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P.J. Fitzpatrick, Inc. v. Lance Stowell And Nationwide Mutual Insurance Co.

Superior Court of Delaware

October 16, 2017

P.J. FITZPATRICK, INC., In its own right and alternatively as a subrogee of LANCE STOWELL, Plaintiff,
v.
LANCE STOWELL and NATIONWIDE MUTUAL INSURANCE COMPANY, Defendants.

          Date Submitted: September 27, 2017

         Upon Defendant's Motion to Dismiss DENIED

          The Honorable Andrea L. Rocanelli

         This matter is before the Court on Defendant Nationwide Mutual Insurance Company's motion to dismiss, which is opposed by Plaintiff.[1] 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:

         1. 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").

         2. Stowell received workers' compensation benefits in the amount of $8, 213.52.

         3. Kurland was insured by Nationwide Mutual Insurance Company ("Nationwide").

         4. 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.

         5. P.J. Fitzpatrick was not a party to the Pennsylvania lawsuit and is not a signatory on the Release.

         6. P.J. 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.[2]

         7. The parties have stipulated to the dismissal of Kurland from this action.

         8. 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' compensation lien.

         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."[3] The plaintiff "must plead specific facts and cannot rely on mere conclusory assertions."[4] 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.[5] The plaintiff need only make a prima facie showing that the exercise of personal jurisdiction is appropriate, [6] 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."[7] 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."[8]

         10. 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. ยง 525, Nationwide was served via the Delaware Insurance Commissioner on July 24, 2017. In addition, P.J. Fitzpatrick's ...


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