Opinion
C.A. No. 06C-02-044-JOH.
Submitted: September 27, 2007.
Decided: December 19, 2007.
Upon Motion of Plaintiff for Reargument — GRANTED .
L. Vincent Ramunno, Esquire, of Ramunno Ramunno Scerba, Wilmington, Delaware, attorney for plaintiff.
Jeffrey S. Friedman, Esquire, of Silverman McDonald Friedman, Wilmington, Delaware, attorney for defendant.
MEMORANDUM OPINION
Plaintiff Epifania Cruz moves for reargument of this Court's bench ruling of September 21, 2007 in which the Court granted Defendant Petra Extepan's summary judgment motion. Cruz and Extepan were co-workers on the way to a job site when an auto accident occurred. This Court's dismissal off Cruz's action was premised on the statute which provides that in a such a situation the injured employee's sole remedy is through worker's compensation.
Background
Extepan had moved for summary judgment on the basis that Delaware law prohibits a co-employee from recovering from another co-employee for a work related injury. The undisputed facts were that Cruz and Extepan had picked up from their employer their cleaning assignment for the day. Extepan was driving the two of them from their employer's office to that location when the accident occurred. There was no factual or legal question that both were traveling in the regular course of their employment and were not simply commuting to a job site.
19 Del. C. §§ 2304 and 2363(a); Ward v. General Motors Corp., 431 A.2d 1277, 1279 (Del.Super. 1981).
Cruz retained counsel shortly after the accident. He commenced negotiations with Extepan's carrier, Progressive, in December 2004. Progressive is not the employer's worker's compensation carrier. Those negotiations proceeded through the summer of 2006, though suit had been filed on February 3, 2006. At no time during those negotiations, however, did Progressive raise the worker's compensation issue.
Extepan was served July 24, 2006. After receiving an extension to answer the complaint, she filed her Answer on September 6, 2006. In that Answer, Extepan raised several defenses and one affirmative defense. That affirmative defense raised was not injury by fellow servant. The first time this defense was raised was when Extepan filed her summary judgment motion on August 14, 2007. In her response, Cruz noted (1) Progressive had never mentioned it and (2) Extepan's Answer to the complaint did not raise it. This latter failure, she argued violated this Court's Civil Rule 8(c). That rule provides in pertinent part:
Rule 8. General rules of pleading.
(c) Affirmative defenses. In pleading to a preceding pleading, a party shall set forth affirmatively . . . injury by fellow servant . . . and any other matter constituting an avoidance or affirmative defense.
Super. Ct. Civ. R. 8(c).
The injury by fellow servant is an applicable affirmative defense to the facts of this case. Ordinarily, the failure to raise such an affirmative defense constitutes a waiver of it. Even though not raised in Extepan's Answer, but based on City of Wilmington v. Spencer, the Court ruled that Extepan had not raised this defense too late. In Spencer, the City on appeal, for the first time, raised a statute of limitations defense, one of the Rule 8(c) listed affirmative defenses. Clearly that was too late.
Cannelongo v. Fidelity American Small Business Inv. Co., 540 A.2d 435 (Del. 1988).
391 A.2d 199 (Del. 1978).
In addition, the factual circumstances here were neither ambiguous or unclear. However, even if Cruz' counsel believed the factual setting to be unclear, he knew or should have known early on that the injury by fellow servant rule was implicated. Whether his lack of knowledge was due to Cruz not being forthright or the failure to ask enough questions is not now important. He had on her behalf, nevertheless, the right to simultaneously bring this action and a worker's compensation action until the facts "became" certain.
Ratcliffe v. Fletcher, 1996 WL 773003 (Del.).
In short, while Extepan first raised the affirmative defense of injury by fellow servant in her summary judgment rule, the Court's bench ruling was also based on the fact that any prejudice was self-inflicted. When, however, Cruz opposed Extepan's original summary judgment motion, she raised the Rule 8(c) waiver issue. Extepan did not move to amend her answer to enable her to raise it at that stage.
Cruz's motion to reargue asks this Court to revisit the waiver issue. She now adds other information to the claim she made before of prejudice to her due to Progressive's silence on the injury to fellow servant and by Extepan's failure to assert it in her answer. Cruz also points out that Extepan's answer was filed after the statute of limitations. However, the docket shows it took over five months for Cruz to serve her with the Complaint.
Cruz adds to her prejudice argument (and predicament) by now telling Court she has learned the parties' employer did not have worker's compensation insurance on the date of the accident.
Applicable Standard
Under a Rule 59(e) motion for reargument, the "only issue is whether the court overlooked something that would have changed the outcome of the underlying decision." Generally, reargument will be denied unless the underlying decision involved an abuse of discretion. Finally, "[a] motion for reargument is not intended to rehash the arguments already decided by the court."
McElroy v. Shell Petroleum, Inc., 618 A.2d 91 (Del. 1992).
Id.
Id.
Discussion
In a motion for reargument, a party is not permitted to raise new arguments that could have been brought to the Court's attention before the original decision. Cruz, for the first time, raises an argument under 19 Del. C. § 2374. That section provides:
(a) Every employer to whom this chapter applies shall file with the Department in form prescribed by it, annually or as often as may be required by the Department, evidence of the employer's compliance with §§ 2372 and 2373 of this title and all other sections relating thereto.
(b) Whoever, being an employer, refuses or neglects to comply with the sections referred to in subsection (a) of this section shall be subject to a civil penalty of $1 per day for each employee In the employer's service at the time when the insurance became due, but not less than $25 for each day of such refusal or neglect and until the same ceases. The employer shall also be liable to the employer's injured employees during continuance of such neglect or refusal, either for compensation under this chapter or in an action at law for damages. In such action, upon proof that the employer has not complied with this section, it shall not be a defense that the:
(1) Employee was negligent; or
(2) Employee has assumed the risk of the injury; or
(3) Injury was caused by the negligence of a fellow employee.
Cruz argues that this language means that the fellow servant rule is no longer available to Extepan due to the employer's lack of insurance. That argument is incorrect. This provision means that if theemployer is sued, that employer, in an instance when § 2374 applies, cannot assert the fellow servant bar.
By not doing what she could have done by initially pursuing a worker's compensation action and this case, Cruz has put herself in a precarious position. Over a year after the statute of limitations has expired as far as an action against the employer, she has learned the employer had no insurance and, of course, cannot now be sued. This was an avoidable quandry. It was a fact which was not presented in opposition to Extepan's original motion.
On reargument, the Court now views that there are two basic issues. One is that neither Progressive (Extepan's carrier) in over a year's negotiations with Cruz (and even as late as June, 2006 when making an offer of settlement) did not raise the fellow servant rule/bar. One has to wonder also why its adjuster did not learn all the facts either. But no impediment to doing so has been offered.
The other issue is that why when answering the complaint, Extepan did not assert the fellow servant defense even though another affirmative defense was. As noted, that answer was filed after the statute of limitations had run. Extepan's motion for summary judgment was filed eleven months after her answer and only then was the fellow servant rule issue raised. Further when Cruz opposed that motion, on the basis of Rule 8(c) and waiver, Extepan did not and has still not moved to amend her answer to raise this affirmative defense. The Court is not saying how it would have ruled on that motion if she had at any point in this time frame.
See Cannelongo, 540 A.2d at 440.
Cruz's attorney's first letter to Progressive was sent December 4, 2004. Nearly thirty-three months elapsed before this defense was first raised. Cruz, though mostly self-inflicted, has suffered significant prejudice in that timing. On balance, however, the Court, upon reflection, views its award of summary judgment to Extepan as an abuse of discretion. That decision is VACATED.