Young v. O.A. Newton & Son Co.

Citation477 A.2d 1071
PartiesHansome YOUNG, Jr., Plaintiff, v. O.A. NEWTON & SON COMPANY, a Delaware corporation, and the Home Indemnity Company, a foreign corporation, Defendants. . Submitted:
Decision Date27 December 1983
CourtSuperior Court of Delaware

On Motion of defendant Home Indemnity Company for Summary Judgment--GRANTED.

Arthur Inden, and Barry M. Willoughby, of Young, Conaway, Stargatt & Taylor, Wilmington, for plaintiff.

Richard W. Pell and Anne L. Naczi, of Tybout, Redfearn, Casarino & Pell, Wilmington, for defendant Home Indemnity Company.

TAYLOR, Judge.

Plaintiff, while an employee of Draper Canning Company [employer], suffered a compensable industrial accident. Defendant Home Indemnity Company [Home] provided workmen's compensation insurance coverage for plaintiff's employer. In this suit, plaintiff has sued Home alleging that Home made regular inspections of employer's factory and was negligent in that it failed to (a) properly inspect said auger assembly for safety guards; (b) give warnings on the necessity of properly guarding said auger assembly; (c) provide instructions on the adequate guarding of said auger assembly; (d) warn potential users such as plaintiff of the dangers to be anticipated in the use of said auger assembly; (e) adequately examine said auger assembly to determine potential sources of danger for users such as plaintiff; (f) take appropriate steps to eliminate such dangers to plaintiff; (g) inspect and maintain said auger assembly properly; and (h) give adequate instructions on how to use said auger assembly.

I

Home has moved for summary judgment. Home's basis for the motion is that since it is the insurance carrier which provided the workmen's compensation coverage which applies to plaintiff, it is not liable to employee for plaintiff's injury arising out of and in the course of employment. Home points out that 19 Del.C. § 2304 provides that the Workmen's Compensation Law binds employers and employees "to the exclusion of all other rights and remedies". The broad impact of this provision on common law actions has been recognized by recent decisions of the Delaware Supreme Court. Kofron v. Amoco Chemical Corp., Del.Supr., 441 A.2d 226 (1982); Dickinson v. Eastern R.R. Builders, Del.Supr., 403 A.2d 717 (1979).

Home points to the definition of employer in 19 Del.C. § 2301(9) which reads:

"Employer" includes all those who employ others unless they are excluded from the application of this chapter by any provision of this subchapter, and if the employer is insured, the term shall include the insurer as far as practicable ...

Based upon that definition Home contends that it has the same immunity from common law tort actions as plaintiff's employer has.

Examination of the statutory history of the Delaware Workmen's Compensation Law, 19 Del.C. Chapter 23, shows that the initial statute which established Workmen's Compensation in Delaware in 1917 provided that the employer and its workmen's compensation carrier would "as far as practicable" be accorded the same treatment, 29 Del.Laws Ch. 233, 3193 pp. Section 135, and that the concept has been retained as the definitional guide for applying the Workmen's Compensation Law to the present time. 1 Under the Delaware statute the insurer is included (as far as practicable) in the definition of "employer". According to this definition, where the text uses the word "employer," it includes the insurer unless the text renders the inclusion of the insurer to be impracticable.

§ 2304 binds every employer and employee to pay and accept workmen's compensation "to the exclusion of all other rights and remedies". Nothing in that section indicates that the legislature did not intend to use the word "employer" in § 2304 as it had defined that term in § 2301(9). Nor has the Court's attention been directed to any consideration which makes it impracticable to include the carrier in the application of that section. The predecessor of § 2304 also is found in the original 1917 Act. 29 Del.Laws Ch. 233, 3193 d. Section 97 provided that every employer and employee who has elected to be bound by the Act is bound "to pay and accept [workmen's] compensation ... regardless of the question of negligence, and to the exclusion of all other rights and remedies ..." In 1941, when the elective feature of the Workmen's Compensation Law was eliminated and the Law was made generally mandatory, that statute established the language which now appears as § 2304 and repeated the prior exclusionary language which excluded "all other rights and remedies". 43 Del.Laws Ch. 269.

