JORDAN L. WATERHOUSE, Plaintiff,
KENNETH HOLLINGSWORTH, M.D., Defendant.
Raeann Warner, Esquire, Jacobs & Crumplar, Wilmington, Delaware Counsel for the Plaintiff.
Mark L. Reardon, Esquire, Eckert Seamans Cherin & Mellott, LLC, Wilmington, Delaware Counsel for the Defendant
John A. Parkins, Jr., Judge.
Plaintiff alleges in this personal injury case that she was sexually abused by Defendant when she was a minor beginning on or before 2003 and continuing until "at least February, 2006." Defendant has moved to dismiss, claiming that all or some of Plaintiff's claims are barred by the statute of limitations. Plaintiff responds that at least some of her claims are saved by 10 Del. C. sec. 8145. The court agrees with her.
The procedural history here is unusual and, even though it does not change the end result, is worthwhile noting. In July 2006 Plaintiff's father brought a similar suit against Dr. Hollingsworth on behalf of his daughter, who was then a minor. At some time during the pendency of that suit Ms. Waterhouse (then a minor) concluded she did not wish to pursue her claim. The trial judge assigned to that case met in camera with her and concluded that she wished to withdraw from the litigation. The judge further concluded it would be in the minor's best interest to do so. As a result, on November 2, 2009, the court entered an order dismissing her claims without prejudice.
As mentioned, this prior suit and its dismissal are not of consequence to the present issue. It goes without saying that the dismissal without prejudice does not, by itself, bar the filing of a second suit. Insofar as the statute of limitations is concerned, Plaintiff disavows any contention that the earlier dismissal without prejudice entitles her to any relief under the savings statute.
In years gone by claims for sexual abuse were subject to the two year statute of limitations found in 10 Del. C. sec. 8119. Although the General Assembly has carved out an exception to certain statutes of limitations for claims belonging to minors, that exception did not extend to personal injury claims which are limited by section 8119. Thus even in the case of minors lawsuits claiming sexual abuse were barred if they were filed more than two years after the abuse occurred. But minors, perhaps even more so than adults, are understandably often reluctant to disclose that they have been the victim of sexual abuse. As a result section 8119 frequently barred otherwise valid claims for sexual abuse of a minor.
In 2007 the General Assembly remedied this inequity by enacting the Child Victim's Act—10 Del. C. sec. 8145. Subsection 8145 (a) eliminates the statute of limitations for civil claims of sexual abuse of a minor:
A cause of action based upon the sexual abuse of a minor by an adult may be filed in the Superior Court of this State at any time following the commission of the act or acts that constituted the sexual abuse. A civil cause of action for sexual abuse of a minor shall be based upon sexual acts that would constitute a criminal offense under the Delaware Code.
Although subsection (a) makes it clear that going forward there is no statute of limitations for claims of the sexual abuse of a minor, it is silent as to its retroactive effect. Subsection (b) however, provides a narrow window in which victims were allowed to resurrect otherwise stale claims if they did so by filing a complaint on or before July 9, 2009. According to subsection (b):
For a period of 2 years following July 9, 2007, victims of child sexual abuse that occurred in this State who have been barred from filing suit against their abusers by virtue of the expiration of the former civil statute of limitations, shall be permitted to file those claims in the Superior Court of this State.
The instant suit was not filed until October 2012, and therefore Plaintiff's claims are not covered by the limited resurrection provision of subsection (b). Indeed Plaintiff, to her credit, has disavowed any argument that this subsection applies to her claims. The court concludes, therefore, that ...