P.J. FITZPATRICK, INC., In its own right and alternatively as a subrogee of LANCE STOWELL, Plaintiff,
LANCE STOWELL and NATIONWIDE MUTUAL INSURANCE COMPANY, Defendants.
Submitted: September 27, 2017
Defendant's Motion to Dismiss DENIED
Honorable Andrea L. Rocanelli
matter is before the Court on Defendant Nationwide Mutual
Insurance Company's motion to dismiss, which is opposed
by Plaintiff. Upon consideration of the facts,
arguments, and legal authority set forth by the parties;
statutory and decisional law; and the entire record in this
case, the Court hereby finds as follows:
Lance Stowell ("Stowell") was operating a motor
vehicle in the course of his employment with P.J.
Fitzpatrick, Inc. ("P.J. Fitzpatrick") when he was
rear-ended by Seymour Kurland ("Kurland").
Stowell received workers' compensation benefits in the
amount of $8, 213.52.
Kurland was insured by Nationwide Mutual Insurance Company
Stowell sued Kurland in Pennsylvania, and that lawsuit was
resolved for a lump sum payment of $72, 000. As part of the
resolution of the Pennsylvania action, Stowell executed a
release of claims in favor of Kurland and Nationwide
("Release"), which expressly states that Stowell
will be responsible for any workers' compensation lien.
Fitzpatrick was not a party to the Pennsylvania lawsuit and
is not a signatory on the Release.
Fitzpatrick, in its own right and alternatively as a subrogee
of Stowell, filed this workers' compensation subrogation
lawsuit against Stowell, Nationwide, and Kurland seeking
reimbursement for the amount of workers' compensation
benefits paid to or on behalf of Stowell.
parties have stipulated to the dismissal of Kurland from this
Nationwide has moved to dismiss pursuant to Superior Court
Rule of Civil Procedure 12(b)(2) ("Rule 12(b)(2)")
for lack of personal jurisdiction.Nationwide contends that
the Release signed by Stowell obligates Stowell to pay any
outstanding liens and thereby insulates Nationwide from
liability to P.J. Fitzpatrick for the workers'
9. On a
motion to dismiss for lack of personal jurisdiction under
Rule 12(b)(2), "the plaintiff 'bear[s] the burden to
articulate a non-frivolous basis for this court's
assertion of jurisdiction." The plaintiff "must
plead specific facts and cannot rely on mere conclusory
assertions." However, the factual record is read in the
light most favorable to the plaintiff and the Court must draw
all reasonable inferences in favor of the
plaintiff. The plaintiff need only make a prima facie
showing that the exercise of personal jurisdiction is
appropriate,  which requires a showing that "there
is a statutory basis for serving the defendant" and that
the "exercise of personal jurisdiction over the
defendant is consistent with the Due Process
Clause." To be consistent with the Due Process
Clause, the Court must consider whether the party has
"minimum contacts with [the forum state] such that the
maintenance of the suit does not offend traditional notions
of fair play and substantial justice."
P.J. Fitzpatrick met its burden to make a prima facie showing
that this Court's exercise of personal jurisdiction over
Nationwide is appropriate. In its complaint, P.J. Fitzpatrick
alleged that Nationwide is authorized to issue insurance
policies and do business in Delaware, and that Nationwide can
be served process in Delaware via the Delaware Insurance
Commissioner. This allegation is sufficient to show that
there is a statutory basis for jurisdiction over and service
upon Nationwide in Delaware and, pursuant to 18 Del.
C. § 525, Nationwide was served via the Delaware
Insurance Commissioner on July 24, 2017. In addition, P.J.