      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                   IN AND FOR NEW CASTLE COUNTY

LYNN SMAIL and                   )
GEORGE SMAIL, h/w,               )        C.A. No. 09C-06-053 RRC
                                 )
                    Plaintiffs,  )
       v.                        )
                                 )
FELIX E. RIVERA, as employee,    )
 agent or representative of TITO )
VITERI TRUCKING CORP. and/or )
TITO VITERI TRUCKING, INC., a )
New Jersey corporation, TITO     )
VITERI TRUCKING CORP., a New )
Jersey corporation, TITO VITERI  )
TRUCKING, INC., a New Jersey     )
corporation,                     )
                                 )
                    Defendants.  )

                          Submitted: May 30, 2014
                          Decided: August 27, 2014

    Upon Defendants’ Motion for Reconsideration of Commissioner’s Order.
                                 DENIED.

                                   ORDER

Jonathan Layton, Esquire, Layton and Associates, P.A., Wilmington, Delaware,
Attorney for Plaintiffs.

Kimberly Meany, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin,
Wilmington, Delaware, Attorney for Defendants.

COOCH, R.J.
    This 27th day of August 2014, upon consideration of Defendants’ Motion for
Reconsideration of Commissioner’s Order as to Defendants’ Motion for
Satisfaction of Judgment, it appears to the Court that:

    1. On June 5, 2009, Lynn and George Smail (hereinafter “Plaintiffs”) filed a
       Complaint seeking to recover for damages from a motor vehicle accident,
       which occurred on June 6, 2007. 1 The Defendants (hereinafter collectively
       referred to as “Defendants”) failed to respond to the Complaint and
       Plaintiffs’ Motion for Default Judgment was granted on January 10, 2010.2
       An Inquisition Hearing to determine Plaintiffs’ damages was also ordered. 3
       In the interim between the Default Judgment and the Inquisition Hearing,
       Defendants’ insurer, Allstate Insurance Company (“Allstate”), attempted to
       settle the case for $15,000. That offer was rejected. 4

    2. At the Inquisition Hearing held on January 10, 2011, the Commissioner
       awarded Plaintiffs special damages in the amount of $22,624 and general
       damages of $35,000, for a total of $47,624. 5 On October 9, 2013, Allstate
       issued a check (no. 165148209) to Plaintiffs for $15,000, which the
       Plaintiffs rejected as payment and returned to Defendants’ counsel. 6
       Thereafter, Defendants requested the Court partially satisfy the judgment in
       the amount of $15,000. 7 The Commissioner denied that motion in a hearing
       on March 7, 2014, stating that Defendants failed to provide any basis for the
       Court to require Plaintiffs to accept the partial payment in response to
       Plaintiffs “very valid reasons” for rejecting the payment in accordance with
       their legal strategy. 8

    3. Review of the Commissioner’s decision is governed by Superior Court Rule
       of Civil Procedure 132 (a)(3)(iv).9 The present Motion for Reconsideration

1
  Defs.’ Mot. for Reconsideration of Commr.’s Or. at 1.
2
  Pls.’ Response at 2.
3
  Id.
4
  Id.
5
  Id. at 2-3.
6
  Defs.’ Mot. for Reconsideration of Commr.’s Or. at 1; Pls.’ Response at 3.
7
  Defs.’ Mot. for Reconsideration of Commr.’s Or. at 2.
8
  Ex. B to Defs.’ Mot. for Reconsideration of Commr.’s Or. at 10. Plaintiffs stated at the hearing they intend to
transfer their judgment to New Jersey and were concerned acceptance of a partial payment would allow Defendants
to later argue accord and satisfaction. Id. at 6.
9
  “A judge may reconsider any hearing or pretrial matter under subparagraph (3) only where it has been shown on
the record that the Commissioner's order is based upon findings of fact that are clearly erroneous, or is contrary to
law, or is an abuse of discretion.” Super. Ct. Crim. R. 132 (a)(3)(iv).



