Henry v. The Cincinnati Insurance Company ( 2021 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JOHN HENRY and DARLENE )
HENRY, )
Plaintiffs, )
)
v. ) C.A. No. N18C-03-092 ALR
)
THE CINCINNATI INSURANCE )
COMPANY and STATE FARM )
MUTUAL AUTOMOBILE )
INSURANCE COMPANY, )
Defendants. )
Submitted: May 10, 2021
Decided: May 13, 2021
Upon Application for Certification of Interlocutory Appeal by
Horizon Services, Inc. and Eastern Alliance Insurance Company
DENIED
ORDER
This Court issued a Memorandum Opinion on April 19, 2021 denying the
Motion to Intervene filed by Horizon Services, Inc. and Eastern Alliance Insurance
Company. Specifically, this Court found that there is no statutory right of recovery
for a worker’s compensation lien against UIM insurance coverage; that a worker’s
compensation carrier has no right to intervene pursuant to Rule 24(a); and that
where, as here, there is no right to recovery, intervention would be futile and
distracting.
The third parties who sought intervention, Horizon Services, Inc. and Eastern
Alliance Insurance Company, filed a timely application for certification of
interlocutory appeal on April 29, 2021 (“Application”). The Application is opposed
by the parties in this lawsuit,1 who also opposed intervention. Upon consideration
of the facts, arguments, and legal authorities set forth by the parties; decisional law;
the Superior Court Rules of Civil Procedure; the Rules of the Delaware Supreme
Court; and the entire record in this case, the Court hereby finds as follows:
1. Supreme Court Rule 42 (“Rule 42”) governs the certification of
interlocutory appeals. Rule 42 states that “[n]o interlocutory appeal will be certified
by the trial court or accepted by this Court unless the order of the trial court decides
a substantial issue of material importance that merits appellate review before a final
judgment.”2 Rule 42 also provides that “[i]nterlocutory appeals should be
exceptional, not routine, because they disrupt the normal procession of litigation,
cause delay, and can threaten to exhaust scarce party and judicial resources.”3
1
Rule 42(c)(ii) of the Delaware Supreme Court Rules requires that any response to
a request for certification be filed within ten days unless a shorter response time is
set by the trial court. See Supr. Ct. R. 42(c)(ii). This Court requested any responses
within ten days. Plaintiffs and Defendant State Farm Automobile Insurance
Company filed timely responses in opposition. The Cincinnati Insurance Company
joined both responses in opposition; however, the response was not filed within ten
days. Therefore, the Court did not consider the untimely response filed by The
Cincinnati Insurance Company.
2
Supr. Ct. R. 42(b)(i).
3
Supr. Ct. R. 42(b)(ii).
2
Furthermore, “[t]he decision to grant interlocutory review is discretionary and highly
case-specific.”4
2. Rule 42(b)(iii) requires consideration of several factors for the Court in
determining whether to certify an interlocutory appeal. These factors are, as follows:
(A) The interlocutory order involves a question of law resolved for
the first time in this State;
(B) The decisions of the trial courts are conflicting upon the question
of law;
(C) The question of law relates to the constitutionality, construction,
or application of a statute of this State, which has not been, but
should be, settled by this Court in advance of an appeal from a final
order;
(D) The interlocutory order has sustained the controverted
jurisdiction of the trial court;
(E) The interlocutory order has reversed or set aside a prior decision
of the trial court, a jury, or an administrative agency from which an
appeal was taken to the trial court which had decided a significant
issue and a review of the interlocutory order may terminate the
litigation, substantially reduce further litigation, or otherwise serve
considerations of justice;
(F) The interlocutory order has vacated or opened a judgment of the
trial court;
(G) Review of the interlocutory order may terminate the litigation;
or
4
E.I. du Pont de Nemours & Co. v. Allstate Ins. Co., 686 A.2d 1015, 1016 (Del.
1997).
