Benson v. Amguard Insurance Company

REPLY BRIEF re MOTION for Summary Judgment Pursuant to Rule 56

D. Del.April 28, 2017

119573549_1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JALEN BENSON, Plaintiff, v. AMGUARD INSURANCE COMPANY, Defendant. ) ) ) ) ) ) ) ) ) ) ) C.A. No. 1:16-cv-00196-LPS DEFENDANT AMGUARD INSURANCE COMPANY’S REPLY BRIEF IN FURTHER SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Dated: April 28, 2017 DILWORTH PAXSON LLP Thaddeus J. Weaver (Id. No. 2790) One Customs House 704 King Street, Suite 500 P.O. Box 1031 Wilmington, DE 19899 (302) 571-8867 (telephone) (302) 571-8875 (facsimile) tweaver@dilworthlaw.com Attorneys for Defendant AmGUARD Insurance Company Case 1:16-cv-00196-LPS Document 46 Filed 04/28/17 Page 1 of 14 PageID #: 1087 i 119573549_1 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................................ii ARGUMENT.........................................................................................................................1 A. Plaintiff’s efforts to recast the underlying position of AmGUARD and the factual record before the IAB do not create a genuine issue of material fact, and AmGUARD’s Motion for Summary Judgment should be granted as to Plaintiff’s claim for “bad faith” breach of contract, and punitive damages................................1 1. AmGUARD’s position before the IAB was within Delaware’s Worker’s Compensation framework.....................................................................1 2. Plaintiff’s erroneous characterization of the record..............................................2 The Request for a Defense Medical Examination ................................................2 The Toledo-Rodriguez Claim ...............................................................................3 Plaintiff’s “Pecuniary Interest” Argument............................................................4 The timing and language of the July 9, 2015 denial letter....................................6 Plaintiff’s use of hearsay and other “non-evidence”............................................7 B. Plaintiff has failed to allege a cause of action under 6 Del. C. §2513 ........................8 C. Plaintiff’s Declaratory Judgment claim should be dismissed because there is no “present uncertainty” to be addressed....................................................................8 D. Plaintiff has failed to set forth a claim for Infliction of Emotional Distress...............9 CONCLUSION......................................................................................................................10 Case 1:16-cv-00196-LPS Document 46 Filed 04/28/17 Page 2 of 14 PageID #: 1088 ii 119573549_1 TABLE OF AUTHORITIES Cases Bank of Delaware v. Allstate Ins. Co., 448 A.2d 231 (Del. Super. 1985) .........................................9 Benson v. Seaford Ice, Inc., Del. I.A.B., Hearing No. 1428838 (Oct. 15, 2015)............................................................................ 6 Christiana Care Health Services, Inc. v. PMSLIC Ins. Co., 2015 WL 6675537 (D. Del., Nov. 14. 2015)……………………………………. ............................8,9 Cottman v. Burris Fence Const., 2006 WL 3742580, 918 A.2d 338 (Del. 2006) .............................3 Cryovac Inc. v. Pechinery Plastic Packaging, Inc., 430 F. Supp. 2d 346 (D. Del. 2006).................8 Delaware State University Student Housing Foundation v. Ambling Managemt Co., 556 F. Supp. 2d 367 (D. Del. 2008)...................................................................................................9 Dravo Corp. v. Strosnider, 45 A.2d 542 (Del. Super. 1945) ............................................................1 Hamilton v. Independent Disposal Service, 2017 WL 631770 (Del. Super. Feb. 15, 2017).............3 Kasper v. Liberty Foundry Co., 52 S.W.2d 1002 (Mo. App. 1932) ..................................................2 Northern Ill. Light & Traction Co. v. Indus. Board of Ill., 117 N.E. 95 (Ill. 1917) .......................................................................................................................2 Rose v. Cadillac Fairview Shopping Center Properties (Delaware), Inc., 668 A.2d 782 (Del. Super. 1995).......................................................................................................1 Rose v. Sears, Roebuck & Co., 676 A.2d 906 (Del. 1996) ................................................................1 Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220 (3rd. Cir. 2000)....................................8 Stelwagon Mfg. Co. v. Tarmac Roofing Sys., Inc., 63 F.3d 1267 (3rd Cir. 1995), cert. denied, 516 U.S. 1172, 116 S. Ct. 1264, 134 L. Ed. 2d 212 (1996) ..........................................8 Watson v. Lapp, 278 A.D. 877 (N.Y. App. 1951) .............................................................................2 Wegimont v. Argonne Worsted Co., 33 A.2d 215 (R.I. 1943) ...........................................................2 Wissert v. Quigg, 2008 WL 1899993 (E.D. Pa. April 25, 2008) .......................................................8 Case 1:16-cv-00196-LPS Document 46 Filed 04/28/17 Page 3 of 14 PageID #: 1089 iii 119573549_1 Statutes and Rules 6 Del. C. §2513………………………………………………………………. .................................8 10 Del. C. §§6501 ..............................................................................................................................8 18 Del. C. §2618 ................................................................................................................................5 19 Del. C. §2322D .............................................................................................................................3 19 Del. C. §2353(b) ...........................................................................................................................7 19 Del. C. §2362(a)............................................................................................................................6 Delaware IAB Rule 14(A) .................................................................................................................7 Fed. R. Evid. 704 ...............................................................................................................................8 Fed. R. Evid. 801(c)...........................................................................................................................8 28 U.S.C. §2201.................................................................................................................................8 42 U.S.C. §9601.................................................................................................................................9 Other Authorities Restatement (Second) of Torts §46 ....................................................................................................10 Strunk and White, The Elements of Style (New York, NY; MacMillan Publishing Co., Inc., 1979)..................................................................7 Case 1:16-cv-00196-LPS Document 46 Filed 04/28/17 Page 4 of 14 PageID #: 1090 1 119573549_1 ARGUMENT A. Plaintiff’s efforts to recast the underlying position of AmGUARD and the factual record before the IAB do not create a genuine issue of material fact, and AmGUARD’s Motion for Summary Judgment should be granted as to Plaintiff’s claim for “bad faith” breach of contract, and punitive damages. The majority of Plaintiff’s Answering Brief (D. I. 43) is devoted to deploying adjectives, hearsay, and innuendo to revise the underlying factual record and positions of AmGUARD before the IAB, in support of its attack on AmGUARD’s summary judgment motion. A review of the facts and law indicates that Plaintiff ‘s characterizations are in error. 