Hall v. GEICO Advantage Insurance Company

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
MARVA S. HALL,
Plaintiff,
C.A. No.: N20C-03-192 FJJ
V.
GEICO ADVANTAGE INSURANCE
COMPANY, a foreign corporation, and
HS CAPITAL, LLC, a limited liability
company,
Defendants.
Submitted: January 25, 2021
Decided: February 3, 2021
ON HS CAPITAL, LLC’S MOTION TO DISMISS
DENIED
OPINION AND ORDER
Kathryn L. Hemming, Esquire (Argued) and Gary S. Nitsche, Esquire of Weik,
Nitsche & Dougherty LLC, Wilmington, Delaware, Attorneys for Plaintiff.
William A. Crawford Esquire (Argued) and Michael Torrice, Esquire of Franklin &
Prokopik, Wilmington, Delaware, Attorneys for Defendant HS Capital, LLC
Dawn L. Becker, Esquire of Law Office of Dawn L. Becker, Attorneys for
Defendant GEICO Advantage Insurance Co.
Jones, J.
Plaintiff has moved this Court to permit her to amend her complaint to add
two defendants to this case: Jamir Steed (“Steed”) and Jahbree McKenrick
(“McKenrick”). Defendant, HS Capital LLC, (‘HS Capital”), the former employer
of Steed and McKenrick, has opposed the Motion. Having consider the parties
positions it appears to the Court that:
1. Plaintiff filed the instant lawsuit on March 19, 2020, alleging personal
injuries from a motor vehicle accident that occurred on or about August
29, 2018. In the Complaint, Plaintiff claims that an unknown driver
operating a vehicle with the HS Capital logo on it was involved in the
accident. The complaint named HS Capital and GEICO, in its capacity as
Plaintiff's uninsured motorist carrier, as defendants. HS Capital was
served on May 26, 2020. On August 5, 2020, Plaintiff filed a Motion for
Default Judgment against HS Capital. HS Capital filed an Answer on
August 19, 2020. The Answer and Form 30 Interrogatory Answers did not
identify any driver of the HS Capital car. In fact, it has been the position
of HS Capital that neither its vehicle drivers nor any of its employees
knows anything about the accident which gave rise to this lawsuit
occurring.
2. In August 2020, counsel for the Plaintiff emailed the Complaint to counsel
for HS Capital and requested the name of the driver of the HS Capital
vehicle that was involved in the collision. Plaintiff's counsel made further
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communications requesting the name of the driver but received no
response to these requests. On October 26, 2020, Plaintiff filed a Motion
to Compel full Answers to the Form 30 Answers Interrogatories. On
November 17, 2020, this Court denied the motion on the basis that the
Answers were complete given HS Capital’s response that they did not
believe its employees were involved in the accident. In denying the
request, the Court suggested that Plaintiff's counsel should use the
discovery tools available to her to get the information she needed. A Rule
30 (b)(6) deposition occurred on December 10, 2020, during which time
Steed and McKenrick were identified as potential drivers of the HS Capital
vehicle. This motion, which seeks to add Steed and McKenrick as named
Defendants, followed shortly thereafter.
. At oral argument in this matter counsel for HS Capital advised that by no
later than October 26, 2020, a representative of HS Capital had spoken
with Steed and McKenrick about what they knew about this accident. In
December 2020 plaintiff's counsel sent certified letters to both Steed and
McKenrick informing them of this lawsuit and indicating that Plaintiff
intended to add them as named defendants. They each received this
notification by December 28, 2020.
. HS Capital opposes the instant motion to amend on the grounds that the
claims are barred by the applicable statute of limitations. Plaintiff counters
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that the Amended Complaint seeking to add Steed and McKenrick relates
back under Superior Court Civil Rule 15 (c) and is therefore timely. At
oral argument the Court granted the Motion to Amend but reserved
decision on whether the addition of Steele and McKenrick was timely.
This decision addresses HS Capital’s Motion to Dismiss on the grounds
that the amended complaint is untimely and barred by the statute of
limitations.
