Waters v. Delaware Moving and Storage, Inc. ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
PAMELA WATERS, )
)
Plaintiff, ) C.A. No. N21C-05-130 MAA
)
v. )
)
DELAWARE MOVING AND )
STORAGE, INC. and GIBELLINO )
CONSTRUCTION CO., INC., )
)
Defendants. )
Submitted: April 13, 2023
Decided: June 28, 2023
Upon Plaintiff Pamela Waters’ Motion for Partial Summary Judgment:
DENIED.
Upon Delaware Moving and Storage, Inc.’s Motion for
Partial Summary Judgment:
GRANTED.
Upon Gibellino Construction Co., Inc.’s Motion for
Summary Judgment:
GRANTED.
OPINION
Andres Gutierrez de Cos, Esquire, of ANDRES DE COS LLC, Wilmington,
Delaware, Attorney for Plaintiff.
William A. Crawford, Esquire, of FRANKLIN & PROKOPIK, Newark, Delaware,
Attorney for Defendant Delaware Moving and Storage, Inc.
Lisa M. Grubb, Esquire, of MARSHALL, DENNEHEY, WARNER, COLEMAN
& GOGGIN, Wilmington, Delaware, Attorney for Defendant Gibellino
Construction, Co. Inc.
Adams, J.
1
I. INTRODUCTION
Pending before the Court are Plaintiff Pamela Waters’ (“Plaintiff”) and
Defendant-Subcontractor Delaware Moving and Storage’s (“Subcontractor”) cross-
motions for partial summary judgment (collectively the “cross motions”); and
Defendant Gibellino Construction’s (“Contractor”) motion for summary judgment.
The narrow issue presented in the cross motions is whether the “Replacement
Cost Value” provision (the “Valuation Provision” or “Provision”) in the Moving
Contract between Plaintiff and Subcontractor, which purports to limit Plaintiff’s
recovery for damages to her property to $20,000, is valid and enforceable. Plaintiff
claims that her actual damages are $53,757.1 For the reasons that follow, Plaintiff’s
motion for partial summary judgment is DENIED and Defendant’s motion for partial
summary judgment is GRANTED.
Contractor moves for summary judgment on Plaintiff’s breach of contract
claim (Count III). There are two questions presented by Contractor’s motion: (1)
does the damage allegedly caused by Subcontractor constitute a breach of the
Restoration Contract between Plaintiff and Contractor; and (2) does Contractor’s
alleged involvement in selecting the coverage amount in the Moving Contract
constitute a breach of the Restoration Contract? For the reasons that follow, the
1
Compl. ¶ 60.
2
Court finds that the answers to these questions is no and Contractor’s motion for
summary judgment is GRANTED.
II. FACTS
A. Background
Plaintiff is the owner of the property located at 303 Plymouth Rd.,
Wilmington, DE 19803.2 On or about May 28, 2019, Plaintiff’s home was damaged
by a fallen tree.3 Plaintiff hired Contractor to repair the damage to her home.4
Plaintiff’s property was covered by a homeowner’s insurance policy issued by State
Farm at the time the tree damaged her home.5 Contractor hired Subcontractor
(collectively “Defendants”) to remove Plaintiff’s personal property and hold it in
storage while Contractor was repairing the damage to her home.6 The parties do not
dispute that Contractor selected Subcontractor and referred Subcontractor to
2
Compl. ¶ 1.
3
Compl. ¶ 6.
4
Compl. ¶ 8; see infra nn. 207-216 and accompanying text for a discussion of the contract between
Plaintiff and Contractor.
5
Compl. ¶ 7.
6
See Dep. of Gabe Gibellino at 19:21-24 (“Gibellino Dep.”).
3
Plaintiff.7 David Hopkins (“Hopkins”), co-owner of Subcontractor, testified that he
considered Plaintiff as the customer and Contractor as “our account.”8
Approximately one week prior to the date when Subcontractor packed and
moved Plaintiff’s property, James Sterling, an estimator for Subcontractor, came to
Plaintiff’s home to assess the number of boxes needed for packing Plaintiff’s
property.9 Sterling testified at his deposition that he did not assess the value of
Plaintiff’s property during that visit.10 Sterling included on this estimate a
replacement cost valuation of $20,000, which was the customary valuation amount
for all jobs where their customer hired Contractor.11 Sterling then emailed the
7
Plaintiff alleges that she did not participate in hiring Subcontractor and that Contractor was solely
responsible for hiring Subcontractor. Aff. of Plaintiff ¶ 3 (Sept. 28, 2022) (“Pl. Aff.”). Gabe
Gibellino (“Gibellino”), an estimator for Contractor, similarly testified that Plaintiff was not asked
whether she would like to use a particularly moving company. Gibellino Dep. at 20: 1-5. David
Hopkins (“Hopkins”), co-owner of Subcontractor, averred in his affidavit that Contractor referred
Plaintiff to Subcontractor and that Subcontractor then sent its estimator (David Sterling) to assess
the size of the move. Affidavit of David Hopkins ¶ 8 (Aug. 26, 2022) (“Hopkins Aff.").
8
Dep. of David Hopkins at 45:15-17 (“Hopkins Dep.”). James Sterling (“Sterling”), an estimator
for Subcontractor, testified to his belief that both Contractor and Plaintiff are Subcontractor’s
customers. Dep. of James Sterling at 8:13-19, 13:4-5 (“Sterling Dep.”).
9
Sterling Dep. at 6: 14-24; 7-11.
10
Sterling Dep. at 48: 7-14. David Hopkins (“Hopkins”), co-owner of Subcontractor similarly
testified that Subcontractor does not conduct an estimate of the actual value of a customer’s
property before a coverage amount is selected. Hopkins Dep. at 38:14-23.
11
See Sterling Dep. at 18: 4-11; 19: 9-12 (A: “up until that time [before Plaintiff’s move], for a
Gibellino [Contractor] job, we never had more than $20,000” . . . Q: “So the amount varied, but
with Gibellino [Contractor] it was always $20,000?” A: “Correct.”); Hopkins Dep. at 39: 5-17
(“…we don’t have a signed contract, but we have an agreement with Gibellino [Contractor] that
we will . . . waive the minimal coverage, which is 60 cents a pound. We give them – we offer them
$20,000. And then if there is more that wants to be selected or that valuation is not sufficient, then
the client, the customer, in this case Ms. Waters, has the ability to go further. But we give a
minimum of [$]20,000 instead of the minimum of 60 cents a pound.”); see also Hopkins Dep. at
53:18-24; 54:1-2.
4
estimate for the move and storage to Contractor.12 Sterling testified that the estimate,
which included the selected valuation of $20,000, was not emailed to Plaintiff.13
Gibellino testified that he typically only sends quotes from subcontractors to the
customer’s insurance carrier, not to the customer directly.14
On or about August 15, 2019, Subcontractor arrived at Plaintiff’s home to
move her personal belongings into storage.15 After Subcontractor had loaded
Plaintiff’s personal belongings onto its truck, an employee for Subcontractor
provided to Plaintiff a one-page document (the “Moving Contract” or the
“Contract”) for her signature that included valuation options for Plaintiff’s
property.16 Sterling testified that, as a general matter, he tells customers this
document is a contract and testified in the affirmative that the terms of the contract
are negotiable.17 Plaintiff averred in her Affidavit that, when she was handed the
form, she assumed the document was a contract between Contractor and
Subcontractor because “Gibellino’s [Contractor] name was first on the paper.”18
12
Gibellino Dep. at 41: 13-16 (Q: “At some point the quote is e-mailed from Delaware Moving
and Storage to Gibellino, correct?” A: “Correct.”); Sterling Dep. at 8: 4-9 (Q: “and then once that
estimate is ready you would e-mail it to Mr. Gibellino?” A: “Correct.”).
13
Sterling Dep. at 8:4-14.
14
Gibellino Dep. at 17: 5-10; 23: 11-14.
15
Compl. ¶ 11.
16
Aff. ¶ 4.
17
Sterling Dep. at 51: 11-20.
18
Aff. ¶ 5. In the top left corner of the Moving Contract, next to the line for “Customer” is hand-
written “Gibellino Construction – Pamela Waters.”
5
Plaintiff alleges that before this date, she was not shown any documentation
regarding the work that was to be performed by Subcontractor.19
B. The Moving Contract
The top left corner of the body of the Contract contains the following title in
all caps, bolded, and underlined: “VALUATION OPTIONS.”20 The Contract
provides three options “to establish the appropriate valuation in the event of a loss
and/or damage.”21 The Contract instructs the customer to “[p]lease read each of the
three choices carefully, as this will determine the Replacement method of your
household goods and property if damaged in Transit and while shipment is in
storage.”22
The three options are labeled “A: NO CHARGE,” “B: IN-STORAGE
VALUATION,” and “C: Transit Rates – Replacement Cost Valuation”
(“Valuation Provision”) with check boxes next to each.23 Option A gives a customer
the choice of selecting a replacement value of sixty cents per pound in the event their
property is lost or destroyed.24 Option A is not checked and “N/A” is written in the
corresponding signature line.25 For option B, next to “IN-STORAGE
19
Aff. ¶ 4.
20
Moving Contract.
21
Id.
22
Id.
23
Id. (Emphasis in original).
24
Id.
25
Id.
6
VALUATION” is the following: “$2.50 per 1,000 worth of valuation per month.”
Option B provides a space for the value to be filled in.26 The box next to this option
was checked and the amount of $20,000 was handwritten next to “Amount of
valuation.”27 Option C, defines the “replacement cost value” as “the cost, at the time
of loss of a new article identical to the one lost or destroyed.”28 This section contains
a table listing valuation amounts and the corresponding premiums based on $250
and $500 deductibles.29
The lowest valuation amount of $20,000 was circled along with the
corresponding $215 premium based on a $250 deductible.30 Above the column
listing the premium, is the following handwritten notation: “$0 billed.” 31 Sterling
testified that for all jobs with customers involving Contractor, the deductible is
waived.32 Subcontractor absorbs the cost of the deductible.33 Below the table is a
section where an individual can write in the valuation amount, deductible, and
26
Id.
27
Id. See also Sterling Dep. at 21: 1-3 (testifying that Section B covers customers if their property
is damaged while in storage, while the Valuation Provision covers damage that occurs during
transportation).
28
Moving Contract. Option C states that “[w]hen the identical article is not available, replacement
cost value shall mean the cost of a new article similar to that damaged or destroyed and which is
of comparable quality and usefulness.”
29
Id.
30
Id.
31
Id.
32
Sterling Dep. at 26: 18-24; 27: 1-4; 29: 16-18.
33
Hopkins Dep. at 50: 15-19 (“Q: When you waive the deductible, does that mean Vanliner
[Subcontractor’s Insurer] pays the extra 250 or you chip that in?” . . . A: “We pay it.”).
