Maravilla-Diego v. MBM Construction II, LLC ( 2015 )


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  •       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
    IN AND FOR NEW CASTLE COUNTY
    JAIME MARAVILLA-DIEGO              )
    Plaintiff,             )
    )
    v.                                 )       C.A. No. N14C-03-135 PRW
    )
    MBM CONSTRUCTION II, LLC, )
    a Delaware limited liability       )
    company; GENNA                     )
    CONSTRUCTION, LLC, a               )
    Delaware limited liability         )
    company; SAEZ AND SON’S            )
    LLC, a Delaware limited liability )
    company,                           )
    Defendants.      )
    And                     )
    SAEZ AND SON’S LLC,                )
    Defendant/ Third)
    Party Plaintiff  )
    )
    v.                                 )
    )
    GENNA CONTRACTING, INC. )
    Third Party      )
    Defendant.
    Submitted: April 23, 2015
    Decided: July 21, 2015
    MEMORANDUM OPINION AND ORDER
    Upon Defendant Saez and Son’s LLC’s Motion for Summary Judgment
    GRANTED.
    Kyle Kemmer, Esquire, Shelsby & Leoni, Wilmington, Delaware, Attorney for
    Plaintiff.
    Mary E. Sherlock, Esquire, Weber Gallagher Simpson Stapleton Fires & Newby
    LLP, Attorney for Defendant MBM Construction II, LLC.
    Louis J. Rizzo, Esquire, Reger Rizzo & Darnall LLP, Attorney for
    Defendant/Third Party Plaintiff Saez and Son’s LLC.
    Gerald J. Hager, Esquire, Margolis Edelstein, Attorney for Third Party Defendant
    Genna Contracting, Inc.
    WALLACE, J.
    -2-
    I.      INTRODUCTION
    Plaintiff, Jaime Maravilla-Diego (“Maravilla-Diego”), suffered a work-place
    injury while employed by Defendant, Saez & Son’s, LLC (“Saez & Son”). Saez &
    Son did not carry workers’ compensation insurance. Under 
    19 Del. C
    . § 2374(e),
    Maravilla-Diego therefore had a choice between two avenues of relief:
    compensation under the workers’ compensation framework, or a claim for
    damages at law.       Initially, Maravilla-Diego filed a Petition to Determine
    Compensation Due with the Industrial Accident Board (“IAB”).               But he
    subsequently withdrew that Petition and filed a negligence suit against Saez & Son
    and other third parties. While the negligence claims were pending, Maravilla-
    Diego again attempted to pursue compensation through a number of IAB filings.
    Ultimately, the IAB found that his efforts were time-barred by the applicable
    statute of limitations. Saez & Son now seeks summary judgment on the negligence
    claims.    They say that the IAB’s final finding precludes Maravilla-Diego’s
    negligence claim under the election of remedies doctrine. For the reasons set forth
    below, the Court finds Maravilla-Diego elected a remedy under the workers’
    compensation framework and is therefore barred from pursuing damages at law.
    Saez & Son’s motion for summary judgment is GRANTED.
    -3-
    II.      FACTUAL AND PROCEDURAL BACKGROUND
    Maravilla-Diego was injured at work on March 21, 2012. He was installing
    apartment siding and fell 40 feet to the ground from a bucket lift, sustaining
    multiple injuries. He subsequently instituted proceedings both before the IAB and
    this Court to recover for his injuries.
    A. IAB Proceedings
    Maravilla-Diego first filed a Petition to Determine Compensation Due
    (“First Petition”) on January 29, 2013 before the IAB seeking compensation from
    Saez & Son for his injuries. 1
    The IAB held a hearing on June 26, 2013 to determine the nature of the
    employment relationship between Maravilla-Diego and Saez & Son. The Board
    issued a written decision on July 10, 2013 finding that Maravilla-Diego was Saez
    & Son’s employee, not an independent contractor.2 The Board also awarded
    Maravilla-Diego attorney’s fees.
    In December, 2013, Maravilla-Diego inexplicably withdrew the First
    Petition.3
    1
    Petition to Determine Compensation Due to Injured Employee, Ex. A. to Def.’s Mot.
    Summ. J.
    2
    See Decision on Employment Relationship, Ex. B to Def.’s Mot. Summ. J.
    3
    See Order, Ex. D to Def.’s Mot. Summ. J. at 1 (“Claimant filed a Petition to Determine
    Compensation Due on January 29, 2013 and then withdrew it in December 2013.”).
    -4-
    Yet, beginning in early April, 2014, Maravilla-Diego resumed filing
    applications before the IAB. He first requested that the IAB order Saez & Son to
    post a $100,000 bond to cover certain medical expenses. The IAB denied that
    request on April 15, 2014 because Maravilla-Diego had no Petition pending before
    it at that time. 4 In its Order denying Maravilla-Diego’s bond request, the IAB
    acknowledged that Saez & Son did not maintain workers’ compensation
    insurance.5 The IAB further noted that Maravilla-Diego was past the two-year
    statute of limitations on his workers’ compensation claim. 6
    Despite the IAB’s finding, on April 16, 2014, Maravilla-Diego filed a
    Second Petition to Determine Compensation Due (“Second Petition”) for the same
    injury. 7   On May 6, 2014, he also appealed the IAB’s decision denying the
    requested bond order. 8 This Court has stayed that appeal indefinitely, pending the
    resolution of this matter.9
    4
    Order, Ex. C to Def.’s Mot. Summ. J. at 2.
    5
    
