IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ROBERT L. PIERCE a/k/a )
ROBERT LOUIS PIERCE, Individually, )
and as Personal Representative of the )
Estate of DOROTHY A. PIERCE,
ROBERT L. PIERCE, III, CURTIS A.
PIERCE and ANNETTE L. PIERCE,

Plaintiffs C.A. No. N16C-07-077 FWW

v.

)
)
)
)
)
)
)
)
QUASHIA C. WILLIAMS, PATRICK )
W. ROBY, LEHANE’S BUS )
SERVICE, INC., a Delaware )
Corporation, JAN A. AGOSTO-OJEDA, )
DAMARY TODMAN, and LIBERTY )
MUTUAL INSURANCE COMPANY, )
)
)

Defendants.

Submitted: April 27, 2018
Decided: July 31, 2018

Upon Defendant Darnary Todman’s Motion to Dismiss
DENIED.

ORDER
Gary S. Nitsche, Esquire, and Katherine L. Hemming, Esquire, Weik, Nitsche, &
Dougherty, LLC, 305 N. Union Street, Second Floor, P.O. Box 2324, Wilmington,
DE 19899; Attorneys for Plaintiffs.
Michael K. DeSantis, Esquire, The LaW Offlce of Dawn L. Becker, 919 Market

Street, Suite 550, Wilmington, Delaware 198()1; Attorney for Defendant Damary
Todman.

WHARTON, J.

This 31St day of July, 2018, upon consideration of Defendant Damary
Todman’S Motion to Dismiss and Plaintiff`s’ response in opposition, it appears to the
Court that:

l. On October 2, 2015, Dorothy A. Pierce (“Pierce”) died as the result of
a six vehicle accident in Wilmington, Delaware.l

2. On July l2, 2016, Plaintiffs filed their Complaint against five
defendants2 On September 15, 2016, Plaintif`f`s filed their First Amended Complaint
(“FAC”), removing one defendant and adding Jan A. Agosto-Ojeda (“Agosto”) as
an additional defendant3 The FAC named all vehicle operators identified on the
Police Uniform Collision Report (“police report”) as defendants4 HoWever, for one
vehicle, a “disabled vehicle,” the police report did not contain any identifying
information because it Was removed from the scene prior to the State Police making
contact With the operator.5

3. Plaintiffs deposed Agosto on August 23, 2017.6 lt Was at that

deposition that Plaintiffs first learned that Agosto’s mother, Damary Todman

 

1 Pls.’ Resp. to the Mot. to Dismiss, D.l. 102 at il l.
2 Id. at 11 2.

3 Id.

4 Id.

5 Id.

6 ld. at 11 4.

(“Todman”), owned the “disabled vehicle” referenced in the police report.7

4. On December 14, 2017, a letter Was sent via certified mail to Todman
advising her that she Was being added as a defendant in this matter and enclosing a
copy of the Second Amended Complaint (“SAC”).8 On December 21, 2017, Todman
signed for the letter and complaint.9 A Stipulation and Order to Amend the
Complaint by adding two additional defendants Was entered on January 3, 2018.10
On January 8, 2018 Plaintiffs added Todman and Liberty Mutual Fire Insurance
Company as defendants in the SAC.11

4. Plaintiffs, as Pierce’s survivors, seek to recover from the named
Defendants on two claims for relief: (1) for their own mental and emotional anguish
over Ms. Pierce’s Wrongful death;12 and (2) for Pierce’s pain and suffering prior to
\ her death.13
5. On April 2, 2018, Todman filed her Motion to Dismiss.14 Todman first

asserts that the Plaintiffs’ claims are subject to a statute of limitations of two (2)

 

7 Ia'.

8 Id. at 11 5.

9 Id.

10 Id.

11 Ia'. Liberty Mutual Fire Insurance Company has not moved to dismiss.

12 See Pls.’ Second Amended Complaint, D.I. 85, 11129-30; see also 10 Del. C. §
3724.

13 Ia'. at 1111 29, 31; see also 10 Del. C. § 3704.

14 Def"S. Mot. to Dismiss, D.I. 94.

years from the date of the accident itself-_October 2, 2015.15 Therefore, because
the claims Were not asserted until January 8, 2018, Plaintiffs’ claims are time-barred
and must be dismissed.16 Furthermore, Todman contends that the SAC cannot relate
back to a previous complaint under Rule 15(c) of the Superior Court Rules of Civil
Procedure such that its filing would be deemed timely.17 Todman argues that she
neither received notice of the institution of the action within the original limitations
period, nor were Plaintiff` s mistaken as to her identity and/or involvement18
Todman concludes that because the SAC was filed after the two-year statute of
limitations and cannot relate back to an earlier complaint, Plaintiffs’ suit is time-
barred.19