. Whether the amended complaint is timely turns on whether plaintiff meets
all the requirements of the relation back provisions of Superior Court Civil
Rule 15(c).
. Rule 15(c) requires three conditions to be met in order for an amended
complaint to relate back to a previous complaint: (1) the claim or defense
asserted in the amended pleading must arise out of the same conduct,
transaction or occurrence set forth or attempted to be set forth in the
original pleading; (2) within the period provided by statute or the rules for
service of the summons and complaint, the party whom the Plaintiff seeks
to add as a defendant via the amendment must receive notice of the
institution of the action so that the new party will not be prejudiced in
maintaining a defense on the merits; and (3) within the period provided by
the statute or the rules for service of the summons and complaint, the party
to be added as a defendant by the amendment must know or be in a position
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where he or she should have known that but for a mistake concerning the
identity of the party, the suit would have been brought against the party.’
7. There can be no dispute that the claims against Steed and/or McKinley
arise out of the same conduct, transaction, or occurrence set forth in the
original complaint.
8. HS Capital contends that Plaintiff has failed to meet the third condition of
Rule 15(c) because there was no mistake concerning their identity and/or
involvement in the suit. Rule 15 motions to amend commonly involve
mistakes about the names of entities and successor entities, but the scope
of this rule is much broader.” Delaware’s approach regarding what
constitutes mistake under Rule 15(c) turns on whether the plaintiff can
demonstrate intent to sue the proper parties. In both Cordery and Fraser
v. G-Wilmington Associates L.P.,* this Court found that a mistake existed
where the plaintiffs conducted an investigation into the identities of the
parties implicated in an incident which resulted in a lawsuit, and where it
was Clear that the plaintiffs intended to sue all who were involved in the
underlying incident. By contrast, in those Delaware cases where the Court
found no sufficient mistake, the plaintiff knew the identities of the putative
defendants at the time they initiated the lawsuit, but did not demonstrate
' See Taylor v. Champion, 693 A.2d 1072, 1074 (Del. 1997).
? Cordrey v. Doughty, 2017 WL 4676593, at *5 (Del. Super. 2017). See also Pierce v Williams et al., 2018 WL
3655863, at *3 (Del. Super. 2018).
3 See Fraser v. G-Wilmington Associates, L.P., 2017 WL 365500 (Del. Super., 2017)
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an intent to sue the additional parties until it was too late.* In the instant
case, plaintiff’s actions include asking defense counsel for the names of
the drivers when defense counsel began representing Defendants, filing a
motion to compel more complete Answers to Form 30 Interrogatories,
conducting a Rule 30(b)(6) deposition, and promptly moving to amend the
Complaint in order to include the potential drivers identified following the
deposition. Contrary to HS Capital’s argument that plaintiff delayed and
waited until the last minute to file the Amendment Complaint, the record
shows that plaintiff was diligent from the outset in trying to ascertain the
identity of driver involved in the accident. These actions demonstrate an
intent to sue all parties who were involved in the accident, including the
driver of the HS Capital van involved in the accident in the driver’s
individual capacity. A mistake exists because plaintiff demonstrated an
intent to sue all of the proper parties.°
. I now turn to the third requirement under Rule 15(c), which requires that
that Steed and McKenrick must have received “such notice of the
institution of the action within the period provided for by statute or the
rules for service of the summons and complaint.” Under Rule 15(c), the
term “such notice” does not refer to notice of the incident giving rise to the
4 See Pierce v. Williams, 2018 WL 3655863 (Del. Super. 2018).
5 Id.6
cause of action, but rather refers to notice of the pending lawsuit itself.°
This notice can be either formal or informal: “service of process is not
mandated, and such notice may not even have to be in writing.”
Moreover, the party against whom the claim is filed must have received
such notice within the period set forth by statute or the rules for service of
the summons and complaint. Under Rule 15(c), notice may be given after
the termination of the limitations period, provided that notice occurs within
the additional 120-day period for service provided by Rule 4(j).®
10.By October 26, 2020, the 4 individuals that HS Capital believed may have
been driving the HS Capital vehicle involved in the accident (including
Steed and McKenrick) were questioned by HS Capital about what they
knew about the accident. This questioning was enough to put Steed and
McKenrick on notice of the lawsuit. Even if this were not sufficient to
give them sufficient notice of the lawsuit, both Steed and McKinley knew
by December 28, 2020, that they were being added to a lawsuit via a
certified letter that each of them had received from Plaintiffs
counsel. These letters clearly were sufficient notice to meet the
requirements of Rule 15(c).?