                                                          2
         of Commissioner’s Order asks the Court to reverse the Commissioner’s
         decision as “clearly erroneous.”10 Defendants argue Plaintiffs are not entitled
         to seek payment of the entire judgment plus interest in New Jersey when
         Defendants have offered a partial payment. 11 Defendants contend that the
         judgment must be reduced by the $15,000 attempted partial payment
         pursuant to 10 Del. C. § 4751. 12

     4. Plaintiffs argue that Defendants’ attempted partial payment is actually a
        further attempt to settle the matter. 13 Plaintiffs take the position that 10 Del.
        C. § 4751 does not require them to accept partial payment and they will
        continue to pursue execution on the full amount in the state of New Jersey
        and notify the Court when Defendants have satisfied the judgment in full. 14

     5. There is also some dispute as to how much Allstate is required to pay under
        its policy. Plaintiffs assert there is a $1,000,000 policy in effect while
        Defendants maintain Allstate need only play $15,000 per “policy limits.” 15
        Defendants explain the $15,000 figure in their Reply Brief, citing
        noncooperation of Defendants. 16

     6. Despite the Commissioner’s comments during the hearing that the Court
        failed to see “any basis for the Court to require the [P]laintiffs to accept the
        partial payment that has been tendered,” 17Defendants again cite no case law
        supporting their proposition that Plaintiffs’ judgment must be reduced.
        Instead, Defendants rely on 10 Del. C. §4751.18 The statute reads, in its
        entirety:


10
   Defs.’ Mot. for Reconsideration of Commr.’s Or. at 2.
11
   Id.
12
   Id.
13
   Pls.’ Response at 3.
14
   Id. at 3-4.
15
   Defs.’ Mot. for Reconsideration of Commr.’s Or. at 2; Pls.’ Response at 3.
16
   Defs.’ Reply at 1. Defendants cite Harris v. Prudential Property and Cas. Ins. Co., 632 A.2d 1380 (1993) when
taking the position that they are not required to pay above the statutory minimum. A reading of the case, however,
seems to only allow the use of a defense of noncooperation for claims above that minimum. Id. at 1383 (“[W]e find
no public policy violation in allowing an insurer to raise an insured's noncooperation as a defense to liability for
coverage above the statutory minimum.”). Defendants briefly mentioned the noncooperation argument at the March
7, 2013 hearing and submitted the Harris decision to the Commissioner. Ex. B to Defs.’ Mot. for Reconsideration of
Commr.’s Or. at 4 (“It’s our position that there was failure to cooperate and the policy is the $15,000.”). Allstate has
retained separate counsel, not party to this motion, to deal with coverage issues. Due to that separate representation
and Defendants’ failure to discuss it in their original motion, this Court declines to address that issue.
17
   Ex. B. to Defs.’ Mot. for Reconsideration of Commr.’s Or. at 10.
18
   In their Reply, Defendants also cite 10 Del. C. §4733 (a), which deals with judgments entered at special directions
of a state judge. This Court likewise finds this statute unpersuasive to their argument.

                                                           3
                  (a) Every person to whom a sum is due by judgment, who receives
                  satisfaction of the same, shall forthwith cause such satisfaction to be
                  entered upon the record of the judgment.

                  (b) Whoever being the holder of a judgment wilfully fails to satisfy a
                  judgment upon the record as required by subsection (a) of this section,
                  shall be fined not more than $500 for each such failure.

                  (c) The Superior Court shall have jurisdiction of offenses under this
                  section. 19

      7. This Court fails to see how the language of 10 Del. C. §4751 requires the
         Plaintiffs to accept Defendants’ partial payment when they intend to pursue
         the full amount in New Jersey. Defendants offer the Court no support to
         their argument other than the bald assertion that the Commissioner’s
         decision is “clearly erroneous,” a rehash of the arguments considered at the
         hearing, and a recitation of the statute. This Court is not going to, sua
         sponte, do Defendants’ research for them and supply supporting case law. 20

      8. None of the arguments presented by Defendants in their Motion for
         Reconsideration of Commissioner’s Order warrant the order to be reversed
         because it was “clearly erroneous.”

   Therefore, for the foregoing reasons, Defendants’ Motion for Reconsideration
of Commissioner’s Order is hereby DENIED.

IT IS SO ORDERED.

                                                                              ______________________
                                                                              Richard R. Cooch, R.J.

oc:      Prothonotary


19
   10 Del. C. §4751.
20
   See Gonzalez v. Caraballo, , 2008 WL 4902686 (Del. Super. Nov. 12, 2008) (“Courts throughout the country hold
that they are not obligated to do ‘counsel's work for him or her.’… [I]n all but the simplest motions, counsel is
required to develop a reasoned argument supported by pertinent authorities.”) (footnotes omitted). See also Flamer
v. State, 953 A.2d 130, 134-35 (Del. 2008) (“In order to develop a legal argument effectively, the Opening Brief
must marshall the relevant facts and establish reversible error by demonstrating why the action at trial was contrary
to either controlling precedent or persuasive decisional authority from other jurisdictions. The failure to cite any
authority in support of a legal argument constitutes a waiver of the issue on appeal.”) (footnotes omitted).



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