ACW CORPORATION a/k/a ARBY'S, and EASTERN ALLIANCE INS. CO., as Subrogee of SHANARA DEVON WATERS, Plaintiffs,
CHRISTOPHER ROBERT MAXWELL, and DONEGAL MUTUAL INS. CO. a/k/a DONEGAL INS. GROUP, Defendants.
Submitted: June 26, 2019
W. Alderson, Esquire, Elzufon Austin & Mondell, P.A.,
Wilmington, Delaware, Attorney for Plaintiff.
M. Shalk, Esquire, Casarino Christman Shalk Ransom &
Doss, P.A., Wilmington, Delaware, Attorney for Defendants.
L. SCOTT, JR. JUDGE
ACW Corporation ("Arby's") and its workers'
compensation insurer, Plaintiff Eastern Alliance Insurance
Company ("Eastern Alliance"), as subrogee of
Shanara D. Waters, filed this subrogation suit against
Defendants Christopher Maxwell and Donegal Mutual Insurance
Company, Maxwell's automobile insurance carrier, seeking
reimbursement of $13, 133.25 in workers' compensation
benefits paid to Ms. Waters. At issue is whether $12, 500 of
the total amount sought by Plaintiffs is eligible for
reimbursement under 19 Del. C. § 2363.
Waters, acting in the course and scope of her employment, was
injured in a motor vehicle accident in February 2016 when a
motor vehicle operated by Defendant Maxwell drove into her
vehicle. Thereafter, Ms. Waters filed a petition
with the Industrial Accident Board ('TAB")
indicating that she had been unable to work since the time of
the motor vehicle collision as a result of the injuries she
sustained. In the months that followed, Ms. Waters
and Eastern Alliance, on behalf of Arby's, agreed to a
settlement. The terms of this settlement became a petition
for commutation filed with the IAB in December 2017, which
was subsequently approved in January 2018. Pursuant to the
IAB's Stipulation & Order for Commutation between Ms.
Waters and Arby's (the "Commutation
Agreement"), the terms of the settlement provided for
The parties have agreed to commute any and all workers'
compensation benefits including, but not limited to,
temporary total disability benefits, temporary partial
disability benefits, permanent impairment benefits,
disfigurement benefits, death benefits and past, present and
future medical benefits, to which [Ms. Waters] may now be or
in the future become entitled, pursuant to the provisions of
19 Del. C. §§ 2322, 2324, 2325, 2326, and
filed this action in February 2018, seeking reimbursement of
the $13, 133.25 paid in workers' compensation benefits to
Ms. Waters. Defendants thereafter filed a Motion for
Summary Judgment, asserting that $12, 500 of the $13, 133.25
claimed is formatters not recoverable under the Workers'
Compensation Act. In response, Plaintiffs filed a
Cross-Motion for Summary Judgment.
argue that commuted future benefits are not recoverable under
the Workers' Compensation Act. Included in
Defendants' motion is the sworn affidavit of Joel H.
Fredricks, Esq., counsel for Ms. Waters. Mr. Fredricks states
that all of the medical bills and lost wages related to the
motor vehicle accident were submitted to and paid by the
personal injury protection ("PIP") carrier except
for medical bills in the amount of $633.25. Mr. Fredricks
further avers that, at the time of the Commutation Agreement,
Ms. Waters did not have any outstanding medical expenses, any
present claims for lost wages, or any medical reports
identifying future medical expenses or lost
wages. Defendants contend that Section 2363 did
not require Eastern Alliance to grant a commutation, thus any
amount paid to Ms. Waters under the Commutation Agreement for
future claims were "speculative" and "based
to Plaintiffs, it is irrefutable that the commutation paid to
Ms. Waters is a qualified payment under Section 2363 because
the terms of the Commutation Agreement included potential
future workers' compensation benefits. Plaintiffs
contend that there is no distinction between an amount sought
in subrogation and the purely speculative future damages
Waters could have collected herself from the
judgment is appropriate where the record indicates that there
are no genuine issues of material fact. However, if
it seems desirable to inquire more thoroughly into the facts
in order to clarify the application of law to the
circumstances, summary judgment will be denied. The moving
party bears the burden of demonstrating the absence of
material issues of fact. In determining whether the moving
party has satisfied this burden, the Court must view the
evidence in the light most favorable to the non-moving