      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                IN AND FOR NEW CASTLE COUNTY

JAIME MARAVILLA-DIEGO              )
            Plaintiff,             )
                                   )
v.                                 )       C.A. No. N14C-03-135 PRW
                                   )
MBM CONSTRUCTION II, LLC, )
a Delaware limited liability       )
company; GENNA                     )
CONSTRUCTION, LLC, a               )
Delaware limited liability         )
company; SAEZ AND SON’S            )
LLC, a Delaware limited liability )
company,                           )
                  Defendants.      )
           And                     )
SAEZ AND SON’S LLC,                )
                  Defendant/ Third)
                  Party Plaintiff  )
                                   )
v.                                 )
                                   )
GENNA CONTRACTING, INC. )
                  Third Party      )
                  Defendant.

                          Submitted: April 23, 2015
                           Decided: July 21, 2015

                MEMORANDUM OPINION AND ORDER

     Upon Defendant Saez and Son’s LLC’s Motion for Summary Judgment
                               GRANTED.

Kyle Kemmer, Esquire, Shelsby & Leoni, Wilmington, Delaware, Attorney for
Plaintiff.
Mary E. Sherlock, Esquire, Weber Gallagher Simpson Stapleton Fires & Newby
LLP, Attorney for Defendant MBM Construction II, LLC.

Louis J. Rizzo, Esquire, Reger Rizzo & Darnall LLP, Attorney for
Defendant/Third Party Plaintiff Saez and Son’s LLC.

Gerald J. Hager, Esquire, Margolis Edelstein, Attorney for Third Party Defendant
Genna Contracting, Inc.

WALLACE, J.




                                       -2-
   I.      INTRODUCTION

        Plaintiff, Jaime Maravilla-Diego (“Maravilla-Diego”), suffered a work-place

injury while employed by Defendant, Saez & Son’s, LLC (“Saez & Son”). Saez &

Son did not carry workers’ compensation insurance. Under 19 Del. C. § 2374(e),

Maravilla-Diego therefore had a choice between two avenues of relief:

compensation under the workers’ compensation framework, or a claim for

damages at law.       Initially, Maravilla-Diego filed a Petition to Determine

Compensation Due with the Industrial Accident Board (“IAB”).               But he

subsequently withdrew that Petition and filed a negligence suit against Saez & Son

and other third parties. While the negligence claims were pending, Maravilla-

Diego again attempted to pursue compensation through a number of IAB filings.

Ultimately, the IAB found that his efforts were time-barred by the applicable

statute of limitations. Saez & Son now seeks summary judgment on the negligence

claims.    They say that the IAB’s final finding precludes Maravilla-Diego’s

negligence claim under the election of remedies doctrine. For the reasons set forth

below, the Court finds Maravilla-Diego elected a remedy under the workers’

compensation framework and is therefore barred from pursuing damages at law.

Saez & Son’s motion for summary judgment is GRANTED.




                                        -3-
    II.      FACTUAL AND PROCEDURAL BACKGROUND

          Maravilla-Diego was injured at work on March 21, 2012. He was installing

apartment siding and fell 40 feet to the ground from a bucket lift, sustaining

multiple injuries. He subsequently instituted proceedings both before the IAB and

this Court to recover for his injuries.

             A. IAB Proceedings

          Maravilla-Diego first filed a Petition to Determine Compensation Due

(“First Petition”) on January 29, 2013 before the IAB seeking compensation from

Saez & Son for his injuries. 1

          The IAB held a hearing on June 26, 2013 to determine the nature of the

employment relationship between Maravilla-Diego and Saez & Son. The Board

issued a written decision on July 10, 2013 finding that Maravilla-Diego was Saez

& Son’s employee, not an independent contractor.2 The Board also awarded

Maravilla-Diego attorney’s fees.

          In December, 2013, Maravilla-Diego inexplicably withdrew the First

Petition.3


1
      Petition to Determine Compensation Due to Injured Employee, Ex. A. to Def.’s Mot.
Summ. J.
2
          See Decision on Employment Relationship, Ex. B to Def.’s Mot. Summ. J.
3
     See Order, Ex. D to Def.’s Mot. Summ. J. at 1 (“Claimant filed a Petition to Determine
Compensation Due on January 29, 2013 and then withdrew it in December 2013.”).

