IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ACW CORPORATION a/k/a
ARBY’S, and EASTERN ALLIANCE
INS. CO., as Subrogee of SHANARA
DEVON WATERS,

Plaintiffs,

V. C.A. No. NI8C-02-004 CLS
CHRISTOPHER ROBERT
MAXWELL, and DONEGAL
MUTUAL INS. CO. a/k/a DONEGAL
INS. GROUP,

Defendants.

Date Submitted: June 26, 2019
Date Decided: July 10, 2019

On Defendants’ Motion for Summary Judgment
Granted

On Plaintiffs’ Cross-Motion for Summary Judgment
Denied

Gary W. Alderson, Esquire, Elzufon Austin & Mondell, P.A., Wilmington,
Delaware, Attorney for Plaintiff.

Colin M. Shalk, Esquire, Casarino Christman Shalk Ransom & Doss, P.A.,
Wilmington, Delaware, Attorney for Defendants.

Scott, J.
Plaintiff ACW Corporation (“Arby’s”) and its workers’ compensation insurer,
Plaintiff Eastern Alliance Insurance Company (“Eastern Alliance”), as subrogee of
Shanara D. Waters, filed this subrogation suit against Defendants Christopher
Maxwell and Donegal Mutual Insurance Company, Maxwell’s automobile insurance
carrier, seeking reimbursement of $13,133.25 in workers’ compensation benefits
paid to Ms. Waters.’ At issue is whether $12,500 of the total amount sought by
Plaintiffs is eligible for reimbursement under 19 Del. C. § 2363.

Background

Ms. Waters, acting in the course and scope of her employment, was injured in
a motor vehicle accident in February 2016 when a motor vehicle operated by
Defendant Maxwell drove into her vehicle.” Thereafter, Ms. Waters filed a petition
with the Industrial Accident Board (“IAB”) indicating that she had been unable to
work since the time of the motor vehicle collision as a result of the injuries she
sustained.*? In the months that followed, Ms. Waters and Eastern Alliance, on behalf
of Arby’s, agreed to a settlement. The terms of this settlement became a petition for
commutation filed with the IAB in December 2017, which was subsequently

approved in January 2018.4 Pursuant to the IAB’s Stipulation & Order for

 

' Pls.” Compl.

2 Id. 4 6-7.

3 Ex. A at 3 of Pls.’ Cross-Mot for Summ. J. [hereinafter, “Pls.” Cross-Mot.”’].
4 Td.
Commutation between Ms. Waters and Arby’s (the “Commutation Agreement’), the
terms of the settlement provided for the following:
The parties have agreed to commute any and all workers’ compensation
benefits including, but not limited to, temporary total disability
benefits, temporary partial disability benefits, permanent impairment
benefits, disfigurement benefits, death benefits and past, present and
future medical benefits, to which [Ms. Waters] may now be or in the

future become entitled, pursuant to the provisions of 19 Del. C. §§
2322, 2324, 2325, 2326, and 2330.°

Plaintiffs filed this action in February 2018, seeking reimbursement of the
$13,133.25 paid in workers’ compensation benefits to Ms. Waters.° Defendants
thereafter filed a Motion for Summary Judgment, asserting that $12,500 of the
$13,133.25 claimed is for matters not recoverable under the Workers’ Compensation
Act.” In response, Plaintiffs filed a Cross-Motion for Summary Judgment.®

Parties’ Assertions

Defendants argue that commuted future benefits are not recoverable under the
Workers’ Compensation Act. Included in Defendants’ motion is the sworn affidavit
of Joel H. Fredricks, Esq., counsel for Ms. Waters. Mr. Fredricks states that all of
the medical bills and lost wages related to the motor vehicle accident were submitted

to and paid by the personal injury protection (“PIP”) carrier except for medical bills

 

> Ex. C of Defs.’ Mot. J 3 (Stipulation & Order for Commutation) [hereinafter, “IAB
Commutation Order].

° Pls.” Compl. § 8.

’ Defs.’ Mot.

5 Pls.’ Cross-Mot.
in the amount of $633.25.? Mr. Fredricks further avers that, at the time of the
Commutation Agreement, Ms. Waters did not have any outstanding medical
expenses, any present claims for lost wages, or any medical reports identifying future
medical expenses or lost wages.'° Defendants contend that Section 2363 did not
require Eastern Alliance to grant a commutation, thus any amount paid to Ms. Waters
under the Commutation Agreement for future claims were “speculative” and “based
upon nothing.”!!

