IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN RE: ASBESTOS LITIGATION

    SANDRA KIVELL, individually and as )
    Personal Representative of the Estate of )
    MILTON J. KIVELL, deceased,              )
                                             )
          Plaintiff,                         )
                                             )    C.A. No. N15C-07-093 ASB
                 v.                          )
                                             )
    GEORGIA PACIFIC CONSUMER )
    PRODUCTS LP et al.,                      )
                                             )
          Defendants.                        )

                                  March 26, 2018
                          Upon Defendant Georgia Pacific’s
                           Motion for Summary Judgment
                                   GRANTED.

                                       ORDER

         Plaintiff Sandra Kivell (“Plaintiff”) cannot satisfy the summary judgment

criteria.1

         Plaintiff alleges that her husband, Milton Kivell (“Mr. Kivell”) contracted

mesothelioma which ultimately caused his death. Plaintiff filed a wrongful death

action against numerous defendants including Georgia Pacific (“Defendant”).

Defendant filed a Motion for Judgment on the Pleadings. Defendant contends that



1
 Super. Ct. Civ. R. 56; Smith v. Advanced Auto Parts, Inc., 2013 WL 6920864, at
*3 (Del. Super. Dec. 30, 2013); see Moore v. Sizemore, 405 A.2d 679, 680 (Del.
1979); Nutt v. A.C. & S., Inc., 517 A.2d 690, 692 (Del. Super. Ct. 1986).
Plaintiff failed to timely assert her wrongful death and survival actions pursuant to

Louisiana Law.       Defendant contends that Louisiana’s wrongful death statute

expressly states that such claims are actionable for one year from the death of the

decedent.2 Similarly, Louisiana survival statute states that the right to recover is “for

a period of one year from the death of the deceased.”3 Here, Mr. Kivell passed away

on September 5, 2015, and Plaintiff filed the wrongful death and survival action on

September 30, 2016. Defendant argues that the applicable Louisiana statute bars

Plaintiff from asserting these claims. On the other hand, Plaintiff asserts that the

wrongful death claim relates back to the original Complaint pursuant to Superior

Court Civil Rule 15(c). Plaintiff claims that because Delaware procedural law

applies to this case, the relation back of statutes of limitations are generally

considered to be procedural rather than substantive.

        First, Louisiana’s statute of limitations regarding the wrongful death claim

applies. 10 Del. C. § 8121 states:

        Where a cause of action arises outside of this State, an action cannot be
        brought in a court of this State to enforce such cause of action after the
        expiration of whichever is shorter, the time limited by the law of this
        State, or the time limited by the law of the state or country where the
        cause of action arose, for bringing an action upon such cause of action.
        Where the cause of action originally accrued in favor of a person who
        at the time of such accrual was a resident of this State, the time limited
        by the law of this State shall apply.


2
    La. Civ. Code art. 2315.2.
3
    La. Civ. Code art. 2315.1.
                                            2
Additionally, Plaintiff does not seem to argue that Louisiana statute of limitations

does not apply. Rather her argument is focused on whether the claims are

amendments to the original pleading. Thus the Court must determine if the second

amended complaint relates back to the date of the original complaint. As the Court

wrote in a footnote in an earlier Order in this case, the Court is not persuaded that

under Delaware law the wrongful death action relates back to the original pleading.

This is because the wrongful death action and survivorship action are not an

amendment to the original complaint, rather they are supplemental pleadings. Under

Superior Court Civil Rule 15(c), an amendment of a pleading relates back to the

original pleading when: (1) relation back is permitted by the law that provides the

statute of limitations applicable to the action, or; (2) the claim or defense asserted in

the amended pleading arose out of the conduct, transaction, or occurrence set forth

or attempted to be set forth in the original pleading.4

      Under Delaware law, the difference “between an amended and supplemental

complaint is drawn within Rules 15(a) and 15(d) and relates to the time frame in

which the matters to be added to the complaint occurred.”5 However, “Rule 15(d),

in contrast, specifies that a ‘supplemental’ complaint refers to a complaint in which

the plaintiff adds to the original complaint by ‘setting forth transactions or


4
 Super. Ct. Civ. R. 15(c).
5
 Pella Corp. v. American Cas. Co. of Reading, P.A., 2012 WL 1408855, at *1 (Del.
Super. Mar. 14, 2012).
                                       3
occurrences or events which have happened since the date of the pleading sought to

be supplemented’.”6 “When interpreting these two rules together, courts have

implied that an amendment to a pleading, whether filed with or without leave of the

court, should only relate to matters that have taken place prior to the date of the

pleading to be amended.”7 The wrongful death and survivorship actions are not

amendments to the original complaint, as they do not relate to matters that took place

prior to the date of the pleading being amended. Plaintiff cites to a Louisiana case to

support her proposition that the wrongful death and survivorship claims relate back

under Louisiana Code of Civil Procedure. However, amending or supplementing

proceedings are procedural rules, and Delaware procedure applies to that aspect of

this case. For the aforementioned reasons, Plaintiffs wrongful death and survival

claims are time barred. Defendant’s motion for judgment on the pleadings is hereby

GRANTED.




IT IS SO ORDERED.

                                           /s/ Calvin L. Scott
                                           The Honorable Calvin L. Scott, Jr.




6
    Id.
7
    Id.
                                          4