7
premium due.34 “20,000” is handwritten as the valuation amount, the deductible is
listed as $0, and the premium is $215.35 In this section (“Option C”), next to
“Customer Signature,” Plaintiff signed her name.36
The form also contains signature lines on the bottom of the form for the
customer and employee of Subcontractor (“Driver”).37 The following notice is
printed above the signature lines toward the bottom of the form:
“[u]nless a greater value is stated herein, the customer
declares, that the value, in case of loss or damage . . . and
the liability of the mover, for each or any piece or package
and the contents thereof, does not exceed and is limited to
sixty (60 cents) per pound per article . . . such customer
having been given the opportunity to declare a higher
valuation, without limitation, in case of loss or damage
from any cause which would make the mover liable and to
pay the higher rates based thereon.”38
Plaintiff signed her name above the line for “Customer” and an employee of
Subcontractor wrote “To Be Billed” above the signature line for “Driver.”39 The
valuation amount of $20,000 in section C of the form was circled when it was
provided to her. 40
34
Moving Contract.
35
Id.
36
Id.
37
Id.
38
Id.
39
Id.; Aff. ¶ 5.
40
Id.; Aff. ¶ 6.
8
C. Circumstances Surrounding the Execution of the Contract
Plaintiff avers in her Affidavit that she “was not provided time to review or
read the contract,” that she was not told that she could change the valuation amount,
and that she “was told to just sign.”41 Plaintiff avers that no one explained the terms
of the Valuation Provision before she signed the Contract; specifically no one
explained that she should calculate the value of her property, could change the
coverage amount, or told that the Provision could function as a waiver.42
Plaintiff further avers that she would not have signed had she known that the
Valuation Provision “meant a waiver that limited any and all possible damage
relating to the move,” and that she would not have chosen a limit of $20,000.43
Plaintiff contends that she would not have been able to calculate the value of her
property because Subcontractor had already placed it onto the truck when an
employee presented the Contract to her.44
Subcontractor did not appraise the value of Plaintiff’s property before the
move.45 Sterling testified that he selects the $20,000 amount on estimates and that
$20,000 was the minimum coverage he would add to customers who hired
41
Aff. ¶¶ 5-6.
42
Aff. ¶¶ 4-7.
43
Aff. ¶ 7; see also Gibellino Dep. at 38: 13-18 (Q: “was it obvious to Gibellino Construction
[Contractor] that they might be releasing Delaware Moving and Storage [Subcontractor] from
liability for damages caused beyond a certain number?” A: “No.”).
44
Aff. § 7.
45
Hopkins Dep. at 38: 14-23; see also Sterling Dep. at 6: 8-13; 18: 4-15.
9
Contractor.46 Sterling also testified that at the time he met with Plaintiff there was
not a habit of discussing the valuation options with customers, but that he would
explain it if asked.47 Hopkins testified that “we let the customer determine what
their valuation coverage is . . . when we give them the contract at the start of the
move.”48 Contractor paid $15,875 to Subcontractor for its moving and storage
services, which included the $215 premium.49
On January 23, 2020, Subcontractor removed Plaintiff’s household
furnishings from storage and returned them to her home.50 Plaintiff’s claims against
Subcontractor arise from damage that Subcontractor allegedly caused to Plaintiff’s
household furnishings in the process of their removal, storage, and/or return to
Plaintiff’s home.51 Plaintiff notified Subcontractor that Subcontractor had caused
damage to Plaintiff’s property in the amount of $53,757.52 Subcontractor tendered
Plaintiff’s damage claim to Subcontractor’s insurer, which paid $7,785 to repair
46
See Sterling Dep. at 18: 4-11; 19: 9-12.
47
Sterling Dep. at 31: 11-14.
48
Hopkins Dep. at 41: 18-24; 42: 1.
49
Subcontractor Invoice, Ex. 2 to Contractor’s Reply to Mot. Summ. J. In the Moving Contract,
the estimated cost of moving and storing Plaintiff belongings is $13,067. Gibellino testified to his
belief that Contractor paid around $15,800 to Subcontractor for Subcontractor’s services.
(Gibellino Dep. at 34: 4-8); Sterling Dep. at 23: 3-4; 27: 13-16 (testifying that Contractor pays the
cost of the premium to Subcontractor); Hopkins Dep. at 13: 14-16 (testifying that the premium
was paid to Subcontractor).
50
Compl. ¶ 11; Hopkins Aff. ¶ 8.
51
Compl. ¶¶ 11-12.
52
Compl. ¶¶ 12-13.
10
some of the damaged items, but has refused to issue any further payment unless and
until Plaintiff signs an agreement limiting Subcontractor’s liability to $20,000.53
III. PROCEDURAL HISTORY
On May 17, 2021, Plaintiff filed her complaint listing 6 counts against
Subcontractor and 6 counts against Contractor.54 Plaintiff alleges that Subcontractor
caused damage to her property in the amount of $53,757.55 On June 14, 2021,
Subcontractor filed a Motion to Dismiss the following counts against Subcontractor:
Negligence (Count I), breach of implied covenant of good faith and fair dealing
(Count V), fraudulent inducement (Count VI), and negligent misrepresentation
(Count VII).56 On October 22, 2021, the Court held oral argument on
Subcontractor’s motion.57 The Court granted Subcontractor’s motion and dismissed
those counts.58 The two remaining counts against Subcontractor are for breach of
53
Compl. ¶ 24.
54
The counts in the Complaint are as follows: Count I: negligence against Subcontractor, Count
II: negligence and Respondeat Superior against Contractor, Count III: breach of contract against
Contractor, Count IV: breach of contract against Subcontractor, Count V: breach of implied
covenant of good faith and fair dealing against Defendants, Count VI: fraudulent inducement
against Defendants, Count VII: negligent misrepresentation against Defendants, and Count VIII:
consumer fraud against Defendants.
55
Compl. ¶¶ 11-12.
56
Def. Mot. Dismiss.
57
Waters v. Delaware Moving & Storage, Inc., C.A. No. N21C-05-130 (MAA) (Del. Super. Oct.
22, 2021), Judicial Action Form.
58
Id; Waters v. Delaware Moving & Storage, Inc., C.A. No. N21C-05-130 (MAA) (Del. Super.
Oct. 22, 2021) (TRANSCRIPT at 35: 11-13). The Court dismissed the counts of negligence,
fraudulent inducement, and negligent misrepresentation, finding that these counts violated the
Economic Loss Rule pursuant to McKenna v. Terminex Intern. Co., 2006 WL 1229674 (Del.
Super. Mar. 13, 2006) and International Fidelity Ins. Co. v. Mattes Electric, Inc., 2002 WL
1400217 (Del. Super. June 27, 2002).
11
contract (Count IV) and consumer fraud (Count VIII).59 On August 13, 2022,
Plaintiff filed the instant motion for partial summary judgment. On September 9,
2022, Subcontractor filed its motion for partial summary judgment. These cross-
motions seek summary judgment on whether the Valuation Provision in the Moving
Contract is valid and enforceable as a matter of law.60 On December 20, 2022, the
Court held oral argument on the motions and reserved decision.61 On February 15,
2023, the Court requested additional briefing on the law regarding limitations of
liability in bailment contracts, i.e. carrier contracts.62 The parties completed this
additional briefing on April 13, 2023 and the motions are now ripe for adjudication.
Contractor filed its motion for summary judgment on Plaintiff’s breach of
contract claim on February 2, 2023. Plaintiff filed her response on March 6, 2023
and Contractor filed its reply on March 21, 2023. This motion is also ripe for
adjudication.
59
Compl. ¶¶ 47-52, 80-83; Waters v. Delaware Moving & Storage, Inc. C.A. No. N21C-05-130
(MAA) (Del. Super. Oct. 22, 2021), Judicial Action Form; Waters v. Delaware Moving & Storage,
Inc., C.A. No. N21C-05-130 (MAA) (Del. Super. Oct. 22, 2021 (TRANSCRIPT at 35:11-13).
60
Pl. Mot. Part. Summ. J. Br. at 7; Subcontractor’s Mot. Part. Summ. J. Br. at 1-2.
61
Waters v. Delaware Moving & Storage, Inc., C.A. No. N21C-05-130 (MAA) (Del. Super. Oct.
22, 2021), Judicial Action Form.
62
Waters v. Delaware Moving & Storage, Inc., C.A. No. N21C-05-130 (MAA) (Del. Super. Feb.
15, 2023), Transaction ID 69154433.
12
IV. CROSS MOTIONS FOR SUMMARY JUDGMENT
A. THE PARTIES’ POSITIONS
The parties each make a series of arguments regarding the validity of the
Valuation Provision. In Plaintiff’s initial brief in support of her motion for partial
summary judgment, she contends that the Valuation Provision is void on three
grounds: (1) the clause is unreasonable considering the foreseeable damages; (2) the
clause is not conspicuous and not agreed upon by the parties; and (3) the clause is
unconscionable as a matter of law.63
In Plaintiff’s response to the Court’s request for additional briefing, Plaintiff
asserts that bailment caselaw and the factual record in this case further affirms that
the Valuation Provision is void and unenforceable.64 Plaintiff asserts that the
Valuation Provision is void because Subcontractor failed to assess the actual value
of Plaintiff’s property, did not provide Plaintiff with an “actual choice regarding the
Limitations Clause value,” and did not explain the Provision prior to execution.65
Plaintiff further asserts that carrier contracts are subject to higher standards for
clarity and understanding because they are contracts of adhesion, and therefore
provisions are strictly construed against the carrier.66 Plaintiff alleges that the bailor
63
Pl. Mot. Part. Summ. J. Br. at 7.
64
Pl. Supp. Br. at 5.
65
Id. at 6.
66
Id.
13
or shipper needs to have actual knowledge of a limitation provision for it to be
valid.67
Plaintiff asserts “a correct valuation is necessary to determine the
reasonableness of the limitations clause.”68 Plaintiff argues the word “value” in 6
Del. C. § 7-309(b), relating to contractual limitations of a carrier’s liability, to mean
the actual and correct value of the goods to be transported.69 Plaintiff takes the
position that the Delaware Superior Court in Dunfee v. Blue Rock Van & Storage,
Inc.70 upheld the liability limitations provision because the “contract fairly spells
out the limitation of liability and contains a provision for increased charges and
additional insurance where an excess value is declared.”71 Plaintiff contends that
“Defendant [Subcontractor] was the only party who had the foresight, ability, and
opportunity to ascertain Plaintiff’s damages.”72
67
Id. at 11 (citing Dunfee v. Blue Rock Van & Storage, Inc., 266 A.2d 187, 189 (Del. Super. Apr.
30, 1970)); Calvin Klein Ltd., 892 F.2d 191, 194 (2nd Cir. 1989); Coutinho & Ferrostall, Inc. v.
M/V Fed. Rhine, 799 F. Supp. 2d 550 (D. Md. 2011); 8A AM. JUR 2d Bailments § 88.
68
Pl. Supp. Br. at 7.
