Holleran v. 4520 Corp. Inc., et al.

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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY Thomas E. Archie and Joyce Archie, his wife ) Daniel E. Bachman ) Paul Barkus and Yvonne Barkus ) Cynthia G. Beam, Personal Representative ) of the Estate of Mary Good, Deceased ) John F. Betley, Jr. and Jean Betlwey, his wife ) Oda M. Biddle, as Surviving Spouse and Personal ) Representative of Drexel Wayne Biddle, Sr., ) deceased ) Forrest A. Boettcher and Virgina Boettcher, his wife) John A. Booth and Marcia Booth, his wife ) Michael Bove ) Robert Brady ) Arthur Brobst and Michelle Brobst, his wife ) Charles Brower and Nancy Brower, his wife ) Mark A. Chase and Shari Chase, his wife ) Francis G. Choma and Patricia Choma, his wife ) Joseph D. Christopher ) Antimo Cofrancesco and ) Brenda Cofrancesco, his wife ) Albert J. Conner, Jr. and Margaret Conner, his wife ) Rocco A. DiOssi ) Hugh Dougherty ) Michael Federowicz and ) Catherine Federowicz, his wife ) Richard S. Ferguson, II and ) Bonnie Ferguson, his wife ) Marshall J. Fields, Jr. and Arnita Fields, his wife ) Harvey Fisher and Ann Fisher, his wife ) John A. Flynn and Dolores Flynn, his wife ) Francis A. Hackendorn and ) Linda Hackendorn, his wife ) Charles W. Hannagan and Ellen Hannagan, his wife) John J. Healy and Patricia Healy, his wife ) Conrad Heinold and Abglina Heinold, his wife ) David R. Holleran and Susan Holleran, his wife ) John C. Hopkins and Mildred C. Hopkins, his wife ) Earl L. Hudson and Linda Hudson, his wife ) Larre M. Jones ) James A. Jones and Mae Ella Jones, his wife ) Stanley N. Justis ) Loretta C. Kilby, as Surviving Spouse of ) C. A. No. 02C-08-204-ASB C. A. No. 02C-04-280-ASB C. A. No. 02C-03-056-ASB C. A. No. 02C-08-239-ASB C. A. No. 02C-01-041-ASB C. A. No. 02C-03-194-ASB C. A. No. 02C-06-075-ASB C. A. No. 02C-04-108-ASB C. A. No. 02C-06-074-ASB C. A. No. 02C-02-204-ASB C. A. No. 02C-04-006-ASB C. A. No. 02C-08-299-ASB C. A. No. 02C-06-209-ASB C. A. No. 02C-03-195-ASB C. A. No. 02C-07-265-ASB C. A. No. 02C-08-182-ASB C. A. No. 02C-03-206-ASB C. A. No. 02C-08-291-ASB C. A. No. 02C-09-004-ASB C. A. No. 02C-12-014-ASB C. A. No. 02C-08-016-ASB C. A. No. 02C-03-279-ASB C. A. No. 02C-08-296-ASB C. A. No. 03C-01-138-ASB C. A. No. 02C-08-300-ASB C. A. No. 02C-09-003-ASB C. A. No. 02C-07-264-ASB C. A. No. 02C-08-095-ASB C. A. No. 02C-04-281-ASB C. A. No. 03C-01-123-ASB C. A. No. 02C-09-002-ASB C. A. No. 02C-04-075-ASB C. A. No. 02C-05-166-ASB C. A. No. 02C-03-005-ASB Delmer T. Kilby, Sr., Deceased ) William T. Knox and Joanne Knox, his wife ) James Kossek and Joanne Kossek, his wife ) George C. Koukedis, Sr. and ) Jenny Koukedis, his wife ) Ruth Krause, as Surviving Spouse of ) Mark Krause, Deceased ) Edward A. Lesniczak, Sr., and ) Patricia Lesniczak, his wife ) Ronald L. Marks and Jacqueline Marks, his wife ) Larry S. Marshall and Barbara A. Marshall, his wife ) Ralph A. McVey and Linda McVey, his wife ) Charles H. Mecke and Oma Faye Mecke, his wife ) William L. Milliken and Carol Milliken, his wife ) Madeline Faye Mitsdarfer, Personal ) Representative of the ) Estate of Frederick Mitsdarfer, Deceased ) Paige Montgomery and ) Eugene Montgomery, her husband ) Columbus A. Nacchia, Jr. ) John J. Nedelka and Mary L. Nedelka, his wife ) Richard Newman and Elizabeth Newman, his wife ) William A. Nickel, Jr. and Sarah Nickle, his