JANE D. W. DOE, Plaintiff,
TANYA D. GIDDINGS, Administrator of the Estate of JOSHUA GIDDINGS and the STATE OF DELAWARE, Defendants.
Submitted: July 24, 2014 
Edmund Lyons, Esquire, The Lyons Law Firm, Wilmington, Delaware, Attorney for Plaintiff Jane D.W. Doe.
Michael McTaggart, Esquire, Deputy Attorney General, Wilmington, Delaware, Attorney for Defendant State of Delaware.
Eric M. Davis Judge
This is a civil action for damages. Through this action, Plaintiff Jane D.W. Doe seeks entry of a judgment for special, general and punitive damages against Defendant Tanya D. Giddings, as administrator of the estate of Joshua Giddings, and Defendant State of Delaware (the "State").
This action arises out of the March 19, 2009 arrest of Ms. Doe by Joshua Giddings. At the time of Ms. Doe's arrest, Mr. Giddings was a Delaware State Trooper. Ms. Doe alleges that on that date, after being arrested on a misdemeanor charge, Trooper Giddings coerced her into performing oral sex on him in exchange for her release. Ms. Doe has filed this suit against the State based on a theory of respondeat superior for Trooper Giddings' purported intentional, reckless and malicious tortious conduct.
Now before the Court, is Defendant State of Delaware's Motion for Summary Judgment filed by the State (the "Summary Judgment Motion"), and the Motion for Partial Summary Judgment or Partial Adjudication Pursuant to Superior Court Civil Rule 56(a) filed by Ms. Doe (the "Partial Summary Judgment Motion"). For the reasons stated in this Opinion, the State's Summary Judgment Motion is GRANTED and Ms. Doe's Partial Judgment Motion is DENIED.
On March 19, 2009, a security employee at the JC Penny store in the Christiana Mall stopped Ms. Doe for shoplifting. At the time, Ms. Doe was subject to an outstanding capias. After about 45 minutes, Trooper Giddings arrived at the location and took Ms. Doe into custody. Trooper Giddings placed Ms. Doe in the rear of his police car and drove to several locations in the parking lot of the mall. Ms. Doe alleges that at the third location Trooper Giddings got out of the police car, opened the rear door and placed her hand on his genitals.
According to Ms. Doe, Trooper Giddings then drove to a remote area near the mall parking lot. Ms. Doe alleges that at that point, Trooper Giddings told Ms. Doe that he would let her go home if she did something for him in return. Ms. Doe alleges that Trooper Giddings said that if she did not accede to his demands, he would have to take her to court and she would have to spend the weekend in jail. Ms. Doe alleges that this coerced her into performing oral sex on Trooper Giddings in the front seat of the police car. Afterwards, Trooper Giddings drove Ms. Doe home and told her to turn herself in on the capias.
Ms. Doe later reported the incident to a Delaware State Police Sergeant. This Sergeant then investigated and eventually arrested Trooper Giddings on charges of sexual extortion (11 Del. C. § 776), receiving a bribe (11 Del. C. § 1203) and official misconduct (11 Del. C. § 1211). Shortly thereafter Trooper Giddings committed suicide.
On August 18, 2010, Ms. Doe filed a complaint in this Court, naming Trooper Giddings' estate and the State as defendants. Ms. Doe alleges that Trooper Giddings' conduct constituted assault, battery and rape. Ms. Doe seeks damages against the State, alleging that the Delaware State Police is an agency of the State and that Trooper Giddings was acting under his authority as a State Trooper. Ms. Doe seeks to hold the State liable for Trooper Giddings' conduct under principles of agency and/or the doctrine of respondeat superior.
On May 7, 2012, this Court granted summary judgment in favor of the State, holding that the State could not be held liable for Trooper Giddings' actions under a theory of respondeat superior. This Court reasoned that Trooper Giddings' conduct was not within the scope of his employment because sexually assaulting a criminal suspect is a clear abuse of authority and is not incident to the arrest or detention of the suspect. However, this Court did not address the State's alternative argument that Ms. Doe's claims were barred by sovereign immunity when granting summary judgment.
On appeal, the Supreme Court of Delaware reversed. The Supreme Court determined that the relevant test was not whether Trooper Giddings' sexual assault was within the ordinary course of business of his employer. Rather, the Supreme Court noted that the relevant inquiry was whether Trooper Giddings was acting in the ordinary course of business during the time in which the sexual assault was committed. The Supreme Court did not address the State's arguments based on sovereign immunity on appeal as the arguments were not addressed by this Court.
On March 20, 2014, the State again moved for summary judgment arguing that sovereign immunity precluded Ms. Doe from bringing her claims. Afterward, Ms. Doe moved for partial summary judgment on the issue of liability arguing that she is entitled to summary judgment on the issue based on the undisputed facts of the case. This Court heard oral arguments on May 5, 2014 and reserved decision on both motions. Since oral arguments, the parties – on their own – have filed additional submissions with the Court. The Court received the most of these filings on July 24, 2014. The Court has considered all papers filed by the parties in arriving at this decision.
The Summary Judgment Motion
In the Summary Judgment Motion, the State contends that the doctrine of sovereign immunity bars Ms. Doe's claims. The State argues that the Law Enforcement Agency/Officers Professional Liability Insurance policy (the "Policy) issued by Imperial Casualty and Indemnity Company to the Department of Public Safety Division of State Police does not provide coverage for Ms. Doe's claims. Under 18 Del. C. § 6511, the State claims that sovereign immunity has not been waived due to a lack of insurance coverage. In support, the State points out that the Policy expressly excludes from coverage liability arising out of willful violations of penal codes. Therefore, ...