                                               -4-
       Yet, beginning in early April, 2014, Maravilla-Diego resumed filing

applications before the IAB. He first requested that the IAB order Saez & Son to

post a $100,000 bond to cover certain medical expenses. The IAB denied that

request on April 15, 2014 because Maravilla-Diego had no Petition pending before

it at that time. 4 In its Order denying Maravilla-Diego’s bond request, the IAB

acknowledged that Saez & Son did not maintain workers’ compensation

insurance.5 The IAB further noted that Maravilla-Diego was past the two-year

statute of limitations on his workers’ compensation claim. 6

       Despite the IAB’s finding, on April 16, 2014, Maravilla-Diego filed a

Second Petition to Determine Compensation Due (“Second Petition”) for the same

injury. 7   On May 6, 2014, he also appealed the IAB’s decision denying the

requested bond order. 8 This Court has stayed that appeal indefinitely, pending the

resolution of this matter.9




4
       Order, Ex. C to Def.’s Mot. Summ. J. at 2.
5
       Id. at 1.
6
       Id. at 2.
7
      Petition to Determine Compensation Due to Injured Employee, Ex. F. to Def.’s Mot.
Summ. J.
8
       Notice of Appeal, Ex. I to Def.’s Mot. Summ. J.
9
       See Maravilla-Diego v. Saez & Son’s LLC, Del. Super., N14A-05-001, Silverman, J.
(Dec. 3, 2014) (ORDER) (D.I. 10; Trans. I.D. #56414337).

                                              -5-
       Saez & Son filed a motion to dismiss the Second Petition on the grounds that

it was filed outside of the 2-year statute of limitations for workers’ compensation

claims. 10 On July 14, 2014, the IAB granted that motion.11 In its decision, the

IAB rejected Maravilla-Diego’s argument that he had mistakenly withdrawn the

First Petition and denied his request to reinstate the First Petition. 12

       B. Maravilla-Diego’s Negligence Claims

       After withdrawing his First Petition, but before proceeding with his other

numerous workers’ compensation filings, Maravilla-Diego instituted this

negligence action on March 17, 2014 against his Saez & Son and other contractors,

including MBM Construction II, LLC (“MBM”), Genna Construction, LLC

(“Genna Construction”), and A.P. Croll & Son, Inc. (“A.P. Croll”).13

       Saez & Son now moves for summary judgment on Maravilla-Diego’s

negligence claims. They contend his pursuit of compensation under the Delaware

10
      DEL. CODE ANN. tit. 19, § 2361(a) (2015) (setting forth 2 years limitations period for
compensation claims).
11
       Order, Ex. D to Def.’s Mot. Summ. J. at 2.
12
       Id. at 2. It appears Maravilla-Diego may seek to revive that first Petition through the
bond request and its appeal.
13
        See Compl. (D.I. 1; Trans. I.D. #55159433). The caption has since been amended twice
to reflect the correct names for two defendants: MBM Construction II, LLC and Saez and Son’s,
LLC. See Stipulation & Order (D.I. 12; Trans. I.D. #55417145); Stipulation & Order (D.I. 43;
Trans. I.D. #55935935). A.P. Croll has since been voluntarily dismissed from this action.
Stipulation & Order (D.I. 52; Trans. I.D. #56422673). Saez & Son has also since filed a third
party complaint against Genna Contracting, Inc. (“Genna Contracting”). Third Party Compl.
(D.I. 74; Trans. I.D. #57092100).

                                             -6-
Workers Compensation Act bars his negligence claim under the election of

remedies doctrine.

