       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


ROBERT DUNCAN,                        :
                                      :
            Plaintiff,                :   K16C-12-020 JJC
                                      :   In and For Kent County
                   v.                 :
                                      :
STTCPL, LLC, SERVICE ENERGY,          :
LLC, and COASTAL PUMP AND             :
TANK, INC.,                           :
                                      :
            Defendants.               :
                                      :

                          Submitted: January 27, 2017
                          Decided: February 28, 2017

                          MEMORANDUM OPINION

                Upon Defendants’ Motion to Dismiss – DENIED

Patrick C. Gallagher, Esquire, Law Office of Curley, Dodge, Funk & Street, LLC,
Dover, Delaware, Attorney for Plaintiff.

Michael W. Arrington, Esquire, Parkowski, Guerke & Swayze, P. A., Wilmington,
Delaware, Attorney for the Defendants.

Scott T. Earle, Esquire, Cohen, Seglias, Pallas, Greenhall & Furman, P.C.,
Wilmington, Delaware, Attorney for the Defendants.




Clark, J.
                                     I.     Introduction
       Before the Court is a motion to dismiss for failure to state a claim filed by
Defendants STTCPL L.L.C. and Service Energy L.L.C. (hereinafter collectively
“STTCPL”).1        STTCPL leased Plaintiff Robert Duncan’s (hereinafter “Mr.
Duncan’s”) gasoline station in Harrington, Delaware.              In 2009, the Delaware
Department of Natural Resources and Environmental Control (hereinafter
“DNREC”) found environmental contamination at that location.                      After that
discovery, Mr. Duncan and STTCPL entered into a Settlement Agreement and
Release of Claims (hereinafter “Settlement Agreement”) that broadly addressed
liability for contamination at the Harrington site.
       On January 23, 2012, DNREC issued another notice of violation regarding
the Harrington gas station. The notice cited the same project identification number
that was the subject of the Settlement Agreement.              DNREC seeks significant
additional compensation from Mr. Duncan for the remediation costs associated
with the 2012 environmental contamination at the Harrington property. As a result,
Mr. Duncan is suing STTCPL for those costs, alleging STTCPL’s failure to
indemnify him as required under the original lease agreement. Mr. Duncan is also
suing Defendant Coastal Tank and Pump, Inc. (hereinafter “Coastal”) for the
negligent cleanup of the site and STTCPL as Coastal’s alleged principal.
       STTCPL responds seeking dismissal of Mr. Duncan’s claims alleging that
the Settlement Agreement between the parties released his future claims against
STTCPL for environmental contamination at the property. STTCPL also seeks
dismissal of the negligence claim alleging insufficiency of the Complaint. When

1
 At this stage, the record does not reveal the relationship between STTCPL and Service Energy.
However, in the Settlement Agreement the two entities are referred to interchangeably and one
person signed on behalf of STTCPL and Service Energy without identifying that person’s
capacity. Therefore, the Court refers to these entities collectively as STTPCL throughout this
memorandum.

                                              2
reading the Settlement Agreement as a whole, however, and considering
documents integral to the Complaint, Mr. Duncan could conceivably recover for
his claims. For this reason and those set forth herein, STTCPL’s and Coastal’s
motions to dismiss are DENIED.2


                        II. Background and Arguments of the Parties
       As this is a motion to dismiss pursuant to Superior Court Civil Rule 12(b)
(6), the facts referenced herein are those found in Mr. Duncan’s Complaint and the
two documents incorporated by reference in the Complaint. Prior to 1994, Mr.
Duncan owned and operated a gasoline station in Harrington, Delaware, and during
the time he operated it, the station sold only leaded gasoline. In 1994, Mr. Duncan
entered into a lease agreement with New Dawn Enterprises, Inc. (hereinafter “New
Dawn”) for several properties including the gasoline station at issue here. This
agreement contained an indemnity clause, which provided
       Lessee will indemnify and hold Lessor harmless against, all claims,
       demands and causes of action, . . . for . . . damage to any property
       arising from Lessee’s tenancy of the premises and not caused by the
       negligence, omission, intentional act or breach of duty by Lessor or its
       agents.
       At some point during the end of 1999 or the beginning of 2000, New Dawn
sold or assigned its business to STTCPL which included an assignment of the lease
for Mr. Duncan’s gasoline station. Mr. Duncan consented to this assignment, and
in furtherance of it, he entered an Assignment and Lease Modification with New
Dawn and STTCPL whereby the original lease remained in effect, including its
indemnification clause. This amended lease included a provision stating “[t]he

2
  After oral argument on this motion, Coastal filed a motion to dismiss as well. Its motion
incorporated only the arguments set forth by STTCPL and asserted no additional basis for
dismissal of Mr. Duncan’s negligence claim against Coastal. Accordingly, for the reasons set
forth herein, Defendant Coastal Pump and Tank’s motion to dismiss is also denied.

