IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

DELMARVA POWER & LIGHT CO.
Plaintiff,
v.

DRU B. SMITH and BLEVINS INC.,
Defendants,

VERIZON DELAWARE LLC,
Defendant/Third-Party Plaintiff,

V.

COMCAST CABLE COMMUNICATIONS, LLC

Third-Party Defendant

Submitted:

Decided:

Lisa C. McLaughlin, Esquire
Phillips, Goldman, McLaughlin & Hall, P.A.
1200 North Broom Street
Wilmington, DE 19806
Attomeyfor Plainti]jF

Mary E. Sherlock, Esquire
Weber Gallagher Simpson Stapleton
Fires & Newby, LLP
19 South State Street, Suite 100
Dover, DE 19901
Attorneyfor Defendant/Third-Parly
Plaintijj” Verizon Delaware LLC

C.A. NO. CPU4-16-003020

V\./\/\/\/V\./VVVV\./\/\/\./\/\/V\_/

April 5, 2017
April 20, 2017

Michael J. Logullo, Esquire
Rawle & Henderson LLP
300 Delaware Avenue, Suite 1105
P.O. BOX 588
Wilmington, DE 19899
Attorneyfor Defendants
Dru B. Sml'th and Blevins Inc.

Krista E. Shevlin, Esquire
Franklin & Prokopik
300 Delaware Avenue, Suite 1210
Wilmington, DE 19801
Attorneyfor Third-Party Defendant
Comcast Cable Communications, LLC

MEMORANDUM OPINION AND ORDER
ON THIRD-PARTY DEFENDANT’S MOTION TO DlSMISS

This is an action for negligence The third-party defendant, Comcast Cable
Communications, LLC (hereinafter “Comcast”), brings this motion under Court of Common
Pleas Civil Rule 12(b)(6), alleging the third-party complaint fails to comply with Rule 14(a).

On March 31, 2017, a hearing was convened on the Motion, at which time the parties
presented oral argument and were given the opportunity to submit supplemental briefingl After
reviewing the parties’ briefs and arguments, the Court reserved decision. This is the Final

Decision of the Court on Comcast’s Motion to Dismiss.

STANDARD OF REVIEW
Due to the early procedural stage and the nature of the instant Motion, there is no factual
record beyond the pleadings ln accordance with the standard for reviewing a motion under Rule
12(b)(6), the Court will assume all of the relevant facts in the pleadings are true.2 The Court will
only dismiss the third-party complaint if the third-party plaintiff “would not be entitled to

recover under any reasonably conceivable set of circumstances susceptible to proof.”3

 

1 Defendants Smith and Blevins were present for the hearing, but took no position. Plaintiff was not present for the
hearing

2 Battista v. Chrysler Corp., 454 A.Zd 286, 287 (Del. Super. 1982). On April 5, 2017, Defendants Smith and
Blevins filed a letter with the Court seeking assurance the instant ruling would not preclude them from filing their
own third-party complaint against Comcast. While the Court accepts all well-pled facts as true for the purposes of
the instant Motion, those facts will not be controlling on any future motions. Therefore, the ruling on this Motion
will not per se preclude Defendants Smith and Blevins from filing or succeeding on a motion to amend, and any
rulings on such a motion will be dependent upon whether the motion itself complies with the Rules and established

case law.
3 Id.

FACTS AND PROCEDURAL HISTORY

The genesis of the underlying cause of action is an accident in which a truck, owned by
defendant Blevins, Inc. and operated by defendant Dru B. Smith, struck wires attached to a
utility pole owned by the plaintiff, Delmarva Power and Light Company (hereinafter
“Delmarva”). Delmarva alleged in its complaint the wires belonged to the defendant, Verizon
Delaware LLC (hereinafter “Verizon”), and were not kept above eighteen feet.

