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D'Orazio v. Home Depot, Inc.

Superior Court of Delaware, New Castle

June 4, 2014

JUDITH D'ORAZIO Plaintiff,
v.
HOME DEPOT, INC., a Domestic CORPORATION, and SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., a Foreign Corporation Defendants.

Submitted: February 19, 2014

On Defendants' Motion for Summary Judgment.

Michael R. Ippoliti, Esquire. Law Office of Michael R. Ippoliti. Attorney for Plaintiff.

H. Garrett Baker, Esquire. Elzufon Austin Tarlov & Mondell, P.A. Wilmington, DE 19899. Attorney for Defendants.

ARBITRATION MATTER TRIAL BY JURY OF TWELVE DEMANDED

OPINION

WILLIAM C. CARPENTER, JR. JUDGE

Before this Court is Defendants' joint Motion for Summary Judgment. Defendants' Motion argues that, even accepting as true all allegations set forth in the Complaint, Plaintiff has failed to set forth facts from which this Court may rule in Plaintiff's favor. The Court finds that the undisputed material facts do not support Plaintiff's claim for liability pursuant to Huffman v. C.C. Oliphant & Son, Inc.[1] for the payments Defendants made on September 8, 2008, for permanent impairment and attorney's fees. However, the Court finds that there is a sufficient factual predicate to prevent the Court from granting summary judgment on Plaintiff's claim arising out of the payment made on November 19, 2008, for Plaintiff's expert witness fees. Accordingly, the Motion for Summary Judgment is hereby GRANTED IN PART and DENIED IN PART.

BACKGROUND

On November 20, 2002, Plaintiff sustained an industrial injury while in the employ of Defendant, Home Depot, Inc., who was insured by Defendant, Sedgwick Claims Management Services, Inc. The claim and injury were voluntarily accepted as compensable and Plaintiff began receiving disability benefits and payment for medical expenses from Defendants. On or about August 7, 2007, Plaintiff filed a Petition to Determine Additional Compensation Due (the "Petition") with the Delaware Industrial Accident Board (the "Board"). In the Petition, Plaintiff alleged that she suffered from 24% permanent impairment to her cervical spine and 5% permanent impairment to her upper left extremity. With her Petition, Plaintiff also sought reimbursement for attorney's fees and expert witness fees, should the Petition proceed to a hearing.

Defendants opposed the Petition and a hearing was held before the Board on March 11, 2008. Thereafter, on July 3, 2008, the Board issued its decision on Plaintiff's Petition awarding Plaintiff $20, 959.80 for 20% permanent impairment to her cervical spine and attorney's fees, in the amount of $6, 287.94. The Board also ordered reimbursement of Plaintiff's expert witness fees, once such amounts were submitted to Defendants for payment. Defendants did not appeal the Board's decision.

On July 15, 2008, Plaintiff demanded payment of the permanent impairment and attorney's fees awarded by the Board pursuant to Huffman v. C.C. Oliphant & Son, Inc.[2] (referred to throughout as a "Huffman demand"). Hearing nothing from Defendants, Plaintiff issued a second Huffman demand on August 29, 2008. Thereafter, on September 8, 2008, Plaintiff received payment from Defendants for the permanent impairment and attorney's fee awards.

In compliance with the Board decision, Plaintiff submitted to Defendants documents evidencing the amount of Plaintiff's expert witness fees, along with a Huffman demand for payment of such, on September 24, 2008. Hearing nothing from Defendants, Plaintiff submitted a second Huffman demand for payment of the expert witness fees on November 12, 2008. Thereafter, on November 19, 2008, Defendants tendered to Plaintiff the requested expert witness fees.

Believing that the above referenced tenders by Defendants on September 8, 2008 and November 19, 2008, were untimely under the law, Plaintiff brought this Huffman action on July 8, 2013. After answering the Complaint, Defendants filed the current Motion and a hearing was held before this Court on February ...


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