1. AmGUARD’s position before the IAB was within Delaware’s Worker’s Compensation framework Plaintiff presents this court with a “straw man” argument that any limitation on where Plaintiff was permitted to go within the plant, could only be used as proof in a negligence claim, and that Delaware’s Worker’s Compensation laws have operated on a no-fault basis since “the Coolidge administration.”1 However, as noted in the IAB decision, in undertaking a course of employment analysis, a tribunal considers “‘those things that an employee may reasonably do or be expected to do within a time during which he is employed and at a place where he may reasonably be during that time.’ Dravo, 45 A.2d at 543-544. In short, ‘in order to be compensable, the injury must first have been caused in a time and place where it would be reasonable for the employee to be under the circumstances.’ Rose, 668 A.2d at 786.”2 If one accepts Plaintiff’s argument, both claimants and employers would be foreclosed from addressing the relevance of the place, i.e., the physical location, where a claimant was when injured. Such 1 Benson’s Answering brief (D.I. 43), p. 16. 2 “Affidavit of Thaddeus J. Weaver in Support of Motion for Summary Judgment” (D.I.40- 1)(“Opening Aff.”), Ex. 20, IAB Decision at 9. The completion citations for the Dravo and Rose cases are Dravo Corp. v. Strosnider, 45 A.2d 542, 543 (Del. Super. 1945) and Rose v. Cadillac Fairview Shopping Center Properties (Delaware), Inc., 668 A.2d 782, 786 (Del. Super. 1995) aff’d sub nom. Rose v. Sears, Roebuck & Co., 676 A.2d 906 (Del. 1996)(emphasis added). Case 1:16-cv-00196-LPS Document 46 Filed 04/28/17 Page 5 of 14 PageID #: 1091 2 119573549_1 an approach is directly contrary to the Delaware case law and the rules of evidence. Whether an employee is prohibited from going into, or leaving, a location at his or her place of employment, and the specific instructions provided to the employee as to limitations on where he or she may be, have long been part of the analysis of whether a claimant was acting in the course of employment.3 2. Plaintiff’s erroneous characterization of the record. Plaintiff makes enormous effort to recast the underlying factual record. However, a review of the actual documents and testimony reveals otherwise: The Request for a Defense Medical Examination: While Plaintiff dismisses AmGUARD’s request for a medical examination as “sheer pettiness”4, AmGUARD’s deponent explained that not only was it AmGUARD’s regular practice to secure an examination, but that AmGUARD did it to “inform the insurance company as to the medical condition, prognosis, [and] future treatment of the patient.”5 He further explained that it was neither “unreasonable”6 or “unusual”7: 3 Northern Ill. Light & Traction Co. v. Indus. Board of Ill., 117 N.E. 95, 97 (Ill. 1917)(Employee not in course of employment where he entered “transformer room” in violation of employer’s policy; the room was characterized as a place of “great danger.”); Kasper v. Liberty Foundry Co., 52 S.W.2d 1002 (Mo. App. 1932) (Compensation denied where worker left his place of employment and went to different department, where he was forbidden from going, outside the course of his employment); compare Wegimont v. Argonne Worsted Co., 33 A.2d 215, 217 (R.I. 1943)(Fact that claimant was not forbidden from performing work in cutting room supported claim that work was within course of employment.); Watson v. Lapp, 278 A.D. 877 (N.Y. App. 1951)(Evidence that employee was required to be in her room at a hotel, at the time she was injured in the room, and that she was prohibited from leaving room, supported claim that the injury arose out of the course of employment.) 4Benson’s Answering Brief (D. I. 43), p. 6. 5“Reply Affidavit of Thaddeus J. Weaver in Support of Motion for Summary Judgment” (“Reply Aff.”), Ex. 24, Hennrikus Dep., p. 96, lines 22-24. 6Reply Aff., Ex. 24, Hennrikus Dep., p. 99, line 23. 7Reply Aff., Ex. 24, Hennrikus Dep., p. 100, lines 2-4. Case 1:16-cv-00196-LPS Document 46 Filed 04/28/17 Page 6 of 14 PageID #: 1092 3 119573549_1 As I stated, it is almost a matter of routine that we get a medical opinion before any hearing, regardless of what the issues at the hearing are. We have an entitlement to our own medical opinion. Oftentimes it is helpful in determining, even if it is not going to determine whether the claim is compensable or not, it is helpful in determining what we are looking at going forward, . . . should the claim be found compensable.8 Contrary to Plaintiff’s argument, Counsel for Plaintiff immediately after this testimony admitted that “it is very helpful. I appreciate it.”9 Plaintiff similarly attacks the doctor selected by AmGUARD, Lawrence Piccioni, M.D., as dishonest. However, Dr. Piccioni is a certified health care provider pursuant to 19 Del. C. §2322D as overseen by Delaware’s Division of Industrial Affairs.10 Further, the Delaware IAB and the Delaware Superior Court have found Dr. Piccioni’s testimony credible in other cases, See Cottman v. Burris Fence Const., 2006 WL 3742580, 918 A.2d 338 (Del. 2006)(Table); Hamilton v. Independent Disposal Service, 2017 WL 631770 (Del. Super. Feb. 15, 2017). The Toledo-Rodriguez Claim: Contrary to Plaintiff’s argument, the previous worker’s compensation claim by Toledo-Rodriguez, was not “an identical workers compensation claim” or a “prior, identical claim.”11 In fact, the proof taken during the October 1, 2015 hearing supported the position of Seaford Ice. Of note, Plant Manager Frank Dye testified that Toledo- Rodriguez worked in the gantry (where the ice augur was located), while Benson was a bagger.12 Further, after Toledo-Rodriguez was injured in 2012, Mr. Dye testified that Seaford Ice implemented a policy prohibiting personnel from entering the gantry room: Q: I want to walk back a little bit in time. This is not the first time somebody has been injured in the gantry room. Is that accurate? 