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holding that delay of one year "despite knowledge . . . of the pending action" was unreasonable and rendered application to intervene untimely
Summary of this case from In re Reinz Wis. Gasket, LLCOpinion
C.A. No. 08C-07-220 RRC.
Submitted: December 21, 2009.
Decided: February 12, 2010.
On Plaintiff's Motion for Summary Judgment. GRANTED.
On National Grange Mutual Insurance Company's Motion to Intervene. DENIED.
Andres G. de Cos, Esquire, Swartz Campbell LLC, Wilmington, Delaware, Attorney for Plaintiff.
Matthew M. Bartkowski, Esquire, Kimmel Carter Roman Peltz, P.A., Newark, Delaware, Attorney for Defendants, Eartha Speed and Harvey Speed.
Ms. Evelyn Virula, New Castle, Delaware.
Michael J. Logullo, Esquire, Shelsby Leoni, Stanton, Delaware, Attorney for Intervenor National Grange Insurance Company.
Dear Mr. de Cos, Mr. Bartkowski, Ms. Virula, and Mr. Logullo:
INTRODUCTION
This motion for summary judgment stems from a declaratory judgment action filed by Plaintiff to determine whether Plaintiff must indemnify Darwin Villatoro under an insurance policy purchased by Defendant, Evelyn Virula, in connection with a January 3, 2008 automobile accident at which time Darwin Villatoro, driving Ms. Virula's automobile, allegedly caused injury to Eartha Speed and Harvey Speed ("the Speed Defendants"). The discovery period is concluded and there are no genuine issues of material fact; the only "fact" (not disputed) that might possibly demonstrate that Darwin Villatoro was potentially covered under Evelyn Virula's insurance policy is that the "Declarations" page in the policy names Darwin Villatoro's father, Porfirio Villatoro, in the "Driver Information" section. The Speed Defendants now argue in opposition to Plaintiff's motion for summary judgment that that "fact" establishes that Darwin was entitled to coverage under the insurance policy.
Although Harvey Speed was not in the vehicle at the time of the crash, he has filed a loss of consortium claim in a related action. ( Earth Speed and Harvey Speed v. Darwin Vilatoro, Evelyn Virula, and NGM Insurance Company, C.A. No. 09C-06-038).
For the following reasons, including particularly the procedural history of this case, this Court holds that the Speed Defendants have not adduced sufficient facts to preclude summary against them in this permissive use case. Although this holding, thereby, implicitly recognizes that Darwin Villatoro's use of the vehicle was a "major deviation" (often a question of fact resolved by a jury), the Speed Defendants have not offered any facts that contradict the sworn testimony of Ms. Virula. Therefore, Plaintiff's motion for summary judgment is GRANTED.
See O'Neal v. State Farm Mut. Ins. Co., 977 A.2d 326 (Del. 2008).
Ms. Virula testified at deposition that Darwin did not have permission to use her vehicle and that she specifically told Darwin not to use the vehicle. The Speed Defendants have offered no evidence to rebut this statement. See Pl. Mot. for Summ. J. Ex. D at 10.
FACTS and PROCEDURAL HISTORY
The circumstances surrounding the accident between Darwin Villatoro and Eartha Speed are virtually undisputed. On January 3, 2008, Darwin Villatoro, age seventeen at the time, allegedly ran a red light at the intersection of Eagle Run Road and Route 273 and hit a vehicle driven by Eartha Speed thereby causing her injury. The vehicle driven by Darwin Villatoro was owned by Evelyn Virula. Ms. Virula maintained insurance on her vehicle through an insurance policy purchased from Plaintiff.
Defs. Resp. to Summ. J. at ¶ 1.
Pl. Mot. for Summ. J. Ex. D. at 5.
Defs. Resp. to Summ. J. Ex. A.
Although only Ms. Virula is named as the "Insured" in the policy, Darwin Villatoro's father, Porfirio, is listed in the "Driver Information" section. Ms. Virula knew Porfirio from church, and Ms. Virula allowed Porfirio to use her vehicle frequently to get to and from work. However, Ms. Virula stated in her sworn deposition that she never gave Darwin permission to use her vehicle.