     III.   STANDARD OF REVIEW

        Under Delaware Superior Court Rule 56, summary judgment may only be

granted where there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law.14 The party moving for summary judgment

bears the burden of making such showing; if it is successful, the burden shifts to

the non-moving party to show that there is a material fact in dispute. 15 If there is a

material fact in dispute, or if it seems desirable to inquire more thoroughly into the

facts in order to clarify the application of the law, summary judgment is

inappropriate.16 The Court views all facts and draws all reasonable inferences in

the light most favorable to the non-moving party. 17

     IV.    THE PARTIES’ CONTENTIONS

        Saez & Son argues it is entitled to judgment as a matter of law because

Maravilla-Diego’s negligence claim is barred because he elected a remedy under

the Delaware Workers’ Compensation Act (the “Act”). According to Saez & Son,


14
        Del. Super. Ct. Civ. R. 56(c); Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
15
        Brzoska, 668 A.2d at 1364.
16
        See Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962).
17
        See Merrill v. Crothall-American, Inc., 606 A.2d 96, 99-100 (Del. 1992).

                                               -7-
the moment of election occurred once Maravilla-Diego obtained a final decision on

the merits from the IAB that his Second Petition was time-barred. 18

          In response, Maravilla-Diego and MBM contend Maravilla-Diego’s

negligence claim is not barred by the election of remedies doctrine. They argue

that 19 Del. C. § 2374(e) permits an employee to initially pursue benefits under the

Act against an uninsured employer and then later decide to pursue damages at law

if there is no “viable” avenue of recovery under the Act. In their view, because

Maravilla-Diego did not recover—and, they believe, could not have recovered—

anything under the Act, he made no election and was therefore entitled to sue for

damages.       Maravilla-Diego posits that Saez & Son has no company-owned

property, assets, or cash available with which to post bond, so he had no viable

avenue of recovery under the Act.

     V.      DISCUSSION

          A. The Language of 19 Del. C. § 2374(e) Permits Recovery of Damages
             at Law Against an Uninsured Employer.

          Generally, the Act provides an employee the exclusive remedy for a work-

place injury against his or her employer. 19 But if an employer violates the Act’s


18
        In the alternative, Saez & Son contends the principles underlying res judicata, collateral
estoppel and/or judicial estoppel support its theory and apply in their own right. As the Court
finds summary judgment is warranted under the election of remedies doctrine, it does not reach
these alternative arguments.
19
     See, e.g., Grabowski v. Mangler, 938 A.2d 637, 641 (Del. 2007) (“Workers’
Compensation is the exclusive remedy against the employer, and, therefore, injured employees
                                               -8-
mandatory insurance coverage provisions, 20 the Act eliminates the employer’s

immunity from personal injury claims at law. 21 Title 19 of the Delaware Code,

section 2374(e) provides:

              (e) Whoever, being an employer, refuses or neglects to
              comply with the sections referred to in subsection (a) of
              this section on a continuing basis after notice by the
              Department of Labor shall be subject to a civil penalty:
              [. . . ]
              (3) The employer shall also be liable to the employer’s
              injured employees during continuance of such neglect or
              refusal, either for compensation under this chapter or in
              an action at law for damages. 22

Should an injured employee choose to pursue damages at law, the employer is

deprived of some of its common-law defenses, such as comparative fault and

assumption of the risk. 23

       It is undisputed that Saez & Son failed to maintain workers’ compensation

insurance here. This Court has previously determined in Lyon v. In Bocca Al

may not bring additional claims against the employer when the injuries arose from acts ‘arising
out of and in the course and scope of employment.’”) (citing DEL. CODE ANN. tit. 19, § 2304).
20
         See DEL. CODE ANN. tit. 19, § 2372 (2015) (requiring employers to carry liability
insurance); § 2374(a) (employers subject to the chapter’s application “[s]hall file with the
Department . . . annually . . . evidence of the employer’s compliance with §§ 2372 and 2373 of
this title and all other sections relating thereto”); § 2373 (relating to payments made by self-
insured employers).
21
       See id. § 2374(e).
22
       Id. § 2374(e) (emphasis added).
23
        Id. (“In such action, upon proof that the employer has not complied with this section, it
shall not be a defense that the: a. Employee was negligent; or b. Employee had assumed the risk
of the injury; or c. Injury was caused by the negligence of a fellow employee.”).

