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Liberty Insurance Corp. v. Schell Brothers, LLC

Superior Court of Delaware

October 1, 2019

LIBERTY INSURANCE CORPORATION, as subrogee of CLAIRE CHIANESE and MARIA CASTILLO, Plaintiff,
v.
SCHELL BROTHERS, LLC, Defendant/Third-Party Plaintiff,
v.
LIMA FRAMING, INC. and 4x4 GENERAL CONTRACTORS, INC., Third-Party Defendants. LIMA FRAMING, INC., Fourth Party-Plaintiff,
v.
C&C DRYWALL CONTRACTOR, INC., SOUTHLAND INSULATORS OF DELAWARE, LLC D/B/A DELMARVA INSULATION, HEARTH & HOME TECHNOLOGIES d/b/a FIRESIDE, HEARTH & HOME, and ADVANCED HOME SERVICES, INC., Fourth-Party Defendants.

          Submitted: September 19, 2019

         On Defendant/Third-Party Plaintiff Schell Brothers, LLC's Motion for Reargument DENIED.

          Wade A. Adams, III, Esq., (Argued), Chrissinger & Baumberger, Wilmington, Delaware, Attorneys for Plaintiff

          Roger D. Landon, Esq., (Argued), Murphy & Landon, Wilmington, Delaware, Attorneys for Defendant/Third-Party Plaintiff

          Joseph S. Naylor, Esq., Swartz Campbell LLC, Wilmington, Delaware, Attorneys for Third-Party Defendant/Fourth-Party Plaintiff

          Daniel A. Griffith, Esq., Whiteford Taylor & Preston LLC, Wilmington, Delaware, Attorneys for Fourth-Party Defendant

          ORDER

          JOHNSTON, J.

         By Order dated August 7, 2019, the Court granted Liberty Insurance Corporation's Motion for Summary Judgment. The Court found that viewing the record in the light most favorable to Defendant Schell Brothers, LLC, ("Schell"), there were no genuine issues of material fact that would prevent summary judgment.

         Schell has moved for reargument. Schell contends that it should be able to proceed to trial to enable the Fire Marshal's opinion to be discredited through cross examination.

         The Fire Marshal determined that a chimney flue caused a malfunction[1] in the chimney chase, [2] which resulted in "fire damage to the structure and contents."[3] In his deposition, Schell's designated corporate representative, Dan Matta, testified that it was "pretty clear," in his own opinion, that the flue had not been connected.[4]Matta stated that he saw that the flue pipe was not connected when he went on a walk-through with the Fire Marshal.[5] Matta further acknowledged that it was Schell's responsibility, pursuant to the contract, to deliver a home with a working, properly connected fireplace.[6]

         The Fire Marshal was not deposed. There exists no conflicting deposition testimony or affidavit in opposition to the Fire Marshal's opinion. Schell's own designated representative agrees that the disconnected flue caused of the fire.

         Schell asserts in its Motion for Reargument that-even when the summary judgment record evidence itself not controverted-counsel's statement that an expert's opinion is susceptible to challenge through cross-examination is sufficient to create a genuine issue of material fact defeating summary judgment.

         In its motion, Schell cites Wooley v. Great Atlantic & Pacific Tea Company, [7]and Brennan v. Bauman & Sons Buses, Inc.[8] This authority supports Schell's position that a jury may disregard testimony it does not find credible. However, this rule is not applicable at the summary judgment stage. Nothing in the record suggests that the Fire Marshal is incorrect. Further, nothing in the record raises a question regarding the Fire Marshal's credibility.

         During oral argument, Schell cited one case discussing summary judgment. Turner v. Association of Owners of Bethany Seaview Condominum,[9] was a negligence action. The plaintiff was hired by the defendant, a homeowners association, to trim some hedges. Plaintiff alleged that he set a ladder on a boardwalk located in defendant's common area. Plaintiff claimed that a loose board in the boardwalk caused him to fall off his ladder, resulting in injuries. After submitting medical expert testimony and an engineering report ...


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