    Id. at 1.
    6
    
    Id. at 2.
    7
    Petition to Determine Compensation Due to Injured Employee, Ex. F. to Def.’s Mot.
    Summ. J.
    8
    Notice of Appeal, Ex. I to Def.’s Mot. Summ. J.
    9
    See Maravilla-Diego v. Saez & Son’s LLC, Del. Super., N14A-05-001, Silverman, J.
    (Dec. 3, 2014) (ORDER) (D.I. 10; Trans. I.D. #56414337).
    -5-
    Saez & Son filed a motion to dismiss the Second Petition on the grounds that
    it was filed outside of the 2-year statute of limitations for workers’ compensation
    claims. 10 On July 14, 2014, the IAB granted that motion.11 In its decision, the
    IAB rejected Maravilla-Diego’s argument that he had mistakenly withdrawn the
    First Petition and denied his request to reinstate the First Petition. 12
    B. Maravilla-Diego’s Negligence Claims
    After withdrawing his First Petition, but before proceeding with his other
    numerous workers’ compensation filings, Maravilla-Diego instituted this
    negligence action on March 17, 2014 against his Saez & Son and other contractors,
    including MBM Construction II, LLC (“MBM”), Genna Construction, LLC
    (“Genna Construction”), and A.P. Croll & Son, Inc. (“A.P. Croll”).13
    Saez & Son now moves for summary judgment on Maravilla-Diego’s
    negligence claims. They contend his pursuit of compensation under the Delaware
    10
    DEL. CODE ANN. tit. 19, § 2361(a) (2015) (setting forth 2 years limitations period for
    compensation claims).
    11
    Order, Ex. D to Def.’s Mot. Summ. J. at 2.
    12
    
    Id. at 2.
    It appears Maravilla-Diego may seek to revive that first Petition through the
    bond request and its appeal.
    13
    See Compl. (D.I. 1; Trans. I.D. #55159433). The caption has since been amended twice
    to reflect the correct names for two defendants: MBM Construction II, LLC and Saez and Son’s,
    LLC. See Stipulation & Order (D.I. 12; Trans. I.D. #55417145); Stipulation & Order (D.I. 43;
    Trans. I.D. #55935935). A.P. Croll has since been voluntarily dismissed from this action.
    Stipulation & Order (D.I. 52; Trans. I.D. #56422673). Saez & Son has also since filed a third
    party complaint against Genna Contracting, Inc. (“Genna Contracting”). Third Party Compl.
    (D.I. 74; Trans. I.D. #57092100).
    -6-
    Workers Compensation Act bars his negligence claim under the election of
    remedies doctrine.
    III.   STANDARD OF REVIEW
    Under Delaware Superior Court Rule 56, summary judgment may only be
    granted where there are no genuine issues of material fact and the moving party is
    entitled to judgment as a matter of law.14 The party moving for summary judgment
    bears the burden of making such showing; if it is successful, the burden shifts to
    the non-moving party to show that there is a material fact in dispute. 15 If there is a
    material fact in dispute, or if it seems desirable to inquire more thoroughly into the
    facts in order to clarify the application of the law, summary judgment is
    inappropriate.16 The Court views all facts and draws all reasonable inferences in
    the light most favorable to the non-moving party. 17
    IV.    THE PARTIES’ CONTENTIONS
    Saez & Son argues it is entitled to judgment as a matter of law because
    Maravilla-Diego’s negligence claim is barred because he elected a remedy under
    the Delaware Workers’ Compensation Act (the “Act”). According to Saez & Son,
    14
    Del. Super. Ct. Civ. R. 56(c); Brzoska v. Olson, 
    668 A.2d 1355
    , 1364 (Del. 1995).
    15
    