                                              -9-
Luppo Trattoria,24 that under § 2374(e) “the employee may opt for compensation

through the 19 Del. C. § 2301 et seq. framework, or may choose to pursue an

action at law where certain otherwise available defenses may not be raised.”25

Thus, Maravilla-Diego “had the option of pursuing a remedy at law for damages or

a claim for workers’ compensation relief.” 26

       B. Maravilla-Diego Elected a Remedy Under 19 Del. C. § 2374(e) by
          Obtaining a Final Judgment from the IAB that His Claim Was Time-
          Barred.

       Saez & Son raises the election of remedies doctrine as a defense.                 In

response, Maravilla-Diego claims he has not elected a remedy under either his

compensation or negligence claims because he has not yet recovered under either.

The Court must therefore decide, with this procedural history, if the negligence suit

must be dismissed because Maravilla-Diego elected a remedy rooted in

compensation under § 2374(e).

              1. The election of remedies doctrine.

       The doctrine of election of remedies arises where a claimant has two or more

inconsistent remedies available to redress a single right. 27 The claimant must

24
       2012 WL 4321204, at *2 (Del. Super. Ct. Sept. 18, 2012).
25
       Id. at *2 (interpreting § 2374(e)).
26
       Id.
27
      Sannini v. Casscells, 401 A.2d 927, 931 (Del. 1979); Scott v. City of Harrington, 1986
WL 4494, at *1 (Del. Ch. Apr. 14, 1986); O’Leary v. Telecom Res. Serv., LLC, 2011 WL
2992099, at *4 (Del. Super. Ct. July 25, 2011).
                                             -10-
“elect” to pursue one of them to the exclusion of the others and may not later

pursue the other inconsistent remedies. 28 The election of remedies doctrine applies

to § 2374(e) because the employee must choose between recovering compensation

under the Act or damages at law. 29

          A party elects a remedy when “he makes any decisive act, ‘with knowledge

of his rights and of the facts, indicating an intent to pursue one remedy rather than

the other.’” 30      There are limitations to this rule.         For instance, a party who

mistakenly pursues what is otherwise a legally unavailable avenue of relief does

not make the “type of decisive act that would trigger the election of remedies

preclusion.”31

28
          Scott, 1986 WL 4494, at *1 (quoting Stoltz Realty Co. v. Raphael, 458 A.2d 21, 23 (Del.
1983)).
29
       See DEL. CODE ANN. tit. 19, § 2374(e) (2015); see also Wagner v. Allied Chem. Corp.,
623 F. Supp. 1412, 1414-15 (D. Md. 1985) (common law and workers’ compensation actions
were coexisting remedies but inconsistent because the worker could recover only one of the
two); 6 ARTHUR LARSON & LEX K. LARSON, LARSON’S WORKERS’ COMPENSATION LAW
[hereinafter “LARSON’S”] § 102.03 (2013). Compensation is normally exclusive of an action at
law. DEL. CODE ANN. tit. 19, § 2304; Grabowski v. Mangler, 938 A.2d 637 (Del. 2007).
30
        O’Leary, 2011 WL 2992099, at *4 (defendants who failed to pursue action to recover
attorney’s fees and costs once case was dismissed in California pursuant to California procedure
were subsequently barred from claiming those fees and costs in the same action brought in
Delaware); see also Stoltz Realty, 458 A.2d 21, 23 (Del. 1983) (finding plaintiff “voluntarily
waived” its right to recover from defendants under a contract when it “elected the remedy of
arbitration against [defendant] and agreed to be bound by the outcome. . .”).
31
        Elysian Fed. Sav. Bank v. Sullivan, 1990 WL 20737, at *4 (Del. Ch. Mar. 2, 1990)
(finding no decisive act where party filed mortgage proceeding in Superior Court mistakenly
believing jurisdiction was proper there rather than in Chancery); 28A C.J.S. Election of Remedies
§ 27 (2015) (discussing “established exceptions as to the effect of ignorance or mistake in
making an election and of the fruitless pursuit of a remedy which is in fact unavailable”).

