           IN THE SUPREME COURT OF THE STATE OF DELAWARE

NICOLE B. VERRASTRO, as               §
Surviving Daughter of Bridget E.      §
Verrastro and Administratrix of the   §
Estate of Bridget E. Verrastro,       §   No. 233, 2018
                                      §
      Plaintiff Below,                §
      Appellant,                      §   Court Below—Superior Court
                                      §   of the State of Delaware
      v.                              §
                                      §   C.A. No. N14C-10-159
BAYHOSPITALISTS, LLC, d/b/a           §
Bayhealth Hospitalists, LLC,          §
                                      §
      Defendant Below,                §
      Appellee.                       §

                         Submitted: January 16, 2019
                         Decided:   April 8, 2019

Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and
TRAYNOR, Justices, constituting the Court en Banc.

Upon appeal from the Superior Court. REVERSED and REMANDED.

Ben T. Castle, Esquire (argued) and Bruce L. Hudson, Esquire, Hudson & Castle
Law, LLC, Wilmington, Delaware, for Appellant Nicole B. Verrastro.

Gregory S. McKee, Esquire and Lauren C. McConnell, Esquire (argued), Wharton
Levin Ehrmantraut & Klein, P.A., Wilmington, Delaware, for Appellee
Bayhospitalists, LLC.
TRAYNOR, Justice:

         Does the dismissal of a medical negligence claim against two physicians on

statute-of-limitations grounds bar the prosecution of a timely filed claim based on

the same underlying facts against the physicians’ employer under the doctrine of

respondeat superior? The Superior Court, relying on our decision in Greco v.

University of Delaware,1 ruled from the bench that the dismissal of the physicians

effectively extinguished the claims against the physicians’ employer and therefore

entered summary judgment in the employer’s favor.2

         The Superior Court correctly read Greco, and under Greco’s teaching, the

Superior Court’s dismissal was proper. In this en banc decision, however, we

conclude that Greco should be overruled to the extent that it held that, if a plaintiff

has failed to sue the employee whose malpractice allegedly injured her within the

statute of limitations, she is for that reason alone barred from suing the employer

under principles of respondeat superior. Because in this case the plaintiff sued the

employer in a timely manner, settled principles of law authorize the plaintiff to

proceed against that employer. Although the plaintiff must of course prove her claim

against the employer, including that the employee was negligent, the fact that she




1
    619 A.2d 900 (Del. 1993).
2
    App. to Op. Br. A107 (“A__” hereafter).

                                              2
failed to sue the employee in a timely manner does not act to immunize the employer.

Accordingly, we reverse the judgment of the Superior Court.

                              I. BACKGROUND

      For the most part, the facts surrounding the medical negligence allegations are

not germane to this appeal, but a brief summary of those facts follows.

      On August 12, 2012, Bridget Verrastro went to the emergency room at

Milford Memorial Hospital complaining of breathing difficulties. 3         She was

discharged later that day with an antibiotic prescription and with instructions to

schedule an appointment with a thoracic surgeon. 4 Bridget’s breathing difficulties

worsened, however, and the next day she went to the emergency room of Kent

General Hospital, which is part of the same hospital system as Milford Memorial.

At Kent General, Bridget was examined and treated by Dr. Rebekah Boenerjous and

Dr. Tricia Downing (the “Doctors”), employees of Appellee Bayhospitalists, LLC,

which operates under the name of Bayhealth Hospitalists, LLC (“Bayhealth”). But

despite the Doctors’ efforts, Bridget’s condition quickly worsened, and at 1:07 a.m.

on August 14, 2012, Bridget was pronounced dead.5 Kent General performed an

autopsy on Bridget, and the examining physicians found a large “mediastinal mass,”




3
  A393.
4
  A107–08; A104.
5
  A109–10.



                                         3
i.e., a tumor, within Bridget’s chest. 6 That tumor, while composed in part of benign

substances, constricted Bridget’s breathing and blood flow and ultimately caused

Bridget’s fatal heart failure. 7

       In October 2014, Nicole Verrastro, Bridget’s daughter, acting as the personal

representative of Bridget’s estate, filed a medical negligence action against several

healthcare providers, including the Doctors and Bayhealth. Verrastro’s complaint

alleged that the Doctors’ failure to diagnose and treat the tumor caused her mother’s

suffering and death. Verrastro did not file the action within the two-year statute of

limitations period ordinarily applicable to medical negligence actions. Instead, she

attempted to toll the statute by sending Notices of Intent under 18 Del C. § 6856(4)

to Bayhealth and the Doctors.8

       All three of the Notices were sent to Bayhealth’s address. But unbeknownst

to Verrastro, both of the Doctors had left the employ of Bayhealth, and the Notices

to the Doctors went undelivered and were returned to Verrastro’s counsel as

undeliverable. Thus, Bayhealth received the Notice before the two-year statutory

period had expired, but the Doctors did not.


