Opinion
C.A. No. 07C-05-049 (JTV).
Submitted: August 24, 2007.
Decided: November 27, 2007.
Upon Consideration of Defendants' Motion For Summary Judgment GRANTED
David A. Boswell, Esq., Schmittinger Rodriguez, Rehoboth Beach, Delaware. Attorney for Plaintiff.
Jessica L. Julian, Esq., Marshall, Dennehey, Warner, Coleman Goggin, Wilmington, Delaware. Attorney for Defendants.
OPINION
This case requires the Court to construe 19 Del. C. § 2357, which reads as follows:
If default is made by the employer for 30 days after demand in the payment of any amount due under this chapter, the amount may be recovered in the same manner as claims for wages are collectible.
The plaintiff, Hermilo Ramirez, petitioned the Industrial Accident Board for workers' compensation benefits. On February 8, 2007, the plaintiff and the employer entered into a settlement agreement under which the employer agreed to pay total disability benefits and medical expenses. On the same day, plaintiff's counsel wrote a letter to employer's counsel demanding payment of $78,475.82 in medical expenses and $4,761.96 in accrued total disability benefits, for a total of $83,237.78. Relying on the above-mentioned statute, plaintiff's counsel demanded that the benefits be paid within 30 days of the date of the letter.
Checks for the amount owed were mailed by employer's counsel to plaintiff's counsel on March 14, 2007 and received by him on March 16, 34 and 36 days, respectively, after February 8, 2007.
On May 31, 2007, the plaintiff filed his complaint in this case seeking liquidated damages of $33,290.28, or more. This sum was calculated at a rate of 10% per day of the aforesaid $83,237.78 for the period of time between the expiration of 30 days from the date of the demand letter and the date of sending of payment, or date of receipt of payment. The plaintiff also sought attorneys' fees and costs. He contends that under 19 Del. C. § 2357 he is entitled to such damages because the employer did not make payment within 30 days of his February 8, 2007 letter. The employer has filed a motion to dismiss the complaint, contending that since it paid the amount due by March 16 it is not subject to liquidated damages. Exhibits are attached to the motion. 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).
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 nonmoving 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).
The Delaware Supreme Court has held that 19 Del. C. § 2357 entitles a worker to liquidated damages, attorneys' fees and costs under the Wage Payment and Collection Act where an employer wrongfully withholds workers' compensation benefits for 30 days after the worker demands payment.
Huffman v. C. C. Oliphant Son, 432 A.2d 1207 (Del. 1981).
19 Del. C. § 2362(c) provides that where parties reach a written agreement as to compensation, as the parties did here, "payment of compensation shall commence within 14 days of the date of that agreement." Thus, the employer in this case had a statutory period of 14 days from February 8, 2007 to pay the medical expenses and accrued total disability benefits which it agreed to pay, before it could be said that it was in default in payment. It follows that default occurred on February 23, the 15th day after the date of the agreement, and payment of the benefits was made within 30 days of default.
My interpretation of 19 Del. C. § 2357 is that in orde r for it to appl y, there must be a default in payment of benefits due, which must continue for a period of 30 days after a demand for payment is made. The phrase "default . . . for 30 days" does not refer simply to the 30 days following the demand for payment, where, as here, the demand is submitted before a default in payment of amounts due has occurred. A demand letter cannot in and of itself create a default in payment where one has not yet occurred. Under the statute there must be a default in payment of an amount due which must exist for a period of 30 days following a demand for payment. In this case the default existed from February 23 to March 16, at the latest, a period of less than 30 days. Since the default was less than 30 days, 19 Del. C. § 2357 cannot apply.
For these reasons, the defendant's motion for summary judgment is granted .
IT IS SO ORDERED.