      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
PAMELA I. MONTGOMERY,                     )
Individually and as Administrator         )
of the Estate of                          )
THOMAS J. MONTGOMERY,                     )
THOMAS K. MONTGOMERY,                     )
JEREMY MONTGOMERY, and                    )
HARRY I. MONTGOMERY,                      )
                                          )
                  Plaintiffs,             )     C.A. No. N11C-11-047 AML
                                          )
            v.                            )
                                          )
WILLIAM MOORE AGENCY, INC.,               )
LYNN M. HITCHENS, and                     )
MID-STATE INSURANCE, INC.,                )
                                          )
                  Defendants.             )

                         Date Submitted: March 7, 2016
                         Date Decided: March 31, 2016

                         MEMORANDUM OPINION

              Upon Defendants’ Motion for Summary Judgment
                                DENIED


Timothy E. Lengkeek, Esq., Young Conaway Stargatt & Taylor, LLP, Wilmington,
Delaware, Attorney for Plaintiffs.

Thomas P. Leff, Esq., Casarino Christman Shalk Ransom & Doss, P.A.,
Wilmington, Delaware, Attorney for Defendant William Moore Agency

Krista R. Samis, Esq., Eckert Seamans Cherin & Mellott, LLC., Attorney for
Defendant Mid-State Insurance, Inc.


LEGROW, J.
      In their motion for summary judgment presently before the Court,

Defendants contend that a stipulation assigning to Plaintiffs certain claims for

negligence is either (1) unenforceable because the stipulation released the

assignors from liability for damages, thereby extinguishing any negligence claim,

or (2) void as the product of collusion. For the reasons set forth below, I conclude

Defendants are incorrect on both counts. Plaintiffs are entitled to pursue the

assigned claims in a jury trial scheduled to begin in a matter of weeks.

Background

      The following facts are drawn from the record currently before the Court,

viewed in the light most favorable to the non-moving party. Mr. and Mrs. Poynter

(the “Poynters”) own two businesses: Poynter’s Tree Farm (“PTF”) and Christmas

Shop, Inc. (“CSI” and collectively with PTF, “PTF/CSI”). Their daughter, Robin

Achenbach, and her husband, Mark Achenbach (“Achenbach” and collectively

with Robin, the “Achenbachs”) own property leased by the Poynters from which

the Poynters grow Christmas trees to supply their business. The Achenbachs also

worked at CSI during the holiday season.

       On June 28, 2004, Achenbach used his personal vehicle to drive an

exterminator to and from the leased property in order to obtain an estimate for

spraying bug-infested trees with insecticides.         On the way back to the

exterminator’s office, Achenbach drove directly in the path of a motorcycle driven


                                          1
by Thomas J. Montgomery (“Montgomery”) at the intersection of Woodyard Road

and Route 13 in Harrington, Delaware.                    Montgomery attempted to avoid

Achenbach’s vehicle but was thrown into the air. After living in a vegetative state

for six years, Montgomery died on July 25, 2010.

       On November 30, 2004, Montgomery’s wife filed a personal injury suit,

which later became a wrongful death suit, against the Achenbachs, Poynters, and

PTF/CSI. In 2008, PTF/CSI filed cross-motions for summary judgment on the

issue of whether Achenbach was an agent of PTF/CSI. On January 23, 2009, this

Court granted PTF/CSI’s motion for summary judgment (the “2009 Summary

Judgment Decision”), reasoning that no employment relationship existed between

Achenbach and PTF/CSI, and there was no evidence that Achenbach had express,

implied, or apparent authority to bind PTF/CSI.1 On February 18, 2009, the

Montgomerys petitioned the Delaware Supreme Court for an interlocutory review

of the 2009 Summary Judgment Decision. 2 That interlocutory appeal was denied

on February 20, 2009. 3 On January 10, 2011, shortly after the Montgomerys hired

new counsel, the Montgomerys, Poynters, and Achenbachs entered into a

stipulation to submit to binding arbitration the issue of damages (the

“Stipulation”).4


1
  Montgomery v. Achenbach, 2009 WL 406810 (Del. Super. Jan. 23, 2009).
2
  Montgomery v. Achenbach, 966 A.2d 348 (Del. 2009) (TABLE).
3
  Id.
4
  A copy of the Stipulation is attached to Defs.’ Mot. Summ. J. as Ex. E. (“Stip.”).
                                                  2
       In the Stipulation, the parties agreed there was no dispute as to liability,