6
  A111–12.
7
  A112.
8
  Under 18 Del. C. § 6856(4), “A plaintiff may toll the . . . statutes of limitations [for medical
malpractice] for a period of time up to 90 days from the applicable limitations contained in this
section by sending a Notice of Intent to investigate to each potential defendant or defendants by
certified mail, return receipt requested, at the defendant’s or defendants’ regular place of
business. . . . The 90 days shall run from the last day of the applicable statute of limitations
contained in this section.”

                                                4
       Despite the failed delivery of the Doctors’ notices, when Verrastro filed her

action on October 17, 2014—inarguably beyond the ordinary two-year statutory

period but within the tolling 90-day period under 18 Del C. § 6856(4)—she named

both Bayhealth and the Doctors as defendants. Not surprisingly, the Doctors moved

to dismiss on the grounds that the complaint was barred by the two-year statute of

limitations.9 In September of 2015, the Superior Court granted the Doctors’ motion.

After the Doctors were dismissed, the suit then proceeded to discovery, which failed

to produce evidence supporting a direct, non-vicarious claim against Bayhealth.

       After discovery, Bayhealth moved for summary judgment on the grounds that,

because all claims against the Doctors had been dismissed, the vicarious claims

against Bayhealth based on the doctrine of respondeat superior were no longer

viable. The Superior Court, relying on our decision in Greco, granted Bayhealth’s

motion. This appeal followed.

                           II. STANDARD OF REVIEW

       We review grants of summary judgment and questions of law de novo. 10

                                    III. ANALYSIS

       The essence of the Superior Court’s decision below and Bayhealth’s response

to Verrastro’s contention on appeal—relying almost exclusively on Greco—is that,


9
  The Doctors also raised Verrastro’s failure to properly and timely serve the Doctors within 120
days after the filing of the Complaint. See Super. Ct. Civ. R. 4(j).
10
   Ramirez v. Murdick, 948 A.2d 395, 399 (Del. 2008); LeVan v. Indep. Mall, Inc., 940 A.2d 929,
932 (Del. 2007).

                                               5
in a suit against an employer under the doctrine of respondeat superior, “a time bar

against the individual [tortfeasor] employee accrues to the benefit of the

employer.”11 For her part, Verrastro says that Bayhealth reads Greco too broadly

and that settled respondeat superior law dictates a different result. Because the

application of Greco was case-dispositive below and further because a portion of

Greco’s reasoning appears to be in tension with, if not contrary to, another precedent

of this Court, Fields v. Synthetic Ropes, Inc.,12 we are compelled to re-examine

Greco.

                      A. General respondeat superior principles

       Under the “well entrenched doctrine of agency law” 13 known as respondeat

superior,14 “[a]n employer is subject to liability for torts committed by employees

while acting within the scope of their employment.”15 In Fields, Chief Justice

Wolcott explained the doctrine’s rationale:

       The liability thus imposed upon the employer arises by reason of the
       imputation of the negligence of the employee to his employer through
       application of the doctrine of respondeat superior. The foundation of

11
   Answering Br. 13.
12
   215 A.2d 427 (Del. 1965).
13
   Hecksher v. Fairwinds Baptist Church, Inc., 115 A.3d 1187, 1209 (Del. 2015) (Vaughn, J.,
dissenting) (quoting Mark J. Loewenstein, Imputation, The Adverse Interest Exception, and The
Curious Case of the Restatement (Third) of Agency, 84 U. COLO. L. REV. 305, 309–10 (2013)).
14
   “Respondeat superior” literally translated means “let the master answer.” Respondeat Superior,
Black’s Law Dictionary (10th ed. 2014); Bryan A. Garner, Garner’s Dictionary of Legal Usage
781 (3d ed. 2011).
15
   Restatement (Third) of Agency § 2.04 (2005); see also Restatement (Second) of Agency § 219
(1958).



