IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
THOMAS J. VERBITSKI and ) MAUREEN T. VERBITSKI, his wife, ) ) Plaintiffs, ) ) v. ) C.A. No. N18C-08-045 ALR ) DIAMOND STATE PORT ) CORPORATION, ) ) Defendant/ ) Third-Party Plaintiff, ) ) v. ) ) PACIFIC TRELLIS FRUIT, INC., ) ) Third-Party Defendant. )
Submitted: February 11, 2019 Decided: April 4, 2019
Upon Third-Party Defendant’s Motion to Dismiss GRANTED
MEMORANDUM OPINION
Joseph J. Rhoades, Esquire, Rhoades & Morrow, Attorneys at Law, Wilmington, Delaware, Attorney for Plaintiffs. David Primack, Esquire, McElroy Deutsch Mulvaney & Carpenter LLP, Wilmington, Delaware, Attorney for Defendant. Marc Sposato, Esquire, Marks, O’Neill, O’Brien, Doherty & Kelly, P.C., Wilmington, Delaware, Attorneys for Third-Party Defendant. Rocanelli, J. This case involves an employee’s claims of personal injury arising out of a
workplace accident which require the Court to address whether an employer can be
required to indemnify the employer’s landlord for the landlord’s own negligence.
The employer has filed a motion to dismiss the third-party complaint brought by the
employer’s landlord, asserting that the action is precluded by the workers’
compensation exclusivity doctrine. This is the Court’s decision on the employer’s
motion to dismiss the third-party complaint.
FACTUAL AND PROCEDURAL BACKGROUND
Thomas Verbitski (“Employee”) was injured at work and received workers’
compensation benefits from his employer Pacific Trellis Fruit, Inc. (“Employer”).
Employee’s workplace injury took place in the parking lot at the property leased by
Employer.1 Employee and his spouse filed a lawsuit against the owner of the
property, Diamond State Port Corporation (“Landlord”), alleging that Employee’s
injury was the result of negligence by Landlord because Employee fell when his foot
caught on an uncovered open pipe in the parking lot.
Landlord filed a third-party complaint for indemnity against Employer as
tenant on the grounds that Employer’s lease (“Lease”) requires Employer to
indemnify and defend Landlord. Employer requests dismissal of the third-party
1 For the purposes of the pending motion, there is no dispute that Employee was injured in the parking lot at his workplace. 1 claim by Landlord on the grounds that workers’ compensation benefits were
provided to Employee and therefore any claims against Employer are barred by the
exclusivity doctrine (“Workers’ Compensation Exclusivity Doctrine”). Landlord
responds that its claims are not barred because the Lease provides an express
provision for indemnity and the Lease imposes on Employer, not Landlord, an
obligation to maintain the parking lot. According to Landlord, Employer’s
contractual agreement to indemnify is an exception to the Workers’ Compensation
Exclusivity Doctrine.
