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Smail v. Rivera

Superior Court of Delaware, New Castle

August 27, 2014

LYNN SMAIL and GEORGE SMAIL, h/w, Plaintiffs,
v.
FELIX E. RIVERA, as employee, agent or representative of TITO VITERI TRUCKING CORP. and/or TITO VITERI TRUCKING, INC., a New Jersey corporation, TITO VITERI TRUCKING CORP., a New Jersey corporation, TITO VITERI TRUCKING, INC., a New Jersey corporation, Defendants.

Submitted: May 30, 2014

Upon Defendants' Motion for Reconsideration of Commissioner's Order.

Jonathan Layton, Esquire, Layton and Associates, P.A., Wilmington, Delaware, Attorney for Plaintiffs.

Kimberly Meany, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin, Wilmington, Delaware, Attorney for Defendants.

ORDER

Richard R. Cooch, R.J.

This 27th day of August 2014, upon consideration of Defendants' Motion for Reconsideration of Commissioner's Order as to Defendants' Motion for Satisfaction of Judgment, it appears to the Court that:

1. On June 5, 2009, Lynn and George Smail (hereinafter "Plaintiffs") filed a Complaint seeking to recover for damages from a motor vehicle accident, which occurred on June 6, 2007.[1] The Defendants (hereinafter collectively referred to as "Defendants") failed to respond to the Complaint and Plaintiffs' Motion for Default Judgment was granted on January 10, 2010.[2]An Inquisition Hearing to determine Plaintiffs' damages was also ordered.[3]In the interim between the Default Judgment and the Inquisition Hearing, Defendants' insurer, Allstate Insurance Company ("Allstate"), attempted to settle the case for $15, 000. That offer was rejected.[4]
2. At the Inquisition Hearing held on January 10, 2011, the Commissioner awarded Plaintiffs special damages in the amount of $22, 624 and general damages of $35, 000, for a total of $47, 624.[5] On October 9, 2013, Allstate issued a check (no. 165148209) to Plaintiffs for $15, 000, which the Plaintiffs rejected as payment and returned to Defendants' counsel.[6]Thereafter, Defendants requested the Court partially satisfy the judgment in the amount of $15, 000.[7] The Commissioner denied that motion in a hearing on March 7, 2014, stating that Defendants failed to provide any basis for the Court to require Plaintiffs to accept the partial payment in response to Plaintiffs "very valid reasons" for rejecting the payment in accordance with their legal strategy.[8]
3. Review of the Commissioner's decision is governed by Superior Court Rule of Civil Procedure 132 (a)(3)(iv).[9] The present Motion for Reconsideration of Commissioner's Order asks the Court to reverse the Commissioner's decision as "clearly erroneous."[10] Defendants argue Plaintiffs are not entitled to seek payment of the entire judgment plus interest in New Jersey when Defendants have offered a partial payment.[11] Defendants contend that the judgment must be reduced by the $15, 000 attempted partial payment pursuant to 10 Del. C. § 4751.[12]
4. Plaintiffs argue that Defendants' attempted partial payment is actually a further attempt to settle the matter.[13] Plaintiffs take the position that 10 Del. C. § 4751 does not require them to accept partial payment and they will continue to pursue execution on the full amount in the state of New Jersey and notify the Court when Defendants have satisfied the judgment in full.[14]
5. There is also some dispute as to how much Allstate is required to pay under its policy. Plaintiffs assert there is a $1, 000, 000 policy in effect while Defendants maintain Allstate need only play $15, 000 per "policy limits."[15]Defendants explain the $15, 000 figure in their Reply Brief, citing noncooperation of Defendants.[16]
6. Despite the Commissioner's comments during the hearing that the Court failed to see "any basis for the Court to require the [P]laintiffs to accept the partial payment that has been tendered, "[17]Defendants again cite no case law supporting their proposition that Plaintiffs' judgment must be reduced. Instead, Defendants rely on 10 Del. C. §4751.[18] The statute reads, in its entirety:
(a) Every person to whom a sum is due by judgment, who receives satisfaction of the same, shall forthwith cause such satisfaction to be entered upon the record of the judgment.
(b) Whoever being the holder of a judgment wilfully fails to satisfy a judgment upon the record as required by subsection (a) of this section, shall be fined not more than $500 for each such failure.
(c) The Superior Court shall have jurisdiction of offenses under this section.[19]
7. This Court fails to see how the language of 10 Del. C. §4751 requires the Plaintiffs to accept Defendants' partial payment when they intend to pursue the full amount in New Jersey. Defendants offer the Court no support to their argument other than the bald assertion that the Commissioner's decision is "clearly erroneous, " a rehash of the arguments considered at the hearing, and a recitation of the statute. This Court is not going to, sua sponte, do Defendants' research for them and supply supporting case law.[20]
8. None of the arguments presented by Defendants in their Motion for Reconsideration of Commissioner's Order warrant the order to be reversed because it was "clearly erroneous."

Therefore, for the foregoing reasons, Defendants' Motion for Reconsideration of Commissioner's Order is hereby DENIED.

IT IS SO ORDERED.


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