69
Id. at 6-7. See infra n. 99-101 and accompanying text for a discussion of 6 Del. C. § 7-309(b).
70
266 A.2d 187 (Del. Super. Apr. 30, 1970).
71
Pl. Supp. Br. at 7 quoting Dunfee, 266 A.2d at 189. See infra nn. 111-118 and accompanying
text for a discussion of Dunfee. The remainder of the cases Plaintiff cites to support her position
that the liability limitation must reflect the actual value of the goods are from other jurisdictions
outside of the Third Circuit. See Pl. Supp. Br. at 7-8 quoting Federal Ins. Co. v. Transconex, Inc.,
430 F. Supp. 290, 295 (D.P.R. 1976); Rappaport v. Storfer Bros., Inc., 138 N.Y.S.2d 584, 588
(N.Y. Ct. 1955); Bauer v. Jackson, 15 Cal. App. 3d 358, 367 (Cal. Ct. App. 1971); Hogan Transfer
& Storage Corp. v. Waymire, 399 N.E.2d 779 (Ind. Ct. App. 1980).
72
Pl. Supp. Br. at 10.
14
Subcontractor asserts in its initial brief in support of its motion for partial
summary judgment that the Valuation Provision is valid and enforceable, and that
Plaintiff’s recovery is therefore limited to $20,000. In Subcontractor’s supplemental
brief, it asserts that Sections 7-204(b) and 7-309(b) of Title 6 of the Delaware Code
and caselaw on bailment contracts support upholding the Valuation Provision.
Subcontractor notes that these sections are in alignment with the Federal Motor
Carrier Safety Regulations that similarly permit carriers to limit their liability
through such valuation provisions.73 Subcontractor contends that Dunfee supports
upholding the Valuation Provision in this case.74
B. STANDARD OF REVIEW
To succeed on a motion for summary judgment, the moving party must
demonstrate that there are no genuine issues of material fact and that they are entitled
to judgment as a matter of law.75 When considering a motion for summary judgment,
the Court must view the facts in the light most favorable to the non-moving party.76
“If a defendant, as the moving party, can establish that there is no genuine issue of
material fact, and the defendant is entitled to judgment as a matter of law, the burden
will shift to the plaintiff to show the existence of specific facts to support the
73
49 U.S.C. § 14706 (1935); 49 C.F.R. § 375.203.
74
266 A.2d 187, 189 (Del. Super. Apr. 30, 1970).
75
Super. Ct. Civ. R. 56(c).
76
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
15
plaintiff's claim.”77 A genuine issue of material fact arises when “any rational trier
of fact could infer that plaintiffs have proven the elements of [a] prima facie case by
clear and convincing evidence.”78
Pursuant to Superior Court Civil Rule 56(h), “where the parties have filed
cross-motions for summary judgment and have not presented argument to the Court
that there is an issue of fact material to the disposition of either motion, the Court
shall deem the motions to be the equivalent of a stipulation for decision on the merits
based on the record submitted with the motions.” The filing of cross-motions for
summary judgment, however, does not equate to a concession of an absence of
material fact.79 “Rather, a party moving for summary judgment concedes the
absence of a factual issue and the truth of the nonmoving party’s allegations only for
the purposes of its own motion, and does not waive its right to assert that there are
disputed facts that preclude summary judgment in favor of the other party.”80 “Thus,
‘the mere filing of a cross motion for summary judgment does not serve as a waiver
of the movant’s right to assert the existence of a factual dispute as to the other party’s
motion.’”81
77
Singletary v. American Indep. Ins. Co., 2011 WL 607017, at *1 (Del. Super. Jan. 31, 2011).
78
Id. (citing Cerebus Intl. LTD. V. Apollo Mgmt., L.P., 794 A.2d 1141, 1149 (Del. 2002)).
79
Lukk v. State Farm Mut. Auto. Ins. Co., 2014 WL 4247767, at *3 (Del. Super. Aug. 27, 2014)
(internal citations omitted).
80
Id. (quoting Fox v. RC Fabricators, Inc., 2013 WL 6916917, at *2 (Del. Super. Dec. 20, 2013))
(internal citations omitted).
81
Id. (quoting JJID, Inc. v. Del. River Indus. Park, LLC, 2007 WL 2193735, at *3 (Del. Super.
July 30, 2007)) (internal citations omitted).
16
“Summary judgment is especially appropriate where the motion is based only
upon legal claims, and there are no material facts in dispute.”82 When the contested
issue is the proper interpretation of a contract, summary judgment is only appropriate
when the language at issue is clear and unambiguous.83 Therefore, the threshold
inquiry when presented with a contract dispute on a motion for summary judgment
is whether the contract is ambiguous.84 Both Plaintiff and Subcontractor have filed
motions for partial summary judgment on whether, as a matter of law, the Valuation
Provision purporting to limit Plaintiff’s claim of damages to $20,000, is valid and
enforceable.85 Thus, the Court may grant summary judgment if the Valuation
Provision is clear and unambiguous.
C. REVIEW OF THE LAW ON BAILMENTS
The facts of this case implicate general principles of contract law and, more
specifically, the law on bailments. Plaintiff’s claims against Subcontractor arise
primarily from damage that Subcontractor allegedly caused to Plaintiff’s property in
the process of transporting and storing same.86 Before addressing the Valuation
82
Clark v. Kelly, 1999 WL 458625, at *3 (Del. Ch. June 24, 1999).
83
See GMG Capital Inv., LLC v. Athenian Venture Partners I, L.P., 36 A.3d 776, 783 n. 25 (Del.
2012) (collecting cases upholding award of summary judgment where contractual language was
clear and unambiguous) ; United Rentals, Inc. v. RAM Holdings, Inc., 937 A.2d 810, 830 (Del. Ch.
Dec. 21, 2007) (“When the issue before the Court involves the interpretation of a contract,
summary judgment is appropriate only if the contract in question is unambiguous.”). Id.84
United Rentals, Inc., 937 A.2d at 830.
85
Pl. Mot. Part. Summ. J. at 4; Def. Mot. Part. Summ. J. at 1-2.
86
Compl. ¶¶ 11, 27-31.
17
Provision, this decision outlines the legal framework guiding the Court’s analysis as
informed by the law on bailments and general principles of contract law.
1. General Principles of the Bailment Relationship
Delaware courts have defined a bailment “ as a delivery of personal property
by one person, the bailor, to another, the bailee, who holds the property for a certain
purpose, usually under an express or implied-in-fact contract.”87 “[A] bailment
involves a change in possession but not in title.”88 “Inherent in the bailment
relationship is the requirement that the property be returned to the bailor, or duly
accounted for by the bailee, when the purpose of the bailment is accomplished.”89
“Because a bailment is a contractual arrangement, the bailment contract is
governed by the same rules of law that govern other contracts.”90 “Transactions to
which the law of bailments applies include . . . the delivery and acceptance of
custody of personal property for safekeeping, transportation, or storage.” In
87
Parseghian v. Frequency Therapeutics, Inc., 2023 WL 3533479, at *5 (Del. Super. May 18,
2023) (quoting Devincentis v. European Performance, Inc., 2012 WL 1646347, at *4 (Del. Super.
Ct. Apr. 17, 2012)) (citing BLACK’S LAW DICTIONARY, (9th ed. 2009)); see also Sports Complex,
Inc. v. Golt, 647 A.2d 382 (TABLE), 1994 WL 267697, at *1 (Del. 1994) (internal quotations
omitted); Lee Tire & Rubber Co. of State of N.Y. v. Dormer, 108 A.2d 168 (Del. 1954) (affirming
the trial court’s statement of law on bailments: “Now, briefly, a bailment is a contract, such as
arises where one delivers property to another to keep for hire either express or implied. It is where
the control and possession of the property passes to the bailee, commonly designated as the
keeper.”). Id.88
Bailment, BLACK’S LAW DICTIONARY (8th ed. 2004); see also 8A AM. JUR. 2d § 1 (2023)
(defining a bailment as a legal relationship that is “created by the delivery of personal property by
one person to another in trust for a specific purpose, pursuant to an express or implied contract to
fulfill that trust.”).
89
8A AM. JUR. 2d at § 29 (2023).
90
Id.
18
Delaware, courts require “either an express or implied contract before a bailment
will be found.”91 When a bailment relationship has been established by express or
implied contract and plaintiff’s property has been lost, damaged or destroyed, the
plaintiff can elect to sue in tort or contract.92
2. Limiting the Liability of a Bailee in Documents of Title
In the bailment context, the contract is often expressed in a document of title.93
Bills of lading and warehouse receipts are documents of title.94 Section 1-201 of
Title 6 of the Delaware Code defines a bill of lading as “a document of title
91
Torrent Pharma, Inc. v. Priority Healthcare Distribution, Inc., 2022 WL 3272421, at *6 (Del.
Super. Aug. 11, 2022) (quoting Manchester Equip. Co., Inc. v. Am. Way Moving & Storage, Inc.,
176 F. Supp. 2d 239, 245–46 (D. Del. 2001).
92
See Celanese Corp. of America v. Mayor and Council of Wilmington, 78 A.2d 249, 250 (Del.
Super. Dec. 29, 1950) (where plaintiff sought compensation for damage caused to her goods stored
in defendant’s warehouse, the court found plaintiff had right to sue for breach of a bailment
contract, which would require a showing of the following elements: proof of the contract, delivery
of the goods in good condition, their return in bad condition, and the amount of damage.”);
Devincentes v. European Performance, Inc., 2012 WL 1646347, at *4 (Apr. 17, 2012) (holding
plaintiff could bring breach of bailment contract action when plaintiff’s car was stolen and
damaged while in possession of Defendant-automotive shop owner); Ellis v. Tri State Realty
Assoc. LP, 2015 WL 993438, at *8 (Del. Super. Feb. 27, 2015) (holding breach of bailment claim
limited by the valuation provision in the contract, where defendant-storage company wrongfully
sold plaintiff’s stored property to a third party); Nelson v. Jones, 2021 WL 5782384, at *3 (Del.
C.P. Nov. 29, 2021) (finding a bailment relationship was established when plaintiff left his vehicle
in the care of defendant-auto shop and that plaintiff had a cause of action in tort or contract to
recover the value of his vehicle).
93
6 Del. C. § 1-201(16) defines “Document of title” as “a record (i) that in the regular course of
business or financing is treated as adequately evidencing that the person in possession or control
of the record is entitled to receive, control, hold, and dispose of the record and the goods the record
covers and (ii) that purports to be issued by or addressed to a bailee and to cover goods in the
bailee’s possession which are either identified or are fungible portions of an identified mass. The
term includes a bill of lading, transport document, dock warrant, dock receipt, warehouse receipt
. . . .”
94
Id.
