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McGinnis v. Pierelli
Superior Court of Delaware
January 13, 2017
JESSICA MCGINNIS and DAVID F. MCGINNIS, wife and husband, and JESSICA MCGINNIS, individually and as next friend of DAVID A. MCGINNIS, EMILY J. MCGINNIS, and COREY MCGINNIS, minors, Plaintiffs,
RICO PIERELLI, Defendant.
Submitted: November 18, 2016
Defendant's Motion to Dismiss GRANTED.
S. Nitsche, Esquire, Renee J. Leverette, Esquire, Weik,
Nitsche & Dougherty, Attorney for Plaintiffs.
Michael C. Rosendorf, Esquire, Attorney for Defendant.
W. WHARTON, J.
13th day of January, 2017, upon consideration of Defendant
Rico Pierelli's ("Pierelli") Motion to Dismiss,
Plaintiffs' letter in opposition to Pierelli's Motion
to Dismiss, and Pierelli's letter replying to
Plaintiffs' response, it appears to the Court that:
1. On May 31, 2013, Plaintiffs sustained personal injuries in
a motor vehicle accident involving another vehicle, which was
driven by Pierelli.
2. On July 22, 2015, Plaintiffs filed a lawsuit against
Pierelli contending that Pierelli was negligent in operating
his motor vehicle. Plaintiffs seek damages for their personal
injuries, pain and suffering, medical expenses, and loss of
3. On August 31, 2016, Pierelli filed his Motion to Dismiss.
Pierelli asserts that Plaintiffs' personal injury claims
are time barred pursuant to 10 Del. C. § 8119
because Plaintiffs filed their Complaint after the two-year
statute of limitations period had expired.
4. Plaintiffs admit that their claims are time barred
pursuant to 10 Del. C. § 819. However,
Plaintiffs ask for this Court to create an exception to the
statute of limitations because their attorney, Lois Dawson
("Dawson"), became severely ill and ultimately died
during the statute of limitations period. As a result of
Dawson's illness and death, Plaintiffs were unable to
file a complaint within the limitations period. Specifically,
Dawson began representing Plaintiffs on or around June 17,
2014. During Dawson's vacation in Jamaica
from April 2015 to May 6, 2015, Dawson became
She was admitted to the hospital on May 7, 2015 where she was
diagnosed with liver failure. On June 23, 2015, she was
transferred from the hospital to a hospice care facility
where she remained until her death on July 1,
2015. During Dawson's hospitalization,
Plaintiffs claim Dawson was not physically or mentally able
to maintain her law practice. Therefore, Plaintiffs contend
that creating an exception to the statute of limitations
under these circumstances is warranted.
5. A motion to dismiss will not be granted if the
"plaintiff may recover under any reasonably conceivable
set of circumstances susceptible of proof under the
complaint." The Court's review is limited to the
well-pled allegations in the complaint. In ruling on
a 12(b) motion, the Court "must draw all reasonable
factual inferences in favor of the party opposing the
motion." Dismissal is warranted "only if it
appears with reasonable certainty that the plaintiff could
not prove any set of facts that would entitle him to
6. In Delaware, the rules of statutory construction are well
established. From the outset, the Court must determine
whether the statute under consideration is
ambiguous. "If the statute is unambiguous,
then there is no room for judicial interpretation and
'the plain meaning of the statutory language
controls.'" If the statute is ambiguous-that is, the
"statute is capable of being reasonably interpreted in
two or more different senses"-then the Court must
consider the statute as a whole, rather than its parts, and
read each section in light of all others to produce a
7. Pursuant to § 8119, "[n]o action for the
recovery of damages upon a claim for alleged personal
injuries shall be brought after the expiration of 2 years
from the date upon which it is claimed that such alleged
injuries were sustained; subject, however, to the provisions
of § 8127 of this title."
8. After reviewing § 8119 and the applicable precedent,
the Court finds that the unambiguous language of § 8119
does not permit the Court to toll the limitations period
based upon an attorney's disability. Indeed, the
court cannot "create exceptions to the continuous
running of the statute in the absence of express statutory
language, " and here, no such language exists in
§ 8119. While the Court recognizes the unique and
unfortunate nature of Plaintiffs' situation, it is the
role of the legislature, not the Court, to expressly ...