STANDARD OF REVIEW
In deciding a motion to dismiss for failure to state a claim upon which relief
can be granted under Superior Court Rule of Civil Procedure 12(b)(6), the Court
shall accept all well-pleaded allegations as true and make all reasonable inferences
in favor of the non-moving party.2 Factual allegations, even if vague, are well
pleaded if they provide notice of the claim to the other party. 3 The Court should
deny the motion if the claimant “may recover under any reasonably conceivable set
of circumstances susceptible of proof.”4
2 Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998); Spence v. Funk, 396 A.2d 967, 968 (Del. 1978). 3 Spence, 396 A.2d at 968. 4 Id. 2 DISCUSSION
It is well established that an employer who provides worker’s compensation
to its employees cannot be sued for negligence.5 The Workers’ Compensation
Exclusivity Doctrine provides that workers’ compensation constitutes the sole
remedy for personal injury “by accident arising out of and in the course of
employment.”6
Delaware has recognized an exception to the Workers’ Compensation
Exclusivity Doctrine when an employer has contracted to indemnify another.7 In
other words, an employer may expressly agree to indemnify another even when the
employer cannot be sued directly by its employee. In Bar Steel Const. Corp. v. Read,
an employee of a general contractor was killed and the employee’s widow was paid
workers’ compensation benefits.8 The widow and the workers’ compensation
insurance company sued the subcontractor who was responsible for erecting the steel
structure upon which the employee was killed, arguing that the subcontractor was
negligent.9 The Delaware Supreme Court held that the indemnification agreement
between the negligent subcontractor and the employer required the subcontractor to
5 Kofron v. Amoco Chemicals Corp., 441 A.2d 226, 231 (Del. 1982). 6 19 Del. C. § 2304. 7 Bar Steel Const. Corp. v. Read, 227 A.2d 678, 680 (Del. 1971). 8 Id. at 679. 9 Id. 3 indemnify for the workers’ compensation benefits paid.10 The Court emphasized
that contract law, and not workers’ compensation law, directed the result, and
because the widow still recovered the benefits to which she was entitled, the
indemnification provision was not contrary to public policy.11
In Precision Air, Inc. v. Standard Chlorine of Del., the Delaware Supreme
Court again focused on an employer’s contractual agreement to indemnify to defeat
the protections that would otherwise be available under the Workers’ Compensation
Exclusivity Doctrine.12 The Court clarified that public policy is not violated by such
indemnity agreements as long as the indemnity is based on the employer’s own
negligence.13 The Court held “[a]n employer cannot be held liable for
indemnification, however, where there is no allegation that the employer acted
improperly, for in such a scenario an indemnification obligation predicated on such
improper conduct never becomes applicable.”14
Therefore, in the case before the Court, Employer may be required to
indemnify Landlord per the Lease, but only if Employer is responsible for
10 Id. 11 Id. 12 654 A.2d 403, 407-08 (Del. 1995) (“[T]he purposes of [the Workers’ Compensation Exclusivity Doctrine]…include eliminating the employer’s risk of being held liable for a tort-based judgment after having paid compensation benefits.”). 13 Id. at 407. 14 Id. at 408 (citations omitted). 4 maintaining the parking lot where Employee’s injury took place. On the other hand,
if the Lease provides that it is Landlord’s responsibility to maintain the parking lot,
then public policy underlying the Workers’ Compensation Exclusivity Doctrine
prevents Landlord from requiring indemnity from Employer for Landlord’s own
negligence. An employer who provides workers’ compensation benefits and is not
negligent cannot be required to indemnify a negligent party even when the employer
has expressly agreed to indemnify.15 Rather, only when the employer itself is
negligent will contractual indemnity defeat the Workers’ Compensation Exclusivity
Doctrine.16
This Court looks to the Lease to determine whether maintenance of the
parking lot was the responsibility of the Landlord or the Employer. Section 8 of the
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
THOMAS J. VERBITSKI and ) MAUREEN T. VERBITSKI, his wife, ) ) Plaintiffs, ) ) v. ) C.A. No. N18C-08-045 ALR ) DIAMOND STATE PORT ) CORPORATION, ) ) Defendant/ ) Third-Party Plaintiff, ) ) v. ) ) PACIFIC TRELLIS FRUIT, INC., ) ) Third-Party Defendant. )
Submitted: February 11, 2019 Decided: April 4, 2019
Upon Third-Party Defendant’s Motion to Dismiss GRANTED
MEMORANDUM OPINION
Joseph J. Rhoades, Esquire, Rhoades & Morrow, Attorneys at Law, Wilmington, Delaware, Attorney for Plaintiffs. David Primack, Esquire, McElroy Deutsch Mulvaney & Carpenter LLP, Wilmington, Delaware, Attorney for Defendant. Marc Sposato, Esquire, Marks, O’Neill, O’Brien, Doherty & Kelly, P.C., Wilmington, Delaware, Attorneys for Third-Party Defendant. Rocanelli, J. This case involves an employee’s claims of personal injury arising out of a
workplace accident which require the Court to address whether an employer can be
required to indemnify the employer’s landlord for the landlord’s own negligence.
