Submitted: May 24, 2019
Defendant Universal Protection Service, LLC's Motion to
J. Meehan, III, Esquire, Shelsby & Leoni, Attorney for
Plaintiffs Francesca Colella and Shenouda Rofaeil. Michael J.
Logullo, Esquire, Laura Bower Braunsberg, Esquire, Rawle
& Henderson LLP, Attorneys for Defendant, Universal
Protection Services, LLC.
J. Gerard, Esquire, Marshall, Dennehey, Warner, Coleman &
Goggin, Attorney for Defendants Charley's Philly Steaks,
Charley's Grilled Subs, Charley's Steakery, Inc.,
Gosh Enterprises, Inc. Pope Shenouda and Eva Hedra, LLC, and
Richard Abrams, Esquire, Timothy Rohs, Esquire, Mintzer,
Sarowitz, Zeris, Ledva & Meyers, Attorneys for Defendants
GGP, Inc. and Christiana Mall, LLC.
Seifeddine Gmar, pro se.
W. Wharton, Judge.
23rd day of August, 2019, upon consideration of the Motion to
Dismiss of Defendant Universal Protection Service, LLC
("UPS"); and the Response of Defendants
Charley's Philly Steaks, Charley's Grilled Subs,
Charley's Steakery Inc., Gosh Enterprises, Inc., Pope
Shenouda and Eva Hedra, LLC and Amgad Attalla (collectively
"Charley's"), and the record in this case, it
appears to the Court that:
Plaintiffs Francesca Colella and Shenouda Rofael brought this
action for personal injuries, claiming negligence against all
Defendants. The Amended Complaint alleges personal
injuries related to a November 21, 2015 altercation between
Plaintiffs and various Defendants in the parking lot of the
Christiana Mall. Defendant UPS was responsible for
providing security for the mall parking lot.Charley's
answered, denying negligence, asserting various affirmative
defenses, and cross claiming for contribution and
indemnification against each codefendant.
August 14, 2018, UPS reached a settlement with Plaintiffs on
behalf of itself and Codefendants GGP, Inc. and Christiana
Mall, LLC. Subsequently, those parties executed
confidential joint tortfeasor releases. UPS has refused
to provide Charley's with the joint tortfeasor agreement,
and Charley's did not sign onto the
settlement. On May 1, 2019, UPS moved to dismiss
itself from the lawsuit, as well as the cross-claims for
defense and indemnification asserted by Codefendants GGP,
Inc. and Christiana Mall, LLC. UPS argues that, although not all
parties will agree to a stipulation of dismissal, there is no
prejudice to Charley's, and its motion should be
granted. UPS contends that when the defendant's
right to setoff damages is preserved after one joint
tortfeasor is released from litigation, that defendant's
interests will not be prejudiced by their codefendant's
May 24, 2019, Charley's answered opposing UPS's
Motion to Dismiss. Charley's contends that because
Plaintiffs continue to pursue claims against Charley's,
and UPS is vital to its defense of joint liability, UPS
cannot be dismissed from the suit.
Delaware Courts have long recognized that settling defendants
must remain in the case to enable a codefendant to pursue its
claim for contribution. In Medical Ctr. v. Mulllins,
a medical negligence case, Dr. Vakili, one of the defendant
physicians, reached a settlement agreement with the
plaintiffs prior to trial. The Delaware Supreme Court
held, "notwithstanding his pretrial settlement with the
[Plaintiff], Dr. Vakili remained a party throughout trial to
enable the Medical Center to prosecute its cross-claim
against him for contribution." In a similar case,
Bordley v. Delaware Transit Corp.,  this Court
held that a "settling party need not be present at trial
but should remain on the record until their status is finally
determined." As was the case in Mullins,
here the status of codefendants as joint tortfeasors must be
judicially determined. UPS asserts cross-claims against
Charley's, and it is unknown whether the settlement
agreement preserves those claims. Furthermore, Charley's
seeks to prove that the codefendants are joint tortfeasors.
Necessarily, the jury will be required to apportion
liabilities among the parties, which cannot be done if UPS is
dismissed from the suit. Accordingly, UPS must remain a party
to the case.
Defendant Universal Protection Service LLC's Motion ...