      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

NICOLE LISOWSKI, Individually and as
                               )
Next Friend of BRANDON RODRIGUEZ,
                               )
JEREMIAH RODRIGUEZ, and        )
NICHOLAS O‘BRIEN, minors, and  )
JUAN RODRIGUEZ, in his capacity as
                               )
Personal Representative of the Estate of
                               )
ALEXIS RODRIGUEZ,              )
                               )
      Plaintiffs,              )
                               )
      v.                       )                C.A. No. N15C-04-228 ALR
                               )
BAYHEALTH MEDICAL CENTER, INC. )
d/b/a KENT GENERAL HOSPITAL,   )
                               )
       Defendant.              )

                        MEMORANDUM OPINION

                        Date Submitted: April 22, 2016
                         Date Decided: May 11, 2016

                 Upon Defendant’s Partial Motion to Dismiss
                GRANTED IN PART and DENIED IN PART




David G. Culley, Esq., Tybout, Redfearn & Pell, Wilmington, Delaware, Attorney
for Plaintiffs Nicole Lisowski, et al.

Melony R. Anderson, Esq., and James E. Drnec, Esq., Balick & Balick, LLC,
Wilmington, Delaware, Attorneys for Defendant Bayhealth Medical Center, Inc.



ROCANELLI, J.
             FACTUAL AND PROCEDURAL BACKGROUND

      On April 23, 2015, Plaintiffs Nicole Lisowski and Juan Rodriguez filed the

present wrongful death and survival action against Defendant Bayhealth Medical

Center, Inc. d/b/a Kent General Hospital (―Bayhealth‖) for Bayhealth‘s alleged

medical negligence that lead to the death of Alexis Rodriguez (―Decedent‖) on

April 25, 2013. While Juan Rodriguez, Decedent‘s father, filed this action in his

capacity as the personal representative to Decedent‘s estate, Lisowski filed this

action in an individual capacity and as the biological mother of minor Plaintiffs

Brandon Rodriguez, Jeremiah Rodriguez, and Nicholas O‘Brien.

      Lisowski and Decedent cohabited, owned a home together, and were in an

exclusive relationship for approximately thirteen (13) years. Prior to Decedent‘s

death, Lisowski was Decedent‘s primary caregiver. It is undisputed that Lisowski

and Decedent never participated in any civil or religious marriage ceremony and

never obtained a valid marriage license. Indeed, Lisowski and Decedent were

never lawfully married in the State of Delaware or elsewhere.

      Plaintiffs Brandon Rodriguez and Jeremiah Rodriguez are the biological

children of Lisowski and Decedent. Plaintiff Nicholas O‘Brien is the biological

child of Lisowski; however, Decedent is not Nicholas‘ biological father nor did

Decedent ever formally adopt Nicholas.      Instead, Lisowski shares custody of

Nicholas with Nicholas‘ biological father (―O‘Brien‖), whom Lisowski never


                                        2
married.    Lisowski and O‘Brien‘s original custody arrangement began after

Nicholas was born in 2000 and consisted of Nicholas living with Lisowski and

Decedent during the week and Nicholas living with O‘Brien on the weekends and

holidays.   During this arrangement, O‘Brien paid Lisowski child support for

Nicholas. In approximately 2011, the custody arrangement between O‘Brien and

Lisowski changed. Nicholas began living with O‘Brien during the week and living

with Lisowski and Decedent only on the weekends, holidays, and during summer

vacation. This is the present custody arrangement between Lisowski and O‘Brien.

      On February 16, 2016, Bayhealth filed the present partial motion to dismiss,

seeking to dismiss Lisowski and Nicholas, arguing that Lisowski and Nicholas lack

standing to pursue this action.

