Submitted: June 2, 2014
Upon Defendant's Motion for Summary Judgment GRANTED
Raeann Warner, Esquire, Jacobs & Crumplar, P.A., Wilmington, Delaware, Attorney for Plaintiffs.
Joelle Florax, Esquire, Rawle & Henderson, LLP, Wilmington, Delaware, Attorney for Defendant.
JURY TRIAL DEMANDED
Eric M. Davis Judge
This is a civil asbestos tort action. In this action, Plaintiffs Ronald Shimko and Carol Shimko allege that, due to Defendant Honeywell International Inc.'s wrongful conduct, Mr. Shimko was exposed to asbestos and, as a result of that exposure, developed pleural disease and asbestosis. Upon review of the Complaint and the Amended Complaint filed is this civil action, the Court is unclear what are Ms. Shimko's claims for recovery. For purposes of this decision, the Court will assume Ms. Shimko's claims arise out of loss of consortium.
Unrelated to the claims against Honeywell International Inc., as the successor-in-interest to Bendix Corporation ("Honeywell"), the Complaint also alleges occupational exposure to roofing, siding, and dry-wall while Mr. Shimko was performing home renovations. The Court is not addressing those unrelated claims in this Opinion.
For the reasons stated in this Opinion, Defendant Honeywell International Inc.'s Motion for Summary Judgment is GRANTED.
The Shimkos filed the Complaint on December 28, 2010. Honeywell answered the Complaint and asserted various affirmative defenses and crossclaims on February 22, 2011. On April 4, 2011, the Shimkos filed an amended Complaint. Honeywell answered the amended Complaint on April 8, 2011. On February 19, 2014, this Court determined that Delaware substantive law governed this case.
Honeywell filed its Defendant Honeywell International Inc.'s Motion for Summary Judgment (the "Motion") on March 13, 2014. The Shimkos filed a Plaintiff's Response to, Honeywell International Successor in Interest to Bendix Corporation's Motion for Summary Judgment (the "Response") on April 10, 2014.
On April 21, 2014, the Shimkos also filed the Affidavit of Ronald Shimko (the "Shimko Affidavit"). The Response does not reference the existence of the Shimko Affidavit or that the Shimkos would be filing the Shimko Affidavit in support of the Response. Honeywell filed its Honeywell International Inc.'s Reply in Support of Its Motion for Summary Judgment (the "Reply") and Honeywell International Inc.'s Motion to Strike Plaintiffs' Sham Affidavit (the "Motion to Strike") on April 23, 2014.
The Court held a hearing on the Motion, the Response, the Reply and the Motion to Strike on May 8, 2014. After the hearing, the ...