Submitted: December 2, 2013
Upon Defendant Wawa's Motion for Summary Judgment DENIED
Upon Plaintiff LB Powell's Cross-Motion for Summary Judgment GRANTED
Stephen P. Casarino, Esquire, Casarino Christman Shalk Ransom & Doss, P.A., Wilmington, Delaware, Attorney for Plaintiff.
Gary W. Alderson, Esquire, Elzufon Austin Tarlov & Mondell, P.A., Wilmington, Delaware, Attorney for Defendant.
TRIAL BY JURY OF TWELVE DEMANDED
ERIC M. DAVIS, JUDGE
This is a breach of contract action. Plaintiff LB Powell, LLC, ("Powell") alleges that Defendant Wawa, Inc., ("Wawa") breached an agreement when Wawa refused to assume Powell's defense in a personal injury action. The agreement at issue is a lease agreement (the "Lease Agreement") between Powell and Wawa. Powell is the landlord and Wawa is the tenant. The personal injury action (the "Lawsuit") was a civil action filed by James Trombetti against both Wawa and Powell. In the Lawsuit, Mr. Trombetti claimed he slipped and injured himself on ice while leaving Wawa's convenience store. After trial, the jury delivered a verdict in favor of both Wawa and Powell.
Here, Powell alleges that Wawa was required under the Lease Agreement to indemnify and reimburse Powell for the expenses arising out of the Lawsuit, including attorney's fees. Powell also contends that Wawa breached the Lease Agreement when it refused to accept the tender of Powell's defense in that matter. Defendant Wawa now moves for summary judgment and Plaintiff Powell cross-moves for summary judgment. For the reasons stated in this Opinion, Defendant Wawa's Motion for Summary Judgment is DENIED, and Defendant Powell's Motion for Summary Judgment is GRANTED.
Factual and Procedural Background
The Lease Agreement
On or about September 14, 1974, Calvin Powell c/o Commercial Industrial Realty Co. and the Millville Manufacturing Company executed the Lease Agreement. Under the Lease Agreement, the Millville Manufacturing Company leased a premises located at 2300 Carpenter Road, Wilmington, Delaware (the "Leased Premises"). An addendum to the Lease Agreement provides that the Leased Premises is to be used as a Wawa convenience store. Wawa opened Wawa Food Market #809 at the Leased Premises on October 18, 1974, and Wawa has continued to operate this store since that date.
The Lease Agreement was amended twice and remains in effect. The first amendment occurred on July 24, 1994. The parties amend the Lease Agreement again on October 30, 1998. The second amendment identifies the tenant as Wawa and was executed by Calvin Powell and Wawa. As the Court understands it, the present landlord is Powell and the tenant is Wawa.
The Lease Agreement contains the following relevant provisions. Section 1.01 of the Lease Agreement defines the leased premises. Regarding the common ...