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Lambert v. 24.7 Fitness Studio, LLC

Superior Court of Delaware

May 29, 2018

24.7 FITNESS STUDIO, LLC and DGYMS, LLC, Defendants.

          Submitted: February 16, 2018

         Upon Defendant DGYMS, LLC's Revised Motion to Dismiss, DENIED.

          ERIC M. DAVIS, JUDGE


         This is 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 carrier information.

         Mr. 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.

         Mr. 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").

         For the reasons discussed below, the Court DENIES the Motion.

         II. RELEVANT FACTS[1]

         On March 12, 2015, Mr. Lambert was at Club Fitness.[2] Mr. Lambert slipped and fell sustaining injuries while using the gym's shower.[3] 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.[4]

         On March 16, 2015, Mr. Lambert called the gym and spoke to an employee.[5] During the discussion, Mr. Lambert asked that the employee to have the manager call him back.[6] Later that day, the manager told Mr. Lambert she would email the insurance information to him.[7] Mr. Lambert did not receive the information and called the gym again on March 19, 2015.[8] 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.[9] The letter notified Club Fitness that Mr. Lambert retained counsel and requested insurance information.[10] Mr. Lambert's counsel did not receive any response from Club Fitness.[11] Eventually, Julie Swisher[12] from Club Fitness contacted Mr. Lambert and informed him "that the insurance carrier was Hartford and that the claim number was 76WEGEP9573."[13]

         On January 10, 2017, Mr. Lambert sent a demand letter to Hartford with the claim number provided by Club Fitness.[14] Mr. Lambert did not receive any response to the letter.[15]

         On 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.[16] On May 30, 2017, Mr. Lambert filed a Motion for Entry of Default Judgment.[17] The Court granted the motion for default judgment on June 12, 2017.[18]

         Mr. Lambert sent a letter dated September 27, 2017 to Julie Swisher at Club Fitness.[19]Ms. Swisher forwarded the letter to Crosswalk Claims.[20] On or about October 11, 2017, Crosswalk Claims sent Mr. Lambert a letter indicating that 24.7 Fitness does not own the Club Fitness.[21] The letter informed Mr. Lambert that DGYMS owns the Club Fitness where Mr. Lambert sustained his injuries.[22]

         Lisa Lawson, the owner of Club Fitness, was not aware that Mr. Lambert made a claim that he was injured while at Club Fitness.[23] 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.[24]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."[25] 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.[26] Ms. Lawson checked the records and did not find an incident report.[27]

         Kathy Owens is the Senior Vice President of London Market Claims for Crosswalk Claims Management, LLC ("Crosswalk Claims").[28] Crosswalk Claims is "the Third Party Administrator for Certain Underwriters at Lloyd's, the insurer of DGYMS, LLC dba Club Fitness."[29] 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 . . ."[30] 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 Letter.[31]

         On November 6, 2017, Mr. Lambert filed an amended complaint (the "Amended Complaint") to include DGYMS as a defendant in this case.

         On February 1, 2018, DGYMS filed the Motion. On February 16, 2018, Mr. Lambert filed the Opposition. On February 20, 2018, DGYMS filed the Reply.


         A. The Motion and Reply

         In the 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.

         B. The Opposition

         Mr. 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).


         Upon a 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.[32] However, the court must "ignore conclusory allegations that lack specific supporting factual allegations."[33]


         Superior 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 ...

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