19
evidencing the receipt of goods for shipment issued by a person engaged in the
business of directly or indirectly transporting or forwarding goods. The term does
not include a warehouse receipt.”95 Section 1-201 also defines a warehouse receipt
as “a document of title issued by a person engaged in the business of storing goods
for hire.”96
Sections 7-204 and 7-309 of the Delaware Uniform Commercial Code
(“UCC”) directly address liability limitations contained within warehouse receipts
and bills of lading, respectively.97 Section 7-204 reads:
“[d]amages may be limited by a term in the warehouse
receipt or storage agreement limiting the amount of
liability in case of loss or damage beyond which the
warehouse is not liable . . . On request of the bailor in a
record at the time of signing the storage agreement or
within a reasonable time after receipt of the warehouse
receipt, the warehouse’s liability may be increased on part
or all of the goods covered by the storage agreement or the
warehouse receipt. In this event, increased rates may be
charged based on an increased valuation of the goods.”98
Section 7-309(b) of the Delaware code, relating to contractual limitations of a
carrier’s liability, reads:
95
Id. § 1-201(6). Similarly, Black’s Law Dictionary defines a bill of lading as “[a] document
acknowledging the receipt of goods by a carrier or by the shipper’s agent and the contract for the
transportation of those goods; a document that indicates the receipt of goods for shipment and that
is issued by a person engaged in the business of transporting or forwarding of goods.” Bill of
lading, BLACK’S LAW DICTIONARY (8th ed. 2004).
96
6 Del. C. § 1-201(42).
97
Id. §§ 7-204(b) & 7-309(b).
98
Id. § 7-204(b).
20
“[d]amages may be limited by a term in the bill of lading
or in a transportation agreement that the carrier’s liability
may not exceed a value stated in the bill or transportation
agreement if the carrier’s rates are dependent upon value
and the consignor is afforded an opportunity to declare a
higher value and the consignor is advised of the
opportunity.”99
The comment to Section 7-309 clarifies that “a bill of lading may also serve
as the contract between the carrier and the bailor” and that subsection (b) applies not
only to a carrier’s liability based on negligence, but also to its liability as an
insurer.100 “Subsection (b) allows the term limiting damages to appear either in the
bill of lading or in the parties’ transportation agreement.”101
3. Review of the Caselaw
There are a limited number of recent Delaware cases involving the intrastate
transport or storage of goods by a carrier that directly address whether a provision
99
Id. § 7-309(b).
100
Id. § 7-309 (Comment).
101
Id.
21
purporting to limit the carrier’s liability is enforceable.102 The Court, therefore,
looks to decisions from other jurisdictions within the Third Circuit.103
a. Delaware Caselaw
Delaware precedent establishes that, when certain conditions are met, a carrier
or warehouseman can limit its liability for loss or damage to an owner’s property in
the storage contract.104 A storage contract complies with Section 7-204 when it
“fairly spells out the limitation of liability and contain a provision for increased
charges and additional insurance where an excess value is declared.”105
In Ellis v. Tri State Realty Assoc. LP, the plaintiff brought a claim for breach
of bailment and breach of contract, among other tort claims, after Defendant-storage
company wrongfully sold the plaintiff’s stored property to a third party. 106 The
102
There are a plethora of Third Circuit cases involving claims for damage caused in the context
of interstate transportation, as opposed to intrastate transport; however, interstate transportation
cases are governed by the Carmack Amendment to the Interstate Commerce Act. 49 U.S.C. §
14706. The Carmack Amendment “preempts all state law claims arising out of the interstate
transportation of household goods by a common carrier.” Tayloe v. Kachina Moving & Storage,
16 F. Supp. 2d 1123, 1127 (D. Ariz. 1998) (internal citations omitted). Pursuant to “the Carmack
Amendment, a common carrier is liable to the shipper for ‘actual loss or injury to property.’” Id.§
14706(a)(1). However, a carrier may limit its liability for any such damage pursuant to Id. §
14706(c)(1). Such a limitation is “contractual in nature and thus must be effectuated through a
written agreement with the shipper evidencing the shipper’s ‘absolute, deliberate and well-
informed choice.’” American Cyanamid Co. v. New Penn Motor Express, Inc., 979 F.2d 310, 313
quoting Carmana Designs Ltd. v. North American Van Lines, Inc., 943 F.2d 316, 319 (3d. Cir.
1991). Plaintiff’s contract claim is not governed by the Carmack Amendment because the
transportation of her goods was intrastate.
103
The Court also analyzes a decision from the District Court of Maryland in addition to cases
from the Third Circuit. See infra nn. 130-37 and accompanying text.
104
See infra nn. 105-118.
105
Dunfee v. Bluerock Van & Storage, Inc., 266 A.2d 187, 189 (Del. Super. Apr. 30, 1970).
106
2015 WL 993438, at *1-3 (Del. Super. Feb. 27, 2015).
22
contract contained a “value limit” provision whereby the plaintiff agreed to not store
property with a value in excess of $5,000 without prior written consent, and agreed
that the defendant’s maximum liability was $5,000.107 The court held that the
relationship between the parties was defined by contract and that therefore, the duties
owed arose from that contract.108 The court further held that, the breach of contract
and bailment claims were limited by the value limit clause of the contract: “[s]uch a
limitation is equivalent to the contractual limitation on the value of goods to be
stored in the Unit. In other words, the limitation is equivalent to the risk which [the
defendant] agreed to bear in the Contract.”109 The court found that this provision
was enforceable and held that the plaintiff’s recovery was limited to $5,000.110
Dunfee v. Blue Rock Van and Storage, Inc. involves a plaintiff-bailor who
sued in negligence after her goods were destroyed while in storage at a warehouse
owned by defendant-bailee.111 On the morning of trial, the court permitted the
defendant to amend its answer to plead a limitation of liability provision contained
in its warehouse receipt, which purported to limit the plaintiff’s recovery to
107
Id. at *4. The “value limit” clause of the contract read: “OCCUPANT agrees not to store
property with a total value in excess of $5,000 without prior written consent of OWNER, which
consent may be withheld in OWNER’S sole discretion and, if such written consent is not obtained,
the total value of OCCUPANT’S property shall be deemed not to exceed $5,000. OCCUPANT
further agrees that the maximum liability of OWNER to OCCUPANT for any claim by
OCCUPANT . . . is $5,000.”
108
Id. at *7.
109
Id. at *8.
110
Id.
111
266 A.2d 187, 187-89 (Del. Super. Apr. 30, 1970).
23
$1,000.112 The jury returned a verdict of $5,500.113 The plaintiff filed a post-trial
motion arguing that the court erred in permitting the defendant to amend its
answer.114
The court issued a post-trial per curiam decision which addressed whether it
was proper for the trial court to permit the defendant to amend its answer pursuant
to Superior Court Civil Rule 15(c), and whether the limitations provision in the
warehouse receipt, which limited coverage to “.60 per pound, per article” complied
with 6 Del. C. § 7-204(b).115 The court held that it was not error to permit the
defendant to amend its answer because the plaintiff testified to her knowledge of the
coverage limit and therefore could not claim surprise or severe prejudice from this
last minute amendment.116 As to compliance with Section 7-204(b), the court held
that it “[could not] read the statute to intend that a monetary limitation must be based
upon either item or weight, without any possibility of using both, even though
circumstances might so require.”117 “Where the storage contract fairly spells out the
limitation of liability and contains a provision for increased charges and additional
112
Id. at 188.
113
Id.
114
Id.
115
Id. at 188-89.
116
Id.
117
Id. at 189.
24
insurance where an excess value is declared, there is substantial compliance with the
requirements of the statute.”118
b. Third Circuit Caselaw Outside of Delaware
Caselaw from other jurisdictions within the Third Circuit have enforced
limitation of liability provisions in transportation and storage agreements, including
when the plaintiff-bailor alleges that they were unaware of such provision.119
In Kane v. U-Haul Intern., Inc., the U.S. Court of Appeals for the Third Circuit
affirmed the District Court’s grant of summary judgment to defendant-storage
company, holding that the exculpatory clause in the storage contract, which
exempted the defendant from claims of loss or damage to stored property, was
enforceable and limited the plaintiffs’ recovery to the insurance policy.120
The plaintiffs claimed that the exculpatory clause was unenforceable because
they had unequal bargaining power and because the clause was unconscionable.121
The court stated that, pursuant to New Jersey law, “exculpatory clauses in private
agreements that do not adversely affect the public interest are generally sustained”
unless there is a “public duty to perform, there is unequal bargaining power between
the parties, or the clause is unconscionable.”122 The court found that there was not
118
Id.
119
See infra nn. 120-29.
120
218 Fed. Appx. 163, 165-67 (3d Cir. 2007).
121
Id. at 166-67.
122
Id. at 165-66.
25
unequal bargaining power because, although the form was standardized, the
plaintiffs had an opportunity to purchase insurance for an additional reasonable fee,
the clause was clear, and plaintiffs signed the form.123 The exculpatory clause was
not unconscionable because the plaintiffs had a choice to purchase insurance, there
were other storage companies plaintiffs could have contracted with, and there was
no economic compulsion for plaintiffs to rent the units.124
In Sylvestri v. South Orange Storage Corp., the plaintiff had stored her fridge
in the defendant’s warehouse facility and entered into a contract which included a
provision whereby the plaintiff agreed that the value of the stored property, in the
case of loss or damage, did not exceed $50 unless the plaintiff selected a higher
value.125 The plaintiff did not select a higher value.126 The court reasoned that the
bailment relationship is “essentially the commonly one of contract” and that parties
may contract to diminish a bailee’s liability if such limitation was not “offensive to
law or public policy.”127 The court found that the plaintiff was on notice of this
limitation even though the plaintiff alleged it was not called to her attention and she
123
Id. at 166.
124
Id.
125
81 A.2d 502, 503-04 (N.J. Super. Ct. App. Div. June 19, 1951). The valuation provision read
that, “[u]nless a greater value is stated herein, the depositor declares that the value in case of loss
or damage . . . does not exceed and is limited to fifty dollars . . . such depositor having been given
the opportunity to declare a higher valuation without limitation . . . .” Id.126
Id. at 504.
127
Id.26
did not read this particular provision.128 The court held, therefore, that Plaintiff’s
recovery was limited to $50.129
In Coutinho & Ferrostaal, Inc. v. M/V Federal Rhine, the defendant-bailee
filed a request for a declaratory judgment that the liability limitation provision in its
warehouse receipt was reasonable and enforceable and limited the plaintiff-bailor’s
recovery for its damaged goods.130 The provision purported to limit the plaintiff’s
recover to “10 times the provided, per ton, monthly storage rate[,]” the monthly
storage rate being $1.50 per metric ton.131
The United States District Court for the District of Maryland applied Section
7-204(b) of the Maryland Commercial Code, which states that a “warehouseman can
limit its liability by a term in its warehouse receipt.”132 The court held that the
plaintiff did not rebut the presumption that it received the full warehouse receipt and,
therefore, had actual notice of the provision limiting liability.133 The court also
found that the provision was unambiguous and enforceable.134 The provision was
not ambiguous for not having an actual storage rate because Section 7-204 did not
require the defendant to customize its form for each transaction.135 Although the
128
Id. at 505-06.