6. Plaintiffs oppose Todman’s Motion to Dismiss, arguing that the SAC
satisfies the requirements of Rule 15(c).2° In particular Plaintiffs argue: (1) the
claims arise out of the same occurrence as the original pleading; (2) Todman was on

notice of the claim during the 120-day period for service under Rule 40); and (3) she

 

15 See, 10 Del. C. § 8107 (“No action to recover damages for wrongful

death. . .shall be brought after he expiration of 2 years from the accruing of the
cause of action”); 10 Del. C. §8119 (“No action for the recovery of damages upon
a claim for alleged personal injuries shall be brought after he expiration of 2 years
from the date upon which it is claimed that such alleged injuries were sustained”).
16 Def.’s Mot. to Dismiss, D.I. 94 at 113.

17 Id. at 1111 4-7.

18 Id.

19 Id.

20 Pls.’ Resp. to Mot. to Dismiss, D.I. 102 at 11 9.

4

knew or should have known that the action would have been brought against her.2l
Therefore, Plaintiffs contend, the SAC is not time-barred because it relates back to
the original complaint and this Court should deny the motion to dismiss.22
7. A motion to dismiss will not be granted if the “plaintiff may recover
under any reasonably conceivable set of circumstances susceptible of proof under
the complaint.”23 The Court’s review is limited to the well-pled allegations in the
complaint.24 ln ruling on a 12(b) motion, the Court “must draw all reasonable factual
inferences in favor of the party opposing the motion.”25 Dismissal is warranted
“only if it appears with reasonable certainty that the plaintiff could not prove any set
of facts that would entitle him to relief.”26
8. The dispositive issue is whether the Plaintiff s SAC meets all the
requirements of Rule 15(c)(3). Rule 15(c)(3) provides:
An amendment of a pleading relates back to the date
of the original pleading when (3) the amendment
changes the party or the naming of the party against Whom
a claim is asserted if [the claim or defense asserted in the
amended pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the
original pleading]... and, within the period provided by

statute or these Rules for service of the summons and
complaint, the party to be brought in by amendment (A)

 

21 Id.

22 Ia'.

23 Browne v. Robb, 583 A.2d 949, 950 (Dcl. 1990).
24 Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005).

25 [d.

26 ld.

has received such notice of the institution of the action that

the party will not be prejudiced in maintaining a defense

on the merits, and (B) knew or should have known that,

but for a mistake concerning the identity of the proper

party, the action would have been brought against the

party.27
Rulc 15(c)(3) requires three conditions to be met in order for an amended complaint
to relate back to a previous complaint: (1) the claim or defense asserted in the
amended pleading arose out of the same conduct, transaction or occurrence set forth
or attempted to be set forth in the original pleading; (2) within the period provided
by statute or the rules for service of the summons and complaint, the party to be
brought in by the amendment received such notice of the institution of the action
that the party will not be prejudiced in maintaining a defense on the merits; and (3)
within the period provided by statute or the rules for service of the summons and
complaint, the party to be brought in by the amendment knew or should have known
that but for a mistake concerning the identity of the party the suit would have been
brought against the party.28

10. There is no dispute that Plaintiffs’ claims against Todman arise out of

the same conduct, transaction, or occurrence set forth in the previous two

complaints.29

 

27 Super. Ct. Civ. R. 15(c)(3).
28 Id.
29 Def.’s Mot. to Dismiss, D.l. 94 at 11 5.

ll. The parties contest whether Todman received “such notice of the
institution of the action within the period provided for by statute or the rules for
service of the summons complaint.”30 Under Rule 15(c)(3), the “such notice”
requirement is not notice of the incident giving rise to the cause of action, but rather,
it is notice of the pending lawsuit itself.31 This notice can be either formal or
inforrnal: “service of process is not mandated, and [‘such notice’] may not even have
to be in writing.”32 Moreover, the party against whom the claim is filed must have

