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Verbitski v. Diamond State Port Corp.

Superior Court of Delaware

April 4, 2019

THOMAS J. VERBITSKI and MAUREEN T. VERBITSKI, his wife, Plaintiffs,
v.
DIAMOND STATE PORT CORPORATION, Defendant/ Third-Party Plaintiff,
v.
PACIFIC TRELLIS FRUIT, INC., Third-Party Defendant.

          Submitted: February 11, 2019

         Upon Third-Party Defendant's Motion to Dismiss

          Joseph J. Rhoades, Esquire, Rhoades & Morrow, Attorneys at Law, Wilmington, Delaware, Attorney for Plaintiffs.

          David Primack, Esquire, McElroy Deutsch Mulvaney & Carpenter LLP, Wilmington, Delaware, Attorney for Defendant.

          Marc Sposato, Esquire, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., Wilmington, Delaware, Attorneys for Third-Party Defendant.

          MEMORANDUM OPINION

          THE HONORABLE ANDREA L. ROCANELLI, JUDGE

         This case involves an employee's claims of personal injury arising out of a workplace accident which require the Court to address whether an employer can be required to indemnify the employer's landlord for the landlord's own negligence. The employer has filed a motion to dismiss the third-party complaint brought by the employer's landlord, asserting that the action is precluded by the workers' compensation exclusivity doctrine. This is the Court's decision on the employer's motion to dismiss the third-party complaint.

         FACTUAL AND PROCEDURAL BACKGROUND

         Thomas Verbitski ("Employee") was injured at work and received workers' compensation benefits from his employer Pacific Trellis Fruit, Inc. ("Employer"). Employee's workplace injury took place in the parking lot at the property leased by Employer.[1] Employee and his spouse filed a lawsuit against the owner of the property, Diamond State Port Corporation ("Landlord"), alleging that Employee's injury was the result of negligence by Landlord because Employee fell when his foot caught on an uncovered open pipe in the parking lot.

         Landlord filed a third-party complaint for indemnity against Employer as tenant on the grounds that Employer's lease ("Lease") requires Employer to indemnify and defend Landlord. Employer requests dismissal of the third-party claim by Landlord on the grounds that workers' compensation benefits were provided to Employee and therefore any claims against Employer are barred by the exclusivity doctrine ("Workers' Compensation Exclusivity Doctrine"). Landlord responds that its claims are not barred because the Lease provides an express provision for indemnity and the Lease imposes on Employer, not Landlord, an obligation to maintain the parking lot. According to Landlord, Employer's contractual agreement to indemnify is an exception to the Workers' Compensation Exclusivity Doctrine.

         STANDARD OF REVIEW

         In deciding a motion to dismiss for failure to state a claim upon which relief can be granted under Superior Court Rule of Civil Procedure 12(b)(6), the Court shall accept all well-pleaded allegations as true and make all reasonable inferences in favor of the non-moving party.[2] Factual allegations, even if vague, are well pleaded if they provide notice of the claim to the other party.[3] The Court should deny the motion if the claimant "may recover under any reasonably conceivable set of circumstances susceptible of proof."[4]

          DISCUSSION

         It is well established that an employer who provides worker's compensation to its employees cannot be sued for negligence.[5] The Workers' Compensation Exclusivity Doctrine provides that workers' compensation constitutes the sole remedy for personal ...


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