Opinion
C.A. No. 09C-04-027 (RBY).
Submitted: January 15, 2010.
Decided: February 5, 2010.
Upon Consideration of Defendant's Motion to Dismiss/Motion for Summary Judgment Denied.
Patrick C. Gallagher, Esq., Grad Hampton, LLC, Dover, Delaware for Plaintiff.
Raymond C. Radulski, Esq., Chrissinger Baumberger, Wilmington, Delaware for Defendant.
OPINION AND ORDER
SUMMARY
Defendant Alpine Contractors, Inc. ("Defendant") moves the Court to dismiss Plaintiffs Donyale and Rawle London's ("Plaintiffs") Complaint. This suit arises out of a series of sewage backups that occurred in Plaintiffs' home on April 19, 2007; April 21, 2007; and April 26, 2007. Defendant contends that Plaintiffs executed a release of all claims against Defendant. Plaintiffs counter that all possible grounds for Defendant's Motion to Dismiss were cured by Plaintiffs' Amended Complaint, and Plaintiffs' signed release, if effective at all, is only effective to bar claims relating to damage by the sewage backup of April 19, 2007. Because a genuine issue of material fact exists regarding the scope of Plaintiffs' signed release, Defendant's Motion to Dismiss/Motion for Summary Judgment is DENIED.
FACTS
Prior to March 2007, Plaintiffs' home experienced problems with its sewer line. After consultation with and an investigation by the City of Dover (the "City"), Plaintiffs were advised that the sewer line in their home either contained roots or had collapsed. Additionally, Plaintiffs were informed that there were no clean-out traps located on their property. Upon receipt of this information, Plaintiffs sought to remedy the problem.
Plaintiffs decided to utilize the City's community rehabilitation program, which addresses code violations and rectifies them according to specification requirements. Under this program, the City selected Defendant to perform the work on Plaintiffs' sewer line. In addition, the City agreed to pay Defendant on behalf of Plaintiffs with the stipulation that Plaintiffs retain the property for ten years. If Plaintiffs sold the property within ten years, Plaintiffs would be liable to the City for 10% of the contract price for each year remaining in the ten-year period. Plaintiffs agreed to the terms of the program.
On or about March 8, 2007, Defendant commenced work on Plaintiffs' property. Defendant's assignment was to replace the sewer line running to Plaintiffs' home and to install clean-out traps on her property. Defendant's initial work revealed, however, that there were no breaches of the sewer line as the City had suggested. Despite this knowledge, the City authorized a full replacement of the sewer line. Defendant completed the replacement of the sewer line and the installation of the clean-out traps during the last week of March 2007.
On April 19, 2007, raw sewage backed up from the sewer line into Plaintiffs' utility room, which was located in the lower level of their home. The backup resulted in approximately two inches of water, containing feces and other debris, accumulating in Plaintiffs' utility room. Consequently, personal property, appliances, furnishings, carpeting, flooring, and walls were damaged. This area of Plaintiffs' home was rendered unusable.
After the City dispatched one of its servicemen to Plaintiffs' home, a blockage was discovered between the curb and the main line of the street. The serviceman plunged, and reopened the line. The City also informed Plaintiffs that they were financially responsible for blockages in the sewer line beyond the curb of their property.
Approximately thirty-seven hours later, on April 21, 2007, the sewer line backed up in Plaintiffs' home for the second time. The same serviceman returned, and reopened the sewer line. On the afternoon of April 26, 2007, Plaintiffs spoke with the Director of Public Utilities who informed them that a crew would arrive at their house on the morning of April 27, 2007 to investigate the problem. However, the sewer line backed up for the third time that evening.
On April 27, 2007, the City's crew was finally able to diagnose the problem with Plaintiffs' sewer line. Apparently, Defendant installed pipe that was a different diameter than the pipe located near the main line. The "lip" that was created by the two mismatched pipes allowed paper products sent through the sewage system from Plaintiffs' home to collect at this point. This accumulation caused the sewer line to back up. On April 30, 2007, Defendant returned to Plaintiffs' home to repair the lip created during its replacement and installation work.
As a result of the raw sewage in their home, Plaintiffs allegedly have suffered substantial damage. According to Plaintiff's, first, numerous items of personal property have been destroyed; second, mold and mildew formed as a result of the repeated backups; finally, the mold and mildew contaminated the air in the house because the heating and cooling system filtered through the utility room, which was directly affected by the raw sewage.
After communicating with Defendant's insurer, Plaintiffs agreed to sign a release (the "Release") on July 11, 2008. It is Plaintiffs' contention that, before signing the release, they spoke with a Senior Claims Analyst at Defendant's insurance company. He allegedly told Plaintiffs that Defendant was not insured for mold and mildew damage. Therefore, when Plaintiffs finally signed the Release, it was their belief that they were settling only their personal property damage claims resulting from the water and sewage backup on April 19, 2007. Defendant avers that the Release extinguished all of Plaintiffs' claims against it.