® Concklin v. WKA Fairfax LLC, 2016 WL 6875960, at *3 (Del. Super. Nov. 16 2016).
7 Pierce, at *2.
8 Walker v. Handler, 2010 WL 4703403, at *3 (Del Super. 2010); Pierce v. Williams, 2018 WL 3655863, at *2 (Del.
Super. 2018).
° See Plaintiffs Mem. Of Law and attached Exhibits filed Jan. 15, 2021.
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11.HS Capital asserts that under Rule 15(c) the 120-day period for service
provided by Rule 4(j) is counted beginning on the date of the filing of the
complaint the Plaintiff is trying to amend. Using this standard, the 120-
day period in this case would have begun to run on March 19, 2020, and
would have expired on July 17, 2020. This would result in the claims
against Steed and McKenrick being time barred. Plaintiff’s interpretation
of Rule 15(c) is that the 120 days is added to the end of the statute of
limitations period, and therefore the addition of Steed and McKenrick is
timely.!°
12.At least three prior decisions of this Court have addressed when the count
begins: Clifton v. Rite Aide of Delaware, Inc., 2020 WL 3865282 (Del.
Super. 2020); Franco v. ACME Markets, 2018 WL 5840658 (Del. Super.
2018); and Pierce v. Williams, 2018 WL 3655863 (Del Super. 2018). In
Franco, Resident Judge Butler wrote:
It seems self-evident that a rule governing the relation back of a new
pleading to a prior pleading would have but one purpose: avoiding
a limitations period that would otherwise apply if the prior pleading
were deemed improper for technical, remediable reasons. A rule
limiting relation back of an amendment to 210 days of initial filing,
regardless of the statute of limitations, serves no purpose at all.
Defendant’s construction divorces Rule 15(c) from the statute of
limitations- the very reasons for its existence- and asks the Court to
10 Tn the instant case, the statute of limitations expired on August 29, 2020. The service period of 120 days beyond
the expiration of the statute of limitations would have been Sunday, December 27, 2020. Del Super. Ct. Cv. Rule 6
does not allow for the expiration of a deadline to occur on a weekend or holiday, which would result in the
expiration date falling on Monday, December 28, 2020, under Plaintiffs interpretation of Rule 15(c).
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engage in grammatical diagramming without regard to what the
sentence seeks to accomplish.!!
13.Like Resident Judge Butler, this Judge will not engage in grammatical
diagramming without regard to the objective which Rule 15(c) seeks to
accomplish. This Court elects to follow the well-reasoned view of Resident
Judge Butler. As such, this Court finds that Plaintiff has satisfied the
timing requirements of Rule 15(c).
14.Defendant claims that adding Steed and McKenrick as additional
defendants would be prejudicial because they no longer work for HS
Capital. Steed and McKenrick both left HS Capital in 2018.’ The Court
sees no additional prejudice to HS Capital by adding Steed and McKenrick
in December 2020 as opposed to March 2020, when the initial Complaint
in this action was filed. This is especially the case because part of the delay
included HS Capital not filing a timely response to the Complaint and the
need for Plaintiff to file a Motion for Default to get HS Capital to file an
Answer.
15.Plaintiffs have satisfied the required conditions necessary under Rule
15(c). Therefore, Plaintiffs amended complaint relates back to the original
timely complaint, and Plaintiffs claims against Steed and/or McKinley are
not time-barred.
"| Franco, 2018 WL 5840658, at *3.
!2 See Defendant’s Response in Opposition to Plaintiff's Motion to Amend the Complaint, at pg. 2.
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For the above reasons HS Capital’s Motion to Dismiss is DENIED.
IT IS SO ORDERED. fp“)
Francis J. Jones, Judge
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