The employer has filed a motion to dismiss the third-party complaint brought by the
employer’s landlord, asserting that the action is precluded by the workers’
compensation exclusivity doctrine. This is the Court’s decision on the employer’s
motion to dismiss the third-party complaint.
FACTUAL AND PROCEDURAL BACKGROUND
Thomas Verbitski (“Employee”) was injured at work and received workers’
compensation benefits from his employer Pacific Trellis Fruit, Inc. (“Employer”).
Employee’s workplace injury took place in the parking lot at the property leased by
Employer.1 Employee and his spouse filed a lawsuit against the owner of the
property, Diamond State Port Corporation (“Landlord”), alleging that Employee’s
injury was the result of negligence by Landlord because Employee fell when his foot
caught on an uncovered open pipe in the parking lot.
Landlord filed a third-party complaint for indemnity against Employer as
tenant on the grounds that Employer’s lease (“Lease”) requires Employer to
indemnify and defend Landlord. Employer requests dismissal of the third-party
1 For the purposes of the pending motion, there is no dispute that Employee was injured in the parking lot at his workplace. 1 claim by Landlord on the grounds that workers’ compensation benefits were
provided to Employee and therefore any claims against Employer are barred by the
exclusivity doctrine (“Workers’ Compensation Exclusivity Doctrine”). Landlord
responds that its claims are not barred because the Lease provides an express
provision for indemnity and the Lease imposes on Employer, not Landlord, an
obligation to maintain the parking lot. According to Landlord, Employer’s
contractual agreement to indemnify is an exception to the Workers’ Compensation
Exclusivity Doctrine.
STANDARD OF REVIEW
In deciding a motion to dismiss for failure to state a claim upon which relief
can be granted under Superior Court Rule of Civil Procedure 12(b)(6), the Court
shall accept all well-pleaded allegations as true and make all reasonable inferences
in favor of the non-moving party.2 Factual allegations, even if vague, are well
pleaded if they provide notice of the claim to the other party. 3 The Court should
deny the motion if the claimant “may recover under any reasonably conceivable set
of circumstances susceptible of proof.”4
2 Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998); Spence v. Funk, 396 A.2d 967, 968 (Del. 1978). 3 Spence, 396 A.2d at 968. 4 Id. 2 DISCUSSION
It is well established that an employer who provides worker’s compensation
to its employees cannot be sued for negligence.5 The Workers’ Compensation
Exclusivity Doctrine provides that workers’ compensation constitutes the sole
remedy for personal injury “by accident arising out of and in the course of
employment.”6
Delaware has recognized an exception to the Workers’ Compensation
Exclusivity Doctrine when an employer has contracted to indemnify another.7 In
other words, an employer may expressly agree to indemnify another even when the
employer cannot be sued directly by its employee. In Bar Steel Const. Corp. v. Read,
an employee of a general contractor was killed and the employee’s widow was paid
workers’ compensation benefits.8 The widow and the workers’ compensation
insurance company sued the subcontractor who was responsible for erecting the steel
structure upon which the employee was killed, arguing that the subcontractor was
negligent.9 The Delaware Supreme Court held that the indemnification agreement
between the negligent subcontractor and the employer required the subcontractor to
5 Kofron v. Amoco Chemicals Corp., 441 A.2d 226, 231 (Del. 1982). 6 19 Del. C. § 2304. 7 Bar Steel Const. Corp. v. Read, 227 A.2d 678, 680 (Del. 1971). 8 Id. at 679. 9 Id. 3 indemnify for the workers’ compensation benefits paid.10 The Court emphasized
that contract law, and not workers’ compensation law, directed the result, and
because the widow still recovered the benefits to which she was entitled, the
indemnification provision was not contrary to public policy.11
In Precision Air, Inc. v. Standard Chlorine of Del., the Delaware Supreme