8Reply Aff., Ex. 24, Hennrikus Dep., p. 98, line 24 – p. 99, line 9. 9Reply Aff., Ex. 24, Hennrikus Dep., p. 99, line 10. 10Reply Aff., Ex. 25, excerpt from certification list. 11 Benson’s Answering brief (D.I. 43), pp. 13-14. 12 Reply Aff., Ex. 26, transcript of IAB hearing, p. 98, lines 9-16. Case 1:16-cv-00196-LPS Document 46 Filed 04/28/17 Page 7 of 14 PageID #: 1093 4 119573549_1 A: We had an accident where a gentleman lost a foot two, two and a half years ago approximately. ****** Q: . . . After that did you enact any safety policies? A: Well, we got – OSHA came in and there was things we had to change and we did. We – I made very clear when I took people in because when we clock people in and I get them started as a new employee I do a fingerprint clock in. Q: Okay. A: I walk them through, show them the bathroom, show them the breakroom, show them where they’re going to be working and who is going to give them instruction. And told everyone this room is off limits. Q: And which – A: [Interposing] Because I don’t want another accident. Q: And which room was that? A: The gantry.13 Given that Toledo-Rodriguez worked in the gantry room, which was off-limits to Plaintiff, the previous claim does not assist Plaintiffs’ bad faith claim. Rather, its relevance is that it provides the background for Seaford Ice’s practice - and AmGUARD’s position that the gantry room was not part of Plaintiff’s work. Plaintiff’s “Pecuniary Interest” Argument: Plaintiff claims AmGUARD orchestrated a dishonest investigation to further its “pecuniary interest.” AmGUARD had no pecuniary interest in orchestrating a dishonest investigation to avoid paying the claim. As a servicing 13 Reply Aff., Ex. 26, transcript of IAB hearing, p. 79, lines 20 – p. 80, line 22. See also Id. at p. 96, lines 1-13 (confirming on cross examination that Dye told Benson that the gantry room was “off limits.”); see also Opening Aff. (D.I. 40-1), Ex. 20, IAB Decision at 5 (“Mr. Dye reported that they had an accident where another employee lost a foot approximately two years ago. Because of that incident, OSHA required them to put training into place, which includes telling employees that the gantry room is of limits. Mr. Dye testified that he showed Claimant around the plant, and told him that he was not allowed in the room and that no one was allowed in the gantry room except Juan, Pablo or Dave[.]”) Case 1:16-cv-00196-LPS Document 46 Filed 04/28/17 Page 8 of 14 PageID #: 1094 5 119573549_1 carrier under Delaware’s assigned risk pool, the money to pay claims ultimately comes not from AmGUARD, but from the State of Delaware. There would have been no financial benefit to AmGUARD from denying this claim. In making the argument regarding Seaford Ice’s pecuniary interest, Plaintiff’s brief craftily implies that AmGUARD was aware that Seaford Ice sought to lie about the claim in order to avoid the “assigned risk pool”14 maintained for otherwise uninsurable worker’s compensation risks under Delaware law. However, that is not the answer that Plaintiff’s counsel received from AmGUARD’s deponent. In fact, Plaintiff’s counsel told AmGUARD’s deponent that this question was not even directed to AmGUARD: Q: Okay. But you don’t have an understanding as to whether a company in the residual insurance market would want to get out of it? A: I can’t say what Seaford Ice specifically was feeling about that, thinking about that. Q: Okay. Well, I intended to ask about companies in that position as opposed to Seaford Ice itself[.]15 Plaintiff’s argument in his brief is exactly contrary to what he told the witness about the question, and this Court should decline to endorse such artifice. In fact, because Seaford Ice was already in the assigned risk pool, there was no way for it to avoid the additional premium. Further, as a servicing carrier under Delaware’s assigned risk pool, the money to pay claims ultimately comes not from AmGUARD, but from the State of Delaware. If one accepts Plaintiffs’ argument that improper pecuniary interest is best supported by innuendo, there is no one who would be more motivated to testify falsely than Plaintiff himself. 14 See 18 Del. C. §2618. 15 Reply Aff., Ex. 24, Hennrikus Dep., p. 87, line 16 - p. 88, line 1. Case 1:16-cv-00196-LPS Document 46 Filed 04/28/17 Page 9 of 14 PageID #: 1095 6 119573549_1 Plaintiff is a convicted criminal16 who (before his injury) lived in a neighborhood that he characterized as a “dump”, plagued by drug dealers where heroin was “big.”17 Since the award, the funds paid by AmGUARD have enabled Plaintiff to purchase a new home in a nice neighborhood, and it is AmGUARD that is paying medical bills.18 Plaintiff also argues that AmGUARD’s decision to not hire a Spanish speaking interpreter to interview even more people as part of its investigation, was intended to “lend a veneer of credibility to a dishonest investigation.”19 However, both the native Spanish speakers who addressed the issue of Benson’s presence in the gantry room said the same thing, namely, that Plaintiff did not belong there.20 The timing and language of the July 9, 2015 denial letter: Plaintiff raises two challenges to AmGUARD’s July 9, 2015 letter denying Plaintiff’s claim. First, Plaintiff claims that the letter was sent “well past section 2362(a)’s 15-day deadline.” As explained in AmGUARD’s opening brief, AmGUARD’s June 11, 2015 notice letter properly tolled the fifteen day period, as provided for under 19 Del. C. §2362(a).21 Plaintiff also challenges AmGUARD ‘s use of the word “scope” (rather than “course”) in its July 9, 2017 denial letter. While AmGUARD acknowledges that the correct word was “course”, prior to the hearing before the Industrial Accident Board, counsel for the Parties 16 Reply Aff., Ex. 27, Benson Dep., p. 34, line 10; p. 56, lines 8-13. 17 Reply Aff., Ex. 27, Benson Dep., p. 57, lines 12-19. 18 Reply Aff., Ex. 27, Benson Dep., p. 58, line 21 – p. 59, line 5. 19 Benson’s Answering Brief (D. I. 43), p. 18, second bullet point. 