IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ROBERT McCABE,
Claimant-below, : C.A. No. Kl7A-02-001 WLW
Appellant, : Kent County
v.

BAYSIDE ROOFING, INC., a
Delaware corporation,

Employer-below,
Appellee.
Submitted: February 27, 2018
Decided: March 12, 2018
ORDER
Upon the Parties’ Motions for Reargument
DENIED.
Walt F. Schmittinger, Esquire and Gary E. Junge, Esquire of Schmittinger &

Rodriguez, P.A., Dover, Delaware; attorneys for the Appellant.

John J. Ellis, Esquire of Heckler & Frabizzio, Wilmington, Delaware; attorney for the
Appellee.

WITHAM, R.J.

Robert McCabe v. Bayside Roofing. Inc.
C.A. No. Kl7A-02-001 WLW
March 12, 2018

Upon consideration of the Appellant’s, Robert McCabe, and the Appellee’s,
Bayside Roofing, Inc., competing Motions for Reargument, as well as each parties’
response in opposition, it appears that:

l. On February 13, 2018, this Court granted in part and denied in part Mr.
McCabe’s motion seeking an award of attorneys’ fees for: (a) the work of his
attorneys on appeal to this Court from a decision of the Industrial Accident Board (the
“IAB”); and (b) the work of his attorneys in preparation of the petition for the fees.l

2. On February 20, 201 8, both parties in this matter filed motions to reargue the
Court’s decision. Mr. McCabe contends that he is entitled to reargument because the
Court apparently erred in reducing the fees requested by his attorneys. Bayside
Roofing contends that it is entitled to reargument because the Court’ s decision relied
heavily upon two cases that were not substantially addressed by the parties in written
briefing or at oral argument.2 Furthermore, Bayside Roofing alleges that these cases
are distinguishable from the present case and that existing case law3 supports that the
issue of an attomey’s fee is not yet ripe for determination Finally, Bayside Roofing
alleges that if final, the Court’s order shall lead to a significant increase in appeals to

the Superior Court by claimant attorneys whenever they are partially or fully

 

l McCabe v. Bayside Roofing, Inc., 2018 WL 835381 (Del. Super. Feb. 13, 2018).

2 See Bythway v. Super Fresh Fooa' Markets, Inc., 1999 WL 1568615 (Del. Super. Nov. 30,
1999); Veid v. Bensalem Steel Erectors, 2000 WL 33113801 (Del. Super. Dec. 28, 2000).

3 See State v. Steen, 719 A.2d 930 (Del. 1998); Lucas v. Leaseway Motorcar Transp., 1999
WL 1568383 (Del. Super. Mar. 1, 1999).

Robert McCabe v. Bayside Roofl`ng. Inc.
C.A. No. K17A-02-001 WLW
March 12, 2018

unsuccessful before the IAB. Thus, both parties believe that reargument is warranted
in this matter.

3. On a motion for reargument under Superior Court Civil Rule 59(e), the only
issue is whether the Court overlooked something that would have changed the
outcome of the underlying decision.4 Thus, the motion will be granted only if “the
Court has overlooked a controlling precedent or legal principles, or the Court has
misapprehended the law or facts such as would have changed the outcome of the

”5 A motion for reargument is not an opportunity for a party to

underlying decision.
rehash the arguments already decided by the Court or to present new arguments not
previously raised.6 A party seeking to have the Court reconsider the earlier ruling
must “demonstrate newly discovered evidence, a change in the law, or manifest
injustice.”7 “Delaware law places a heavy burden on a [party] seeking relief pursuant

to Rule 59.”8

 

4 Brenner v. Vill. Green, Inc., 2000 WL 972649, at *1 (Del. Super. May 23, 2000) ajj‘“d, 763
A.2d 90 (Del. 2000).

5 Kennea'y v. Invacare Corp., 2006 WL 488590, at *1 (Del. Super. Jan. 31, 2006).
6 Id.
7 Brenner, 2000 WL 972649, at *1.

8 Newborn v. Christiana Psychiatric Serv., P.A., 2017 WL 394096, at *2 (Del. Super. Jan.
25, 2017) (citing Koslyshyn v. Comm ’rs of Bellefonte, 2007 WL 1241875, at *1 (Del. Super. Apr.
27, 2007)).

Robert McCabe v. Bayside Roofing. Inc.
C.A. No. Kl7A-02-001 WLW
March 12, 2018

4. In this case, having thoroughly reviewed and considered the parties’ written
submissions, as well as the cited precedent, the Court finds that the Court’s February
13, 2018 Order must stand because the Court is not persuaded that it overlooked a
controlling precedent or legal principles. Nor does the Court believe that it
misapprehended the law or facts such as would have changed the outcome of the
underlying decision. Accordingly, the parties have failed to satisfythe standard under
Rule 59(e) for the Court to grant reargument

5. As a final note, the Court would like to direct the parties to the last
paragraph in Veid because the Court believes that the Honorable William C.
Carpenter Jr. ’s advice is applicable under these circumstances as well. In Veid, Judge
Carpenter stated the following:

[T]he Court realizes that neither counsel will be particularly satisfied
with this ruling since both have suffered wins and losses. While not
satisfied, the Court encourages counsel to put this litigation to rest. In
monetary terms, this is a relatively minor case on which both sides have
spent too much time and energy. lt is arguable that the Court has gone
to the limits of its discretion in making the findings set forth in this
Order, and it is fair to say that additional litigation could result in either
costing the Employer thousands of more dollars or eliminating the award
altogether for the Employee. The Court’s advice is to stop arguing
about this litigation and move on to more significant matters.9

In sum, for the foregoing reasons, the Court holds that:

Mr. McCabe’s Motion for Reargument is hereby DENIED; and

 

9 Veid, 2000 WL 33113801 at *4.

Robert McCabe v. Bayside Roofing. Inc.
C.A. No. Kl7A-02-001 WLW
March 12, 2018

Bayside Roofing’s Motion for Reargument is hereby DENIED.
IT IS SO ORDERED.

/s/ William L. Witham Jr.
Resident Judge

 

WLW/dmh

