City of Wilmington v. Geico

      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CITY OF WILMINGTON,                         )
)
Plaintiff,       )
)
v.                                 ) C.A. Nos. N16C-05-261 PRW &
)           N15C-09-218 AML
)
GEICO ADVANTAGE                             )
INSURANCE COMPANY, a                        )
Foreign Corporation,                        )
)
Defendant.      )
Submitted: January 11, 2017
Decided: January 23, 2017
ORDER
Upon Defendant GEICO’s Motion to Dismiss,
DENIED.
Upon Plaintiff City of Wilmington’s Motion to Convert,
GRANTED.
This 23rd day of January, 2017, in this consolidated matter, upon
consideration of the Defendant GEICO Advantage Insurance Company’s
(“Geico”) Motion to Dismiss (N16C-05-261, D.I. 2), the response thereto
(N16C-05-261, D.I. 6),    the supplemental argument and briefing thereon, the
Commissioner’s Report and Recommendation that GEICO’s Motion to Dismiss be
DENIED (N16C-05-261, D.I. 19); and, upon consideration of the Plaintiff City of
Wilmington’s Motions to Convert Its Appeals to Writs of Certiorari
(N15C-09-218, D.I. 11; N16C-05-261, D.I. 6), the opposition thereto
(N16C-05-261, D.I. 8), the supplemental argument and briefing thereon, the
Commissioner’s Report and Recommendation that City of Wilmington’s Motions
to Convert be GRANTED (N16C-05-261, D.I. 19); and, upon consideration of the
complete record in this case, it appears to the Court that:
(1)    These motions were referred to Superior Court Commissioner
Katharine L. Mayer in accordance with 10 Del. C. § 512(b) and Superior Court
Civil Rule 132 for proposed findings of fact, conclusions of law, and
recommendations for the disposition of the motions. 1
(2)    The Commissioner filed her Report and Recommendation on
November 22, 2016.          The Commissioner recommended that the Court deny
GEICO’s Motion to Dismiss and grant the City of Wilmington’s Motions to
Convert.2
(3)    “Within 10 days after filing of a Commissioner’s proposed findings
and recommendations . . . any party may serve and file written objections . . . .” 3
1
Order Referring Matter to Comm’r, City of Wilmington v. GEICO Adv. Ins. Co., C.A.
Nos. N15C-09-218 (D.I. 11) (Del. Super. Ct. Sept. 26, 2016); Orders Referring Matter to
Comm’r, City of Wilmington v. GEICO Adv. Ins. Co. N16C-05-261 (D.I. 9 & 18) (Del. Super.
Ct. July 26, 2016 & Sept. 26, 2016).
2
See Comm’r Rep. and Recommend., City of Wilmington v. GEICO Adv. Ins. Co., 

2016 WL 6882852

 (Del. Super. Ct. Nov. 22, 2016).
3
SUPER. CT. CIV. R. 132(a)(4)(ii).
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Neither party has filed an objection to the Commissioner’s Report and
Recommendation.4
(4)     The    Court     accepts,     in     whole,   the    findings     of    fact   and
recommendations made by the Commissioner.5
NOW THEREFORE, after careful and de novo review of the record in
these actions, and for the reasons stated in the Commissioner’s Report and
Recommendation of November 22, 2016, Defendant GEICO’s Motion to Dismiss
is DENIED and the City of Wilmington’s Motions to Covert Its Appeals to Writs
of Certiorari are GRANTED.
4
GEICO did file a letter “advis[ing the Court] that GEICO does not intend on appealing
Commissioner Mayer’s report and recommendations” but “request[ing] that its argument
pertaining to improper service of process be withdrawn.” (Letter from Amanda Dobies, Esquire,
to the Honorable Paul R. Wallace, City of Wilmington v. GEICO Adv. Ins. Co., C.A. No. N16C-
05-261 (Del. Super. Ct. Dec. 5, 2016) (D.I. 20)). The Court conducted a conference to clarify
that request. (Proceeding Worksheet, City of Wilmington v. GEICO Adv. Ins. Co., C.A. No.
N16C-05-261 (Del. Super. Ct. Jan. 11, 2017) (D.I. 24)). There being neither statutory nor
court-rule authority for the “excising” of a decided issue in lieu of appeal, that request was
denied. See DEL. CODE ANN. tit. 10, § 512(b) (2006) (setting forth procedures for an aggrieved
party to file written objections to a Commissioner’s proposed findings and recommendations);
SUPER. CT. CIV. R. 132(a)(4) (providing the procedures for parties to file an “Appeal from
Commissioner’s Findings of Fact and Recommendations”). An unsuccessful party cannot
eliminate an unfavorable ruling without the rigors of examination and decision by a reviewing
authority; such a regular rule of appellate practice should apply to a judge of this Court’s review
of a Commissioner’s report. See generally State v. Colburn, 

2016 WL 3248222

, at *2 nn.8-9
(Del. Super. Ct. June 1, 2016) (noting and applying a well-accepted rule of appellate practice to
review of a Commissioner’s report and recommendations under § 512 and Criminal Rule
62(a)(5)).
5
SUPER. CT. CIV. R. 132(a)(4)(iv) (“A judge may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the Commissioner.”)
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SO ORDERED this 23rd day of January, 2017.
/s/ Paul R. Wallace
Paul R. Wallace, Judge
cc:   All counsel via File & Serve
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