SUPER|OR COURT
oF THE

STATE OF DELAWARE

VlleN L. MEDINILLA LEONARD L. WlLLlAMS JuSTlcE CENTER
JuDGE 500 NoRTH KlNG STREET, SulTE 10400

WlLMlNGToN, DE 19801-3733

TELEPHONE (302) 255-0626

October 25, 2018

Joel H. Fredricks, Esquire Theodore J. Segletes, III, Esquire
Weik, Nitsche, & Dougherty, LLC LaW Offices of Chrissinger &
305 N. Union Street, Second Floor Baumberger

P.O. BoX 2324 3 Mill Road, Suite 301
Wilmington, Delaware 19899 Wilmington, Delaware 19806

Re: Burtran K. Marshall and Senithia Thomas v. Brittany A. Payne
Case No.: N16C-12-197 VLM

Dear Counsel:

This is the Court’s ruling on Defendant’s Motion to Amend Answer to Plaintiffs’
Complaint. For the reasons stated below, the Defendant’s Motion is DENIED.

Proceduml and Facmr:l Background

The allegations in the Complaint arise from a motor vehicle accident that
occurred on September 5, 2015, Where Defendant’s vehicle struck the vehicle that
Burtran K. Marshall (“Plaintiff Marshall”) Was driving and Wherein Senithia
Thomas (“Plaintiff Thomas”) Was a passenger.] Plaintiffs allege Defendant Was
negligent When she disregarded a red light and struck Plaintiffs’ vehicle.2 Plaintiffs
allege they have suffered personal injuries, pain and suffering, and medical
expenses3

On December l4th, 2016, Plaintiffs Burtran K. Marshall and Senithia Thornas

 

' Compl.1l1l4-5.
21¢11.115.
3 Id. 11 8.

(“Plaintiffs”) filed a complaint against Brittany A. Payne (“Defendan'c”).4 On March
16, 2017, Defendant filed an AnsWer to the Complaint.5 On August 4, 2017,
Defendant filed AnsWers to Plaintiffs’ Interrogatories.6 Plaintiff Thomas Was
deposed on September 15, 2017 and Plaintiff Burtran Was deposed on June 29,
2018.7 On November 21, 2017, Defendant Was scheduled to be deposed but did not
appear.8 In the Trial Scheduling Order dated February 12, 2018, a deadline to amend
the pleadings Was not included because Defendant stated that the deadline Was not
necessary for the defense.9

On July 16, 2018, Defendant filed its Motion to Amend AnsWer to Plaintiffs’
Complaint.'O On August l, 2018, Plaintiffs filed an Opposition to Defendant’s
Motion.ll Defendant seeks to amend the AnsWer to include a counterclaim against
Plaintiff Marshall for his negligence and “to assert specific affirmative defenses
related to Mr. Marshall’s negligence and Plaintiffs’ failure to join an indispensable
party.”12 Defendant argued in its Motion that under Delaware Superior Court Civil
Rule 15(a), the Court should grant its Motion to Amend AnsWer to Plaintiffs’
Complaint because justice so requires.13

Plaintiffs argue that Where Defendant failed to plead an affirmative defense in
its first responsive pleading, and does not fall Within one of the two exceptions under
Superior Court Civil Rule 8(c), Defendant has Waived the defense14 In the
alternative, Plaintiffs argued that even if Defendant did fall Within one of the two
recognized exceptions under Rule 8(c), Defendant fails to satisfy the prejudice prong
under Rule 15(c).‘5

Oral arguments Were heard on August 14, 2018 and the Court reserved its
decision and requested supplemental briefing on the issue of how granting leave to
amend Would prejudice passenger Plaintiff Thomas. Defendant filed supplemental
briefing on August 24, 2018. Plaintiffs filed their response on August 30, 2018.

 

4 See generally Compl.

5 Pls.’ Resp.11 1.

6 1a 11 3.

7 Ia'. 11 5; Def.’s Mot.11 7.

8 Pls.’ Resp.11 5.

9 Ia'. 11 4 (citing Ex. D).

10 See generally Def.’s Mot.
" See generally Pls.’ Resp.
12 Def.’s Mot.11 8.

'3 See generally ia’.

14 Pls.’ Resp.11 7.

'51¢1. 11 8.

Defendant argues in its supplemental briefing that passenger Plaintiff Thomas
Would not be prejudiced by the Amendment because any claim Plaintiff Thomas
Would have against Plaintiff Marshall Would relate back to the original Complaint.16
Plaintiffs disagrees and argues that prejudice is established Where the passed statute
of limitations precludes Plaintiff Thomas from making a direct claim against
Plaintiff Marshall.17 This Court agrees.

