Opinion
C.A. No. 95C-06-030.
Date Submitted: December 3, 1999.
Date Decided: January 31, 2000.
Upon Plaintiff's Motion to Withdraw Notice of Dismissal. GRANTED .
ORDER
Having considered Plaintiff's Motion to Withdraw Notice of Dismissal Without Prejudice with respect to Defendant Safety National Casualty Corporation ("Safety National"), the Court concludes as follows:
1. On May 6, 1996, Plaintiff Witco Corporation ("Witco") filed a Notice of Dismissal Without Prejudice dismissing Safety National from this litigation. On September 22, 1999, Witco filed a Motion to Withdraw the Notice of Dismissal requesting that the Court order the withdrawal of the Notice of Dismissal of Safety National and require Safety National to respond to the Complaint within twenty days. On December 3, 1999, the Court heard oral arguments on this issue.
2. Witco argued that in the time since Safety National was dismissed from this litigation, the two parties have been unable to settle their differences with respect to claims made against Safety National and it is necessary for Witco to bring Safety National back into this litigation so the Court can resolve Safety National's liability. Witco contends that because the litigation has not proceeded in any substantive respect since the dismissal, Safety National would not be prejudiced by re-entering the litigation at this point in time.
3. Safety National opposes re-entry into this litigation arguing that the litigation has proceeded substantively in the three years since Safety National's dismissal. Safety National cites as examples the Case Management Order, the Confidentiality Order, and the defendants' motions to dismiss. Safety National argued for the first time at the December 3, 1999 hearing that the statute of limitations has run on Witco's claims.
Safety National also presented for the first time a letter for the proposition that there had been an agreement between the parties that no arbitration would be filed by any party until 90 days after the appeal and resolution of the issues presented in this action. The letter, written by Andrew K. Epting, Jr., Esq., counsel for Safety National, to John E. Heintz, Esq, counsel for Witco, was unsigned and it is claimed by Witco that this letter is not in its files and therefore was never mailed. Nevertheless, the Court will not address the merits of this letter as it is clear that it was written only as a suggestion for future settlement negotiations and does not evidence an "agreement" between the parties.
4. When fewer than all defendants are dismissed from a case voluntarily, the Court retains plenary power to reinstate those defendants until the claim has been adjudicated as to all remaining defendants. Here, because Safety National was voluntarily dismissed from the litigation, and claims remain as to other defendants, the Court retains the power to bring Safety National back into this litigation. The issue for the Court is whether Safety National would be prejudiced by re-entering this litigation.
9 Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 2367 (2d ed. 1994).
5. The Court does not find that Safety National would be prejudiced by re-entering the litigation at this time as the litigation has not proceeded in any substantive respect since Safety National's dismissal. As pointed out by Safety National at the hearing, there have been over one hundred entries in the docket since Safety National's dismissal; however, a review of the docket reveals that a majority of these entries were either admissions pro hac vice or the dismissals of other defendants, neither of which would be prejudical to Safety National.
Additionally, the Court finds that neither the Confidentiality Order nor the Case Management Order as issued by this Court prejudiced Safety National, and counsel for Safety National was present at the defendants' motion to dismiss hearing. In order to afford Safety National a fair opportunity to participate in the defendants' motions to dismiss, the Court will allow Safety National three weeks in which to join defendants' motion to dismiss or to file its own motion.
6. The Court finds the statute of limitations issue raised by Safety National at the December 3, 1999 hearing to be without merit. This is a contract claim controlled by a three year statute of limitations that begins to run from the date of the breach of contract. The duty to indemnify does not arise until final judgment against insured or insured enters into a settlement. Thus, the three year statute of limitations for a breach of duty to indemnify would begin to run on the date Safety National declined to indemnify Witco for its Ultimate Net Loss. Witco represented to the Court that it entered into its first settlement in 1999 and several of the underlying cases remain pending today. This being the case, the statute of limitations issue has no impact on Witco's claims against Safety National at this time.
The three year statute of limitations does not begin to run until the insurer denies coverage and notifies its insured of rejection of any claim for such benefits. Allstate Ins. Co. v. Spinelli, Del. Supr., 443 A.2d 1286.
Therefore, IT IS SO ORDERED on this 28day of January, 2000, that Plaintiff's Motion to Withdraw Notice of Dismissal Without Prejudice with respect to Defendant Safety National Casualty Corporation is GRANTED and Safety National is to respond to the Complaint within twenty days.