Adam McMillan Constructions, LLC v. Desousa

• Court: Supreme Court of Delaware
• Decided: January 13, 2022
• Docket: 411, 2021
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

ADAM MCMILLAN CONSTRUCION, § LLC, § § No. 411, 2021 Defendant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § C.A. No. 17C-09-109 JACINTO DESOUSA, § § Plaintiff Below, § Appellee, § § and § § D.R. HORTON INC.—NEW JERSEY, § a foreign corporation, § § Co-Defendant Below. §

Submitted: January 5, 2022 Decided: January 13, 2022

Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.

ORDER

After careful consideration of the notice of interlocutory appeal, the supplemental

notice of interlocutory appeal, and the exhibits attached thereto, it appears to the Court that:

(1) The defendant below-appellant, Adam McMillan Construction, LLC

(“AMC"), has petitioned this Court, pursuant to Supreme Court Rule 42, to accept an

interlocutory appeal from the Superior Court’s order denying its motion in limine.1

1 DeSousa v. Station Builders, Inc., 2021 WL 5754745 (Del. Super. Ct. Dec. 3, 2021). (2) After suffering injuries while working on a construction site, the plaintiff

below-appellee, Jacinto DeSousa, filed a personal injury action against Station Builders,

Inc., which had engaged DeSousa’s employer; AMC, the general contractor, which had

hired Station Builders; and D.R. Horton, Inc.—New Jersey, the property owner.2 On

October 8, 2019, the Superior Court denied AMC’s motion to dismiss.3 The Superior

Court held that AMC could not rely on 19 Del. C. § 2304, the exclusivity provision of the

Workers’ Compensation Act, because AMC was not deemed to be DeSousa’s employer

and could be sued in tort.4

(3) On May 14, 2020, AMC filed a motion in limine to prohibit DeSousa from

introducing evidence of the medical specials and indemnity payments made to him by

Liberty Mutual Insurance Company.5 The parties agreed that AMC was deemed to have

provided workers’ compensation insurance coverage for DeSousa through Liberty

Mutual.6 The Superior Court denied the motion in limine, finding it would require

adjudication of the rights of non-party Liberty Mutual, which had a statutory right to

reimbursement from any recovery awarded to DeSousa, on an incomplete record.7 The

court also found it would be unfair if DeSousa were “subjected to paying the lien to Liberty

Mutual from his recovery to the extent his recovery exceeded the lien, without having had

2 Id. at *1. 3 DeSousa v. Station Builders, Inc. 2019 WL 5394166 (Del. Super. Ct. Oct. 8, 2019). 4 Id. at *3-4. 5 DeSousa, 2021 WL 5754745, at *1. 6 Id. 7 Id. at *3. 2 the opportunity to present those elements of his damages to the jury.”8 By contrast,

admission of the evidence would place AMC “in no different position than any other

tortfeasor in an action where a plaintiff’s recovery is subject to a workers’ compensation

lien.”9

(4) On December 13, 2021, AMC filed a timely application for certification of

an interlocutory appeal. No one filed a response to the application. On December 3, 2021,

the Superior Court denied the application for certification.10

(5) Addressing the Rule 42(b)(iii) criteria AMC relied upon for certification, the

Superior Court disagreed with AMC’s contention that the interlocutory order resolved a

question of law for the first time in Delaware (Rule 42(b)(iii)(A)).11 Even assuming the

order did resolve such a question, the Superior Court found the issue to be appealed

unexceptional and not a substantial issue of material importance meriting appellate review

before final judgment.12 To the extent the order construed or applied a statute (Rule

42(b)(iii)(C)), the court concluded that this construction or application did not have to be

settled before a final judgment.13 Finally, the Superior Court accepted AMC’s argument

that resolution of the issue on interlocutory appeal could significantly affect the disposition

8 Id. 9 Id. 10 DeSousa v. Station Builders, Inc., 2022 WL 29861 (Del. Super. Ct. Jan 3, 2022). 11 Id. at *1. 12 Id. 13 Id. at *2. 3 of the lawsuit and allow the parties to avoid the burdens of trial, but found this was true in

most interlocutory appeals and insufficient to merit certification.14

(6) We agree that interlocutory review is not warranted in this case. Applications

for interlocutory review are addressed to the sound discretion of the Court.15 In the exercise

of its discretion and giving due weight to the trial court’s analysis, this Court has concluded

that the application for interlocutory review does not meet the strict standards for

certification under Supreme Court Rule 42(b). Exceptional circumstances that would merit

interlocutory review of the Superior Court’s interlocutory opinion do not exist in this

case,16 and the potential benefits of interlocutory review do not outweigh the inefficiency,

disruption, and probable costs caused by an interlocutory appeal.17

NOW, THEREFORE, IT IS ORDERED that the interlocutory appeal is

REFUSED.

BY THE COURT:

/s/ Karen L. Valihura Justice

14 Id. 15 Supr. Ct. R. 42(d)(v). 16 Supr. Ct. R. 42(b)(ii). 17 Supr. Ct. R. 42(b)(iii). 4