Kivell v. Georgia Pacific Consumer Products LP

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN RE: ASBESTOS LITIGATION
SANDRA KIVELL, individually and as )
Personal Representative of the Estate of )
MILTON J. KIVELL, deceased, )
)
Plaintiff, )
) C.A. No. N15C-07-093 ASB
v. )
)
GEORGIA PACIFIC CONSUMER )
PRODUCTS LP et al., )
)
Defendants. )
March 26, 2018
Upon Defendant Georgia Pacific’s
Motion for Summary Judgment
GRANTED.
ORDER
Plaintiff Sandra Kivell (“Plaintiff”) cannot satisfy the summary judgment
criteria.1
Plaintiff alleges that her husband, Milton Kivell (“Mr. Kivell”) contracted
mesothelioma which ultimately caused his death. Plaintiff filed a wrongful death
action against numerous defendants including Georgia Pacific (“Defendant”).
Defendant filed a Motion for Judgment on the Pleadings. Defendant contends that
1
Super. Ct. Civ. R. 56; Smith v. Advanced Auto Parts, Inc., 2013 WL 6920864, at
*3 (Del. Super. Dec. 30, 2013); see Moore v. Sizemore, 405 A.2d 679, 680 (Del.
1979); Nutt v. A.C. & S., Inc., 517 A.2d 690, 692 (Del. Super. Ct. 1986).
Plaintiff failed to timely assert her wrongful death and survival actions pursuant to
Louisiana Law. Defendant contends that Louisiana’s wrongful death statute
expressly states that such claims are actionable for one year from the death of the
decedent.2 Similarly, Louisiana survival statute states that the right to recover is “for
a period of one year from the death of the deceased.”3 Here, Mr. Kivell passed away
on September 5, 2015, and Plaintiff filed the wrongful death and survival action on
September 30, 2016. Defendant argues that the applicable Louisiana statute bars
Plaintiff from asserting these claims. On the other hand, Plaintiff asserts that the
wrongful death claim relates back to the original Complaint pursuant to Superior
Court Civil Rule 15(c). Plaintiff claims that because Delaware procedural law
applies to this case, the relation back of statutes of limitations are generally
considered to be procedural rather than substantive.
First, Louisiana’s statute of limitations regarding the wrongful death claim
applies. 10 Del. C. § 8121 states:
Where a cause of action arises outside of this State, an action cannot be
brought in a court of this State to enforce such cause of action after the
expiration of whichever is shorter, the time limited by the law of this
State, or the time limited by the law of the state or country where the
cause of action arose, for bringing an action upon such cause of action.
Where the cause of action originally accrued in favor of a person who
at the time of such accrual was a resident of this State, the time limited
by the law of this State shall apply.
2
La. Civ. Code art. 2315.2.
3
La. Civ. Code art. 2315.1.
2
Additionally, Plaintiff does not seem to argue that Louisiana statute of limitations
does not apply. Rather her argument is focused on whether the claims are
amendments to the original pleading. Thus the Court must determine if the second
amended complaint relates back to the date of the original complaint. As the Court
wrote in a footnote in an earlier Order in this case, the Court is not persuaded that
under Delaware law the wrongful death action relates back to the original pleading.
This is because the wrongful death action and survivorship action are not an
amendment to the original complaint, rather they are supplemental pleadings. Under
Superior Court Civil Rule 15(c), an amendment of a pleading relates back to the
original pleading when: (1) relation back is permitted by the law that provides the
statute of limitations applicable to the action, or; (2) the claim or defense asserted in
the amended pleading arose out of the conduct, transaction, or occurrence set forth
or attempted to be set forth in the original pleading.4
Under Delaware law, the difference “between an amended and supplemental
complaint is drawn within Rules 15(a) and 15(d) and relates to the time frame in
which the matters to be added to the complaint occurred.”5 However, “Rule 15(d),
in contrast, specifies that a ‘supplemental’ complaint refers to a complaint in which
the plaintiff adds to the original complaint by ‘setting forth transactions or
4
Super. Ct. Civ. R. 15(c).
5
Pella Corp. v. American Cas. Co. of Reading, P.A., 2012 WL 1408855, at *1 (Del.
Super. Mar. 14, 2012).
3
occurrences or events which have happened since the date of the pleading sought to
be supplemented’.”6 “When interpreting these two rules together, courts have
implied that an amendment to a pleading, whether filed with or without leave of the
court, should only relate to matters that have taken place prior to the date of the
pleading to be amended.”7 The wrongful death and survivorship actions are not
amendments to the original complaint, as they do not relate to matters that took place
prior to the date of the pleading being amended. Plaintiff cites to a Louisiana case to
support her proposition that the wrongful death and survivorship claims relate back
under Louisiana Code of Civil Procedure. However, amending or supplementing
proceedings are procedural rules, and Delaware procedure applies to that aspect of
this case. For the aforementioned reasons, Plaintiffs wrongful death and survival
claims are time barred. Defendant’s motion for judgment on the pleadings is hereby
GRANTED.
IT IS SO ORDERED.
/s/ Calvin L. Scott
The Honorable Calvin L. Scott, Jr.
6
Id.
7
Id.
4