Feghali v. Collins Welding and Fabrication, Inc. ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CHRISTIAN A. FEGHALI and )
CAROL S. FEGHALI, Husband and )
Wife, )
)
Plaintiffs, )
) C.A. No. N20C-06-165 CLS
v. )
)
COLLINS WELDING AND )
FABRICATION, INC., )
)
Defendant/Third-Party Plaintiff, )
)
v. )
)
THE PHILADELPHIA )
CONTRIBUTIONSHIP, )
)
Third-Party Defendant, )
Date Submitted: July 11, 2022
Date Decided: October 7, 2022
Upon Defendant/Third-Party Plaintiff’s Motion for Summary Judgment.
GRANTED. Upon Third-Party Defendant’s Motion for Summary Judgment.
GRANTED.
ORDER
Robert C. McDonald, Esquire, Silverman McDonald & Friedman, Wilmington,
Delaware, 19805, Attorney for Plaintiffs, Christian and Carol Feghali.
Eric Scott Thompson, Esquire, Franklin & Prokopik, Newark, Delaware 19711,
Attorney for Defendant/Third-Party Plaintiff, Collins Welding and Fabrication,
Inc.
Robert J. Cahall, Esquire, McCormick & Priore, P.C., Newark, Delaware, 19713,
Attorney for Third-Party Defendant, The Philadelphia Contributionship Insurance
Company.
SCOTT, J.
1
INTRODUCTION
Before the Court is Defendant/Third Party Plaintiff Collins Welding and
Fabrication, Inc.’s (“Collins”) Motion for Summary Judgment (“Motion”). The
Court has reviewed Plaintiffs Christian and Carol Feghali (“Mr. and Mrs. Feghali”)
and Third-Party Defendant Philadelphia Contributionship Insurance Company’s
(“Insurance Company”) responses, as well as the present Motion. For the reasons
that follow, the Defendant/Third-Party Plaintiff’s Motion for Summary Judgment is
GRANTED.
BACKGROUND
This action arising from a claim by Mr. and Mrs. Feghali as a result of
Collins’s negligence that caused damage to real and personal property of their pole-
barn. Mr. and Mrs. Feghali alleged in their complaint that on January 26, 2019, they
permitted their acquaintance Dave Dalik (“Mr. Dalik”) to use their pole-barn to
undertake a vehicle repair. Mr. Dalik engaged the services of Collins to perform
welding repairs on the vehicle and the sparks from the welding process caused the
pole-barn to ignite. The pole-barn and its contents were destroyed.
As a result of the damage, Mr. and Mrs. Feghali contacted Insurance
Company, their own insurance carrier. Insurance Company allegedly made a number
of payments in connection with the fire and one of those payment’s included a check
for $318,382.10 (“Check”), which was issued to Mr. and Mrs. Feghali in January
2
2020. The Check has not been cashed. Insurance Company asserted a subrogation
claim against Collins’s insurance carrier, Cincinnati Insurance Company
(“Cincinnati”). Cincinnati accepted the claim and agreed to pay Insurance Company
$511,410.11, the full value of Insurance Company’s estimates of Mr. and Mrs.
Feghali’s damages as of the time of the agreement. Due to the agreement, a release,
dated June 4, 2020, was entered as between Insurance Company and Cincinnati,
discharging Cincinnati from all liability for damages from the fire.
Collins moves for summary judgment on the grounds Mr. and Mrs. Feghali
have been made whole and have not produced any evidence to the contrary. Collins
bolsters his claim with evidence that when Mr. and Mrs. Feghali were asked to
produce special damages, they submitted the same list provided to Insurance
Company even though they had been compensated for based on market value by
Insurance Company.
In response to this Motion, Mr. and Mrs. Feghali contend while they were
made whole with regard to the structure damage done to the property, the payment
for the contents inside the structure remain in conflict. Mr. and Mrs. Feghali argue
the costs of replacement of the destroyed structures was approximately $511,410.11
and that amount did not account for the contents lost in the fire. Mr. and Mrs. Feghali
admit they produced to Collins the same inventory that Insurance Company created
that they then recreated and that a check from the Insurance Company for the lost
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inventory was issued to them. However, they assert the draft of the lost inventory
due to the fire was not negotiated and not all of the lost contents could be identified
based on the condition the items were in after the fire. Therefore, Mr. and Mrs.
Feghali argue they have not been made whole because although Insurance Company
issued them a check, the amount was significantly less than the value of loss causing
the check to be in contention and still not deposited.