129
Id. at 506.
130
799 F. Supp. 2d 550, 551-552 (D. Md. 2011).
131
Id. at 552.
132
Id. at 553; MD. CODE ANN., COM. LAW § 7-204(b).
133
Id. at 555.
134
Id. at 554, 556.
135
Id. at 557.
27
warehouse receipt itself only contained the phrase, “monthly storage rate[,]” the rate
letter contained the “per ton monthly storage rate,” thus the contract, when read as a
whole, was unambiguous.136 The court also noted that sophisticated parties, like the
plaintiff-multinational corporation in this case, are held to a higher standard than
members of the general public.137
D. ANALYSIS
The Valuation Provision is valid and enforceable. The Court finds that
Plaintiff and Subcontractor entered into a bailment relationship and that the
Valuation Provision on its face meets the requirements of sections 7-204(b) and 7-
309(b). The Provision is conspicuous, clear, and unambiguous. Plaintiff has not
established that the Contract is a contract of adhesion or that the provision is
unconscionable.
1. Plaintiff and subcontractor entered into a bailment contract.
The Court concludes as an initial matter that the Contract Plaintiff and
Subcontractor signed created a bailment relationship by express contract, and that
their respective duties and responsibilities are governed by that Contract.138
136
Id.
137
Id. at 554.
138
Moving Contract; Devincentes v. European Performance, Inc., 2012 WL 1646347, at *4 (Apr.
17, 2012); Ellis v. Tri State Realty Assoc. LP, 2015 WL 993438, at *7 (Del. Super. Feb. 27, 2015)
(“The relationship between [Defendant] and [Plaintiff] was created by contract. Because the
relationship exists solely by reason of contract, it follows that the duties owed to each other arise
solely from the Contract.”).
28
The Contract qualifies generally as a document of title, specifically as both a
bill of lading and warehouse receipt.139 The Contract is a document of title because
it is a record regularly issued in Subcontractor’s course of business and indicates that
Subcontractor is entitled to receive and hold the goods identified.140 The Contract is
a bill of lading because it evidences “the receipt of goods for shipment issued by”
Subcontractor, who is “engaged in the business of directly or indirectly transporting
or forwarding goods.”141 The Contract also functions as a warehouse receipt because
it is an agreement that Subcontractor, a company regularly engaged in storing goods
for hire, would assume temporary possession of Plaintiff’s goods and place them
into storage.142 This executed Contract is sufficient to establish a bailment
relationship under Delaware law.
2. The text of the Valuation Provision complies with section 7-309(b).
Section 7-309(b) relating to contractual limitations of a carrier’s liability
applies to the Valuation Provision in Section C (“Transit Rates – Replacement Cost
Value”).143 Section 7-309(b) permits a carrier to limit its liability for damages in a
139
Moving Contract; 6 Del. C. §§ 1-201(6), (16), (42).
140
Id.§ 1-201(16); The Contract.
141
Id. § 1-201 (6); Moving Contract (“The undersigned customer hereby orders the undersigned
mover to furnish the transportation facilities and services described in this contract . . .”
142
Id.§ 1-201 (42).
143
Id. § 7-309(b). Plaintiff does not contest the validity of the “In-storage” provision (Section B).
The Court nevertheless finds that this provision is valid pursuant to 6 Del. C. § 7-204(b) relating
to contractual limitation of a warehouse’s liability. Pursuant to § 7-204(b), “[d]amages may be
limited by a term in the warehouse receipt or storage agreement limiting the amount of liability in
case of loss or damage beyond which the warehouse is not liable.” § 7-204(b). A bailor may
29
bill of lading or transportation agreement to a value specified therein “if the carrier’s
rates are dependent upon value and the consignor [customer] is afforded an
opportunity to declare a higher value and the consignor is advised of the
opportunity.”144 With respect to the Valuation Provision here, the cost of the
premium increases with the increase in valuation and the Contract indicates that the
customer can choose between levels of valuation ranging from $20,000 to
$100,000.145
The comment to Section 7-309(b) states that this subsection may apply to a
carrier’s liability as an insurer.146 The Valuation Provision in this case attempts to
limit Subcontractor’s liability as an insurer, because a premium is paid in exchange
for Subcontractor reimbursing customers up to the corresponding valuation of their
personal belongings in the event they are lost or destroyed in transit.147 In this case,
Plaintiff was provided with $20,000 in coverage at no cost because Contractor paid
request an increase in the warehouse’s liability when signing the agreement or within a reasonable
time after receiving the warehouse receipt and the bailee may increase the rate based on this
increased valuation. Id.
144
§ 7-309(b).
145
Moving Contract. The Valuation Provision instructs the customer to see a representative should
they wish to select a valuation above $100,000. Id. Pursuant to § 7-309(b), “damages may be
limited by a term in the bill of lading . . . if the carrier’s rates are dependent upon value and the
consignor is afforded an opportunity to declare a higher value and the consignor is advised of the
opportunity.”
146
§ 309(b) (Comment).
147
Moving Contract.
30
the premium of $215 to Subcontractor.148 Subcontractor also waived the
deductible.149
Plaintiff argues that the Valuation Provision is invalid because the rates are
not dependent upon a correct valuation of Plaintiff’s property.150 The language of
Section 7-309(b), the language of the Contract, and the Dunfee decision do not state
that a valuation provision must equal the actual value of the property to be valid.
Section 7-309(b) only states “to a value specified therein.”151 The paragraph in the
bottom right corner of the Contract confirming customers’ understanding of the
liability limitations of Subcontractor also states that its rates are based on the
“declared or agreed value,” the customer having the opportunity to select a higher
valuation.152 Nowhere in the Contract does it state that the valuation amount is
meant to equal the true and accurate value of a customer’s property. Finally, Dunfee
does not hold that a limitations provision is only valid if the value specified equates
to the actual value of the goods.153 To the contrary, the court concluded the
148
The invoice from Subcontractor to Contractor includes an itemized list of charges including a
charge of $215 for “in transit insurance.” Ex. 2 to Contractor’s Reply, Transaction ID 69595244;
see Sterling Dep. at 23: 3-4; 27:13-16; Dep. of David Hopkins at 13:14-16.
149
See Moving Contract. In the Valuation Provision of the Contract, next to the line for
“Deductible amount,” Subcontractor hand-wrote in $0. Id. Sterling Dep. at 26: 18-24; 27: 1-4;
29: 16-18.
150
Pl. Supp. Br. at 7 (“Delaware case law interpreting this statute reflects that a correct valuation
is necessary to determine the reasonableness of the limitations clause.”). Id.
151
See generally 6 Del. C. § 7-309(b).
152
Moving Contract. For ease of reference, this decision hereinafter refers to the paragraph at the
bottom right corner of the form as the “declaration of understanding.”
153
See generally 266 A.2d 187 (Del. Super. Apr. 30, 1970).
31
defendant was properly allowed to amend its answer to include the limitation
provision of $1,000 in light of substantial evidence suggesting that the actual value
of the plaintiff’s property was much greater.154
3. Plaintiff’s arguments as to voidness lack merit.
Plaintiff makes several arguments as to why the Valuation Provision is void
and unenforceable.155 The Court applies established principles of Delaware contract
law to address each in turn. “Delaware adheres to the ‘objective’ theory of contracts,
i.e. a contract’s construction should be that which would be understood by an
objective, reasonable third party.”156 A reviewing court will read the contract as a
whole and “enforce the plain meaning of clear and unambiguous language.”157
Courts should endeavor to interpret a contract’s meaning so that each provision and
term is given effect without rendering any terms “meaningless or illusory.”158
a. An objective reasonable person would understand they were a
party to a contract with Subcontractor.
As a preliminary matter, while both “Gibellino Construction” and “Pamela
Waters” are listed as “Customers” on the top of the form, the Court finds that
154
Id. at 188-89. Plaintiff submitted evidence that she purchased a separate insurance policy of
$4,000 to compensate for the insufficient coverage provided by the defendant-storage company.
Id. at 188. Additionally, the jury awarded damages of $5,500. Id.155
Pl. Mot. Summ. J. Br. at 7-10; Pl. Supp. Br. at 10-12.
156
Weinberg v. Waystar, Inc., 2023 WL 2534004, at *4 (Del. 2023) quoting Osborn ex rel. Osborn
v. Kemp, 991 A.2d 1153, 1159 (Del. 2010).
157
Id. quoting Manti Hldgs, LLC v. Authentix Acquisition Co., Inc., 261 A.3d 1199, 1208 (Del.
2021).
158
Id. (internal quotations omitted).
32
Plaintiff was on notice that she was Subcontractor’s customer as opposed to only
Contractor.159 Considering that Subcontractor was directly providing services to
Plaintiff for her benefit, the Court struggles to understand why Plaintiff would not
consider herself a customer of Subcontractor. Plaintiff placed her signature on two
different places on the form: at the bottom of Section C, next to the line for
“Customer Signature” and on the bottom of the form, above the line marked for
“Customer.” It is evident that Contractor did not sign this form and neither party
has asserted that Contractor was present when this form was signed.160 Moreover,
Plaintiff’s status as a customer to Subcontractor is not mutually exclusive of
Contractor also being a customer of Subcontractor.161 Although Plaintiff did not
directly hire Subcontractor, she hired Contractor, thereby implicitly consenting to
Contractor’s hiring of Subcontractor.
The Court finds that an objective reasonable third party would have
understood that they were a party to the contract. The word “contract” appears in
four different places on the document: in the line directly below and to the left of
Subcontractor’s logo, once in the declaration of understanding, and twice toward the
bottom of the contract, above the signature line. For these reasons, the Court finds
159
Moving Contract.
160
Moving Contract.
161
Plaintiff had hired Contractor in the past for other services. See Gibellino Dep. at 29: 23-24;
30: 1.
33
that an objective reasonable person in Plaintiff’s position could have understood that
they were a party to a contract with Subcontractor.
b. Plaintiff’s failure to read or review the Contract does not justify
its avoidance.
Plaintiff avers in her Affidavit that Subcontractor did not explain the Contract
or Valuation Provision to her before or on the day of the move, that she was not told
that she should calculate the value of her property or could change the valuation
amount, and that she was not provided time to read the Contract.162 Plaintiff claims
in her supplemental brief that a bailor must be charged with notice in the absence of
actual knowledge of a limitation of liability163 and suggests that, pursuant to Dunfee,
a limitations provision is invalid absent plaintiff’s admission that she read,
understood, and had knowledge of it.164 This is not an accurate statement of Dunfee
or Delaware contract law in general.
“One of the basic tenets of contract law is that a party is responsible for the
terms of a contract they sign, even if unaware of the terms” and a party’s failure to
read a contract cannot justify its avoidance.165 Plaintiff was provided with the
162
Pl. Aff. ¶¶ 4-7. See supra nn. 41-44 and accompanying text for a more detailed recitation of the
pertinent parts of Plaintiff’s Affidavit.
