IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MEEGHAN CARTER, individually and as
Administratrix of the Estate Estate of
MARGARET RACKERBY FLINT,
Decedent,

Plaintiffs,

V. C.A. NO. N17C-05-353 MMJ

)
)
)
)
)
)
)
)
)
MICHAEL PRINCIPE, D.0., DELAWARE)
ORTHOPAEDIC SPECIALISTS, P.A., )
ERIC JOHNSON, M.D. FIRST STATE )
ORTHOPAEDICS, P.A. and CHRISTIANA)
CARE HEALTH SERVICES, INC., )

)
Defendants. )

Submitted: February 2, 2019
Decided: February 11, 2019

ORDER GRANTING LEAVE TO APPEAL
FROM INTERLOCUTORY ORDER

Leroy A. Tice, Esq., Leroy A. Tice P.A., Attorney for Plaintiff

Joshua H. Meyeroff, Esq., Richard Galperin, Esq., Morris J ames LLP, Attorneys
for Defendant Christiana Care Health Services, Inc.

Johnston, J.

(1) Defendant Christiana Care Health Services, Inc. (“CCHS”) has moved
for an order certifying an interlocutory appeal to the DelaWare Supreme Court. The
determination of Whether to certify an interlocutory appeal lies Within the discretion
of the Court and is analyzed under the criteria set forth in Supreme Court Rule 42(b).l
An interlocutory appeal Will not be certified unless the Court finds that its decision:
(1) determines a substantial issue; (2) establishes a legal right; and (3) satisfies one
of the five criteria set forth in Rule 42(b)(i)-(v). Under Rule 42(b)(i), the Court may
look to the criteria established by Rule 4l.

(2) By Opinion dated January 15, 2019, this Court held:

The Court finds that CCHS is a joint tortfeasor and the Joint Tortfeasor

Release does not discharge CCHS from the possibility of vicarious

liability.

THEREFORE, Defendant Christiana Care Health Services, Inc.’s
Motion for Partial Summary Judgment is hereby DENIED.

(3) CCHS argues that interlocutory appeal pursuant to Supreme Court Rule
42(b)(v) is justified because: the decision decides a substantial issue of material
importance; the decision involves an issue of first impression in DelaWare; trial court

decisions are conflicting; the question of law should be settled in advance of an

 

lSee, e.g., Tortuga Cas. C0. v. Nat’l Fire Ins. C0. ofPittsburgh, 1991 WL 247813, at *2 (Del.);
Sl‘ate v. Superior Court, 141 A.Zd 468, 471 (Del. 1968).

appeal from a final order; review may terminate the litigation; and review may serve
considerations of justice.

(4) Plaintiffs oppose certification of the interlocutory appeal.

(5) In the course of mediation in this medical negligence action, Plaintiffs
settled claims against one physician and that physician’s practice. The claims
against CCHS are not direct, but based on a theory of vicarious liability. CCHS Was
not a party to the Tortfeasor Release. At this point in the proceedings, the only
defendant remaining in the case is CCHS. All other defendants have been dismissed.

(6) CCHS argued in its Motion for Partial Summary Judgment that by
settling claims against the physician and practice, Plaintiffs are barred from pursuing
claims against CCHS solely on a theory of vicarious liability. The Court interpreted
the Uniform Contribution Among Tortfeasors Act (“UCATA”). The Court found
that CCHS is a joint tortfeasor as defined under the UCATA.2 As a joint tortfeasor,
CCHS is not discharged from liability, based on vicarious liability, by release of
another joint tortfeasor. CCHS Was neither a party nor explicitly listed in the

Tortfeasor Release.3

 

211 Del_ C. §6301.

3Carter v. Principe, Del. Super., C.A. No. 17C-05-353, Johnston, J. (Jan. 15, 2019) (Mem. Op.).

(7) The Court finds that the January 15, 2019 Opinion decides a question of law
of first instance in DelaWare;4 involves the application of a DelaWare statute which has
not been, but should be, settled;5 and determines substantial issues and establishes legal
rights.6 Further, interlocutory review in this case may terminate the litigation and
otherwise serve considerations of justice.7

THEREFORE, IT IS ORDERED that the Court’s Opinion of January 15, 2019,
is hereby certified to the Supreme Court of the State of Delaware for disposition in

accordance with Rule 42 of that Court.

 

I'
The H%frable/M’a'ry M. Johnston

 

4supr. Ct. R. 41(b)(i).
5Supr. Ct. R. 41(b)(iii).
6Supr. Ct. R. 42(b).

7See Supr. Ct. R. 42(b)(iii).