                                               -11-
       A “decisive act” is defined as prosecuting a claim to a final judgment or

decree—whether for or against the claimant.32 A valid and final personal judgment

is generally “one which reaches and determines the real or substantial grounds of

the action or defense as distinguished from matters of practice, procedure,

jurisdiction or form.” 33 If a court dismisses an action once the defendant has

demonstrated the plaintiff failed to show a right to relief, this dismissal “operates

as an adjudication upon the merits,” barring a subsequent suit on the same claim. 34

Dismissals grounded on the statute of limitations are therefore final adjudications

on the merits. 35


32
        Stoltz Realty, 458 A.2d at 23; Sannini, 401 A.2d at 931 (plaintiffs’ choice “to proceed in
equity to impress a constructive trust constituted an election of remedies, and the pursuit of that
choice to final judgment now precludes them from seeking damages”); Scott, 1986 WL 4494, at
*2; 28A C.J.S. Election of Remedies § 27 (“[A]n election is made only so long as the remedy
elected has been pursued to a viable final judgment”).
33
      Trans World Airlines, Inc. v. Hughes, 317 A.2d 114, 119 (Del. Ch. 1974), aff’d, 336 A.2d
572 (Del. 1975) (internal quotations and citations omitted).
34
        Id. (“Thus, a judgment in a prior action will not serve as a bar to a second suit ‘if the first
suit was dismissed for defect of pleadings, or parties, or a misconception of the form of
proceeding, or the want of jurisdiction, or was disposed of on any ground which did not go to the
merits of the action.’”). See also Del. Super. Ct. Civ. R. 41(b) (dismissals under this subsection
are adjudications on the merits except if dismissed for lack of jurisdiction, improper venue, or
failure to join a party under Rule 19); RESTATEMENT (SECOND) OF JUDGMENTS § 19 cmt. b
(2015).
35
        Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995) (citing Fed. R. Civ. P. 41(b))
(“The rules of finality, both statutory and judge made, treat a dismissal on statute-of-limitations
grounds the same way they treat a dismissal for failure to state a claim, for failure to prove
substantive liability, or for failure to prosecute: as a judgment on the merits.”); Atkinson v.
Middlesex Cnty., 2015 WL 1787167, at *2 (3d Cir. Apr. 21, 2015) (“After the statute of
limitations has run, an unconditional dismissal without prejudice is considered final.”);
Elkadrawy v. Vanguard Grp., Inc., 584 F.3d 169, 173 (3d Cir. 2009).

                                                -12-
       For an IAB decision or award to have “definitive effect” under the Act, “the

decision or award must have reached the final and conclusive stage as

contemplated by [19 Del. C. §] 2349.”36                Section 2349 provides that an IAB’s

award is not final and conclusive until the period for appeal has run. 37 An IAB

“award” is a “final determination.” 38 Once an award is unappealable, there is

“nothing for future determination or consideration” as to an award, and it is

deemed a “final judgment[] on the merits of the discreet controversies

adjudicated.”39      But only the IAB’s orders and decisions that determine a

substantial issue or a legal right are final and appealable.40 For example, if the IAB




36
       Hamilton v. Trivits, 340 A.2d 178, 181 (Del. Super. Ct. 1975).
37
        DEL. CODE ANN. tit. 19, § 2349 (2015) (“An award of the Board, in the absence of fraud,
shall be final and conclusive between the parties, except as provided in § 2347 of this title, unless
within 30 days of the day the notice of the award was mailed to the parties either party appeals to
the Superior Court for the county in which the injury occurred or, if the injury occurred out of
the State, to the Superior Court in and for the county in which the hearing was had.”); Hamilton,
340 A.2d at 180. Section 2347 permits Board review of previous awards under certain
circumstances. Id. § 2347.
38
       Eastburn v. Newark Sch. Dist., 324 A.2d 775, 776 (Del. 1974) (“The word ‘award’ must
be read as the final determination of the Board in the case.”).
39
       Blue Hen Lines, Inc. v. Turbitt, 787 A.2d 74, 78 (Del. 2001) (holding unappealed awards
may not be revisited or modified on remand, and, because there is nothing for future
determination or consideration regarding those awards, they are final judgments).
40
        See Liberty Mut. Ins. Co. v. Silva-Garcia, 2012 WL 4165653, at *3 (Del. Super. Ct. Sept.
5, 2012) (finding Board’s order pertaining to insurance coverage did not determine a substantial
issue or a legal right and was therefore interlocutory, not final).

