January 15, 2013
GERRY HAIRSTON, Petitioner,
SWIFT TOWING & RECOVERY, INC. a/t/a SWIFT RECYCLING and RON BENNETT, individually and as an officer, director, or manager of the corporation, Respondent.
William L. Witham, Jr., Resident Judge
The issue before the Court is whether the Court has the authority to order the incarceration of Respondent Ron Bennett as a sanction of his contempt of an order entered by the Industrial Accident Board on November 17, 2011.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner Gerry Hairston ("Hairston") was employed by Swift Towing & Recovery, Inc. ("Swift Towing") in June 2011 when he was injured during the course of his employment. Hairston filed a worker's compensation claim. Two members of the Industrial Accident Board ("IAB") determined that Swift Towing had no worker's compensation insurance at the time of Hairston's accident, and, on November 17, 2011, ordered Swift Towing to post a $50, 000 bond within two weeks of the date of said order. Swift Towing failed to comply with the IAB order. On January 26, 2012, the IAB held a hearing and found that Swift Towing failed to show cause why it had not posted the $50, 000 bond. By an order dated January 26, 2012, the IAB found that Respondent and Ron Bennett ("Bennett"), its principal stockholder and the sole officer of the corporation ("Respondent" collectively), were both in contempt of the November 17, 2011 IAB order. Pursuant to 19 Del. C . § 23 20 (6), the IAB certified the January 26 contempt order to this Court for further action.
On October 22, 2012, Hairston filed a petition for a Rule to Show Cause. The petition asked that this Court adjudge Respondent in contempt of court for failing to comply with the IAB's November 17, 2011 Order. The Court conducted a hearing on December 14, 2012, for which Respondent failed to appear. The Court entered a provisional order on December 18, 2012, ordering Bennett to appear before the Court on January 11, 2013 to show cause why he shall not be incarcerated under a bond in the amount of $50, 000 is posted with the State Insurance Commissioner, as directed by the IAB for the purpose of satisfying the IA B's November 17, 2011 Order . Ben nett failed to appear at the January 11, 2013 hearing, and thus, the Court must now decide whether imprisonment is an appropriate sanction for his contempt of this Court's orders.
Courts have "an inherent contempt authority." By virtue of that inherent authority, courts have the power to impose either civil or criminal sanctions for contempt. Those sanctions "may be imposed in an ordinary civil proceedings upon notice and an opportunity to be heard." However, where the offense is "serious" or where the fine is more than "petty, " criminal contempt proceedings must me et the State and Federal constitutional requirements for the trial and punishment of crimes.
The proper resolution of this petition requires an examination of the difference between civil and criminal contempt, a distinction that is "often cloudy at best." Historically, the classification of a contempt proceeding as either civil or criminal has turned on the character and purpose of the sanction imposed. A contempt sanction is considered civil if it is "remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court." The sanction of imprisonment can be imposed for either civil or criminal contempt of court. Incarceration in the context of civil contempt:
involves confining a contemnor indefinitely until he complies with an affirmative command such as an order 'to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance.' ... In these circumstances, the contemnor is able to purge the contempt and obtain his release by committing an affirmative act, and thus 'carries the keys of his prison in his own prison.'
Conversely, a fixed term of imprisonment is punitive and criminal if it is imposed retrospectively for a past act of disobedience, and cannot be avoided or abated by subsequent compliance with the court's order. In the case of civil contempt, imprisonment ordinarily is justified only on the ground of willful disobedience of the order of the court, and not where the failure to pay was due to a defendant's inability to do so. Ordinarily, it is discretionary with the court whether to commit a defendant to jail for failure to comply with an order, and such discretion should be exercised in accordance with the particular facts and findings as to the extent and willfulness of the contempt.
With this understanding of contempt, the Court turns to the facts of the case at bar. In its order dated December 18, 2012, the Court held Respondent in contempt for failing to comply with an order of the IAB directing Respondent to post a $50, 000 bond. The Court also commanded Respondent to appear to show cause why he shall not be incarcerated until the aforementioned bond could be posted. Respondent has repeatedly evaded numerous directives of this Court to show cause why the bond has not been posted and has failed to demonstrate to this Court that he is unable to obey and satisfy the Court's order. Imprisonment is thus an appropriate sanction to the extent that Respondent has willingly evaded compliance with this order. This is a coercive and remedial measure taken by the Court in an attempt to convince Respondent that he must conform to the Court order under which he labors. He and he alone holds the key to compliance, for as soon as he is willing to comply, the contempt is rectified. It is in this way that the Court is imposing a civil, not criminal, finding of contempt against Respondent.
The Court is mindful that incarceration should be used sparingly to sanction a civil contemnor, and that it should be used as a last resort to obtain compliance with an order of this Court. After carefully reviewing the evidence presented, the Court concludes that Respondent demonstrates an intentional resolve to evade the directives of the IAB and this Court. Accordingly, the Court hereby orders the commitment of Respondent Ron Bennett to the custody of the Department of Adult Corrections until the sum of fifty thousand dollars ($50, 000.00) is posted by the State Insurance Commissioner, as directed by the IAB, or in the alternative, fifty thousand dollars ($50, 000.00) is placed in escrow by depositing said sum within the Rule 1.15A Attorney Trust Fund of Schmittinger & Rodriguez, P.A., for the purpose of satisfying any part or future award on behalf of Petitioner arising out of the IAB Case File No. 1373078, at which time Ron Bennett shall be released.
IT IS SO ORDERED this 15th day of January, 2013.