    Brzoska, 668 A.2d at 1364
    .
    16
    See Ebersole v. Lowengrub, 
    180 A.2d 467
    , 468-69 (Del. 1962).
    17
    See Merrill v. Crothall-American, Inc., 
    606 A.2d 96
    , 99-100 (Del. 1992).
    -7-
    the moment of election occurred once Maravilla-Diego obtained a final decision on
    the merits from the IAB that his Second Petition was time-barred. 18
    In response, Maravilla-Diego and MBM contend Maravilla-Diego’s
    negligence claim is not barred by the election of remedies doctrine. They argue
    that 
    19 Del. C
    . § 2374(e) permits an employee to initially pursue benefits under the
    Act against an uninsured employer and then later decide to pursue damages at law
    if there is no “viable” avenue of recovery under the Act. In their view, because
    Maravilla-Diego did not recover—and, they believe, could not have recovered—
    anything under the Act, he made no election and was therefore entitled to sue for
    damages.       Maravilla-Diego posits that Saez & Son has no company-owned
    property, assets, or cash available with which to post bond, so he had no viable
    avenue of recovery under the Act.
    V.      DISCUSSION
    A. The Language of 
    19 Del. C
    . § 2374(e) Permits Recovery of Damages
    at Law Against an Uninsured Employer.
    Generally, the Act provides an employee the exclusive remedy for a work-
    place injury against his or her employer. 19 But if an employer violates the Act’s
    18
    In the alternative, Saez & Son contends the principles underlying res judicata, collateral
    estoppel and/or judicial estoppel support its theory and apply in their own right. As the Court
    finds summary judgment is warranted under the election of remedies doctrine, it does not reach
    these alternative arguments.
    19
    See, e.g., Grabowski v. Mangler, 
    938 A.2d 637
    , 641 (Del. 2007) (“Workers’
    Compensation is the exclusive remedy against the employer, and, therefore, injured employees
    -8-
    mandatory insurance coverage provisions, 20 the Act eliminates the employer’s
    immunity from personal injury claims at law. 21 Title 19 of the Delaware Code,
    section 2374(e) provides:
    (e) Whoever, being an employer, refuses or neglects to
    comply with the sections referred to in subsection (a) of
    this section on a continuing basis after notice by the
    Department of Labor shall be subject to a civil penalty:
    [. . . ]
    (3) The employer shall also be liable to the employer’s
    injured employees during continuance of such neglect or
    refusal, either for compensation under this chapter or in
    an action at law for damages. 22
    Should an injured employee choose to pursue damages at law, the employer is
    deprived of some of its common-law defenses, such as comparative fault and
    assumption of the risk. 23
    It is undisputed that Saez & Son failed to maintain workers’ compensation
    insurance here. This Court has previously determined in Lyon v. In Bocca Al
    may not bring additional claims against the employer when the injuries arose from acts ‘arising
    out of and in the course and scope of employment.’”) (citing DEL. CODE ANN. tit. 19, § 2304).
    20
    See DEL. CODE ANN. tit. 19, § 2372 (2015) (requiring employers to carry liability
    insurance); § 2374(a) (employers subject to the chapter’s application “[s]hall file with the
    Department . . . annually . . . evidence of the employer’s compliance with §§ 2372 and 2373 of
    this title and all other sections relating thereto”); § 2373 (relating to payments made by self-
    insured employers).
    21
    See 
    id. § 2374(e).
    22
    
