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Brown v. City of Wilmington

Superior Court of Delaware

January 8, 2019

JAMES BROWN, MARGARET EVANS, ROBERT CUNNINGHAM JUAN GONZALEZ, ELBERT MARTIN, AMEEN SHABAZZ, BARRY YERGER, MICHAEL LEWIS, and KEVIN MALLOY, Plaintiffs,
v.
CITY OF WILMINGTON, Defendant.

          Submitted: December 18, 2018

         Upon Consideration of Plaintiffs' Motion for Summary Judgment, DENIED.

         Upon Consideration of Defendant's Motion for Summary Judgment, GRANTED, in part, and DENIED, in part.

          Gary S. Nitsche, Esquire (argued), and Rachel D. Allen, Esquire of Weik, Nitsche & Dougherty, LLC, of Wilmington, Delaware. Attorneys for Plaintiffs.

          Lauren A. Cirrinicione, Esquire (argued), and Kelley M. Huff, Esquire of Murphy & Landon, of Wilmington, Delaware. Attorneys for Defendant.

          MEMORANDUM OPINION

          VIVIAN L. MEDINILLA, JUDGE

         I. INTRODUCTION

         Nine Plaintiffs, retired firefighters for the City of Wilmington ("Defendant" or "City"), bring breach of contract claims that allege the unlawful denial of health insurance benefits under their Collective Bargaining Agreements in violation of both federal provisions of the Omnibus Consolidated Appropriations Act and the mandates found in Defendant's personnel policies. Both sides seek judgment as a matter of law and filed cross-motions for summary judgment under Superior Court Civil Rule 56. After consideration of the parties' written submissions and oral arguments, for the reasons stated below, Plaintiffs' Motion for Summary Judgment is DENIED, and Defendant's Motion for Summary Judgment is GRANTED, in part, and DENIED, in part.

         II. FACTUAL AND PROCEDURAL HISTORY

         Plaintiffs James Brown, Barry Yerger, Robert Cunningham, Michael Lewis, Juan Gonzalez, Margaret Evans, Ameen Shabazz, Elbert Martin, and Kevin Malloy (collectively "Plaintiffs") retired as firefighters at various periods between 1996 and 2009.[1] It is undisputed that each Plaintiff received a disability pension after Defendant determined that he or she was injured while in the line of duty.[2]

         Plaintiffs were members of the Wilmington Firefighters Local 1590, International Association of Firefighters (the "Union"). The City entered into various Collective Bargaining Agreements ("CBAs") with the Union throughout the years relevant to this case. Four CBAs fall within relevant time periods-1995 through 1998, 1998 through 2001, 2001 through 2007, and 2007 through 2009.[3] The CBAs for Plaintiffs include language that called for the receipt of additional benefits outside the provisions of the CBAs.

         Plaintiffs filed this instant action on June 22, 2016 against Defendant for breaches of contract, claiming that upon Plaintiffs' retirements, Defendant failed to comply with the provisions under their respective CBAs, the Omnibus Consolidated Appropriations Act ("Appropriations Act") or the City's personnel policies, specifically Policy 402.1.[4]

         Trial is scheduled to begin February 4, 2019. On October 4, 2018, Defendant filed this first dispositive motion seeking summary judgment against all nine Plaintiffs and asserts various reasons for relief.[5] On October 17, 2018, Plaintiffs also moved for summary judgment requesting that all Plaintiffs should be deemed eligible for additional benefits as a matter of law.[6] All written submissions on the cross-motions were filed timely. The Court heard oral arguments on December 17, 2018.

         III. CONTENTIONS OF THE PARTIES

         Defendant argues first that Plaintiffs fail to identify any specific agreement that has allegedly been breached. Specifically, where Plaintiffs rely on the language found in the Appropriations Act or Policy 402.1, Defendant contends that Plaintiffs cannot establish a private cause of action because they fail to satisfy the test established in Cort v. Ash (the "Cort test"). [7]Defendant further maintains that any federal funding that may have been received by the City through the Appropriations Act was merely voluntary and does not trigger any obligation on the part of Defendant to offer more than what was already provided and received by Plaintiffs under their CBA.[8] Defendant claims also there can be no breach of the CBA by any alleged violation of Policy 402.1 because a policy, by definition, is not covered under the "Ordinances and Statutes" Article of the CBA.[9] Lastly, Defendant argues that 10 Del. C. § 8111 limits or bars Plaintiffs' claims, and alternatively argues that Plaintiffs' damages for breach of contract should be limited to the applicable three year statute of limitations under 10 Del. C. § 8106.[10]

         Conversely, Plaintiffs argue that summary judgment is warranted because they have met the requirements under Policy 402.1 as a matter of law.[11] In support, Plaintiffs argue that "[disability based upon heart conditions which have been determined to be work related are covered under Policy 402.1 as the heart conditions were due to the firefighters responding to emergency situations."[12] Next, Plaintiffs argue that Policy 402.1 should apply retroactively because the Policy includes references to federal legislation that dates back to 1996.[13]

         IV. STANDARD OF REVIEW

         The burden of proof on a motion for summary judgment falls on the moving party to demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."[14] If the moving party satisfies its initial burden, the non-moving party must sufficiently establish the "existence of one or more genuine issues of material fact."[15] Summary judgment will not be granted if there is a material fact in dispute or if "it seems desirable to inquire thoroughly into [the facts] in order to clarify the application of the law to the circumstances."[16] "All facts and reasonable inferences must be considered in a light most favorable to the non-moving party."[17] On a motion for summary judgment, the Court "will not indulge in speculation and conjecture; a motion for summary judgment is decided on the record presented and not on evidence potentially possible."[18]

