   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
             IN AND FOR NEW CASTLE COUNTY

   JEFFREY FURMAN,                    )
                                      )
               Plaintiff,             )
                                      )
                v.                    )
                                      )    C.A. No. N10C-10-164 CLS
   DELAWARE                           )
   DEPARTMENT OF                      )
   TRANSPORTATION,                    )
                                      )
               Defendant,             )
                                      )
               v.                     )
                                      )
   SCOTTSDALE                         )
   INDEMNITY COMPANY,                 )
                                      )
               Third-Party            )
               Defendant.

                     Date Submitted: January 2, 2015
                      Date Decided: March 23, 2015

       On Defendant’s Motion for Summary Judgment. GRANTED.

                                    ORDER

Frederick H. Schranck, Esq., Delaware Attorney General, Delaware Department of
Justice, Dover, Delaware 19903. Attorney for Defendant Delaware Department of
Transportation.

Anthony A. Figliola, Jr. Esq., Figliola & Figliola, Wilmington, Delaware 19810.
Attorney for Plaintiff.

Bruce C. Herron, Esq., Losco & Marconi, P.A., Wilmington, Delaware. Attorney
for Third-Party Defendant Scottsdale Indemnity Company.

Scott, J.
                                    Introduction

        Before the Court is Defendant Delaware Department of Transportation’s

(“Defendant” or “DelDOT”) Motion for Summary Judgment on Plaintiff Jeffrey

Furman’s (“Plaintiff”) Amended Complaint. The Court has reviewed the parties’

submissions.     For the following reasons, Defendant’s Motion for Summary

Judgment is GRANTED.

                                    Background

        Plaintiff alleges that Defendant was grossly negligent in failing to maintain

Pennsylvania Avenue at Pasture Street, and that Defendant violated 11 Del. C. §

4001.

        On October 24, 2008, Plaintiff stepped into an uncovered maintenance box

while crossing Pennsylvania Avenue at Pasture Street in Wilmington, Delaware.

Plaintiff alleges there were no warning signs. As a result, Plaintiff claims to have

suffered permanent injuries, including a tear of his left Achilles tendon, bilateral

ankle strain, right rotator cuff syndrome, right wrist sprain, right should strain and

instability.

        On December 20, 2010, DelDOT filed a motion to dismiss asserting the

defense of sovereign immunity and attaching the affidavit of Debra Lawhead (“Ms.

Lawhead”), Insurance Coverage Officer for the State of Delaware, to show that

neither the State nor DelDOT had waived immunity because neither purchased



                                       2
insurance coverage applicable to Plaintiff’s injuries. 1          The Court granted the

motion based on statements contained in Ms. Lawhead’s affidavit. 2 On October

19, 2011, the Supreme Court reversed the decision, holding that, in order for this

Court to rely on the affidavit, it was required to formally convert the motion into a

summary judgment motion and provide notice to the parties.3 The Supreme Court

found that the trial court erred by ruling prematurely without giving Plaintiff an

opportunity to discover whether an insurance policy existed. 4            Therefore, the

Supreme Court ultimately remanded the case to allow the trial court to reconsider

the motion and provide a reasonable opportunity for the parties to present factual

material. 5

       On remand, this Court allowed DelDOT to add Scottsdale Indemnity

Company’s (“Scottsdale”) as a party to this lawsuit. 6 On November 22, 2013,

Plaintiff asserted a third-party claim against Scottsdale alleging that Scottsdale was

liable for DelDOT’s damages because it provided insurance coverage to DelDOT.7

On March 26, 2014, DelDOT filed its Third-Party Complaint against Scottsdale. 8

       On April 2, 2014, Scottsdale moved to dismiss DelDOT’s Third-Party

Complaint under Del. Super. Ct. Civ. R. 12(b)(6) on the ground that the

1
  D.I. 3.
2
  Order dated Mar. 29, 2011.
3
  Furman v. Delaware Dep't of Transp., 30 A.3d 771, 774 (Del. 2011).
4
  Id. at 774.
5
  Id. at 775.
6
  DelDOT Mot. to Add a Party, D.I. 23; Order dated Aug. 19, 2013.
7
  Amended Compl. at ¶¶ 19-20.
8
  D.I. 45.
                                          3
unambiguous terms of the its policy (the “Scottsdale Policy”) do not provide

DelDOT coverage for Plaintiff’s injuries. On July 9, 2014, this Court granted

Scottsdale’s Motion to Dismiss Third-Party Complaint, finding that the Scottsdale

Policy was unambiguous and did not provide coverage to DelDOT for the type of

injury claimed by Plaintiff in this action. 9

       Defendant filed a renewed Motion to Dismiss on August 1, 2014, based on

the Court’s July 9 ruling. The Court sent a letter on October 28, 2014, informing

the parties that Defendant’s renewed motion to dismiss must be converted to a

motion for summary judgment as Defendant asked the Court to consider evidence

outside the scope of the pleadings.

       On December 14, 2014, Defendant filed this Motion for Summary Judgment

of Plaintiff’s Amended Complaint.