                                             3
Landlord shall be responsible for and shall hold harmless STTCPL . . . from any
claims for environmental damage which has occurred prior to the time that they
have become a tenant on the property.”
       DNREC, prior to May 2009, alleged the existence of environmental
contamination at the gasoline station due to lead in the soil. After DNREC issued
its notice of violation, Mr. Duncan and STTCPL entered the Settlement Agreement
on May 12, 2009. Pursuant to this agreement, Mr. Duncan assumed responsibility,
financial and otherwise, for all future costs related to alleged environmental
damage at the Harrington property. The Settlement Agreement also specifically
references Mr. Duncan’s release of future claims for contamination involving
DNREC Project Identification Number K0804036.          Elsewhere, the Settlement
Agreement broadly references Mr. Duncan’s intention to indemnify STTCPL for
all future monitoring and remediation costs at the Harrington location. On the
other hand, still elsewhere in the Settlement Agreement, this assumption of
responsibility, contradictorily, is “limited to solely those environmental matters
currently identified by DNREC and the remediation required by DNREC in regard
thereto . . . .”
       The present controversy centers on a January 23, 2012 DNREC notice of
violation to both Mr. Duncan and STTCPL for alleged gasoline contamination of
soil and groundwater at the Harrington station. The January 2012 DNREC notice
references Project Identification Number K0804036 which was also specifically
referenced by the Settlement Agreement as being included in Mr. Duncan’s release
of any future claims. The new January 2012 notice related to the underground
storage tanks at the station.      As alleged however, that notice applied to
contamination from unleaded gasoline as opposed to leaded gasoline, which had
been the subject of the prior remediation.


                                             4
       On December 18, 2013, STTCPL hired Costal to remove the underground
storage tanks at the station. As alleged, once Coastal excavated and removed the
storage tanks, the company negligently took the contaminated fill dirt and placed it
directly back into the ground, worsening the contamination.
       In June 2014, DNREC and STTCPL, apart from Mr. Duncan, entered into a
Settlement Agreement and Release regarding the 2012 environmental damage.
Pursuant to that agreement, STTCPL paid $70,000 to DNREC in exchange for
DNREC releasing STTCPL from further liability for the 2012 environmental
damage. After STTCPL reached this agreement with DNREC, DNREC asserted
that Mr. Duncan was responsible for a remaining $492,014 in remediation costs
incurred at the site.
       Thereafter, when STTCPL refused to indemnify him as required by the
terms of the original lease, Mr. Duncan filed a complaint alleging that STTCPL
breached the lease’s indemnity provision.         He argues that the Settlement
Agreement’s release of liability did not cover what he characterizes as a new
DNREC violation, and therefore, under the lease’s indemnity clause, STTCPL is
responsible for the contamination and its remediation.
       Additionally, Mr. Duncan alleges that his tenants breached the lease because
STTCPL did not pay the required rent.         Namely, according to Mr. Duncan,
STTCPL owes approximately $48,000 in back rent. Finally, Mr. Duncan sues
Coastal for its alleged negligence in removing the underground storage tanks and
STTCPL as Coastal’s alleged principal. Mr. Duncan claims that Coastal breached
its duty of care by removing the underground storage tanks and returning
contaminated soil to the ground in violation of Federal and State law.
       In response, STTCPL argues that the Court cannot grant Mr. Duncan relief
on either his breach of contract or negligence claims. As to the contract claim
regarding environmental harm, STTCPL argues that the Settlement Agreement
                                         5
between Mr. Duncan and STTCPL controls and applies fully to the January 2012
notice of violation. Pursuant to that document’s release language, STTCPL argues
that Mr. Duncan is responsible for the costs of remediation. Furthermore, as to his
rent claim, STTCPL claims that a portion of the $70,000 paid to DNREC included
$48,000 in escrowed rent that STTCPL paid to DNREC on behalf of Mr. Duncan.
         STTCPL also argues that with regard to Mr. Duncan’s negligence claim, Mr.
Duncan was contractually responsible for the condition of the soil at the property
pursuant to the 2009 Settlement Agreement.                   Because he was contractually
responsible, STTCPL argues that he cannot maintain a negligence claim. Further,
STTCPL also argues that Mr. Duncan’s negligence claim is set forth in a
conclusory fashion and does not provide sufficient specificity to state a claim.
Namely, STTCPL argues that Mr. Duncan did not sufficiently allege proximate
cause or damages in his Complaint. According to STTCPL, the Court cannot grant
Mr. Duncan relief based on the allegations as presented and should dismiss his
Complaint pursuant to Superior Court Civil Rule 12(b)(6).