                                               6
       the action against the employer is still negligence, even though
       liability for that negligence has been broadened to include the
       employer. The imposition of liability on the employer thus arises, not
       because the employee is liable personally for his conduct, but because
       the employer selected an employee who performed the employer’s
       business negligently and caused an injury. As such, the imputation of
       negligence rests squarely upon, and is justified by, the culpability of
       the employee, not upon the circumstance of whether or not the
       employee may, himself, be held liable for his act.16

       Under this explication of the rule, the employer’s liability hinges upon the

employee’s culpability17—as distinguished from the employee’s liability.18

Accordingly, in Fields, we held that an automobile driver’s employer could be held

liable for the employee-driver’s negligence that resulted in injuries to the employee’s

wife despite the fact that the employee was immune from suit under the doctrine of

interspousal immunity. Fields, it would seem, weighs heavily against the Superior

Court’s entry of summary judgment for Bayhealth in this case. But rather than

applying Fields’ rationale, the Superior Court followed what appears to be equally

clear guidance from this Court in Greco pointing in the opposite direction. We

therefore turn to that opinion.




16
   Fields, 215 A.2d at 432 (emphasis added and citations omitted).
17
   I.e., whether the employee has breached a duty. See Culpable, Black’s Law Dictionary (10th
ed. 2014).
18
   I.e., whether a legal remedy is available against that employee. See Liability, Black’s Law
Dictionary (10th ed. 2014) (“The quality, state, or condition of being legally obligated or
accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal
punishment.” (emphasis added)).



                                                7
                           B. Greco v. University of Delaware

       In Greco, we held that “[i]f an employee, who is a licensed health care

provider, is not liable to the plaintiff for medical negligence, neither is the

employer.”19 Greco, a University of Delaware undergraduate student, had sued UD

and one of its physicians after she received a prescription for an oral contraceptive

that produced debilitating side effects, and a UD physician failed to instruct the

student to stop taking the contraceptive even after the student complained of those

side effects to the physician. 20 The suit was filed two years and twelve days after

the UD physician had last rendered care to Greco. Therefore, after discovery, UD

and the physician moved for summary judgment on the grounds that Greco’s claim

was time-barred.

       Greco conceded that the claims against the physician were barred by the two-

year medical-negligence statute, but argued that, under Cole v. League for Planned

Parenthood,21 the claim against UD was subject to the general statute of limitations

applicable to personal injury actions found in 10 Del. C. § 8119 because UD itself

was not a licensed health care provider.22 Although § 8119’s limitations period was


19
   Greco, 619 A.2d at 903.
20
   Id. at 901–02.
21
   530 A.2d 1119 (Del. 1987). In Cole, we held that the two-year medical malpractice statute was
inapplicable to a vicarious claim against on employer for when neither the employer nor the
employee was a licensed health care provider. Here, it is undisputed that the Doctors were licensed
health care providers.
22
   Greco, 619 A.2d at 901 (“[Greco] contends that all of the defendants are subject to the general
personal injury statute of limitations set forth in 10 Del. C. § 8119”).

                                                8
also two years, Greco contended that our interpretation of the discovery rule as

applied to § 8119 rendered her claim timely.

       The Superior Court rejected Greco’s argument and granted summary

judgment in UD’s favor, and we affirmed. We reasoned that on any vicarious

liability claim, UD was protected by the same statute of limitations rule that applied

to its employee. 23

       We do not challenge Greco today to the extent that it stands for the

straightforward proposition that, where the plaintiff first noticed an injury no later

than December 8, 1987, a medical negligence suit filed on December 20, 1989 based

on that injury without the benefit of any additional tolling is untimely. And if that

is all Greco had said, it would not pertain to Verrastro’s claims against Bayhealth,

which were, after all, timely filed by virtue of § 6856’s tolling provision. But that is

not all we said. We turn now to a closer examination of Greco’s rationale and how

it has come into play here.

       Greco’s analysis is grounded on the sound principle that “a viable cause of

action against the employee for negligence is a condition precedent to imputing

vicarious liability for such negligence to the employer pursuant to the theory of


23
   Id. at 904 (“the two-year time limitation in the medical malpractice statute, which admittedly
bars Greco’s claims against Dr. Talbot, accrues to the benefit of her employers”). We also held
that, independently of whether the plaintiff had any viable vicarious claims, the statute of
limitations also barred any direct claim against UD. That holding is not at issue in this case.