Court again focused on an employer’s contractual agreement to indemnify to defeat
the protections that would otherwise be available under the Workers’ Compensation
Exclusivity Doctrine.12 The Court clarified that public policy is not violated by such
indemnity agreements as long as the indemnity is based on the employer’s own
negligence.13 The Court held “[a]n employer cannot be held liable for
indemnification, however, where there is no allegation that the employer acted
improperly, for in such a scenario an indemnification obligation predicated on such
improper conduct never becomes applicable.”14
Therefore, in the case before the Court, Employer may be required to
indemnify Landlord per the Lease, but only if Employer is responsible for
10 Id. 11 Id. 12 654 A.2d 403, 407-08 (Del. 1995) (“[T]he purposes of [the Workers’ Compensation Exclusivity Doctrine]…include eliminating the employer’s risk of being held liable for a tort-based judgment after having paid compensation benefits.”). 13 Id. at 407. 14 Id. at 408 (citations omitted). 4 maintaining the parking lot where Employee’s injury took place. On the other hand,
if the Lease provides that it is Landlord’s responsibility to maintain the parking lot,
then public policy underlying the Workers’ Compensation Exclusivity Doctrine
prevents Landlord from requiring indemnity from Employer for Landlord’s own
negligence. An employer who provides workers’ compensation benefits and is not
negligent cannot be required to indemnify a negligent party even when the employer
has expressly agreed to indemnify.15 Rather, only when the employer itself is
negligent will contractual indemnity defeat the Workers’ Compensation Exclusivity
Doctrine.16
This Court looks to the Lease to determine whether maintenance of the
parking lot was the responsibility of the Landlord or the Employer. Section 8 of the
Lease addresses “Maintenance, Repair and Alteration” and sets forth the respective
obligations of Employer and Landlord. Section 8.1(a) specifies Employer’s
obligations in relevant part, as follows:
[E]xcept for that portion of the Premises to be maintained by Landlord as provided in Section 8.2, Tenant shall, at Tenant’s expense, maintain in good repair, order and serviceable condition the Premises and every part thereof excluding plumbing, ventilation, heating, air conditioning and electrical systems, exterior doors, and all walkways, driveways, parking lots, landscaping, fences and signs which are on or adjacent to the Premises.17
15 Id. at 407. 16 Id. at 408. 17 Pl. Ex. C at 5 (emphasis added). 5 Accordingly, maintenance of the parking lot is not the responsibility of the
Employer.18
If Employer has no duty to maintain the parking lot, then any dangerous
condition existing in the parking lot cannot be attributed to Employer’s negligence.19
Therefore, even though Employer contracted to indemnify Landlord, public policy
demands that said indemnity provision is not applicable to claims made by Employee
against Landlord and which are not attributed to Employer’s negligence. Having
provided worker’s compensation benefits to Employee, Employer is entitled to the
protections of the Workers’ Compensation Exclusivity Doctrine. Landlord has
failed to state a claim upon which relief can be granted as Employer is not obligated
to indemnify Landlord for Landlord’s negligence. Therefore, the third-party
complaint by Landlord against Employer must be dismissed.
18 Employer is one of several tenants in the building leased by Landlord. Exhibit A to the Lease is a schematic diagram of the leased premises and depicts that Employer is one of the two tenants with the smallest square footage on the premises. 19 Fritz v. Yeager, 790 A.2d 469, 471 (Del. 2002) (“In order to be held liable in negligence, a defendant must have been under a legal obligation—a duty—to protect the plaintiff from the risk of harm which caused his injuries.”). 6 NOW, THEREFORE, the Motion to Dismiss by Third-Party Defendant,
Pacific Trellis Fruit, Inc. is hereby GRANTED. The Third-Party Complaint is
hereby DISMISSED.
IT IS SO ORDERED.
Andrea L. Rocanelli ______________________________________________________ The Honorable Andrea L. Rocanelli