                                    III.    Standard of Review
         When deciding a motion to dismiss for failure to state a claim, the Court
must accept as true all well-pleaded allegations in the complaint.3 The test for
sufficiency is a broad one: the complaint will survive the motion to dismiss so long
as “a plaintiff may recover under any reasonably conceivable set of circumstances
susceptible of proof under the complaint.” 4 However, the Court will not “accept
conclusory allegations unsupported by specific facts,” nor will the Court “draw



3
    Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
4
    Id. (citing Klein v. Sunbeam Corp., 94 A.2d 385 (Del. 1952)).

                                                 6
unreasonable inferences in favor of the non-moving party.”5 Stated differently, a
complaint will not be dismissed unless it clearly lacks factual or legal merit. 6
          Furthermore, when examining a 12(b) (6) motion, “[t]he complaint generally
defines the universe of facts that the trial court may consider . . . .”7 If the Court
looks outside the facts set forth in the complaint, generally it will convert a motion
to dismiss into a motion for summary judgment and the parties will be given an
opportunity to expand the record.8 However, “when the document [or documents
are] integral to a plaintiff’s claim and incorporated into the complaint” the trial
court need not convert the motion into a motion for summary judgment. 9


                                          IV.    Discussion
          Mr. Duncan referenced specific sections of the lease and the Settlement
Agreement in his Complaint. He also referenced DNREC’s January 2012 notice of
violation. However, he did not provide copies of those documents with his filing.
STTCPL, however, provided copies of the Settlement Agreement and DNREC’s
January 2012 notice of violation as exhibits to their motion to dismiss. At oral
argument, both parties agreed that the Court should consider the two exhibits but
not convert this motion into a motion for summary judgment because they were
explicitly referenced in and are integral to Mr. Duncan’s Complaint.                After


5
 Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011) (quoting Clinton v.
Enterprise Rent–A–Car Co., 977 A.2d 892, 895 (Del. 2009)).
6
    Diamond State Tel. Co. v. Univ. of Del., 269 A.2d 52, 58 (Del. 1970).
7
    In re General Motors (Hughes) S’holder Litig., 897 A.2d 162, 168 (Del. 2006).
8
    Id.
9
 Vanderbilt Income and Growth Assocs., LLC v. Arvida/JMB Managers, Inc., 691 A.2d 609, 613
(Del. 1996).

                                                  7
considering their positions and the nature of the documents, the Court agrees and
will not convert this motion into a motion for summary judgment.
       With regard to the motion to dismiss for failure to state a claim, the Court
must determine whether Mr. Duncan could conceivably recover on his claims.
Here, regarding Mr. Duncan’s breach of contract claims, after drawing all
reasonable inferences in favor of Mr. Duncan, the Court finds that he could
conceivably recover. Accordingly, STTCPL’s motion to dismiss with regard to
Mr. Duncan’s breach of contract claims is denied. Additionally, when drawing all
reasonable inferences in favor of Mr. Duncan regarding his negligence claim, the
Complaint also sufficiently states a claim upon which relief can be granted.
A.     Mr. Duncan adequately pleads a breach of contract claim.
       The issues here center on Mr. Duncan’s claim that the Settlement
Agreement’s terms do not cover the contamination generating the additional
$492,014 in costs following DNREC’s January 2012 notice of violation. Absent
his release of these claims, he argues that STTCPL must indemnify him for these
environmental contamination and remediation costs. In response, STTCPL claims
that the language of the Settlement Agreement is broad enough to cover this
allegedly new environmental violation, making Mr. Duncan responsible for all the
costs associated with the contamination and its remediation.
       The Settlement Agreement contains broad language throughout that would
appear to grant STTCPL a release from liability for all contamination including
contamination found after the parties signed the agreement. 10                    For instance,
Paragraph Eight of the agreement acknowledges that the agreement is



