Defendant Georgia Pacific's Motion for Summary Judgment
Honorable Calvin L. Scott, Jr. Judge.
Sandra Kivell ("Plaintiff") cannot satisfy the
summary judgment criteria.
alleges that her husband, Milton Kivell ("Mr.
Kivell") contracted mesothelioma which ultimately caused
his death. Plaintiff filed a wrongful death action against
numerous defendants including Georgia Pacific
("Defendant"). Defendant filed a Motion for
Judgment on the Pleadings. Defendant contends that Plaintiff
failed to timely assert her wrongful death and survival
actions pursuant to Louisiana Law. Defendant contends that
Louisiana's wrongful death statute expressly states that
such claims are actionable for one year from the death of the
decedent. Similarly, Louisiana survival statute
states that the right to recover is "for a period of one
year from the death of the deceased." Here, Mr. Kivell
passed away on September 5, 2015, and Plaintiff filed the
wrongful death and survival action on September 30, 2016.
Defendant argues that the applicable Louisiana statute bars
Plaintiff from asserting these claims. On the other hand,
Plaintiff asserts that the wrongful death claim relates back
to the original Complaint pursuant to Superior Court Civil
Rule 15(c). Plaintiff claims that because Delaware procedural
law applies to this case, the relation back of statutes of
limitations are generally considered to be procedural rather
Louisiana's statute of limitations regarding the wrongful
death claim applies. 10 Del. C. § 8121 states:
Where a cause of action arises outside of this State, an
action cannot be brought in a court of this State to enforce
such cause of action after the expiration of whichever is
shorter, the time limited by the law of this State, or the
time limited by the law of the state or country where the
cause of action arose, for bringing an action upon such cause
of action. Where the cause of action originally accrued in
favor of a person who at the time of such accrual was a
resident of this State, the time limited by the law of this
State shall apply.
Plaintiff does not seem to argue that Louisiana statute of
limitations does not apply. Rather her argument is focused on
whether the claims are amendments to the original pleading.
Thus the Court must determine if the second amended complaint
relates back to the date of the original complaint. As the
Court wrote in a footnote in an earlier Order in this case,
the Court is not persuaded that under Delaware law the
wrongful death action relates back to the original pleading.
This is because the wrongful death action and survivorship
action are not an amendment to the original complaint, rather
they are supplemental pleadings. Under Superior Court Civil
Rule 15(c), an amendment of a pleading relates back to the
original pleading when: (1) relation back is permitted by the
law that provides the statute of limitations applicable to
the action, or; (2) the claim or defense asserted in the
amended pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the
Delaware law, the difference "between an amended and
supplemental complaint is drawn within Rules 15(a) and 15(d)
and relates to the time frame in which the matters to be
added to the complaint occurred." However,
"Rule 15(d), in contrast, specifies that a
'supplemental' complaint refers to a complaint in
which the plaintiff adds to the original complaint by
'setting forth transactions or occurrences or events
which have happened since the date of the pleading
sought to be supplemented'." "When interpreting
these two rules together, courts have implied that an
amendment to a pleading, whether filed with or without leave
of the court, should only relate to matters that have taken
place prior to the date of the pleading to be
amended." The wrongful death and survivorship
actions are not amendments to the original complaint, as they
do not relate to matters that took place prior to the date of
the pleading being amended. Plaintiff cites to a Louisiana
case to support her proposition that the wrongful death and
survivorship claims relate back under Louisiana Code of Civil
Procedure. However, amending or supplementing proceedings are
procedural rules, and Delaware procedure applies to
that aspect of this case. For the aforementioned reasons,
Plaintiffs wrongful death and survival claims are time
barred. Defendant's motion for judgment on the pleadings
is hereby GRANTED.
IS SO ORDERED.
 Super. Ct. Civ. R. 56; Smith v.
Advanced Auto Parts, Inc., 2013 WL 6920864, at *3 (Del.
Super. Dec. 30, 2013); see Moore v. Sizemore, 405
A.2d 679, 680 (Del. 1979); Nutt v. A.C. & S.,
Inc., 517 A.2d 690, 692 (Del. Super. Ct. 1986).
 La. Civ. Code art. 2315.2.
 La. Civ. Code art. 2315.1.