20 Opening Aff. (D.I. 40-1), Ex. 9, July 9, 2015 Confidential Statement Report of CVI, p. 3 (“Juan . . . is the only one that works and operates the ice augur daily; Dave is the only other one that is allowed to use it.”); Opening Aff. (D.I. 40-1), Ex. 20, Decision of Petition to Determine Compensation Due, Benson v. Seaford Ice, Del. IAB, Hearing No. 1428838, slip op. at 8 (October 15, 2015)(Spanish speaking employee Valdamar Aviles “denied that Claimant was allowed to go in the gantry room or that he had ever allowed Claimant to go in the gantry room.”) 21 AmGUARD’s Opening Brief (D.I. 40), p. 4, note 4. Case 1:16-cv-00196-LPS Document 46 Filed 04/28/17 Page 10 of 14 PageID #: 1096 7 119573549_1 (Joseph Weik for Plaintiff, and Joseph Andrews for Seaford Ice and AmGUARD) discussed AmGUARD’s position, where Andrews explained that Plaintiff “was hired to be a[n ice] bagger and he wasn’t bagging when he was hurt.”22 Pursuant to Delaware IAB Rule 14(A), counsel for the parties submitted a stipulation of facts that included a separate category identified as “Issue Presented”, which read in part that “the sole issue is whether the accident of May 28, 2015 also arose ‘in the course of employment’ or whether Claimant’s actions deviated so far outside of the course of employment that 19 Del. C. §2353(b) barred his claim.”23 In fact, Plaintff makes no claim that the use of the word “scope” resulted in any prejudice as part of the IAB hearing. The use of the word “scope” instead of “course” in the denial letter, is not novel, as the words are often used together. The IAB’s opinion itself refers to the subject of the hearing as “Course & Scope.”24 AmGUARD’s deponent further explained that “course and scope are kind of used almost interchangeably by the claims industry” and the terms are typically “used together”25; indeed, even Plaintiff’s own expert uses the two words – “course and scope” – as a set.26 Plaintiff’s use of hearsay and other “non-evidence”: Plaintiff’s opposition brief cites alleged statements from other lawyers, to attorney Weik, in support of Plaintiff’s arguments. Such references are the rankest sort of hearsay, and may not be relied upon by the 22Opening Aff. (D.I. 40-1), Ex. 15, Weik Dep., p. 58, line 16 – p. 59, line 23. 23Opening Aff. (D.I. 40-1), Ex. 19, October 1, 2015 Stipulation of Facts. 24Opening Aff. (D.I. 40-1), Ex. 20, IAB Decision, cover page “(Course & Scope)”. 25Reply Aff., Ex. 24, Hennrikus Dep., p. 154, line 21 – p. 155, line 11. 26The phrase “course and scope” is a common compound noun within the legal community. See Strunk and White, The Elements of Style (New York, NY; MacMillan Publishing Co., Inc., 1979), p. 10 (“[C]ertain compounds . . . are so inseparable they are considered a unit[.]”) Case 1:16-cv-00196-LPS Document 46 Filed 04/28/17 Page 11 of 14 PageID #: 1097 8 119573549_1 Court.27 Further, Plaintiff’s expert purports to opine on the “relevance” of evidence presented to the IAB. However, decisions as to relevance are exclusively within the Court’s ambit, and the Court should not consider such an opinion.28 B. Plaintiff has failed to allege a cause of action under 6 Del. C. §2513. Plaintiff urges this Court to retain its cause of action under 6 Del. C. §2513 on the grounds that the most recent ruling on the inapplicability of that statute is an “outlier.” Less than two years ago, Judge Andrews rejected the same arguments29 in Christiana Care Health Services, Inc. v. PMSLIC Ins. Co., 2015 WL 6675537 (D. Del., Nov. 2. 2015), and concluded that 6 Del. C. §2513 did not apply. The PMSLIC case is especially notable because it – like the present case – involved a claim that an insurance carrier had mishandled an underlying claim. There is no reason to deviate from the analysis in PMSLIC, and Plaintiff’s Section 2513 claim should be dismissed. C. Plaintiff’s Declaratory Judgment claim should be dismissed because there is no “present uncertainty” to be addressed. Plaintiff also argues that his declaratory judgment claim should remain because it was brought under the Delaware Declaratory Judgment Act, 10 Del. C. §§6501, et seq., rather than the counterpart Federal Act, 28 U.S.C. §§2201, et seq. Plaintiff’s argument is legally and factually wrong. Where a “declaratory judgment” matter has been removed from Delaware State 27Fed. R. Evid. 801(c); Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 226 n. 7 (3rd. Cir. 2000), citing Stelwagon Mfg. Co. v. Tarmac Roofing Sys., Inc.,63 F.3d 1267, 1275, n. 10 (3rd Cir. 1995), cert. denied, 516 U.S. 1172, 116 S. Ct. 1264, 134 L. Ed. 2d 212 (1996). 28See Fed. R. Evid. 704; Cryovac Inc. v. Pechinery Plastic Packaging, Inc., 430 F. Supp. 2d 346, 364-365 (D. Del. 2006); compare Wissert v. Quigg, 2008 WL 1899993 at *7 (E.D. Pa. April 25, 2008)(Prohibiting expert’s legal opinions from being considered in the context of summary judgment). 29 See “Plaintiff Christiana Care Health Services, Inc.’s Answering Brief in Opposition to PMSLIC’s Motion to Dismiss” (Doc. Id. No. 10), pp. 18-20, dated January 30, 2015, in Christiana Care Health Services, Inc. v. PMSLIC Ins. Co., C.A. No. 14-01420 RGA, authored by the firm of John Sheehan Spadaro, LLC. Case 1:16-cv-00196-LPS Document 46 Filed 04/28/17 Page 12 of 14 PageID #: 1098 9 119573549_1 Court to Federal Court, the counterpart Federal Declaratory Judgment statute is deemed to apply. See Delaware State University Student Housing Foundation v. Ambling Management Co., 556 F. Supp. 2d 367, n. 49 (D. Del. 2008)(Declaratory Judgment is procedural, and Federal Act applies in a case removed from State Court). DSU v. Ambling is especially instructive, as it dismissed a declaratory judgment claim where the Plaintiff did not seek a declaration as to the legality of its present behavior; similarly, Plaintiff Benson has not sought a declaration as to the uncertain legality of the parties’ present behavior. Instead, Plaintiff’s relief is for money damages, based on AmGUARD’s past conduct. In fact, Plaintiff and his counsel have admitted that since the IAB decision, AmGUARD has fulfilled its obligation to pay Plaintiff.30 See also PMSLIC 2015 WL 6675537, at *5-6. The case cited by Plaintiff to support its infirm declaratory judgment argument, Bank of Delaware v. Allstate Ins. Co., 448 A.2d 231 (Del. Super. 1982), is a typical example of how a declaratory judgment should work. There, the Bank of Delaware’s contractor refused to honor an indemnification and “hold harmless” agreement, when the Bank was sued under the “Superfund” statute, 42 U.S.C. §§ 9601 et seq., and the Bank’s insurer (Insurance Company of North America (“INA”)), assumed the defense of the Bank. After doing so, the Bank and INA sued the contractor and its separate insurer seeking a declaration that the contractor and its insurer were obligated to defend and indemnify the Bank. Bank of Delaware is simply an example of “present uncertainty” test discussed in DSU v. Ambling, and therefore supports AmGUARD’s motion for summary judgment. D. Plaintiff has failed to set forth a claim for infliction of emotional distress. 