causation, or agency.         The only issue before the arbitrator, therefore, was a

determination and award of damages to the Montgomerys. The Montgomerys,

however, agreed not to “execute, garnish, or otherwise collect on the Judgment

from [the Achenbachs, Poynters, or PTF/CSI] beyond available insurance

coverage, to include coverage under assigned claims.” 5 The Stipulation further

provided that, regardless of the arbitrator’s decision, the Achenbachs, Poynters,

and PTF/CSI would face no personal exposure to damages. The parties also

agreed to assign to the Montgomerys “any and all of [the Poynters’, the

Achenbachs’, and PTF/CSI’s] rights to pursue collection of the Judgment from any

and all sources other than [the assignors], and agree to cooperate in [the

Montgomerys’] collection efforts.”6             Additionally, the parties agreed to seek

vacatur of the 2009 Summary Judgment Decision.

       On February 14, 2011, this Court signed the Stipulation and vacated the

2009 Summary Judgment Decision. Meanwhile, the parties engaged in arbitration

on January 11, 2011, which resulted in a damages award to the Montgomerys

against the Achenbachs, Poynters, and PTF/CSI.7




5
  Stip. ¶ 3.
6
  Id. at ¶ 5.
7
  A copy of the arbitration decision, dated February 3, 2011, is attached as Ex. C to Pls.’ Resp.
Mot. Summ. J.
                                                 3
       In the action presently pending before me, based on the assignment of rights

in the Stipulation, the Montgomerys (“Plaintiffs”) have brought a negligence claim

against the William Moore Agency, Lynn Hitchens, and Mid-State Insurance, Inc.

(“Defendants”).     In their complaint, Plaintiffs allege Defendants breached the

standard of care by failing to provide the correct insurance coverage for CSI. After

discovery, Defendants now have moved for summary judgment on the basis that

the assignment in the Stipulation is not enforceable. 8

       The Stipulation contains a concession of liability and agency coupled with

an agreement not to execute and an assignment. Defendants do not contend that

this type of agreement is void per se under Delaware law. The vast majority of

states permit agreements such as this one, absent specific evidence of collusion

between the parties.9 Moreover, Defendants do not argue that the language of this

agreement is invalid. Rather, Defendants contend that the facts surrounding this

agreement make it unreasonable and collusive.

       Specifically, Defendants argue that the Stipulation released the Poynters and

PTF/CSI from liability and, as a result, no negligence action can lie against

8
  On December 27, 2013, Defendants previously moved for summary judgment on a different
basis. On February 27, 2015, this Court granted Lynn Hitchens’ unopposed motion for summary
judgment and denied William Moore Agency’s motion for summary judgment. Montgomery v.
William Moore Agency, 2015 WL 1056326 (Del. Super. Feb. 27, 2015) (reargument denied April
14, 2015).
9
  Associated Ins. Serv., Inc. v. Garcia, 307 S.W.3d 58, 64-65 (Ky. 2010); Stateline Steel
Erectors, Inc., 837 A.2d 285, 288 (N. H. 2003) (“The majority of jurisdictions have found such
assignments valid.”); Kobbeman v. Oleson, 574 N.W.2d 633, 637 (S.D. 1998); Red Giant Oil Co.
v. Lawlor, 528 N.W.2d 524 (Iowa 1995).
                                                 4
Defendants because no damages were suffered.            Defendants argue in the

alternative that the agreement was collusive. Defendants contend that because

PTF/CSI had been dismissed from the action two years before stipulating to

agency, PTF/CSI voluntarily incurred damages those entities would not have

suffered without the Stipulation.    In other words, Defendants argue that, by

stipulating to agency and asking this Court to vacate the 2009 Summary Judgment

Decision, the parties created a cause of action that did not exist. This conduct,

Defendants insist, amounted to collusion.