    Id. § 2374(e)
    (emphasis added).
    23
    
    Id. (“In such
    action, upon proof that the employer has not complied with this section, it
    shall not be a defense that the: a. Employee was negligent; or b. Employee had assumed the risk
    of the injury; or c. Injury was caused by the negligence of a fellow employee.”).
    -9-
    Luppo Trattoria,24 that under § 2374(e) “the employee may opt for compensation
    through the 
    19 Del. C
    . § 2301 et seq. framework, or may choose to pursue an
    action at law where certain otherwise available defenses may not be raised.”25
    Thus, Maravilla-Diego “had the option of pursuing a remedy at law for damages or
    a claim for workers’ compensation relief.” 26
    B. Maravilla-Diego Elected a Remedy Under 
    19 Del. C
    . § 2374(e) by
    Obtaining a Final Judgment from the IAB that His Claim Was Time-
    Barred.
    Saez & Son raises the election of remedies doctrine as a defense.                 In
    response, Maravilla-Diego claims he has not elected a remedy under either his
    compensation or negligence claims because he has not yet recovered under either.
    The Court must therefore decide, with this procedural history, if the negligence suit
    must be dismissed because Maravilla-Diego elected a remedy rooted in
    compensation under § 2374(e).
    1. The election of remedies doctrine.
    The doctrine of election of remedies arises where a claimant has two or more
    inconsistent remedies available to redress a single right. 27 The claimant must
    24
    
    2012 WL 4321204
    , at *2 (Del. Super. Ct. Sept. 18, 2012).
    25
    
    Id. at *2
    (interpreting § 2374(e)).
    26
    
    Id. 27 Sannini
    v. Casscells, 
    401 A.2d 927
    , 931 (Del. 1979); Scott v. City of Harrington, 
    1986 WL 4494
    , at *1 (Del. Ch. Apr. 14, 1986); O’Leary v. Telecom Res. Serv., LLC, 
    2011 WL 2992099
    , at *4 (Del. Super. Ct. July 25, 2011).
    -10-
    “elect” to pursue one of them to the exclusion of the others and may not later
    pursue the other inconsistent remedies. 28 The election of remedies doctrine applies
    to § 2374(e) because the employee must choose between recovering compensation
    under the Act or damages at law. 29
    A party elects a remedy when “he makes any decisive act, ‘with knowledge
    of his rights and of the facts, indicating an intent to pursue one remedy rather than
    the other.’” 30      There are limitations to this rule.         For instance, a party who
    mistakenly pursues what is otherwise a legally unavailable avenue of relief does
    not make the “type of decisive act that would trigger the election of remedies
    preclusion.”31
    28
    Scott, 
    1986 WL 4494
    , at *1 (quoting Stoltz Realty Co. v. Raphael, 
    458 A.2d 21
    , 23 (Del.
    1983)).
    29
    See DEL. CODE ANN. tit. 19, § 2374(e) (2015); see also Wagner v. Allied Chem. Corp.,
    
    623 F. Supp. 1412
    , 1414-15 (D. Md. 1985) (common law and workers’ compensation actions
    were coexisting remedies but inconsistent because the worker could recover only one of the
    two); 6 ARTHUR LARSON & LEX K. LARSON, LARSON’S WORKERS’ COMPENSATION LAW
    [hereinafter “LARSON’S”] § 102.03 (2013). Compensation is normally exclusive of an action at
    law. DEL. CODE ANN. tit. 19, § 2304; Grabowski v. Mangler, 
    938 A.2d 637
    (Del. 2007).
    30
    O’Leary, 
    2011 WL 2992099
    , at *4 (defendants who failed to pursue action to recover
    attorney’s fees and costs once case was dismissed in California pursuant to California procedure
    were subsequently barred from claiming those fees and costs in the same action brought in
    Delaware); see also Stoltz Realty, 
    458 A.2d 21
    , 23 (Del. 1983) (finding plaintiff “voluntarily
    waived” its right to recover from defendants under a contract when it “elected the remedy of
    arbitration against [defendant] and agreed to be bound by the outcome. . .”).
    31
    Elysian Fed. Sav. Bank v. Sullivan, 
    1990 WL 20737
    , at *4 (Del. Ch. Mar. 2, 1990)
    (finding no decisive act where party filed mortgage proceeding in Superior Court mistakenly
    believing jurisdiction was proper there rather than in Chancery); 28A C.J.S. Election of Remedies
    § 27 (2015) (discussing “established exceptions as to the effect of ignorance or mistake in
    making an election and of the fruitless pursuit of a remedy which is in fact unavailable”).
    -11-
    A “decisive act” is defined as prosecuting a claim to a final judgment or
    decree—whether for or against the claimant.32 A valid and final personal judgment
    is generally “one which reaches and determines the real or substantial grounds of
    the action or defense as distinguished from matters of practice, procedure,
    jurisdiction or form.” 33 If a court dismisses an action once the defendant has
    demonstrated the plaintiff failed to show a right to relief, this dismissal “operates
    as an adjudication upon the merits,” barring a subsequent suit on the same claim. 34
    Dismissals grounded on the statute of limitations are therefore final adjudications
    on the merits. 35
    32
    Stoltz 
    Realty, 458 A.2d at 23
    ; 
    Sannini, 401 A.2d at 931
    (plaintiffs’ choice “to proceed in
    equity to impress a constructive trust constituted an election of remedies, and the pursuit of that
    choice to final judgment now precludes them from seeking damages”); Scott, 
    1986 WL 4494
    , at
    *2; 28A C.J.S. Election of Remedies § 27 (“[A]n election is made only so long as the remedy
    elected has been pursued to a viable final judgment”).
    33
    Trans World Airlines, Inc. v. Hughes, 
    317 A.2d 114
    , 119 (Del. Ch. 1974), aff’d, 
    336 A.2d 572
    (Del. 1975) (internal quotations and citations omitted).
    34
    
