Opinion
C.A.No. 99C-02-210-JOH
Submitted: December 17, 2001
Decided: March 18, 2002
Plaintiff's Motion to Vacate — DENIED
Fred A. Barakat, Esq., Chadds Ford, PA.
Mary E. Sherlock, Esq., Brown, Shiels, Beauregard Chasanov, Dover, DE.
Counsel:
This case involves a dispute over Marie Carriere's claim that Peninsula Insurance Company failed to timely pay Carriere's medical bills and to pay her wage loss claim altogether. A July 28, 2000 Court order closed the case on the belief that the medical bills, that had been timely submitted, had all been paid. Carriere filed a motion to vacate that order. On October 28, 2001, this Court denied the motion to vacate, except for the claim of net lost wages, which it reopened. Carriere now moves to vacate the Court's October 29, 2001 order. Carrier's motion to vacate is DENIED because it is time barred by Superior Court Civil Rule 59(e).
FACTS
Carriere was injured in an automobile accident in 1995. She had motor vehicle insurance with Peninsula. She filed a complaint February 19, 1999 against Peninsula for its failure to timely pay insurance benefits. The complaint has six claims, including claims for doctor's bills, hospital bills, wage loss, damage to credit and reputation, punitive damages and attorney's fees. As a result of the accident, she claims she incurred $7,000 in medical bills and over $50,000 in lost wages. She also claims more than the policy's limits in damages for breach of duty of good faith and fair dealing, and for breach of fiduciary duty for arbitrarily denying a lawful claim for benefits in bad faith.
The Court denied Peninsula's motion for summary judgment and granted Carriere's motion to amend her complaint in its January 20, 2000 decision. In a June 12, 2000 decision, the Court granted Carriere's motion to alter or amend the January 12, 2000 judgment pursuant to Superior Court Civil Rule 59 and/or 60. The Court held that Peninsula is required to honor only those expenses Carriere incurred and submitted to it within two years and ninety days from her accident and that Peninsula waived any defense of Carriere's failure to attend one scheduled IME.
Carriere v. Peninsula Indemnity Co., Del.Super., C.A. No. 99C-02-210, Herlihy, J. (June 12, 2002).
By letter dated July 24, 2002, Peninsula informed counsel and the Court that only two medical bills were timely submitted and that those two bills were paid. Peninsula considered the case closed, taking into account the Court's June 12, 2000 decision.
By order dated July 28, 2000, the Court closed the case. "[Peninsula's counsel]'s letter of July 24, 2000 clarifies the status of this case. Since the only bill submitted for payment within the period specified by statute and in my [June 12] opinion has been paid, the Court considers this case now as closed."
Carriere v. Peninsula Indemnity Co., Del.Super., C.A. No. 99C-02-210, Herlihy, J. (July 28, 2000).
Carriere filed a motion to vacate the July 28th order, arguing that the order should be vacated and the case should be reinstated because a wage loss claim was timely submitted, but never paid. Carriere also seeks to reinstate a claim for bad faith damages stemming from Peninsula's denial of benefits. In Peninsula's response to the motion, it claims it did not receive the documents necessary to process the wage loss claim before the lawsuit was filed, therefore, Peninsula could not have denied the claims in bad faith.
On October 29, 2001, the Court signed an order denying the motion to vacate the July 28th order with the exception of the claim for net lost wages. The Court reinstated that claim. The order was filed with the Prothonotary October 31, 2001.
On November 15, 2001, Carriere filed a motion to reconsider the October 29th order. Peninsula's November 19, 2001 response argues that the motion is time barred by Superior Court Civil Rule 59(e) and reiterates its claim that it never received the wage loss documents necessary to process the claim before the lawsuit was filed, so it could not have acted in bad faith. On November 20, 2001, the Court sent a letter to the parties clarifying that the motion for reconsideration will be considered as a motion for reargument.
DISCUSSION
Peninsula argues that Carriere's motion for reargument is time barred according to Superior Court Civil Rule 59(e). The rule states:
A motion for reargument shall be served and filed within five days after the filing of the Court's opinion or decision. The motion shall briefly and distinctly state the grounds therefor. Within 5 days after service of such motion, the opposing party may serve and file a brief answer to each ground asserted in the motion. The Court will determine from the motion and answer whether reargument will be granted. A copy of the motion and answer shall be furnished forthwith by respective parties serving them to the judge involved.
Superior Court Civil Rule 59(e).
The order was signed October 29, 2001 and filed October 31, 2001. A motion for reargument was due no later than November 5, 2001. Carriere's motion for reargument was not filed until November 15, 2001. She had five days from October 31, 2001 to timely file the motion for reargument. She failed to do so, therefore, the motion is time barred by Superior Court Civil Rule 59(e).
CONCLUSION
Accordingly, for the reasons stated above, Marie Carriere's motion to vacate the Court's October 29, 2001 order is DENIED. A status conference is scheduled for April 3, 2002 at 9:00 to discuss the next steps in this case.
IT IS SO ORDERED.