      Plaintiffs respond that the Stipulation was not a release, but rather a

covenant not to execute, and the assignment, coupled with the damages award,

therefore was sufficient to give rise to a cause of action against Defendants. As to

the issue of collusion, Plaintiffs contend that the evidence of agency presented a

strong likelihood that the 2009 Summary Judgment Decision would have been

reversed on appeal.    Plaintiffs further argue that both the language and the

circumstances surrounding the Stipulation show it is valid and reasonable.

Plaintiffs explain away the two-year gap by a change of counsel, which occurred in

August 2010.




                                         5
Analysis

       Summary judgment may be granted when there is no genuine issue of fact

and the moving party is entitled to judgment as a matter of law. 10 If the moving

party sustains the initial burden, the burden then shifts to the non-moving party to

demonstrate there are material issues of fact for resolution by the ultimate fact-

finder.11

       The Court must view the evidence in the light most favorable to the non-

moving party. 12 It will accept “as established all undisputed factual assertions . . .

and accept the non-movant’s version of any disputed facts. From those accepted

facts[,] the court will draw all rational inferences which favor the non-moving

party.” 13

       There are two questions presented by Defendants’ motion. The first such

question is whether the Stipulation was a “release,” which would have the effect of

extinguishing any damages claim against the Poynters and PTF/CSI, such that no

negligence claim could be asserted against Defendants. The second question the

motion raises is whether – even if the Stipulation is not a release – it is void

because of collusion.


10
   E. I. du Pont de Nemours & Co. v. Stonewall Ins. Co., 2009 WL 1915212 (Del. Super. June
30, 2009).
11
   Brzoska v. Olsen, 668 A.2d 1355, 1363 (Del. 1995).
12
   Id. at 1364.
13
   Marro v. Gopez, 1994 WL 45338 (Del. Super. Jan. 18, 1998) (citing Merril, 606 A.2d at 99-
100).
                                               6
       A. The Stipulation is not a release that extinguished liability at the time
          it was executed.

       Although Defendants argue there is no Delaware case on point regarding

whether the Stipulation was a release, the Court of Chancery’s decision in Starr v.

Nationwide Mutual Insurance Co. indicates the Stipulation was a covenant not to

execute or a “conditional release.”14 In Starr, the passenger in an auto accident

obtained a judgment against the driver of a van that collided with the car in which

the passenger was riding.15       Attempting to collect the entire judgment, the

passenger sued the van driver’s insurance carrier. 16 To do that, the passenger

entered into an “assignment agreement” under which the van driver “assigned her

claims against [her] [i]nsurance [carrier] to [the passenger] in exchange for

[passenger’s] promise to accept the assignment as full payment and satisfaction of

any claims against [the driver].” 17

       In Starr, Vice Chancellor Hartnett concluded the assignment agreement was

not a present release, explaining that a valid release may be drafted so that it

becomes operative in the future, which is known as a “conditional release.”18 The

Court reasoned the release at issue in Starr was conditional because it was subject

to a condition precedent: termination of the passenger’s litigation against the


14
   548 A.2d 22 (Del. Ch. 1988).
15
   Id. at 24.
16
   Id.
17
   Id.
18
   Id. at 25-26.
                                         7
insurance carrier.19      Vice Chancellor Hartnett therefore concluded the release

would not become effective until that condition was met, and the driver remained

legally obligated on the judgment until that time. 20

       Defendants attempt to distinguish Starr on the basis of factual differences –

Starr involved statutorily required insurance and a jury verdict – and also pointed

out that the Supreme Court did not affirm Starr on “those grounds” (the

conditional release) specifically. 21 These differences are not material distinctions,

however, and Defendants concede that the pertinent language in the agreement in

Starr is “very similar” to the assignment in this case.22

       The weight of authority in other jurisdictions also supports the conclusion

that the Stipulation was not a presently operative release. 23               For example, in