wife ) Benjamin F. Nyce and Sandra Nyce, his wife ) Theodore G. Pankowski and ) Deborah Pankowski, his wife ) Mary Patten and Marvin Patten, her husband ) Mary Ann Pedrick, Personal Representative of the ) Estate of Horace Pedrick, Deceased ) Joseph R. Pennington and ) Ann Marie Pennington, his wife ) Gerald R. Penoza, ) Dewey L. Pierce ) William O. Porter and Melanie Porter, his wife ) Lucious Pringle, Jr. and Ernestine Pringle, his wife ) Stephen W. Pringle ) Edward H. Pugh and Sandra Lee Pugh, his wife ) John W. Robson ) Robert Rozenko ) James Ryan and Mary Ryan, his wife ) Paul A. Shannon, ) Robert Shively and Priscilla Shively, his wife ) William E. Simmons, Sr. and Janice R. Simmons ) Edward A. Slavin, Jr. and Diana Slavin, his wife ) Diana Slavin and Edward A. Slavin, her husband ) C. A. No. 02C-06-110-ASB C. A. No. 02C-07-091-ASB C. A. No. 02C-08-067-ASB C. A. No. 02C-08-066-ASB C. A. No. 03C-01-124-ASB C. A. No. 02C-08-294-ASB C. A. No. 02C-06-210-ASB C. A. No. 02C-07-249-ASB C. A. No. 02C-06-247-ASB C. A. No. 02C-11-001-ASB C. A. No. 02C-08-292-ASB C. A. No. 02C-08-001-ASB C. A. No. 02C-02-207-ASB C. A. No. 02C-08-240-ASB C. A. No. 02C-04-107-ASB C. A. No. 02C-09-001-ASB C. A. No. 02C-08-094-ASB C. A. No. 02C-08-241-ASB C. A. No. 02C-06-225-ASB C. A. No. 02C-02-206-ASB C. A. No. 02C-08-183-ASB C. A. No. 02C-03-219-ASB C. A. No. 02C-10-020-ASB C. A. No. 02C-04-128-ASB C. A. No. 02C-12-093-ASB C. A. No. 02C-02-066-ASB C. A. No. 02C-08-205-ASB C. A. No. 02C-03-043-ASB C. A. No. 02C-02-205-ASB C. A. No. 02C-11-010-ASB C. A. No. 01C-12-172-ASB C. A. No. 02C-09-006-ASB C. A. No. 02C-03-142-ASB C. A. No. 02C-07-006-ASB C. A. No. 02C-08-042-ASB C. A. No. 02C-09-243-ASB William J. Smolka and Evelyn C. Smolka, his wife Coy W. Snow Clarence R. Sweetman, Jr. Gary Sylvestro Joseph Todd Harry Toy and Irene Toy, his wife John Watson John W. Whitby, Sr. and Janice Whitby, his wife Warren Whiteside and Roberta Whiteside, his wife Frederick Witt and Charlette Witt, his wife James F. Wooleyhan Stanley F. Zgleszewski and Janice M. Zgleszewski, his wife Plaintiffs, v. 4520 Corp., Inc., et al. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) C. A. No. 02C-02-134-ASB C. A. No. 02C-02-267-ASB C. A. No. 02C-09-005-ASB C. A. No. 03C-01-001-ASB C. A. No. 02C-03-193-ASB C. A. No. 02C-08-093-ASB C. A. No. 02C-08-297-ASB C. A. No. 02C-02-065-ASB C. A. No. 02C-08-298-ASB C. A. No. 02C-05-214-ASB C. A. No. 00C-08-028-ASB C. A. No. 02C-08-293-ASB Submitted: January 31, 2003 Decided: March 3, 2003 Defendant 4520 Corporation s Motion to Dismiss. Motion Granted. Complaint Dismissed with Leave to Amend Within 30 Days. OPINION Appearances: Richard T. Wilson, Esquire, Wilmington, Delaware. Attorney for Plaintiffs. Christian J. Singewald, Esquire, Wilmington, Delaware. Attorn ey for D efend ant 452 0 Corp ., Inc.. JOHN E. BABIARZ, JR., JUDGE. Holleran, et al. v. 4520 Corp. Inc., et al. C.A. No. 02C-04-281-ASB This is the Court s decision on Defendant 4520 Corporation s motion to dismiss the Complaints filed by 82 Plaintiffs in an asbestos-related personal injury action against numerous Defendants. Plaintiffs oppose the motion to dismiss and have submitted a First Amended Complaint, which the Court accepts. As explained below, the motion to dismiss the Complaints is Granted with leave to amend within 30 days of the date of the issuance of this Opinion. Notices of adoption