    Id. (“Thus, a
    judgment in a prior action will not serve as a bar to a second suit ‘if the first
    suit was dismissed for defect of pleadings, or parties, or a misconception of the form of
    proceeding, or the want of jurisdiction, or was disposed of on any ground which did not go to the
    merits of the action.’”). See also Del. Super. Ct. Civ. R. 41(b) (dismissals under this subsection
    are adjudications on the merits except if dismissed for lack of jurisdiction, improper venue, or
    failure to join a party under Rule 19); RESTATEMENT (SECOND) OF JUDGMENTS § 19 cmt. b
    (2015).
    35
    Plaut v. Spendthrift Farm, Inc., 
    514 U.S. 211
    , 228 (1995) (citing Fed. R. Civ. P. 41(b))
    (“The rules of finality, both statutory and judge made, treat a dismissal on statute-of-limitations
    grounds the same way they treat a dismissal for failure to state a claim, for failure to prove
    substantive liability, or for failure to prosecute: as a judgment on the merits.”); Atkinson v.
    Middlesex Cnty., 
    2015 WL 1787167
    , at *2 (3d Cir. Apr. 21, 2015) (“After the statute of
    limitations has run, an unconditional dismissal without prejudice is considered final.”);
    Elkadrawy v. Vanguard Grp., Inc., 
    584 F.3d 169
    , 173 (3d Cir. 2009).
    -12-
    For an IAB decision or award to have “definitive effect” under the Act, “the
    decision or award must have reached the final and conclusive stage as
    contemplated by [
    19 Del. C
    . §] 2349.”36                Section 2349 provides that an IAB’s
    award is not final and conclusive until the period for appeal has run. 37 An IAB
    “award” is a “final determination.” 38 Once an award is unappealable, there is
    “nothing for future determination or consideration” as to an award, and it is
    deemed a “final judgment[] on the merits of the discreet controversies
    adjudicated.”39      But only the IAB’s orders and decisions that determine a
    substantial issue or a legal right are final and appealable.40 For example, if the IAB
    36
    Hamilton v. Trivits, 
    340 A.2d 178
    , 181 (Del. Super. Ct. 1975).
    37
    DEL. CODE ANN. tit. 19, § 2349 (2015) (“An award of the Board, in the absence of fraud,
    shall be final and conclusive between the parties, except as provided in § 2347 of this title, unless
    within 30 days of the day the notice of the award was mailed to the parties either party appeals to
    the Superior Court for the county in which the injury occurred or, if the injury occurred out of
    the State, to the Superior Court in and for the county in which the hearing was had.”); 
    Hamilton, 340 A.2d at 180
    . Section 2347 permits Board review of previous awards under certain
    circumstances. 
    Id. § 2347.
    38
    Eastburn v. Newark Sch. Dist., 
    324 A.2d 775
    , 776 (Del. 1974) (“The word ‘award’ must
    be read as the final determination of the Board in the case.”).
    39
    Blue Hen Lines, Inc. v. Turbitt, 
    787 A.2d 74
    , 78 (Del. 2001) (holding unappealed awards
    may not be revisited or modified on remand, and, because there is nothing for future
    determination or consideration regarding those awards, they are final judgments).
    40
    See Liberty Mut. Ins. Co. v. Silva-Garcia, 
    2012 WL 4165653
    , at *3 (Del. Super. Ct. Sept.
    5, 2012) (finding Board’s order pertaining to insurance coverage did not determine a substantial
    issue or a legal right and was therefore interlocutory, not final).
    -13-
    finds that a claimant fails to meet a burden of proof on his injury’s causal relation
    to the defendant’s actions, that finding is deemed a “valid and final judgment.” 41
    Maravilla-Diego had a choice between two inconsistent remedies here:
    either he could seek compensation under the Act’s framework, or he could seek
    damages at law against Saez & Son. 42 As such, he may elect to pursue only one to
    a final judgment. 43 Initially, Maravilla-Diego sought compensation against his
    uninsured employer by filing a Petition with the IAB. He then withdrew that
    Petition after the IAB issued a finding that he was indeed Saez & Son’s employee