                            STANDARD OF REVIEW

      In deciding a motion to dismiss, the Court shall accept all well-pleaded

allegations as true and make all reasonable inferences in favor of the non-moving

party.1 Factual allegations, even if vague, are well-pleaded if they provide notice

of the claim to the other party.2 The Court should deny the motion if the claimant




1
  Spence v. Funk, 396 A.2d 967, 968 (Del. 1978); Ramunno v. Cawley, 705 A.2d 1029, 1034
(Del. 1998).
2
  Spence, 396 A.2d at 968.
                                          3
―may recover under any reasonably conceivable set of circumstances susceptible of

proof.‖3

                                   DISCUSSION

A. The Parties’ Contentions

         Bayhealth argues that neither Lisowski nor Nicholas can pursue this action

because they lack standing under 10 Del. C. § 3721 et. seq. (―Wrongful Death

Statute‖ or ―Statute‖). Bayhealth contends that the Statute is unambiguous and

explicitly limits actions for wrongful death to a decedent‘s ―spouse, parent, child[,]

and siblings of the [decedent].‖4 Therefore, Bayhealth argues that Lisowski lacks

standing because Lisowski and Decedent were never lawfully married. Similarly,

Bayhealth argues that Nicholas lacks standing under the Wrongful Death Statute

because Decedent was not Nicholas‘ biological father and Decedent never stood in

loco parentis to Nicholas. In contrast, Plaintiffs argue the legislative intent behind

the Wrongful Death Statute suggests that Lisowski should be able to proceed in her

action considering the nature of her relationship with Decedent and Nicholas can

claim damages for mental anguish under the Statute because Decedent stood in

loco parentis to Nicholas.




3
    Id.
4
    10 Del. C. § 3724(a).
                                          4
B. Rules of Statutory Interpretation

       Delaware rules of statutory construction are well-established and are

―designed to ascertain and give effect to the intent of the legislators, as expressed

in the statute.‖5 The Court must first determine whether the statutory provision is

ambiguous.6 The mere fact that parties dispute an interpretation of a statute does

not make the statute ambiguous.7               Instead, a statute is ambiguous if it is

―reasonably susceptible of two interpretations‖8 or if ―if a literal reading of the

statute would lead to an unreasonable or absurd result not contemplated by the

legislature.‖9

       When a statute is unambiguous, statutory construction is unnecessary.10

Rather, the Court should give the words in the statute their plain meaning.11 Some

courts have determined that to give a statutory term its plain meaning is to consider



5
  Delaware Bd. of Nursing v. Gillespie, 41 A.3d 423, 427 (Del. 2012) (internal citations omitted)
(―The goal of statutory construction is to determine and give effect to legislative intent.‖); see
also Dewey Beach Enterprises, Inc. v. Bd. of Adjustment of Town of Dewey Beach, 1 A.3d 305,
307 (Del. 2010).
6
  Taylor v. Diamond State Port Corp., 14 A.3d 536, 538 (Del. 2011); Dewey Beach Enterprises,
Inc., 1 A.3d at 307.
7
  Chase Alexa, LLC v. Kent Cty. Levy Court, 991 A.2d 1148, 1151 (Del. 2010).
8
  Taylor, 14 A.3d at 538; Dewey Beach Enterprises, Inc., 1 A.3d at 307.
9
  Delaware Bd. of Nursing, 41 A.3d at 427.
10
   See Taylor, 14 A.3d at 538; Dewey Beach Enterprises, Inc., 1 A.3d at 307.
11
   See Zhurbin v. State, 104 A.3d 108, 110 (Del. 2014) (internal citations omitted) (―Where a
statute contains unambiguous language that clearly reflects the intent of the legislature, then the
language of the statute controls.‖); Dewey Beach Enterprises, Inc., 1 A.3d at 307 (―If [a statutory
provision] is unambiguous, no statutory construction is required, and the words in the statute are
given their plain meaning.‖); Hoover v. State, 958 A.2d 816, 819 (Del. 2008) (―If the language of
the statute is unambiguous, the plain meaning of the words controls.‖).
                                                5
the term‘s common and/or ordinary meaning.12 However, if a statutory provision

is ambiguous, then the Court must consider the statute as a whole and read each

part ―in light of the others to produce a harmonious whole.‖ 13 If a statutory

provision is ambiguous, the Court should read it in such a way to promote its

apparent purpose.14

C. Nicole Lisowski does not have standing to bring a claim under the
Wrongful Death Statute because she and Decedent were not legally
married.__________________________________________________________