30 See AmGUARD’s Opening Brief (D. I. 40), pp. 9, 11-12 citing Weik Dep. p. 46:10-24 (Opening Aff. (D.I. 40-1), Ex. 15) and Benson Dep., p. 15:4-20, pp. 16-21-19:3 (Opening Aff. (D.I. 40-1), Ex. 23). Case 1:16-cv-00196-LPS Document 46 Filed 04/28/17 Page 13 of 14 PageID #: 1099 10 119573549_1 As noted in AmGUARD’s opening brief, Plaintiff has not carried his burden to demonstrate the predicate “outrageous act” required to establish a claim for emotional distress. Section 46 of the Restatement (Second) of Torts describes the standard: It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.31 Despite Plaintiff’s best efforts to recast the evidentiary record, as discussed herein and in AmGUARD’s opening brief, the actions taken by AmGUARD were not “extreme and outrageous.” Consequently, the emotional distress claim should be dismissed. CONCLUSION Wherefore, for the reasons set forth in the AmGUARD’s Motion for Summary Judgment, its Opening Brief, the above reply brief, and its supporting papers, AmGUARD prays that this Court dismiss Plaintiff’s action with prejudice, and award AmGUARD its costs and attorney’s fees, and such other relief as the Court deems just and necessary. Dated: April 28, 2017 Respectfully Submitted, DILWORTH PAXSON LLP By: /s/ Thaddeus J. Weaver__________ Thaddeus J. Weaver (Id. No. 2790) One Customs House, 704 King Street, Suite 500 P.O. Box 1031 Wilmington, DE 19899 (302) 571-8867 (telephone) (302) 571-8875 (facsimile) tweaver@dilworthlaw.com Attorneys for Defendant AmGUARD Insurance Company 31 Restatement (Second) of Torts, §46, Comment (d). Case 1:16-cv-00196-LPS Document 46 Filed 04/28/17 Page 14 of 14 PageID #: 1100 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JALEN BENSON, Plaintiff, v. AMGUARD INSURANCE COMPANY, Defendant, ) ) ) ) ) C.A. No. 1:16-cv-00196 LPS ) ) ) ) REPLY AFFIDAVIT OF THADDEUS J. WEA VER IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT STATE OF DELAWARE COUNTY OF NEW CASTLE I, Thaddeus J. Weaver, Esquire, of Dilworth Paxson LLP, being duly sworn, do depose and state as follows: A. I am counsel of record on behalf of Defendant AmGUARD Insurance Company ("AmGUARD") in the above-captioned matter. B. I submit this reply affidavit in support of the "Motion for Summary Judgment Pursuant to Rule 56," (D.I. 39) filed by Defendant AmGUARD, and specifically in support of AmGUARD's reply brief as regards the aforesaid motion. C. Attached to this affidavit are true and correct copies of certain documents, and portions of deposition testimony, cited in the Reply Brief of AmGUARD in support of its Motion for Summary Judgment. Those documents and testimony are described with more particularity below: 1 119576871_1 Case 1:16-cv-00196-LPS Document 46-1 Filed 04/28/17 Page 1 of 2 PageID #: 1101 1. Attached at Exhibit 24 is a true, correct and complete copy of portions of the deposition of Edward George Hennrikus, taken on November 18, 2016. 2. Attached at Exhibit 25 is a true, correct and complete copy of a print out of one page from a PDF maintained on the website of the Delaware Division oflndustrial Affairs, listing certain health care professionals certified pursuant to 19 Del. C. §2322D. This list includes Lawrence Piccioni, M.D. This item was located and printed by me on February 15, 2017. 3. Attached at Exhibit 26 is a true, correct and complete copy of portions of the hearing transcript of the October 1, 2015 hearing before the Delaware Industrial Accident Board in the case captioned Benson v. Seaford Ice, Inc. , Del. I.A.B. , Hearing No. 1428838. 4. Attached at Exhibit 27 is a true, correct and complete copy of portions of the deposition of Jalen Benson, taken on January 27, 2017. Further Affiant Sayeth Not ~ct-~ Thaddeus J. Weaver, Esquire Signed and Sworn before Me, a Notary Public of the State of Delaware, this 28th day of April, 2017. ~~/)~ :0 ARY PUBLIC/ ELAINE F. SER?i NOTARY PUBUO ~ STATE OF DELAWARE My COmmission Expires December 16, 2011 119576871_1 2 Case 1:16-cv-00196-LPS Document 46-1 Filed 04/28/17 Page 2 of 2 PageID #: 1102 EXHIBIT 24 Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 1 of 25 PageID #: 1103 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JALEN BENSON, Plaintiff, v. )Civil Action No. )1:16-cv-00196 ) LPS AMGUARD INSURANCE COMPANY, ) ) ) Defendant. ) Videotape deposition of EDWARD GEORGE HENNRIKUS taken pursuant to notice at the law offices of Dilworth Paxson LLP, One Customs House, 704 King Street, Wilmington, Delaware, beginning at 10:00 a.m., on Friday, November 18, 2016, before Eleanor J. Schwandt, Registered Merit Reporter and Notary Public. WILCOX & FETZER Registered Professional Reporters 1330 King Street - Wilmington, Delaware 19801 (302) 655-0477 www.wilfet.com ~ WILCOX & FETZER LTD Registered Professional Reporters (302) 655- 0477 www.wilfet .com 1 Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 2 of 25 PageID #: 1104 Hennrikus 1 in the residual insurance market, would want to 2 escape the residual insurance market and 3 succeed in finding workers' compensation 4 insurance in the private market? 5 MR. WEAVER: Objection, 6 speculation, foundation. 7 MR. SPADARO: You can answer. 8 MR. WEAVER: You can answer. 9 THE WITNESS: I don't know that 1 0 for sure. 11 BY MR. SPADARO: 12 Q. Okay. So there are financial 13 advantages to not being in the residual 14 insurance market, right? 15 A. I believe so, yes. 1 6 Q. Okay. But you don't have an 17 understanding as to whether a company in the 18 residual insurance market would want to get out 19 of it? 20 A. I can't say what Seaford Ice 21 specifically was feeling about that, thinking 22 about that. 23 Q. Okay. Well, I intended to ask about 24 companies in that position as opposed to \lF WILCOX &. FETZER LTD Reg istered Professional Reporters (302) 655-0477 www.wilfet.com 87 Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 3 of 25 PageID #: 1105 Hennrikus 1 Seaford Ice itself, so let me do that. Once a 2 company finds itself in the residual insurance 3 market, it has a financial incentive to get out 4 of the residual insurance market and find 5 workers' compensation insurance in the private 6 market; is that fair to say? 7 A. That's fair to say. 8 Q. Okay. Now, if Seaford Ice had a 9 financial incentive to try to escape the 1 0 residual insurance market in 2015, it would not 11 have found it helpful to be reporting 1 2 catastrophic workplace injuries at the Seaford 13 Ice plant to its workers' compensation insurer; 1 4 is that fair to say? 1 5 MR. WEAVER: Objection, 1 6 speculation. I also think this may be beyond 17 the scope of the 30 (b) (6) as to the advantages 18 or disadvantages to an insured in the residual 1 9 market. 20 Having said that, Mr. Spadaro, I 21 think the preferred practice where you have a 22 question that may be outside the scope is to 23 permit the witness to answer, rather than 2 4 instructing him not to. So with the WILCOX &. FETZER: LTD Reg istered Professional Reporters (302) 655-0477 www.wi lfet .com 88 Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 4 of 25 PageID #: 1106 , , Hennrikus 96 1 has decided to go to the Industrial Accident 2 Board, the IAB, and see if he can accelerate 3 the process on behalf of Mr. Benson, right? 