    and awarded him attorney’s fees. 44             His next series of actions muddies the
    proceedings, as he then simultaneously pursued a negligence action in this Court, a
    bond request before the IAB, a Second IAB Claim Petition, and an appeal to this
    Court of the IAB’s denial of the bond request.
    But the Court need not decide whether any of these actions were
    individually enough to elect a remedy. The Court first notes that there is only one
    valid, final judgment here—the dismissal of his Second Petition. The IAB’s July
    41
    Messick v. Star Enter., 
    655 A.2d 1209
    , 1212 (Del. 1995).
    42
    § 2374(e).
    43
    See Wagner v. Allied Chem. Corp., 
    623 F. Supp. 1412
    , 1414 (D. Md. 1985) (the pursuit
    of a compensation claim to a final judgment constitutes an election of one of the two options).
    44
    Maravilla-Diego argues whether he “intentional[ly] or inadvertent[ly]” withdrew his
    original Petition “has no bearing on the viability of the instant action since there was clearly no
    avenue of recovery of benefits for Plaintiff under the Act.” Pl.’s Resp. Br. at 5 n.12.
    -14-
    14, 2014 order dismissing the Second Petition on statute of limitations grounds
    determined that Plaintiff’s legal right to proceed with a compensation claim had
    expired. Plaintiff has not appealed this dismissal, and there is therefore nothing
    more for the IAB to determine with regard to the Second Petition. A dismissal on
    those grounds therefore operates as a final judgment and an adjudication on the
    merits of his workers’ compensation claim under that Second Petition.
    And, while the parties urge otherwise, because there is a clear resolution in
    this case, the Court need not determine whether any of Maravilla-Diego’s other
    IAB filings or actions are triggers for electing a remedy. Maravilla-Diego clearly
    intended to bring his claims before the IAB, and he proceeded until he obtained a
    final IAB judgment.        The Court now considers his argument that that final
    judgment should not be construed as a “decisive act” constituting an election of a
    remedy under § 2374(e).
    2. Maravilla-Diego Has Elected a Remedy Under § 2374(e)
    Despite Failing to Recover Compensation Under the Act.
    Maravilla-Diego argues that, given the language of § 2374(e) and
    interpretive case law, the Court should find a successful recovery is the moment of
    election. Indeed, successfully prosecuting a claim for compensation will ordinarily
    bar the pursuit of a subsequent tort action for the same injury. 45 In Lyon, the
    45
    See Lyon v. In Bocca Al Luppo Trattoria, 
    2012 WL 4321204
    , at *2 (Del. Super. Ct. Sept.
    18, 2012) (finding plaintiffs who filed IAB petition and received a settlement payment from
    -15-
    plaintiffs received a settlement payment from the uninsured employer, who posted
    bond to cover the claims. 46 The plaintiffs then sued the employer, alleging tort
    claims. 47 This Court found that the “[p]laintiffs elected to pursue a remedy rooted
    in workers’ compensation” and were “[a]ccordingly . . . barred from pursuing a
    second recovery in the instant action.” 48
    Unlike Maravilla-Diego, the plaintiffs in Lyon did recover compensation.
    But this Court did not hold that recovery was a necessary fact for preclusion. It
    recited the facts existing in that case and simply held there that the plaintiffs were
    precluded from pursuing a second recovery under § 2374(e). 49 Here, Maravilla-
    Diego was unsuccessful in recovering compensation under the Act. Thus, the
    Court is faced with a different situation than in Lyon.
    The question of whether an employee has elected a remedy against an
    uninsured employer is worrisome when the employee chooses an unsuccessful
    remedy initially. 50 Some courts have found that an unsuccessful compensation
    uninsured employer had “elected to pursue a remedy rooted in workers’ compensation” and were
    therefore “barred from pursuing a second recovery” in negligence against employer); see also 6
    LARSON’S § 102.03.
    46
    Lyon, 
    2012 WL 4321204
    , at *1.
    47
    Id.
    48
    