Plaintiff contends that the point of focus should be 19 Del.C. § 2363 which addresses the status of litigation against so-called third persons. In its present form § 2363(a) reads:

§ 2363. Third person liable for injury; right of employee to sue and seek compensation; right of employer and insurer to enforce liability; notice of action; settlement and release of claim and effect thereof; amount of recovery; reimbursement of employer or insurer; expenses of recovery; apportionment; compensation benefits.

(a) Where the injury for which compensation is payable under this chapter was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies, but such injured employee or his dependents or their personal representative may also proceed to enforce the liability of such third party for damages in accordance with this section. If the injured employee or his dependents or personal representative does not commence such action within 260 days after the occurrence of the personal injury, then the employer or its compensation insurance carrier may, within the period of time for the commencement of actions prescribed by statute, enforce the liability of such other person in the name of that person. Not less than 30 days before the commencement of suit by any party under this section, such party shall notify, by registered mail at their last known address, the Industrial Accident Board, the injured employee or, in the event of his death, his known dependents or personal representative or his known next of kin, his employer and the workmen's compensation insurance carrier. Any party in interest shall have a right to join in said suit.

The genesis of § 2363 is also found in the 1917 Workmen's Compensation Act. 29 Del.Laws Ch. 233, 3193 ll. Section 131 permitted an injured employee to have the option to collect workmen's compensation or to recover damages whenever the injuries "shall have been sustained under circumstances creating in some other person other than the employer, a legal liability to pay damages in respect thereto". If the employee claimed workmen's compensation the employer was subrogated to the employee's rights but any excess over the employer's payments was to be paid to the injured employee. This language was retained in substantially its original form until amended to its present form by 50 Del.Laws Ch. 339 in 1955. The major change made by that amendment was to require an injured employee to elect whether to take workmen's compensation or to sue the third party, thus permitting an injured employee to sue the third party even though he had collected workmen's compensation, provided the employee brought suit within 260 days after the injury. The description of the party whom the employee could sue was not changed (other than by a slight rearrangement of the words), except that the exclusion was extended to "a natural person in the same employ". Thus, the common subject of suit under § 2363 under the present and its predecessor language involves injury to an employee caused or sustained "under circumstances creating in some person other than" the employer, and the person who may be sued is referred to as "some person other than the employee" or "some other person than the employer" or as the "third person" or "third party". Nothing in the context of the provision defining who can be sued indicates any legislative intent not to apply the statutory definition of "employer," which includes insurer.

Plaintiff contends that the reference in § 2363 to "compensation insurance carrier" indicates that as used in that section (in its present form) the word "employer" did not include the insurer, since the § 2301 definition of "employer" included the insurer, and the reference to carrier in § 2363 would not have been needed. It has been noted above that the 1955 amendment made no material change in the portion of the section which described who could be sued. The real change was in describing who could sue and under what conditions. It is in this newly constructed language where the references to compensation insurance carrier appear. Since the thrust of that language was to assure a right of subrogation to obtain reimbursement for workmen's compensation which had been previously paid, it is understandable that the draftsman might mention those who would have made the workmen's compensation payment. In any event, the overriding consideration is that the language describing who could be sued so closely tracks the prior language that I find no apparent intent to ignore the definition in § 2301 since substantially the same language was subject to that definition before the 1955 amendment.

Considering § 2363 in the light of the definitional requirement that the insurance carrier be treated the same as the employer "as far as practicable," I find no practical factor or consideration which would bar treating the workmen's compensation carrier similarly to that accorded to the employee's literal employer.

Based on the foregoing considerations, I find that the compensation insurance carrier is not a person against whom suit is...

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