Standard 0 Re view

Rule l5(a) allows a party to amend its pleading “only by leave of court or by
Written consent of the adverse party.”18 Further, leave of court “shall be freely given
When justice so requires.”19 Although freely given, “justice may not require that
leave to amend be freely given if the party seeking to amend has been inexcusably
careless, or if the amendment Would unfairly prejudice an opposing party.”20
Prejudice, “is to be tested by the terms of Rule 15(c) and leave to amend Which
Would otherwise be freely given Will be given With relation back consequences if the
requirements of Rule 15(c) are met.”21

Discussion

First, this Court finds that Defendant fails to satisfy the exception under Superior
Court Civil Rule 8(c). This rule mandates that a party shall assert any affirmative
defenses including contributory negligence22 If a defendant does not plead an
affirmative defense in its first responsive pleading, then the affirmative defense is
Waived.23

There are two recognized exceptions to this general rule.24 First, there is an
exception “Where it is impossible to determine issues of the defendant’s negligence

 

16 Def.’s Suppl. Br. at 2.

17 Pls.’ Suppl. Br. at 1-2.

18 DEL. SUPER. CT. CIV. R. 15(a).

19 lai

20 Hess v. Carmz'ne, 396 A.2d 173, 176 (Del. Super. 1978) (citing Annone v. Kawasaki Motor
Corp., 316 A.2d 209, 211 (Del. 1974)).

21 Ia'. (citing Annone, 316 A.2d at 211).

22 DEL. SUPER. CT. Clv. R. 8(c).

23 Schwartzkopkfv. Esham, 2003 WL 22853531, at *l (Del. Super. July l, 2003) (citing Jarnes v.
Glazer, 570 A.2d 1150, 1153 (Del. 1990); Cannelongo v. Fl`a'elily A`rnerica, 540 A.2d 434, 440
(Del. 1888); City of Wilmington v. Spencer, 391 A.2d 199 (Del. Super. July 25, 1978)).

24 Ia'. (citing James, 570 A.2d at 1153-54).

and proximate cause without considering the actions of the plaintiff[.]”25 The second
exception occurs “if evidence of an unpled affirmative defense is admitted without

objection.”26

This Court agrees that neither exception to Rule 8(c) applies in this case. The
first exception is inapplicable as to Plaintiff Thomas. Since she was a passenger in
Plaintiff Marshall’s vehicle, her actions have nothing to do with the issue of
Defendant’s negligence or proximate cause. Second, the affirmative defense of
comparative negligence is not admitted without objection, so the second exception
is also inapplicable Where Defendant cannot demonstrate why either exception is
applicable, this Court finds that Defendant’s Motion to Amend is waived as untimely
as the affirmative defense was not raised in her initial responsive pleading.

Next in assessing the prejudice to Plaintiff Thomas if this Court allowed for an
amendment, under Rule 15(c), an amendment to a pleading may relate back to the
original pleading if certain conditions are met.27 In order to determine if an
amendment to add a party relates back under Rule 15(c), the Court utilizes a four-
part test.28 This analysis includes that “(1) the basic claim arose out of the conduct
set forth in the original pleading; (2) the party to be brought in must have received
such notice that the party will not be prejudiced in maintaining its defense; (3) the
party to be brought in must know, or should have known but for a mistake
concerning the identity of the proper party, the action would have been brought
against it; and (4) the second and third requirements must have been fulfilled within
the prescribed limitations period.”29 The limitations period is a two year and 120-
day period.30

In addition to the untimeliness of Defendant’s Motion to Amend Answer, this
Court finds that Defendant’s proposed amendment would prejudice PlaintiffThomas
because the statute of limitations has passed. This Court agrees with Plaintiffs that
a direct claim cannot be brought by Plaintiff Thomas against Plaintiff Marshall
because it is outside of the two year and 120-day limitation period. Also, she would
be prejudiced if Defendant were able to amend her answer to include a counterclaim

 

25 Schwarrzkoplg‘, 2003 WL 22853531, at *1 (citing James, 570 A.2d at 1153-54).
26 Icl. (citing James, 570 A.2d at 1153-54).

27 DEL. SUPER. CT. Clv. R. 15(c).

28 Cordrey v. Doughzy, 2017 WL 4676593, at *3 (Del. super oct. 11, 2017) (citing Marm v.
Gopez, 1993 WL 138997, at *2 (Del. Super. Mar. 31, 1993)).

29 Id. (citing Marro, 1993 WL 138997, at *2).

30 Reese v. Hollingsworth, 2013 WL 5788657, at *3 (Del. Super. Oct. 17, 2013) (citing Mullen v.
Alarmguara’ ofDelmarva, Inc., 625 A.2d 258, 261 (Del. 1993); DEL. SUPER. CT. CIV. R. 4(j)).

4

against Plaintiff Marshall and to assert a comparative negligence affirmative
defense, where there would be no viable claim available to passenger Plaintiff
Thomas, accordingly.

This Court finds there was no reasonable basis for the delay in Defendant
asserting a comparative negligence affirmative defense or a counterclaim against
Plaintiff Marshall.31 Although it was suggested this was an oversight/mistake, for
the reasons highlighted by the parties, this Court finds that Defendant’s untimely
leave to amend would unfairly prejudice Plaintiff Thomas under Rule 15 (c). Thus,
Defendant’s Motion to Amend Answer to Plaintiffs’ Complaint is DENIED.

IT IS SO ORDERED.

 

 

\fivian L. Medi
Judge

 

31 Defendant asserts that the reason for the delay in bringing the comparative negligence
affirmative defense is that there was a typographical error in her AnsWer and she meant to reference
the comparative negligence statute. The Court finds that this reason does not offset the rest of the
analysis that weighs in favor of denial.