    Id. at *2
    (emphasis added).
    49
    
    Id. 50 See
    6 LARSON’S § 102.03[1] (“The most troublesome question that emerges from the
    -16-
    claim does not bar a subsequent suit for damages.51 But courts have reached this
    result when the plaintiff’s initial route was unsuccessful because he or she had no
    choice between two existing inconsistent remedies. 52 Still other courts recognize
    either the recovery of “something of value on a claim or [the pursuit of] an action
    to final judgment” as an election. 53 The recognized underlying purpose is to
    prevent the potential double recovery. 54
    various situations in which an action at law may lie—or may be thought to lie—against the
    employer is this: is the employee who pursues one remedy to a fruitless conclusion barred by his
    or her election from pursuing the other?”).
    51
    See 
    id. (citing cases);
    see also Redifer v. Chester, 
    720 S.E.2d 66
    , 69 (Va. 2012) (“An
    employee may pursue alternative relief simultaneously, and if the employee fails to collect under
    the remedy he or she initially pursues to award, the employee may pursue the alternative remedy
    in an effort to effect a recovery. However, the employee is entitled to only one recovery.”)
    52
    See 
    id. (“The correct
    theory. . . is that an election of a remedy which proves to be
    nonexistent is no election at all.”); see also Patrick v. Highbaugh, 
    347 S.W.2d 88
    , 90 (Ky. 1961)
    (“As appellant’s application for compensation benefits was already barred by limitations at the
    very time it was asserted, neither he . . . nor his guardian. . . could be said to have possessed a
    valid remedy under the Compensation Act.”); Ray v. Knights, 
    194 A.D.2d 131
    , 134 (N.Y. App.
    Div. 1993) (workers’ compensation act did not apply and acceptance of benefits did not bar
    subsequent damages claim).
    53
    See, e.g., Brookman v. Henry Transp., 
    924 S.W.2d 286
    , 289 (Mo. Ct. App. 1996)
    (emphasis added).
    54
    In some instances, this is addressed instead by having one recovery offset the recovery
    obtained via a different avenue. See, e.g.¸ Millison v. E.I. du Pont de Nemours & Co., 
    501 A.2d 505
    , 519 (N.J. 1985) (holding pursuit of compensation benefits does not preclude common-law
    suit and “insurance carrier will be able to offset compensation benefits previously paid to the
    extent that the civil damage award would serve as a double recovery”); Le Parc Cmty. As’n v.
    Workers’ Comp. Appeals Bd., 
    2 Cal. Rptr. 3d 408
    , 418 (Cal. Ct. App. 2003) (interpreting statute
    explicitly permitting cumulative remedies against uninsured employer in workers’ compensation
    proceeding and in superior court: one compensation award or judgment will be credited against
    the other).
    -17-
    The Court finds that resolution of one avenue of relief in a final judgment—
    rather than successful recovery—is most consistent with the election of remedies
    doctrine as it has been applied in Delaware. 55 Pursuing a claim that eventually
    results in dismissal for being time-barred is in fact a valid election, although this is
    a harsh result.56 Just so here.
    Viewing the facts in light most favorable to Maravilla-Diego, the non-
    moving party, the Court finds that his pursuit of compensation through to a final
    judgment from the IAB on his Second Petition constitutes an election of that
    remedy.     There is no evidence in the record that Maravilla-Diego mistakenly
    pursued what he believed to be an available remedy. Here, Maravilla-Diego did
    have a legally viable option of recovering under the Act when he first commenced;
    his complaint is that as a practical matter, actual recovery might have been difficult
    under the Act. He candidly admits that he knew as he forged forward before the
    IAB that Saez & Son might not be able to even post bond for lack of company-
    owned assets. The fact that Saez & Son may lack assets to post bond may have
    made     Maravilla-Diego’s       pursuit    of   a    compensation       award     against    it
    55