163
Pl. Supp. Br. at 12 (quoting 8A AM. JUR 2d Bailments § 88: “[I]n the absence of actual
knowledge of such limitation, however, the bailor is not bound thereby unless the bailor is charged
with notice under the circumstances of the case”).
164
Pl. Supp. Br. at 11 quoting Dunfee, 266 A.2d at 189 (“[a]ll parties understood that the limitations
of liability, despite the items, articles, or weight, would not exceed $1,000.00.”).
165
Moore v. O’Connor, 2006 WL 2442027, at *4 (Del. Super. Aug. 23, 2006) (quoting Graham v.
State Farm Mut. Auto. Ins. Co., 565 A.2d 908, 913 (Del. 1989)); Graham, 565 A.2d at 913 (stating
34
Contract and signed it in two places— on the section for the Valuation Provision and
on the bottom of the form.166 Plaintiff acknowledged by her signature her acceptance
of the Contract’s terms regardless of whether she was aware or thoroughly read the
terms beforehand.
Plaintiff’s interpretation of Dunfee is incorrect and does not support her
position. Dunfee does not state that the bailment contract was enforceable on the
basis that the plaintiff knew and understood the coverage limit, a finding that would
run contrary to the basic tenet of Delaware contract law that “a party’s failure to read
a contract does not justify its avoidance.”167 The reviewing court in Dunfee had two
questions before it: (1) whether the plaintiff could establish surprise or severe
prejudice from the defendant amending the pleadings to include the limitation
provision the morning of trial; and (2) and whether that provision substantially
a party’s failure to read a contract does not justify its avoidance); Alabi v. DHL Airways, Inc., 583
A.2d 1358, 1362 (Del. Super. Aug. 1, 1990) (“It is an elementary principle of contract law that a
person will be bound by the contents of an agreement that he purposely signs but fails to inform
himself of the contents of that agreement”); Johnson v. Colonial Ins. Co., 1997 WL 126994, at *2
(Del. Super. Jan. 2, 1997) (“The Court is aware that often times the terms of an insurance policy
can be complex and confusing; however, an insured has a duty to read his or her insurance
policy.”); Brokers Title Co., Inc. v. St. Paul Fire & Marine Ins. Co., 610 F.2d 1174, 1180-81 (3d
Cir. 1979) (“A person of legal age is presumed to know the meaning of words in a contract, and
if, relying upon his own ability, he enters into an agreement not in his best interest he cannot later
be heard to complain that he was not acquainted with its contents and did not understand the
meaning of the words used in the instrument that he signed).
166
Moving Contract.
167
See Graham, 565 A.2d at 913.
35
complied with Section 7-204.168 The court did not decide whether the plaintiff had
sufficient knowledge and understanding of the provision for its enforceability.
With respect to the first question, the court in Dunfee held that the defendant
was permitted pursuant to Superior Court Civil Rule 15(c) to amend the pleadings
because the plaintiff could not claim surprise or severe prejudice when she had
admitted to her knowledge of this provision.169 Plaintiff’s knowledge of that
provision was relevant to the question of surprise or severe prejudice, not to the
question of voidness. With respect to the second question, the reviewing court held
that “[w]here the storage contract fairly spells out the limitation of liability and
contains a provision for increased charges and additional insurance where an excess
value is declared, there is substantial compliance with the requirements of the
statute.”170 The court did not hold that substantial compliance with the statute
requires evidence that the bailor read and understood the contract prior to signing,
or that the limitation of liability was equivalent to the actual value of the goods.
Nowhere in the decision did the court hold that sufficient evidence of knowledge
and understanding was necessary to uphold the limitations provision.
168
Dunfee, 266 A.2d 187, 188 (Del. Super. Apr. 30, 1970).
169
Id. “If evidence is objected to at the trial on the ground that it is not within the issues made by
the pleadings, the court may allow the pleadings to be amended and shall do so freely when the
presentation of the merits of the action will be subserved thereby and the objecting party fails to
satisfy the court that the admission of such evidence would prejudice him in maintaining his action
or defense upon the merits.” Super. Ct. Civ. R. 15(c).
170
Id. at 189.
36
Furthermore, even if the court had found that the plaintiff’s admission of
knowledge was sufficient to enforce the limitations provision, it does not follow that
such evidence is necessary for enforceability. Plaintiff here confuses necessary for
sufficient. The evidence necessary to defeat a request to amend (surprise or severe
prejudice from absence of knowledge) is separate and apart from evidence necessary
to void a contractual provision as a matter of law.
Plaintiff elected to sign the form before sufficiently reviewing it. The fact that
Plaintiff did not read the form does not mean that she was not on notice as a matter
of law. In Sylvestri, the court held the plaintiff was on notice and enforced the
limitation provision even though the plaintiff alleged she did not read it nor was it
called to her attention. 171 Similar to the plaintiff in Sylvestri, here, Plaintiff was on
notice of the Contract’s terms when she was provided with it even if Subcontractor
did not call the Valuation Provision to her attention, or if she neglected to read it.
Plaintiff’s averment in her Affidavit that she was “told to just sign” is not sufficient
for the Court to find as a matter of law that Plaintiff was deprived of the option to
select greater coverage or was coerced into signing the Contract as is.
171
See 81 A.2d 502, 505-506 (N.J. Super. Ct. App. Div. June 19, 1951). “The fact that the plaintiff
did not choose to read the paper, or the material parts of it, before signing, or did not know its
contents at the time, cannot, in the absence of actual fraud, relieve him from its obligations. This
doctrine arises from the well-settled principle that affixing a signature to a contract creates a
conclusive presumption, except as against fraud, that the signer read, understood, and assented to
its terms.” Id. at 505 (quoting Fivey v. Pennsylvania Railroad, 52 A. 472, 473 (E.&A.1902) and
citing decisions in accordance therewith).
37
c. The Valuation Provision is sufficiently conspicuous.
Plaintiff alleges that the Valuation Provision is not conspicuous.172 The Court
finds the Provision is sufficiently conspicuous to place Plaintiff on notice of it.
Whether a written term is conspicuous is a decision for the Court. 173 Section 1-201
of Title 6 of the Delaware Code defines “conspicuous,” with reference to a term, as
“so written, displayed, or presented that a reasonable person against which it is to
operate ought to have noticed it.” Conspicuous terms include “[a] heading in capitals
equal to or greater in size than the surrounding text, or in contrasting type, font, or
color to the surrounding text of the same or lesser size.”174
As an initial matter, the Contract is one page in length and for that reason
alone the Court finds it difficult that any clause of the contract could have been so
hidden or obscured to evade notice by a reasonably prudent person. The body of the
Valuation Provision is in the same size font as the rest of the Contract and is located
toward the top right of the page. The title of the Provision is in bold, centered, and
separated by a space from the body of the Provision. These are all characteristics
which should have facilitated notice. The headers of each column in the valuation
table are also in bold.175 Additionally, the Valuation Provision contains its own
172
Pl. Mot. Summ. J. at 6.
173
6 Del. C. § 1-201(10).
174
Id.
175
Plaintiff cites to one case to support her contention that a provision must be entirely in bold to
be held conspicuous as a matter of law. Mood v. White, 2020 WL 996736, at *5 (Del. Super. Mar.
2, 2020) (holding provision was conspicuous because the font was capitalized, in bold, and in plain
38
signature line on which Plaintiff placed her signature, indicating that her attention
was necessarily drawn to this section of the form during its execution. The fact that
the entire definition of “Replacement Cost Valuation” itself was not in bold does not
mean that it was not conspicuous.
d. The language of the Contract is sufficiently clear and
unambiguous.
With respect to the legal question of whether a contractual provision is
ambiguous, this is a determination which “lies within the sole province of the
court.”176 When language is unambiguous, courts “will give effect to the plain
meaning of the contract’s terms and provisions.”177 “Language is ambiguous if it is
susceptible to more than one reasonable interpretation. An interpretation is
unreasonable if it ‘produces an absurd result’ or a result ‘that no reasonable person
would have accepted when entering the contract.’”178 In analyzing whether the
Valuation Provision is ambiguous the Court reads the contract as a whole.179
language). The Court cannot agree that Delaware law dictates that a provision be held void solely
on the basis that it is not in bold font.
176
Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1160 (Del. 2010). The Court notes that Plaintiff
first raised the issue of ambiguity in her Supplemental Brief in response to the Court’s request for
additional briefing. Pl. Supp. Br. at 10. Plaintiff did not raise this issue in the opening brief in
support of her Motion for Summary Judgment.
177
Manti Hldgs, LLC v. Authentix Acquisition Co., Inc., 261 A.3d 1199, 1208 (Del. 2021) (quoting
Osborn, 991 A.2d at 1159–60).
178
Id. (citing Osborn, 991 A.2d at 1159-60).
179
Weinberg v. Waystar, Inc. 2023 WL 2534004, at *4 (Del. 2023) (quoting Manti Hldgs, LLC,
261 A.3d at 1208).
39
The Court finds as a matter of law that the Provision is not ambiguous. The
Provision is written in plain and clear language and is subject to only one reasonable
interpretation. The meaning of the Valuation Provision is informed by predicate
language above the section for “VALUATION OPTIONS,” the introductory
paragraph in the top left section of the form, and the declaration of understanding in
the bottom right corner of the form. Predicate language in the top left of the page,
states “the undersigned customer hereby orders the undersigned mover to furnish the
transportation facilities and services described in this contract pursuant to the terms,
conditions and limitation of liability contained herein.”180 Thus the beginning of the
contract indicates in unequivocal language that the services rendered are subject to
limitations of liability contained in the form.
The body of the form is titled “VALUATION OPTIONS.” This title is in
all caps, bolded, underlined, and is spaced apart from the introductory paragraph
below. The introductory paragraph reads, “[w]e have listed below the choices
available to establish the appropriate valuation in the event of a loss and/or damage.”
The Court finds that this language is clear and unambiguous and that a reasonable
person would understand it to mean that the option selected would dictate how their
property would be valued in the event it was lost or damaged. The clause in this first
sentence, “in the event” signals to the reader that a valuation of their property would
180
Moving Contract (emphasis added).
40
take place if or on the condition that their property was lost or damaged and that this
valuation would be based on which “choice” they selected in the Contract. The
succeeding line instructs the reader to “[p]lease read each of the three choices
carefully, as this will determine the Replacement method of your household goods
and property if damaged in Transit and while shipment is in storage.”181 The three
choices are titled as “A No Charge,” “B IN-STORAGE VALUATION,” and “C-
Transit Rates – Replacement Cost Valuation.” The letters designating each
section are in larger font than the rest of the form, are in all caps, and bolded. The
titles for each section are also bolded, the titles for sections A and B printed in all
caps.