In its answer, Verizon denied liability, and stated “Verizon had no overhead wires at the
incident location.”4 Verizon filed a crossclaim for contribution and indemnification against the
other defendants and filed a third-party complaint against Comcast. Verizon reiterated its
assertion the truck did not strike Verizon’s wires and instead alleged the wires belonged to

Comcast. Comcast then filed the instant Motion to Dismiss in lieu of an Answer.

PARTIES’ CONTENTIONS

Comcast argues Rule 14(a) only permits a defendant to file a third-party complaint
against a joint tortfeasor. Comcast must owe Verizon some duty, thereby entitling Verizon to be
indemnified by Comcast for its own liability to Delmarva. According to Comcast, because
Verizon has disclaimed all liability to Delmarva, there is no circumstance under which Comcast
may be liable to Verizon for Verizon’s nonexistent liability to Delmarva.

Verizon argues it is entitled to indemnity from Comcast because Comcast is the actual
wrongdoer. According to Verizon, the allegations support the conclusion Verizon is entitled to

implied indemnification, despite the lack of an express contract between Verizon and Comcast.

 

4 Verizon’s Answer at 11 5.

DISCUSSION
There are two issues before the Court: whether there are sufficient facts to suggest
Verizon is entitled to implied indemnification and, if not, whether Verizon’s third-party
complaint entitles Verizon to relief from Comcast as a third-party defendant

a. Implied Indemnification

Verizon cited to Frabizzl`o v. Hena'ry5 and Pana'ora Jewelry, Inc. v. Stephen’s Jewelers,
LLC6 in support of its contention regarding implied indemnification As confirmed in Frabizzio,
Delaware courts recognize implied indemnity based upon the particular circumstances of the
case.7 However, in Frabizzio, the Court found sufficient facts to support implied indemnification
because the Court found there was an implied contract, inferred from the conduct of the parties.8
ln Pandora, the Court likewise found the pleadings supported implied indemnification because
of the nature of the claims for breach of contract, fraud, and misrepresentation9

In Waa'e v. Jessop ’s Tavem, Inc.,10 implied indemnity did not exist when the parties had
an express contract barring indemnification, ln Davis v. R.C. Peoples, Inc.,ll implied indemnity
existed when the claims arose from a subcontractor agreement12 In Riverside Funa’ V., L.P. v.
Shyamsuncilar,l3 implied indemnity existed where the claims arose from a purchase agreement

All of these cases have one fact in common: some form of contractual or quasi-

contractual relationship between the parties Verizon has not cited, and the Court has not found,

 

5 2015 wL 7254317 (Dei. Com. Pi. Nov. 16, 2015) (smaiis, CJ).

6 2012 wL 2371043 (Dei. Com_ Pi. Jun. 22, 2012) (smaiis, CJ).

7 Frabizzio, supra, at *3.

8 1a

9 Pandora, supra, at *7.

10 2016 wL 7158593 (Del. super. Dec. 6, 2016).

11 2003 wL 21733013 (Dei. super. iui. 25, 2003).

12 The same conclusion was reached by the Superior Court in Thompson v. Murata Wiea’emann, Inc., 2010 WL
596504, at *2 (Del. Super. Feb. 19, 2010).

‘3 2015 wL 5004924 (Del. Super. Aug. 17, 2015).

any cases establishing a claim for implied indemnification between two parties with no prior
relationship relevant to the injury in question. ln essence, the parties here are part of a triangle,
with Delmarva at the top and Verizon and Comcast at the bottom. If there is no line between
Verizon and Delmarva, and if there is no line between Verizon and Comcast, then Verizon is a
stranger to both Delmarva and Comcast and has no basis for indemnification At the absolute
minimum, Verizon was required to demonstrate some knowledge of or relation to Comcast
relevant to the injury in question, as the Court will not permit indemnification between total
strangers.14 Therefore, the Court does not find Verizon has pled sufficient facts to support a
claim for implied indemnification, as Verizon has specifically disclaimed any involvement with
the utility lines in question and has not alleged any relation to Comcast.

b. Pleading Requirements Under Rule 14(a)