According to Plaintiffs, it is irrefutable that the commutation paid to Ms.
Waters is a qualified payment under Section 2363 because the terms of the
Commutation Agreement included potential future workers’ compensation
benefits.'* Plaintiffs contend that there is no distinction between an amount sought

in subrogation and the purely speculative future damages Waters could have

collected herself from the tortfeasor.!?

 

° Fredricks Aff. § 3.

01d. 4 5.

'! Defs.’ Resp. to Cross-Mot. for Summ. J. § 3; see id. J 7-8 (“At the time of the
commutation settlement there was actually nothing due to Waters and no proof
submitted to the Board that anything ever would be due.”).

!2 Pls.’ Cross-Mot. § 3(f).

'3 Td. ¥ 5(e).
Standard of Review
Summary judgment is appropriate where the record indicates that there are no

t.'4 However, if it seems desirable to inquire more

genuine issues of material fac
thoroughly into the facts in order to clarify the application of law to the
circumstances, summary judgment will be denied.'? The moving party bears the
burden of demonstrating the absence of material issues of fact.'® In determining
whether the moving party has satisfied this burden, the Court must view the evidence
in the light most favorable to the non-moving party.'’ Where, as here, the parties
have filed cross-motions for summary judgment, the standard for summary judgment
is not altered.!®
Discussion

Section 2363(e) of the Delaware Workers’ Compensation Act provides for an

employer’s right to reimbursement and reads as follows, in relevant part:
(e) In an action to enforce the liability of a third party, the
plaintiff may recover any amount which the employee . . . would be

entitled to recover in an action in tort. Any recovery against the third
party for damages resulting from personal injuries or death only, after

 

'4 Del. Super. Ct. Civ. R. 56(c).
15 Burris v. Penn Mart Supermarkets, Inc., 2006 WL 2329373, at *1 (Del. Super. Ct.

July 13, 2006) (citing Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962)).
16 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).

'7 United Vanguard Fund, Inc. v. Takecare, Inc., 693 A.2d 1076, 1079 (Del. 1997);
Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).

18 Total Care Physicians, P.A. v. O'Hara, 798 A.2d 1043, 1050 (Del. Super. Ct.
2001) (citing United Vanguard Fund, Inc. v. TakeCare, Inc., 693 A.2d 1076, 1079
(Del. 1997).

5
deducting expenses of recovery, shall first reimburse the employer or

its workmen's compensation insurance carrier for any amounts paid or

payable under the workmen's compensation act to date of recovery, and

the balance shall forthwith be paid to the employee . . . and shall be

treated as an advance payment by the employer on account of any future

payment of compensation benefits.!”

Defendants contend that the first sentence of Section 2363(e) provides that the
measure of damages recoverable to an injured employee are those that the employee
would be able to recover “in an action in tort,” and thus commutation, permanent
partial disability payments, and other benefits exclusively created by the Act are not

20

recoverable from a third party tortfeasor.’ Plaintiff says the statute’s second

sentence expands the form of available recovery but the damages result from
personal injury.

Here, all lost wages and all but $633.25 of the medical expenses from the
motor vehicle collision were paid by the PIP carrier. Plaintiffs cannot offer evidence
that any of the $12,500 commutation are damages resulting from the personal
injuries Ms. Waters suffered from the motor vehicle collision. There is no dispute.

Based on the parties’ filings and oral arguments, any damages related to the

commutation would be speculative and not proved with reasonable probability. The

 

'9 19 Del. C. § 2363(e); see also Dickinson v. E. R.R. Builders, 378 A.2d 650, 651

(Del. Super. Ct. 1977).
20 Defs.’ Mot. for Summ. J. §§ 12-13 (“Section 2636 makes it clear that while the

employer or the worker’s [sic] compensation carrier may pursue its own claim under
subsection (a) for a tort claim the worker’s [sic] compensation carrier can only
recover those claims in tort.”).

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amount paid to Ms. Waters for medical bills associated with the motor vehicle
accident are entitled to reimbursement. Accordingly, the Court orders $633.25 to
Plaintiffs.
Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment is
GRANTED. Plaintiffs’ Cross-Motion for Summary Judgment is DENIED.

IT IS SO ORDERED.

BESO

Judge Calvin L'Scott, Jr.