       The Wrongful Death Statute provides: ―[a]n action under this subchapter

shall be for the benefit of the spouse, parent, child and siblings of the deceased

person.‖15 Although the Statute defines ―parent,‖ ―child,‖ and ―sibling,‖16 the

Statute does not define ―spouse.‖ This Court finds that the Wrongful Death Statue

with respect to the term ―spouse‖ is unambiguous and, therefore, the Court need

not engage in any statutory construction. Specifically, ―spouse‖ is not reasonably

susceptible to more than one interpretation. Instead, an individual is either a




12
   See, e.g., Nw. Nat. Ins. Co. v. Esmark, Inc., 672 A.2d 41, 44 (Del. 1996) (considering the
common and ordinary meaning of the term ―under‖); Moore v. Chrysler Corp., 233 A.2d 53, 55
(Del. 1967) (―Words in statutes must be given their common and ordinary meanings.‖); State v.
Virdin, 1999 WL 743988, at *3 (Del. Super. Aug. 20, 1999) (finding that ―pregnant‖ has a
common and ordinary meaning); O’Donald v. O’Donald, 430 A.2d 800, 803 (Del. Fam. Ct.
1981) (―[S]tatutes will be given their common and ordinary meaning[.]‖).
13
   Taylor, 14 A.3d at 538; Dewey Beach Enterprises, Inc., 1 A.3d at 307.
14
   Delaware Bd. of Nursing, 41 A.3d at 427.
15
   10 Del. C. § 3724(a) (emphasis added).
16
   See 10 Del. C. § 3721.
                                             6
spouse or not – married or not.17 Indeed, ―spouse‖ has a common or ordinary

meaning. Black‘s Law Dictionary defines ―spouse‖ as ―[o]ne‘s husband or wife by

lawful marriage; a married person.‖18 Webster‘s Dictionary defines ―spouse‖ as

―someone who is married: a husband of a wife.‖19 Importantly, Delaware does not

recognize common law marriage.20

       In Boyer v. Irvin, the Court of Chancery was required to determine the

meaning of ―surviving spouse‖ within the context of 12 Del. C. § 264 (the rights of

others to control the disposition of the remains of a decedent) where ―surviving

spouse‖ was undefined.21 In defining ―surviving spouse,‖ the Court of Chancery

concluded: ―[G]iven the statutory scheme governing marriage in this State, the

Court concludes that ‗spouse‘ in this context must mean a decedent‘s spouse

pursuant to a lawful marriage as defined in Title 13, Chapter 1 of the Delaware

Code[.]‖22 Similarly, in Burris v. PHB, Inc., the Superior Court addressed the

definition of ―surviving spouse‖ within the meaning of worker‘s compensation



17
   See Virdin, 1999 WL 743988, at *3 (determining that the term ―pregnant‖ is unambiguous
because, inter alia, one is either pregnant or not).
18
   Spouse, BLACK‘S LAW DICTIONARY (10th ed. 2014).
19
   Spouse, MERRIAM-WEBSTER‘S DICTIONARY (2016).
20
   Boyer v. Irvin, 2007 WL 3119792, at *3 (Del. Ch. Oct. 19, 2007) (noting that Delaware does
not recognize common law marriage); Bradley v. Bradley, 867 A.2d 193, 195 (Del. Fam. Ct.
2002) (same); Wilmington Finishing Co. v. Leary, 2000 WL 303320, at *3 (Del. Super. Mar. 8,
2000) (same); Harleysville Mut. Cas. Ins. Co. v. Carroll, 123 A.2d 128, 131 n.3 (Del. Super.
1956) (same).
21
   Boyer, 2007 WL 3119792, at *2.
22
   Id. (emphasis added).
                                             7
benefits.23 The Court determined that ―surviving spouse‖ was unambiguous and

deferred to the definitions of ―surviving spouse‖ and ―spouse‖ within Black‘s Law

