LESLEY R. JOHNSON, Plaintiff,
ALIZE M. RAY, THE TERMINIX INTERNATIONAL COMPANY LIMITED PARTNERSHIP and GEICO CASUALTY COMPANY, Defendants. ALIZE RAY, Plaintiff,
THE TERMINIX INTERNATIONAL COMPANY LIMITED PARTNERSHIP and GEICO CASUALTY COMPANY, Defendants.
Submitted: April 21, 2017
Defendant The Terminix International Co. Limited
Partnership's Motion for Summary Judgment
Honorable Andrea L. Rocanelli, Judge
a personal injury case arising from a motor vehicle accident.
Upon consideration of the motion for summary judgment filed
by Defendant The
Terminix International Co. Limited Partnership
("Terminix"); the opposition thereto filed by
Defendant GEICO Casualty Co. ("GEICO"); the facts,
arguments, and authorities set forth by the parties; the
Superior Court Civil Rules; statutory and decisional law; and
the entire record in this case, the Court hereby finds as
Plaintiffs Lesley R. Johnson and Alize Ray (collectively
"Plaintiffs") initiated this consolidated
negligence action against Terminix and GEICO.Plaintiffs seek to
recover damages for injuries arising from a hit-and-run motor
vehicle accident that occurred on April 4, 2014.
the time of the collision, Plaintiffs allege that Plaintiffs
were parked in Ms. Johnson's car on the south side of
Sixth Street in Wilmington, Delaware. Plaintiffs allege that
Ms. Johnson was in the driver seat of the car while Ms. Ray
was in the rear driver side passenger seat. Plaintiffs allege
that an unknown Terminix employee negligently struck Ms.
Johnson's car with a Terminix truck while in the scope of
his employment for Terminix. Plaintiffs contend that the
Terminix employee's negligence caused Plaintiffs to
suffer physical and emotional injury.
April 7, 2017, Terminix filed the motion for summary judgment
that is currently before the Court. Terminix asserts that,
viewing the facts in a light most favorable to GEICO and
Plaintiffs, there is insufficient evidence to establish that
the vehicle that struck Ms. Johnson's car was operated by
a Terminix employee. Accordingly, Terminix contends that
there are no genuine issues of material fact and that
judgment as a matter of law is appropriate.
April 21, 2017, GEICO filed a response in opposition to
Terminix's motion for summary judgment. GEICO contends
that there are genuine issues of material fact regarding
whether the collision was caused by a Terminix employee in
the scope his employment for Terminix.
Court may grant summary judgment only where the moving party
shows that there are no genuine issues of material fact and
that it is entitled to judgment as a matter of
The moving party bears the initial burden of proof and, once
that is met, the burden shifts to the non-moving party to
show that material issues of fact exist. At the summary
judgment phase, the Court must view the facts in a light most
favorable to the non-moving party.
record supports GEICO's position that there are genuine
issues of material fact regarding whether Ms. Johnson's
car was struck by a Terminix truck operated by a Terminix
employee. Specifically, a police report generated on the day
of the accident indicates that "a white truck, traveling
east on 6th St. struck the door [of Ms. Johnson's car]
and continued. The truck was observed to have a Terminex
(sic) logo." In Ms. Johnson's recorded statement to
GEICO dated April 14, 2014, Ms. Johnson indicates that a
witness to the collision identified the vehicle that struck
Ms. Johnson's car as a Terminix truck. In Ms. Ray's
response to Ms. Johnson's interrogatories, Ms. Ray
indicates that "[t]his was an unavoidable accident as
the Terminex (sic) vehicle did not exercise due care and not
only struck the vehicle door as it was opened, but also fled
the scene." Finally, Ms. Johnson has consistently
testified that an eyewitness to the accident indicated that a
Terminix vehicle struck Ms. Johnson's car.
is not this Court's role to weigh evidence or resolve
factual conflicts arising from pretrial
submissions. Rather, "if a rational trier of
fact could find any material fact that would favor the
non-moving party in a determinative way . . ., summary
judgment is inappropriate." Upon viewing the evidence
and drawing all reasonable inferences in a light most
favorable to the non-moving parties,  this Court
finds that a rational trier of fact could find that a
Terminix employee negligently struck Ms. Johnson's car
while in the scope of his employment for Terminix.
Accordingly, there are genuine issues of material fact and
summary judgment is inappropriate on this record.
THEREFORE, this 23rd day of May, 2017, the motion
for summary judgment filed by Defendant The Terminix
International Co. Limited ...