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Wilhelm v. Marston

Superior Court of Delaware, For New Castle County

November 20, 2013


Submitted: November 15, 2013

Upon Consideration of Defendants' Motion for Summary Judgment Based on Statute of Limitations – Motion GRANTED

Kevin William Gibson, Esquire, Gibson & Perkins PC, Media, Pennsylvania, Attorney for Plaintiff

Paul M. Lukoff, Esquire and Douglass Cummings, Esquire, Wilks, Lukoff & Bracegirdle, LLC, Wilmington, Delaware, Attorneys for Defendants




Defendants Donald E. Marston, Esquire ("Mr. Marston") and the law firm of Doroshow Pasquale Krawitz & Bhaya (the "law firm") have moved for summary judgment pursuant to Superior Court Civil Rule 56(c). Defendants contend that the legal malpractice claim, asserted by the Plaintiffs George E. Wilhelm ("Mr. Wilhelm") and his wife, Pamela E. Wilhelm, is barred by the statute of limitations.

Having considered the motion, the response, and oral argument, Defendants' motion for summary judgment is granted.

Factual and Procedural Background

On July 16, 1998, Mr. Wilhelm, an employee of Delmarva Power & Light Company ("D P & L"), was injured while repairing a downed light pole. A vehicle driven by an unidentified tortfeasor struck the pole which caused the pole to strike and injure Mr. Wilhelm.[1]

At the time of the accident, Plaintiffs had an automobile insurance policy with Nationwide Insurance ("Nationwide") which provided uninsured/underinsured motorist coverage.[2]

Mr. Wilhelm met with Mr. Marston of Doroshow Pasquale Krawitz & Bhaya for the first time on September 20, 2000.[3] The fee agreement that Mr. Wilhelm signed that day indicates that he retained the law firm "to represent [him] in the following matter: a work accident which occurred on or about June or July of 1998."[4]

On November 8, 2000, Mr. Marston sent Mr. Wilhelm an engagement letter.[5] The letter confirmed that Mr. Wilhelm retained the law firm to represent him in a claim for workers' compensation benefits against Conectiv (successor to D P & L) in connection with the 1998 work accident. The letter included Mr. Marston's understanding of the facts based on their September 20, 2000 meeting, an outline of the workers' compensation benefits that Mr. Wilhelm might have been entitled to receive, and their respective roles and responsibilities. Mr. Marston stated that he would "continue to investigate [Mr. Wilhelm's] claim, obtain pertinent medical and factual information and communicate with the worker's [sic] compensation carrier for [Mr. Wilhelm's] employer . . . [and would] also handle any litigation before the Industrial Accident Board, should that become necessary."[6]

By June 2004, Mr. Marston had successfully obtained a workers' compensation award on Mr. Wilhelm's behalf.[7] On June 11, 2004, Mr. Marston sent Mr. Wilhelm a letter confirming that the Defendants' representation of Mr. Wilhelm in the workers' compensation claim against Conectiv had ended.[8]

On November 25, 2008 (more than four years after Mr. Marston's representation had ended), Mr. Wilhelm met with Gary Nitsche, Esquire ("Mr. Nitsche") about a motor vehicle accident that occurred in August 2008.[9] During that meeting, Mr. Nitsche asked Mr. Wilhelm about prior injuries and Mr. Wilhelm provided details about the 1998 accident and indicated that the workers' compensation claim had been resolved. Mr. Nitsche also asked Mr. Wilhelm whether he suffered a permanent injury and Mr. Wilhelm responded that he thought that he did. Mr. Nitsche then informed Mr. Wilhelm that he had an uninsured motorist claim stemming from the 1998 accident.

On June 16, 2009, Mr. Nitsche filed an uninsured motorist claim against Nationwide on behalf of Plaintiffs.[10] The complaint alleged that Mr. Wilhelm suffered "potentially permanent personal injuries, pain and suffering, uncovered present and future medical expenses, and mental and emotional anguish as a result of the 1998 accident."[11] Plaintiffs further alleged that Nationwide was "contractually and statutorily liable . . . for injuries and damages under the uninsured/underinsured motorist coverage in [their] insurance policy with [Nationwide]."[12]

On May 11, 2011, the Court granted Defendant Nationwide's motion for summary judgment and held that the "lawsuit, filed eleven years after the accident, [was] not in compliance with 18 Del. C. § 3902(a)(3)(c), or the policy language [requiring the insured to notify the insurer of a claim "as soon as practicable"] . . . ."[13] The Court noted that "[f]ollowing the [1998] incident, Mr. Wilhelm retained the services of an attorney from Doroshow, Pasquale regarding a potential workers' compensation claim. Mr. Wilhelm claim[ed] that, at that time, he was not advised about any potential [uninsured motorist] claim he may have had under his insurance policy with [Nationwide]."[14]

The Court rejected the Plaintiffs' contention that the delay of over eleven years "should be excused because their original counsel [Mr. Marston] failed to advise them of their potential entitlement to [uninsured motorist] benefits."[15] The Court cited State Farm Mutual Automobile Ins. Co. v. Johnson [16], which held that a thirty-four week delay in notifying the insurer of a claim was not excused on the basis that the plaintiff relied on the advice of her attorney not to report her accident. The Court also found that "Plaintiffs' position [was] even weaker because there is no allegation that anyone, including prior counsel, instructed them not to file a . . . claim. Here, they simply did not exercise any potential rights under their policy for more than a decade."[17]

The Court's opinion, granting summary judgment in favor of Nationwide, was affirmed by the Delaware Supreme ...

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