In response to this Motion, Insurance Company does not argue for or against
the Motion. Rather, Insurance Company takes this opportunity to explain to this
Court that there is no direct standing between Insurance Company and Collins
because an injured third party may not bring a direct cause of action against a
tortfeasor’s insured and Mr. and Mrs. Feghali never pled any direct cause of action
against them. Insurance Company additionally argues that if this Motion is granted,
Insurance Company is necessarily entitled to summary judgment because no liability
can be passed from Insurance Company to Collins, a third party.
STANDARD OF REVIEW
Under Superior Court Rule 56, the Court may grant summary judgment if “the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact
4
and that the moving party is entitled to summary judgment as a matter of law.”1 The
moving party bears the initial burden of showing that no material issues of fact are
present.2 Once such a showing is made, the burden shifts to the non-moving party
to demonstrate that there are material issues of fact in dispute.3 In considering a
motion for summary judgment, the Court must view the record in a light most
favorable to the non-moving party.4 The Court will not grant summary judgment if
it seems desirable to inquire more thoroughly into the facts in order to clarify the
application of the law.5
DISCUSSION
The Court finds there is no genuine dispute of material fact at issue here. Mr.
and Mrs. Feghali claim they have not been made whole because a large measure of
damaged property was so severe that many of the items within the damaged structure
could not be identified and claim the items contained in the structure total one
million dollars. Unfortunately, Mr. and Mrs. Feghali have not presented anything to
this Court regarding the alleged items that were so damaged that they were
unidentifiable. Instead, Mr. and Mrs. Feghali presented the same inventory that the
1
Super. Ct. Civ. R. 56(c); Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
2
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
3
Id. at 681.
4
Burkhart, 602 A.2d at 59.
5
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); Phillip-Postle v. BJ Prods.,
Inc., 2006 WL 1720073, at *1 (Del. Super. Ct. Apr. 26, 2006).
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insurance company gave to them and then they recreated. The main problem with
this presentation is that those items are all ones that have been accounted for, they
are not those Mr. and Mrs. Feghali claim are so damaged that they are unidentifiable.
In addition to those items being accounted for, they were reimbursed, minus
depreciation, for the inventory. Mr. and Mrs. Feghali have been holding on to the
Check and maintain the amount for the Check is significantly less than the value of
loss, so the Check is in contention. Unfortunately, this argument has nothing to do
with their claim against Collins. Just because Mr. and Mrs. Feghali did not deposit
their insurance proceeds does not go toward Collins’s liability for their loss. Rather,
the only point it goes towards is their dissatisfaction with Insurance Company’s
depreciation of their loss.
Any damages that Mr. and Mrs. Feghali claim must be reduced by the amount
Insurance Company agreed to pay them. The payment was subsequently subrogated
by Insurance Company against Collins insurance carrier, therefore Collins, by and
through its insurance company has paid for the identifiable losses. Mr. and Mrs.
Feghali may not recover twice for the same injury from the same tortfeasor.6 Without
Mr. and Mrs. Feghali presenting any evidence to their unidentifiable losses, there is
6
Brookfield Asset Mgmt., Inc. v. Rosson, 261 A.3d 1251, 1277 (Del. 2021) (“The
double recovery rule prohibits a plaintiff from recovering trice for the same injury
from the same tortfeasor.”)
6
no additional injury and thus Collins is entitled to judgment in its favor as a matter
of law. Thus, Collins Motion for Summary Judgment is GRANTED.
Additionally, the Court recognizes Collins joined Insurance Company as a
third-party defendant in this matter. Seeing that there is no direct claim from Mr. and
Mrs. Feghali against Insurance Company and seeing that Collins is not an intended
beneficiary of Mr. and Mrs. Feghali’s insurance policy7, Collins does not have third
party standing to sue Insurance Company. Therefore, Insurance Company Motion
for Summary Judgment to be entered in its favor and that it be dismissed from this
action is GRANTED.
CONCLUSION
For the foregoing reasons, Defendant/Third Party Plaintiff’s Motion for
Summary Judgment is GRANTED, and Third-Party Defendant’s Motion for
Summary Judgment is GRANTED. This Matter is DISMISSED.
IT IS SO ORDERED.
/s/ Calvin L. Scott
Judge Calvin L. Scott, Jr.
7
See Schmelz v Marton, 2019 WL 1977079, at *3 (Del. Super. Ct. May 2, 2019).
7