                                               -13-
finds that a claimant fails to meet a burden of proof on his injury’s causal relation

to the defendant’s actions, that finding is deemed a “valid and final judgment.” 41

       Maravilla-Diego had a choice between two inconsistent remedies here:

either he could seek compensation under the Act’s framework, or he could seek

damages at law against Saez & Son. 42 As such, he may elect to pursue only one to

a final judgment. 43 Initially, Maravilla-Diego sought compensation against his

uninsured employer by filing a Petition with the IAB. He then withdrew that

Petition after the IAB issued a finding that he was indeed Saez & Son’s employee

and awarded him attorney’s fees. 44             His next series of actions muddies the

proceedings, as he then simultaneously pursued a negligence action in this Court, a

bond request before the IAB, a Second IAB Claim Petition, and an appeal to this

Court of the IAB’s denial of the bond request.

       But the Court need not decide whether any of these actions were

individually enough to elect a remedy. The Court first notes that there is only one

valid, final judgment here—the dismissal of his Second Petition. The IAB’s July


41
       Messick v. Star Enter., 655 A.2d 1209, 1212 (Del. 1995).
42
       § 2374(e).
43
       See Wagner v. Allied Chem. Corp., 623 F. Supp. 1412, 1414 (D. Md. 1985) (the pursuit
of a compensation claim to a final judgment constitutes an election of one of the two options).
44
        Maravilla-Diego argues whether he “intentional[ly] or inadvertent[ly]” withdrew his
original Petition “has no bearing on the viability of the instant action since there was clearly no
avenue of recovery of benefits for Plaintiff under the Act.” Pl.’s Resp. Br. at 5 n.12.

                                               -14-
14, 2014 order dismissing the Second Petition on statute of limitations grounds

determined that Plaintiff’s legal right to proceed with a compensation claim had

expired. Plaintiff has not appealed this dismissal, and there is therefore nothing

more for the IAB to determine with regard to the Second Petition. A dismissal on

those grounds therefore operates as a final judgment and an adjudication on the

merits of his workers’ compensation claim under that Second Petition.

       And, while the parties urge otherwise, because there is a clear resolution in

this case, the Court need not determine whether any of Maravilla-Diego’s other

IAB filings or actions are triggers for electing a remedy. Maravilla-Diego clearly

intended to bring his claims before the IAB, and he proceeded until he obtained a

final IAB judgment.        The Court now considers his argument that that final

judgment should not be construed as a “decisive act” constituting an election of a

remedy under § 2374(e).

              2. Maravilla-Diego Has Elected a Remedy Under § 2374(e)
                 Despite Failing to Recover Compensation Under the Act.

       Maravilla-Diego argues that, given the language of § 2374(e) and

interpretive case law, the Court should find a successful recovery is the moment of

election. Indeed, successfully prosecuting a claim for compensation will ordinarily

bar the pursuit of a subsequent tort action for the same injury. 45 In Lyon, the


45
       See Lyon v. In Bocca Al Luppo Trattoria, 2012 WL 4321204, at *2 (Del. Super. Ct. Sept.
18, 2012) (finding plaintiffs who filed IAB petition and received a settlement payment from
                                            -15-
plaintiffs received a settlement payment from the uninsured employer, who posted

bond to cover the claims. 46 The plaintiffs then sued the employer, alleging tort

claims. 47 This Court found that the “[p]laintiffs elected to pursue a remedy rooted

in workers’ compensation” and were “[a]ccordingly . . . barred from pursuing a

second recovery in the instant action.” 48

       Unlike Maravilla-Diego, the plaintiffs in Lyon did recover compensation.