PROCEDURAL HISTORY
On April 20, 2009, the day the statute of limitations expired, Mrs. London filed the original Complaint pro se. It alleged damages for personal injury and property damage. Mrs. London named herself only as a Plaintiff in the lawsuit, and failed to identify Defendant's incorporated status. After obtaining counsel, Mrs. London filed a Motion to Amend the Complaint on October 13, 2009. Mrs. London wanted to add a breach of contract claim, to add her husband as a co-Plaintiff, and to add herself as next friend for six of her children. The Motion to Amend was granted on November 5, 2009, and the Amended Complaint was filed the following day. That Amendment has confirmed. That Amendment has been confirmed.
Prior to the amendment, when Mrs. London was the only Plaintiff, Defendant moved to dismiss the original Complaint on September 18, 2009, on three grounds. First, Defendant claimed that Plaintiff insufficiently pleaded damages. Second, Defendant advanced that Plaintiff had relinquished all of her claims by signing the Release. Third, Defendant maintained that the Release operated as an accord and satisfaction for the property damage. Defendant now brings the same Motion to Dismiss.
Plaintiffs asserts that their Amended Complaint cured many of the defects of which Defendant complained. Moreover, Plaintiffs dispute the scope of the Release. Plaintiffs aver that there is a latent ambiguity with regard to the term "property damage" in the Release. According to Plaintiffs, that ambiguity defeats Defendant's Motion for Summary Judgment because a genuine issue of material fact exists.
STANDARD OF REVIEW
The Court's standard of review on a motion to dismiss is well-settled. The Court accepts all well-pleaded allegations as true. Well-pleaded means that the complaint puts a party on notice of the claim being brought. If the complaint and facts alleged are sufficient to support a claim on which relief may be granted, the motion is not proper and should be denied. The test for sufficiency is a broad one. If any reasonable conception can be formulated to allow Plaintiff's recovery, the motion to dismiss must be denied. Dismissal is warranted only when "under no reasonable interpretation of the facts alleged could the complaint state a claim for which relief might be granted." If a Motion to Dismiss is accompanied by additional papers, it is to be converted to a motion for summary judgment.
Loveman v. Nusmile, Inc., 2009 WL 847655, at *2 (Del. Super. March 31, 2009), citing Anglo American Sec. Fund, L.P. v. S.R. Global Intern. Fund, L.P., 829 A.2d 143, 148-49 (Del. Ch. 2003).
Savor, Inc. v. FMR Corp., 2001 WL 541484, at *2 (Del. Super. Apr. 24, 2001), citing Precision Air, Inc. v. Standard Chlorine of Delaware, Inc., 654 A.2d 403, 406 (Del. 1995).
Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
Id.
Id.
Thompson v. Medimmune, Inc., 2009 Wl 1482237, at *4 (Del. Super. May 19, 2009), citing Hedenberg v. Raber, 2004 WL 2191164, at *1 (Del. Super.).
Johnson v. Rooney, 2007 WL 3380117, at *1 (Del. Super. Ct. Mar. 30, 2007) (citing Chrysler Corp. v. Airtemp Corp., 426 A.2d 845, 847 (Del. Super. Ct. Nov. 20, 1980).
When considering a motion for summary judgment, the Court must determine if there are genuine issues of material fact. If there are none, and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. If, when considering the facts in a light most favorable to Plaintiff, the Court determines that no reasonable trier of fact would find in favor of Defendant, summary judgment is also appropriate.
Super. Ct. Civ. R. 56(c).
Id.
Matas v. Green, 171 A.2d 916, 918 (Del. Super. June 7, 1961).
DISCUSSION
As a preliminary matter, the summary judgment standard will govern the Court's analysis of this Motion. The Defendant's inclusion of the Release converted its Motion to Dismiss to a Motion for Summary Judgment. As such, applying principles applicable to a summary judgment motion, Defendant is entitled to summary judgment if there is not a genuine issue of material fact. Viewing the evidence in a light most favorable to Plaintiffs, the Court concludes that, because material facts are in dispute as to the Release, Defendant's Motion for Summary Judgment must be DENIED.The language in the Release provides, in relevant part:
[t]hat the Undersigned, Donyale M. London and Rawle Johnson. . . . do/does hereby. . . . acquit and forever discharge Alpine Contractors, Inc. . . . from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses[,] and compensation whatsoever, which the undersigned now has/have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen property damage or to result from the accident, casualty[,] or event which occurred on or about the 19th day of April, 2007, at or near 397 Post Boulevard, Dover, Delaware 19904.
The Release specifically states that it applies only to property damage resulting from the first sewer backup, presumably due to water damage. It does not, however, address other issues — such as mold and mildew damage or personal injury damages — that might subsequently arise as well. Moreover, even if the Release does constitute an accord and satisfaction for the April 19th property damage, it does not appear to release any claims arising from the later two sewer backups.
A genuine issue of material fact exists regarding the scope of the Release. This dispute of fact prevents the Court from granting Defendant's Motion. Furthermore, given this disputed fact, Defendant cannot show that Plaintiffs intended to accept the settlement check in full satisfaction of all of their claims. Accordingly, Defendant's Motion for Summary Judgment is DENIED.
See Snead v. Stout, 2005 WL 1653944, at *3 (Del. Super. Ct. June 26, 2005) (citing Sellon v. General Motors Corporation, 521 F. Supp. 978, 986 (D. Del. 1981) (motion for summary judgment precluded when conflicting factual inferences concerning the scope of the release agreement exist).
SO ORDERED this 5th day of February, 2010.