4 A. Correct. 5 Q. Okay. And that effort to bring about 6 an expedited hearing for Mr. Benson's claim, 7 was that opposed at any time by Amguard? 8 A. I believe it was. 9 Q. Okay. Why is that, sir? 1 0 A. I believe the reason for the opposition 11 was to give us time to secure an independent 12 medical exam. 13 Q. Okay. Referred to in Delaware as a 14 defense medical exam? 1 5 A. DME, correct. 1 6 Q. So a DME or defense medical exam in the 17 context of Delaware workers' compensation 18 insurance is a medical evaluation that the 1 9 insurance company can ask the injured worker to 20 undergo to help inform the insurance company's 21 handling of the claim; is that fair to say? 22 A. To inform the insurance company as to 23 the medical condition, prognosis, future 2 4 treatment of the patient, yes. ~ WILCOX&. FETZER LTD Reg istered Professi onal Rep orters (3 02) 655-04'77 www. wilfet .com -----~--· ·-· ..... ·---- ---- - Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 5 of 25 PageID #: 1107 Hennrikus 98 1 done by the claims adjusters? 2 A. That's correct. 3 Q. Okay. The DME was not necessary to 4 determine whether Mr. Bailen was -- I did it 5 again. 6 The DME wasn't necessary to 7 determine whether Mr. Benson was disabled from 8 work, because everyone knew he had lost both 9 legs, right? 1 0 A. Correct. 11 Q. So I don't want to put would words in 12 your mouth, but I think where we are in terms 13 of your testimony on this subject is that you 14 have told us that Amguard opposed Mr. Weik's 15 request to expedite the process of determining 1 6 whether the claim would be paid or not, because 17 it wanted a DME that was not necessary to 18 determining whether the claim would be paid or 19 not. Is that fair to say? 20 A. That's accurate, yes. 21 Q. Okay. Is that consistent with accepted 22 standards for handling workers' compensation 23 claims? 24 A. As I stated, it is almost a matter of '1F WILCOX & FETZER LTD Reg istered Professional Reporters (302) 655-0477 www.wi lfet.com Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 6 of 25 PageID #: 1108 Hennrikus 99 1 routine that we get a medical opinion before 2 any hearing, regardless of what the issues at 3 the hearing are. We have an entitlement to our 4 own medical opinion. Oftentimes it is helpful 5 in determining, even if it is not going to 6 determine whether the claim is compensable or 7 not, it is helpful in determining what we are 8 looking at going forward, should we -- should 9 the claim be found compensable. 10 Q. It is very helpful. I appreciate it. 11 Let me ask you this: The determination -- 12 strike that. 13 The decision to oppose Mr. Weik's 14 request for an expedited hearing on whether or 15 not the claim would be paid, based on Amguard's 16 desire to get a DME that wasn't necessary to 17 determine whether or not the claim would be 18 paid, was that decision consistent with 19 accepted claims handling standards in the 20 insurance industry? 21 MR. WEAVER: Objection, 22 cumulative. 23 A. 24 Q. I don't see it as being unreasonable. So you would say yes, it was consistent ftF WILCOX &. FETZER LTD Reg istered Professional Repc1rters (302) 655-0477 www.wilfet.com Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 7 of 25 PageID #: 1109 Hennrikus 100 1 with accepted claims handling standards? 2 A. On a case-by-case basis. It is not 3 happening every time. But it is -- I don't 4 consider it to be unusual. 5 Q. All right. With all respect, I'm not 6 asking you whether it happens often or seldom, 7 or whether it is usual or unusual. I'm asking 8 whether, according to your understanding of 9 accepted standards for claims handling in the 10 insurance industry, it conformed with those 1 1 standards or departed from those standards? 1 2 And you may say: I don't know. 1 3 A. Yeah, I think that, when I say it is 14 not that unusual, I kind of mean that it is 1 5 part of the accepted standards and practices. 1 6 Q. Okay. So it wasn't a departure from 17 accepted standards, in your view? 1 8 A. No. 1 9 Q. And it is not something Amguard is 20 uncomfortable with? 2 1 A. No. 22 Q. Okay. There are numbered paragraphs in 23 this request for an expedited hearing that Mr. 24 Weik filed on July 6, 2015, before the IAB. '1F WILCOX &. FETZER LTD Registered Professional Reporters (302) 655- 0477 www .wilfet.com Do Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 8 of 25 PageID #: 1110 Hennrikus 154 1 injured doing a function of an ice factory.) 2 BY MR. SPADARO: 3 Q. Okay. The question was Jalen Benson 4 injured performing the functions of someone who 5 works at an ice factory, is that a question of 6 the course of employment, or the scope of 7 employment, or both? 8 A. I believe scope. 9 Q. Okay. A question like "did it happen 10 during work hours" would be a question of the 11 course of employment, right? 12 A. Correct. 13 Q. A question of "did it happen at the 1 4 plant, the workplace itself," that would also 15 be course of employment, correct? 16 A. Correct. 17 Q. But a question "was he doing something 18 he shouldn't have been doing," that falls under 1 9 the bucket scope of employment? Is that a 20 correct understanding? 21 A. Again, although they have different 22 meanings, I think course and scope are kind of 23 used almost interchangeably by the claims 24 industry. ~ WILCOX & FETZER LTD Registered Profess ional Reporters (302) 655-0477 www.wilfet. com Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 9 of 25 PageID #: 1111 Hennrikus 155 1 I understand that this document 2 says scope, and I think course and scope would 3 have been clearer. 4 Q. Now, why would it have been clearer? 5 Is it because that's what Amguard meant to 6 convey, that it had concluded that Mr. Benson 7 was neither within the course or scope of his 8 employment? 9 A. Well, again, those are typically used 10 together . 11 Q. Okay. 1 2 A. But I think a course of employment was 13 meaning that he had stepped outside the course 14 of his function as a bagger when he entered 15 this area that was unauthorized to him. 16 Q. Now, there is no dispute that Mr. 17 Benson lost his legs at his workplace? 1 8 A. That's correct. 1 9 Q. And there is no dispute that it 20 happened during his assigned work hours, right? 