                                               9
respondeat superior.24      Greco’s recognition of this principle was followed by

equally sound statements of the rule:

               Where the alleged basis for the liability of an employer is the
       negligence of an employee, the employer cannot be held liable unless
       the employee is shown to be liable. Hence, generally, if absence of
       culpability on the part of the employee to the injured person has been
       established by litigation, the employer cannot be held liable to the
       injured person . . . .
               Accordingly, in an action for medical malpractice, this Court has
       held that the alleged negligence of an employee, who is a health care
       provider, must be the focus of any inquiry into the vicarious liability of
       the employer of that health care provider under the doctrine of
       respondeat superior . . . . If an employee, who is a licensed health care
       provider, is not liable to the plaintiff for medical negligence, neither is
       the employer. Consequently, the alleged negligence of Dr. Talbot must
       be the focus of our inquiry into Greco’s claims against the University
       and the Student Health Care Center, which allege their vicarious
       liability under the doctrine of respondeat superior.25

       To this point, Greco and Fields remain in harmony. But Greco went a step

further:

               Greco’s claims for medical negligence against Dr. Talbot are
       acknowledged by Greco to be barred by the medical malpractice statute
       of limitations. 18 Del. C. § 6856. Since Dr. Talbot (the employee) is
       not liable to Greco on the merits, because Greco’s claims are barred by
       the medical malpractice statute of limitations, there is no vicarious
       liability to be imputed to Dr. Talbot’s employers, the University and the
       Student Health Care Center . . . . The result of the time bar to Greco’s
       claim for medical negligence against Dr. Talbot is a failure of Greco’s
       vicarious claims on the theory of respondeat superior against Dr.
       Talbot’s employers, the University and the Student Health Center. 26

24
   Id. at 903 (citing 2 Mecham on Agency § 2012, pp. 1581–82 (1942) and Restatement (Second)
of Agency § 217B(2) (1958)).
25
   Id. at 903–04 (emphasis added; quotations and citations omitted).
26
   Id. at 904 (emphasis added; citations omitted).

                                            10
       Greco’s characterization of the physician’s statute-of-limitations dismissal as

a determination of his liability “on the merits” was inspired by § 217B(2) of the

Restatement (Second) of Agency. Section 217B(2)—a provision that was not

carried forward in the Third Restatement published in 2005 27—states that “[i]f the

action is based solely upon the tortious conduct of the agent, judgments on the merits

for the agent and against the principal, or judgments of varying amounts for

compensatory damages are erroneous.”28            Because Greco concluded that the

dismissal of the physician on statute-of-limitations grounds was a judgment on the

merits for the physician, the application of § 217B(2) resulted in the “failure of

Greco’s vicarious claims on the theory of respondeat superior against [the

physician’s] employers . . . ,”29 there being “no vicarious liability to be imputed to

[them].”30

       Thus, Greco’s reasoning, to the extent that it substituted the statute-of-

limitations dismissal of the physician for an assessment of the physician’s

culpability, is in tension with itself. Having announced that “the alleged negligence

of the employee, who is a health care provider, must be the focus of any inquiry into




27
   See Restatement (Third) of Agency Par. Table (2006).
28
   Restatement (Second) of Agency § 217B (1958) (emphasis added).
29
   Greco, 619 A.2d at 904.
30
   Id.



                                            11
the vicarious liability of the employer of that health care provider under the doctrine

of respondeat superior,”31 the Court shifted its gaze from the employee’s

negligence/culpability and fixed its gaze on the employee’s dismissal on procedural

grounds.32 And since Greco also appears to run counter to the principle underlying

Fields, a re-examination of Greco’s application of § 217B(2) is appropriate.

                             1. Meaning of “on the merits”

       We note that, under Superior Court Rule of Civil Procedure 41, “[u]nless the

Court in its order for dismissal otherwise specifies, a dismissal under . . . [Rule 41(b)]

and any dismissal not provided for in this Rule, other than a dismissal for lack of

jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates

as an adjudication on the merits.”33 Thus, the Superior Court’s characterization of

the dismissal of the Doctors as “on the merits,” a characterization that underpinned

its application of Greco, finds support in Rule 41.34 But our review of traditional

respondeat superior principles leads us to conclude that § 217B’s “on the merits”

language was not intended to encompass procedural dismissals that do not adjudicate



31
   Id. (emphasis added).
32
   Id.
33
   Super. Ct. Civ. R. 41(b) (emphasis added).
34
   In the Superior Court’s defense, although Verrastro argued in her response to Bayhealth’s
summary judgment motion that “the decision dismissing the [Doctors] was made strictly on
technical and procedural grounds and had nothing to do with the merits of the alleged medical
negligence,” A305–06, neither party cited Fields or undertook an extensive analysis of Greco’s
implications.



