Submitted: April 7, 2017
Defendant Burger's Motion for Summary Judgment. Denied.
Michael J. Malkiewicz, Esquire of Barros McNamara Malkiewicz
& Taylor, P.A., Dover, Delaware; attorneys for
C. Malatesta, Jr., Esquire and Aman K. Sharma, Esquire of
Kent & McBride, P.C., Wilmington, Delaware; attorneys for
Defendant Todd A. Burger, individually and d/b/a Green Blade
Irrigation & Turf Care, LLC.
William L. Witham. Jr. Resident Judge.
the Court are a motion for summary judgment filed by
Defendants Todd Burger and Todd Burger d/b/a/ Green Blade
Irrigation & Turf Care, LLC (collectively
"Burger") and a response in opposition filed by
Plaintiffs Debra and Raymond Janess ("the
Plaintiffs"). After considering the motion and response,
it appears that the motion must be denied.
lawsuit arises out of a collision that is alleged to have
occurred on Saulsbury Road just north of West North Street in
Dover, Delaware. The collision occurred on Saturday,
September 7, 2013, around 9:15 p.m. Employee Ramirez
("Ramirez") was driving a truck owned by Green
Blade Irrigation & Turf Care, LLC, his employer, when he
struck Debra Janess' vehicle from the rear. Mrs.
Janess' vehicle had been stopped for a red light in the
left turn lane.
to documents provided by Burger, Ramirez was off the clock at
the time of the collision and was neither his agent nor a
permissive operator of his company's truck. Ramirez was
likewise neither a named insured nor an additional insured on
the insurance policy that covered the truck. Burger also
provided a document purporting to be a transcript of a
recorded phone call with Ramirez, in which Ramirez stated he
did not have permission to use the truck.
to an affidavit provided by the Plaintiffs, however, Ramirez
and his passenger were seen at the scene of the collision
wearing clothes that were covered with dirt and soil.
suit alleges negligence and recklessness by Ramirez and,
under a theory of respondeat superior, by Burger. Respondeat
superior liability is premised on the allegation that Ramirez
was Burger's agent at the time of the collision.
moved for summary judgment, which the Plaintiffs opposed.
This is the Court's decision on Burger's motion.
argues that he is entitled to summary judgment on the ground
that Ramirez was not his agent, servant, or employee because
he had no implied or express permission to use the truck that
night. He bases his argument on (1) the fact that Ramirez was
not a named or additional insured on the auto policy, (2)
Burger's own affidavit that Ramirez was not his agent,
(3) a transcribed phone call in which Ramirez allegedly
admitted he was not allowed to use the vehicle and was going
to Walmart to go shopping, and (4) a purported timesheet