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Delaware Workers’ Compensation Statute Bars Civil Claim

Superior Court of Delaware, New Castle

Plaintiff Jeffery Saunders filed an action against numerous defendants, alleging that he was exposed to asbestos-containing products and sustained resulting injuries. Defendant Atlantic Plant Management (APM) moved for summary judgment, arguing that Delaware law applies and that the plaintiff’s claim is barred by the exclusivity provision of the Delaware workers’ compensation statute. The court agreed, granting APM’s motion. The plaintiff filed a Motion for Reargument, which was considered by the court.

The plaintiff worked out of the Delaware Carpenters Millwright Union for 22 years, including at the Eddystone powerhouse in Eddystone, Pennsylvania. While the plaintiff worked at Eddystone, his employer was APM. The plaintiff argues that his claims against APM are governed by Pennsylvania law, not Delaware law and that, under Pennsylvania law, his claims are not barred by that state’s workers’ compensation statute.

Delaware’s traditional, ‘Petroski’ approach to determining the law applicable to an asbestos case where exposure occurred in multiple jurisdictions is to determine where the greatest exposure occurred, as that jurisdiction’s law will control. If that is not feasible, or if the record is unclear, then the court will apply the law of the state in which the disease first manifested itself. Finally, if that does not provide an answer, the state in which the disease was diagnosed has the most significant relationship.

In this case, the parties agree that if this framework controls, Delaware law applies. However, the plaintiff urged the court not to apply that test, but to apply the doctrine of Depecage, which is the concept that laws of different states may be applied to different portions of a case. In its initial ruling, the court noted that it has consistently applied the traditional test outlined above and was not willing to depart from that test to determine which state law should apply to land exposure.

The plaintiff next argued that DelPizzo v. Agilent Technologies compels a conclusion that Pennsylvania law applies to this case. However, the court found that matter to be distinguishable. As the instant the plaintiff had workers’ compensation benefits available to him for all of his exposure, the workers’ compensation bar would apply to all employment, including the out of state employment. To rule otherwise would frustrate the dual purposes of the act.

Turning to the plaintiff’s Motion for Reargument, the court noted that it will only grant reargument when it has overlooked controlling precedent or legal principles or misapprehended the law or facts in a way that would have changed the outcome of the underlying decision. The plaintiff’s Motion for Reargument argued that the court misconstrued the holding in DelPizzo v. Agilent Technologies. It further claimed that the court misconstrued the holding in Delpizzo and misconstrued the facts regarding the existence of crossclaims and their impact on the analysis. The court stood by its analysis of the DelPizzo decision, again rejecting the plaintiff’s argument. With respect to the plaintiff’s second point, the court’s original ruling noted that the existence of crossclaims and issues of apportionment of fault involving settled parties continued to have an impact on the choice of law question. The court ruled that the claims against those entities that are on the verdict sheet for apportionment purposes claims would be controlled by Delaware law, as that had previously been agreed upon by the parties. The plaintiff maintained that the only defendant left is APM and therefore there will be no cross claim issue. However, the fact that APM is the only defendant left does not mean that there cannot be apportionment against other parties.

In its motion, the plaintiff cited, for the first time, to In Re: Asbestos: Allan Kapp. In Kapp, the plaintiff had extensive occupational exposure to asbestos in Delaware and extensive nonoccupational exposure in Maryland. The court’s Master allowed Maryland law to apply to the nonoccupational exposure and Delaware law to apply the occupational exposure at the summary judgment stage. In the Master’s decision, he concluded that applying the law of two jurisdictions was appropriate because only two jurisdictions were involved and because the plaintiff had a prior asbestos case where Delaware law applied to the occupational exposure. In the instant matter, the court was not persuaded that Kapp should control over the traditional analysis, which takes into account all factors including trial issues. Moreover, as Kapp involved a plaintiff who had had a prior asbestos claim applying Delaware law, the court declined to follow the Kapp decision and upheld its prior, traditional Petroski analysis, which leads to the conclusion that Delaware is the law applicable to this case. As such, the plaintiff’s claim is barred by Delaware’s exclusivity provision, and the Court therefore denied the plaintiff’s Motion for Reargument.

Read the full decision here.