Section C (the Valuation Provision) explains the meaning of “Replacement
Cost Valuation” referenced in the introductory paragraph in plain and unambiguous
terms and contains a table, the columns of which have bolded titles for “Valuation
Amount” and the two corresponding deductibles. This section further instructs the
customer to “please see representative of carrier for higher coverages and premiums”
if the customer desires more than $100,000 of valuation coverage. The bottom right
of the form, in the same size font, is a declaration of understanding in which the
customer declares that the “liability of the mover for any cause which he may be
liable” is limited to sixty cents per pound “unless a greater value is stated herein”
181
Id. (emphasis added).
41
and that the rates are based on the “declared or agreed value[,]” “such customer
having been given the opportunity to declare a higher valuation, without limitation,
in case of loss or damage from any cause which would make the mover liable and to
pay the higher rates based thereon.”182
The Court finds that an objective reasonable person could readily understand
the plain meaning of the Valuation Provision, especially when read in conjunction
with the language detailed above. The language clearly indicates that, in the event
a customer’s property was lost or destroyed, that Subcontractor would reimburse the
customer for the monetary value of that property up to the valuation amount, and
that the value or “replacement cost” was predetermined by the choice selected on
the form.
The Court further finds that there is no ambiguity that the Contract was
intended to limit Subcontractor’s liability for damages. The term “liability” is used
twice (predicate language and declaration of understanding) and “liable” is used
twice (declaration of understanding). The predicate language states that the
customer is ordering the services described “pursuant to” . . . “the limitation of
liability contained herein.” The declaration states that the “liability of the mover for
any cause for which he may be liable” does not exceed 60 cents per pound “[u]nless
a greater value is stated herein” and that the customer was “given the opportunity to
182
Id. (emphasis added).
42
declare a higher valuation, without limitation, in case of loss or damage from any
cause which would make the mover liable . . . .”183 There is only one reasonable
interpretation of this form: Subcontractor’s liability for loss or damage caused to a
customer’s property is determined by the valuation of the customer’s property as
indicated by the Contract.
Plaintiff’s claim of ambiguity is belied by the fact that she neglects to offer an
alternative interpretation of the Valuation Provision. Plaintiff claims only that this
provision is not clear or explicit because it does not employ certain terms or
formatting and was not explained to her.184 As detailed above, the Contract, if one
reads its terms, is sufficiently clear and unambiguous as a matter of law. If Plaintiff
did not sufficiently review the Contract before signing, this was done at her peril.
e. The Contract is not a contract for adhesion.
The Court does not find that the Contract is a contract of adhesion. A contract
of adhesion is typically a standard form contract where the bargaining power of the
drafter greatly outweighs that of the other party, and where the terms are presented
183
Plaintiff argues in her Supplemental Brief that the word “limitation” is not used in the Valuation
Provision. Pl. Supp. Br. at 12. While this is true, this term is used in the beginning of the Moving
Contract. As previously stated, the Court interprets a Contract as a whole and finds that the
Valuation provision is informed by this language.
184
Pl. Mot. Part. Summ. J. at 10-11. Plaintiff alleges she was not on notice that she was agreeing
to limiting Subcontractor’s liability because the Contract does not include the following terms:
“negligence, waiver, damages, or limitations.” The predicate language in the Contract includes the
phrase “limitation of liability.” The Court finds that the phrase in the Declaration paragraph “any
cause for which the [mover] may be liable” includes a cause of negligence.
43
on a take-it-or-leave-it basis.185 In Plaintiff’s case, she had the option of selecting a
higher valuation amount. Although this amount of coverage was circled when
Subcontractor handed her the form, she could have opted to review it and select a
higher coverage amount. 186 The form, absent Plaintiff’s signature, was not a binding
agreement. The fact that “$20,000” was preselected is not sufficient to establish an
absence of choice without additional evidence that Plaintiff was somehow pressured
or coerced to accept the Contract on its terms. Plaintiff has provided no evidence
that Subcontractor told her she was limited to this valuation amount and her belief
that she was not permitted to select a higher coverage does not convert this Contract
into a contract of adhesion.
Even if the terms were presented on a take-it-or-leave-it basis, this is not
sufficient to establish that the Contract is a contract of adhesion.187 A plaintiff must
also show that “the contract at issue was gained through sheer economic force under
circumstances where assent to its terms was absent.”188 In a typical contract of
adhesion, “[t]he dominant party knows that the other would not accept the terms,
185
Contract of Adhesion, BLACK’S LAW DICTIONARY (8th ed. 2004); State Farm Mut. Auto. Ins.
Co. v. Arms, 477 A.2d 1060, 1065 (Del. 1984) (explaining insurance contracts are contracts of
adhesion because they are complex, employ obscure terminology, and are presented on a take-it-
or-leave-it basis).
186
Hopkins Dep. at 41: 18-20, 22 (testifying that the customer can determine the valuation
amount); Sterling Dep. at 51: 11-20 (testifying that, as a general matter, he tells customers the
Moving Contract is a contract and testified in the affirmative that the terms of the Moving Contract
are negotiable).
187
Harbour Cove Marine Serv., Inc. v. Rabinowitz, 2005 WL 1630871, n. 6 (D.N.J. 2005).
188
Id.44
and thus employs the practices of minute print, unintelligible legalese, or high
pressure sales technique.”189 Plaintiff has not raised a genuine issue of material fact
that any of these circumstances were present in this case. As detailed above, the
Contract was one page in length and the language was sufficiently clear and
unambiguous for a reasonable person to understand. That Subcontractor provided
the Contract to Plaintiff after loading her belongings into the truck and instructing
her to sign on the highlighted sections is not sufficient evidence of “high pressure
sales techniques.”190
f. The Valuation Provision is not unconscionable as a matter of
law.
Plaintiff alleges that the Valuation Provision is unconscionable “because a
reasonable person in a fair bargaining position would not have agreed to a
$20,000.00 limitation on damages.”191 Plaintiff points to the fact that
Subcontractor’s quote was prepared prior to the moving date and shared with
Contractor, but not with Plaintiff; that Subcontractor did not estimate the actual
value of her property; and that the move would have been delayed if Plaintiff
requested a change in coverage after the move had started.192
189
Brokers Title Co., Inc. v. St. Paul Fire & Marine Ins. Co., 610 F.2d 1174, 1180 (3d Cir. 1979).
190
Id.191
Pl. Mot. Part. Summ. J. at 12.
192
Id. at 12-13 (“All parties also testified that . . . any change in coverage would have to be
approved by the insurer which could delay the move.”). Id. In support of Plaintiff’s assertion that
requesting a change in the coverage on the day of the move would have delayed the move, Plaintiff
points to specific sections of Sterling’s, Hopkins,’ and Gibellino’s depositions. Id. None of the
45
“Unconscionability is a concept that is used sparingly” and is employed to
evaluate the fairness of a contract.193 “Upholding freedom of contract is a
fundamental policy of this State[,]”194 thus Delaware courts invoke “this doctrine
with extreme reluctance and only when all of the facts suggest a level of unfairness
that is unconscionable.”195 An unconscionable contract “is one that is so one-sided
as to be oppressive”196 and that “no man in his senses and not under delusion would
make on the one hand, and as no honest or fair man would accept, on the other.”197
To evaluate whether a contract is unconscionable, courts assess “whether [a
contractual] provision amounts to the taking of an unfair advantage by one party
over the other.”198 “[T]here must be an absence of meaningful choice and contract
terms unreasonably favorable to one of the parties.”199 Contracts are not necessarily
cited deposition testimony supports Plaintiff’s assertion that the move would be delayed if Plaintiff
had requested additional coverage on the day of the move. The form only states that if a customer
wants “[o]ver $100,000 of valuation coverage” that they should see a representative of the
company. Moving Contract. Sterling did testify that if a customer selected more than $100,000
in coverage, he would have to ask ownership about addressing such a request, but he did not testify
that any change in coverage would delay the move. Sterling Dep. at 53: 12-14.
193
Olga J. Nowak Irrevocable Trust v. Voya Financial, Inc., 2020 WL 7181368, at *10 (Del.
Super. Nov. 30, 2020) (quoting Ketler v. PFPA, LLC, 132 A.3d 746, 748 (Del. 2016)).
194
Change Capital Partners I, LLC v. Volt Electrical Systems, LLC, 2018 WL 1635006, at *4 (Del.
Super. Apr. 3, 2018) (internal citations omitted).
195
Olga, 2020 WL 7181368, at *10 (quoting Ryan v. Weiner, 610 A.3d 1377, 1381 (Del. Ch.
1992)).
196
Graham v. State Farm Mut. Auto. Ins. Co., 565 A.2d 908, 912 (Del. 1989) (internal citations
omitted).
197
Ketler, 132 A.3d at 748.
198
Olga, 2020 WL 7181368, at *11 (quoting J.A. Jones Const. Co. v. City of Dover, 372 A.2d 540,
552 (Del. Super. Feb. 28, 1977)).
199
Id. quoting Ketler, 132 A.3d at 748.
46
unconscionable due to a disparity in bargaining power alone.200 Unequal bargaining
power amounts to unconscionability only if the stronger party is using its advantage
unfairly and to the detriment of a weaker counterpart.201
The Court finds as a matter of law that the Valuation Provision is not
unconscionable. There is scant evidence that Subcontractor unfairly exerted its
bargaining power to take advantage of Plaintiff. While it is true that Subcontractor
is a sophisticated company and Plaintiff a member of the public, there is little, if any,
evidence Subcontractor used its position or status to deprive Plaintiff of some
advantage. Although the Contract was standardized, there is not sufficient evidence
to find that Plaintiff was deprived of selecting a level of coverage.202 Plaintiff has
also not alleged that selecting a valuation amount of $20,000 was unreasonably
favorable to Subcontractor.
Additionally, the coverage Subcontractor selected was above the minimum
and was selected to prevent the possibility of Plaintiff having only the minimum
coverage of sixty cents per pound.203 This above-minimum coverage was provided
200
Graham, 565 A.2d at 912.
201
Id.202
See Kane v. U-Haul, Inc., 218 Fed. Appx. 163, 166 (3d Cir. 2007) (holding there was not
unequal bargaining power between parties contracting for limitations provision in storage contract
even though form was standardized because appellants had choice to purchase additional
insurance).
203
Moving Contract; see Sterling Dep. at 19: 9-12 (Q: “Is there any specific reason why it was
always $20,000 for Gibellino?” A: “Because they asked to have coverage for their clients.”);
Hopkins Dep. at 39: 5-11 (“we have an agreement with Gibellino that we will give his
47
at no cost to Plaintiff. Plaintiff did not pay the premium204 and Subcontractor waived
the deductible.205 These facts, which are not in dispute, are somewhat at odds with
an allegation of unconscionability. Plaintiff has not submitted sufficient evidence
of a level of unfairness warranting the Court to employ the doctrine of
unconscionability and void the parties’ agreement.
