IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
LESLEY R. JOHNSON,
Plaintiff,
v. C.A. No. Nl 5C-03-l47 ALR
ALIZE M. RAY, THE TERMINIX
INTERNATIONAL COMPANY
LIMITED PARTNERSHIP and
GEICO CASUALTY COMPANY,
Defendants.
ALIZE RAY,
Plaintiff,
V.
THE TERMINIX INTERNATIONAL
COMPANY LIMITED
PARTNERSHIP and GEICO
CASUALTY COMPANY,
Defendants.
Submitted: Apn`l 21, 2017
Decided: May 23, 2017
ORDER
Upon Defendant T he Termim'x International Co. Limited Partnership’s Motion
for Summary Judgment
DENIED WITHOUT PREJUDICE
This is a personal injury case arising from a motor vehicle accident. Upon
consideration of the motion for summary judgment filed by Defendant The
Terminix Intemational Co. Limited Partnership (“Terminix”); the opposition
thereto filed by Defendant GEICO Casualty Co. (“GEICO”); the facts, arguments,
and authorities set forth by the parties; the Superior Court Civil Rules; statutory
and decisional law; and the entire record in this case, the Court hereby finds as
follows:
l. Plaintiffs Lesley R. Johnson and Alize Ray (collectively “Plaintiffs”)
initiated this consolidated negligence action against Terminix and GEICO.l
Plaintiffs seek to recover damages for injuries arising from a hit-and-run motor
vehicle accident that occurred on April 4, 2014.
2. At the time of the collision, Plaintiffs allege that Plaintiffs were
parked in Ms. Johnson’s car on the south side of Sixth Street in Wilmington,
Delaware. Plaintiffs allege that Ms. Johnson Was in the driver seat of the car While
Ms. Ray was in the rear driver side passenger seat. Plaintiffs allege that an
unknown Terminix employee negligently struck Ms. Johnson’s car with a
Terminix truck while in the scope of his employment for Terminix. Plaintiffs
contend that the Terminix employee’s negligence caused Plaintiffs to suffer
physical and emotional injury.
3. On April 7, 2017, Terminix filed the motion for summary judgment
that is currently before the Court. Terminix asserts that, viewing the facts in a light
l Plaintiffs initially filed separate lawsuits arising from the Same incident. The
cases were consolidated by stipulation dated October 20, 2015.
2
most favorable to GEICO and Plaintiffs, there is insufficient evidence to establish
that the vehicle that struck Ms. Johnson’s car was operated by a Terminix
employee. Accordingly, Terminix contends that there are no genuine issues of
material fact and that judgment as a matter of law is appropriate
4. On April 21, 2017, GEICO filed a response in opposition to
Terminix’s motion for summary judgment. GEICO contends that there are
genuine issues of material fact regarding whether the collision was caused by a
Terminix employee in the scope his employment for Terminix.2
5. The Court may grant summary judgment only where the moving party
shows that there are no genuine issues of material fact and that it is entitled to
3 The moving party bears the initial burden of proof
judgment as a matter of law.
and, once that is met, the burden shifts to the non-moving party to show that
material issues of fact exist.4 At the summary judgment phase, the Court must
view the facts in a light most favorable to the non-moving party.5
6. The record supports GEICO’s position that there are genuine issues of
material fact regarding whether Ms. Johnson’s car was struck by a Terminix truck
operated by a Terminix employee. Specifically, a police report generated on the
2 Plaintiffs both adopt the position advanced in GEICO’s response to Terminix’s
motion for summary judgment
3 Super. Ct. Civ. R. 56(c).
4 Moore v. sizemore, 405 A.2d 679, 680-81 (Dei. 1979).
5 Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
3
day of the accident indicates that “a white truck, traveling east on 6th St. struck the
door [of Ms. Johnson’s car] and continued The truck was observed to have a
Terminex (sic) logo.”6 In Ms. Johnson’s recorded statement to GEICO dated April
14, 2014, Ms. Johnson indicates that a witness to the collision identified the
vehicle that struck Ms. Johnson’s car as a Terminix truck,7 In Ms. Ray’s response
to Ms. Johnson’s interrogatories, Ms. Ray indicates that “[t]his was an unavoidable
accident as the Terminex (sic) vehicle did not exercise due care and not only struck
the vehicle door as it was opened, but also fled the scene.”8 Finally, Ms. Johnson
has consistently testified that an eyewitness to the accident indicated that a
Terminix vehicle struck Ms. Johnson’s car.9
7. It is not this Court’s role to weigh evidence or resolve factual conflicts
10 Rather, “if a rational trier of fact could find
arising from pretrial submissions
any material fact that would favor the non-moving party in a determinative way . .
., summary judgment is inappropriate.”ll Upon viewing the evidence and drawing
6 GEICO’s Resp. Opp’n Summ. J., Ex. E at 4.
7 1a at EX. F, 3.
8 Id. at EX. i, 14.
9 see id. at Ex. G, 17_18; id. at EX. H, 27;1-2, 35:1_3.
10 Cerberus Int’l, Ltd. v. Apollo Management, L.P., 794 A.2d ll4l, 1149 (Del.
2002) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986)).
“ Espinoza v. zuckerberg, 124 A.zd 47, 53 (Dei. Ch. 2015) (Omission in originai)
(quoting Cerberus Int’l, Ltd., 794 A.2d at 1150). See also Buchanan v. TD Bank,
N.A., 2016 WL 3621102, at *2 (Del. Super. June 28, 2016) (noting that summary
judgment is rare in negligence actions “because the movant must show ‘not only
that there are no conflicts in the factual contentions of the parties but that, also, the
4
all reasonable inferences in a light most favorable to the non-moving parties,12 this
Court finds that a rational trier of fact could find that a Terminix employee
negligently struck Ms. Johnson’s car while in the scope of his employment for
Terminix. Accordingly, there are genuine issues of material fact and summary
judgment is inappropriate on this record.
NOW, THEREFORE, this 23rd day of May, 2017, the motion for
summary judgment filed by Defendant The Terminix Intemational Co.
Limited Partnership is hereby DENIED without prejudice.
IT IS SO ORDERED
/anr{rea L. Rocane[li'
The Honorable Andrea L. Rocanelli
only reasonable inference to be drawn from the contested facts are adverse to the
plaintiff.”’) (quoting Watson v. Shellhorn & Hl`ll, Inc., 221 A.2d 506, 508 (Del.
1966))); Rowe v. Estate of McGrory, 2013 WL 2296076, at *2 (Del. Super. Apr.
12, 2013) (emphasis and alteration in original) (“Moreover, ‘if it appears [to the
Court] that there is any reasonable hypothesis by which the non-moving party
might recover,’ the motion will be denied.”) (quoting Nationwide Mut. Ins. Co. v.
Flagg, 789 A.2d 586, 591-92 (Del. Super. 2001))).
12 See State Farm Mat. Aato. Ins. Co. v. Davis, 80 A.3d 628, 632 (Del. 2013)
(quoting Acro Extrusion Corp. v. Canningham, 810 A.2d 345, 347 (Del. 2002)).