Id.
Pl. Mot. for Summ. J. Ex. D. at 7-8.
Q. Did [you] ever give Darwin permission to drive this car?
A. No, definitely not. And neither did Porfirio.
Q. Why not? Why didn't [you] give him permission to drive the car?
A. No, because he didn't have a license and he was underage, he didn't have a permit. And what I was trying was to help Porfirio to get to work and he could take care of things and get his own.
* * *
Q. Did you ever tell Darwin specifically that he could not drive your car?
A. Yes. And so did Porfirio and his mother.
THE PARTIES' CONTENTIONS
The period for discovery having ended, Plaintiff has now filed its instant motion for summary judgment asserting that there is insufficient evidence in the record, as a matter of law, to establish that Darwin Villatoro was permitted by Evelyn Virula to use the vehicle. Plaintiff asserts that there is no evidence whatsoever establishing that Porfirio might have given his son permission to use the vehicle without separate permission from Ms. Virula. Therefore, Plaintiff asserts that there is no genuine issue of material fact preventing summary judgment because Darwin Villatoro's use of the vehicle was, as a matter of law, a "major deviation" from the vehicle's purpose of transporting Porfirio to work and that, therefore, Plaintiff has no duty to indemnify Darwin Villatoro.Plaintiff asserts that, although Plaintiff had the initial burden of proof upon filing the summary judgment motion, that burden has now shifted to Defendants because Plaintiff has alleged there is no evidence in the record that would preclude summary judgment. Plaintiff further asserts that "Defendants' response makes absolutely no claim and cites absolutely no evidence stating that Darwin Villatoro had permission to use the vehicle." Further, Plaintiff argues that "[t]he factual record that was created after 15 months of open discovery indicates nothing other than the 17 year old, unlicensed Darwin Villatoro took the car without the permission of anyone, for a joy ride, and apologized and admitted this to police, parents, and the car's owner." Thus, Plaintiff argues, the Speed Defendants must accept the consequences of their tactical decision to not undertake appropriate discovery within the prescribed period.
Pl. Reply at ¶ 5.
Id.
In response, the Speed Defendants assert that Porfirio's name in the "Declarations" demonstrates that Darwin Villatoro was insured because coverage extends to:
Anyone using, with your permission, a car described on the declarations page, or any additional, replacement or substitute car, has the same rights and obligations that you have under this insurance. . .
You, Your; means the person named on the declarations page and that person's husband or wife if a resident of the same household. It also means a member of the family who is a resident of the household and who doesn't own a car or whose spouse doesn't own a car.
Id.
The Speed Defendants argue that the policy establishes that Darwin did not need either Ms. Virula's permission or his father's permission to drive the car and should be covered under the policy because he was a member of Porfirio's family and lived in the same house as his father.
Pro se Defendant, Evelyn Virula, has not filed a response to Plaintiff's instant motion for summary judgment. Plaintiff's earlier motion for default judgment against Darwin Villatoro was granted on March 10, 2009.
Additionally, the Speed Defendants argue that Ms. Virula's credibility needs to be determined by a jury and that further inquiry into the facts is necessary (even though the discovery period is concluded). The Speed Defendants argue that this Court should, therefore, deny Plaintiff's motion for summary judgment and reopen discovery to "clarify the application of law to the circumstances."
See Ebersole v. Lowengrub, 180 A.2d 467 (Del. 1962).
Nationwide Mut. Fire Ins. Co. v. Smith, 1998 WL 433941, at * 1 (Del. Super) (citing Ebersole, 180 A.2d at 467).
Prior to oral argument on this motion but after the discovery period had expired, the Speed Defendants, by letter to the Court dated November 3, 2009, requested additional time to undertake discovery (the time for discovery had expired on September 30, 2009). This Court reserved decision on the Speed Defendants' request until after argument on Plaintiff's motion for summary judgment.