filed by certain other Defendants are therefore moot.1 STANDARD OF REVIEW A motion to dismiss for failure to state a claim upon which relief can be based will not be granted if the plaintiff may recover under any set of circumstances susceptible of proof under the complaint.2 All well-pled allegations are to be taken as true, and all reasonable inferences shall be in favor of the non-moving party.3 If the Court concludes that the plaintiff cannot prevail on any set of facts inferable from 1 Defendants Atlas Turner, Inc., Bell Asbestos Mines, Ltd., and Sequoia Ventures, Inc. seek to adopt Defendant 4520's position on the motion to dismiss. 2 Spence v. Funk, 396 A.2d 967 (Del. 1978); Ramunno v. Cawley, 705 A.2d 1029 (Del. 3 Ramunno v. Cawley, 705 A.2d at 1034. 1998). 5 Holleran, et al. v. 4520 Corp. Inc., et al. C.A. No. 02C-04-281-ASB the pleadings, the complaint may be dismissed.4 DISCUSSION In the First Amended Complaint,5 Plaintiffs allege negligence as to all Defendants (Count 1); premises liability (Count 2); contractor liability (Count 3); wilful, wanton and reckless conduct (Count 4); civil conspiracy (Count 5); strict liability (Count 6); and loss of consortium (Count 7). Plaintiffs have agreed to dismiss the counts for civil conspiracy and strict liability.6 Defendant 4520 moves to dismiss the Complaint in its entirety because Plaintiffs have not pled the cause with particularity and therefore fail to state a claim upon which relief can be based. Plaintiffs concede that the Complaint paints [the allegations of negligence] with a broad brush, 7 but assert that it is not vague or lacking in particularity. 4 In re USA Cafes, L.P. Litigation, 600 A.2d 43, 47 (Del. Ch. 1991). 5 See Plaintiffs Motion in Opposition, Ex. C at 10-13. In a clerical error, the First Amended Complaint mislabels the counts for both conspiracy and wilful, wanton and reckless conduct as Count 4, resulting in a total of six counts rather than seven. For purposes of this Opinion, the Court refers to Counts 1 through 7. Other than Plaintiffs names and personal information, the 82 Complaints are virtually identical and are so treated in this Opinion. The Court s conclusions apply to each Plaintiff individually. 6 See Transcript of Hearing (July 18, 2002) at 8. 7 Plaintiff s Opposition at 5. 6 Holleran, et al. v. 4520 Corp. Inc., et al. C.A. No. 02C-04-281-ASB The circumstances constituting negligence must be pled with particularity, pursuant to Super. Ct. Civ. R. 9(b),8 in order to inform a defendant of the acts or omissions by which a duty has been breached.9 As this Court has previously stated, [i]t is not sufficient to state the result or conclusion of fact arising from circumstances not set forth in the declaration, nor to make a general statement of the facts which admits of almost any proof to sustain it. 10 In regard to time and place, which are at issue in this case, Rule 9(f) provides that averments of time and place are material and shall be considered like all other averments of material matter. In addressing claims of fraud under Rule 9, this Court has stated that the complaint must allege the time, place, and contents of the false representation. . . . 