Dollar-Signs-216x300House Bill 294, which was introduced on March 23rd, proposes a new method of collecting child support arrears.  The Bill requires the Division of Child Support Enforcement to maintain a list of persons who are in arrears of their child support obligation.  In addition, it would impose an obligation on any attorney or insurer to consult this list before releasing any funds to clients or prevailing parties in a claim, lawsuit or civil arbitration for bodily injury or death under a property and casualty insurance policy, or paid as a workers’ compensation or occupational disease act award under a workers’ compensation policy.  If support is owed, the Bill requires that the total amount of support arrears to be paid before any funds (except the first $1,000) may be released to the support obligor.  The Bill is currently assigned to the Health & Human Development Committee in the House of Representatives.



Spoltore_LeslieLeslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or

On August 21, 2012, the Delaware Superior Court (Johnston, J.) in LaFayette v. Christian dismissed plaintiff Marcia LaFayette’s (“LaFayette”) untimely-filed Complaint, concluding that the applicable statute of limitations was not tolled by 18 Del. C. § 3914 (“Section 3914”).  Read entire opinion here.

This action arose from a motor vehicle accident that occurred on I-95 on May 27, 2008.  On that date, LaFayette’s vehicle was struck by a tractor trailer operated by defendant Bryan R. Christian (“Christian”).  On April 18, 2012—nearly four years after the accident—LaFayette filed a Complaint against Christian and his employer, Triple J Trucking, Inc. (“TJT”), alleging that Christian negligently operated the tractor trailer and that TJT negligently screened, trained, and supervised Christian. 

Defendants moved to dismiss pursuant to Rule 12(b)(6), asserting that LaFayette failed to bring suit within the applicable two-year statute of limitations.  LaFayette countered that Defendants never gave LaFayette notice of the applicable statute of limitations as required under Section 3914, thus tolling the statute of limitations.  The court considered two issues: “whether [Section 3914] requires Defendants to provide LaFayette with notice of the applicable statute of limitations; and (2) whether Section 3914 applies to an out-of-state insurer.” 

First, the court concluded that Section 3914 applies only to insurance companies, and, thus, does not apply in this case.  Section 3914 provides as follows: “An insurer shall be required during the pendency of any claim received pursuant to a casualty insurance policy to give prompt and timely written notice to claimant informing claimant of the applicable statute of limitations regarding action for his/her damages.”  Noting that Section 3914 is “an expression of legislative will to toll otherwise applicable time limitations with respect to claims made against insurers,” Opinion at 3 (quoting Stop & Shop Cos. v. Gonzalez, 619 A.3d 896, 898 (Del. 1993)), and further noting that “TJT is a commercial trucking company, and [that] Christian is an individual employed by TJT as a truck driver,” the court appropriately found that “Defendants are neither insurers nor self-insurers for purposes of [Section 3914].” (Opinion at 4.)  The court therefore concluded that Defendants are not “insurers” subject to the notice requirement of Section 3914.            

Second, the court concluded that, even if Defendants were considered “insurers” under Section 3914, they would not be subject to Section 3914’s notice requirement.  Under Section 3914, the notice requirement extends only to “contracts of casualty insurance covering subjects resident, located or to be performed in [] [Delaware].”  Opinion at 6-7, quoting 18 Del. C. § 3901.  Because LaFayette is a resident of Maryland and TJT is a North Carolina company with an insurance policy issued by a North Carolina company, the Court concluded that Defendants would not have been required to provide notice of the statute of limitations even if they constituted “insurers” under Section 3914.  

Accordingly, the court dismissed the complaint as time barred.  Notably, the issue of whether Section 3914 requires a non-Delaware insurance company to provide notice of the applicable statute of limitations was an issue of first impression for the court.  See Opinion at 1.

Two weeks ago, I reported on Brown v. United Water Delaware, Inc., C.A. No. 07C-07-070-JAP (Del. Super. Ct. Oct. 7, 2011), in which Judge Parkins of the Delaware Superior Court excluded the plaintiff’s causation expert on the grounds that his methodology was unreliable and because he did not possess the requisite expertise in the relevant field.  The Delaware Superior Court in Collins v. Ashland Inc., et al., No. 06C-03-339 BEN (Del. Super. Ct. Oct. 21, 2011) (Jurden, J.) excluded two causation experts on the grounds that they were unable to establish “a causal nexus between exposure to Defendants’ products and Mr. Collins’ disease. . . .”  (Opinion at 10.)  (Read full opinion here.)  In addition, the Court granted summary judgment in favor of Defendants because Plaintiff was unable to satisfy her burden of proof without the excluded expert testimony.

The plaintiff, Theresa Collins, is the surviving spouse of Bruce Collins.  Ms. Collins alleged that Mr. Collins “contracted Acute Myelogenous Leukemia (‘AML’)” during his career as a painter “as a proximate result of his exposure to products containing benzene manufactured by Defendants.”  (Id. at 2.)  Mr. Collins worked for two companies during his painting career: Rosing Paints for 9 months in 1984, and Specialty Finishes LLC from 1984 to 2005.  The court noted that “Mr. Collins’ only exposure to the Defendants’ products occurred while working for Rosing Paints in 1984.”  (Id. at 2-3.) 