After Plaintiff's motion for summary judgment was filed, National Grange Mutual Insurance Company ("National Grange") filed a motion to intervene on November 5, 2009. In that motion, National Grange asserts an underlying interest in the action (National Grange is the Speed Defendants' uninsured motorist carrier), and also requests that this Court modify the trial scheduling order to permit additional discovery.
In response to National Grange's motion to intervene, Plaintiff argues that that motion is "untimely." Plaintiff alleges that National Grange has been aware of Plaintiff's declaratory judgment action since it was filed in July 2008. Plaintiff argues that National Grange's motion (filed more than one year after the filing of the complaint) is untimely and should be denied. Additionally, Plaintiff vigorously opposes any opportunity to extend discovery because National Grange was "aware of [the] deposition, [of Ms. Virula] and contacted [Mr. de Cos] on April 30, 2009, to ask how it went. . . ." This Court scheduled oral argument on National Grange's request to intervene at the same time as oral argument on Plaintiff's motion for summary judgment.
Resp. to Mot. to Intervene at ¶ 5.
At oral argument, the Speed Defendants conceded that they had made an initial tactical decision not to contest this lawsuit or to engage in protracted discovery prior to the discovery deadline.
THE COURT: Why wasn't a further record created during the discovery period?
MR. BARTKOWSKI: From the defendant's point of view?
THE COURT: You represent just the Speeds on this; is that correct?
MR. BARTKOWSKI: Sure, and from our perspective, Your Honor, like I indicated in the prior motion, our initial intention wasn't to file any opposition to this.
THE COURT: Any opposition to what?
MR. BARTKOWSKI: To the Peak's motion for summary judgment — well, Peak's declaratory judgment action as well as a summary judgment motion, it wasn't our intention to do so.
* * *
THE COURT: When was it procedurally that you, which is to say the Speeds, decided to oppose the action brought by Peak?
MR. BARTKOWSKI: It was —
THE COURT: Was it after the discovery period concluded?
MR. BARTKOWSKI: I think it was the same week that discovery period had concluded and I think I sent a letter to Your Honor, which was the start of the issue before about trying to extend the discovery in the prior motion, that was kind of around the same time that the Speeds decided.
THE BURDEN OF PROOF
In a motion for summary judgment, the moving party bears the burden of proving "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." "Although the initial burden is on the summary judgment movant to show the absence of a genuine issue of material fact, `the burden on the moving party may be discharged by . . . pointing out to the [] court-that there is an absence of evidence to support the nonmoving party's case' when the nonmoving party bears the ultimate burden of proof." Thus, "this Court [must] examine the record to determine whether, viewing the facts in the light most favorable to the nonmoving party, the moving party has demonstrated that there are no material issues of fact in dispute and that the moving party is entitled to judgment as a matter of law."DISCUSSION
Here, the Plaintiffs have discharged their burden of proving "the absence of a genuine issue of material fact" because they have pointed out the absence of any evidence to support the Speed Defendants' position. Therefore, the burden shifted to the Speed Defendants to demonstrate facts in the record that would preclude summary judgment.Although the Speed Defendants assert that the language of the insurance policy is enough to preclude summary judgment, the Court notes that this argument was never raised as an affirmative defense in their Answer, and, notably, the Speed Defendants did not file their own motion for partial summary judgment seeking an interpretation of the policy language in their favor as they theoretically could have done if they thought that their legal position had merit.
The policy says that "you" is defined to mean " the person named," (emphasis added) but does not say "any person named." The policy lists Evelyn Virula as the "Insured." Porfirio is only listed under the section entitled "Driver Information" and is not listed as an "Insured." Although Evelyn Virula voluntarily increased her premium by disclosing that she was granting permission to someone outside of her household to use her car, this disclosure does not automatically make Porfirio a named "Insured" with the ability to grant his son permission to drive Ms. Virula's vehicle.
The Speed Defendants have proffered no additional facts (other than the language of the insurance policy) to rebut Ms. Virula's assertions. Thus, the Speed Defendants have failed to satisfy their burden of proof by demonstrating that there is evidence in the record that would create a dispute as to a material fact.