In conclusion, the Court finds that the Valuation Provision in the Moving
Contract is valid and enforceable, thereby limiting Plaintiff’s recovery in her breach
of contract claim to $20,000, less the amount Subcontractor’s insurance carrier has
paid toward her claim. The provision is in compliance with 6 Del. C. § 7-309(b) and
Plaintiff has not established sufficient grounds for voiding the Contract either on its
face or due to circumstances of contract formation. Subcontractor’s motion for
partial summary judgment is therefore GRANTED and Plaintiff motion for partial
summary judgment is DENIED.
customers/clients a -- the coverage. We waive the minimal coverage, which is 60 cents a pound.
We give them – we offer them $20,000.”).
204
Subcontractor Invoice, Ex. 2 to Contractor’s Reply to Mot. Summ. J.; Sterling Dep. at 23: 3-4;
27: 13-16 (testifying that Contractor pays the cost of the premium to Subcontractor); Hopkins Dep.
at 13: 14-16 (testifying that the premium was paid to Subcontractor).
205
See supra nn. 32-33.
48
V. CONTRACTOR’S MOTION FOR SUMMARY JUDGMENT
A. FACTS
As explained above, Plaintiff hired Contractor to repair and restore damage
that was caused by a tree falling on her home.206 Contractor prepared a “Repair
Estimate” for the cost of repairing and restoring Plaintiff’s home.207 In Plaintiff’s
claim for breach of contract against Contractor, she refers to the “Contractor
Contract with Contractor” she had with Contractor “to repair the property.” 208 For
ease of reference, and to distinguish this contract from the one-page Moving
Contract between Plaintiff and Subcontractor, the Court hereinafter refers to this
document as the “Restoration Contract.”
The Restoration Contract is thirty pages in length and contains the following
header on page one: “Gibellino Construction Company -- Repair Estimate --
1/27/2020.”209 The purpose of the estimate, as stated on page one, was for
“restoration repairs” at Plaintiff’s home “as a result of tree impact damage.”210 The
Restoration Contract contains an itemized list of services to be performed to restore
and repair Plaintiff’s property as a result of the tree damage.211 The section for
206
Compl. ¶ 6.
207
Ex. 1 to Contractor’s Mot. Summ. J. (hereinafter “Restoration Contract”).
208
Compl. ¶ 40.
209
Restoration Contract at 1. “1/27/2020” is the date that Contractor updated the Restoration
Contract with a revised estimate to include additional home repairs. Id. Plaintiff hired Contractor
on May 29, 2019, the day after Plaintiff’s home was damaged by the fallen tree. Id.
210
Id.
211
See generally id.
49
“General Provisions” on page three, item twelve, includes the following service:
“Content pack out – per quote from DE Moving & Storage [Subcontractor]”
(Content Packout Provision”).212 The parties do not dispute that Contractor
unilaterally selected Subcontractor for moving and storage services.213 The
estimated cost for Subcontractor to move and store Plaintiff’s property was
$18,434.40.214 The total net claim amount Contractor submitted to Plaintiff’s
insurance company was $97,132.60, which includes the quote from
Subcontractor.215 Contractor paid Subcontractor for its services from the net claim
amount.216
B. BREACH OF CONTRACT CLAIM AGAINST CONTRACTOR
The alleged damage to Plaintiff’s household furnishings proximately caused
by Subcontractor gives rise to Plaintiff’s claims against Contractor.217 Plaintiff
alleges that she entered into the Restoration Contract with Contractor “to repair the
property, which included moving and protecting Plaintiff’s personal property.”218
Plaintiff alleges that Contractor breached the Restoration Contract when Contractor
“used an unqualified, unskilled, and otherwise unsuitable subcontractor, who failed
212
Id. at 3.
213
Compl. ¶ 44; Pl. Aff.; Gibellino Dep. at 20: 1-7.
214
Id.
215
Ex. 1 to Contractor’s Mot. Summ. J.; Mot. Summ. J. ¶ 10.
216
See Gibellino Dep. at 34: 4-8.
217
Compl. ¶¶ 11-12, 39-46.
218
Compl. ¶ 40.
50
to protect Plaintiff’s personal property during the commission of the contracted
work.”219 Plaintiff further alleges that Contractor breached the Restoration Contract
“via a subcontractor that he chose who was acting on his behalf, [who] damaged
Plaintiff’s property.”220
C. ANALYSIS
Superior Court Civil Rule 56 “mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s
case.”221 To succeed on a breach of contract claim, a plaintiff must establish the
following three elements: “(1) the existence of a contract, whether express or
implied; (2) breach of one or more of the contract’s obligations; and (3) damages
resulting from the breach.”222
With respect to the first element, there was an express contract between
Contractor and Plaintiff in the form of the Restoration Contract, which plaintiff
attached as Exhibit A to her complaint.223 With respect to the second element,
Plaintiff essentially alleges that Contractor breached the Restoration Contract by
219
Compl. ¶ 41.
220
Compl. ¶ 42.
221
Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
222
GEICO Gen. Ins. Co. v. Green, 276 A.3d 462 (TABLE), 2022 WL 1052195, at *5 (Del. 2022).
The Court has set forth the summary judgment standard of review above and does not repeat it in
this section in its entirety.
223
Transaction ID 66605515. The Court notes that Plaintiff attached the Moving Contract as a
separate exhibit to her complaint: Exhibit B: “Subcontractor Contract.”
51
hiring Subcontractor and negotiating the terms of the Moving Contract, to the
exclusion of Plaintiff.224 From Plaintiff’s allegations in the complaint and in her
response to this motion, the Court infers that Plaintiff is alleging Contractor breached
the Content Packout Provision.225
1. Alleged damage to Plaintiff’s property does not amount to a breach
of the Restoration Contract.
The overarching question presented by this motion is whether the Court can
decide as a matter of law that Contractor did not breach the Restoration Contract.
The determination of this question depends on the disposition of the following
questions: (1) does the alleged damage to Plaintiff’s property, proximately caused
by Subcontractor, constitute a breach of the Content Packout Provision by
Contractor; and (2) does the fact that the valuation amount ($20,000) in the Moving
Contract was preselected constitute a breach of the Restoration Contract?
As to the first question, the Content Packout Provision shows that Contractor
took on the responsibility of identifying a Subcontractor to move and store Plaintiff’s
household furnishings and obtaining a quote from Subcontractor to include in the
224
Compl. ¶¶ 41-42, 46 (“Contractor breached the Contractor Contract [Restoration Contract]
when Contractor used an unqualified, unskilled, and otherwise unsuitable subcontractor, who
failed to protect Plaintiff’s personal property during the commission of the contracted work.
Contractor breached the Contractor Contract [Restoration Contract] when Contractor, via a
subcontractor that he chose who was acting on his behalf, damaged Plaintiff’s property.”) Id. ¶ 41-
42.
225
Restoration Contract at 3.
52
total insurance claim.226 The Restoration Contract is the only contract between
Plaintiff and Contractor that has been submitted to the Court and is silent on the issue
of indemnification or assumption of liability. Plaintiff has not submitted any
supporting documentation that raises a genuine issue of material fact that Contractor
had any further obligations with regard to moving and storing her belongings, let
alone that Contractor breached these obligations.
Nothing in the Restoration Contract indicates Contractor had any obligation
or involvement in the execution or oversight of Subcontractor’s services. Plaintiff
does not allege that Contractor was present during the moving and transportation of
her belongings, let alone controlled or supervised Subcontractor’s work.227 The
parties have not provided any contract or agreement between Plaintiff’s insurance
company and Contractor or between Contractor and Subcontractor. Because there
is no genuine issue of material fact that Contractor did not breach the Content
Packout provision in the Restoration Contract, the Court finds as a matter of law that
damage proximately caused by Subcontractor does not constitute a breach of the
Restoration Contract by Contractor.
226
Id.; see also Gibellino Dep. at 12-14, 17 (testifying that he or Contractor’s project manager are
responsible for obtaining quotes from subcontractors, that Contractor tends to use Subcontractor
when a client’s personal belongings need to be moved into storage, and that Contractor coordinated
with Subcontractor to estimate the cost of moving and storage.).
227
See Gibellino Dep. at 23: 5-10 (Q: “Was anyone from Gibellino Construction at the pack out
when it happened?” A: “I can’t remember. I don’t – I never was there. I can’t say if Drew
McMullen [Contractor’s project manager] was there.”). Id.53
2. Contractor’s alleged involvement in preselecting a coverage
amount in the Moving Contract does not amount to a breach of the
Restoration Contract.
As to the second question, the Court has already found in the adjudication of
the cross motions for summary judgment that the Valuation Provision is valid and
enforceable. The fact that Contractor may have required this minimum coverage in
the Moving Contract does not constitute a breach of the Restoration Contract for
similar reasons. As an initial matter, the testimony conflicts as to whether Contractor
required or was even aware that Subcontractor preselected the amount of coverage
in the Moving contract. Gibellino testified that he was not aware of the coverage
amount chosen by Subcontractor.228 Hopkins and Sterling testified that Contractor
and Subcontractor agreed that Subcontractor would provide a minimum coverage
amount of $20,000 for all jobs involving Contractor.229
Even if Contractor did require a minimum coverage amount, as the Court has
explained above, this Provision was negotiable, not compulsory. Plaintiff has
provided no caselaw supporting her assertion that a contractor’s arrangement of a
minimum negotiable coverage amount in a subcontractor’s contract is a breach of
228
Gibellino Dep. at 22: 4-12; 35: 20-24; 36: 1-2 (“I don’t know if that’s their lowest value option.
That’s – I’ve never looked at the – the insurance value of the quote. That’s typically - they discuss
that with the customer when they do the move, I believe.” . . . Q: “Is the amount of coverage
changed typically per customer or is it the same for everyone, if you know?” A: “I don’t know.”
Q: “Is that something you typically look at?” A: “No.”). Id. Gibellino also testified to his
understanding that the moving Contract is reviewed with the customer when Subcontractor meets
with the customer at the beginning or start of the move. Id. at 38: 7-12.
229
See supra n. 11.
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the Contractor’s contract. Contractor has established that there is no genuine issue
of material fact as to whether the preselected valuation amount constitutes a breach
of the Restoration Contract. For Plaintiff’s breach of contract claim to survive the
summary judgment stage, she was thus required to raise a genuine issue of material
fact as to whether Contractor breached the Restoration Contract and she has not.
Because Plaintiff has not established an essential element of her claim, Contractor is
entitled to judgment as a matter of law.
VI. CONCLUSION
For the reasons expressed herein, the Court finds that there is no genuine issue
of material fact that Contractor did not breach the Restoration Contract either by
hiring Subcontractor or requiring a minimum amount of coverage, and that
Contractor is entitled to judgment as a matter of law. Contractor’s motion for
summary judgment is therefore GRANTED. As stated above, Subcontractor’s
motion for partial summary judgment is GRANTED and Plaintiff’s cross motion for
partial summary judgment is DENIED.
IT IS SO ORDERED.
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