But this Court did not hold that recovery was a necessary fact for preclusion. It

recited the facts existing in that case and simply held there that the plaintiffs were

precluded from pursuing a second recovery under § 2374(e). 49 Here, Maravilla-

Diego was unsuccessful in recovering compensation under the Act. Thus, the

Court is faced with a different situation than in Lyon.

       The question of whether an employee has elected a remedy against an

uninsured employer is worrisome when the employee chooses an unsuccessful

remedy initially. 50 Some courts have found that an unsuccessful compensation



uninsured employer had “elected to pursue a remedy rooted in workers’ compensation” and were
therefore “barred from pursuing a second recovery” in negligence against employer); see also 6
LARSON’S § 102.03.
46
       Lyon, 2012 WL 4321204, at *1.
47
       Id.
48
       Id. at *2 (emphasis added).
49
       Id.
50
       See 6 LARSON’S § 102.03[1] (“The most troublesome question that emerges from the
                                            -16-
claim does not bar a subsequent suit for damages.51 But courts have reached this

result when the plaintiff’s initial route was unsuccessful because he or she had no

choice between two existing inconsistent remedies. 52 Still other courts recognize

either the recovery of “something of value on a claim or [the pursuit of] an action

to final judgment” as an election. 53 The recognized underlying purpose is to

prevent the potential double recovery. 54




various situations in which an action at law may lie—or may be thought to lie—against the
employer is this: is the employee who pursues one remedy to a fruitless conclusion barred by his
or her election from pursuing the other?”).
51
        See id. (citing cases); see also Redifer v. Chester, 720 S.E.2d 66, 69 (Va. 2012) (“An
employee may pursue alternative relief simultaneously, and if the employee fails to collect under
the remedy he or she initially pursues to award, the employee may pursue the alternative remedy
in an effort to effect a recovery. However, the employee is entitled to only one recovery.”)
52
        See id. (“The correct theory. . . is that an election of a remedy which proves to be
nonexistent is no election at all.”); see also Patrick v. Highbaugh, 347 S.W.2d 88, 90 (Ky. 1961)
(“As appellant’s application for compensation benefits was already barred by limitations at the
very time it was asserted, neither he . . . nor his guardian. . . could be said to have possessed a
valid remedy under the Compensation Act.”); Ray v. Knights, 194 A.D.2d 131, 134 (N.Y. App.
Div. 1993) (workers’ compensation act did not apply and acceptance of benefits did not bar
subsequent damages claim).
53
      See, e.g., Brookman v. Henry Transp., 924 S.W.2d 286, 289 (Mo. Ct. App. 1996)
(emphasis added).
54
        In some instances, this is addressed instead by having one recovery offset the recovery
obtained via a different avenue. See, e.g.¸ Millison v. E.I. du Pont de Nemours & Co., 501 A.2d
505, 519 (N.J. 1985) (holding pursuit of compensation benefits does not preclude common-law
suit and “insurance carrier will be able to offset compensation benefits previously paid to the
extent that the civil damage award would serve as a double recovery”); Le Parc Cmty. As’n v.
Workers’ Comp. Appeals Bd., 2 Cal. Rptr. 3d 408, 418 (Cal. Ct. App. 2003) (interpreting statute
explicitly permitting cumulative remedies against uninsured employer in workers’ compensation
proceeding and in superior court: one compensation award or judgment will be credited against
the other).

                                               -17-
       The Court finds that resolution of one avenue of relief in a final judgment—

rather than successful recovery—is most consistent with the election of remedies

doctrine as it has been applied in Delaware. 55 Pursuing a claim that eventually

results in dismissal for being time-barred is in fact a valid election, although this is

a harsh result.56 Just so here.

