Submitted: September 20, 2019
Defendant Adam McMillan Construction, LLC's Motion to
Krawitz, Esquire (argued), Tara E. Bustard, Esquire,
Doroshow, Pasquale, Krawitz & Bhaya, 1208 Kirkwood
Highway, Wilmington, DE 19805, Attorneys for Plaintiff.
Stephen F. Dryden, Esquire (argued), Weber Gallagher Simpson
Stapleton Fires & Newby LLP, 92 Read's Way, Suite
104, New Castle DE 19720, Attorney for Defendant Adam
McMillan Construction, LLC.
Danielle K. Yearick, Esquire (argued), Tybout, Redfern &
Pell, 750 Shipyard Drive, Suite 400 Wilmington, DE 19899,
Attorney for Defendant D.R. Horton, Inc. - New Jersey.
W. Wharton, J.
8th day of October, 2019, upon consideration of the Motion to
Dismiss of Defendant Adam McMillan Construction, LLC,
("AMC"), the Responses of Plaintiff Jactinto
DeSousa ("DeSousa") and Defendant D.R. Horton, Inc.
- New Jersey ("Horton"), oral argument, and the
record in this case, it appears to the Court that:
DeSousa brought this personal injury action for a work
related construction site injury against Station Builders,
Inc. ("Station Builders"), which had engaged his
employer Wellington Nunez; AMC, the general contractor, which
had hired Station Builders; and the property owner Horton,
which had hired AMC. The Court entered a default judgment
against Station Builders on September 24, 2018.
parties agree that AMC, the general contractor, provided
workers' compensation insurance coverage for
DeSousa. Citing a Pennsylvania Superior Court
case construing Delaware's workers' compensation law
- Sheard v. J. J. Deluca, Co. - AMC moves
to dismiss this tort action under Superior Court Civil Rules
12(b)(1) and/or 12(b)(6). It argues that Delaware law deems
AMC to be DeSousa's employer, and, as a result,
workers' compensation is the exclusive remedy available
to DeSousa for personal injury by accident arising out of or
in the course of employment, and, thus, this tort action is
barred. It also argues that the failure to
treat AMC as any other employer who provides workers'
compensation insurance by permitting it to be sued in tort
would result in an equal protection violation.
DeSousa opposes the Motion to Dismiss. Horton joins in
DeSousa's opposition. Together they argue
that AMC's motion ignores relevant statutory and case law
authority. Specifically, citing 19 Del. C. §
2311 (a)(5), they argue that AMC is not deemed DeSousa's
employer despite being required to provide workers'
compensation coverage. Further, they cite McKirby v.
A&J Builders, Inc. for the proposition
that an injured worker who received workers' compensation
benefits, despite the lack of an employer-employee
relationship with the entity required to insure the claim, is
permitted to proceed in tort and is not barred by the
exclusivity provisions of the Workers' Compensation Act
(the "Act"). They also dispute that allowing
AMC to be sued in tort would result in an equal protection
violation because the statute upon which DeSousa relies
applies to all contractors.Additionally, Horton
points out that it maintains crossclaims against AMC for
breaches of various duties and obligations under contractual
and common law.
Delaware's Workers' Compensation Act provides:
Every employer and employee, adult and minor, except as
expressly excluded in this chapter, shall be bound by this
chapter respectively to pay and to accept compensation for
personal injury or death by accident arising out of and in
the course of employment, regardless of the question of
negligence and to the exclusion of all other rights and
by this exclusivity provision that AMC seeks dismissal of the
Third Amended Complaint. But, DeSousa points out that under
19 Del. C. § 2311 (a)(5), a contracting party
deemed to have insured workers' compensation claims
because it failed to obtain a certificate of insurance from
an independent or subcontractor is not deemed the employer of
an independent contractor or subcontractor or their
employees.Thus, according to DeSousa, because
he was not deemed to be in an employer -employee relationship
with AMC, the § 2304 exclusivity provision is
inapplicable and he may sue AMC in tort. As a result, if
DeSousa is correct, AMC was not only required to insure
DeSousa's workers' compensation claim, but also, it
is liable to him in tort. DeSousa believes McKirby
sanctions this result, as, at least implicitly, the court did
in Estevam v. Silva. 18 But, a close reading of McKirby
reveals that it does not explicitly green-light tort suits
against those contractors who have been deemed to have
provided workers' compensation insurance.
McKirby, McKirby, who was employed as a carpenter by
A & J Builders, Inc. "(A & J"), was injured
while working on a home being constructed in North Bethany
Beach, Delaware. The general contractor on the job was R.
A. Bunting & Company, Inc. (Bunting"). It was
alleged that A & J did not have workers' compensation
insurance, but that Bunting did. In analyzing the
then-recent changes to 19 Del. C. § 2311(a)(5),
the court noted that the change in section (a)(5) clarified
the lack of an employer-employee relationship with the
contracting entity in order to preserve tort liability claims
by injured workers against third parties in the position of A
& J. Aligning the parties in McKirby with the
parties here, A & J (which the court ruled could be sued
in tort) corresponds to DeSousa's employer Station
Builders. Bunting corresponds to AMC. McKirby does
not address Bunting's, and thus AMC's, liability in
Act removed workplace injuries from traditional personal
injury law. The philosophy of the Act is
"to obviate the need for litigation and to give an
injured employee, irrespective of fault, prompt
compensation." More broadly stated the Act is
intended "to eliminate questions of negligence and fault
in industrial accidents, and to substitute a reasonable scale
of compensation for common-law remedies, which experience has
shown to be, generally speaking, inadequate to the interest
of those who had become casualties of
industry." In order to effectuate that purpose,
workers' compensation was designated the exclusive remedy
for such injuries.
Here, AMC provided the worker's compensation insurance by
which DeSousa apparently was compensated. Thus, it would
appear that the purpose of the Act has been fulfilled.
Nonetheless, DeSousa seeks further compensation in tort. He
points to two statutes. One, § 2304, limits the
exclusivity provision of the Act to employers, and the other,
§ 2311(a)(5), specifically deems contractors in
AMC's position not to be employers. In the Court's
view, there is a tension, at least under the facts here,
between the purpose of the Act and § 2311(a)(5).
Nonetheless, the language of §§ 2304 and 2311
(a)(5) is clear - AMC is not deemed an employer, and only
employers are afforded the exclusivity of § 2304. Since
it is not in the Court's purview to ...