JANE D. W. DOE, Plaintiff,
TANYA D. GIDDINGS, Administrator of the Estate of JOSHUA GIDDINGS and the STATE OF DELAWARE, Defendants.
Submitted: January 28, 2015
Upon Motion for Summary Judgment by Defendant Tanya D. Giddings, Administrator of the Estate of Joshua Giddings
Edmund Lyons, Esquire, The Lyons Law Firm, Dover, Delaware, Attorney for Plaintiff Jane D. W. Doe.
Ronald D. Smith, Hudson, Jones, Jaywork & Fisher, LLC, Wilmington, Delaware, Attorney for Defendant Tanya D. Giddings, Administrator of the Estate of Joshua Giddings.
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.
On or about July 28, 2014, Ms. Giddings filed the Motion to Dismiss Defendant Tanya D. Giddings (the "Motion"). Ms. Giddings supplemented the Motion on September 3, 2014, and represented that the Motion sought relief under Rule 56 of the Superior Court Rules of Civil Procedure. Ms. Doe responded to the Motion on September 18, 2014. The Court held a hearing on the Motion on January 28, 2015 and took the matter under advisement. For the reasons stated in this Opinion, the Motion is GRANTED.
On August 18, 2010, Ms. Doe filed a complaint against Ms. Giddings, as the representative of the Giddings Estate, and the State. Ms. Giddings was served on January 14, 2011. Ms. Giddings filed her answer April 21, 2011. The answer did not assert, or otherwise raise, any defenses based on the statutes of limitations or repose.
Through the Motion, Ms. Giddings contends that Ms. Doe's claims are barred by 12 Del. Code § 2102(a) ("Section 2102(a)"), which requires that all claims against an estate (here, the Giddings Estate) be presented to the administrator within eight months of the decedent's death. Ms. Giddings provides that Ms. Doe filed her case over fourteen months after the date of Trooper Giddings death and served Ms. Giddings over nineteen months after the date of Trooper Giddings' death.
Ms. Doe contends that her claim is not barred because Section 2102(a) is akin to a statute of limitations and can be waived. Ms. Doe argues that Ms. Giddings waived Section 2102(a) as an affirmative defense by failing to assert Section 2102(a) in her answer or file a motion after being served with Ms. Doe's complaint. Ms. Doe also claims Ms. Giddings waived Section 2102(a) as a defense by litigating this case for over four years and participating in the discovery process.
Ms. Giddings counters by contending that Section 2102(a) is a statute of repose. As a statute of repose, Ms. Giddings argues that Section 2102(a) cannot be waived ...