exclusions apply here."
The exclusion Defendants so adamantly rely upon merely describes who is not an insured under the endorsement: "Any partner or 'executive officer' for any 'auto' owned by such partner or officer or a member of his or her household." Contrary to Defendants' argument, the exclusion does not apply to members of an officer's household; it applies to an officer who uses a vehicle owned by a member of the officer's household. Achenbach is neither a partner now an executive officer. Accordingly, Achenbach is not excluded under this provision.
Next is Defendants' s argument that an owner of a "non-owned auto" is excluded. This is the first that Defendants raised this argument. "It is axiomatic that one cannot in a motion for . . . reargument raise new grounds not raised in the original proceedings." And besides, it is wrong. The endorsement excludes the owner of any auto that the Christmas Shop does not own, lease, hire, or borrow which is used in connection with its business. Therefore, the owner of an auto that the Christmas Shop borrows, which is used in connection with its business, is covered. A verdict for Plaintiff would reflect the fact that the Christmas Shop was, in effect, using its employee's truck for the Christmas Shop's business. Thus, Achenbach would be covered under the Christmas Shop's policy. But, again, the court is not obliged to make that ruling in hindsight.
Ingersoll v. Rollins Broad. of Del., Inc., 269 A.2d 217 (Del. Super. 1970) (citing H. v. H., 314 A.2d 420, 422 (Del. Super. 1973)). --------
In context, this all makes sense. The Christmas Shop needed insurance for the risk posed by the use of certain autos in its business. The insurer promised that, but did not promise personal auto insurance through the Christmas Shop's commercial policy. If, as Defendants may argue, Achenbach had been using his truck for his affairs, he would not have been covered by the Christmas Shop's policy. It is for the jury to decide, however, whether Achenbach was using his truck to carry-out the Christmas Shop's business at its behest when he hurt Plaintiff.
In sum, Defendants' first argument was decided originally. Their second argument was, in effect, waived.
For the foregoing reasons, Defendants' Motion for Reargument is DENIED.
IT IS SO ORDERED.
Very truly yours,
/s/ Fred S. Silverman FSS:mes
oc: Prothonotary (Civil)
Sarah B. Cole, Esquire
Rachel D. Allen, Esquire
Krista Reale Samis, Esquire