Ms. Collins intended to introduce the testimony of Dr. Lawrence R. Zuckerberg and Dr. Harry A. Milman at trial to establish causation.  (Id. at 3.)  The court noted that: (1) “Dr. Milman opines that throughout Mr. Collins’ twenty-one year career as a painter, he was routinely exposed by inhalation, skin contact and ingestion to benzene present in paint” (id.); and (2) “Dr. Zuckerberg opines that Mr. Collins was regularly exposed to toxins, including benzene, for his entire twenty-one year career.” (id. at 4) (emphasis added).

Noting that “[t]he ‘pertinent inquiry’ in the case . . . is whether the time period during which Mr. Collins was exposed to the Defendants’ products [i.e., the 9-month period in 1984] was sufficient to establish a causal nexus between the exposure and Mr. Collins’ AML,” the court concluded that “Plaintiff’s expert opinions are deficient because they do not state that the decedent’s nine-month period of exposure while at Rosing Paints proximately caused his AML.”  (Id. at 11.)  The court opined that “[t]his failure to link Mr. Collins’ disease to the Defendants’ products and the time period in which he was in fact exposed to these products is a fundamental flaw in Plaintiff’s experts’ methodology that undermines the reliability of their conclusions.”  (Id. at 10.) 

In excluding Plaintiff’s experts, the court made clear that “[t]he problem is not that the Plaintiff’s experts’ science is unsound or the methodology flawed. . . .”  (Id. at 12.)  Rather, “the principles and methods used by the Plaintiff’s experts have not ‘reliably [been] applied to the facts of [this] case.’”  (Id.) (quoting Perry v. Berkley, 996 A.2d 1262, 1270 (Del. 2010)). 

Finally, the Court concluded that “[w]ithout such expert medical testimony Plaintiff cannot make a prima facie showing of proximate causation. . . .”  (Opinion at 12.)  Accordingly, the court held that “the moving Defendants are entitled to a judgment as a matter of law,” and granted Defendants’ motion for summary judgment.  (Id. at 13.)  

Collins once again underscores the importance of not only ensuring that one’s experts employ scientifically sound methodologies under Dabuert, but also that they correctly apply the applicable scientific principles to the facts of the case at hand.  As in Collins, the reliability of an expert can make or break a case. 

Last month, the Delaware Superior Court issued a decision in Blue Hen Mechanical, Inc., v. Atlantic States Insurance Company that addresses an insurer’s duty to defend an insured. The issue of an insured’s duty to defend often arises in negligence actions, including actions alleging personal injuries. This post will look at the law in Delaware regarding an insurer’s duty to defend. Although the claims in Blue Hen Mechanical were for property damage, not personal injury, the Court’s decision provides a good overview of the law governing an insurer’s duty to defend in Delaware.

Blue Hen Mechanical (“Blue Hen”) provides service contracts for HVAC equipment. Christian Brothers Risk Pooling Trust a/s/o Little Sisters of the Poor (“Christian Brothers”) filed an action against Blue Hen claiming damages as a result of Blue Hen’s alleged negligence in failing to inspect, maintain and make repairs to Christian Brothers’ HVAC system. Opinion at *1.

In response to the negligence action, Blue Hen filed a declaratory judgment action against Atlantic States Insurance Company (“Atlantic States”). Blue Hen sought a declaratory judgment from the Superior Court finding that Atlantic States has a duty to defend the action brought by Christian Brothers and indemnify Blue Hen against any successful claims. Opinion at *1.

The Court began its analysis by citing the Delaware Supreme Court’s test to determine whether an insurer has a duty to defend an action against an insured. Opinion at *4. In Pacific Insurance Co. v. Liberty Mutual Insurance Co., the Delaware Supreme Court spelled out the following test for deciding whether an insurer must defend:

In construing an insurer’s duty to indemnify and/or defend a claim asserted against its insured, a court typically looks to the allegations of the complaint to decide whether the third party’s action against the insured states a claim covered by the policy, thereby triggering the duty to defend. The test is whether the underlying complaint, read as a whole, alleges a risk within the coverage of the policy. Determining whether an insurer is bound to defend an action against an insurer requires adherence to the following principles: (1) where there is some doubt as to whether the complaint against the insured alleges a risk insured against, that doubt should be resolved in favor of the insured; (2) any ambiguity in the pleadings should be resolved against the carrier; and (3) if even one count or theory alleged in the complaint lies within the policy coverage, the duty to defend arises.

Pacific Ins. Co. v. Liberty Mut. Ins. Co., 956 A.2d 1246, 1254-55 (Del. 2008)(further citations omitted).

