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Black v. Reybold Venture Group VII, LLC

Superior Court of Delaware

September 6, 2018

BONITA BLACK, Plaintiff,
v.
REYBOLD VENTURE GROUP VII, LLC, Defendant.

          Submitted: April 25, 2018

         Defendant's Motion to Dismiss- GRANTED IN PART, DENIED IN PART

          Leroy A. Tice, Esquire, Leroy A. Tice, Esquire, P.A., Attorney for Plaintiff.

          Paul D. Sunshine, Esquire, Reger Rizzo & Darnall LLP Attorney for Defendant.

          MEMORANDUM OPINION

          William C. Carpenter, Jr. Judge.

         I. FACTUAL BACKGROUND

         This negligence action arises from a slip and fall accident. Bonita Black ("Plaintiff) alleges that she sustained personal injuries after she slipped and fell in the parking lot of St. Andrews Apartments ("St. Andrews") in Bear, Delaware.[1] St. Andrews was operated by Reybold Venture Group VII, LLC ("Reybold" or "Defendant"), [2] who pursuant to Superior Court Rule of Civil Procedure 12(b)(6), moves to dismiss Plaintiffs Complaint. The Court held oral arguments on the Motion on April 25, 2018.

         The crux of this case is whether the statute of limitations has been tolled.[3]Specifically, the parties dispute whether 18 Del. C. § 3914 requires Reybold, who is not an insurance company or self-insured, to provide notice to the Plaintiff of the applicable statute of limitations.[4]

         The facts of the case are relatively straightforward and undisputed. On February 16, 2016, Plaintiff, a business invitee, went to St. Andrews to perform physical, therapeutic education for a client in connection with her employment at Community Systems, Inc.[5] Plaintiff claims after arriving at St. Andrews she was injured when she exited her car and immediately slipped and fell on ice, falling and striking her left side (the "Accident").[6]

         Because the injuries occurred during the scope of her employment, there is a workers' compensation claim. In fact, "[h]er claim for workers' compensation benefits was acknowledged via employer's carrier Liberty Mutual, and that matter was to be set for mediation on May 1, 2018, with a view toward a global commutation of those benefits."[7] Additionally, Plaintiff states that she was contacted in March 2016, by the Defendant's liability carrier through an adjuster named Eric Lesperance ("Lesperance") for Harleysville Preferred Insurance Co. ("Harleysville").[8] Lesperance communicated to the undersigned that he was assigned the future handling of the claim, [9] and the undersigned allegedly told Lesperance on or about November 2, 2017, there were prospects of settling the third-party claim.[10] "This correspondence reveals Harleysville knew of the pendency of Plaintiffs claim as early as March of 2016."[11] Despite Harleysville's knowledge, it did not place Plaintiff on notice of the statute of limitations as 18 Del. C. § 3914 requires, thus tolling the statute of limitations.

         On February 26, 2018, Plaintiff filed suit against Defendant, alleging that the Defendant was negligent when it failed to provide a safe parking area and the Accident caused injuries to her neck, lower back, left shoulder and right wrist.[12]Plaintiff seeks a judgment that Defendant was negligent and seeks damages including prejudgment interest and statutory and reasonable fees and costs in such amounts that may be awarded by the Court.[13] Defendant filed the instant motion asserting that the Plaintiffs claims are barred by the statute of limitations.

         II. STANDARD OF REVIEW

         "A motion to dismiss for failure to state a claim upon which relief can be granted made pursuant to Superior Court Rule 12(b)(6) will not be granted if the plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint."[14] All well-pled allegations in the complaint must be accepted as true, [15] and every reasonable factual inference will be drawn in favor of the plaintiff.[16] If the claimant may recover under that standard of review, the court must deny the motion to dismiss.[17]

         III. DISCUSSION

         The parties agree that the applicable statute of limitations for this action is two years, [18] and that Plaintiffs action was filed more than two years after the Accident.[19] It is equally undisputed that neither Defendant or Harleysville ever gave Plaintiff notice of the applicable statute of limitations pursuant to 18 Del. C. § 3914 ("Claim Notice Statute"). The Claim Notice Statute requires: "[a]n insurer shall be required during the pendency of any claim received pursuant to a casualty insurance policy to give prompt and timely written notice to claimant informing claimant of the applicable state statute of limitations regarding action for his or her damages."[20] The parties, however, dispute whether the Claim Notice Statute applies to Reybold. The Defendant is neither a self-insured nor an insurance ...


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