       Viewing the facts in light most favorable to Maravilla-Diego, the non-

moving party, the Court finds that his pursuit of compensation through to a final

judgment from the IAB on his Second Petition constitutes an election of that

remedy.     There is no evidence in the record that Maravilla-Diego mistakenly

pursued what he believed to be an available remedy. Here, Maravilla-Diego did

have a legally viable option of recovering under the Act when he first commenced;

his complaint is that as a practical matter, actual recovery might have been difficult

under the Act. He candidly admits that he knew as he forged forward before the

IAB that Saez & Son might not be able to even post bond for lack of company-

owned assets. The fact that Saez & Son may lack assets to post bond may have

made     Maravilla-Diego’s       pursuit    of   a    compensation       award     against    it


55
       Stoltz Realty Co. v. Raphael, 458 A.2d 21, 23 (Del. 1983); Sannini v. Casscells, 401 A.2d
927, 931 (Del. 1979); Scott v. City of Harrington, 1986 WL 4494, at *1 (Del. Ch. Apr. 14, 1986);
O’Leary v. Telecom Res. Serv., LLC, 2011 WL 2992099, at *4 (Del. Super. Ct. July 25, 2011).
56
       See, e.g., Pryse Monument Co. v. Dist. Court of Kay Cnty., 595 P.2d 435, 437 (Okla.
1979) (plaintiff’s untimely compensation claim barred subsequent tort claim against uninsured
employer).

                                             -18-
disadvantageous, but that is not the inquiry.           Knowing pursuit of the less

advantageous of the two remedies to the point of dismissal for being time-barred is

still a valid election of a remedy.

      Moreover, the IAB noted in its April 15, 2014 bond request denial order that

the statute of limitations for filing claim petitions had passed at that point. Yet,

Maravilla-Diego proceeded to file a Second Petition anyway. Even viewing the

facts in his favor, the Court cannot find any record evidence that Maravilla-Diego

was unaware of the facts and circumstances informing his decision to pursue

workers’ compensation benefits to judgment. Thus, Maravilla-Diego has obtained

a final judgment on his compensation claim—a decisive act evidencing his intent

to pursue workers’ compensation as a remedy.

      Maravilla-Diego suggests that because the purpose of the Act is to promote

injured employees’ recovery of compensation, a finding that he made an election in

the absence of recovery—or, in his view, even a potential recovery—would

frustrate the Act’s purpose. The Delaware Supreme Court has held that among the

goals of workers’ compensation is “to give an employee . . . a prompt and sure

means of receiving compensation and medical care without subjecting him[ ] to the

hazards and delays of a law suit.” 57         And where an employer purposefully

manipulates the system so that an injured worker is left with no recourse following

57
      Campos v. Daisy Constr. Co., 107 A.3d 570, 580 (Del. 2014).

                                          -19-
a workplace injury, the Court has found this to be contrary to the Act’s purpose.58

But that is not so here.

       Maravilla-Diego chose his remedy knowing from the outset the relative

advantages and disadvantages. 59 He then, through numerous proceedings, pursued

it to a final judgment. Even still, he will not be left without recourse should his

claim at law against his employer be dismissed—he has sued third parties at law,

and his appeal of the IAB bond denial remains pending.60 Most importantly, if

Maravilla-Diego is left with no way to recover workers’ compensation benefits

here, it is not the result of Saez & Son’s actions or inactions. Maravilla-Diego had

a choice between remedies and pursued one—workers’ compensation through the

IAB—to a final judgment. He may not now pursue the inconsistent remedy at law.

     VI.   CONCLUSION

       The Court finds that Maravilla-Diego, under the unique facts presented here,

had elected a remedy by pursuing workers’ compensation benefits to a final

judgment. His action at law against Saez & Son must be DISMISSED as barred



58
       Id. (“When [plaintiff] received benefits under the Act, he gave up his right to sue
[defendant] in tort for permanently disabling him. If we were to now find that [defendant] could
terminate his benefits without making a proper demonstration of job availability as required by
§ 2325, we would leave [plaintiff] with no recourse following his disabling workplace injury.”).
59
        See Petition to Determine Compensation Due to Injured Employee, Apr. 16, 2014, Ex. F
to Def.’s Mot. Summ. J. (listing “Uninsured” in the Insurance Carrier field).
60
       This appears to be an attempt to revitalize and continue with his First Petition.

                                               -20-
by the election of remedies doctrine.   Saez & Son’s Motion for Summary

Judgment is therefore GRANTED.

      IT IS SO ORDERED.

                                   /s/ Paul R. Wallace
                                   PAUL R. WALLACE, JUDGE



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