An insurer’s duty to defend its insured arises when the insured can show that the complaint in the action brought against the insured, “read as a whole, alleges a risk potentially within the coverage of the policy.”  Opinion at *5, citing Cont’l Cas Co. v. Alexis I. duPont Sch. Dist., 317 A.2d 101, 103 (Del. 1974).  The insurer’s duty to defend arises where the facts alleged in the underlying complaint potentially support a covered claim.  Opinion at *5, citing Virtual Business Enterprises, LLC, v. Maryland Cas. Co., 2010 WL 1427409, at *4 (Del. Super.).  In deciding the issue of the duty to defend, a court is not constrained by the narrow language in the underlying complaint.  Instead, the court may consider all reasonable inferences that may be drawn from the complaint.  Opinion at *6.

After considering the law on the duty to defend, the Court in Blue Hen next considered the allegations in the underlying complaint and whether they triggered coverage under the policy.  The Court noted that the breach of contract claim brought by Christian Brothers against Blue Hen “clearly is excluded by the policy.”  Opinion at *8.  Likewise, the Court found that the negligence claim was not covered as the policy excluded claims arising from the work of Blue Hen.  Id.  The Court also noted that the complaint alleged that the damage sustained by Christian Brothers could create liability against parties other than Blue Hen, such as the manufacturer of cooling equipment, a prior HVAC contractor, etc..  However, if these parties were found liable, such a finding would not result in liability on the part of Blue Hen.  Since Blue Hen had no covered claims as alleged in the complaint, the Court found there can be no duty to defend.  Opinion at *9. 


Jason Cornell is an attorney with the law firm Fox Rothschild LLP.  Jason practices in Fox Rothschild’s Personal Injury Department in the Wilmington, Delaware office.  You can reach Jason at 302 427 5512, or


When a plaintiff in a personal injury action is not satisfied with a jury award, the plaintiff has a couple of options, one of which is to file a motion with the court challenging the sufficiency of the award (often referred to as a motion for additur). A recent decision issued by the Delaware Superior Court in Glover v. Schwing, et al, provides a useful analysis of the factors courts may consider when deciding a motion for additur. This post will look briefly at the facts underlying the Superior Court’s decision in Glover and how the Court ultimately decided the movant’s request to modify the jury award.


The plaintiff (“Plaintiff”) in Glover sustained injuries in a motor vehicle collision while traveling as a passenger in a vehicle. Plaintiff asserted claims against the driver of the vehicle she was traveling in, as well as the driver of the other vehicle involved in the accident. At the end of a three day trial, the jury awarded Plaintiff $38,000 in damages. After receiving the jury’s verdict, Plaintiff brought a motion for additur. According to the Plaintiff, the jury’s award was “grossly out of proportion” to the injuries she suffered. By that, after Plaintiff deducted $33,719.88 in medical expenses, Plaintiff’s award for pain and suffering totaled $4,280.22. Opinion at *2-3.


In considering Plaintiff’s motion, the Court began its analysis by noting that “[a]n award that is challenged as insufficient will not be disturbed unless its inadequacy ‘is so clear as to indicate that it was the result of passion, prejudice, partiality or corruption.’”. Opinion at *3, citing Mills v. Telenczak, 345 A.2d 424, 426 (Del. 1975). When considering a motion for additur, a court will not increase a jury award unless it is “so grossly out of proportion … as to shock the Court’s conscience and sense of justice … and unless the injustice of allowing the verdict to stand is clear.” Opinion at *4, citing Storey v. Castner, 314 A.2d 187, 193 (Del. 1973).

The Court in Glover recognized that the jury’s award was only $4,000 more (approximately) than the medicalexpenses. Even so, the Court found that the award did not shock the conscience of the Court. Further, the Court did not find the award inadequate under the circumstances. Opinion at *4. After finding that the award was not inadequate, the Court went further with its analysis and looked at why the jury might have awarded the amount it did. During the trial, the Court noted that the defendants disputed whether Plaintiff’s injuries were caused by the motor vehicle accident. Opinion at 5. By that, Plaintiff’s disc herniations did not appear on an MRI until two years after the accident. Id. Based on this evidence, the Court concluded that the jury’s award could reflect a finding that only a portion (or none) of the medical bills were related to the motor vehicle collision. Id.


Ultimately, the Court in Glover denied Plaintiff’s motion for additur. In doing so, the Court also considered factors not addressed in this post (i.e. the testimony of Plaintiff and her physicians at trial). The decision in Glover is helpful as it shows a reluctance by courts to second guess the decisions of a jury. Before a court will discount a jury’s assessment of the facts and credibility of witnesses at trial, the moving party must show that the verdict is contrary to the weight of the evidence and shocks the conscience of the court. Opinion at *9. Glover, therefore, reminds litigants of the burdens they must overcome before a court will modify a jury verdict.


Jason Cornell is a partner with the law firm Fox Rothschild LLP in Wilmington, Delaware.  You can reach Jason at 302 427 5512 or