11 Negligence, like fraud, is a special matter that must be pled with particularity, and the Court concludes that the requisite particularity includes 8 Rule 9(b) provides as follows: Fraud, negligence, mistake, condition of mind. In all averments of fraud, negligence, or mistake, the circumstances constituting fraud, negligence or mistake shall be stated with particularity. Malice, intent, knowledge and other condition of mind of a person may be averred generally. 9 Riggs Nat l Bank v. Boyd, 2000 WL 303308 (Del.Super.) (citing Macino v. Webb, 274 A.2d 711, 713 (Del.Super.Ct.1971)). 10 Lee v. Johnson, 1996 WL 944868 at *2 (Del. Super.) (citations omitted). 11 Nutt v. A.C. & S., Inc., 466 A.2d 18, 23 (Del. Super. Ct.), aff d sub nom. Mergenthaler v. Asbestos Corp. of America, 480 A.2d 647 (Del.1984). 7 Holleran, et al. v. 4520 Corp. Inc., et al. C.A. No. 02C-04-281-ASB some indication of the time and place of the alleged injuries. Plaintiff Charles Hannagan s Complaint,12 which is representative of all 82 complaints, alleges that Hannagan is an ironworker who suffers from asbestos-related injuries because all Defendants failed in their duty to protect Hannagan from the dangers of inhaling asbestos. However, there is no allegation anywhere in the Complaint of a work site or premises where Plaintiff was injured, or a time frame during which an injury occurred. The Court will accept conclusions asserted in the Complaint only if there are specific allegations of fact to support them. 13 In this case, Plaintiffs have not provided any specifics as to the time, place or manner of the alleged injuries. Even under the standards of notice pleading, this broad brush pleading is not sufficient. Defendant 4520's motion to dismiss Counts 1, 2 and 3 is granted without prejudice. Defendant 4520 makes a similar argument to dismiss Count 4, which alleges wilful, wanton or reckless conduct. While state of mind requirements may be averred generally pursuant to Rule 9(b), the Court again finds that some notice of time, place or manner of injury is required. The lack of particularity which is fatal to the 12 See Motion to Dismiss, Ex. A. 13 In re Santa Fe Pacific Shareholders Litig., 669 A.2d 59, 65-66 (Del.1995). 8 Holleran, et al. v. 4520 Corp. Inc., et al. C.A. No. 02C-04-281-ASB allegations of ordinary negligence is also fatal to the allegations of the aggravated form of negligence, along with the associated claim for punitive damages.14 Defendant 4520's motion to dismiss Count 4 is therefore granted without prejudice. Loss of consortium (Count 7) is a derivative claim which need not be addressed at this time in light of the Court s decision to allow Plaintiffs to amend their Complaints. Finally, the notices of adoption filed by other Defendants are moot but may be renewed if Plaintiffs file a Second Amended Complaint. CONCLUSION For the reasons explained above, Defendant 4520's motion to dismiss the Complaint is Granted. Plaintiffs may submit a Second Amended Complaint for each Plaintiff within 30 days of the issuance of this Opinion. It Is So ORDERED. /s/ John E. Babiarz, Jr. Judge John E. Babiarz, Jr. 14 See Wolstenholme v. Hygienic Exterminating Co., Inc., 1988 WL 77655 at *1-2 (Del. Super.) (holding that where plaintiffs fail to plead fraud with particularity, the dependent request for punitive damages must be dismissed); Rowlands v. Phico Ins. Co., 2000 WL 1092134 at *6 (D. Del.). 9 Holleran, et al. v. 4520 Corp. Inc., et al. C.A. No. 02C-04-281-ASB JEB,jr/rmp/bjw Original to Prothonotary E-File on Courtlink 10

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