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ACW Corp. v. Maxwell

Superior Court of Delaware

July 10, 2019


          Date Submitted: June 26, 2019

          Gary W. Alderson, Esquire, Elzufon Austin & Mondell, P.A., Wilmington, Delaware, Attorney for Plaintiff.

          Colin M. Shalk, Esquire, Casarino Christman Shalk Ransom & Doss, P.A., Wilmington, Delaware, Attorney for Defendants.


         Plaintiff 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.[1] At issue is whether $12, 500 of the total amount sought by Plaintiffs is eligible for reimbursement under 19 Del. C. § 2363.


         Ms. 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.[2] 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.[3] 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.[4] 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 following:

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 2330.[5]

         Plaintiffs filed this action in February 2018, seeking reimbursement of the $13, 133.25 paid in workers' compensation benefits to Ms. Waters.[6] 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.[7] In response, Plaintiffs filed a Cross-Motion for Summary Judgment.[8]

         Parties' Assertions

         Defendants 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.[9] 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.[10] 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 upon nothing."[11]

         According 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.[12] 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 tortfeasor.[13]

         Standard of Review

         Summary judgment is appropriate where the record indicates that there are no genuine issues of material fact.[14] 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.[15] The moving party bears the burden of demonstrating the absence of material issues of fact.[16] 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 ...

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