10
   For example, the agreement provides “Duncan hereby assumes the responsibility for all further
investigation and/or remediation and monitoring required by DNREC in connection with the
alleged environment damage at the Harrington Location.” It also provides that “Duncan hereby
assumes the financial responsibility for all costs, fees and expenses relating to or arising out of
                                                8
          for the purpose of making a full and final settlement of any and all
          claims, demands, damages, liabilities, attorneys’ fees, and/or costs
          which either party or his/her successors, heirs, and assigns may have
          had, may now have, or may in the future have relating to the further
          investigation and/or remediation and monitoring required by DNREC
          (Project ID’s K0009122 and K0804036) at the Harrington Location
          and for the express purpose of precluding forever any future or
          additional claims arising out of the same except for those that may be
          related to the enforcement of this agreement.
          However, as a matter of contract interpretation the Court must read the
Settlement Agreement as a whole.11 In reading the agreement as a whole, the
Court is required to give effect to every term of the instrument, if at all possible.12
Here, Paragraph Nine includes language that appears to limit the language found in
Paragraph Eight and other portions of the document. Namely, Paragraph Nine
provides that
          [t]he parties hereby acknowledge and agree that the responsibility
          and/or liability for environmental matters at the Harrington Location
          assumed by Duncan under this Agreement is limited to solely those
          environmental matters currently identified by DNREC and the
          remediation required by DNREC in regard thereto (including both the
          remediation currently required by DNREC and any future DNREC
          required remediation as to the currently identified environmental
          issues)(emphasis added).
Apart from the unqualified release language providing for the release of all future
claims for contamination, the language found in Paragraph 9 limits the Settlement
Agreement to only those environmental matters identified by DNREC at the time
the parties entered into the agreement in May 2009. That provision, apart from the


all further required investigation and/or remediation and monitoring required by DNREC at the
Harrington Location.”
11
     E.g., Nw. Nat’l Ins. Co. v. Esmark, Inc., 672 A.2d 41, 43 (Del. 1996).
12
     Council of Dorset Condo Apartments v. Gordon, 801 A.2d 1, 7 (Del. 2002).

                                                   9
balance of the document, conceivably reserves Mr. Duncan’s right to seek
indemnification for new contamination.
          The Delaware Supreme Court addressed a similar issue of contract
interpretation in the context of a motion to dismiss in VLIW Technology, L.L.C. v.
Hewlett-Packard Co.13           There, the Court confronted an agreement between
Hewlett-Packard and Multiflow Computer, Inc., which had provisions within the
contract providing for nearly opposite results regarding confidentiality.14              In
interpreting the agreement, the Supreme Court recognized that since the agreement
provided for two sets of competing, contradictory interpretations, the contract was
ambiguous. 15 After finding ambiguity, the Court in turn recognized that “[b]ecause
the provisions at issue in the Agreement are susceptible to more than one
reasonable interpretation, for purposes of deciding a motion to dismiss, their
meaning must be construed in the light most favorable to the non-moving party.”16
Therefore, when there are multiple interpretations of a contract and the non-
moving party’s interpretation of the contract is reasonable, at this preliminary
stage, the Court must construe the contract in favor of the non-moving party.
          A basic tenet of contract construction provides that “[w]here there is an
apparent repugnance or conflict between two clauses or provisions of a contract, it
is the province and duty of the court to find harmony between them and reconcile
them if possible.”17 If they cannot be reconciled, then an ambiguity exists. Under

13
     840 A.2d 606, 609 (Del. 2003).
14
     Id. at 614.
15
  Id.; see also 17A Am. Jur. 2d Contracts § 326 (2016) (recognizing that “[a]mbiguity exists
where the terms of the contract are inconsistent on their face . . . .”).
16
     VLIW Tech., LLC, 840 A.2d at 615.
17
     17A Am. Jur. 2d Contracts § 326 (2016).

                                               10
Delaware law, “ambiguity exists when the provisions in controversy are reasonably
or fairly susceptible of different interpretations.” 18
       At this preliminary stage, the outcome of this motion is the same whether the
language in Paragraph Nine is read to limit the balance of the document or
separately read to create an ambiguity in the contract. In reading the competing
provisions to be ambiguous, the Settlement Agreement is reasonably and fairly
susceptible to two differing interpretations. A reasonable interpretation of the
contract recognizing the intent that it be a broad release would be warranted from
the referenced intent in the Whereas clauses, as well as Paragraphs Two, Three,
and Eight. Together these provisions seem to unequivocally provide for complete
insulation against STTCPL’s future liability. Further, as is apparent at the initial
pleading stage, the Settlement Agreement in Paragraph 8 provides for a complete
release of liability for DNREC Project Identification Number K0804036. This
identical Project Number is referenced as the remediation at issue in the January
2012 Notice of Violation for which Mr. Duncan now seeks indemnification.
       However, another reasonable interpretation of the contract giving effect to
Paragraph Nine (whether by finding it consistent and limiting as to the whole
document or contradictory to the above-mentioned provisions), is that the language
found therein limits the release of liability to only those environmental matters that
were currently identified in 2009 when the parties entered the Settlement
Agreement.      Here, alternatively by either giving effect to Paragraph 9 of the
Settlement Agreement, or by recognizing that the contract has two reasonable but
differing interpretations, Mr. Duncan pleads facts that could conceivably provide
for recovery.