                                             12
the wrongfulness of the agent’s conduct. Instead and in context, we believe that the

phrase “judgment on the merits” in § 217B(2) means judgment on the merits of the

conduct, that is, a judgment finding that the employee is not culpable.

         This conclusion is consistent with Fields and the notion that “the crux of

respondeat superior liability is a finding that the employee was negligent” 35 and not

whether the injured person has a right of action against the employee. Likewise, this

approach is consistent with how procedural dismissals are treated in the res judicata

context, where “[a] judgment against the injured person that bars him from

reasserting his claim against the defendant in the first action extinguishes any claim

he has against the other person responsible for the conduct unless . . . [t]he judgment

in the first action was based on a defense that was personal to the defendant in the

first action.”36 Thus, a dismissal can be “on the merits” as it concerns the viability

of another suit against the dismissed party without having a collateral effect on a

potentially responsible third party.

         Section 217B(2), in our view, was meant to prevent substantively inconsistent

outcomes and not meant to reach the issue of whether procedural defenses run from

an agent to a principal. For example, § 217 of the same Restatement states that “[i]n

an action against a principal based on the conduct of a servant in the course of


35
     Hughes v. Doe, 639 S.E.2d 302, 204 (Va. 2007).
36
     Restatement (Second) of Judgments § 51 (1982).



                                               13
employment . . . [t]he principal has no defense because of the fact that the agent

had an immunity from civil liability as to the act.”37 The only consistent reading of

the two sections of the Restatement is to say that, even if a case against an agent

were subject to an immunity defense as in Fields, that immunity would not accrue

to the benefit of the principal except to the degree that the immunity applies equally

to both principal and agent regardless of any principal-agent relationship. In this

regard, we view a time bar as analogous to a claim of immunity in that neither

indicates the absence of wrongdoing, but only that the wrongdoer may not be held

liable. In the respondeat superior context, an agent’s assertion of immunity does

not depend on his lack of culpability, and the same can be said of any statute-of-

limitations defenses that might be applicable.

       We believe that this application of pertinent respondeat superior principles

serves the purpose of that doctrine more faithfully than does Greco’s conclusion that,

if a claim against the agent is time-barred, the principal is relieved of responsibility

even though a timely claim has been made against the principal. It bears noting that,

in contrast to the claims against Bayhealth here, none of the claims against the

physicians in Greco were timely filed; in other words, UD need not have piggy-

backed on the physician’s time-bar defense. And for that reason, we do not question



37
  Restatement (Second) of Agency § 217 (1958); see also Restatement (First) of Judgments § 99
(1942) (cited by Restatement (Second) of Agency § 217B cmt. c (1958)).

                                             14
the ultimate result in Greco. But to the extent that Greco is read—as the Superior

Court did in this case—to eradicate otherwise timely claims against a principal

because claims based on the same facts would be time-barred if made against the

principal’s agent, we overrule it. We hold that, in a negligence action against a

principal based on the doctrine of respondeat superior, the dismissal of the agent on

defenses personal to the agent does not automatically eliminate the principal’s

vicarious liability.

                             2. Avoidance of absurd results

       Greco’s treatment of a statute-of-limitations dismissal of a tort action against

an agent as a merits-based determination that bars the prosecution of the action

against the principal under the doctrine of respondeat superior can lead to absurd

results. For instance, as recognized by the Restatement (Second) of Judgments, the

general rule is that the employee is not even a necessary party to an action against

the employer based on respondeat superior:

               [B]oth the primary [tortfeasor] and the person vicariously
       responsible for his conduct are ordinarily subject to liability to the
       injured person. In some situations, the vicariously responsible person
       is liable only if the liability of the primary obligor is established; this is
       true, for example, of an insurer’s liability for the acts of the insured.
       Ordinarily, however, the person vicariously responsible may be held
       liable even though the liability of the primary obligor has not been
       established. Moreover, in some situations the person vicariously
       responsible may be held liable even though an action cannot be
       maintained against the primary obligor. . . . [U]nder prevailing
       procedural rules the injured person ordinarily is not required to join



                                            15
       both and may decide to bring suit in the first instance against only one
       of them.38

Here, Bayhealth has acknowledged that Verrastro need not have sued the Doctors. 39

To allow Verrastro’s unnecessary choice to belatedly sue the Doctors to eviscerate

her otherwise-viable claim against their employer would be to condone an absurd—

and, we suggest, unintended—result.