                                    Standard of Review

       The Court may grant summary judgment if “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

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

party is entitled to summary judgment as a matter of law.” 10 The moving party

bears the initial burden of showing that no material issues of fact are present.11

Once such a showing is made, the burden shifts to the non-moving party to

9
  Order dated July 9, 2014.
10
   Super. Ct. Civ. R. 56(c); Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
11
   Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
                                            4
demonstrate that there are material issues of fact in dispute.12 In considering a

motion for summary judgment, the Court must view the record in a light most

favorable to the non-moving party. 13 “Summary judgment will not be granted

when a more thorough inquiry into the facts is desirable to clarify the application

of the law to the circumstances.” 14

                                         Discussion

       Defendant did not waive sovereign immunity in this case. The Eleventh

Amendment prohibits suits against the individual state in federal courts. 15 In

Delaware, “[s]uits may be brought against the State, according to such regulations

as shall be made by law.” 16 In other words, unless explicitly waived by the

General Assembly, sovereign immunity is an absolute bar to liability claims

against the State. 17 The General Assembly must express clear intent to waive

sovereign immunity. 18 However, the defense of sovereign immunity is waived

when the risk of loss is covered by the state insurance program. 19 The purpose of

the Insurance for the Protection of the State Act 20 is “to protect the public from



12
   Id. at 681.
13
   Burkhart, 602 A.2d at 59.
14
   Phillip-Postle v. BJ Prods., Inc., 2006 WL 1720073, at *1 (Del. Super. Apr. 26, 2006).
15
   U.S. Const. amend. XI.
16
   Del. Const. Art. I, § 9.
17
   Turnbull v. Fink, 668 A.2d 1370, 1374 (Del. 1995) (citing Wilmington Housing Authority v.
Williamson, 228 A.2d, 782, 786 (Del. 1697).
18
   Pauley v. Reinoehl, 848 A.2d 569, 573 (Del. 2004) (citations omitted).
19
   18 Del. C. § 6511.
20
   18 Del. C. § 6501 et. seq.
                                           5
wrongful acts committed by governmental officials by waiving the State’s

sovereign immunity up to a legislatively imposed ceiling.” 21

       In order for Plaintiff to prevail in a suit against the State brought under the

State Torts Claims Act, 22 he must show that: “(1) the State has waived the defense

of sovereign immunity for the actions mentioned in the complaint; and (2) the State

Torts Claims Act does not bar the action.” 23 The State Torts Claims Act bars the

action when:

       (1) The act or omission complained or arose out of and in connection
       with the performance of an official duty requiring a determination of
       policy, the interpretation or enforcement of statutes, rules or
       regulations, the granting or withholding of publicly created or
       regulated entitlement or privilege or any other official duty involving
       the exercise of discretion on the public officer, employee or member
       shall have supervisory authority;
       (2) The act or omission complained of was done in good faith and in
       the belief that the public interest would best be served thereby; and
       (3) The act or omission complained of was done without gross or
       wanton negligence[.] 24

       However, when the General Assembly enacted 10 Del. C. § 4001, it did not

intend “to waive sovereign immunity in all cases where a ministerial act was

performed with gross or wanton negligence or in bad faith.” 25 On interlocutory

appeal, the Delaware Supreme Court held “10 Del. C. § 4001, part of the State Tort

Claims Act, does not constitute a waiver of sovereign immunity where the State

21
   Pauley, 848 A.2d at 573 (citation omitted).
22
   10 Del. C. § 4001-4005.
23
   Pauley, 848 A.2d at 573.
24
   10 Del. C. § 4001.
25
   Doe v. Cates, 499 A.2d 1175, 1180 (Del. 1985).
                                           6
has not provided insurance coverage, even where a party alleges gross

negligence.” 26 Therefore, if there is no insurance available to cover the type of

loss or risk alleged in the complaint, then sovereign immunity is a bar to recovery.

       In this case, Plaintiff is unable to prove a set of facts that could entitle him to

relief because Defendant does not have insurance to cover the type or risk or loss

alleged in Plaintiff’s Amended Complaint. As Ms. Lawhead 27 indicated in her

affidavit, she is responsible for administering the Insurance Determination

Committee policies for the State and has personal knowledge of those policies.

She also stated that neither the State nor DelDOT has purchased insurance for the

type of circumstances listed in Plaintiff’s Amended Complaint. Moreover, upon

the addition of Scottsdale as a party to the case and discovery to determine whether

its insurance policy for DelDOT was applicable to this case, the Court determined

that the Scottsdale Policy unambiguously did not provide coverage to DelDOT for

the type of risk or loss alleged in Plaintiff’s Amended Complaint. 28 Accordingly,

Plaintiff’s allegation in his complaint that Defendant acted with gross negligence is

not sufficient to overcome the bar to recovery under sovereign immunity because

there is no insurance available to cover that type of risk or loss.




26
   State of Delaware Dep't of Health & Soc. Services v. Sheppard, 864 A.2d 929 (Del. 2004).
27
   The Insurance Coverage Administrator for the State of Delaware.
28
   See Order dated July 9, 2014.
                                           7
                             Conclusion

   For the foregoing reasons, Defendant’s Motion for Summary Judgment is

GRANTED.


   IT IS SO ORDERED.

                                     /s/Calvin L. Scott
                                     Judge Calvin L. Scott, Jr.




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