18
  E.g., VLIW Tech., LLC, 840 A.2d at 615; Kaiser Aluminum Corp. v. Matheson, 681 A.2d 392,
395 (Del. 1996).

                                            11
         As the Delaware Supreme Court held in VLIW Technology LLC, when the
non-moving party cites a reasonable interpretation of the contract, the Court looks
to that interpretation when deciding a motion to dismiss pursuant to Rule 12(b)
(6).19 Under that reasonable interpretation of the document, the Court then must
determine, whether the non-movant could prevail on any set of facts.                       When
drawing all favorable inferences in favor of Mr. Duncan in that light, he could
recover.
         Namely, the allegations permit a reasonable inference that DNREC issued
the 2012 Notice of Violation due to new contamination. DNREC’s notice included
data DNREC collected from the gasoline station. 20 The earliest study cited in the
notice is dated October 16, 2009, four months after the parties entered the
Settlement Agreement.21 Furthermore, in the notice at issue, DNREC noted that
“dissolved lead may be omitted from future sampling.” A reasonable inference at
this stage is that the study cited provides that the 2012 violation was not generated
by the sale of leaded gasoline. Since Mr. Duncan alleges that he only sold leaded
gasoline while he operated the station and that the 2009 violation related to only
contamination from lead, there is a reasonable inference that this contamination
occurred after the parties entered into the Settlement Agreement. Furthermore, that
the January 2012 notice of violation referred to the exact same Project
Identification Number as that completely released in the agreement is not
dispositive for Rule 12(b) (6) purposes because there is no evidence available

19
     840 A.2d at 615.
20
     DNREC January notice of violation, Defendant’s motion to dismiss ex. A.
21
   The Court recognizes that the January 23, 2012 notice of violation refers to this as “[t]he most
recent data,” permitting a contrary inference that the notice does in fact apply to the prior
identified contamination. Since no testing data from before the Settlement Agreement is cited in
the notice, however, a favorable inference for Mr. Duncan is warranted.