Dictionary.24 Accordingly, the Court determined that a woman was not entitled to

her ex-husband‘s worker‘s compensation benefits when the two were legally

divorced at the time of the husband‘s death.25

       This Court finds that the Wrongful Death Statute is unambiguous – only

those who were married to Decedent at the time of his death can pursue a claim as

a ―spouse.‖       Moreover, even assuming arguendo that the term spouse is

ambiguous, the Wrongful Death Statute shows intent to limit the recovery to those

related to a decedent by blood or marriage. The Statute specifies that if there are

no individuals who qualify as a spouse, parent, child, or sibling, then an action

under the Statute ―shall be for the benefit of any person related to the deceased

person by blood or marriage.‖26

       Further, the Statute defines ―parent,‖ ―child,‖ and ―sibling‖ to include

various relationships. Specifically, the Statute defines ―parent‖ to include ―the
23
   Burris v. PHB, Inc., 1999 WL 463715, at *2 (Del. Super. May 14, 1999).
24
   Id. (internal citations omitted) (holding:
         The term ‗surviving spouse‘ is not ambiguous nor is it reasonably susceptible to
         different interpretations. Therefore, deference will be given to common usage.
         Black‘s Law Dictionary [1990] defines ‗surviving spouse‘ as ‗[t]he spouse who
         outlives (survives) the other spouse.‘ [Black‘s Law Dictionary] [1990] further
         defines ‗spouse‘ as ‗[o]ne‘s husband or wife, and ‗surviving spouse‘ is one of a
         married pair who outlive the other.‘ The definition given to the term ‗wife‘ is ‗a
         woman united to a man by marriage; a woman who has a husband living and
         undivorced.‘)
25
   Id.
26
   10 Del. C. § 3724(b)(emphasis added).
                                                8
mother and father of a deceased illegitimate child‖;27 ―child‖ to include ―an

illegitimate child‖;28 and ―sibling‖ to include ―brothers and sisters of the whole and

half blood or by order of adoption.‖29 Nevertheless, the Statue does not define

―spouse.‖ This Court finds that the failure to define the term spouse was thus

intentional and that the General Assembly did not intend to expand the definition

beyond its common or ordinary meaning. This Court cannot assume that the lack

of a definition of ―spouse‖ was a mere oversight on behalf of the General

Assembly.30 Instead, ―where [. . .] provisions are expressly included in one part of

a statute, but omitted from another, it is reasonable to conclude that the legislature

was aware of the omission and intended it.‖31

       The Court sympathizes with Lisowski and her loss, especially considering

the nature of Lisowski‘s relationship with Decedent. Indeed, the Court accepts

Lisowski‘s claim that she was the wife of Decedent in every way even though they

were never legally married. The Court also recognizes and appreciates that, in

many respects, the law has developed to adjust to the evolving definition of a




27
   10 Del. C. § 3721(2).
28
   10 Del. C. § 3721(1).
29
   10 Del. C. § 3721(4).
30
   See Giuricich v. Emtrol Corp., 449 A.2d 232, 238 (Del. 1982) (―We may not assume that the
omission was the result of an oversight on the part of the General Assembly.‖).
31
   In re Adoption of Swanson, 623 A.2d 1095, 1097 (Del. 1993) (citing Giuricich, 449 A.2d at
238).
                                             9
modern family.32 However, the Court‘s hands are tied with respect to the explicit

language that the General Assembly chose in drafting the Wrongful Death Statute.

Nevertheless, regardless of the Court‘s views ―as to the wisdom of [a] statute, [its]

role as [a] judge[] is limited to applying the statute objectively and not revising

it.‖33 Therefore, where it is undisputed that Lisowski and Decedent were never

lawfully married, Lisowski cannot pursue a claim under the Statute.