Pursuant to Rule 14(a), a defendant may implead a third party “who is or may be liable to
the third-party plaintiff for all or part of the plaintiffs claim against the third-party plaintiff.”
Delaware law is well settled in requiring the third-party defendant to be “one who is or may be
liable to [the] defendant-third party plaintiff for all or part of the plaintiffs claim against
defendant.”15 As summarized by the Court of Chancery, “[a] defendant's ability to succeed on
his [or her] third-party claim must be dependent upon the plaintiffs success on his [or her] claim,

and the third party's liability must be derivative of the defendant's liability to the plaintiff.”16

 

'4 “Indernnity implies a primary or basic liability in one person, although a second is also liable with the first to a
third; and a discharge of the obligation by the second person leaves him or her with a right to secure compensation
from the one who, as between themselves, is primarily liable, the obligation being based altogether on the law's
notion of what is fair and proper between the parties.” 42 C.J.S. Indemnity § 2.

‘5 Nesmizh v. Lynn, 377 A.2d 352, 353 (Del. 1977).

16 Tuscan Constr., Inc. v. Capala'i, 2016 WL 3212491, at *l (Del. Ch. May 24, 2016).

5

Verizon cited to Sinex v. Bishop17 and Spence v. Cherian,18 which Verizon summarized
as granting dismissal of third-party defendants because the original plaintiffs could not have
joined the third-party defendants Verizon appears to have focused on the following statement
from Spence: “if a plaintiff could not have originally sued the third-party defendant on a given
claim, the claim against the third-party defendant also must be dismissed.”19 Verizon
distinguished the dismissals in Sinex and Spence by arguing Delmarva “could have brought a
direct action against Comcast but, for unknown reasons, chose not to assert a claim against
Comcast.” lt appears as though Verizon has taken one possible ground for dismissing a third-
party complaint - when the original plaintiff could not have initiated the cause of action against
the third-party defendant - and treated it as a requirement for dismissal Simply because
Delmarva could have filed a complaint against Comcast does not grant Verizon a per se right to
file a third-party complaint against Comcast. Accordingly, while the statements in Sinex and
Spence are good law, they do not provide any assistance to Verizon’s claim.

By Verizon’s own pleadings, Verizon has disclaimed all potential liability to Delmarva
and has disputed its wires were even present on the utility pole in question. Taking the pleadings
as true, there are no possible scenarios wherein Verizon may be liable to Delmarva.
Accordingly, there are no possible scenarios where Comcast may be liable to Verizon. The logic
is simple. If Verizon may be liable to Delmarva, and if Comcast may be liable to Verizon for

some or all of Verizon’s liability to Delmarva, then third-party liability is permissible By

 

11 2005 wL 3007805 (Del. super oct 27, 2005).

18 135 A.3d 1282(De1. super. 2016).

19 Id. at 1287. Immediately prior to this sentence, the Superior Court stated “A third-party complaint will be
dismissed where “it is clearly without merit, which may be either a matter of law or fact.” In turn, the Court should
dismiss a claim if a third-party plaintiff fails to plead, or cannot make out on the facts pleaded, an essential element
of that claim.” Id. The Superior Court was listing the various grounds upon which dismissal is appropriate

6

disclaiming the very possibility of liability to Delmarva, Verizon has pled away its only theory
for including Comcast as a party.

According to Verizon’s third-party complaint, the “incident and all resulting damages
were caused solely by and were the direct and proximate result of the negligence and

”20 Verizon went on to allege Comcast “is alone liable to

carelessness of Comcast[.]
Plaintiff[.]”21 Under the facts alleged in the third-party complaint, the Court cannot find any

legal basis to maintain an action against Comcast as a third-party defendant

CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED this 20th day of April, 2017,

that Comcast’s Motion to Dismiss is GRANTED. Comcast shall be dismissed from this action.

 
  

   

- -`-`-"'*'--_

Carl C. Danbe g

cc: Tamu White, Judicial Case Management Supervisor

 

20 Verizon’s Third-Party Complaint at 11 6.
21 Id. at 11 7.

