IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

LIBERTY INSURANCE CORPORATION, )
as subrogee of CLAIRE CHIANESE

and MARIA CASTILLO,
Plaintiff, C.A. No. N17C-01-047 MMJ
Vv. TRIAL BY JURY OF
TWELVE DEMANDED

SCHELL BROTHERS, LLC,
Defendant/Third-Party Plaintiff,

Vv.

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LIMA FRAMING, INC. and )
4x4 GENERAL CONTRACTORS, INC., _ )
Third-Party Defendants. )
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LIMA FRAMING, INC.,
Fourth Party-Plaintiff,

V.

C&C DRYWALL CONTRACTOR,
INC., SOUTHLAND INSULATORS OF
DELAWARE, LLC D/B/A DELMARVA
INSULATION, HEARTH & HOME
TECHNOLOGIES d/b/a FIRESIDE,
HEARTH & HOME, and ADVANCED
HOME SERVICES, INC.,

Fourth-Party Defendants.

Submitted: September 19, 2019
Decided: October 1, 2019

On Defendant/Third-Party Plaintiff Schell Brothers, LLC’s
Motion for Reargument
DENIED
ORDER

Wade A. Adams, III, Esq., (Argued), Chrissinger & Baumberger, Wilmington,
Delaware, Attorneys for Plaintiff

Roger D. Landon, Esq., (Argued), Murphy & Landon, Wilmington, Delaware,
Attorneys for Defendant/Third-Party Plaintiff

Joseph S. Naylor, Esq., Swartz Campbell LLC, Wilmington, Delaware,
Attorneys for Third-Party Defendant/Fourth-Party Plaintiff

Daniel A. Griffith, Esq., Whiteford Taylor & Preston LLC, Wilmington, Delaware,
Attorneys for Fourth-Party Defendant

JOHNSTON, J.

By Order dated August 7, 2019, the Court granted Liberty Insurance
Corporation’s Motion for Summary Judgment. The Court found that viewing the
record in the light most favorable to Defendant Schell Brothers, LLC, (“Schell”),
there were no genuine issues of material fact that would prevent summary
judgment.

Schell has moved for reargument. Schell contends that it should be able to
proceed to trial to enable the Fire Marshal’s opinion to be discredited through cross
examination.

The Fire Marshal determined that a chimney flue caused a malfunction! in

the chimney chase,” which resulted in “fire damage to the structure and contents.”3

 

' Fire Marshal Investigation at 1 (“Cause malfunction involving the exhaust pipe”).
* Id. (“Origin chimney chase”).
3 Id.
In his deposition, Schell’s designated corporate representative, Dan Matta, testified
that it was “pretty clear,” in his own opinion, that the flue had not been connected.*
Matta stated that he saw that the flue pipe was not connected when he went on a
walk-through with the Fire Marshal.> Matta further acknowledged that it was
Schell’s responsibility, pursuant to the contract, to deliver a home with a working,
properly connected fireplace.°

The Fire Marshal was not deposed. There exists no conflicting deposition
testimony or affidavit in opposition to the Fire Marshal’s opinion. Schell’s own
designated representative agrees that the disconnected flue caused of the fire.

Schell asserts in its Motion for Reargument that—even when the summary
judgment record evidence itself not controverted—counsel’s statement that an
expert’s opinion is susceptible to challenge through cross-examination is sufficient
to create a genuine issue of material fact defeating summary judgment.

In its motion, Schell cites Wooley v. Great Atlantic & Pacific Tea
Company,’ and Brennan v. Bauman & Sons Buses, Inc.’ This authority supports
Schell’s position that a jury may disregard testimony it does not find credible.

However, this rule is not applicable at the summary judgment stage. Nothing in

 

4 Matta Dep., E-File 63010822, at 84:10-85:4.

> Id.

° Td. at 92:8-93:11

7281 F.2d 78, 80 (3d Cir. 1960) (affirming the lower court’s denial of a motion for a new trial).
* 107 A.D.2d 654, 655 (N.Y.S.2d 1985) (finding plaintiff's motion for a new trial to be without
merit).
the record suggests that the Fire Marshal is incorrect. Further, nothing in the
record raises a question regarding the Fire Marshal’s credibility.

During oral argument, Schell cited one case discussing summary judgment.
Turner v. Association of Owners of Bethany Seaview Condominum,? was a
negligence action. The plaintiff was hired by the defendant, a homeowners
association, to trim some hedges. Plaintiff alleged that he set a ladder on a
boardwalk located in defendant’s common area. Plaintiff claimed that a loose
board in the boardwalk caused him to fall off his ladder, resulting in injuries. After
submitting medical expert testimony and an engineering report that concluded that
an unstable board could result in plaintiff's alleged fall, plaintiff filed a motion for
summary judgment, which the court denied.

The Court finds Turner distinguishable. Before the motion for summary
judgment was filed, the homeowners association had deposed witnesses who
controverted plaintiff's statements and evidence.'? These depositions included
accounts that the boardwalk was structurally sound, and that no one was aware of
or reported any issues. The homeowners association did not rely solely on

counsel’s stated expectation of the possibility of attacking the credibility of an

 

” 2013 WL 1861930 (Del. Super.).
'° Td. at *1-2.
expert witness whose statements were uncontroverted on the summary judgment
record.

The Court finds Schell’s argument unpersuasive. Under the circumstances
presented in this case, the expert opinion is not disputed by any record evidence.
In fact, Schell’s own witness supports the expert’s conclusions. In the absence of
any factual dispute based on record evidence, or any affidavit filed in opposition,
the mere possibility of a challenge to the credibility of an expert witness (who was
not deposed), cannot be sufficient to create a genuine issue of material fact
sufficient to defeat summary judgment.

The purpose of moving for reargument is to seek reconsideration of findings
of fact, conclusions of law, or judgment of law.''’ Reargument usually will be
denied unless the moving party demonstrates that the Court overlooked a precedent
or legal principle that would have a controlling effect, or that it has
misapprehended the law or the facts in a manner affecting the outcome of the
decision.'* “A motion for reargument should not be used merely to rehash the

arguments already decided by the court.”'? To the extent Schell asserted issues that

 

'! Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (Del. 1969).
2 Ferguson v. Vakili, 2005 WL 628026, at *1 (Del. Super.).
'° Id. (quoting Wilmington Trust Co. v. Nix, 2002 WL 356371 (Del.Super.).

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were not raised in the submissions in support of its motion, new arguments may
not be presented for the first time in a motion for reargument.°
The Court has reviewed and considered the parties’ written submissions and

arguments. The Court did not overlook a controlling precedent or legal principle,
or misapprehend the law or the facts in a manner affecting the outcome of the
decision.

THEREFORE, Defendant/Third-Party Plaintiff Schell Brothers, LLC’s
Motion for Reargument is hereby DENIED.

IT IS SO ORDERED.

 

The Monorabl e Mary M. Johnston

 

> Oliver v. Boston University, 2006 WL 4782232, at *3 (Del. Ch.).

6