2 1 22 23 2 4 MR. WEAVER: Objection to form. THE WITNESS: That's correct. MR. WEAVER: You can answer. THE WITNESS: Correct. '1F WILCOX & FETZER LTD Registered Professional Reporters (302) 655- 0477 www .wilfet .com Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 10 of 25 PageID #: 1112 EXHIBIT 25 Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 11 of 25 PageID #: 1113 I APPLICATIO DUE DATE ACTIVE NDATE DATE OF LAST LAST NAME FIRST NAME PROFESSION FACILITY NAME CITY REMOVED CME COURSE FOR NEXT PROVIDER DATE CME COURSE Y/N ~ Piccioni Lawrence Surgeon Dover Surgicenter Dover 04/24/08 04/11/16 (3) 03/31/17 y Pierce Pamela Physical Therapist Mx Physical Therapy, Inc. f/k/a Wilmington I 06/06/08 05/16/14 01/31/17 y Assistant Delaware Curative PT Newport /Bear (2) Pilkington Trinity Physician Bayhealth Orthopaedic Surgery Dover 07/01/13 06/11/15 03/31/17 y Pillai Gita Orthopaedic Surgeon Orthopaedic Associate s of Southern Lewes 06/17/11 03/22/15 03/31/17 y Delaware, PA (2) Pilleggi Theresa Nurse Practitioner Garnet Valley Sport & Spine Garnet Valley, 10/21/15 10/31/17 y PA Pilleggi Theresa Nurse Practitioner Wilmington Sport & Spine Wilmington 10/21/15 10/31/17 y Pinckney Adrienne Physical Therapist ATI Physical Therapy f/k/a PRO Newark 05/15/08 01/28/17 01/31/19 y Physical Therapy (4) Pinkerton David Physical Therapist ATI Physical Therapy f/k/a PRO Millsboro 05/15/08 01/28/15 01/31/17 y Physical Therapy (3) Pinkston Billie Jean Physical Therapist Christiana Care Health Services Dover I Smyrna 04/28/10 05/02/14 01/31/17 y Assistant (2) Westside Family Healthcare Middletown 08/09/13 01/28/16 03/31/18 y Pirestani Alireza Physician Pisorchik Lisa Physical Therapist Christiana Care Health Initiatives-- Wilmington 05/19/08 11/08/16 01/31/17 y Physical Therapy Plus (3) Plakyda Derek Physician Imaging Group of Delaware, PA Wilmington 03/12/12 02/15/15 03/31/17 y (2) Plesniak Gabrielle Physical Therapist University of Delaware, Physical Newark 06/07/16 01/31/17 y Therapy Clinic " Plumb Ellen Physician Christiana Care Health Services, Inc Wilmington 07 /07 /16 03/31/17 y Polaski Raymond Chiropractor Po.laski Family Chiropractic Center Newark 04/23/08 06/23/16 06/30/18 y Glasgow Chiropractic (4) Poleshuk Robert Physical Therapist ATI Physical Therapy Doylestown, PA 09/20/16 09/20/18 y Pollack Kari Physician MedExpress, Inc. Wilmington 06/26/13 . 11/27/15 03/31/17 y Physician Christiana Care Health Service, Inc. Newark 09/23/16 03/31/17 y Pollard John DBA: CCHS Neurology Specialists Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 12 of 25 PageID #: 1114 EXHIBIT 26 Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 13 of 25 PageID #: 1115 STATE OF DELAWARE DEPARTMENT OF LABOR OFFICE OF WORKMEN 1 S COMPENSATION IN THE MATTER OF: JALEN BENSON, Vs. --- --x Claimant, IAB No.: 1428838 SEAFORD ICE, INC., HELD AT: BEFORE: APPEARANCES: TRANSCRIBER: Employer. ----------x October 1, 2015 DEPARTMENT OF LABOR OFFICE OF WORKMEN'S COMPENSATION 655 S. Bay Road, Suite 2H Dover, DE 19904 HONORABLE HEATHER WILLIAMS, ESQ. Hearing Officer M.i'iRY M. DANTZLER PATRICIA MAULL Board Members JOSEPH WEIK, ESQ. Attorney for the Petitioner 305 N. Union Street, 2nd Floor Wilmington, DE 19805 JOSEPH ANDREWS, ESQ. Attorney for the Respondent 27 Owen David Road Dover, DE 19904 BRANDI DEAN Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 14 of 25 PageID #: 1116 RE DIRECT EXAMINATION OF J. BENSON BY J. WEIK 79 1 BOARD MEMBER DANTZLER: Okay. Mr. Dye, do 2 you solemnly swear or affirm that the evidence you 1 re 3 about to give shall be the truth, the whole truth, 4 and nothing but the truth, so help you god? 5 MR. DYE: Yes, I do. Yes, I do. 6 BOARD MEMBER DANTZLER: You may sit. Yes, 7 you can have a seat. 8 HEARING OFFICER WILLIAMS: Your witness. 9 F R AN K D Y E, having been first duly 10 sworn, testified as follows: 11 DIRECT EXAMINATION 12 BY MR. ANDREWS 13 Q: Mr. Dye, how are you doing today? 14 A: Good. 15 Q: Could you tell the Industrial Accident Board what 16 your position is at Seaford Ice? 17 A: I 1 m the general manager. 18 Q: And you've held that for how long? 19 A: Since 2009. 20 Q: I want to walk back a little bit in time. This 21 is not the first time somebody has been injured in the 22 gantry room. Is that accurate? 23 A: We had an accident where a gentleman lost a foot 24 two, two and a half years ago approximately. 25 Q: Okay. Following that--backtrack 1 Mr. Benson was Ubiqus 61 Broadway Suite 1400, New York, NY 10006 Phone: 212-346-6666 *Fax: 888-412-3655 Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 15 of 25 PageID #: 1117 DIRECT EXAMINATION OF F. DYE BY J. ANDREWS 80 1 not working there at that point, correct? 2 A: No. 3 Q: Okay. But you were still the general manager at 4 that time, correct? 5 A: Yes. 6 Q: Okay. After that did you enact any safety 7 policies? 8 A: Well, we got--OSHA came in and there was things 9 we had to change and we did. We I made very clear when I 10 took people in because when we clock people in and I get 11 them started as a new employee I do a fingerprint clock 12 in. 13 Q: Okay. 14 A: I walk them through, show them the bathroom, show 15 them the breakroom, show them where they're going to be 16 working and who is going to give them instruction. And 17 told everyone this room is off limits. 18 Q: And which-- 19 A: [Interposing] Because I don't want another 2 0 accident. 21 Q: And which room was that? 22 A: The gantry. 23 Q: And the gantry room again is--if you look at 24 Exhibit 3, it would be beyond there. That's what this 25 camera angle is looking into, correct? Ubiqus 61 Broadway Suite 1400, New York, NY 10006 Phone: 212-346-6666 *Fax: 888-412-3655 Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 16 of 25 PageID #: 1118 CROSS-EXAMINATION OF F. DYE BY J. WEIK 96 1 A: That's the pin that I clock them in, and then 2 from clocking them in, showing them how to clock in, I 3 walk them out, take them to the bathroom. Show them, here 4 is the bathroom, here is the breakroom. Come through, 5 here is the bagging room. This is what you're going to be 6 doing. That 1 s off limits, that room right there. 7 Q: You have a distinct recollection 8 A: [Interposing] I do that to everybody. Everybody 9 since the one guy got hurt. 10 Q: That's not my question. 11 A: I did tell him that. 12 Q: You have a distinct recollection of saying that? 13 A: Yes, I do. 14 Q: Who else was present? 15 A: He was the only person. He was the one getting 16 hired at that time. 17 Q: I thought Carlos was there. You were telling him 18 to listen to Carlos. 19 A: Carlos was working. Carlos was working. He was 20 -he was already working. Jalen was excited to be there, 21 to get a job. 22 Q: Okay. Now, you said you were aware of the fact 23 that someone had been injured three years prior. Is that 24 correct? 25 A: Yes. ubiqus 61 Broadway - Suite 1400, New York, NY 10006 Phone: 212-346-6666 *Fax: 888-412-3655 Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 17 of 25 PageID #: 1119 CROSS-EXAMINATION OF F. DYE BY J. WEIK 98 1 Mutual subsidiary? 2 A: I believe so. 3 Q: Okay. There was a report made by a woman named 4 Joanne Jamison [phonetic] about Mr. Rodriguez's injury. 5 Who is Joanne? 