         Also, when cross-motions for summary judgment are filed, it "does not act per se as a concession that there is an absence of factual issues."[19] If cross-motions for summary judgment are filed it "does not serve as a waiver of the movant's right to assert the existence of a factual dispute as to the other party's motion."[20] The moving party "concedes the absence of a factual issue and the truth of the nonmoving party's allegations only for purposes of its own motion, and does not waive its right to assert that there are disputed facts that preclude summary judgment in favor of the other party."[21]

         V. DISCUSSION

         Plaintiffs rely on the provisions of their respective CBAs, the Appropriations Act, and Policy 402.1 in support of their claims for breach of contract. The Court addresses the relevant provisions of each as follows:

         Each of the CBAs applicable to this case includes an Article entitled "Ordinances and Statutes."[22] The "Ordinances and Statutes" Article provides:

In the event any ordinances or statutes relating to the members of the Fire Department provide or set forth benefits or terms in excess of or more advantageous than the benefits or terms of this Agreement, the provisions of such ordinances or statutes shall prevail. In the event this Agreement provides or sets forth benefits or terms in excess of or more advantageous than those provided or set forth in any such ordinance or statute, the provisions of this Agreement shall prevail.[23]

         On July 12, 2005, Defendant created its Personnel Policy 402.1 entitled "Public Safety Officers Health Benefits."[24] It states:

The City of Wilmington shall provide the same level of health insurance benefits to a public safety officer who retires or is separated from service as a direct or proximate result of a personal injury sustained in the line of duty while responding to a hot pursuit or emergency situation, as the officer had when the incident occurred.[25]

         This Policy was created in order to "provide a policy and procedure for addressing the Disabled Public Safety Officer's Health Act of 1996...."[26] It turns out that there is no statute enacted entitled Disabled Public Safety Employees Act of 1996. Defendant concedes that although there is no such statute, incredulously it remains referenced in Policy 402.1 to date.

         If that didn't confuse the issues enough, Defendant clarified that the applicable statute that mirrors the language found in Policy 402.1 is found instead in the "Appropriations Act" in most fiscal years relevant to Plaintiffs' retirement dates. Specifically, beginning in 1996 for the fiscal year 1997, the Appropriations Act contained the following language:

SEC. 615. Of the funds appropriated in this Act under the heading "OFFICE OF JUSTICE PROGRAMS-STATE AND LOCAL LAW ENFORCEMENT ASSISTANCE" and "Community Oriented Policing Services Program," not more than ninety percent of the amount to be awarded to an entity under the Local Law Enforcement Block Grant and part Q of title I of the Omnibus Crime Control and Safe Streets Act of 1968 shall be made available to such an entity when it is made known to the Federal official having authority to obligate or expend such funds that the entity that employs a public safety officer (as such term is defined in section 1204 oftitle I of the Omnibus Crime Control and Safe Streets Act of 1968) does not provide such a public safety officer who retires or is separated from service due to injury suffered as the direct and proximate result ofa personal injury sustained in the line of duty while responding to an emergency situation or a hot pursuit (as such terms are defined by State law) with the same or better level of health insurance benefits that are paid by the entity at the time of retirement or separation.[27]

         The federal block grant appears to contemplate withholding a percentage of funding in the event that the municipality decided not to provide its retired or separated public safety officers injured in the line of duty-while responding to an emergency situation or a hot pursuit-with the same or better level of health insurance benefits that were paid by the municipality at the time of retirement. A nearly identical provision was included in the Appropriations Act for additional fiscal years, including 1998, 1999, 2001, 2002, 2003 and 2004.[28] Policy 402.1 was created one year later in 2005.

         Having identified the relevant language that both sides asked the Court to consider, the respective motions for summary judgment are ripe for review.

         A. Plaintiffs' Motion for Summary Judgment

         Plaintiffs first assert they have established entitlement to benefits under Policy 402.1 as a matter of law because of a prior determination that they suffered a physical condition that was deemed to be job related. The Court disagrees.

         The Wilmington City Code explains that certain diseases that result in total or partial disability are presumed to have been suffered while in the line of duty, but the Code does not include the "hot pursuit or emergency situation" language required to warrant eligibility under Policy 402.1. Although some Plaintiffs' injuries are presumed to have occurred in the line of duty, determination of disability did not make a finding required under Policy 402.1-that the injury was sustained in the line of duty while responding to a hot pursuit or emergency situation?[29] While it is true that the Plaintiffs qualified for benefits under what Plaintiffs refer to as the "Heart and Lung Bill, "[30] it cannot be accepted as a matter of law that receiving disability benefits through this City Code provision equates to the entitlement of benefits under Policy 402.1.

         Second, Plaintiffs' argument that Policy 402.1 should apply retroactively is also without merit. Because this Court finds that Plaintiffs cannot establish they are entitled to benefits under 402.1 as a matter of law as a result of their disability under the Heart and Lung Bill, Plaintiffs' Motion for Summary Judgment is DENIED as to all Plaintiffs. The Plaintiffs' arguments regarding whether Policy 402.1 should be applied retroactively are best addressed in Defendant's Motion for Summary judgment because they dovetail the same arguments raised by Defendant why summary judgment should be granted in its favor.

         B. Defendant's Motion for Summary Judgment

         1. Retired Firefighters before Creation of Policy 402.1 - No Breach of Contract under the CBAs Through ...


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