Viking Pump, Inc., et al. v. Century Indemnity Company, et al.
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SUPERIOR COURT OF THE STATE OF DELAWARE FRED S. SILVERMAN NEW CASTLE COUNTY COURTHOUSE 500 North King Street, Suite 10400 Wilmington, DE 19801-3733 Telephone (302) 255-0669 JUDGE September 27, 2012 (VIA E-FILED) John E. James, Esquire Potter Anderson & Corroon LLP Hercules Plaza - Sixth Floor 1313 North Market Street Wilmington, DE 19801 John D. Balaguer, Esquire White and Williams LLP 824 North Market Street, Suite 902 P.O. Box 709 Wilmington, DE 19899-0709 Lisa A. Schmidt, Esquire Richards Layton & Finger, P.A. One Rodney Square 920 North King Street Wilmington, DE 19801 RE: Viking Pump, Inc., et al. v. Century Indemnity Company, et al. C.A. No. 10C-06-141 FSS CCLD Upon Certain Defendants Motion for Reconsideration of September 19, 2012 Ruling and Certification DENIED. Dear Counsel: Perhaps I was not clear enough about why the court held Plaintiffs did not have to present 94 of the disputed facts to the jury. That decision was not punitive. It was based on Certain Defendants failure to show that, as to each of the 94 disputed facts, there was an actual dispute justifying presentation. John E. James, Esquire John D. Balaguer, Esquire Lisa A. Schmidt, Esquire Viking Pump, Inc., et al. v. Century Indemnity Company, et al. C.A. No.: 10C-06-141 FSS CCLD Letter/Order September 27, 2012 Page 2 As the September 19, 2012, written order explained, the court insisted that Defendants show the actual basis for their contention that each of the 94 disputed facts was, indeed, disputed. The court was concerned that, consistent with Certain Defendants past sanctionable practices, Certain Defendants were attempting to put Plaintiffs to their proof concerning facts that were not truly disputed. Even without the 94 disputed facts, the parties are asking to add to the trial. As the September 19, 2012 order also explains, instead of pointing to evidence from which the jury could find against Plaintiffs, Certain Defendants only made vague, unsubstantiated, unhelpful and conclusory statements. And so, the heart of the order s evidentiary ruling is not Certain Defendants bad faith. That was addressed through the monetary sanction. The evidentiary ruling was based on Certain Defendants inability or unwillingness to articulate the bases on which the 94 facts were disputed, even after years of discovery. Even in the motion for reconsideration, Certain Defendants do not offer one example of how a disputed fact is disputed. With the record in that condition, therefore, there is no reason why Plaintiffs must use their limited time to present evidence on those things. This holding is both substantive and procedural. The court appreciates Plaintiffs September 25, 2012 response. The court agrees, as Plaintiffs argue, that Certain Defendants have demonstrated a pattern of efforts to impose undue burdens on Plaintiffs in the interest of delay. And, the court agrees with Plaintiffs Drejka v. Hitchens Tire Serv. Inc. analysis,1 especially the way Plaintiffs analyze Drejka criterion (6).2 But, the court emphasizes here the order s substantive nature. As for certification of an interlocutory appeal, this case is no where 1 15 A.3d 1221 (Del. 2010). 2 Pls. Ans. Br. at p. 22. John E. James, Esquire John D. Balaguer, Esquire Lisa A. Schmidt, Esquire Viking Pump, Inc., et al. v. Century Indemnity Company, et al. C.A. No.: 10C-06-141 FSS CCLD Letter/Order September 27, 2012 Page 3 close to being in condition for the Supreme Court s review. An interlocutory appeal would further delay this case s orderly resolution. For the foregoing reasons, Certain Defendants Motion for Reconsideration and Application for Interlocutory Appeal is DENIED. This order takes First State Insurance Company s and Twin City Fire Insurance Company s reply into account. IT IS SO ORDERED. Very truly yours, /s/ Fred S. Silverman FSS:mes oc: Prothonotary (Civil) Travis Hunter, Esquire Jennifer C. Wasson, Esquire Michael B. Rush, Esquire James W. Semple, Esquire Richard M. Beck, Esquire Sean M. Brennecke, Esquire Neal J. Levitsky, Esquire Seth A. Niederman, Esquire Paul Cottrell, Esquire Melissa L. Rhoads, Esquire Robert M. Greenberg, Esquire Kevin F. Brady, Esquire Thaddeus J. Weaver, Esquire
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