6 A: I have no idea. 7 Q: Never heard of her? 8 A: Don't know the name. 9 Q: Are you aware that the report of injury for Mr. 10 Rodriguez listed him as a warehouse worker. Is that 11 accurate? 12 A: He was not a warehouse worker. 13 Q: What was his job title? 14 A: He worked in the gantry. That was his job. 15 Q: That was his job? 16 A: That's correct. 17 Q: So the only different then in this case is Mr. 18 Rodriguez got comp right away because he was stationed in 19 the gantry room? 20 A: 21 Q: 22 A: 23 Q: 24 A: 25 Q: That was his job. That was his job? Yes. And Mr. Benson was a bagger? That's correct. That's the only difference between the two cases? Ubiqus 61 Broadway - Suite 1400, New York, NY 10006 Phone: 212-346-6666 *Fax: 888-412-3655 Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 18 of 25 PageID #: 1120 EXHIBIT 27 Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 19 of 25 PageID #: 1121 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JALEN BENSON, Plaintiff, v. Civil Action No. l:l6-CV-00196 LPS AMGUARD INSURANCE COMPANY, Defendant. Deposition of JALEN M. BENSON, taken pursuant to notice, at the law offices of Baird Mandalas Brockstedt LLC, Six South State Street, Dover, Delaware, 19901, beginning at 10:00 a.m., on Friday, January 27, 2017, before Terry Barbano Burke, RMR-CRR and Notary Public. WILCOX & FETZER Registered Professional Reporters 1330 King Street - Wilmington, Delaware 19801 (302) 655-0477 www.wi l f et.com 1 WF WILCOX & FETZER LTD Registered Professional Reporters (302) 655-0477 www.wilfet.com ORIGINAL Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 20 of 25 PageID #: 1122 34 Jalen M. Benson l i And that helped me too very greatly. I Q. Do you know how much money your old 3 i boss put? 4 , A. I think it was like $263. S i Q. And which old boss are you referring 6 to? 7 . A. Well, after I left school, I started 8 i working because I had my daughter, and I've 9 worked there ever since until I was 20 some. 10 . And then I got imprisonment. And then once I 11 got out, that's when I started working at 12 Seaford Ice. The old boss before I went to 13 jail, he's the one that done that for me. He 14 put it all together. He helped me out a lot. 15 He paid my cell phone bill a couple times too. 16 Q. When your old boss paid your cell 17 phone bill, was this during the period of time 18 after your injury and before the decision of 19 the Industrial Accident Board? 20 A. 21 Q. 22 A. Yes, it was in between that, yeah. How much was that cell phone bill? I think it was almost 200, maybe 170. IN THE UNITED STATES DISTRICT COURT F'!YR 'T'-r-TP. nT <:;'T'R Tr'T' nF' nF.T.AWARF. l Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 21 of 25 PageID #: 1123 56 Jalen M. Benson 1 have no coverage. 2 . 3 : 4 • ! I Q. How often did that happen? A. Every time I had to go somewhere. Q. How often was that? Si i A. Probably every other day I went to the 6 appointments and stuff like that, or, you 7 know, went out where we had to go. 8 Q. You mentioned that you were convicted 9 of a crime. Was that on or about March 26th, 10 2014? 11 : 1 ') _L A. 2014. 13 . time. 14 . Q. 15 A. 16 Q. 17 A. 2014? I think I was locked up in I think I was locked up between the Do you use any illegal drugs? No. Have you ever used any illegal drugs? I think I smoked marijuana when I was 18 on probation. 19 20 1 ! 21 22 23 Q. Anything else? A. I think that was about it. Q. Heroin use? A. I was using pills around that time. might have. I'm not sure. I 24 Q. When you say you were using pills, are llF WILCOX &. FETZER LTD Registered Professional Reporters (302) 655-0477 www .wilfet .com Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 22 of 25 PageID #: 1124 Jalen M. Benson 1 you ref erring to prescription -- 2 A. Yes. 3 Q. -- opiates of some sort? 4 A. Yeah. 5 Q. And those were prescribed for you; is 6 ' that correct? 7 A. Not all of them, no. 8 Q. What do you mean, "not all of them"? 9 A. My father had prescriptions and stuff, 10 and if I was in pain, whatever, I'd take some 11 of his, whatever. 12 Q. Did you get any drugs from any other 13 sources other than your father and your 14 prescriptions? 15 A. Around that time, heroin was getting 16 big around that time. Like I said, I've 17 always lived in a dump because I've never had 18 anything or, you know, my family's never had 19 much, you know. So I may have. I'm not sure. 20 Q. So you may have used heroin during 21 this period; correct? 22 A. I don't ever recall using heroin. But 23 yeah, I've used prescription pills and that's 24 opiates, so. '1F WILCOX &. FETZER LTD Registered Professional Reporters (302) 655-0477 www.wilfet .com 57 Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 23 of 25 PageID #: 1125 58 Jalen M. Benson 1 Q. When you say you have used 2 ' prescription pills, you mean other than those 3 prescribed for you? 4 · A. Yes. Q. You testified that you have always 6 ' lived in a dump. Do you mean that you lived 7 in that sort of place prior to your injury? 8 A. Actually, you know, I don't want to 9 consider it a dump because my mom worked hard 10 for everything she had. But, you know, she 11 was a single mother, so she didn't have too 12 much. She had that place for us. 13 And then, like I said, I got 14 locked up. That's when I got my life 15 together, because I was going downhill really 16 · bad, and then I got locked up. 17 And then my fiance, she tried 18 her best to get the place in Seaford that we 19 were living at. Ever since then, I got my 20 life together, so. 21 Q. Is the neighborhood that you live in 22 now a better neighborhood than you were living 23 in before? 24 A. Very better. That's where I want my '1F WILCOX &. FETZER L TO Registered Professional Reporters (302) 655-0477 www .wilfet.com Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 24 of 25 PageID #: 1126 Jalen M. Benson 1 kids to grow up at. 2 Q. Is there any bill or expense that 3 Amguard at this point has ceased to pay or has 4 not paid? 5 A. No. 6 Q. The difficulties that you have had 7 before Amguard paid, are they behind you now? 8 A. See, the thing is, before that, I've 9 never suffered depression, and ever since then 1 0 I have been still suffering depression. I 11 don't know what's going on .. but ever since 12 then I have been suffering depression. I 1 3 never had depression never in my life before 14 then. 15 Q. Did you ever have, prior to your 16 accident, did you have a doctor you went to 17 regularly? 18 A. Before my accident? 19 Q. Yes. 20 A. No. 21 Q. So you didn't have a primary care 22 physician, for example? 23 A. 24 guy. No. I'm not really a doctor kind of I don't like hospitals and doctors and ~ WILCOX &. FETZER LTD Registered Professional Reporters (302) 655-0477 www.wilfet.com 59 Case 1:16-cv-00196-LPS Document 46-2 Filed 04/28/17 Page 25 of 25 PageID #: 1127