    Stoltz Realty Co. v. Raphael, 
    458 A.2d 21
    , 23 (Del. 1983); Sannini v. Casscells, 
    401 A.2d 927
    , 931 (Del. 1979); Scott v. City of Harrington, 
    1986 WL 4494
    , at *1 (Del. Ch. Apr. 14, 1986);
    O’Leary v. Telecom Res. Serv., LLC, 
    2011 WL 2992099
    , at *4 (Del. Super. Ct. July 25, 2011).
    56
    See, e.g., Pryse Monument Co. v. Dist. Court of Kay Cnty., 
    595 P.2d 435
    , 437 (Okla.
    1979) (plaintiff’s untimely compensation claim barred subsequent tort claim against uninsured
    employer).
    -18-
    disadvantageous, but that is not the inquiry.           Knowing pursuit of the less
    advantageous of the two remedies to the point of dismissal for being time-barred is
    still a valid election of a remedy.
    Moreover, the IAB noted in its April 15, 2014 bond request denial order that
    the statute of limitations for filing claim petitions had passed at that point. Yet,
    Maravilla-Diego proceeded to file a Second Petition anyway. Even viewing the
    facts in his favor, the Court cannot find any record evidence that Maravilla-Diego
    was unaware of the facts and circumstances informing his decision to pursue
    workers’ compensation benefits to judgment. Thus, Maravilla-Diego has obtained
    a final judgment on his compensation claim—a decisive act evidencing his intent
    to pursue workers’ compensation as a remedy.
    Maravilla-Diego suggests that because the purpose of the Act is to promote
    injured employees’ recovery of compensation, a finding that he made an election in
    the absence of recovery—or, in his view, even a potential recovery—would
    frustrate the Act’s purpose. The Delaware Supreme Court has held that among the
    goals of workers’ compensation is “to give an employee . . . a prompt and sure
    means of receiving compensation and medical care without subjecting him[ ] to the
    hazards and delays of a law suit.” 57         And where an employer purposefully
    manipulates the system so that an injured worker is left with no recourse following
    57
    Campos v. Daisy Constr. Co., 
    107 A.3d 570
    , 580 (Del. 2014).
    -19-
    a workplace injury, the Court has found this to be contrary to the Act’s purpose.58
    But that is not so here.
    Maravilla-Diego chose his remedy knowing from the outset the relative
    advantages and disadvantages. 59 He then, through numerous proceedings, pursued
    it to a final judgment. Even still, he will not be left without recourse should his
    claim at law against his employer be dismissed—he has sued third parties at law,
    and his appeal of the IAB bond denial remains pending.60 Most importantly, if
    Maravilla-Diego is left with no way to recover workers’ compensation benefits
    here, it is not the result of Saez & Son’s actions or inactions. Maravilla-Diego had
    a choice between remedies and pursued one—workers’ compensation through the
    IAB—to a final judgment. He may not now pursue the inconsistent remedy at law.
    VI.   CONCLUSION
    The Court finds that Maravilla-Diego, under the unique facts presented here,
    had elected a remedy by pursuing workers’ compensation benefits to a final
    judgment. His action at law against Saez & Son must be DISMISSED as barred
    58
    
    Id. (“When [plaintiff]
    received benefits under the Act, he gave up his right to sue
    [defendant] in tort for permanently disabling him. If we were to now find that [defendant] could
    terminate his benefits without making a proper demonstration of job availability as required by
    § 2325, we would leave [plaintiff] with no recourse following his disabling workplace injury.”).
    59
    See Petition to Determine Compensation Due to Injured Employee, Apr. 16, 2014, Ex. F
    to Def.’s Mot. Summ. J. (listing “Uninsured” in the Insurance Carrier field).
    60
    This appears to be an attempt to revitalize and continue with his First Petition.
    -20-
    by the election of remedies doctrine.   Saez & Son’s Motion for Summary
    Judgment is therefore GRANTED.
    IT IS SO ORDERED.
    /s/ Paul R. Wallace
    PAUL R. WALLACE, JUDGE
    Original to Prothonotary
    cc: All counsel via File & Serve
    -21-