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George & Lynch, Inc. v. E.J. Breneman, L.P.

Supreme Court of Delaware

December 18, 2019

GEORGE & LYNCH, INC. Defendant Below, Appellant,
v.
E.J. BRENEMAN, L.P., Defendant Below, Appellee.

          Submitted: December 11, 2019

          Court Below-Superior Court of the State of Delaware C.A. Nos. S14C-01-006, S14C-04-005

          Before VALIHURA, VAUGHN, and TRAYNOR, Justices.

          ORDER

          GARY F. TRAYNOR, JUSTICE

         This 18th day of December, 2019, after careful consideration of the parties' briefs and the record on appeal, it appears to the Court that:

         (1) George & Lynch, Inc. ("George & Lynch") and E.J. Breneman, L.P. ("Breneman") were codefendants in a personal-injury and wrongful-death action that arose out of a single-vehicle accident on Omar Road in Sussex County. In that action, which was filed in the Superior Court, the plaintiffs alleged that the accident was caused by unsafe road conditions that were the byproduct of a road-resurfacing project, of which George & Lynch was the general contractor.

         (2) George & Lynch cross-claimed for contribution and contractual indemnity against Breneman, which was one of George & Lynch's subcontractors.

         (3) After discovery was completed and expert reports were exchanged, Breneman settled with the plaintiffs and moved for summary judgment on George & Lynch's contractual-indemnity claim. The expert reports included an opinion from the plaintiffs' expert that, among other things, Breneman breached its duty of care in various ways. But when Breneman settled with the plaintiffs, the plaintiffs' expert changed his opinion, submitting a supplemental report that concluded that Breneman was without fault.

         (4) Meanwhile, George & Lynch moved for summary judgment against the plaintiff. When the Superior Court granted George & Lynch's motion, Breneman's summary-judgment motion on George & Lynch's cross-claim for indemnity was rendered moot. The plaintiffs, however, appealed the judgment in George & Lynch's favor, and we reversed.[1]

         (5) On remand, the Superior Court granted Breneman's motion for summary judgment on George & Lynch's contractual-indemnity cross-claim. The court ruled that George & Lynch could not rely on the plaintiffs' expert's earlier opinion that Breneman was at fault and, since it did not have its own expert to prove its claim of fault on Breneman's part, Breneman prevailed.

         (6) After that decision, George & Lynch also settled with the plaintiffs, leaving George & Lynch's cross-claims against Breneman as the only remaining claims in the case. Thereafter, George & Lynch wrote to the court with a request:

One issue remains in the case that requires some action. The Court will recall that George & Lynch had maintained a cross-claim for contribution and common law and contractual indemnity against co-defendant, E.J. Brenneman [sic]. Following remand of this case from the Supreme Court, Your Honor granted E.J. Brenneman's [sic] Motion for Summary Judgment. While [George & Lynch's] contribution claim against E.J. Brenneman [sic] is now moot as a result of the settlement, the ruling could nevertheless be argued to have effect on my client's ongoing claims relating to the insurance coverage for this incident. I would therefore respectfully request a brief teleconference with the Court to address this outstanding issue.[2]

         George & Lynch requested that the summary judgment order be "vacated and marked moot."[3] Breneman objected, and the Superior Court declined to vacate the order. That happened in late January 2019.[4]

         (7) According to the Superior Court docket, nothing else happened in the case until early June 2019, when the Superior Court ...


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