D. There are insufficient facts in the record to determine if Decedent stood in
loco parentis to Nicholas; therefore, dismissal of Nicholas’ claim is
inappropriate at this stage in the proceedings._________________________

       The Statute limits the individuals who can seek damages for mental anguish

to the ―surviving spouse, children and persons to whom the deceased stood in loco

parentis at the time of the injury which caused the death of the deceased[.]‖34

Black‘s Law Dictionary defines ―in loco parentis‖ as ―[o]f, relating to, or acting as

a temporary guardian or caretaker of a child, taking on all or some of the

responsibilities of a parent.‖35 Delaware courts have referred to a parent standing

in loco parentis as a ―person who puts himself in the situation of a lawful parent by



32
   See, e.g., 10 Del. C. § 901(12) (defining a ―family‖ as ―husband and wife; a man and woman
cohabiting in a home in which there is a child of either or both; custodian and child; or any group
of persons related by blood or marriage who are residing in 1 home under 1 head or where 1 is
related to the other by any of the following degrees of relationship, both parties being residents
of this State . . . .‖); see also 13 Del. C. § 129 (recognizing equal treatment of marital
relationships to same-gender couples and their children).
33
   In re Adoption of Swanson, 623 A.2d 1095, 1097 (Del. 1993).
34
   See 10 Del. C. § 3724(d)(5)(emphasis added).
35
   In loco parentis, BLACK‘S LAW DICTIONARY (10th ed. 2014).
                                                10
assuming obligations incident to the parental relation without going through the

formalities necessary to a legal adoption.‖36

       It is undisputed that Decedent was not Nicholas‘ biological father and

Decedent never formally adopted Nicholas. At the time of Decedent‘s death,

Nicholas lived with O‘Brien during the week and then lived with Lisowski and

Decedent on weekends, holidays, and summer vacations. Decedent never claimed

Nicholas as a dependent on any income taxes. Lisowski claimed Nicholas as a

dependent on her income taxes until approximately 2011 when O‘Brien began

claiming Nicholas on his income taxes.

       In viewing the facts in the light most favorable to the non-moving party,

Plaintiffs, this Court does not have enough information—based on the record

presently before it—to determine whether Decedent stood in loco parentis to

Nicholas at the time of Decedent‘s death. While the current record develops the

relationship between Nicholas and O‘Brien, the record does not sufficiently

address whether Decedent assumed ―obligations incidental to the parental

relation‖37 with Nicholas. Accordingly, the Court is not satisfied at this stage in




36
   Trievel v. Sabo, 1996 WL 944981, at *6 (Del. Super. Mar. 13, 1996); Gill v. Celotex Corp.,
565 A.2d 21, 24 (Del. Super. 1989) (internal citations omitted).
37
   See Trievel, 1996 WL 944981, at *6.
                                             11
the proceedings that Nicholas cannot ―recover under any reasonably conceivable

set of circumstances susceptible of proof.‖38

                                 CONCLUSION

         The Wrongful Death Statute provides for a limited number of individuals

who may pursue an action under the Statute. With respect to spouses, the Statute is

unambiguous and although this Court recognizes that it may produce an unfair

result, the Court is bound by the legal meaning of the term ―spouse.‖ Because

Lisowski and Decedent were never lawfully married, Lisowski cannot recover

under the Statute; therefore, Bayhealth‘s partial motion to dismiss with respect to

dismissing Plaintiff Nicole Lisowski must be granted.       Moreover, the Statute

permits those persons to whom the decedent stood in loco parentis to recover

damages for mental anguish. The record lacks enough information to determine

whether Decedent stood in loco parentis to Nicholas; therefore, Bayhealth‘s partial

motion to dismiss with respect to Plaintiff Nicholas O‘Brien is denied.

         NOW, THEREFORE, this 11th day of May, 2016, Defendant Bayhealth

Medical Center d/b/a Kent General Hospital’s partial motion to dismiss is

hereby GRANTED IN PART and DENIED IN PART.

         IT IS SO ORDERED.
                                       Andrea L. Rocanelli
                                       ____________________________________
                                       The Honorable Andrea L. Rocanelli
38
     Spence, 396 A.2d at 968.
                                         12
