    IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

REGINALD MARTIN,               )
                               )
     Plaintiff,                )
                               )
           v.                  )      C.A. No. N15C-08-059 CLS
                               )      CONSOLIDATED
                               )
SPOSATO LANDSCAPE              )
COMPANY, INC., SPOSATO         )
INVESTMENT LLC, JEREMY A.      )
BAKER, and SAMUEL F. TULL,     )
                               )
     Defendants.               )
______________________________ )
CAPITOL CLEANERS &             )
LAUNDERERS, INC., and          )
PENINSULA INDEMNITY            )
COMPANY, a/s/o/ REGINALD       )
MARTIN,                        )
                               )
     Plaintiffs,               )
            v.                 )
                               )
SAMUEL F. TULL, STATE FARM )
MUTUAL AUTOMOBILE              )
INSURANCE COMPANY, JEREMY )
A. BAKER, SPOSATO              )
LANDSCAPE COMPANY, INC.,       )
SPOSATO INVESTMENT LLC, and )
THE CINCINNATI INSURANCE       )
COMPANY,                       )
     Defendants.

                   Submitted: November 15, 2017
                    Decided: February 22, 2018

                 On Defendants’ Motion to Dismiss.
                           DENIED.
      Defendants Jeremy A. Baker, Sposato Landscape Company, Inc., and

Cincinnati Insurance Company (“Defendants”) moved to dismiss the Complaint

pursuant to Superior Court Civil Rule 12(b)(6). Defendants State Farm and Samuel

F. Tull joined the Motion. For the following reasons, Defendants’ Motion to Dismiss

is DENIED.

                                   Background

      On September 10, 2013, Plaintiff Reginald Martin (“Plaintiff Martin”) was a

passenger in a vehicle while in the course and scope of his employment with Plaintiff

Capitol Cleaners & Launderers, Inc. (“Plaintiff Capitol”). Plaintiff Peninsula

Indemnity Company (“Plaintiff Peninsula”) is the workman’s compensation

insurance for Plaintiff Capitol. Plaintiff Martin’s vehicle was struck by both

Defendant Jeremy A. Baker (“Defendant Baker”), who was operating a vehicle

while in the course and scope of employment with Defendant Sposato Landscape

Company, Inc. (“Defendant Sposato”), and a vehicle owned by Defendant Samuel

F. Tull (“Defendant Tull”). Defendant Cincinnati Insurance Company (“Defendant

Cincinnati”) is the liability carrier for Defendant Baker’s vehicle, and Defendant

State Farm Mutual Automobile Insurance Company (“Defendant State Farm”) is the

liability insurance company for the vehicle driven by Defendant Tull. Plaintiff

Reginald Martin filed a third party liability personal injury suit against Defendants



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Baker, Tull, and Sposato. That case was subsequently consolidated with this case

initiated by Plaintiffs Capitol and Peninsula.

      Defendants filed a Motion to Dismiss on the basis that 10 Del. C. § 2363(a)

does not permit an action by both the individual, here Plaintiff Reginald Martin, and

the employer and compensation carrier. Plaintiffs Capitol and Peninsula filed a

Response. In their Response Plaintiffs argue that Defendants’ argument lacks

support from both the plain reading of the statute and Delaware case law.

Additionally, Plaintiffs Capitol and Peninsula agree that Plaintiffs’ remedies are

specifically limited to 10 Del. C. § 2363(e) and the Plaintiffs’ subrogated rights of

recovery are limited to the third-party liability insurers, but Plaintiffs disagree with

Defendants’ contention that the employer and insurance carrier are inappropriate

parties to the action. Plaintiff Reginald Martin did not participate in briefing.


                                      Discussion

Pertinent to this action, 19 Del. C. § 2363(a) states:

      Where the injury for which compensation is payable under this chapter
      was caused under circumstances creating a legal liability in some
      person other than a natural person in the same employ or the employer
      to pay damages in respect thereof, the acceptance of compensation
      benefits or the taking of proceedings to enforce compensation payments
      shall not act as an election of remedies, but such injured employee or
      the employee's dependents or their personal representative may also
      proceed to enforce the liability of such third party for damages in
      accordance with this section. If the injured employee or the employee's
      dependents or personal representative does not commence such action
      within 260 days after the occurrence of the personal injury, then the
                                           3
      employer or its compensation insurance carrier may, within the period
      of time for the commencement of actions prescribed by statute, enforce
      the liability of such other person in the name of that person . . . Any
      party in interest shall have a right to join in said suit.1


Defendants’ argument is that this section of the statute prohibits the employer,

insurance carrier, and the employee who were injured from suing the third party.

However, 10 Del. C. §§ 2363(b) and (c) states:

      (b) Prior to the entry of judgment, either the employer or the employer's
      insurance carrier or the employee or the employee's personal
      representative may settle their claims as their interest shall appear and
      may execute releases therefor.

      (c) Such settlement and release by the employee shall not be a bar to
      action by the employer or its compensation insurance carrier to proceed
      against said third party for any interest or claim it might have, and such
      settlement and release by the employer or its compensation insurance
      carrier shall not be a bar to action by the employee to proceed against
      said third party for any interest or claim the employee may have.



      The test for sufficiency of a complaint challenged by a Rule 12(b)(6) motion

to dismiss is whether a plaintiff may recover under any reasonably conceivable set

of circumstances susceptible of proof under the complaint. 2           In making its

determination, the Court must accept all well-pleaded allegations in the complaint



1
 10 Del. C. § 2363(a)(emphasis added).
2
 Spence v. Funk, 396 A.2d 967, 968 (1978); see Cambium Ltd. v. Trilantic Capital
Partners III L.P., 2012 WL 172844, at *1 (Del. Jan. 20, 2012) (citing Cent. Mortg.
Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 537 (Del. 2011)).
                                       4
as true and draw all reasonable factual inferences in favor of the non-moving party.3

The complaint must be without merit as a matter of fact or law to be dismissed. 4

Therefore, if the plaintiff can recover under any conceivable set of circumstances

susceptible of proof under the complaint, the motion to dismiss will not be granted.5

A plain reading of the statute, as a whole, does not follow Defendants’ argument. 10

Del. C. § 2363(a) states: Any party in interest shall have a right to join in said suit.

Additionally, Plaintiffs agree that any recovery is limited to the third-party liability

insurers involved in this action, but the that Defendants Sposato, Baker, and Tull are

parties in interest and their participation in the law suit may be necessary if Plaintiffs

must pursue their rights after resolution of the third-party personal injury suit. Since

the two cases have been consolidated, and the Plaintiffs agree with Defendants on

the limitation of remedies, the Court believes that a Motion to Dismiss is not proper

as the Court can proceed with the two suits at this time. Defendants’ Motion to

Dismiss is hereby DENIED.

      IT IS SO ORDERED.
                                            /s/ Calvin L. Scott
                                            The Honorable Calvin L. Scott, Jr.




3
  Ramunno v. Cawley, 705 A.2d 1029, 1034-36 (Del.1998); Nix v. Sawyer, 466 A.2d
407, 410 (Del.Super.Ct.1983).
4
  Diamond State Tel. Co. v. University of Delaware, 269 A.2d 52 (Del.1970).
5
  Ramunno, 705 A.2d at 1034; see Cambium, 2012 WL 172844, at *1 (citing Cent.
Mortg., 27 A.3d at 537).
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