Stateline Steel Erectors, Inc. v. Shields, the Supreme Court of New Hampshire

analyzed an agreement where Stateline Steel Erectors, Inc. stipulated to liability for

a substantial judgment upon contractors’ indemnification claims and assigned to

the contractors “any claims it had for liability arising from the employee’s

accident, including any claims regarding the provision of insurance coverage to

19
   Id. at 26.
20
   Id. at 26.
21
   Montgomery v. Achenbach, C.A. No.: N11C-11-047 AML, at 17 (Mar. 7, 2016)
(TRANSCRIPT) (“Tr.”); see Nationwide Mut. Ins. Co. v. Starr, 575 A.2d 1083 (Del. 1990)
(holding: (1) insurance policy did not give insurer a right of subrogation with respect to
uninsured motorist coverage, and (2) action for reformation of policy to include underinsured
coverage was not barred by laches).
22
   Tr. 17.
23
   Stateline Steel Erectors, Inc., 837 A.2d 285 at 287; Kobbeman, 574 N.W.2d at 637.
                                                  8
Stateline.”24 “In exchange, the contractors agreed ‘not to attempt to satisfy the

remainder of the stipulated judgment in any way against Stateline’ or its insurer”25

and to satisfy the judgment “only through payment from Stateline’s insurer and the

prosecution of the assigned claims.” 26               Stateline agreed to a payment “by its

insurance carrier in full satisfaction of the judgment.” 27

       The court found that Stateline was damaged “because of the settlement

agreement,” concluding Stateline “must still endure the adversity of litigation and

might suffer diminishment of its credit rating, among other intangible harms.”28

The Supreme Court of New Hampshire further found that “[a]ccording to the plain

meaning of its terms, the agreement was a covenant not to sue or execute the

judgment against Stateline, not a release” and that the assignment of the claims

therefore was valid. 29

       Similarly, the Supreme Court of South Dakota examined an assignment in

which a plaintiff agreed not to execute on a judgment. 30 In Kobbeman v. Oleson,

the Kobbemans “agree[d] and covenant[ed] not to execute on any judgment

obtained against the Daniels” in exchange for an assignment of claims. 31 The court

agreed “with those courts upholding assignments of a cause of action in exchange
24
   Stateline Steel Erectors, Inc., 837 A.2d at 287.
25
   Id.
26
   Id.
27
   Id.
28
   Id. at 290.
29
   Id. at 291.
30
   See Kobbeman, 574 N.W.2d 633.
31
   Id. at 636.
                                                  9
for a covenant not to execute in instances of failure to procure requested

insurance.”32 The Supreme Court of South Dakota concluded: “We fail to see why

legally it should make any difference who sues the insurer–the insured or the

insured’s assignee.”33

          Here, although the Montgomerys agreed not to execute or collect on the

judgment, the fact of the judgment itself has consequences. For example, potential

creditors will be able to discover the existence of the judgment. The Poynters will

not be released from the judgment until all efforts are exhausted to collect from the

various insurers or agencies. The fact that the Montgomerys will not execute on

that judgment does not alter those consequences. Under Starr, and similar cases, I

find that the Stipulation created a conditional release or a covenant not to execute,

not a present, operative release.

          B. The Defendants have not demonstrated by a preponderance of the
             evidence that the Stipulation was unreasonable or the product of bad
             faith.

          As a preliminary matter, it first is necessary to resolve the burden of proof

underlying the question of whether the agreement is unreasonable or collusive.

Although it was not raised in the briefs, the parties agreed on the standard during

oral argument: Plaintiff bears the burden of producing evidence that the agreement




32
     Id.
33
     Id. at 637 (citing Red Giant Oil Co. v. Lawlor, 528 N.W.2d 524 (Iowa 1995)).
                                                  10
is “prima facie reasonable.”34 The burden then shifts to the insurer to show, by a

preponderance of the evidence, that the agreement was “neither reasonable nor

reached in good faith.” 35 Several other courts have adopted that standard and,

since it was agreed upon by the parties, I will apply it here. In my view, Plaintiffs

have established that the Stipulation is “prima facie reasonable.” Defendants have

not produced evidence of unreasonableness.

