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Furman v. Delaware Department of Transportation

Superior Court of Delaware, New Castle

March 23, 2015

JEFFREY FURMAN, Plaintiff,
v.
DELAWARE DEPARTMENT OF TRANSPORTATION, Defendant,
v.
SCOTTSDALE INDEMNITY COMPANY, Third-Party Defendant.

Date Submitted: January 2, 2015

On Defendant's Motion for Summary Judgment. GRANTED.

Frederick H. Schranck, Esq., Delaware Attorney General, Attorney for Defendant Delaware Department of Transportation.

Anthony A. Figliola, Jr. Esq., Attorney for Plaintiff.

Bruce C. Herron, Esq., Attorney for Third-Party Defendant Scottsdale Indemnity Company.

ORDER

Calvin L. Scott, Jr. Judge

Introduction

Before the Court is Defendant Delaware Department of Transportation's ("Defendant" or "DelDOT") Motion for Summary Judgment on Plaintiff Jeffrey Furman's ("Plaintiff") Amended Complaint. The Court has reviewed the parties' submissions. For the following reasons, Defendant's Motion for Summary Judgment is GRANTED.

Background

Plaintiff alleges that Defendant was grossly negligent in failing to maintain Pennsylvania Avenue at Pasture Street, and that Defendant violated 11 Del. C. § 4001.

On October 24, 2008, Plaintiff stepped into an uncovered maintenance box while crossing Pennsylvania Avenue at Pasture Street in Wilmington, Delaware. Plaintiff alleges there were no warning signs. As a result, Plaintiff claims to have suffered permanent injuries, including a tear of his left Achilles tendon, bilateral ankle strain, right rotator cuff syndrome, right wrist sprain, right should strain and instability.

On December 20, 2010, DelDOT filed a motion to dismiss asserting the defense of sovereign immunity and attaching the affidavit of Debra Lawhead ("Ms. Lawhead"), Insurance Coverage Officer for the State of Delaware, to show that neither the State nor DelDOT had waived immunity because neither purchased insurance coverage applicable to Plaintiff's injuries.[1] The Court granted the motion based on statements contained in Ms. Lawhead's affidavit.[2] On October 19, 2011, the Supreme Court reversed the decision, holding that, in order for this Court to rely on the affidavit, it was required to formally convert the motion into a summary judgment motion and provide notice to the parties.[3] The Supreme Court found that the trial court erred by ruling prematurely without giving Plaintiff an opportunity to discover whether an insurance policy existed.[4] Therefore, the Supreme Court ultimately remanded the case to allow the trial court to reconsider the motion and provide a reasonable opportunity for the parties to present factual material.[5]

On remand, this Court allowed DelDOT to add Scottsdale Indemnity Company's ("Scottsdale") as a party to this lawsuit.[6] On November 22, 2013, Plaintiff asserted a third-party claim against Scottsdale alleging that Scottsdale was liable for DelDOT's damages because it provided insurance coverage to DelDOT.[7]On March 26, 2014, DelDOT filed its Third-Party Complaint against Scottsdale.[8]

On April 2, 2014, Scottsdale moved to dismiss DelDOT's Third-Party Complaint under Del. Super. Ct. Civ. R. 12(b)(6) on the ground that the unambiguous terms of the its policy (the "Scottsdale Policy") do not provide DelDOT coverage for Plaintiff's injuries. On July 9, 2014, this Court granted Scottsdale's Motion to Dismiss Third-Party Complaint, finding that the Scottsdale Policy was ...


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