       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CARMELA POWELL,                          )
                                         )
      Plaintiff,                         )
                                         )
      v.                                 )     C.A. No. N18C-12-233 ALR
                                         )
STATE OF DELAWARE                        )
DEPARTMENT OF                            )
CORRECTIONS,                             )
                                         )
      Defendant.                         )

                               Submitted: June 8, 2020
                               Decided: June 16, 2020

                   Upon Defendant’s Motion for Summary Judgment
                                    GRANTED

                                       ORDER

      Upon consideration of Defendant’s unopposed1 motion for summary

judgment; the facts, arguments, and authorities set forth by Defendant; the Superior

Court Rules of Civil Procedure; statutory and decisional law; and the entire record

in this case, the Court hereby finds as follows:




1
  Plaintiff’s deadline to file a response to Defendant’s motion has been extended
several times. While the Court appreciates that Plaintiff is currently proceeding as
a self-represented litigant, “[t]here is no different set of rules for [self-represented]
plaintiffs, and the trial court should not sacrifice the orderly and efficient
administration of justice to accommodate [a self-represented] plaintiff.” Draper v.
Med. Ctr. of Del., 767 A.2d 796, 799 (Del. 2001).
      1.     Plaintiff Carmela Powell (“Plaintiff”) filed this action alleging that she

was injured while visiting an inmate at the James T. Vaughn Correctional Center.

The Complaint alleges that Defendant State of Delaware, Department of Corrections

(“Defendant”) negligently caused Plaintiff’s injuries.

      2.     Defendant, a State agency, moved to dismiss the Complaint arguing (1)

that Plaintiff’s claims are barred by the doctrine of sovereign immunity and (2) that

Plaintiff failed to perfect service under 10 Del. C. § 3103. Attached to Defendant’s

motion is an affidavit of Debra Lawhead, the Insurance Coverage Administrator of

the State of Delaware, which supports Defendant’s sovereign immunity argument.

Accordingly, the Court converted Defendant’s motion to dismiss into a motion for

summary judgment2 and afforded the parties additional time to present all materials

pertinent to such a motion.3

      3.     The Court may grant summary judgment only where the moving party

can “show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.”4 A genuine issue of material fact




2
  See Super. Ct. Civ. R. 12(b) (“If, on a motion . . . to dismiss for failure of the
pleadings to state a claim upon which relief can be granted, matters outside the
pleading are presented to and not excluded by the Court, the motion shall be treated
as one for summary judgment . . . .”).
3
  See D.I. 46; accord Super. Ct. Civ. R. 12(b) (“[A]ll parties shall be given reasonable
opportunity to present all material made pertinent to such a motion by Rule 56.”).
4
  Super. Ct. Civ. R. 56(c).
                                           2
is one that “may reasonably be resolved in favor of either party.”5 The moving party

bears the initial burden of proof and, once that is met, the burden shifts to the non-

moving party to show that a material issue of fact exists.6 At the motion for summary

judgment phase, the Court must view the facts “in the light most favorable to the

non-moving party.”7 Summary judgment is appropriate only if Plaintiff’s claims

lack evidentiary support such that no reasonable jury could find in Plaintiff’s favor.8

      4.     “[T]he doctrine of sovereign immunity provides that neither the State

nor a State agency can be sued without its consent. The General Assembly, however,

can waive sovereign immunity by an Act that clearly evidences an intention to do

so.”9 There are two means by which the State may waive sovereign immunity: (1)

by procuring insurance coverage under 18 Del. C. § 6511 for claims in the

Complaint; or (2) by statute which expressly waives immunity.10

      5.     The affidavit of Ms. Lawhead establishes that the State has not waived

immunity by procuring insurance coverage under 18 Del. C. § 6511.11 Ms. Lawhead


5
  Moore v. Sizemore, 405 A.2d 679, 680–81 (Del. 1979).
6
  Id.
7
  Brozka v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
8
   See Hecksher v. Fairwinds Baptist Church, Inc., 115 A.3d 1187, 1200–05 (Del.
2015); Edmisten v. Greyhound Lines, Inc., 2012 WL 3264925, at *2 (Del. Aug. 13,
2012).
9
  Pauley v. Reinoehl, 848 A.2d 569, 573 (Del. 2004).
10
   Parker v. Wireman, 2012 WL 1536934, at *1–2 (Del. Super. Apr. 30, 2012); J.L.
v. Barnes, 33 A.3d 902, 913 (Del. Super. Ct. 2011).
11
    See Caraballo v. Del. Dep’t of Corr., 2001 WL 312453, at *1 (Del. Super. Mar.
22, 2001) (“The Courts have consistently relied on such affidavits in determining
                                          3
avers that she reviewed the Complaint and that “[t]he State of Delaware, and its

agency . . . thereof, has not purchased any insurance . . . that would be applicable to

the circumstances and events alleged in the [C]omplaint.”12            Moreover, Ms.

Lawhead’s affidavit confirms that the “General Assembly [has not] enacted any

legislation pertaining to or allowing any possible liability of the State resulting from

the facts as alleged in said Complaint.”13 Ms. Lawhead’s affidavit also confirms that

no other statute waives immunity in this instance14—a proposition that Plaintiff has

not contested. “The Courts have consistently relied on such affidavits in determining

that the State has not waived sovereign immunity . . . because there is not insurance

coverage for the risks presented.”15 Moreover, the Court has found no statutory

enactment by which the General Assembly has waived sovereign immunity for

claims arising from the facts alleged here.




that the State has not waived sovereign immunity . . . because there is not insurance
coverage for the risks presented.”); see also, e.g., Jackson v. State, 2000 WL
33115718, at *1–2 (Del. Super. July 7, 2000) (finding the State did not waive
sovereign immunity “[b]ased upon the unrebutted affidavit” of the State Insurance
Coverage Administrator).
12
   Aff. Debra Lawhead ¶ 4.
13
   Aff. Debra Lawhead ¶ 5.
14
   See Aff. Debra Lawhead ¶ 5; see also Parker, 2012 WL 1536934, at *2 (“Where
neither [waiver under Section 6511 nor waiver under another statute] is present, the
[S]tate normally files an affidavit of the director of the State of Delaware Insurance
Office so stating and sovereign immunity is established.”).
15
   Caraballo, 2001 WL 312453, at *1.
                                            4
         6.   Accordingly, the doctrine of sovereign immunity bars Plaintiff’s claims

against Defendant and Defendant is therefore entitled to judgment as a matter of

law.16

         NOW, THEREFORE, this 16th day of June 2020, Defendant’s motion for

summary judgment is hereby GRANTED and JUDGMENT is entered in favor

of Defendant.

         IT IS SO ORDERED.

                                                                                                                                 Andrea L. Rocanelli
                                              ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____




                                              The Honorable Andrea L. Rocanelli




16
  Having found that sovereign immunity bars Plaintiff’s claims, the Court does not
reach the issue of whether Plaintiff failed to perfect service under 10 Del. C. § 3103.
                                            5