       It is evident, as Defendants reluctantly acknowledge, that the Poynters

continued to face the prospect of liability even after the 2009 Summary Judgment

Decision due to the possibility that decision would be reversed on appeal.36 Given

the Montgomerys’ efforts to pursue an interlocutory appeal, it is reasonable to

conclude an appeal of the 2009 decision would have been filed after a final order

was entered in that litigation. It also is reasonable to conclude there was at least a

fair prospect that appeal would have succeeded. As this Court explained in its

February 27, 2015 decision denying Defendants’ motion for summary judgment,

“there is substantial evidence from which a jury could conclude that Achenbach

was the Christmas Shop’s employee or agent.”37 This prospect of liability renders

34
   Ayers v. C & D Gen. Contractors, 269 F.Supp.2d 911 (W.D. Ky. 2003) (citing Griggs v.
Bertram, 443 A.2d 163, 173-74 (1082)).
35
   Ayers, 269 F.Supp.2d at 916.
36
   During oral argument, Defendants’ counsel acknowledged that the Poynters’ surrendered
defense – the summary judgment decision - was not “absolutely winning;” see Midwestern
Indem. Co. v. Laikin, 119 F.Supp.2d 831, 845 (S.D. Ind. 2000) (finding an “absolute defense”
was not surrendered but agreeing that where an insured surrenders “an obviously winning
defense to all liability, that surrender would be evidence of bad faith or collusion”).
37
   Montgomery v. William Moore Agency, 2015 WL 1056326 (Del. Super. Feb. 27, 2015).
                                                  11
reasonable the Poynters’ and PTF/CSI’s decision to enter into the Stipulation. The

burden thus shifts to Defendants, who have failed to establish by a preponderance

of the evidence that the Poynters’ and PTF/CSI’s concession of liability and

assignment of their claims in exchange for the conditional release was either

unreasonable or the product of bad faith. Defendants’ evidence of collusion is: (1)

the fact that summary judgment was granted to the Poynters and PTF/CSI; (2) the

familial relationship between the Poynters and Achenbachs; and (3) the two-year

window between the 2009 Summary Judgment Decision and the Stipulation.

      The Poynters may well have wanted to shield their daughter and son-in-law

from liability, but little discovery was taken on the issue and the Defendants

adduced no evidence of collusion from the discovery they did take. For example,

Defendants deposed the Poynters’ personal counsel, who negotiated the

Stipulation, but Defendants point to no evidence of collusion from that deposition.

It appears the two-year delay between 2009 and 2011 was attributable to the

Montgomerys’ change in counsel, rather than any collusive intent by the parties to

the Stipulation.   It also is significant that the concession of agency by the

Achenbachs, Poynters, and PTF/CSI is not binding on Defendants and will not be

offered into evidence at trial by the Montgomerys. Thus, Defendants remain free




                                        12
to contest agency at trial, an issue this Court already has determined is a disputed

fact that must be submitted to the jury. 38

       Contrary to Defendants’ argument, my conclusion that the Stipulation and

assignment are valid and enforceable does not contravene public policy. Public

policy favors allowing insured parties to act in their best interest. 39 An insured

“must be allowed to consider all available options-particularly if the possibility

exists that the insurer will be absolved from providing coverage.”40 Facing the

possibility that the 2009 Summary Judgment Decision would be overturned on

appeal and they would be left with a substantial judgment against them, the

Poynters behaved rationally. Defendants are in no worse position by the Poynters’

decision than Defendants would have faced if the summary judgment decision had

been overturned on appeal.




38
   Id.
39
   See Miller v. Shugart, 316 N.W.2d 729, 733-34 (Minn. 1982) (“If as here, the insurers are
offered a settlement that effectively relieves them of any personal liability, at a time when their
insurance coverage is in doubt, surely it cannot be said that it is not in their best interests to
accept the offer. Nor, do we think, can the insurer who is disputing coverage compel the
insureds to forego a settlement which is in their best interests.”).
40
   Ayers, 269 F.Supp.2d at 915 (citing Miller, 316 N.W.2d 729).
                                                  13
Conclusion

      In conclusion, the Stipulation is a conditional release and the Defendants

have failed to show it is more likely than not that the Stipulation is a collusive

agreement.    For the foregoing reasons, Defendants’ Motion for Summary

Judgment is DENIED.



                                                 __/s/ Abigail M. LeGrow__
                                             Abigail M. LeGrow, Judge


Original to Prothonotary
cc: Timpthy E. Lengkeek, Esquire
    Thomas P. Leff, Esquire
    Krista R. Samis, Esquire




                                       14