Finally, this Court will not grant additional discovery to the Speed Defendants or to National Grange. Although several Delaware cases have stated that "[s]ummary judgment will not be granted if . . . it seems desirable to inquire more thoroughly into the facts in order to clarify the application of law to the circumstances[,]" it is not appropriate in this case to inquire further into the facts of this particular case given its particular procedural history.
Nationwide Mut. Fire Ins. Co. v. Smith, 1998 WL 433941, at * 1 (Del. Super) (citing Ebersole, 180 A.2d at 467).
The Court finds significant the fact that the Speed Defendants made an early tactical decision not to undertake appropriate discovery in the discovery time period allotted. Only after Plaintiff filed its motion for summary judgment (which the Speed Defendants almost certainly must have expected to be filed) on October 2, 2009 did the Speed Defendants then request, in an untimely manner, additional time for discovery (after the deadline to take discovery had expired).
Applications to modify a trial scheduling order regarding modification of the discovery deadline should be made before the close of discovery. See Drejka v. Hitchens Tire Service, Inc., 2009 WL 1813761, at * 3 (Del. Super.) (stating that "[t]rial scheduling orders are one crucial means by which this [Court manages its own affairs], and violation of the discovery deadlines established in a trial scheduling order can result in sanctions.").
This Court has previously recognized the importance of adherence to the trial scheduling order. The trial scheduling order reinforces the Court's ability "to manage its own affairs and to achieve the orderly and expeditious disposition of its business." In this particular case, the Court will not allow additional discovery because the Speed Defendants made a conscious decision not to undertake discovery within the allotted time frame and have failed to demonstrate any satisfactory reason as to why they did not undertake further discovery within the time prescribed by this Court.
Id.
Gebhart v. Ernest DiSabatino Sons, Inc., 264 A.2d 157, 159 (Del. 1970).
The trial in this case is expected to begin on April 12, 2010 (this date was agreed to by both parties and confirmed in the trial scheduling order entered on July 10, 2009). Reopening discovery would have the effect of requiring the trial to be rescheduled.
The Court recognizes that, in many cases, the issue of whether there was a major or minor deviation will be a jury question. However, the unique procedural history of this case, including the Speed Defendants' concession that they initially made a tactical decision not to contest Plaintiff's motion that they knew or should have known would be filed, persuades the Court that the Speed Defendants have not met their shifted burden of proof pursuant to Celotex v. Catrett. The Speed Defendants have failed to "designate `specific facts showing that there is a genuine issue for trial.'"
See O'Neal, 977 A.2d at 326.
477 U.S. 317, 324 (1986) (holding that "a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.' Such a motion, whether or not accompanied by affidavits, will be `made and supported as provided in this rule,' and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'"). See Burkhart, 602 A.2d at 59 (adopting the Celotex reasoning and stating "[t]he Superior Court's civil rules are patterned upon the Federal Rules of Civil Procedure.").
Id.
Additionally, and as an alternative basis for not re-opening the discovery period, this Court will not allow additional time for discovery pursuant to Ebersole because there is no sufficient indication that the Speed Defendants would be able to produce additional facts favorable to their position if given more time. Additionally, the Speed Defendants did not actively conduct discovery within the prescribed time and must accept the consequences of this "tactical decision."
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
Finally, this Court will not grant National Grange's request to intervene. Pursuant to Superior Court Rule 24, a party is permitted to intervene "[u]pon a timely application." National Grange waited over one year to file its motion despite knowledge since of the pending action. At oral argument, National Grange conceded that although National Grange may have an interest in this case, it also, like the Speed Defendants, made a tactical decision not to intervene at an earlier date and has provided no adequate reason for the delay. National Grange also had knowledge of the deposition of Ms. Virula and chose to do nothing.
Sup. Ct. Civ. R. 24 (emphasis added).
Therefore, for all the reasons stated above, Plaintiff's motion for summary judgment is GRANTED. National Grange's Motion to intervene is DENIED as untimely. As a result of this decision, the pretrial conference and the trial in this case are cancelled.