3
(H) Review of the interlocutory order may serve considerations of
justice.5
Additionally, the Court is to consider the most efficient and just schedule to resolve
the case, and whether the likely benefits of interlocutory review outweigh the
probable costs such that interlocutory review is in the interest of justice.6 If the
“balance of the Court’s analysis is uncertain,” the Court should not certify the
interlocutory appeal.7
3. The Court finds that appellate review is not merited at this time. A
substantial issue of material importance was not addressed by this Court’s April 19
Memorandum Opinion. The costs and delay of interlocutory appeal will be
substantial and disruptive. In addition, consideration of the factors set forth in Rule
42(b)(iii) weigh against certification, as follows:
(A) This Court’s April 19 Memorandum Opinion did not involve a question
of law resolved for the first time in this State.8 Indeed, this Court’s April 19
Memorandum Opinion applied well-settled decisional law that a workers’
5
Supr. Ct. R. 42(b)(iii)(A)–(H).
6
Supr. Ct. R. 42(b)(iii).
7
Id.8
Super. Ct. R. 42(b)(iii)(A).
4
compensation carrier does not have a lien against proceeds recovered for UIM
benefits.9
(B) There are no conflicting trial court opinions about the question of law
addressed in this Court’s April 19 Memorandum Opinion.10
(C) The question of law addressed in this Court’s April 19 Memorandum
Opinion does not relate to the constitutionality of a statute of this State. While
this Court’s April 19 Memorandum Opinion addressed statutory construction
and application, it is not necessary for the Delaware Supreme Court to address
the legal issues which are the subject of this Court’s April 19 Memorandum
Opinion in advance of an appeal from a final order.11
(D) This Court’s April 19 Memorandum Opinion did not sustain the
controverted jurisdiction of the Court.12 Neither the parties nor the third
parties who sought intervention challenged the jurisdiction of this Court.
(E) This Court’s April 19 Memorandum Opinion did not set aside a prior
decision of a trial court, jury, or administrative agency.13
9
See Adams v. Delmarva Power & Light Co., 575 A.2d 1103 (Del. 1990);
Simendinger v. Nat’l Union Fire Ins. Co., 74 A.3d 609 (Del. 2013).
10
Super. Ct. R. 42(b)(iii)(B).
11
Super. Ct. R. 42(b)(iii)(C).
12
Super. Ct. R. 42(b)(iii)(D).
13
Super. Ct. R. 42(b)(iii)(E).
5
(F) This Court’s April 19 Memorandum Opinion did not vacate or open a prior
judgment of the trial court.14
(G) Review by the Delaware Supreme Court of this Court’s April 19
Memorandum Opinion will not terminate the litigation.15 Rather,
interlocutory review of this Court’s April 19 Memorandum Opinion would
instead further complicate this litigation.
(H) This Court does not find that the likely benefits of interlocutory review of
this Court’s April 19 Memorandum Opinion outweigh the probable costs.
Therefore, interlocutory review by the Delaware Supreme Court of this
Court’s April 19 Memorandum Opinion would not serve considerations of
justice.16
4. Upon consideration of the criteria set forth under Rule 42, this Court
finds that there are no exceptional circumstances to warrant interlocutory review.17
Further, review of this Court’s April 19 Memorandum Opinion will not terminate
the litigation, substantially reduce further litigation, or otherwise serve
14
Super. Ct. R. 42(b)(iii)(F).
15
Super. Ct. R. 42(b)(iii)(G).
16
Super. Ct. R. 42(b)(iii)(H).
17
Supr. Ct. R. 42(b)(ii). See also Harrison v. Div. of Youth & Fam. Servs., 2003 WL
22669344, at *1 (Del. Nov. 10, 2003) (TABLE) (“Applications for interlocutory
review are addressed to the sound discretion of this Court and are granted only in
extraordinary cases.”).
6
considerations of justice.18 To the contrary, interlocutory review of this Court’s
April 19 Memorandum Opinion would substantially increase the costs and burden
of litigation.
5. Moreover, there are other avenues of relief for Horizon Services, Inc.
and Eastern Alliance Insurance Company other than intervening in this litigation.
For example, pursuing a separate declaratory judgment action will be less
burdensome to the parties in this action.
6. Accordingly, the Court concludes that application for certification of
interlocutory appeal filed by Horizon Services, Inc. and Eastern Alliance Insurance
Company should be denied.
NOW, THEREFORE, this 13th day of May 2021, the Application for
Certification of Interlocutory Appeal filed by Horizon Services, Inc. and
Eastern Alliance Insurance Company is hereby DENIED.
IT IS SO ORDERED.
Andrea L. Rocanelli
__________________________________
The Honorable Andrea L. Rocanelli
18
Super. Ct. R. 42(b)(iii)(E).
7