       A yet even more bizarre result could be in store if inordinate emphasis is

placed on the viability of the cause of action against the agent as opposed to the

viability of the claim that the agent acted tortiously.             In particular, the literal

application of the language in Greco that it is the viability of the cause of action—

and not the agent’s negligence—that breathes life into the claim against the principal

would logically justify a dismissal of the principal even in an action in which the

agent was not named once the limitation period applicable to the agent runs. Such

results make no sense to us and weigh heavily in favor of our reconsideration of

Greco.

       We also think that allowing a plaintiff to proceed against an employer where

the statute of limitations has run on the plaintiff’s suit against the employee but not


38
   Id. § 51, cmt. a (emphases added); see also Restatement (First) of Judgments § 99 (1942) (cited
by Restatement (Second) of Agency § 217B cmt. c (1958)); Appriva S’holder Litig. Co., LLC v.
EV3, Inc., 937 A.2d 1275, 1286 (Del. 2007); Super. Ct. R. 19; Fed. R. Civ. P. 19; Lomando v.
United States, 667 F.3d 363, 384 (3d Cir. 2011).
39
    Oral Arg. 15:06–13 (Dec. 5, 2018) (“We agree that you don’t have to sue the individual
physicians or agents of the employer . . . .”).



                                               16
on the suit against the employer is consistent with the rationale underlying the

doctrine of respondeat superior. In particular, it is the negligence of the employee

that is imputed to the employer, not the employee’s liability. The principle was

faithfully observed in Fields,40 and Greco itself recognized that “the negligence of

[the] employee . . . must be the focus of any inquiry into the vicarious liability of the

employee . . . under the doctrine of respondeat superior.”41

                                    3. Other jurisdictions

       Although the case law from our sister states appears to be split, the

jurisprudential trend is tending toward the rule we adopt today.42 For example, in


40
   We note that Greco cautioned the reader to “see interspousal immunity exception in Fields v.
Synthetic Ropes.” Greco, 619 A.2d at 903 (citation omitted). But we do not view Fields as being
limited to the interspousal immunity context. Rather, we see it as a specific application of the
more general principle that a judgment has no preclusive effects where that judgment “was based
on a defense that was personal to the defendant.” Restatement (Second) of Judgments § 51 (1982);
see also Restatement (Second) of Agency § 217 (1958).
41
   Greco, 619 A.2d at 903.
42
   See, e.g., Hook v. Trevino, 839 N.W.2d 434, 441 (Iowa 2013) (state not immune from liability
despite personal immunity of volunteer employee); Hughes v. Doe, 639 S.E.2d 302, 204 (Va.
2007); Cohen v. Alliant Enterprises, Inc., 60 S.W.3d 536, 538 (Ky. 2001); Leow v. A & B Freight
Line, Inc., 676 N.E.2d 1284, 1289 (Ill. 1997); Byrd v. J Rayl Transp., Inc., 106 F. Supp. 3d 999,
1001 (D. Minn. 2015); Juarez v. Nelson, 61 P.3d 877, 886 (N.M. Ct. App. 2002) (“Defendant has
not cited, and we are not aware of, any New Mexico case applying the principle that the
exoneration of the servant operates in tort to exonerate the principal of vicarious liability where
the employee has been exonerated by a statute of limitations”) (internal quotation marks
omitted), overruled on other grounds by Tomlinson v. George, 116 P.3d 105 (N.M. 2005);
Gallegos v. City of Monte Vista, 976 P.2d 299, 301 (Colo. App. 1998); Vern J. OJA & Assoc. v.
Washington Park Towers, Inc., 549 P.2d 63, 67 (Wash. App.), aff’d, 569 P.2d 1141 (Wash. 1977);
see also Women First Ob/Gyn v. Harris, 161 A.3d 27, 45 (Md. App. 2017) (“we are persuaded
that the better view is that the dismissal with prejudice of a tort claim against an agent does not
necessarily have the effect of rendering the vicarious liability claim against the agent's principal
non-viable”); State ex rel. Sawicki v. Lucas Cty. Court of Common Pleas, 931 N.E.2d 1082, 1088–
89 (Ohio 2010); Stanley ex rel. Estate of Hale v. Trinchard, 579 F.3d 515, 520 (5th Cir. 2009);



