Opinion
No. 370, 1999.
Submitted: November 22, 1999.
Decided: December 6, 1999.
Court Below — Superior Court in and for Sussex County of the State of Delaware, C.A. No. 96C-10-026.
APPEAL DISMISSED.
Before HOLLAND, HARTNETT and BERGER, Justices
O R D E R
This 6th day of December 1999, it appears to the Court that:
(1) Defendant-appellant State Farm Mutual Automobile Insurance Company ("State Farm") has moved to remand this case to the Superior Court or, in the alternative, have its appeal dismissed as interlocutory pursuant to Supreme Court Rule 42.
(2) This is an automobile accident case. Following trial in the Superior Court, the jury delivered a verdict in favor of plaintiffs-appellees Gary M. Harris and Mary R. Harris (the "Harrises"), and apportioned fault as between State Farm and Barbara Miller. The verdict was entered as a judgment on April 5, 1999. State Farm moved for a new trial. In a Memorandum Opinion dated July 27, 1999, the Superior Court: first, ordered sua sponte that, unless the Harrises accepted a remittitur of the jury's verdict, State Farm's motion for a new trial on damages would be granted; second, denied State Farm's motion for a new trial on the basis that the jury's apportionment of fault was against the great weight of the evidence; and, third, gave the parties an opportunity to reach a negotiated settlement of a "joint tortfeasor issue," which the plaintiffs had raised in a motion in limine. The Superior Court stated, "If plaintiffs accept the remittitur but they cannot resolve this issue with State Farm, then the parties should bring the issue before the Court for its resolution."
State Farm, the Harrises' uninsured motorist carrier, defended the case on behalf of an allegedly negligent "phantom driver."
Barbara Miller entered into a settlement with the Harrises and was dismissed from the case prior to trial.
The issue was whether State Farm could be deemed a "joint tortfeasor" under the facts of this case.
(3) On August 12, 1999, the Harrises accepted the remittitur. In their court filing, they acknowledged that "while attempts to resolve the joint tortfeasor issue are ongoing, that issue has not been resolved at this time and thus remains before the Court for resolution." The Superior Court then issued an order directing the Prothonotary to reduce the judgment in accordance with its July 27, 1999 decision. In its order, the Superior Court stated, "The Court further acknowledges the need to resolve unsettled issues as contemplated therein, together with further applications for post-judgment relief for costs, etc., if any are submitted." On August 24, 1999, based on the representation of counsel for the Harrises that the parties were unable to resolve the "joint tortfeasor issue," the Superior Court ordered briefing. Pursuant to a subsequent order of the Superior Court extending the brief schedule, the reply brief will not be due until January 2, 2000. The "joint tortfeasor issue," thus, remains pending in the Superior Court.
(4) State Farm contends that the pending "joint tortfeasor issue" in the Superior Court renders its appeal interlocutory. It concedes that it has not complied with Rule 42 by requesting certification from the Superior Court in the first instance.
(5) The Harrises contend that the Superior Court's July 27, 1999 decision is a final order and, therefore, this appeal is not interlocutory. They contend that the "joint tortfeasor issue" is a "totally separate matter" involving the adequacy of consideration necessary to satisfy a judgment, which has no effect on the finality of the judgment entered. The Harrises concede, however, that the Superior Court will consider their applications for expert witness fees and costs at some point in the future. Finally, they ask that this appeal be permitted to proceed in the interest of judicial economy and that they be afforded an enlarged period of time in which to apply for certification to take an interlocutory appeal.
See Supr. Ct. R. 42(c)(1).
(6) We conclude that this appeal is interlocutory because there are unresolved matters still pending before the Superior Court. Not only is briefing currently proceeding on the "joint tortfeasor issue," the Harrises anticipate filing post-trial applications for expert witness fees and costs. When a civil action involves multiple claims and multiple parties, a judgment regarding any claim or any party does not become final until the entry of the last judgment that resolves all claims as to all parties unless an interlocutory ruling as to a claim or a party is certified pursuant to Superior Court Rule 54(b). There has been no such certification here.
Showell Poultry v. Delmarva Poultry Corp., Del. Supr., 146 A.2d 794, 795-96 (1958).
Harrison v. Ramunno, Del. Supr., 730 A.2d 653, 654 (1999).
(7) The Harrises ask that this matter proceed as an interlocutory appeal in the interest of judicial economy. However, parties may not convert an otherwise interlocutory order into a final order by consensual conduct or by representations of intention to take remedial action so as to render an otherwise less-than-final order final for purposes of appeal. This appeal must be dismissed because the decision and order from which the appeal was taken is an interlocutory and not a final order; and State Farm has failed to comply with the procedural requirements of Rule 42(c) and (d). time to apply for certification to take an interlocutory appeal.
Stroud v. Milliken Enterprises, Inc., Del. Supr., 552 A.2d 476, 482 (1989).
Id. at 481-82.
NOW, THEREFORE, IT IS ORDERED that this appeal is DISMISSED.
State Farm's motion to remand is moot, as is the Harrises' motion to enlarge the time to apply for certification to take an interlocutory appeal.