39 (G

received “such notice within the period set forth by statute or the Rules for service
of the summons and complaint.”33 Under Rule 15(c)(3) notice may be given after
termination of the limitations period, provided that notice occurs within the
additional 120-day period for service provided by Rule 4(j).34

12. Todman signed for a letter advising her she would be added as a
defendant and enclosing a copy of the amended complaint on December 21 , 2017.35

The statute of limitations expired on October 2, 2017.36 However, by signing for the

letter Todman received notice. This notice was received less than 120 days after the

 

30 Super. Ct. Civ. R. 15(c).

31 Concklin v. WKA Fairfax, LLC, 2016 WL 6875960 at *3 (Del. Super. Ct. Nov.
16, 2016) (citing Mergenthaler, Inc. v. Jejjferson, 332 A.2d 396, 397 (Del. 1975)).
32 Id.

33 Super. Ct. Civ. R. 15(c).

34 Walker v. Handler, 2010 WL 4703403 at *3 (Del. Super. Ct. Nov. 17, 2010).

33 Pls.’ Resp. to Mot. to Dismiss, D.I. 120 at 11 5.

36 Id.

statute of limitations expired. The second requirement of Rule 15(c)(3) is satisfied
because Todman received notice within the time period, the additional 120 days for
service authorized by Rule 4(j).

13. Todman does not dispute that she knew or should have known that the
action would have been brought against her. However, Todman argues that
Plaintiffs fail the third condition of Rule 15(c) because there was no “mistake”
concerning her identity and/or involvement in the suit.37 Rule 15 motions to amend
commonly involve mistakes with regard to the names of entities and successor
entities, however the scope of this rule is broader.38 Delaware's approach as to what
constitutes mistake under Rule 15(c) turns on plaintiffs' demonstration of intent to
sue the proper parties.39 For example, in both Cora'rey and Fraser v. G- Wilmington
Associates, L.P.,40 this Court found that a mistake existed where the plaintiffs
investigated the identities of event participants and it was clear that the plaintiffs
intended to sue all who were involved in the event. By contrast, in those Delaware
cases where the Court found no sufficient mistake, the plaintiffs knew the identities

of the putative defendants at the time they filed suit, yet the plaintiffs did not

 

37 Def. Mot. to Dismiss, D.I. 94 at 1111 6-7.

33 Cora'rey v. Doughly, 2017 WL 4676593 at *5 (Dcl. Super. Ct. Oct. ll, 2017)
(citing Boyce v. Blenheim at Bay Pointe, LLC, 2015 WL 1541939 (Dcl. Super.
April 1, 2015)).

39 Id. at *6.

40 2017 WL 365500 (Del. Super. Jan. 24, 2017).

8

demonstrate an intent to sue those parties until it was too late.41

14. Here, the police report listed six vehicles involved in the accident
causing Pierce’s death.42 Plaintiffs’ named all five vehicle operators listed on the
police report as defendants in the FAC, except for the operator of an unidentified
“disabled vehicle.”43 Plaintiffs undertook multiple depositions of fact-witnesses and
defendants in order to identify the owner of the disabled vehicle.44 Plaintiffs later
learned through the deposition of Agosto that his mother, Todman, owned that
vehicle.45 Much like Cordrey, Plaintiffs did not know the identity of the owner of
the disabled vehicle, undertook investigative efforts to ascertain the identity, and
demonstrated an intent to sue all who were involved in the accident.46 The Court
finds that Cordrey controls the result here. A mistake exists because Plaintiffs
demonstrated an intent to sue all of the proper parties.

15. Plaintiffs have satisfied the required conditions necessary under Rule
15(c): (1) the claims arose out of the same accident set forth in the original
complaint; (2) Todman was on notice of the claim during the 120-day period for

service under Rules 15(c) and 4(j); and (3) Todman knew or should have known that

 

41 Id.

42 Pls.’ Resp. to Mot. to Dismiss, D.I. 120 at 11 1.
43 Ia'.

44 ld. at 11 4.

45 Id.

46 Id. at 11 12.

but for a mistake concerning the identity of the party the suit would have been

brought against her. The SAC, therefore, relates back to the original timely

complaint and Plaintif`fs’ claims against Todman are not time-barred.
THEREFORE, Defendant Damary Todman’s Motion to Dismiss is

DENIED.

IT IS SO ORDERED.

/1

F/s"rris"W. Whai:ton, J.

10