                                                17
the 2004 case Fuentes v. Brookhaven Memorial Hospital,43 the New York Supreme

Court, Appellate Division faced nearly the exact situation that Verrastro and

Bayhealth present to us here. In Fuentes,

       the [trial court] granted [the doctor’s] motion to dismiss the complaint
       insofar as asserted against him on the ground that the plaintiffs failed
       to serve a timely notice of claim upon him . . . and judgment was entered
       dismissing the complaint insofar as asserted against him. . . . However,
       the dismissal of a complaint as against one party need not be given res
       judicata effect as against another vicariously liable for the same conduct
       when the dismissal was based upon a defense that was personal to that
       party. . . . Further, the dismissal was not based upon and did not
       determine the merits of the underlying allegations of medical
       malpractice. . . . Accordingly, application of the doctrine of res judicata
       to dismiss the complaint as against [the hospital] was not warranted. 44

The New York Appellate Division accordingly reversed the trial court’s dismissal

of the case against the hospital. Although the Superior Court did not use the words

“res judicata” in its ruling, it in effect applied that doctrine: it held that where a

plaintiff lost a case against a defendant, the plaintiff could not press claims based on

the same facts against another party in privity with the defendant. 45 But, for the



Davis v. Lambert-St. Louis Int’l Airport, 193 S.W.3d 760, 765 (Mo. 2006); Hooper v. Clements
Food Co., 694 P.2d 943, 945 (Okla. 1985). But see Stephens v. Petrino, 86 S.W.3d 836, 843 (Ark.
2002); Al-Shimmari v. Detroit Med. Ctr., 731 N.W.2d 29, 37–38 (Mich. 2007).
43
   10 A.D.3d 384 (N.Y. App. Div. 2004).
44
   Id. at 385–86.
45
   We think the type of preclusion applied by the Superior Court is more aptly characterized as
claim preclusion and not issue preclusion. For one, the Superior Court’s analysis did not rely on
why Verrastro’s case against the doctors was dismissed; any final judgment would have sufficed.
Relatedly, if Verrastro had sued Bayhealth alone, the statute of limitations as applied to the Doctors
would never even have been a question of concern. A question that would not be a factor but for
a former adjudication is better conceived as a matter of claim preclusion.



                                                 18
reasons we have expressed, we think the approach of the New York Appellate

Division is more sensible.

       Finally, the recent United States Supreme Court case Simmons v.

Himmelreich46 is worthy of notice here. In Simmons, the plaintiff first filed suit

against the United States on the basis that prison officials were negligent in the way

they handled his housing arrangements.        That claim was dismissed under an

exception in the Federal Tort Claims Act. The plaintiff then sued the individual

prison officials, and the Supreme Court held that the individual suits could proceed

despite the dismissal of the suit against the United States.47 Simmons reasoned that

the judgment bar against the United States “has no logical bearing on whether an

employee can be held liable instead.” It furthermore noted that holding otherwise

would “yield the strange result” that “the viability of a plaintiff's meritorious suit

against an individual employee [might] turn on the order in which the suits are

filed.”48 Although Simmons dealt with an employee’s liability where the employer

had been held immune, we think the same reasoning and concerns apply in reverse.

                              IV. CONCLUSION

       Accordingly, the Superior Court’s entry of summary judgment in Bayhealth’s

favor should not stand; we so hold not because the court misapplied Greco, but


46
   136 S.Ct. 1843 (2016).
47
   Id. at 1850.
48
   Id.

                                         19
because Greco’s reasoning on the point relevant to this case has lost its persuasive

force.49    Therefore, we REVERSE the judgment of the Superior Court and

REMAND for a trial or other proceedings consistent with this opinion.




49
   See Travelers Indem. Co. v. Lake, 594 A.2d 38, 46 (Del. 1991) (“A court clearly has the
authority, indeed the responsibility, to overrule its own common law decisions when they lose their
legal vitality.”).

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