                                                12
regarding DNREC’s procedures for identifying projects. Since the Court must
construe the Settlement Agreement in favor of Mr. Duncan’s interpretation and
evaluate only his well pleaded allegations at this stage, Mr. Duncan could prevail
on this breach of contract claim.
      Likewise, the Court must also deny STTCPL’s motion regarding Mr.
Duncan’s second breach of contract claim for unpaid rent.           Under the lease,
STTCPL was required to pay rent. Mr. Duncan alleges that STTCPL did not pay
$48,000 in back rent owed since the underground storage tanks were removed in
December 2013. STTCPL argues that a portion of the $70,000 paid pursuant to a
settlement agreement with DNREC constituted escrowed rent. STTCPL argues
that this payment was made on behalf of Mr. Duncan to DNREC and therefore was
not a breach of the lease agreement. In response, Mr. Duncan argues that he never
authorized STTCPL to pay escrowed rent to DNREC on his behalf, and therefore,
STTCPL breached the lease.
      At this stage, the parties did not supply the Court with a copy of the lease.
Accordingly, there is no indication whether the rent obligation was somehow
conditional or that STTCPL had a contractual right to withhold rent, place it into
escrow, and then pay it to a third party. Nor has it been established at this point
that Mr. Duncan breached the contract in a way that could have justified
STTCPL’s anticipatory repudiation of the contract by withholding rent. The only
issues before the Court at this point are that rent is allegedly owed and that
STTCPL allegedly breached that obligation.
      While it is possible that STTCPL obtained the authority to make payments
to DNREC on Mr. Duncan’s behalf or were otherwise justified in doing so, there is
no indication of that before the Court. Here, STTCPL points to no assignment of
right, statutory provisions, contractual right, or court order permitting this action.
Accordingly, STTCPL’s motion to dismiss the claim for back rent is denied.
                                         13
B.        Mr. Duncan adequately pleads a negligence claim.
          Mr. Duncan also sues (1) Coastal for its alleged negligence, and (2)
STTCPL vicariously as Coastal’s principal. Delaware law requires a party to plead
negligence with particularity. 22 Superior Court Civil Rule 9(b) requires that “the
circumstances constituting . . . negligence . . . [to] be stated with particularity.” 23
Delaware courts have interpreted Rule 9(b)’s pleading standard to be one of
fairness and notice.24 To satisfy this pleading standard, a complaint must set forth
enough detail to inform an opponent of the “charges so as to be able to prepare a
defense to them.” 25 In order to satisfy this purpose, “it is usually necessary to
allege only sufficient facts out of which a duty is implied and a general averment
of failure to discharge that duty.”26
          Here, Mr. Duncan’s Complaint sufficiently does both. First, the Complaint
adequately alleges a general duty of care owed by Coastal in that Coastal had the
duty to exercise reasonable care when removing the underground storage tanks.
Admittedly, while the Complaint references only general violations of Federal and
State regulations, the Complaint in effect incorporates the January 2012 notice of
violation by stipulation of the parties.                That document specifically identifies
various regulations creating duties, which in fact DNREC at one point alleged
STTCPL violated since the notice of violation was also targeted at STTCPL. For
instance, the January 2012 notice of violation provides after noting, “[t]he specific
22
     E.g., Shively v. Klein, 551 A.2d 41, 44 (Del. 1988) (citing Super. Ct. Civ. R. 9(b)).
23
     Super. Ct. Civ. R. 9(b).
24
     E.g., Fox v. Fox, 729 A.2d 825, 826 n.2 (Del. 1999).
25
  E.g., Chesapeake & Potomac Tel. Co. of Md. v. Chesapeake Utils. Corp., 436 A.2d 314, 338
(Del. 1981).
26
   State Farm v. General Electric Co., 2009 WL 5177156, at *5 (Del. Super. Ct. Dec. 1, 2009)
(citation omitted).

                                                   14
regulation violations are detailed below,” a number of specific Underground
Storage Tank regulations forming duties that Mr. Duncan alleges the three
defendants breached.
       Second, Mr. Duncan’s allegations regarding Coastal’s breach are not
conclusory. Namely, he specifically alleges that Coastal returned contaminated
soil to the same hole from where it removed the gas tanks, thereby worsening the
contamination and increasing the costs associated with its remedy. In response,
STTCPL has not contested agency at this stage of the pleadings or that the
company would be potentially liable for Coastal’s negligence. Instead, STTCPL
limits its argument to alleging that because Mr. Duncan was contractually
responsible for the soil (which the Court understands to mean that he released all
such claims, including claims for negligence), he cannot bring a negligence claim.
Further, STTCPL argues that Mr. Duncan’s damages and proximate cause
allegations were merely conclusory and do not adequately state a claim.
       Here, the Court finds that Mr. Duncan set forth his negligence claim with
adequate detail to place the defendants on sufficient notice to prepare a defense.
Furthermore, he adequately alleges agency for purposes of vicarious liability. 27
After reviewing the Complaint, the Court is satisfied that it contains sufficient
detail to meet Rule 9(b)’s standard regarding all elements of a negligence claim.
Namely, the allegations sufficiently place STTCPL on notice that but for the
negligent actions of Coastal, the environmental harm (and the accompanying costs)
would not be as great. Finally, Mr. Duncan sufficiently alleges that Coastal’s
actions resulted in damages in the amount of $492,014 as well as other various
costs associated with the contamination.               Accordingly, the Court denies (1)

27
  See Fisher v. Townsends, Inc., 695 A.2d 53, 58 (Del. 1997) (stating that “if the principal is the
master of an agent who is a servant, the fault of the agent, if acting within the scope of
employment, will be imputed to the principal by the doctrine of respondeat superior”).

                                                15
Defendant STTCPL’s and (2) Defendant Coastal’s motions to dismiss Mr.
Duncan’s negligence claim.


                                V.    Conclusion

      For the aforementioned reasons, STTCPL’s motion to dismiss for failure to
state a claim is DENIED. Furthermore, since Coastal’s motion regarding this
matter incorporates only those arguments raised by STTCPL, Coastal’s motion to
dismiss is DENIED for the same reasons.

      IT IS SO ORDERED.

                                                /s/Jeffrey J Clark
                                                Judge




                                      16
