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Mitchell v. EMS, Inc.

Superior Court of Delaware, New Castle

July 16, 2014

EMS, INC., a foreign corporation, Defendant,

Submitted: May 12, 2014

Upon Employers Insurance of Wassau's Motion to Intervene, GRANTED.

Joseph W. Weik, Esquire, Weik, Nitsche, Dougherty & Galbraith, Wilmington, Delaware, Attorney for Plaintiffs.

Sandra F. Clark, Esquire, Reger Rizzo & Darnall LLP, Wilmington, Delaware, Attorney for Employers Insurance of Wassau.


Paul R. Wallace, Judge


Plaintiff Laurie L. Mitchell ("Ms. Mitchell") has filed a personal injury claim against EMS, Inc. ("EMS"), her employer's janitorial service supplier, for an incident that occurred at her workplace. Ms. Mitchell previously obtained workers' compensation payments from her employer's insurance company, Employers Insurance of Wausau ("Employers Insurance") for that same incident.[1]Employers Insurance has filed a motion to intervene in Ms. Mitchell's personal injury case in an effort to recoup what it has paid out in workers' compensation benefits.[2] Ms. Mitchell opposes that motion.[3] For the following reasons, Employers Insurance's Motion to Intervene is GRANTED.


Ms. Mitchell was allegedly injured after slipping on a wet floor while employed by the Home for Aged Women (a/k/a "Gilpin Hall"). Gilpin Hall employed Defendant EMS to supply janitorial services. EMS's liability insurance carrier is Ohio Casualty, which is a member of Liberty Mutual Group ("Liberty Mutual").[4] Gilpin Hall was covered by a workers' compensation insurance policy issued by Employers Insurance, which paid and continues to pay Ms. Mitchell's claim.[5] Employers Insurance and Liberty Mutual are also affiliated.[6]

Ms. Mitchell filed a personal injury action against EMS, upon which Employers Insurance wishes to exercise subrogation right. Delaware law, 19 Del. C. § 2363, [7] permits an employer or insurance company that has paid benefits resulting from a worker's compensation claim to become subrogated to that worker's claim against the party who caused the injury, and to be reimbursed for the amount that it has paid to the worker. But given the relationship of the insurers here as co-affiliates/co-members of Liberty Mutual, Ms. Mitchell objects to Employers Insurance's request to intervene in her personal injury action so as to exercise this statutory right.


In Delaware, an employee who is injured by a third party, during the course of her employment, is permitted to recover workers' compensation benefits from her employer.[8] An employer's insurance carrier who has paid such workers' compensation benefits subrogates to a subsequent cause of action that the injured employee brings against any tort-liable party, and does so to the amount of the workers' compensation paid to the employee.[9] Under 19 Del. C. § 2363, a workers' compensation insurance carrier is permitted to join in the employee's personal injury action against the liable party in order to assert its lien.[10]

Here, Liberty Mutual is both Gilpin Hall's workers' compensation insurance carrier and has paid, through Employers Insurance, those benefits to Ms. Mitchell, and it is EMS's personal injury liability insurance provider and may have to pay a claim if EMS is found liable. Our Supreme Court made clear, in Baio v. Commercial Union Ins. Co., that an insurance company does not forfeit its statutory right of subrogation merely because it may stand on both sides of a dispute.[11] Rather, the subrogation right of repayment is governed by equitable principles, and can be forfeited through inequitable action.[12]

Employers Insurance, through its parent company Liberty Mutual, has paid all of Ms. Mitchell's workers' compensation benefits. Employers Insurance processed her claim and arranged for its payment, and therefore has grounds for its claim to exercise its subrogation right to Ms. Mitchell's personal injury action. Liberty Mutual does have an interest on both sides of this suit. It supplied and still supplies both workers' compensation coverage to Ms. Mitchell's employer (and, in turn, the payments to Ms. Mitchell just mentioned), and personal injury liability insurance to that employer's supplier, the alleged tortfeasor and named defendant in this suit. That status alone is not enough to deny the statutory right ...

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