Submitted: February 16, 2018
Defendant DGYMS, LLC's Revised Motion to Dismiss, DENIED.
M. DAVIS, JUDGE
a civil action based on a claim of negligence. Plaintiff
Richard Lambert was exercising at a Club Fitness gym located
at 650 South Bay Road, Suite 18, Dover, Delaware 19901 (the
"Club Fitness"). While using the shower at Club
Fitness, Mr. Lambert slip and fell sustaining injuries. Mr.
Lambert contacted Club Fitness for their insurance
information. Club Fitness provided the incorrect insurance
Lambert did not receive any response from the insurance
carrier and filed suit against Defendant 24.7 Fitness Studio,
LLC ("24.7 Fitness"). Mr. Lambert received a
default judgment against 24.7 Fitness and forwarded the
default to a manager at Club Fitness. Then, a processor for
Club Fitness' insurance company, notified Mr. Lambert
that Defendant DGYMS, LLC ("DGYMS"), and not 24.7
Fitness, owned Club Fitness.
Lambert amended the complaint to include DGYMS. The amendment
occurred outside the statute of limitations. DGYMS filed
their Revised Motion to Dismiss of Defendant DGYMS LLC (the
"Motion"). Mr. Lambert filed an Opposition to
Motion for Dismiss (the "Opposition"). DGYMS filed
a Reply Brief of Defendant DGYMS LLC in Support of its Motion
to Dismiss (the "Reply").
reasons discussed below, the Court DENIES the Motion.
March 12, 2015, Mr. Lambert was at Club
Fitness. Mr. Lambert slipped and fell sustaining
injuries while using the gym's shower. Mr. Lambert
states that on the day of the injury, he contacted the
morning manager and filled out an incident report before
going to the emergency room.
March 16, 2015, Mr. Lambert called the gym and spoke to an
employee. During the discussion, Mr. Lambert asked
that the employee to have the manager call him
back. Later that day, the manager told Mr.
Lambert she would email the insurance information to
Mr. Lambert did not receive the information and called the
gym again on March 19, 2015. Again, Club Fitness did not send
Mr. Lambert the insurance information. On April 27, 2015, Mr.
Lambert's counsel sent a letter to Club
Fitness. The letter notified Club Fitness that Mr.
Lambert retained counsel and requested insurance
information. Mr. Lambert's counsel did not
receive any response from Club Fitness. Eventually,
Julie Swisher from Club Fitness contacted Mr. Lambert
and informed him "that the insurance carrier was
Hartford and that the claim number was
January 10, 2017, Mr. Lambert sent a demand letter to
Hartford with the claim number provided by Club
Fitness. Mr. Lambert did not receive any response
to the letter.
February 20, 2017, Mr. Lambert filed suit against 24.7
Fitness. On March 22, 2017, the Sheriff's officer served
24.7 Fitness' registered agent. On May 30, 2017, Mr.
Lambert filed a Motion for Entry of Default
Judgment. The Court granted the motion for default
judgment on June 12, 2017.
Lambert sent a letter dated September 27, 2017 to Julie
Swisher at Club Fitness.Ms. Swisher forwarded the letter to
Crosswalk Claims. On or about October 11, 2017, Crosswalk
Claims sent Mr. Lambert a letter indicating that 24.7 Fitness
does not own the Club Fitness. The letter informed Mr.
Lambert that DGYMS owns the Club Fitness where Mr. Lambert
sustained his injuries.
Lawson, the owner of Club Fitness, was not aware that Mr.
Lambert made a claim that he was injured while at Club
Fitness. Ms. Lawson states that she did not
become aware of the alleged injury until she received the
September 27, 2017 letter from Mr. Lambert's
counsel.Ms. Lawson spoke with Mark DiDonato, the
manager on duty the morning of the injury. Mr. DiDonato
"never told [Ms. Lawson] that plaintiff had sustained an
injury or that he was making a claim." Ms. Lawson
also spoke with Julie Swisher. Ms. Swisher did not remember
the incident occurring, but stated that if she was informed
something happened she would have filled out an incident
report. Ms. Lawson checked the records and did
not find an incident report.
Owens is the Senior Vice President of London Market Claims
for Crosswalk Claims Management, LLC ("Crosswalk
Claims"). Crosswalk Claims is "the Third
Party Administrator for Certain Underwriters at Lloyd's,
the insurer of DGYMS, LLC dba Club
Fitness." Ms. Owens states that no one "at
Crosswalk Claims Management or Certain Underwriters at Lloyds
was aware of Plaintiffs claim or this lawsuit until DGYMS LLC
forwarded to her a letter dated September 27, 2017 . .
." After receiving the September 27 Letter,
Ms. Owens telephoned Mr. Lambert's counsel and advised
him that neither the owner of the gym or the insurer for the
gym knew about the lawsuit until receipt of the September 27
November 6, 2017, Mr. Lambert filed an amended complaint (the
"Amended Complaint") to include DGYMS as a
defendant in this case.
February 1, 2018, DGYMS filed the Motion. On February 16,
2018, Mr. Lambert filed the Opposition. On February 20, 2018,
DGYMS filed the Reply.
Motion and Reply
Motion, DGYMS basically makes two arguments: (i) that the
statute of limitations has run; and (ii) that Mr. Lambert
cannot rely on 18 Del. C. § 3914 ("Section
3914") to toll the statute of limitations. DGYMS claims
that, because DGYMS and its insurer did not have any notice
prior to expiration of the statute of limitations, there was
no requirement for the insurer to notify Mr. Lambert. In the
Reply, DGYMS also contends that Mr. Lambert cannot rely on
Superior Court Civil Rule of Procedure 15(c) ("Rule
15(c)") because Mr. Lambert sued the wrong entity and
DGYMS and its insurer did not have notice of the lawsuit.
Lambert argues that Section 3914 applies in this case. Mr.
Lambert observes that he put Club Fitness on notice the day
of the fall. Further, Mr. Lambert contacted Club Fitness
multiple times until Club Fitness provided their insurance
information-the incorrect insurance carrier. Then, Mr.
Lambert contacted the insurance company, but did not receive
any response. After the statute limitations ran, Mr. Lambert
received information from Club Fitness' insurance
underwriter. The letter informed Mr. Lambert that DGYMS, and
not 24.7 Fitness, owned Club Fitness. On these facts, Mr.
Lambert contends that the statute of limitations is tolled
under Section 3914. Further, Mr. Lambert claims that the
amendment adding DGYMS as a party relates back to the
original filing in this case under Rule 15(c).
motion to dismiss, the Court (i) accepts all well-pleaded
factual allegations as true, (ii) accepts even vague
allegations as well-pleaded if they give the opposing party
notice of the claim, (iii) draws all reasonable inferences in
favor of the non-moving party, and (iv) only dismisses a case
where the plaintiff would not be entitled to recover under
any reasonably conceivable set of
circumstances. However, the court must "ignore
conclusory allegations that lack specific supporting factual
CLAIM AGAINST DGYMS DOES NOT RELATE BACK TO THE ORIGINAL
COMPLAINT UNDER RULE 15(C)
Court Civil Rule 15(c) allows an amendment that adds a party
to relate back to an earlier filing. If a plaintiff changes a
defendant or adds a defendant, the claim may relate back if
"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 original
pleading" and if
the amendment changes the party or the naming of the party
against whom a claim is asserted if the foregoing provision .
. . is satisfied and, within the period provided by
statute or these Rules for service of the summons and
complaint, the party to be brought in by amendment (A)
has received such notice of the institution of the action
that the party will not be prejudiced in maintaining a
defense on the merits, and (B) knew or should have known
that, but for ...